581 So.2d 541 (Ala.Crim.App. 1990), CR 89-814, Dysart v. State

Docket Nº:CR 89-814.
Citation:581 So.2d 541
Party Name:Samuel L. DYSART v. STATE.
Case Date:November 30, 1990
Court:Alabama Court of Criminal Appeals

Page 541

581 So.2d 541 (Ala.Crim.App. 1990)

Samuel L. DYSART

v.

STATE.

CR 89-814.

Court of Criminal Appeals of Alabama.

November 30, 1990

Rehearing Denied Feb. 1, 1991.

Page 542

Timothy Fleming, Gulf Shores, for appellant.

Don Siegelman, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

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.

I

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.

" 'Although the Court in Batson relaxed the evidentiary burden of Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824,

Page 543

13 L.Ed.2d 759 (1965) ], it offered no intimation that it was extending the equal protection safeguards involving peremptory strikes to gender: "By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice." 106 S.Ct. at 1724 (emphasis added). While the strictures of the Equal Protection Clause undoubtedly apply to prohibit discrimination due to gender in other contexts, there is no evidence to suggest that the Supreme Court would apply normal equal protection principles to the unique situation involving peremptory challenges.

" '....

" 'Clearly, if the Supreme Court in Batson had desired, it could have abolished the peremptory challenge or prohibited the exercise of the challenges on the basis of race, gender, age or other group classification. A careful examination of the Batson opinion, however, leads this Court to the firm conclusion that, in light of the important position of the peremptory challenge in our jury system, the Court intended Batson to apply to prohibit the exercise of peremptory challenges on the basis of race only.' "

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.

II

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:

"Q: (Prosecutor): What did he do next, Miss Thompson?

"A: He put both his hands around my neck like he was trying to break it.

"Mr. Fleming (Defense Counsel): And objection to what he was trying to do, move to strike.

"The Court: Overruled.

"The Witness: Well, that's what he was doing.

By Mr. Wilters [Prosecutor]:

"Q: It's all right, Mrs. Thompson. He had both his hands around your neck?

"A: (Nods head affirmatively.)

"Q: You need to answer.

"A: But it was just not around it, you know, he was doing this (indicating).

"Q: What was he doing with his hands?

"A: Well, seems like he was trying to break my neck."

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.

"A witness may testify to his opinion if it is a collective fact or a shorthand rendition of fact. This variety is most commonly referred to as the collective fact exception and arises when the facts observed by the witness are so many or so inexpressible that he is allowed to...

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