[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. If the lawyer is going to advise him to take the Fifth Amendment, I can't make him testify. Spencer objected during the charge conference when the trial court indicated that it intended to give the now complained-of instructions; his objection was that the officers were not there to effect an arrest of Spencer and that when they went to the apartment to arrest Woods the officers did not necessarily have the warrant in their immediate possession upon request. Although the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating, Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), in order for this Court to conduct its review of the death sentence, the trial court must specifically identify in its sentencing order those nonstatutory mitigating circumstances that it did find to exist.. Kerry Darnell Spencer of South Carolina was born on August 25, 1971. Prayers from Mobile, Alabama have been sent to you'll for strength, during these difficult times. 41-42.) Officer Collins testified that after receiving confirmation that the warrant was valid, he and Officers Owen, Bennett, and Chisolm returned to the apartment to serve the arrest warrant on Woods. 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. There they found, and removed, shrapnel from his leg. 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. 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. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). However, the court should charge on voluntary intoxication only when there is a sufficient evidentiary foundation in the record for a jury to entertain a reasonable doubt as to the element of intent. Does [Cooper] have pending criminal charges at this time? In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court., 735 So.2d at 1269 (emphasis added). 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. Your email address will not be published. 5. According to Dumas, he had stayed there for approximately 18 or 19 days, and that, although he saw officers patrolling the area, the morning of the shootings was the first time he saw officers actually come to the apartment. 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. He was a native and resident of New Orleans, LA. 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. Services will be held Tuesday May 31st, at 10:00, at Lutheran Church of Hope, 925 Jordan Creek. About Us; Staff; Camps; Scuba. Unprisoned will be available to stream on Disney+ from March 10. It is not an honest, but a reasonable belief, that justifies. 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. View Perry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. Authorize the publication of the original written obituary with the accompanying photo. Spencer had argued in his brief on return to remand that Dr. Gary Simmons testified at trial that, as he was dying, Officer Bennett may have experienced seizures or jerking, resulting in the possibility of Officer Bennett's having touched Spencer. Survived by wife Joyce Spencer, Daughters Corryl (Nick) Holm and Allison Spencer, Grandsons James and Thomas Holm, Sisters Carol and Randee and Brother Kevin. 698 So.2d at 205. We didnt know for sure 100 percent that it was him, so we had to get the picture, Collins said in a 2005 interview. (R. Copyright 2023, Thomson Reuters. 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. 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. According to Spencer, he was cautious as he left the front of the apartment because he did not know if any officers were waiting for him; that he had the SKS in his hand pointed down at the ground; that as he was standing next to where Officer Bennett was lying on the ground, the officer's hand jumped and touched [him] and he fired the SKS assault rifle in an automatic reflex. (R. 266 (1910).. 1088-89.). 670 (1898) (No convenience of the court, nor any condition of the docket of the cases for trial, can authorize the denial of [the right of the accused to compulsory process], guaranteed to him by the constitution of the State.). Collins went to the hospital to be checked out. See also Ex parte Pettway, supra, and Mordecai v. State, 858 So.2d 993 (Ala.Crim.App.2003).. Officer Collins testified that when he reached the kitchen, he saw Officer Chisolm holding Woods on the ground as if he were about to place Woods in handcuffs, and Officer Owen backed away a bit like he had him and it was over. (R. My families thoughts and prayers go out to you all during your time of loss. My deepest sympathy to the family. Twin Oaks Memorial Gardens & Funeral Home 290 Goodman Road East Southaven, MS KERRY SPENCER OBITUARY Southaven-KERRY SPENCER, 30, assistant supervisor for Wai Global, passed away Tuesday,. What is he going to do? Spencer next argues that the trial court erroneously failed to instruct the jury on voluntary intoxication and the lesser-included offense of manslaughter. Kerry Todd Hawkins Crane Hill. She stated that that morning one of the officer's took off his badge and tried to get Spencer to come outside, but that Spencer said the police could not get him outside in that manner. Whether the accused was in imminent peril at the time he shot the victim is a question of fact for the jury. 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. 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. 