kerry, you will be missed and it's such a shame that we come in contact with people when they die but i am glad that i grew up to know you and your family. 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. It is always difficult saying goodbye to someone we love and cherish. Published by Dallas Morning News on Aug. 10, 2006. The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. ), aff'd 500 So.2d 1064 (Ala.1986), cert. I can understand why you wouldn't. Officer Hugh Butler was the first to go to Collins. In CC-04-4383 the count was seven (7) for life without parole and five (5) for death. 2. The sentence of death in this case is neither excessive nor disproportionate to the penalties imposed in similar cases, considering both the crime and Spencer. You know, I had a little bit of [cocaine] powder left over from the night before. When discussing the application of the plain-error standard of review, this Court has stated: The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. denied, 524 U.S. 929, 118 S.Ct. It was he pulled his gun up and I already had the weapon in my hand so I opened fire.. 1638.). Kerry Spencer had taught her kids to baby sign before they could speak so they could communicate while they were infants. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. As this Court explained in King v. State, 478 So.2d 318 (Ala.Crim.App.1985): The general rule is that every 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. Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). Devin Thompson. family hang in there until you meet again. Kerry Carpenter (L) -- OF 13. CC-04-4132. 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. 2023 at 1 p.m. at Peck Funeral Home Chapel with family friend, Spencer Clemons officiating and Peck Funeral Home directing. Thus, unlike the situation in McTerry, where the missing witness might have reasonably been located without causing any delay in trial, here, Cooper was to be Spencer's final witness, and the State indicated that it had no rebuttal witnesses based on the testimony previously presented; thus, any efforts in locating Cooper would have delayed the trial proceedings. On July 6, 1958 in Oklahoma City, Ok. a baby boy was born to Odell Williams and Maxine (Major) Williams. Spencer was born on July 23, 1991 to parents Eric and Diane Brown. He was born March 25, 1934, in Morgan County, to Richard Luther "Dink . This Court concluded that the circuit clerk had failed to perform its affirmative duty under 12-21-244, Ala.Code 1975, to see that the defense's requested subpoenas were issued before trial, and, thus, that the trial court had to take all steps necessary to ensure the defendant's constitutional guarantee of compulsory process. Id. 727.) So he was going to do it because of the family. 1088-89.). Scott v. State, 34 Ala.App. The officers checked the apartment to ensure that no one else was present and then established a perimeter around the apartment to begin searching the area for the suspects and to preserve the scene for evidence technicians. It is solely for the jury to determine whether any particular inference that may possibly be drawn from given facts is or is not a reasonable inference, and not for the court to substitute its judgment for theirs in passing upon the character of inferences afforded by the evidence. Domingus v. State, 94 Ala. 9, 13, 11 So. On October 9, 2005, the trial court issued an amended sentencing order. 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 stated that he and other officers entered the front door of the apartment and that he saw Officers Owen and Chisolm lying on the floor pretty obviously dead. (R. Dumas testified that he was awakened that morning by a bang on the front door. Show me the papers. (R. This Court continued, stating: We note that the court's duty to issue subpoenas on an accused's behalf does not require the court to grant a motion for a continuance or a motion for an attachment. A trial court's oral charge to the jury must be construed as a whole, and must be given a reasonable-not a strained-construction. Scuba Certification; Private Scuba Lessons; Scuba Refresher for Certified Divers; Try Scuba Diving; Enriched Air Diver (Nitrox) 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. 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. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. Officer Jody Jacobs of the Birmingham Police Department testified that he interviewed Spencer at the police station after Spencer was taken into custody. You are all in my prayers. 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. Gunfire erupted. To plant Memorial Trees in memory of Perry Calvin Spencer, please click here to visit our Sympathy Store . The state contends that the appellant's motion for a subpoena amounted to a motion for a continuance. They are dying. 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 next challenges the trial court's use of the State's requested jury instructions number eight and number nine. Mr. Sanders died Tuesday, February 21, 2023 at his residence. Required fields are marked *. 663, 665, 248 So.2d 158, 160 (1971). Obituary Terry Allen Spencer, 38, of Lexington, died November 4, 2021. 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. 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. Spencer further testified that Curly initially said he'd be back with the narcotics unit, but then said, Nah, I'll be back when I get off work. (R. 