Pritchett v. State, 445 So.2d 984 (Ala.Cr.App.1984). Here, based on the evidence supporting Spencer's theory of events, the events leading up to the shootings, even if creating a sense of passion or mental or emotional imbalance, did not constitute a legally recognized provocation. The trial court has clarified its findings in this regard, stating: In addition, Dr. Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment, was shot multiple times. This Court concluded that by failing to attempt to serve the first witness, the trial court could not determine that witness's whereabouts to be unknown or the witness to be outside of the court's subpoena power; moreover, this Court further noted that because the two witnesses were allegedly eyewitnesses to the actual shootings and could each allegedly provide testimony corroborating Ervin's self-defense claim, their testimony was not cumulative to other evidence because the jury could have found the missing witnesses to be more credible than the evidence presented at trial. Spencer stated that he looked out the back door and saw Officer Collins at the back of the apartment with his gun drawn and that Officer Collins ran behind his police car. 2428, 153 L.Ed.2d 556 (2002), next argues that his sentence of death is unconstitutional. 335 (1917). 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. Although [Spencer] offered an apology for his actions, it is in direct contradiction with the undisputed facts of the case nor his statement to police after his arrest, or his testimony before the jury in the penalty phase. Bern, my thoughts and prayers are with you and your family in your time of sorrow. [Assistant defense counsel]: We would object to Court making the statement that he wasn't served. 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. 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. 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. Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. Gunfire erupted. 309, 160 L.Ed.2d 222 (2004). [Defense counsel]: I do object, for the record. 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. [Defense counsel]: I think we need to make an attempt to see if he is there and see if he is going to come. THE COURT: Well, my point is he's got a lawyer I guess on these pending charges. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. Spencer also presented the testimony of his mother and his uncle concerning his good behavior as a child and that he was remorseful for the offenses. Brantley Funeral Home. At catcher, Jake Rogers will have to fend off a challenge from Donny Sands and possibly. The following morning, defense counsel informed the trial court that Cooper was again not present. ), aff'd 758 So.2d 81 (Ala.1999). See, e.g. Slaughter stated that she walked outside and saw Officer Owen talking to Nathaniel Nate Woods; according to Slaughter, she heard Nate tell Curly to [t]ake off that mother fucking badge and that gun and I will whoop your mother fucking ass. (R. I knew then. [Assistant defense counsel]: He indicated to us he was going to testify. Prayers from Mobile, Alabama have been sent to you'll for strength, during these difficult times. In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. (R. The foregoing opinion was prepared by Retired Appellate Judge H.W. The sentencing order is unclear as to whether the court found any nonstatutory mitigating circumstances to exist. So if they are there legally, what's the relevance of that, even if he were to come in here and say that? Giving to charity is a meaningful way to honor someone who has died. 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. 2167 Heucks Retreat Road NE. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. Home. 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. 41-42.) Meanwhile, you can find your obituary & funeral information with the links below. 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. Over the years I have thought of Kerry and our times together while playing football, and I will always remember his smile and his laugh. At Find-a-Grave, you can view a loved ones gravestone, seeing photos from your local cemetery. 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. CC-04-4131, Spencer was convicted of intentionally causing the death of Charles R. Bennett by shooting him with a firearm while Bennett was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. As this Court stated in Roberts v. State, 735 So.2d 1244 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999): In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. Woods was shouting expletives about the police from inside one of the four small, dingy apartments. The Health and Information and Quality Authority (HIQA) began an unannounced two-day inspection at the hospital yesterday. In recognizing the narrowness of the United States Supreme Court's holding in Ring, this Court has noted that although [t]he Ring Court held that any aggravating circumstance that increased a sentence to death must be proved to a jury beyond a reasonable doubt, the Ring Court did not reach the question whether judicial sentencing or judicial override was constitutional. Stallworth v. State, 868 So.2d [1128] at 1183 [ (Ala.Crim.App.2001) ] (opinion on return to second remand).. KERRY SPENCER passed away in Southaven, Mississippi. Take comfort in knowing that now you have a special guardian angel to watch over you. May your memories bring you comfort. chloe johnson peter buck wedding; le mal en elle fin du film Police watchdog called in Guelph 5:57 pm - 3,689 views; Airline ticket scam Toronto 4:19 pm - 9,735 views; Injured, charged in shootout Alberta 4:08 pm - 8,562 views; More Canada News Other times people just die and they don't have any seizures at all. Spencer testified that Nate went to the front door and engaged in a discussion with an officer. 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. On October 9, 2005, the trial court issued an amended sentencing order. His holster had been hit, there was a hole in his pants and a wound to his leg. Therefore, Spencer properly preserved those grounds for review even though he did not object to the trial court's instructing the jury on the State's requested instructions eight and nine at the conclusion of the court's oral charge. (Emphasis added.) A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. 