Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, August 18, 1993 TAG: 9308180173
SECTION: VIRGINIA PAGE: A1 EDITION: METRO
SOURCE: KATHY LOAN STAFF WRITER
DATELINE: PULASKI LENGTH: Medium
Frank Darryl Allen of New Jersey, 24, had pleaded not guilty to four charges of malicious wounding.
But a Pulaski County Circuit Court jury found him guilty of three malicious wounding charges and one lesser charge of inflicting bodily injury on a correctional officer.
He was sentenced to 20 years in prison on each malicious wounding conviction and two years on the inflicting bodily injury charge.
Capt. Steve Montgomery, who was scratched on one hand and also injured a knee and a wrist, said the verdict sends a message to other inmates considering assaulting guards.
"This is going to help us in our job," Montgomery said, pointing out that, besides the law, all correctional guards have at their disposal is physical strength to ward off an attack by an inmate.
Correctional officers do not carry guns or other weapons within the jail because of the threat of being overpowered by prisoners, Montgomery said.
Allen's lawyer, Public Defender David Warburton, said he will appeal the convictions because of Judge Dow Owens' decision to keep Allen in handcuffs and leg restraints throughout the trial.
Commonwealth's Attorney Everett Shockley asked Owens to have Allen restrained throughout the trial, citing the nature of the charges against him, his medical condition and the need to ensure the safety of people in the courtroom.
Warburton called the request "an affront to the criminal justice system."
Owens denied a motion by Warburton to set aside the verdicts as a foregone conclusion by a jury that saw Allen wearing handcuffs throughout the trial.
Warburton argued that the decision to restrict a defendant in court must be made in response to behavior observed by the judge himself. Allen sat quietly throughout the trial.
The four guards testified they were assaulted by Allen as they tried to handcuff him in two separate incidents at the Pulaski Correction Unit in mid-December.
Two guards were bitten, one lost two teeth from an elbow-blow to the mouth, and a fourth, Montgomery, was scratched on the hand and injured a knee and a wrist.
The guards were not aware of Allen's medical condition. That prompted state Del. Tommy Baker, R-Dublin, to sponsor a General Assembly bill to give guards and other officers the right to know whether someone was carrying a communicable disease.
State regulations at the time of the assaults protected the privacy of AIDS patients, making the information available only to medical personnel.
Legislation approved in March allows public safety employees who have to arrest, transfer or otherwise supervise a person infected with a communicable disease to be informed of a potential risk of exposure.
"It's sad that he is infected as he is," Shockley told the jury in his closing remarks. "It's something we wouldn't wish on our own worst enemy."
Shockley said that while pitying Allen, the jury should remember "that night he had no pity" on the officers when he bit two of them, remarked that he had something for them, and swore repeatedly.
Allen was diagnosed as HIV-positive in 1989 while a prisoner at the Nottoway Correctional Center in Burkeville.
After court, Shockley said he doesn't expect to see an increase in the number of cases involving officers or others assaulted by HIV-positive inmates.
"Most people . . . aren't going to want to give it to their worst enemy."
Shockley said his thoughts were with the guards, who have suffered physically and emotionally as a result of the attacks - including enduring people who are afraid to be around them because they mistakenly believe the guards have been infected.
Guards have a right to expect to be protected from such situations, Shockley said.
"I think these men need to be protected, absolutely," the prosecutor said.
Montgomery and Officer Randy Brooks, who was bitten three times, have tested negative for the virus. Brooks said he will be tested again later this year.
Sgt. Dave Ayers, who was struck in the mouth, has not been tested because he was not bitten or scratched.
Officer Richard Manning, who was bitten once, has declined to talk to the press.
No AIDS infections were reported to be transmitted by biting in any of the 242,146 cases recorded through last September, according to the Centers for Disease Control in Atlanta. Medical authorities say the AIDS virus can be transmitted only through direct contact with contaminated blood, semen and vaginal fluids.
by CNB