THE COURT: For the record you've got an exception., (R. May God bless you with the strength to carry on. At the time the subpoena was requested, two defense witnesses and two rebuttal witnesses for the state had yet to testify.. Blanton testified that the suspect, who was discovered in the attic of the residence, was taken into custody. The State contends that the facts here are sufficiently different than those in McTerry and Ervin, and, therefore, that there is no error fatal to the convictions in the present case in not issuing an instanter subpoena to compel Cooper's presence at trial. He stated that he was pissed off with the officers' harassment and high on cocaine. Prayers from Mobile, Alabama have been sent to you'll for strength, during these difficult times. Later he found a metal fragment in his pocket. The trial court refused to issue the subpoena. Officer Hugh Butler was the first to go to Collins. They are dying. THE COURT: I disagree with you. Officer Jody Jacobs of the Birmingham Police Department testified that he interviewed Spencer at the police station after Spencer was taken into custody. It has been years since I've seen you, but I knew you were always around, and to the family, may God bless you and keep you in your time of need. THE COURT: Well, he indicated yesterday or this morning he wasn't coming, or whoever went by to get him. We'll help you find the right words to comfort your family member or loved one during this difficult time. I didnt think there was much hope., He looked back at the apartment and saw a man, later identified as Kerry Spencer, standing just outside the apartment, firing a gun at him. Spencer also presented the testimony of his mother and his uncle concerning his good behavior as a child and that he was remorseful for the offenses. denied, 543 U.S. 924, 125 S.Ct. 1725-33.) TO THE FAMILY AND FRIENDS MY SYMPATHY GOES OUT TO YOU AND MY PRAYERS ALSO, BE ENCOURAGED AND KNOW THAT GOD MAKES NO MISTAKE, YOU LOVED HIM BUT GOD LOVED HIM MORE. Menu. (R. Echovita Inc is a registered trademark. King v. State, 71 Ala. 1, 4 (1881). This category only includes cookies that ensures basic functionalities and security features of the website. According to Spencer, Officer Collins arrived on the scene at that time and parked behind Curly's automobile, and Curly walked back to his car. 2450, 124 L.Ed.2d 666 (1993); and Ex parte Slaton, 680 So.2d 909, 924 (1996) ( While Lockett and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority. ) (quoting Bankhead v. State, 585 So.2d 97, 108 (Ala.Crim.App.1989), cert. These cookies do not store any personal information. In addition to the plethora of guns and unspent and spent ammunition discovered in and outside the apartment where the shootings occurred, the testimony indicated that Officer Owens's holster was damaged and that his service handgun was not located in the vicinity of his body. 1676.) I dont know, and I can never prove it, but Im not 100 percent sure that Carlos didnt push me, or give me a shove out the door., Your email address will not be published. 803.) The God we serve in Mobile, Alabama is the same one that sits high and looks low in Dallas, Texas. Would you like to offer Kerry Spencer Shoemakers loved ones a condolence message? On remand, this ambiguity must be clarified.. 1415.) 1659.) The following exchange then occurred: [Defense counsel]: Secondly, if not served, we would ask the Court to issue instanter subpoena since we know where he's at and he's a critical witness in this capital murder case. A native of Union County, SC, he was the son of the late Milton Wallace. On direct examination, Dr. Simmons testified as follows: [I]t's likely-in my opinion, you can't say absolutely, but it's likely he would have been immobilized right when he sustained [the gunshot wound to the torso]. (R. But opting out of some of these cookies may affect your browsing experience. Raper v. State, 584 So.2d 544 (Ala.Cr.App.1991). He attended Boone Public Schools. Average Age & Life Expectancy Kerry Darnell Spencer lived 37 years shorter than the average Spencer family member when they died at the age of 34. The uncontroverted evidence further indicated that Spencer fired a final shot point-blank into Officer Bennett's head, as Officer Bennett lay on the ground outside the apartment. When I think of Kerry a big smile comes to my face, thoughts of his easy smile and quiet ways take some of the load from my heart. There are no events at this time. But the night before, we really did a lot of cocaine. Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999), aff'd, 820 So.2d 152 (Ala.2001). Bill is survived by his wife, Sherry Spencer; children, Scott Spencer of Yachats, Holly Spencer of Oregon City and Craig Spencer of West Linn; stepchildren, Lisa Peterson of West Linn, Nels Peterson of Baton Rouge . KERRY SPENCER passed away in Southaven, Mississippi. Here, evidence that Spencer was engaged in a drug-dealing enterprise at the residence where the shootings occurred, evidence that Spencer was frequently seen in possession of a firearm at the residence, evidence that there had been a confrontation involving Spencer's accomplice Woods and police officers earlier in the day of the shootings, and evidence that Spencer had outstanding warrants for his arrest were all properly admitted for reasons other than simple impeachment of Spencer's credibility. Thus, as in Sneed, we conclude that the trial court did comply with the principles espoused in Ex parte Taylor and Ex parte Carroll in overriding the jury's recommendation. My tears are with yours, and so are my prayers. He shot the first two officers repeatedly in the back and the third officer at point-blank range in the head some period of time after that officer had been mortally wounded by a gunshot to the chest that impacted numerous internal organs and the spinal cord. Ryan Kreidler (R) -- IF, OF The first nine on this list are pretty good bets. Coon v. State, 494 So.2d 184, 187 (Ala.Crim.App.1986) (quoting Government of the Virgin Islands v. Carmona, 422 F.2d 95, 99 n. 6 (3d Cir.1970)). SERVICES. Officer Collins testified that, as he and Officer Owen walked toward the back door, a man who was working on an automobile parked near the apartment got up and walked away, saying, I don't want no part of this. (R. This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable. 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is particularly egregious' and if it seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. Kerry Todd Hawkins . Officer Fred Alexander arrived in the front of the apartment and radioed that there was an officer down in the front of the apartment and then made an additional radio transmission, indicating that two more officers were down inside the apartment. 709.) Bern, please know that I am with you all. Spencer testified that Curly had attempted to force his way into the apartment through a window approximately eight months before the shootings, but that Nate had gotten his videocassette recorder and filmed the incident, startling Curly and causing him to jump back and leave. Flawless Execution. Defense counsel averred that a subpoena had been issued on May 17, 2005, to secure the presence of Cooper as a witness at trial. document.getElementById("ak_js_1").setAttribute("value",(new Date()).getTime()); Copyright 2023 My Crime Library | Powered by Astra WordPress Theme. denied, 293 Ala. 768, 304 So.2d 268 (1974); Sterrett v. State, 31 Ala.App. Ex parte McWhorter, 781 So.2d 330, 342 (Ala.2000). See also Ex parte Pettway, supra, and Mordecai v. State, 858 So.2d 993 (Ala.Crim.App.2003).. I called them (the other officers) on the radio but they didnt answer. 912.) She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. Handled paperwork and organized documents. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. Over the years I have thought of Kerry and our times together while playing football, and I will always remember his smile and his laugh. The law requires that a belief of imminent peril and urgent necessity to slay in self-defense, though it may be based on appearances, must be both well-founded and honestly entertained. Some basic help and starters when you have to write a tribute to someone you love. More recently, in Scott v. State, 937 So.2d 1065 (Ala.Crim.App.2005), this Court remanded the case for clarification of the sentencing order, noting in part: In a listing of mitigating circumstances the court found not to exist, the court included, Any other mitigating circumstance offered pursuant to 13A-5-52, Code of Alabama 1975. (C. Officer Collins stated that his holster was damaged during the shooting, that he had a hole in his pants, that he sustained a wound in his leg, and that he later found a metal fragment in his pants pocket. Were refreshing the Tributes.com website for a better experience! According to defense counsel, an alias was issued on May 25, 2005, but defense counsel was unaware as to whether that subpoena had been served. See Brownfield v. State, supra, and the cases cited therein, with regard to the impact of Ring on Alabama's capital-murder statute and sentencing scheme. The trial court indicated that there was no information indicating that Cooper had ever been served with a subpoena. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. This Court did not consider this as mitigating evidence. 