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. Kerry Spencer. Mike Collins and fellow West Precinct officers Carlos Curly Owen, Harley Chisolm III and Charles Robert Bennett. I called them (the other officers) on the radio but they didnt answer. It is well settled that even where the defendant commits the killing due to a sudden heat of passion, an instruction on manslaughter is properly refused where there is no evidence that that sudden heat of passion was caused by a provocation recognized by law. In McTerry, Williams, the witness at issue had been subpoenaed by the State and was the only eyewitness to the shooting other than the victim. Further, Spencer's actions contributed to the earlier confrontations with the officers; he made statements between the earlier encounter and the fatal encounter indicating that he would kill the officers if they returned. They found an SKS assault rifle outside the front door of the apartment, and a number of guns inside in plain view. 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. 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. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. Richard L. Spencer Sr., 59, of Levittown, PA, died on Saturday, December 15, 2018.Richard was preceded in death by his loving father, Harold Spencer; his younger brother, Tom Spencer; his mother and father-in-law, Joyce and John Smith; and brother-in-law, Paul Brown.He is survived by his wife, Deb Burke; his mother, Lue Eva Spencer; his son, (R. A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case. 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). 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. Moreover, [w]hen reviewing a trial court's jury instructions, we must view them as a whole, not in bits and pieces, and as a reasonable juror would have interpreted them. 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.). denied, 898 So.2d 874 (Ala.), cert. 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. 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. Echovita offers a solidarity program that gives back the funds generated to families. The trial court thoroughly instructed the jury, among other things, on the elements of each charge and on the State's burden of proof. 1430.) Contact us. Write your message of sympathy today. That's why he is going to take the Fifth Amendment. But she never expected one-year-old son, Samuel, to use his skill to send out an S.O.S while sitting on Santa's . But opting out of some of these cookies may affect your browsing experience. Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984); Tarver v. State, 137 Ala. 29, 34 So. denied, 288 Ala. 748, 265 So.2d 192, cert. 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).. 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).. We didnt know for sure 100 percent that it was him, so we had to get the picture, Collins said in a 2005 interview. 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. Mon Feb 27 2023 - 05:00. 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).''. [I]t is a question for the jury to satisfy itself from all the evidence in the case whether or not the defendant was in imminent and manifest danger either of losing his own life or of suffering grievous bodily harm, or that it appeared so to the mind of a reasonable man. Dilburn v. State, 16 Ala.App. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. At that point, Officer Bennett was paralyzed and would not have been able to move to touch the defendant's leg. According to Officer Collins, Officer Owen and he went to the rear of the apartment and Officers Bennett and Chisolm went to the front of the apartment. See also Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984)., 599 So.2d at 74 (emphasis added). Log in to a funeral home below and get started. Always stand on the solid rock, Jesus! If he is going to testify, I need to know. He stated that Curly was always harassing them. I think there has been testimony in court he was the drug supplier of this particular apartment complex of my client. His attitude in both was one of entitlement or justification. It's surprising how much a musical selection can affect mourning. Message Get Directions. 709.) Funeral: 12 Feb 2019, Cheltenham. 1965, 95 L.Ed.2d 537 (1987).. Anthony Stanley . That in and of itself ties the rest of our case together, what we submit to the Court is part of the self-defense and the reason why they were there during the times and the reason they were making the statements they were to him. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. 1190, 108 L.Ed.2d 316 (1990), for the proposition that an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. Officer Collins testified that Officer Chisolm pursued Woods into the apartment. He was treated and released. Kerry Todd Hawkins . Hundreds of officers from Birmingham and other departments descended upon the scene. In determining this question 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 of fact for the jury., Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). Darryl Turner. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. Officer Collins stated that the individual told Officer Owen, [Y]ou hide behind that badge and gun. Officer Cedric Clifton of the Birmingham Police Department testified that he located additional evidence in the residence where Spencer was taken into custody. Learn more about FindLaws newsletters, including our terms of use and privacy policy. . (R. 698 So.2d at 205. There was no reasonable theory to support an instruction on intoxication because there was no evidence of intoxication. 1638.). German government ministries run by the Green Party emit by far the most CO2 when it comes to government flights. Prepare a personalized obituary for someone you loved.. May 14, 1940 - denied, 526 U.S. 1133, 119 S.Ct. Defense counsel requested that the trial court issue an attachment to have Cooper picked up and brought to court. View Perry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. It wasnt like I had time to say, Oh, you fixing to shoot me. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. 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. Information and advice to help you cope with the death of someone important to you. Dumas stated that he did not think Spencer was serious; Dumas further admitted that he had ingested narcotics the night before the shootings. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. He said he was stunned and that he radioed a shots fired call and considered his options. Accordingly, we conclude that the trial court did not commit plain error in failing to give the jury a limiting instruction regarding its use of the evidence relating to Johnson's prior bigamy conviction and her prior bad acts, including her adulterous relationships, sexual manipulations, and proddings, because that evidence, as discussed above, was properly admitted as substantive evidence of the offense with which Johnson was charged and was not offered for purposes of impeachment.. Terry Spencer's passing on Thursday, December 22, 2022 has been publicly announced by Midland Cremation Society in Joplin, MO. He was the only son of the late William Spencer Castle, Jr. and Edna Jane Yarnall. June 17, 2004, started out as an unremarkable day for Birmingham Police Sgt. Spencer testified that at the time of the shootings, he had a cocaine habit of about six to seven grams a day. (R. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992). Every memory left on the online obituary will be automatically included in this book. Kerry Spencer passed away at age 34 years old on August 6, 2006. What kind of arrangement is appropriate, where should you send it, and when should you send an alternative? In discussing nonstatutory mitigating circumstances, the trial court's amended sentencing order states: The defense called [Spencer] to the stand to testify in the penalty phase before the jury. Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. Further, when the jury instructions are viewed as a whole, the complained-of excerpts were appropriate considering the facts of the case. Although there was evidence that the appellant had been drinking beer on the day of the robbery-murder, there was no evidence concerning the quantity of beer he consumed that day at the time of the murder. By clicking Accept, you consent to the use of ALL the cookies. His family is . Williams testified that she then saw an officer come in with his gun out and she heard a third gunshot. She was described as a real doll. The best poems for funerals, memorial services., and cards. It was a good thing. The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. 1691.) (R. 11:00 AM - 11:45 AM. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. According to Spencer, sometime between 6:00 a.m. and 8:00 a.m. on the morning of the shootings, he was awakened by someone kicking on the front door; he stated that the sound was different than when customers knocked on the door and that their business was always conducted at the back door, so he immediately knew it was not related to his drug business. 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. Echovita offers a solidarity program that gives back the funds generated to families. 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. Rather, based on the evidence presented at trial, Spencer failed to establish any evidentiary foundation of intoxication that would warrant an instruction on intoxication. He stated that he was pissed off with the officers' harassment and high on cocaine. CC-04-4132. You also have the option to opt-out of these cookies. MAY GOD CONTINUE TO BLESS YOU AND YOURS DURING THIS TIME OF GRIEF. Funeral: Private. Terry was known as a hustler. As to the former, the trial court found that Spencer's age of 24 at the time of the offense was young but not so young as to carry great weight. View Tribute Book Share Your Memory of . Our thoughts and prayers are with you and your family during this difficult time. According to Spencer, he went to the back door and saw a gun next to an officer on the ground so he picked the weapon up and put it in his pocket, because he did not know if the officer was dead and he did not want the officer to shoot him in the back. This comes out of the Code of Alabama 1975, 13A-3-28. Just look to God and he will see you through your time of sorrow. Sgt. He took cover behind his police cruiser. Spencer stated that Curly put his badge back on his uniform and that Curly and Officer Collins drove away in their vehicles. 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. Kerry is survived by his mother: Bernice Rose & husband Raymond; step-father: Frankie Spencer; father: James Moton; wife: Cammy Spencer; sons: Kerry Jr., Jordan and Kelin; daughter: Miranda; 2 brothers and 4 sisters. Spencer stated that shortly after 10:00 a.m. that morning, he took a Seroquel tablet and drank a beer to help him sleep. Ex parte McWhorter, 781 So.2d 330, 342 (Ala.2000). The trial court instructed the jury, in pertinent part, as follows: Number eight. Generally, where there is evidence of intoxication and the charged offense involves specific intent, such as capital murder, the trial court should instruct the jury on the lesser-included offense of manslaughter. Aoife, from Moyvane, Co Kerry, and Eoin, Abbeyfeale, Co . Will he testify? Collins and Owen went to the back door; Chisholm and Bennett covered the front. Doyle served in the Iowa National Guard. TO THE FAMILY AND FRIENDS MY SYMPATHY GOES OUT TO YOU AND MY PRAYERS ALSO, BE ENCOURAGED AND KNOW THAT GOD MAKES NO MISTAKE, YOU LOVED HIM BUT GOD LOVED HIM MORE. 1676.) 266 (1910).. 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. Further, the missing witnesses in Ervin were both eyewitnesses to the shootings, and their respective testimony was expected to support Ervin's claim that the shootings were in self-defense; here, defense counsel conceded that Cooper was not present at the time of the shootings. Obituaries week of March 1; . You will be greatly missed. Lavender testified that the radio dispatch tape indicated that at 1:24:34 p.m. an unidentified officer at the scene stated, They're going out the front (R. The trial court noted: In CC-04-4129 the jury's recommendation was nine (9) for life without parole and three (3) for death. 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. 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. You 'll for strength, during these difficult times, the complained-of excerpts were appropriate considering the facts of Code... Assistant defense counsel ]: We would object to court making the statement he.. 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