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. Aoife Buckley and Eoin McEnery travelled in style on their big day in a vintage set of wheels. Audra Tieara,Allegra & Joseph Antwine/Johnson. In light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to again remand for the trial court to clarify its sentencing order on this point. So they are there in the house legally. denied, 409 U.S. 1079, 93 S.Ct. 740, 743, cert. Finally, in McTerry, this Court noted that the defense did not seek a continuance nor would an attempt to subpoena the witness necessarily result in any delay in the trial proceedings because there were two additional defense witnesses and two rebuttal witnesses for the State yet to testify and based on the witness's aforementioned willingness to appear in court earlier that day; further, there were no indications that he could not be found quickly. For these reasons, we must again remand this case for the trial court to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole. My deepest sympathy to the family. 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.). 733.) 1682.) You know, he was going to take a hit. KERRY SPENCER OBITUARY Kerry D. Spencer, 65, passed away Oct. 7, 2021, in Fort Myers, Fla. In the absence of evidence tending to show both that the appellant was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat. Perry Lee Spencer, 71, of Pittsfield, PA, passed away at the Millcreek Community Hospital in Erie, PA on Tuesday, January 4, 2022, following a recent illness. In addressing a similar situation on the appeal of Nathaniel Woods, this Court recently noted: In Morrow v. State, 928 So.2d 315 (Ala.Crim.App.2004), this Court addressed a similar situation: In addition, in its order, the trial court stated the following regarding nonstatutory mitigating circumstances: The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. 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 the next paragraph of the sentencing order, however, the court stated, The Court considered the evidence presented by the defendant as evidence of non-statutory mitigating factors. (C. However, this evidence alone does not constitute evidence indicating that Spencer was intoxicated at the time of the shootings. May your many memories bring you comfort. We've tried to track his lawyer down this morning and see if they might be able to help us. There they found, and removed, shrapnel from his leg. He graduated from. Blanton testified that the suspect, who was discovered in the attic of the residence, was taken into custody. He was treated and released. Some basic help and starters when you have to write a tribute to someone you love. It wasnt like I had time to say, Oh, you fixing to shoot me. Draw freely from the well of peace and strength for the supply is unsurpassed even in times like these. . I, 6, Alabama Constitution of 1901, affords, in pertinent part, an accused the right to have compulsory process for obtaining witnesses in his favor. However, in Smith v. State, 698 So.2d 189 (Ala.Crim.App.1996), this Court stated: To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Officer Owen informed Officer Collins that the man at the doorway was Nathaniel Woods.3 Officer Collins testified that he then conducted an inquiry through the computer equipment in his police vehicle, checking the City of Birmingham files and the National Crime Information Center (NCIC) files, and he ascertained that a person named Nathaniel Woods, matching the general physical description of the man in the doorway and with an address in the area had an outstanding misdemeanor arrest warrant from the City of Fairfield Police Department. Jerry has three wonderful children Jesse Spencer, Kim Ortega and Anna Pate. It would soon become the deadliest day in the departments history.Collins, then 37 and not yet a sergeant, had worked in the West Precinct for 10 years after leaving the Army, having served stints in Berlin and Operation Desert Storm. 13A-5-52 and 13A-5-47(d), Ala.Code 1975. We have also reviewed the propriety of the sentence of death as required by 13A-5-53(a), Ala.Code 1975. Mifflintown, PA 17059. The trial court instructed the jury, in pertinent part, as follows: Number eight. June 17, 2004, started out as an unremarkable day for Birmingham Police Sgt. Spencer was the shooter but he had not acted alone, police alleged. The trial court overruled Ervin's motion for a mistrial on the grounds that one witness's current whereabouts were unknown and that Ervin's rights were not violated with regard to the second witness because Ervin had presented other evidence corroborating his claim that the shootings were in self-defense. Spencer stated that he believed the officer was about to kill him based on the officer's earlier statements and that he did not believe that he had any alternative other than to open fire. What are you asking the Court to do? BASCHAB, P.J., and SHAW, WISE, and WELCH, JJ., concur. 558 (1916). Put all of this on the record? These cookies do not store any personal information. 161, 13 So.2d 776, cert. In order to determine whether the evidence is sufficient to necessitate an instruction and to allow the jury to consider the defense, we must view the testimony most favorably to the defendant. Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991).''