He was treated and released. 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. Wednesday, October 13, 2021. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. Nathaniel Wood was executed in 2020. The record clearly shows that more than sufficient time had elapsed between the time the last drugs or alcohol was ingested and the shooting.. Audra Tieara,Allegra & Joseph Antwine/Johnson. (Emphasis added.) The defendant then went to sleep and slept until the officers arrived around 1:00 p.m. that afternoon. Rather, the trial court adequately protected Spencer's rights, including granting Spencer an overnight continuance to the following morning, and then conducting a thorough discussion on the record as to the status of the defense's efforts to locate the witness, the expected testimony of the witness, and the likelihood of the witness taking the stand if located. Neil went home to be with his Lord and Saviour. 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. Climate activists, like the German Greens, you'd think, would thus themselves be practicing what they preach, at least limiting their emissions to some extent in order to set an example for the rest of us. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights. 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger). In Williams v. State, 938 So.2d 440 (Ala.Crim.App.2005), this Court addressed a similar issue as follows: An accused has the right to have the jury charged on any material hypothesis which the evidence in his favor tends to establish. Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). In accordance with Rule 45A, Ala.R.App.P., we have searched the record, with respect to Spencer's capital-murder convictions, for any error that may have adversely affected Spencer's substantial rights and have found no plain error or defect in the guilt-phase proceedings of the trial. In setting out the standard for plain error review of jury instructions, the court in United States v. Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir.1993), cited Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. THE COURT: So even if you got him served and got him here, I would still have to have his lawyer here because the first thing I'm going to have to advise him of is his constitutional rights because apparently he's the same Bubba that's been referred to in these proceedings we've been trying this week as the supplier for the drugs that Mr. Spencer and Mr. Woods were dealing out of that apartment. 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. 913.) Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). She was described as a real doll. The trial court's consideration of the jury's verdict as a mitigating circumstance and his decision to accord it moderate weight for the reasons stated was proper, as determined by this Court in the opinion issued on return to our original remand order. In his amended sentencing order on return to our first remand, the trial court found that this mitigating circumstance was not present; it determined that Spencer presented no evidence to support this mitigating circumstance. Kerry Spencer Castle, 59, of Travelers Rest, passed away on Tuesday, June 09, 2020, riding his favorite Ducati. We send our deepest sympathies to you and your family. In Ervin, the missing witnesses were not subpoenaed because the circuit clerk's office failed to perform its affirmative duty; there is no such failure by the circuit clerk's office here. 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. 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. 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. The penalty phase of the trial was conducted before the jury. According to Williams, Spencer had a big gun that he had been carrying that day and the gun was near him while he slept. Ways to honor Kerry Spencer's life and legacy. As noted above, ironically in one of the very cases relied upon by Spencer on appeal, 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. It is well settled that [t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial. Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). The trial court indicated that there was no information indicating that Cooper had ever been served with a subpoena. Westmoreland Funeral Home & Crematory 828-652-3161 198 South Main Street Marion, NC 28752 Email: admin@westmorelandfh.com. Our staff does not correct grammar or spelling. Woods and Kerry Spencer were convicted of capital murder and sentenced to death in the slayings of the three Birmingham officers that rocked Alabama's largest city that year. 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. 59 (1909). Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. But at least the one attempt and as crucial as this witness is, it's important. King v. State, 71 Ala. 1, 4 (1881). Kerry took the time to COMPLETELY hear me out about the details of my case. According to Spencer, he looked out the window and saw Curly. 912.) 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). 2325, 141 L.Ed.2d 699 (1998). ', Broadnax v. State, 825 So.2d 134, 196 (Ala.Crim.App.2000), quoting Pilley v. State, 789 So.2d 870, 882-83 (Ala.Crim.App.1998). Spencer further stated that he did not stop shooting until the officers were down. May your memories bring you comfort. In most cases, the issue of self-defense is one of ultimate facts solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. Tributes.com connects you with memorial, funeral, and obituary resources you can use online and in your local community. He was 81 years old. On the morning of the shooting, he went to take a nap. 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. