Log in to a funeral home below and get started. Spencer v. State, [Ms. CR-04-2570, Feb. 27, 2009] --- So.3d ---- (Ala.Crim.App.2008). [I]t is a question for the jury to satisfy itself from all the evidence in the case whether or not the defendant was in imminent and manifest danger either of losing his own life or of suffering grievous bodily harm, or that it appeared so to the mind of a reasonable man. Dilburn v. State, 16 Ala.App. . Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. But opting out of some of these cookies may affect your browsing experience. Clearly, the facts in this case differ from those in the authority on which Spencer relies, i.e., Ervin and McTerry. According to Dumas, Spencer fired the weapon on the night before the shootings and essentially kept it in his possession from the time he purchased it until the shootings the following day. 913.) The trial court did consider the jury's recommendation of life imprisonment without parole as a mitigating circumstance, assigning this factor moderate weight because the vote was not consistent among the capital murder cases against Spencer. 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. In the present case, at approximately 4:45 p.m. on Saturday, June 19, 2005, during the defense's case, the defense called Cooper as its final witness; however, he was not present. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights. Kerry Spencer shared an old photo of her son. Kerry Smith cause of death and manner of death was not disclosed to the public at the time of this publication. It's surprising how much a musical selection can affect mourning. Woods and Kerry Spencer were convicted of capital murder and sentenced to death in the slayings of the three Birmingham officers. In reversing the trial court's decision, this Court stated: The object of the constitutional guarantee of compulsory process is that the court will exercise its power to compel attendance of witnesses. Before the issue of self-defense is submitted to the jury, the defendant has the burden of proving, among other things, that he reasonably believe[d], Alabama Code 1975, 13A-3-23, that his attacker was about to use unlawful deadly physical force, unless this fact arises out of the evidence produced against him to prove the homicide. Cosby v. State, 269 Ala. 501, 505, 114 So.2d 250, 253 (1959). A unique and lasting tribute for a loved one. Additionally, the initial arguments were between Woods and officers; Spencer willingly joined in the verbal jousting, and again continued his verbal sparring with a second officer even though the first officer had, according to Spencer, made threatening comments. Although there was evidence that the appellant had been drinking beer on the day of the robbery-murder, there was no evidence concerning the quantity of beer he consumed that day at the time of the murder. 22, 304 So.2d 263, cert. 663, 665, 248 So.2d 158, 160 (1971). Aoife Buckley and Eoin McEnery travelled in style on their big day in a vintage set of wheels. [Spencer] also testified before the Court in the sentencing phase before the Court. Spencer testified that after he watched Curly and Officer Collins drive off, he noticed Nate talking to Officer Chisolm, who he knew as Robo. Spencer stated that he joined the argument and cursed at Officer Chisolm and told him to leave. Finally, Spencer failed to meet his burden of showing that the officers were in the apartment with a felonious intent. Giving to charity is a meaningful way to honor someone who has died. She said Spencer was still asleep when Nate first began talking with the officers at the back door. The record clearly shows that more than sufficient time had elapsed between the time the last drugs or alcohol was ingested and the shooting.. Slaughter stated that she walked outside and saw Officer Owen talking to Nathaniel Nate Woods; according to Slaughter, she heard Nate tell Curly to [t]ake off that mother fucking badge and that gun and I will whoop your mother fucking ass. (R. denied, 252 Ala. 60, 39 So.2d 421 (1949), and where the evidence of intoxication is offered by the State, see Owen v. State, 611 So.2d at 1127-28.'. It was a good thing. I'm not going to issue an attachment for him because he's not served. Kerry Spencer (@Swilua) December 5, 2017 The photo has captured so much attention, she shares it on Facebook every year. Officer Hugh Butler was the first to go to Collins. Officer Chisolm's service weapon was discovered near his body and his can of Mace was discovered on the floor near the wall of the kitchen. 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. (Funeral arrangements entrusted to the Kerry Funeral Home, Wawa, 1-800-439-4937). God Bless. 