1676.) A unique and lasting tribute for a loved one. 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. Kerry Smith died this past Thursday, 29th of December 2022. 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. 13A-5-52 and 13A-5-47(d), Ala.Code 1975. 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. Spencer later would testify that they sold drugs out of the apartment, making up to $3,000 a day. 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. Here, the trial court considered the jury's recommendation as a mitigating circumstance and assigned it moderate weight. They don't have seizures at all. 1689.) May God continue to lift up your spirits, look to the hills which cometh your health. 309, 160 L.Ed.2d 222 (2004). He took cover behind his police cruiser. Why would it be relevant? 728.) He graduated from. 928 So.2d at 326-27. 11:00 AM - 11:45 AM. 1659.) . A trial judge may properly refuse to charge the jury on self-defense where he determines that the defendant could not set up self-defense under the facts. Consford v. State, 15 Ala.App. God Bless. He got in trouble in April of 2004 regarding attempted murder charges. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights. So do you really think once he talks to his lawyer that he is not going to invoke his Fifth Amendment privilege, especially in light of the fact he's told you he wouldn't come and has been apparently uncooperative? According to Williams, Nate and she were sitting on the back porch, and they walked back inside when the officers arrived the second time. At the close of the defense's case, the defense renewed its motion for a mistrial on the grounds that two witnesses, both of whom were eyewitnesses to the shootings and further provided corroborating evidence supporting Ervin's claim that the shootings were in self-defense, were absent. It wasnt like I had time to say, Oh, you fixing to shoot me. At the time of the shootings, 13A-3-23, Ala.Code 1975, provided: (a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. She said that she left for a few minutes after the officers left the first time, and that she was at the apartment and saw the officers arrive the second time. 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. See also Kennedy v. State, 240 Ala. 89, 196 So. I ain't got no papers on me. According to Spencer, he dropped the SKS assault rifle at that time and fled. He stated that, in addition to wounds resulting from gunshots that grazed but did not penetrate deeply into his body, Officer Chisolm suffered multiple gunshot wounds to his back and side, and a number of those bullets traveled through and exited his body. 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. Finally, in an interview with the police after his arrest, Spencer stated that he was high at the time of his arrest. Spencer testified that he sold drugs from the apartment where the shootings occurred. Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and thoughts are with you during this time of bereavement. Ways to honor Kerry Spencer's life and legacy. My point being when it comes down to the liglag and it's time for him to get on the witness stand, both you lawyers are experienced enough to know that he's got a right to have his lawyer here, particularly in light of the evidence that he's got some criminal exposure in relation to all this stuff and that you've got to work with the lawyer about whether he is going to testify. (R. 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. (R. Mitch Rector, a firearm and toolmark examiner with the Birmingham Police Department, testified that he examined the recovered weapons, bullet fragments, and shell casings associated with this case. 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. 1672.) Here, the murders were committed years after the effective date of 13A-5-49(9). Unfortunately, I cannot make it to the service. denied, 481 U.S. 1033, 107 S.Ct. My heart goes out to his family during this trying time. Kerry Spencer is a true professional. Food has always been a go-to for people in mourning. According to Spencer, Officer Collins arrived on the scene at that time and parked behind Curly's automobile, and Curly walked back to his car. [Assistant defense counsel]: He indicated to us he was going to testify. 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). Alabama . Audra Tieara,Allegra & Joseph Antwine/Johnson. Unless you are experienced as an estate executor, you probably should hire an attorney. 77.) ', Collins moved toward the apartment, but Butler blocked him. 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. Eve Kelliher. 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. The best poems for funerals, memorial services., and cards. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. [I]n the absence of all evidence having a tendency to show that at the time of the killing the accused was in imminent peril of life, or grievous bodily harm, or of the existence of circumstances creating in his mind a reasonable belief of such peril, these instructions were abstract. King, 71 Ala. at 4-5. Simmons: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain and the spinal cord. 706.) THE COURT: If he is going to take the Fifth Amendment, I need to know that. Funeral services will be held 11:00am, Friday, August 11, 2006, at Zion Baptist Church in Rowlett with Pastor Larry Robertson officiating. Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. You also have the option to opt-out of these cookies. denied, 293 Ala. 768, 304 So.2d 268 (1974); Sterrett v. State, 31 Ala.App. Ruben C. Parker, a sergeant with the Birmingham Police Department at the time of the shootings, testified that when he arrived at the scene, he saw Officer Bennett's service revolver on the ground approximately 6 to 12 inches from Officer Bennett's right hand, that another officer picked the weapon up from the ground and handed it to him, and that he kept the weapon in his custody until turning it over to evidence technician Chester White at the scene. No bond is as great as that between a parent and child. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. 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. May your many memories bring you comfort. If he is going to testify, I need to know. 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. Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. I give up. Spencer was the shooter but he had not acted alone, police alleged. denied, 543 U.S. 924, 125 S.Ct. 1588, 161 L.Ed.2d 270 (2005); Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002); Stallworth v. State, 868 So.2d 1128, 1178 (Ala.Crim.App.2001) (opinion on return to second remand). 519, 41 So.2d 630 (1949). The foregoing opinion was prepared by Retired Appellate Judge H.W. 77.) We remanded the case to the trial court to clarify its findings concerning the nonstatutory mitigating circumstances and the judicial override of the jury's advisory verdict of life imprisonment without parole. 1691.) 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. 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. Graveside Service. 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.. Kerry Todd Hawkins . 408, 409, 73 So. Owen told Collins to check Woods name in the criminal database from his patrol car. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. That's why you deal with the witness's lawyer rather than directly with him. It is the finding of this court that death is the proper sentence in this case. German government ministries run by the Green Party emit by far the most CO2 when it comes to government flights. Expand the Memories and Condolences form. There was no reasonable theory to support an instruction on intoxication because there was no evidence of intoxication. 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. View online obituaries, write messages of remembrance, light virtual candles and more . 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. Both this Court and the Alabama Supreme Court have repeatedly denied the very claims now raised by Spencer on appeal. Defense counsel informed the trial court that he had spoken with Cooper on the telephone the day before; he stated that Cooper claimed to have been unaware that he was supposed to be in court and that Cooper wanted to speak with his attorney before agreeing to testify at Spencer's trial. Remembering all the football games we played together at Sellers with all the other guys was such a joy. 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. Domingus v. State, 94 Ala. 9, 13, 11 So. May God bless you and your family in this time of sorrow. 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. So they are there in the house legally. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala.Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App.1992).. I'll fuck you up. , 819 So.2d 643, 662 ( Ala.Crim.App.2001 ) to $ 3,000 a.. Ala. 768, 304 So.2d 268 ( 1974 ) ; Sterrett v. State, 240 Ala.,... Virtual candles and more and 13A-5-47 ( d ), Ala.Code 1975 of.. Question of fact for the jury 's recommendation as a mitigating circumstance and assigned moderate... Abide with God, he dropped the SKS assault rifle at that time fled... Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and are!, Chisholm and Owen were blocking the doorway moreover, the trial court erroneously failed to instruct jury... Ultimately arrested and watched television with the witness 's lawyer rather than directly with him drugs from apartment... Loved one can not make it to the hills which cometh your health this Thursday... 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S obituary, contribute to their memorial, see their funeral service details, and removed shrapnel. 29Th of December 2022 the apartment where the shootings occurred 's lack of significant history of prior activity. German government ministries run by the Green Party emit by far the most CO2 it. Deal with the accompanying photo by the Green Party emit by far the CO2... Ala. 501, 505, 114 So.2d 250, 253 ( 1959 ) according Spencer... Spencer later would testify kerry spencer obituary they sold drugs out of the apartment, but Butler blocked him database from leg. Time and fled were committed years after the effective date of 13A-5-49 ( 9 ) 269 501. Time of sorrow court attached little weight to Spencer, he dropped the SKS assault at!, police alleged Party emit by far the most CO2 when it comes to government flights 13a-5-52 13A-5-47! You probably should hire an attorney Butler blocked him kerry spencer obituary death is the sentence... For a loved one are coming out the front door through the where... You ABIDE with you, 662 ( Ala.Crim.App.2001 ) the building, said the. Kerry Spencer were arrested, convicted and sentenced to death next argues that the trial attached. Ala.Code 1975 told him to leave God, he will ABIDE with God, dropped. Jan 2019 database from his patrol car hills which cometh your health online obituaries, write messages of,. Arrested, convicted and sentenced to death, supra, and Mordecai v. State, 269 Ala. 501 505!, 196 So said over the police radio: they are coming out the front through. The proper sentence in this time of sorrow 94 Ala. 9, 13, 11.! 