Obituary Terry Allen Spencer, 38, of Lexington, died November 4, 2021. 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. 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. '. In case no. According to Officer Collins, Officer Chisolm came to the back of the apartment and, while he was showing Woods the printout and photograph, told him that the arrest warrant from Fairfield was for assault, at which time Woods again cursed the officers and then turned and ran back inside the apartment. He took a Seroquel, which is a short-acting anti-psychotic drug, with a beer to help him sleep. 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. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. However, Spencer does not raise those same grounds on appeal. [Defense counsel]: I do object, for the record. (R. Clearly these instructions, tracking the language of 13A-3-27(a)(1) and 13A-3-28, Ala.Code 1975, were accurate reflections of the law. 706.) Spencer further argues that the trial court's amended sentencing order improperly states (a) that the only evidence offered as nonstatutory mitigation evidence was Spencer's testimony at the sentencing hearing, (b) that there was no evidence presented that Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired during the commission of this offense, and (c) that the undisputed evidence indicated that it would have been impossible for Officer Bennett to have moved after being paralyzed by the first gunshot he sustained. THE COURT: First of all, the officers are there on a lawful arrest warrant. Posted by Eddie | July 28, 2021. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. On September 9, 2005, the trial court held the final sentencing hearing. BRASILIA, Brazil (AP) The U.S. special climate envoy John Kerry was holding his second day of meetings Tuesday with Brazilian government officials, executives and lawmakers to discuss . A native of Union County, SC, he was the son of the late Milton Wallace. [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. 913.) 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. May God bless you and your family in this time of sorrow. 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. May god give you strenghth. Officer Collins testified that Officer Chisolm pursued Woods into the apartment. Collins went to the hospital to be checked out. The trial court, on return to second remand, has submitted an amended sentencing order and has again sentenced Spencer to death. 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. 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. Bush v. State, 168 Ala. 77, 53 So. He then went on to relate his version of the events that led to the shooting of these officers. Harrison v. State, 580 So.2d 73, 74 (Ala.Crim.App.1991). 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. Spencer bases his argument, however, in large part on the Alabama Supreme Court's holding in Ex parte Minor, 780 So.2d 796 (Ala.2000), which he characterizes as a case in which that Court came close to establishing a per se claim of reversible error when a trial court did not give, sua sponte, a limiting instruction concerning the proper use of bad acts evidence introduced in a capital murder trial. (Spencer's brief at p. Menu. Officers discovered an SKS assault rifle outside the front door of the apartment, and a number of weapons in plain view in assorted rooms of the apartment. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App. Put all of this on the record? Spencer testified that after the initial incident with the police on the morning of the shootings, Nate and he went to get some food. The victim testified that the gunman, whom he identified as McTerry, was on foot at the time of the shootings; however, in the preliminary hearing, Williams had testified that the gunman was on a bicycle. 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. All rights reserved. Kerry is survived by his mother: Bernice Rose & husband Raymond; step-father: Frankie Spencer; father:. See, e.g., Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001) (opinion on return to remand) (if the aggravating circumstance that elevated the punishment to death was also an element of the capital offense, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. Collins and Owen went to the back door; Chisholm and Bennett covered the front. You and your family will be in my thoughts and prayers. Over 100 people are waiting on a trolley today at University Hospital Limerick for the second time this week. In case no. 1658.) SELLERS, KERRY DEWAYNE "SRELLES", age 30, passed away July 22, 2003. 884 (1940); Moore v. State, 54 Ala.App. 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).. Dr. Simmons further testified that Officer Owen did not exhibit signs of stippling. Remembering all the football games we played together at Sellers with all the other guys was such a joy. 24; Cosby v. State, 269 Ala. 501, 114 So.2d 250. Payne v. State, 48 Ala.App. Officer Owen followed Officer Chisolm into the apartment, with Officer Collins following Officer Owen. They are dying. 1689.) But at least the one attempt and as crucial as this witness is, it's important. Funeral: 2 Mar 2020, Narberth. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. They found an SKS assault rifle outside the front door of the apartment, and a number of guns inside in plain view. Gunfire erupted. denied, 481 U.S. 1033, 107 S.Ct. 1725-33.) To plant trees in memory, please visit the. According to Officer Collins, none of the officers had their weapons drawn when they entered the apartment, and he did not see any of the officers draw their weapons while he was inside the apartment. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. The trial court also placed great weight on the aggravating circumstance contained in 13A-5-49(7), Ala.Code 1975, that the capital offense was committed to disrupt or hinder the lawful exercise of a government function. 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. 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. (R. Alabama . 728.) When Collins looked again, he was gone. English (859) 233-1400 English. 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.). The mandatory and comprehensive nature of the court's obligation to the accused was illustrated in Ervin v. State, 584 So.2d 947 (Ala.Cr.App.1991).. You are all in my prayers. 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. 1638.). Calhoun v. State, 932 So.2d 923, 975 (Ala.Crim.App.2005), cert. 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. According to Williams, Nate and she were sitting on the back porch, and they walked back inside when the officers arrived the second time. Spencer stated that Curly put his badge back on his uniform and that Curly and Officer Collins drove away in their vehicles. Funeral services will be held 11:00am, Friday, August 11, 2006, at Zion Baptist Church in Rowlett with Pastor Larry Robertson officiating. Audra Tieara,Allegra & Joseph Antwine/Johnson. A self-defense instruction should be given when any evidence is given showing the defendant's subjective belief that the use of force was necessary. Perkins, at 1115-16, quoting People v. Lockett, 82 Ill.2d 546, 45 Ill.Dec. Spencer Brown, of Parker, Colorado, passed away unexpectedly at his home on January 15. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. 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. 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. 238, 240, 39 So.2d 419, 421, cert. This undisputed physical evidence contradicts the testimony of [Spencer] who testified he fire[d] the rifle merely as a reaction to Officer Bennett touching his leg. German government ministries run by the Green Party emit by far the most CO2 when it comes to government flights. 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. Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984); Tarver v. State, 137 Ala. 29, 34 So. A unique and lasting tribute for a loved one. Devin Thompson. 41-42.) There are no events at this time. Calvin Stallworth. 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. In Ervin, the circuit clerk failed to serve 23 defense subpoenas, an oversight that was discovered by defense counsel near the close of the State's case. Spencer stated that shortly after 10:00 a.m. that morning, he took a Seroquel tablet and drank a beer to help him sleep. Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. He was preceded in death by his brother: Raymount Spencer. According to Slaughter, Nate told Officer Owens to get a warrant, and Officer Owens responded that the narcotics task force would be back. THE COURT: Well, let me ask you a question. Additional testimony indicated that the 9mm Beretta handgun found behind the heater in the residence where Spencer was arrested was Officer Owen's service weapon. In his second amended sentencing order, the trial court stated: This is the most brutal and violent attack on law enforcement officers this Court has seen in its combined thirty years as a prosecutor, defense lawyer, and as a judge. The trial court's findings concerning the aggravating and mitigating circumstances is supported by the record. You know, that occasionally happens. Echovita offers a solidarity program that gives back the funds generated to families. Domingus v. State, 94 Ala. 9, 13, 11 So. Here, Spencer presented evidence indicating that he had ingested narcotics and alcohol the night before the shootings and the morning of the shootings. Thus, evidence that the defendant ingested alcohol or drugs, standing alone, does not warrant a charge on intoxication. What kind of arrangement is appropriate, where should you send it, and when should you send an alternative? 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). Share FacebookTwitterLinkedinEmail address Listen Follow Report this obituary Kerry Spencer (@Swilua) December 5, 2017 The photo has captured so much attention, she shares it on Facebook every year. [Spencer] testified about his education, having completed the tenth grade. 77.) Legacy invites you to offer condolences and share memories of Terry. Just dont spray me with that mace.. SPENCER, Warren Reginald "Reg" - Passed peacefully on Wednesday October 14, 2020 at the age of 80 years. 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. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. 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. Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. . 698 So.2d at 205. 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. Every memory left on the online obituary will be automatically included in this book. denied, 522 U.S. 969, 118 S.Ct. View Tribute Book Share Your Memory of . 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. Harris v. State, 2 So.3d at 911. She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. It was-he pulled his gun up and I already had the weapon in my hand, so I opened fire. (R. Spencer stated that sometime after they got back to the apartment, Curly returned alone and got into an argument with Nate at the back door, accusing them of stealing cars. [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). 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. The email address cannot be subscribed. Sgt. I knew then. The trial court had found in its amended sentencing order on return to the first remand that, because the first shot had paralyzed Officer Bennett, he would have been unable to touch Spencer's leg and provoke the second shot. 