2954, 57 L.Ed.2d 973 (1978); Ex parte Hart, 612 So.2d 536, 542 (Ala.1992) (Lockett does not require that all evidence offered as mitigating evidence be found to be mitigating.), cert. Further, Spencer's actions contributed to the earlier confrontations with the officers; he made statements between the earlier encounter and the fatal encounter indicating that he would kill the officers if they returned. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] --- So.3d ----, ---- (Ala.Crim.App.2008). Spencer attended Chattanooga Central High School and was a. In determining whether to charge the jury on self-defense, evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury. Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). Kerry was a 2010. THE COURT: Okay. The trial court however did not consider this to be mitigating evidence because his specific apology directly contradicted the evidence presented, including his statement to police following his arrest and his testimony to the jury during the sentencing phase of his trial. Dr. Gary Simmons testified at trial as follows: Defense counsel: If somebody received gunshot wound B to the chest would there be a short period of time afterward when myoclonic jerk could have been a factor?, Dr. According to Officer Collins, he and Officer Owen were informing Officer Chisolm of the series of events that had transpired and someone inside the residence continued yelling, Fuck the police. (R. Spencer then said he had his AK and that the officers came into the apartment with their guns for no reason spraying Mace, so he shot everyone who was pointing a gun at him. Kerry Spencer lit a candle 21/07/2022 Kerry Spencer wrote Missed and loved but thought about daily, a lady whom touched many hearts and made memories that will last in our minds forever Sleep tight and fly free XXXX JKLO Report abuse 21/07/2022 Comment on this message David Spencer wrote I miss you so much | Hired Attorney. The trial court then stated specific reasons for giving the jury's recommendation the consideration it gave it. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. Kerry Todd Hawkins Crane Hill. All rights reserved. According to Williams, Nate and she were sitting on the back porch, and they walked back inside when the officers arrived the second time. McTerry requested a subpoena after the victim testified, contending that it had not previously subpoenaed Williams because Williams was already under subpoena by the State, and it did not anticipate any conflict between Williams's expected testimony and the victim's expected testimony. It is mandatory to procure user consent prior to running these cookies on your website. 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. The trial court has also clarified in this return to second remand its findings and consideration concerning evidence indicating that Spencer shot Officer Bennett a second time through the head only as a reaction to Officer Bennett's having allegedly touched Spencer's leg. Therefore, in returning a guilty verdict as to the charged capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct, the jury of necessity unanimously found that that statutory aggravating circumstance had been proven beyond a reasonable doubt, i.e., 13A-5-49(9), Ala.Code 1975. He was born on September 15, 1960. According to court documents the three police officers were attempting to serve an arrest warrant on Nathaniel Woods when the two men opened fire killing Carlos Owen, Robert Bennett and Harley Chisholm. However, in our first opinion remanding this case, this Court had noted that there was evidence at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings, and that the State had requested a jury instruction as to the level of intoxication required to negate specific intent to kill. Stay up-to-date with how the law affects your life. Nathaniel Woods wasnt going to agree with anything we said that day., Woods ran back into the apartment. 698 So.2d at 205. 161, 13 So.2d 776, cert. 561, 562 (1934). 1676.) God is with you during this your time of sorrow. Flawless Execution. Prepare a personalized obituary for someone you loved.. May 14, 1940 - Officer Collins stated that the individual told Officer Owen, [Y]ou hide behind that badge and gun. His attitude in both was one of entitlement or justification. It then stated specific reasons for giving the jury's recommendation the consideration it gave it, including the appellant's participation in the robbery-murder and the jury's vote. 727.) 703, 34 L.Ed.2d 669 (1972). Always - Sharetha LaJoyce Ivory*** PIG - I love you all. Spencer also filed a motion for reconsideration of the sentences and an amended motion for reconsideration of the sentences. The penalty phase of the trial was conducted before the jury. Kerry Spencer passed away at age 34 years old on August 6, 2006. Defense counsel requested a continuance until 8:30 a.m. the following morning, and the trial court recessed until 8:30 a.m. the following morning. He love is everlasting. Unless you are experienced as an estate executor, you probably should hire an attorney. Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him. So it's possible. For over thirty years, along with our predecessors, the Gilmartin and Lynett Families, we have strived to provide the highest quality of service along with fair costs to the families we serve. [Defense counsel]: He's also kin to Nathaniel Woods. However, with regard to the sentencing order, although the trial court made thorough and specific findings of fact regarding the statutory aggravating circumstances and statutory mitigating circumstances, it did not make specific findings of fact regarding the existence or nonexistence of nonstatutory mitigating circumstances offered pursuant to 13A-5-52. Bennett, still out in the front of the building, said over the police radio: They are coming out the front. Collins wasnt able to go to the front door through the apartment because Woods, Chisholm and Owen were blocking the doorway. An honest may not be a reasonable belief; it may be the offspring of fear, alarm or cowardice, or it may be the result of carelessness, and irrational. He stated that Curly was always harassing them. Citing Ex parte Taylor, 808 So.2d 1215 (Ala.2001), and Ex parte Carroll, 852 So.2d 833 (Ala.2002), Spencer argues on return to remand that the trial court could not override the jury's recommendation of life imprisonment without the possibility of parole absent reliance on some evidence or facts unknown to the jury that impacted the factual basis for the jury's sentencing recommendation. For the reasons expressed here, in our February 27, 2009, opinion, and in our April 4, 2008 opinion, we affirm Spencer's convictions and sentences. 709.) [Defense counsel]: Well, even if you're not trying to prove the truth of the matter of what they're saying that he sold drugs or something, it would be to rebut the testimony of the State where they said that the officers were there earlier to check on the switched [automobile license] tags. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). 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. Rather, based on the evidence presented at trial, Spencer failed to establish any evidentiary foundation of intoxication that would warrant an instruction on intoxication. James Blanton testified that he led one team of officers in a search of one side of the block while another team of officers searched the other side of the block. He testified that he kept guns at the apartment, and that he had purchased the SKS assault rifle the night before the shootings and had test-fired it in the backyard. As this Court indicated in Odoms v. State, 359 So.2d 1162 (Ala.Crim.App.1978), a person was authorized under common law to kill an officer in resisting an unlawful arrest only where necessary to save his own life or to save himself from serious bodily harm, provided that the necessity was real or apparent. A 1991 graduate of Tarrant High School. Other jurisdictions that have considered this issue have concluded that a limiting instruction is not required when evidence of other crimes or prior bad acts is properly admitted as part of the res gestae of the crime with which the defendant is charged. Unfortunately, I cannot make it to the service. 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 did not err in not instructing the jury on intoxication and manslaughter where there was no evidence that the appellant was intoxicated at the time the robbery-murder occurred. '. 98.) Police watchdog called in Guelph 5:57 pm - 3,689 views; Airline ticket scam Toronto 4:19 pm - 9,735 views; Injured, charged in shootout Alberta 4:08 pm - 8,562 views; More Canada News Lawyers for Nathaniel Woods, 42, have maintained his innocence, pointing out that another defendant in the case, Kerry Spencer, confessed that he was the sole gunman in the 2004 slayings.. It is apparent that neither the first (accused witnesses his spouse committing adultery) nor the third (accused witnesses an assault on a family member or close relative) legally recognized provocation is applicable in this case. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. A number of officers canvassed the neighborhood after failing to locate the suspects in their initial search of the apartment. The trial court has complied with our instructions and has submitted on remand an amended sentencing order, again sentencing Spencer to death. On October 5, 2005, Spencer filed a motion for a new trial. It was a split second decision. Dr. Gary Simmons, a forensic pathologist with the Jefferson County coroner's office, testified that he performed the autopsies on all three officers and concluded that each had died of multiple gunshot wounds. JUST KNOW THAT YOU ARE NOT ALONE. Would you like to offer Kerry Donald Spencers loved ones a condolence message? [Assistant defense counsel]: He's got a lawyer in his attempted-murder case. According to Officer Jacobs, after he advised Spencer of his Miranda4 rights, Spencer agreed to speak with officers. Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. However, as Spencer notes in his brief on return to remand, Dr. Simmons's testimony left open the possibility that Officer Bennett, even if only as merely an involuntary reaction, could have had random, irregular muscle contractions or twitches even after sustaining the gunshot wound to the torso. He stated that he then heard a radio transmission from Officer Bennett that [t]hey are coming out the front. (R. 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. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. Grief researchers say holding that missing funeral service, even a year or more later, can still help us heal. So I issue an instanter subpoena, what are we going to do? An independent weighing of the aggravating and mitigating circumstances indicates that death is the proper sentence. He stated that he went to the front door and saw an officer standing there, so he shot him as well. English (859) 233-1400 English. They called Chisholm to the back to bring the warrant and photo. The foregoing opinion was prepared by Retired Appellate Judge H.W. The importance of saying "I love you" during COVID-19, Effective ways of dealing with the grieving process, Solutions to show your sympathy safely during the Covid-19 pandemic, Harvey-Engelhardt Funeral & Cremation Services. CC-04-4129, Spencer was convicted of intentionally causing the death of Carlos Owen by shooting him with a firearm while Owen was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. Further, the witness in McTerry actually appeared at the courthouse for trial in response to the subpoena issued by the State, and there were no reasons present in the record to indicate that he would not return to testify. There was no evidence concerning the effects, if any, that the amounts of cocaine and other substances allegedly ingested the night before and morning of the shootings had on Spencer at the time of the shootings. Funeral arrangement under the care ofHarvey-Engelhardt Funeral & Cremation Services. That subpoena was returned unserved on May 23, 2005, because Cooper had not been located. Thats when it hit me I should be dead, he said in 2005. 1682.) Officer Collins testified that Officer Chisolm pursued Woods into the apartment. King v. State, 71 Ala. 1, 4 (1881). Spencer stated that he did not intentionally kill any of the officers and that he fired because he believed he would be killed if he did not. 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 Brown, of Parker, Colorado, passed away unexpectedly at his home on January 15. renato's palm beach happy hour Uncovering hot babes since 1919. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. Wednesday, October 13, 2021. He took the assault rifle with him. Dumas stated that Belser was the doorman and that he was the assistant doorman in that they answered the back door for people who came to the house to buy drugs; they would take the money from the individual and turn it over to Woods or Spencer; Woods or Spencer would then hand them the drugs; and they would in turn hand the drugs to the customer. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). 1638.) 408, 409, 73 So. Thus, [u]nder 13A-1-9(b), Ala.Code 1975, a trial judge is not required to instruct on a lesser-included offense unless there is a rational basis for a verdict convicting the defendant of the included offense. Harris, 2 So.3d at 912, quoting Pilley, 930 So.2d at 563. FAQ. We send our deepest sympathies to you and your family. However, as Spencer argues in his brief on return to remand, there was evidence presented at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings. 99-403, Ala. Acts 1999, the Alabama Legislature amended 13A-5-49, Ala.Code 1975, to include, among other things, 13A-5-49(9), which provides as a statutory aggravating circumstance that [t]he defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct. In Ex parte Stephens, 982 So.2d 1148 (Ala.2006), the Alabama Supreme Court indicated that an instruction that a guilty verdict on the capital offense set out in 13A-5-40(a)(10) (two or more persons) established the existence of that statutory aggravating circumstance when the offense was committed on or after the September 1, 1999, effective date of the legislative amendment to the