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. He further testified that although fragments recovered during the autopsy of Officer Owen exhibited characteristics similar to those fired from the SKS assault rifle, he could not conclusively state that those fragments were from the SKS assault rifle. Haney v. State, 603 So.2d 368, 389 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992). Spencer stated that they were going to wait until the police shift changed at 3:00 p.m., and then slip out of the apartment at that time to avoid encountering the officers that day. 1689.) In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. Kerry Spencer's convictions for four counts of capital murder for the death of Birmingham Police Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett,1 and for the attempted murder of Michael Collins were affirmed by this court on April 4, 2008. Dumas testified that he was awakened that morning by a bang on the front door. Dumas stated that he did not think Spencer was serious; Dumas further admitted that he had ingested narcotics the night before the shootings. 1088-89.). Officer Jody Jacobs of the Birmingham Police Department testified that he interviewed Spencer at the police station after Spencer was taken into custody. (R. Additionally, Rule 17.5, Ala.R.Crim.P., provides that [a]ny witness who, after being subpoenaed, fails to appear at the time and the place as required by the subpoena, or who fails to remain until released, may be attached by order of the court. In Weaver v. State, 401 So.2d 344 (Ala.Crim.App.1981), this Court stated: Before it can be said that the accused has been denied this constitutional right, he must apply to the court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is within the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by the compulsory process, that such witness is absent without the procurement or consent of the accused, and that the testimony of the witness is material . He was such a warm and welcoming man. 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. Receive obituaries from the city or cities of your choice. 1638.). The right to compulsory process is guaranteed by the constitution, and neither the legislature nor the courts can deprive a defendant of that right. Echovita offers a solidarity program that gives back the funds generated to families. I knew then. I was so hurt to learn of Kerry's passing. Jimmy O'Neal Spencer. 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. Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). Dearly loved husband of Marjorie, loved father, father-in-law and great Our thoughts and prayers are with you in your time of sorrow. Dr. Simmons testified that Officer Bennett exhibited signs of soot and stippling to his skin, which indicated that one of the bullets was fired at close range to his face. Spencer also filed a motion for reconsideration of the sentences and an amended motion for reconsideration of the sentences. The undisputed evidence further indicated that Spencer had been asleep at the time the officers arrived; that he awakened, hearing commotion in the other end of the apartment; that he looked outside and saw police vehicles; that he rushed toward the commotion; that when he encountered the officers he fatally shot Officers Owen and Chisolm in the kitchen area of the apartment; that he turned and fatally shot Officer Bennett, who was near the front door of the apartment; and that he shot Officer Collins outside the back door of the apartment and fired additional shots at Officer Collins as Collins took cover behind his police car. Rather, the trial court stated in its amended sentencing order that it had considered all of the matters presented to the court, including, the testimony heard at trial and at the sentencing hearing before this Court, both in mitigation and aggravation, considering the non-statutory evidence of mitigation of the defendant's background and the recommendation of the jury in its recommendation of life without parole, and after taking into consideration all of the other matters that were proffered before this Court as here and above stated in this order. In Ex parte Johnson, however, the Alabama Supreme Court, in distinguishing the facts in Johnson from the facts in Snyder and Minor, stated: It is contradictory and inconsistent to allow, on the one hand, evidence of Johnson's prior bigamy conviction and prior bad acts as substantive evidence of the offense with which she was charged, yet, on the other hand, to require a limiting instruction instructing the jury that it cannot consider the evidence as substantive evidence that Johnson committed the charged offense. I give up. 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). Prepare a personalized obituary for someone you loved.. May 14, 1940 - 285, 126 L.Ed.2d 235 (1993).. God is with you during this your time of sorrow. James sorry to hear of the lost of your son . She stated that she next saw the officers take Nate down inside the kitchen and that she got up and went into the bathroom. We've tried to track his lawyer down this morning and see if they might be able to help us. [Defense counsel]: One, to make a determination if the last May 25 subpoena has been served at Pearson Hall. 1647.) The foregoing opinion was prepared by Retired Appellate Judge H.W. MAY GOD CONTINUE TO BLESS YOU AND YOURS DURING THIS TIME OF GRIEF. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. 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. An accused is entitled to have the jury consider the issue of his intoxication where the evidence of intoxication is conflicting, Owen v. State, 611 So.2d 1126, 1128 (Ala.Crim.App.1992); Crosslin v. State, 446 So.2d 675, 682 (Ala.Crim.App.1983), where the defendant denies the commission of the crime, Coon v. State, 494 So.2d at 187; see Moran v. State, 34 Ala.App. Information and advice to help you cope with the death of someone important to you. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. 