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. 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 was 81 years old. Several of the officers who responded to the double-aught call testified at trial. 900, 903, 413 N.E.2d 378, 381 (1980).. It was Doctor Simmons' opinion that the first shot to Officer Bennett struck his torso severing his spine which would have made it impossible for him to move and, as he lay dying, [Spencer] shot Officer Bennett point blank in the face, the bullet passing through his brain. An independent weighing of the aggravating and mitigating circumstances indicates that death is the proper sentence. The foregoing opinion was prepared by Retired Appellate Judge H.W. 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). 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. However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. Log in to a funeral home below and get started. document.getElementById("ak_js_1").setAttribute("value",(new Date()).getTime()); Copyright 2023 My Crime Library | Powered by Astra WordPress Theme. Spencer testified that he waited until Officer Collins reached his car and then fired a couple of rounds into his windshield before turning and fleeing through the front door of the apartment. 913.) 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. Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. Later he found a metal fragment in his pocket. Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. In Brownfield v. State, [Ms. CR-04-0743, April 27, 2007] --- So.3d ---- (Ala.Crim.App.2007), this Court noted that both this Court and the Alabama Supreme Court have repeatedly held that the United States Supreme Court in Ring did not invalidate Alabama's death-penalty statute. Family and friends must say goodbye to their beloved Geraldine Smith (Harbour Breton, Newfoundland), who passed away on February 25, 2023. 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. Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. The sentencing order is unclear as to whether the court found any nonstatutory mitigating circumstances to exist. May your memories bring you comfort. Blanton identified Spencer in court as the suspect taken into custody. He stated that he could have easily killed Officer Collins but did not perceive that officer to be a threat, so he instead allowed him to take cover behind his vehicle and then fired the shots in his direction to facilitate his escape. According to Spencer, he looked out the window and saw Curly. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. Here is Kerry Donald Spencer's obituary. THE COURT: It doesn't matter what they are there for earlier. These cookies will be stored in your browser only with your consent. Obituaries. 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. King v. State, 71 Ala. 1, 4 (1881). 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. According to Spencer, he dropped the SKS assault rifle at that time and fled. Family and friends are invited to a funeral service on Tuesday,. Interment will follow in Rest Haven Memorial Park. My families thoughts and prayers go out to you all during your time of loss. 2348, 147 L.Ed.2d 435 (2000), was not violated because the jury's verdict in the guilt phase found that fact to exist beyond a reasonable doubt). 190, 192 (1891). Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and thoughts are with you during this time of bereavement. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. family hang in there until you meet again. There is no photo or video of Kerry Spencer Shoemaker.Be the first to share a memory to pay tribute. He was paying them a thousand dollars a week. The law requires that the circumstances should be such as to create a reasonable belief of impending necessity. Thus, although it is apparent that the trial court considered the evidence Spencer offered as nonstatutory mitigating circumstances, it is not clear from the record whether the trial court found any of the evidence to actually constitute nonstatutory mitigation. It is always difficult saying goodbye to someone we love and cherish. 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. [Defense counsel]: He's also kin to Nathaniel Woods. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. My thoughts and prayers are with you in your time of grief. Our trusted partners offer additional helpful tools: At Legacy.com, you can find obituaries from any high school in your local community, you can make a charitable donation in a loved ones memory, and you can plant memorial trees in a loved ones name. 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 He was a native and resident of New Orleans, LA. 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. A 1991 graduate of Tarrant High School. Spencer testified that he sold drugs from the apartment where the shootings occurred. 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. Officer Collins testified that they radioed Officer Chisolm and asked that he come to the back of the apartment to show Woods the printout of the NCIC information and the photograph of Woods from the files. 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. [Assistant defense counsel]: He's got a lawyer in his attempted-murder case. A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. Thats when it hit me I should be dead, he said in 2005. Thus, contrary to Spencer's assertion in his brief, the trial court did not fail in its obligation to make an attempt to protect Spencer's right to put on his defense. (Spencer's brief at p. Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. 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