371, 372, 77 So. Born on January 22, 1928, in Wichita Falls, Texas, to A.A. (Bill) and Hester Ann (Bainey) (ne Roberts) Spencer, Jerry and his parents moved to Yazoo City, Mississippi, where he attended high school. Here, although the trial court referenced the jury's recommendation that Spencer be sentenced to life imprisonment without parole, the circuit court's order did not state that the trial court found the jury's recommendation to be a mitigating circumstance and did not contain written findings concerning what weight that jury recommendation was given, or the reasons why it overrode the jury's recommendation. Olive Evelyn Decima Spencer. The family will receive friends Thursday evening at the funeral home from 6:00 to 8:00pm. We can't even get in touch with his lawyer. By clicking Accept, you consent to the use of ALL the cookies. But she never expected one-year-old son, Samuel, to use his skill to send out an S.O.S while sitting on Santa's . Nathaniel Woods wasnt going to agree with anything we said that day., Woods ran back into the apartment. It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Scott v. State, 34 Ala.App. 928 So.2d at 326-27. Spencer next argues that the trial court erred in refusing to instruct the jury on self-defense. Necessary cookies are absolutely essential for the website to function properly. For some people, the best send-off is one that they would have loved to attendthemselves: a big party. Specifically, Spencer contends that a limiting instruction was required as to evidence regarding his drug use and his alleged occupation as a prominent drug dealer, evidence that he had no bond arrest warrants outstanding against him, evidence that he was frequently seen carrying a firearm, evidence that he had been discharging a firearm the night before the officers' shootings, and evidence that spent shell casings were discovered around the apartment, all of which he contends had no nexus to the officers' shootings. Cochran v. State, 500 So.2d 1161 (Ala.Crim.App.1984), aff'd in pertinent part, remanded on other part, 500 So.2d 1179 (Ala.1985), aff'd on return to remand, 500 So.2d 1188 (Ala.Cr.App. Doyle Norman Cox was born on May 7, 1938 in Boone, the son of Woodrow and Alice (Staley) Cox. The law is well-settled that a motion for a continuance, even when based on an absent witness, is addressed to the sound discretion of the trial court. Washington stated that someone inside the apartment and some of the officers engaged in a conversation at the back door of the apartment, that Officer Owen said that they had a warrant, and that he heard someone inside the apartment tell the officers they could not come in without a warrant; he further testified that another officer came from the front to the back door and snatched the door open without saying anything about having a warrant, and the officers then proceeded inside. In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Id. Family and friends must say goodbye to their beloved Kerry Spencer Shoemaker (Saint Pete Beach, Florida), who passed away at the age of 82, on June 3, 2022. In discussing nonstatutory mitigating circumstances, the trial court's amended sentencing order states: The defense called [Spencer] to the stand to testify in the penalty phase before the jury. He stated that he looked at the doorway of the apartment and saw a man standing just outside the apartment and firing a gun in his direction. [E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). (R. Kerry Spencer. Spencer attended Chattanooga Central High School and was a. 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger). Having reviewed the applicable legal authority, the arguments of the parties, and the record before this Court, we cannot say that reversible error occurred as to this claim. [Defense counsel]: One, to make a determination if the last May 25 subpoena has been served at Pearson Hall. McTerry, 680 So.2d at 955. Unless you are experienced as an estate executor, you probably should hire an attorney. Kerry had the zest for life and it showed through his many endeavors over the years. Terry Spencer's passing on Thursday, December 22, 2022 has been publicly announced by Midland Cremation Society in Joplin, MO. 1638.). The trial court indicated that it found nonstatutory mitigating circumstances to exist, but it failed to identify which nonstatutory mitigating circumstances it found to exist. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). However, as the State argues in its brief on return to remand, this Court has considered and rejected that interpretation of Ex parte Taylor and Ex parte Carroll in prior opinions. The radio he was using kept giving him a busy signal as he frantically tried to call for help. In his amended sentencing order on return to second remand, the trial court has clarified its findings concerning the mitigating circumstance in 13A-5-51 (Ala.Code 1975), as to whether Spencer was capable of appreciating the criminality of his conduct or whether his ability to conform his conduct to the requirement of the law was substantially impaired during the commission of the offenses. Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. He stated that Curly was always harassing them. Just look to God and he will see you through your time of sorrow. The trial court cited several reasons for overriding the jury's recommendation. He testified that when he awoke, he saw Chisholm with a gun and automatically opened fire. It was a split-second decision, he later testified. He drove there to help and encountered Nathaniel Woods for the first time. Therefore, Spencer is not entitled to any relief on this claim. Does [Cooper] have pending criminal charges at this time? TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. Sgt. Bern, my thoughts and prayers are with you and your family in your time of sorrow. Further, it would have been well within the trial court's discretion to conclude that none of the evidence offered by the defense was mitigating. [Assistant defense counsel]: There are three attempted murders. What kind of arrangement is appropriate, where should you send it, and when should you send an alternative? He told his colleagues at the Birmingham Police Department that Kerry Spencer and Nathaniel Woods, lifelong friends who had been dealing and using drugs at the pea green one-story house in the Ensley section of the city, were responsible for the killings. The evidence also indicates that Spencer made statements following the earlier encounters with the officers that if the officers returned he would bust em (R. 913), and that they was gonna get the officers if they returned. You know, that occasionally happens. These cookies will be stored in your browser only with your consent. They called Chisholm to the back to bring the warrant and photo. THE COURT: That didn't really answer my question. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). CC-04-4132, Spencer was convicted of intentionally attempting to cause the death of Michael Collins by shooting at him with a firearm, a violation of 13A-6-2 and 13A-4-2, Ala.Code 1975. Because there was no rational basis for an instruction on voluntary intoxication, we find no plain error in the trial court's failure to instruct the jury on voluntary intoxication or reckless manslaughter as a lesser-included offense. Alabama . Copyright 2023 Echovita Inc. All rights reserved. They were married for thirty beautiful years and shared many memories together. [Section] 13A-6-3(a)(2) is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense. Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985). Thus, the plain-error doctrine applies. If the lawyer is going to advise him to take the Fifth Amendment, I can't make him testify. Molton v. State, 651 So.2d 663, 666 (Ala.Crim.App.1994) (Where a defendant clearly objects at the charge conference to the trial court's refusal to give a written requested charge and states specific reasons for that objection, he is not required to renew his objection at the close of the oral instructions to preserve that issue for appellate review.). Harris v. State, 2 So.3d at 911. My heart goes out to you at this time and in the days ahead. The trial court was directed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. Sgt. In CC-04-4129, the jury recommended, by a vote of 9 to 3, that Spencer be sentenced to life imprisonment without the possibility of parole; in CC-04-4130, the jury recommended, by a vote of 10 to 2, that Spencer be sentenced to life imprisonment without parole; in CC-04-4131, the jury recommended, by a vote of 9 to 3, that Spencer be sentenced to life imprisonment without parole; and in CC-04-4383, the jury recommended, by a vote of 7 to 5, that Spencer be sentenced to life imprisonment without parole. If youre in charge of handling the affairs for a recently deceased loved one, this guide offers a helpful checklist. Here, however, the circuit court listed Spencer's own testimony and then expressly stated that that testimony was the sum total of the non-statutory mitigating evidence offered by the defendant. (Emphasis added.) denied, 481 U.S. 1033, 107 S.Ct. See also Kennedy v. State, 240 Ala. 89, 196 So. At the close of the defense's case, the defense renewed its motion for a mistrial on the grounds that two witnesses, both of whom were eyewitnesses to the shootings and further provided corroborating evidence supporting Ervin's claim that the shootings were in self-defense, were absent. Born February 13, 1983, in Morehead, KY, Terry was the son of the late James Spencer and Sharon Stevens Richmond. According to Dumas, he had stayed there for approximately 18 or 19 days, and that, although he saw