Dysart v. State
Citation | 581 So.2d 541 |
Parties | Samuel L. DYSART v. STATE. CR 89-814. |
Decision Date | 30 November 1990 |
Court | Alabama Court of Criminal Appeals |
Timothy Fleming, Gulf Shores, for appellant.
Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
The appellant, Samuel L. Dysart, was convicted of assault in the first degree, a violation of § 13A-6-20, Code of Alabama 1975. He was sentenced to life in prison.
The State's evidence tended to show that on the evening of January 7, 1989, Ms. Helena Thompson was stabbed by the appellant while at the Mod Social Club in Foley, Alabama. Evidence was offered that the appellant and the victim had previously lived together but had broken off their relationship prior to this incident. Earlier in the evening, the victim saw the appellant at the dog track in Pensacola, Florida, while she was there with two friends. When the victim returned to Foley that evening, she saw the appellant again at the Foley Civic Center. After the civic center closed, Ms. Thompson went to the Mod Social Club, where she again saw the appellant. The appellant told her that he loved her, and Ms. Thompson said that she no longer loved the appellant. At this point the appellant took out a knife and stabbed the victim in the side. He continued to hit her with his fist several times after she fell to the ground. The appellant also put his hands around her neck as if to "break it." A friend of the victim, who was also present at the Mod Social Club, testified that the appellant said, "If I can't have you, ain't nobody else going to have you." A patron of the club finally managed to get the appellant away from the victim, and the appellant fled the scene. The victim was taken to South Baldwin Hospital, where she underwent emergency surgery. A knife blade was removed from her abdomen. Dr. Nichols, who performed the surgery, testified that the injuries she had sustained were life threatening. On appeal, the appellant raises four issues.
The appellant initially argues that the standard of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), should be extended to "gender based" peremptory strikes. This court recently addressed this issue in the case of Daniels v. State, 581 So.2d 536 (Ala.Cr.App.1990); see also, Stariks v. State, 572 So.2d 1301 (Ala.Cr.App.1990). In Daniels, we held that Batson does not extend to gender-based peremptory strikes.
Daniels, 581 So.2d at 538, quoting United States v. Hamilton, 850 F.2d 1038, 1042-43 (4th Cir.1988), cert. dismissed sub nom. Washington v. United States, 489 U.S. 1094, 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989), cert. denied, Hamilton v. United States, 493 U.S. 1069, 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990). We see no reason to depart from this decision here.
The appellant next argues that the trial court erred in allowing the victim to testify to the ultimate matter at issue, i.e., the intent of the appellant. Intent, the appellant contends, is an element of the offense as described in § 13A-6-20, Code of Alabama 1975, and as such, he argues, it is a question for the jury. The following occurred during the examination of the victim:
By Mr. Wilters [Prosecutor]:
The witness in the instant case was clearly having difficulty describing what took place. Her use of the statement, "like he was trying to break my neck," was a "collective fact" or "shorthand way" of stating what the appellant was doing with his hands around her neck.
C. Gamble, McElroy's Alabama Evidence, § 127.01(3) (3d ed. 1977). The court committed no error in allowing the victim to state her opinion in this instance.
The appellant next argues that the evidence does not support the offense as charged in the indictment. Specifically, he argues that there was a material variance between the evidence introduced at trial and the evidence needed to satisfy the requirements of the Code section pursuant to which the appellant was charged. The appellant was indicted under § 13A-6-20(a)(1), Code of Alabama 1975. The section states:
The appellant argues that the evidence presented at trial did not conform with the section of the statute under which he was indicted but rather conformed to § 13A-6-20(a)(2), Code of Alabama 1975. This section states:
The indictment charged that the appellant:
"... did, with intent to cause serious physical injury to Helena Thompson, by means of a deadly weapon or dangerous instrument, to-wit: A knife, in violation of § 13A-6-20(a)(1) of the Code of Alabama...."
The evidence presented at trial established that the victim sustained injuries to her spleen and stomach by a knife blade that broke off in her abdomen. This evidence was relevant to prove that the appellant caused "serious physical injury to another person ... by means of a deadly weapon." The evidence presented was consistent with the crime charged. No variance occurred here.
Last, the appellant argues that the trial court erroneously sentenced him under the Habitual Felony Offender Act. He cites several reasons for this contention. Initially, he argues that the two prior convictions of manslaughter and possession of a pistol after a crime of violence, were not correctly proven by the prosecutor introducing certified copies of the prior case action summary sheets. "A maintained by the district court clerk's office, or a certified copy thereof, properly entered and duly certified, may be offered as proof of prior convictions." Johnson v. State, 541 So.2d 1112, 1116 (Ala.Cr.App.1989). In the instant case, the copies of the case action summary sheets relating to each of the two prior convictions were certified; thus they were correctly...
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