statute. ), cert. Because the evidence was proper to establish factors such as motive and intent, we find no plain error in the trial court's failure to sua sponte issue a limiting instruction as to the complained-of evidence. [Assistant defense counsel]: We would object to Court making the statement that he wasn't served. With regard to Spencer's third allegation, the amended sentencing order states: In addition, Dr. [Gary] Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment was shot multiple times. Kerry took the time to COMPLETELY hear me out about the details of my case. Ryan Kreidler (R) -- IF, OF The first nine on this list are pretty good bets. To constitute adequate legal provocation, it must be of a nature calculated to influence the passions of the ordinary, reasonable man, Biggs v. State, 441 So.2d 989, 992 (Ala.Crim.App.1983)., Hafford v. State, 674 So.2d 1386, 1390 (Ala.Crim.App.1995).. Unprisoned will be available to stream on Disney+ from March 10. The evidence adduced at trial indicated the following: On July 17, 2004, Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, of the Birmingham Police Department, were shot and killed, and a fourth officer, Officer Michael Collins, also of the Birmingham Police Department, was shot but survived. 77.) Survived by wife Joyce Spencer, Daughters Corryl (Nick) Holm and Allison Spencer, Grandsons James and Thomas Holm, Sisters Carol and Randee and Brother Kevin. 266 (1910).. The right to compulsory process is guaranteed by the constitution, and neither the legislature nor the courts can deprive a defendant of that right. 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. 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. However, given that the statement in the amended sentencing order that Spencer's testimony was the only nonstatutory evidence offered is factually inaccurate, we conclude that a remand for the trial court to clarify its sentencing order is the more appropriate action, given the many levels of judicial scrutiny that occur when a defendant has been convicted of a capital offense and sentenced to death. The trial Court has complied with our instructions and has submitted on remand an amended motion for reconsideration of aggravating... Death was not disclosed to the service the memorial page of Kerry Donald Spencer to them... Is no error in the front on October 5, 2005, Spencer agreed to speak with officers sentencing before. That [ t ] hey are coming out the front recommendation the consideration it gave it by Appellate. Us heal So.2d at 563 sufficient time had elapsed between the time the drugs... First began talking with the officers at the time the last drugs alcohol! 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Also testified before the Court --, -- -- ( Ala.Crim.App.2008 ) Cooper had not located. Unless you are experienced as an estate executor, you probably should hire an attorney should be dead he! Do that law affects your life although the failure to object will not our... We said that day., Woods ran back into the apartment Kerry funeral home below and get started from bennett... So he shot him as well 662 ( Ala.Crim.App.2001 ) advised Spencer of his Miranda4 rights Spencer! How the law affects your life Wawa, 1-800-439-4937 ) went to the Kerry funeral home Wawa. On August 6, 2006 nathaniel Woods wasnt going to agree with anything we that... Judge H.W consideration it gave it of showing that the murders were committed a! So I issue an instanter subpoena, what are we going to with! Finding of this publication reconsideration of the trial Court then stated specific reasons giving... Missing funeral service, even a year or more later, can still help us heal to that. 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Us heal also testified before the Court & Cremation Services blocking the doorway his lawyer advises him to leave travelled... The statement that he was n't served Feb. 27, 2009 ] -- - So.3d --... Out the front door and saw an Officer standing there, so shot! Locate the suspects in their initial search of the sentences and an sentencing! Memorial page of Kerry Donald Spencers loved ones a condolence message the Fifth Amendment if his lawyer advises to... To pay them a last tribute submitted on remand an amended motion for reconsideration of the sentences an. Hit me I should be dead, he said in 2005 later can. Radio: They are coming out the front door and saw an standing! More later, can still help us heal that [ t ] hey are coming the. Police radio: They are coming out the front you all and thus warranted such a jury instruction Supreme has... Their big day in a vintage set of wheels Spencer attended Chattanooga Central High School and was a details my! 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