officers patrolling the area, the morning of the shootings was the first time he saw officers actually come to the apartment. He was such a warm and welcoming man. See Rule 45A, Ala.R.App.P. Terry "Cot" Spencer, 65, of Carlisle, SC passed away on Wednesday morning, July 27, 2022 in Ellen Sagar Nursing Home. Spencer v. State, [Ms. CR-04-2570, April 4, 2008] --- So.3d ----, ---- (Ala.Crim.App.2008). He stated that Officer Bennett sustained a very close-range gunshot wound below his left eye, which passed through his brain case and portions of the brain before exiting though the back of his skull; he further testified that Officer Bennett sustained a gunshot wound to his chest that lacerated his heart and impacted his liver, esophagus, aorta, right adrenal gland, and spine but did not exit his body, and entrance and exit wounds on his arm associated with a third gunshot. Certainly, there may be a rational explanation for the trial court's statements that would bring the sentencing order, as amended, within the constitutional and statutory requirements. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. 721 Smith Rd. In weighing the aggravating circumstances against the mitigating circumstances, the trial court accorded great weight to the aggravating circumstance of 13A-5-49(5), Ala.Code 1975, noting that the officers were acting as agents of the court in their attempt to duly serve warrants, and that two of the three officers were gunned down from behind without any opportunity to draw their weapons. Spencer relies in large part on McTerry v. State, 680 So.2d 953 (Ala.Crim.App.1996), and Ervin v. State, 584 So.2d 947 (Ala.Crim.App.1991). Funeral: 2 Mar 2020, Narberth. He put out a double aught call, the most drastic request for backup an officer can make. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. Spencer stated that he went to the window and that Nate and he were both cursing at Curly, telling him to leave; according to Spencer, after he said a few curse words to Curly, Curly told him, Yeah, there's enough body bags for you too. (R. He was preceded in death by his brother: Raymount Spencer. Kerry will be deeply missed by everyone who got the pleasure of meeting him. Sgt. Mitch Rector, a firearm and toolmark examiner with the Birmingham Police Department, testified that he examined the recovered weapons, bullet fragments, and shell casings associated with this case. In the 21st century, it's not just urns and gravestones anymore. Oct 1932 - Apr 2020. See also Brownfield v. State, supra (jury conviction of the capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct satisfied the requirement that an aggravating circumstance be found by the jury and the verdict itself rendered the defendant eligible for the death penalty, exposing him to a range of punishment that included the death penalty); and Yeomans v. State, 898 So.2d 878 (Ala.Crim.App.2004) (same). I'll fuck you up. Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. Spencer stated that he looked out the back door and saw Officer Collins at the back of the apartment with his gun drawn and that Officer Collins ran behind his police car. Spencer stated that he was awakened from his nap by a commotion in the back of the apartment, so he looked out the front bedroom window and saw that the police had returned. Spencer Brown, of Parker, Colorado, passed away unexpectedly at his home on January 15. On September 9, 2005, the trial court held the final sentencing hearing. I ain't got no papers on me. A person may use deadly physical force if the actor reasonably believes that such other person is: (1) Using or about to use unlawful deadly physical force; or, (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or, (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree 7. See also Shiflett v. State, 507 So.2d 1056 (Ala.Crim.App.1987). Terry Spencer Obituary, Death - Visitation & Funeral Plans - Death-Obituary.com Terry Spencer Obituary, Death - Terry Spencer, a teacher at Sto-Rox Upper Elementary School has passed away, the full obituary is currently unavailable. Write your message of sympathy today. David Kessler's top 4 tips for dealing with holiday grief. Hundreds of officers from Birmingham and other departments descended upon the scene. Spencer Jones hit four 3-pointers and scored 21 points on 7-of-13 shooting from the field, Brandon Angel added 14 points, seven rebounds and four assists and Stanford beat Washington 81-69 Sunday . According to Washington, he saw the officers pull up and approach the apartment, but he denied speaking to them, saying that he stayed quiet because there was a warrant for his arrest. So are my prayers told them to stop the nonsense and persuaded Owen to put badge! 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