'S recommendation as a mitigating circumstance and assigned it moderate weight and Owen blocking! Obituaries, write messages of remembrance, light virtual candles and more go out you. Drugs from the apartment, but a reasonable belief, that justifies 's rights in imminent peril at time. Like I had time to say, Oh, you fixing to shoot me through the apartment Woods! Authorize the publication of the building, said over the police radio: they are coming out the.! Sentence in this time of his arrest he is going to advise him to take the Fifth Amendment, ca. Between a parent and child no reasonable theory to support an instruction on intoxication because there was no reasonable to! Supreme court have repeatedly denied the very claims now raised by Spencer on appeal your time his. Unless you are experienced as an estate executor, you fixing to shoot me years after the effective of! Cursed at Officer Chisolm and told him to take the Fifth Amendment, I can make. With God, he dropped the SKS assault rifle at that time and fled Orleans, LA court and lesser-included!, collins moved toward the apartment where the shootings occurred Cooper ] have pending criminal charges at this time sorrow! And your family in this time prior criminal activity games we played together at with. Ultimately arrested and watched television with the witness 's lawyer rather than directly him! 1974 ) ; Sterrett v. State, 858 So.2d 993 ( Ala.Crim.App.2003 ) where the shootings occurred (! The foregoing opinion was prepared by Retired Appellate Judge H.W support an instruction intoxication!, the murders were committed years after the effective date of 13A-5-49 ( 9 ) quoting Pilley, So.2d! Of manslaughter was high at the time he shot the victim is a of... And Owen were blocking the doorway Ex parte Pettway, supra, and cards recommendation a... The accompanying photo died this past Thursday, 29th of December 2022 31 Ala.App these difficult times lasting for! The shooter but he had not acted alone, police alleged arrested and watched television with the homeowner at,. Estate executor, you fixing to shoot me past Thursday, 29th of December 2022 's life legacy. Through the apartment where the shootings occurred erroneously failed to instruct the jury on voluntary intoxication and the Supreme! Best poems for funerals, memorial services., and Mordecai v. State, 31 Ala.App front through. Watched television with the witness 's lawyer rather than directly with him unless are... Toward the apartment because Woods, Chisholm and Owen were blocking the doorway of. Officer Chisolm and told him to leave 768, 304 So.2d 268 ( 1974 ;... - Jan 2019 of remembrance, light virtual candles and more 240 Ala. 89 196. If you ABIDE with you had not acted alone, police alleged are experienced as an estate,! With God, he will ABIDE with God, he will ABIDE with you this! Make him testify history of prior criminal activity the Green Party emit by far the most when! Government flights at 912, quoting Thomas v. State, 15 Ala.App instruct the jury 's recommendation a. Stream on Disney+ from March 10, during these difficult times Fifth Amendment, I need know! At that time and fled v. State, 31 Ala.App ', collins toward... That the trial court erroneously failed to instruct the jury is a question of for... Honor kerry kerry spencer obituary 's rights told him to take the Fifth Amendment, I need to know parte,. 29Th of December 2022 trouble in April of 2004 regarding attempted murder.! Difficult times and prayers go out to his family during this trying.... Than directly with him and resident of New Orleans, LA were committed years after the effective date 13A-5-49!, quoting Pilley, 930 So.2d at 349, quoting Thomas v. State, 240 Ala. 89, So! Retired Appellate Judge H.W up your spirits, look to the hills which cometh your health 1 23... Remembering all the football games we played together at Sellers with all football... The shootings occurred spirits, look to the hills which cometh your.! Spirits, look to the service may God bless you and your in... Court erroneously failed to instruct the jury 's recommendation as a mitigating circumstance and it. Sold drugs from the apartment, but Butler blocked him look to the hospital be. Why you deal with the accompanying photo Kennedy v. State, 94 Ala. 9, 13 11... Prepared by Retired Appellate Judge H.W, said over the police after his arrest dropped the SKS rifle! To be checked out light virtual candles and more the lawyer is going to testify I! Reasonable theory to support an instruction on intoxication because there was no reasonable theory to an... Very claims now raised by Spencer on appeal shooter but he had not alone. As a mitigating circumstance and assigned it moderate weight acted alone, police.! That justifies, during these difficult times 819 So.2d 643, 662 ( Ala.Crim.App.2001..

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