900, 903, 413 N.E.2d 378, 381 (1980).. However, Spencer's reliance on this Court's opinion in Johnson is misplaced. It's my understanding he has-some Hill. The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. Similarly, the witness in McTerry was an eyewitness to the shooting. Further, the first two officers Spencer encountered during the final and fatal engagement were shot repeatedly in the back while attempting to exercise a lawful arrest on Woods. A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. He said he had bought the SKS the day before, and had even test-fired it the previous night. denied, 522 U.S. 969, 118 S.Ct. My heart goes out to you at this time and in the days ahead. 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. View Terry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. 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. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. Dumas identified the SKS assault rifle as the weapon Spencer had purchased on the night before the shootings. 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. (R. 928 So.2d at 326-27. White Plains, New York, United States Over the course of two summers, supporting office activities at a music summer camp. Turner v. State, 160 Ala. 40, 43, 49 So. Dumas testified that after the officers left he heard Spencer say that if the officers returned he was going to bust em, which he interpreted to mean that Spencer was going to shoot the officers. Terry was known as a hustler. 1959 - 2023. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] --- So.3d ----, ---- (Ala.Crim.App.2008). [T]here must be evidence that the ingestion caused a disturbance of the person's mental or physical capacities and that that mental or physical disturbance existed at the time the offense was committed. Lee v. State, 898 So.2d 790, 838 (Ala.Crim.App.2001) (opinion on return to remand), cert. As in Woods and the cases cited therein, the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, and the principles espoused in Ex parte Taylor, Ex parte Tomlin, and Ex parte Carroll, and the cases cited therein, were not met as the trial court's sentencing order did not state that the jury's recommendation was treated as a mitigating circumstance and did not contain specific findings as to the weight assigned to the jury's recommendation of life imprisonment without parole or the reasons for the judicial override of that recommendation. 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. 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. 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 However, this evidence alone does not constitute evidence indicating that Spencer was intoxicated at the time of the shootings. He stated that he was stunned, and that he radioed a shots fired call over the police radio, and ran to the back of his police car. www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. 1689.) The question as to whether or not the circumstances in which the parties were at the time the fatal blow was stricken were such as to impress a reasonable man that the defendant was in imminent danger of losing his life or suffering great bodily harm, and whether or not the defendant entertained such belief were inferential facts to be drawn by the jury. Kennedy v. State, 240 Ala. 89, 91, 196 So. 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. I cant say it as fast as I thought it, but I was like Hey dummy, youre standing in the open and somebodys shooting at you, he said. Save my name, email, and website in this browser for the next time I comment. Spencer, citing Ring v. Arizona, 536 U.S. 584, 122 S.Ct. [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. 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. Spencer was found hiding in the attic of a nearby home, still armed. 1659.) Bennett joined them. Section 13A-6-3, Ala.Code 1975, states, in pertinent part: (a) A person commits the crime of manslaughter if: (2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.. He was preceded in death by his parents, Odell and Maxine Williams, two half sisters LaDell Williams and Lenora Tipton. 1675-76.) 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. (65 years old). 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. Were refreshing the Tributes.com website for a better experience! God Bless. Receive obituaries from the city or cities of your choice. [Assistant defense counsel]: Well, what I'm saying is through no fault of our own we are here on Sunday morning and the clerk's office is obviously closed and we do not have access to the clerk's office record to determine whether or not he was served. What are you asking the Court to do? 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. THE COURT: Well, let's talk about that. Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him. 884 (1940); Moore v. State, 54 Ala.App. See also Ex parte Waldrop, 859 So.2d 1181 (Ala.2002), with regard to Spencer's contention regarding the weighing of aggravating and mitigating circumstances. Bern, please know that I am with you all. 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. Dumas stated that more officers were at the back door. See also Ex parte Tomlin, 909 So.2d 283 (Ala.2003). Stating in his amended sentencing order on return to second remand that [i]f we are to have law and order in a civilized society, then officers like these, who were gunned down while trying to perform a government function or enforce the law must mean something. The trial court further noted that Spencer showed no remorse in his statement to the police following the murders or in his testimony; rather, the trial court felt that Spencer seemed to indicate that he was justified in killing these officers. ( Ala.Crim.App.2003 ) 59, of Travelers Rest, passed away on Tuesday, June 09, 2020, his. A solidarity program that gives back the funds generated to families nonstatutory mitigating circumstance and gave moderate... And ( 2 ) the reasonable-person standard Spencer & # x27 ; s,! This time and in your local community parte Tomlin, 909 So.2d 283 ( Ala.2003 ) service details and... 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