. Star Tribune reviews all guest book entries to ensure appropriate content. Family and friends must say goodbye to their beloved Geraldine Smith (Harbour Breton, Newfoundland), who passed away on February 25, 2023. Officers Owen and Collins approached the screen door where Woods was standing, and Officer Owen told Woods that they had an outstanding warrant for his arrest from the Fairfield Police Department, and that Woods began cursing them, saying, Fuck you. According to Dumas, when he began walking back to the apartment, he saw a large number of police officers, so he continued walking to a different location. Bucky McMillan, while serving on active-duty status as a judge of this court under the provisions of 12-18-10(e), Ala.Code 1975. Thus, although Spencer may not have formally requested a continuance, the actions he sought the trial court to undertake, of necessity, were the functional equivalent of a continuance. (R. 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. 285, 126 L.Ed.2d 235 (1993).. Officer Owen removed his badge and a female neighbor standing nearby called Officer Owen by his nickname, Curly, at which time Officer Owen put his badge back on, put his arm around the female and then the two officers walked back toward their automobiles. Terry Spencer's passing on Thursday, December 22, 2022 has been publicly announced by Midland Cremation Society in Joplin, MO. Dumas identified the SKS assault rifle as the weapon Spencer had purchased on the night before the shootings. McTerry, 680 So.2d at 955. Evidence that someone was drinking an alcoholic beverage is not evidence that that person was intoxicated. 1. The foregoing opinion was prepared by Retired Appellate Judge H.W. Your email address will not be published. My tears are with yours, and so are my prayers. 913.) Finally, as the trial court noted, there was some question as to whether the testimony, as proffered, would have even been admissible. Just look to God and he will see you through your time of sorrow. At the time the subpoena was requested, two defense witnesses and two rebuttal witnesses for the state had yet to testify.. 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. See, e.g., Johnson v. State, supra (evidence of prior bigamy conviction and prior bad acts including adultery and other sexually related activities was admissible as substantive evidence of the offense based on the facts of that case); and Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002) (no plain error where defendant was not cross-examined concerning any prior convictions; no evidence of prior convictions was admitted; and reference to outstanding warrants does not equate to evidence of a prior conviction.). We didnt know for sure 100 percent that it was him, so we had to get the picture, Collins said in a 2005 interview. Contact us. Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. When asked whether he had taken any narcotics on the morning of the shootings, Spencer stated: Yes, I did. Sgt. 1725-33.) The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. Additionally, the evidence indicates that, upon hearing the commotion in the kitchen and looking outside and seeing police vehicles, Spencer had time to attempt to retreat by attempting to hide or escape from a window; however, he armed himself and proceeded to advance toward the commotion and a certain encounter with officers. See also Lewis v. State, [Ms. CR-03-0480, April 28, 2006] --- So.3d ----, ----, (Ala.Crim.App.2006); Yeomans v. State, 898 So.2d 878, 904 905 (Ala.Crim.App.2004). Grief researchers say holding that missing funeral service, even a year or more later, can still help us heal. Spencer testified that he came out of the bedroom with the SKS assault rifle in his hands and encountered Nate coming toward him, holding his face as if he were in pain. Des Moines - Larry H. Spencer, 82, passed away on Saturday, May 21, 2022 which was Armed Forces Day. The Health and Information and Quality Authority (HIQA) began an unannounced two-day inspection at the hospital yesterday. Pilley v. State, 930 So.2d 550, 561-62 (Ala.Crim.App.2005). Brookhaven, MS 39601. The officers' deaths in a hail of gunfire rocked Alabama's . However, Spencer's reliance on this Court's opinion in Johnson is misplaced. 98.) Randall Washington testified that he was working on Courtney Spencer's automobile in front of the apartment at the time the officers arrived. Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. See Ex parte Carroll, 852 So.2d 833 (Ala.2002) ([A jury's recommendation of life imprisonment without parole] is to be treated as a mitigating circumstance.); and Ex parte Taylor, 808 So.2d 1215, 1219 (Ala.2001) ([T]he trial judge must state specific reasons for giving the jury's recommendation the consideration he gave it.). 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. Bern, please know that I am with you all. He said he had bought the SKS the day before, and had even test-fired it the previous night. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. THE COURT: Don't you think he might need a lawyer if they indict him and he gets up and testifies in regard to his criminal activity involved in that apartment out there and these two defendants? The evidence from trial showed that the defendant ran out the back door of the apartment as he fired at Officer Collins as he took cover behind his patrol car. As Spencer correctly argues, there was additional nonstatutory mitigating evidence offered by the defense; Spencer's mother and uncle testified at the sentencing hearing about Spencer's upbringing and demeanor. More times than not they don't, but sometimes they do., This Court finds that the defendant's story that he shot Officer Bennett out of a mere reaction to his touching his leg defies logic and common sense. Spencer testified that he hid in the attic and that he did not resist when the police discovered him. The family will receive friends Thursday evening at the funeral home from 6:00 to 8:00pm. 850.) I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. Our thoughts and prayers are with you in your time of grief. 17.) Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. So it's possible. Ervin, 584 So.2d at 949. 912.) Spencer, Bill 81 May 21, 1935 June 17, 2016 William Bill Earl Spencer, of Portland, passed away June 17, 2016. Thus, we must remand this case to the trial court for it to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. We can't even get in touch with his lawyer. 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. Therefore, Spencer's claim is without merit. Thus, evidence that the defendant ingested alcohol or drugs, standing alone, does not warrant a charge on intoxication. At one point, Woods challenged Owen to stop hiding behind his badge and fight. 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. [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. Spencer v. State, [Ms. CR-04-2570, Feb. 27, 2009] --- So.3d ---- (Ala.Crim.App.2008). Later he found a metal fragment in his pocket. 710.) Aoife, from Moyvane, Co Kerry, and Eoin, Abbeyfeale, Co . Spencer testified that in response to that statement, Nate told Curly that he had no reason to be at the apartment and for him to get the fuck on off the property. (R. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. That being said, we would expect if this man showed up to testify to some very important facts to this case, specifically as to why Carlos Owen and Harley Chisolm were going to the apartments on the numerous times on the date of the shootings. . THE COURT: Well, my point is he's got a lawyer I guess on these pending charges. Spencer first argues that the trial court erroneously allowed evidence of collateral crimes and prior bad acts, without sua sponte giving a limiting instruction to the jury regarding the proper use of the now complained-of evidence. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. denied, 548 U.S. 926, 126 S.Ct. And now that Kerry is gone, the only thing I can say is this: At least 2 of the most handsome men are united "together" in Heaven. 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. I called them (the other officers) on the radio but they didnt answer. Section 13A-5-53(b)(2), Ala.Code 1975, requires this court to weigh the aggravating and mitigating circumstances independently to determine the propriety of the Spencer's sentence of death. And so you have this random discharge. See also People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 966-67, 462 N.E.2d 143, 143-44 (App.1984) ([a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis). Here, Spencer presented evidence indicating that he had ingested narcotics and alcohol the night before the shootings and the morning of the shootings. The radio he was using kept giving him a busy signal as he frantically tried to call for help. Officer Collins testified that he was unable to proceed through the apartment to the front door because Woods and Officers Chisolm and Owen were blocking the doorway, so he turned to go out the back door to go around the apartments to the front to assist Officer Bennett. 742, 136 L.Ed.2d 680 (1997)). View . They are dying, and so you have this random discharge and so instead of having a coordinated movement like I have when I pick up this paper clip or whatever, you have just random contractions, a seizure if you [w]ould. It was-he pulled his gun up and I already had the weapon in my hand, so I opened fire. (R. 190 (1892), however unsatisfactory and inconclusive to the judicial mind the evidence of self-defense may appear. 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. Thereafter they upped the price from a thousand dollars a week to fifteen hundred dollars a week. www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . Finally, we cannot say that the trial court would have been in error to have determined that the additional evidence was mitigating but still to have concluded that the imposition of the death penalty was proper. If there is any evidence, however slight, tending to support that the defendant acted in self-defense, the issue should be submitted to the jury. 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. They are irritated. While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.. To plant trees in memory, please visit the. 1, 23 ( Ala.Crim.App the shootings and the mitigating circumstances and resentence Spencer accordingly two-day inspection at the the. ] powder left over from the well of peace and strength for the State contends that the,! Ensure appropriate content to testify and I already had the weapon in my hand so I opened fire you... ) on the front door saw Chisholm with a gun and automatically opened...., can still help us heal did not resist when the police station after Spencer was intoxicated call... 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