That would be images I would have seen forever.. It is to be noted that reasonableness is determined by a standard-a reasonable person under like circumstances-and the determination is made by the jury. Perkins, at 1117. THE COURT: Well, let me ask you a question. 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. denied, 510 U.S. 905, 114 S.Ct. It was a split second decision. ', Ex parte Ferguson, 814 So.2d 970, 976 (Ala.2001).. Authorize the publication of the original written obituary with the accompanying photo. Defense counsel requested that the trial court issue an attachment to have Cooper picked up and brought to court. If you know of an upcoming event for Kerry Spencer Shoemaker, please add one. He said he was stunned and that he radioed a shots fired call and considered his options. The trial court considered this evidence to be a nonstatutory mitigating circumstance entitled to moderate weight considering the jury's vote, which in one case was 10 for life imprisonment without parole and 2 for death, and in two of the cases was 9 for life imprisonment without parole and 3 for death, and in the final case was 7 for life imprisonment without parole and 5 for death. It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. At that point, Officer Bennett was paralyzed and would not have been able to move to touch the defendant's leg. Kerry was a very special person, and I'm glad to have known him. Flawless Execution. Spencer presented a number of witnesses at trial. 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. Here, Spencer presented evidence indicating that he had ingested narcotics and alcohol the night before the shootings and the morning of the shootings. According to Williams, Spencer had a big gun that he had been carrying that day and the gun was near him while he slept. 983, 984 (1918). I went to high school with Kerry and remember him as a fun person to be around. This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable. 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. (R. The trial court however did not consider this to be mitigating evidence because his specific apology directly contradicted the evidence presented, including his statement to police following his arrest and his testimony to the jury during the sentencing phase of his trial. When I saw him, I was like, Thank God, Collins remembers. Echovita offers a solidarity program that gives back the funds generated to families. Although the supreme court also stated that a jury recommendation could be overridden based on information that was not known to the jury, it did not state that that was the only circumstance in which a jury recommendation could be overridden. Family and friends must say goodbye to their beloved Geraldine Smith (Harbour Breton, Newfoundland), who passed away on February 25, 2023. (Arrangements entrusted to Kerry Funeral Home Ltd., Wawa, Ontario 705-856-7340). Brantley Funeral Home. [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. 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. 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. 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. '. You know, most folks would have called his lawyer and said, Look, I want to subpoena him. 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. It is highly unlikely that the defendant walked up to the body as he lay dying on the ground knowing that there was another live officer somewhere behind him, that he had attempted to kill. [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 evidence also indicates that Spencer made statements following the earlier encounters with the officers that if the officers returned he would bust em (R. 913), and that they was gonna get the officers if they returned. My prayers go out to you and your family in your time of bereavement. As this Court indicated in Odoms v. State, 359 So.2d 1162 (Ala.Crim.App.1978), a person was authorized under common law to kill an officer in resisting an unlawful arrest only where necessary to save his own life or to save himself from serious bodily harm, provided that the necessity was real or apparent. 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. 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. He is survived by his wife Pam Spencer. 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 . 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. 1959 - 2023. It's my understanding he has-some Hill. THE COURT: Well, my point is he's got a lawyer I guess on these pending charges. At Find-a-Grave, you can view a loved ones gravestone, seeing photos from your local cemetery. Spencer concedes that, although he requested an instruction on voluntary intoxication, he did not object to the lack of the now requested instructions. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. Spencer stated that Nate told him at that time that he had been sprayed with Mace, and Spencer noticed a big knot on Nate's forehead. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. Officer Jody Jacobs of the Birmingham Police Department testified that he interviewed Spencer at the police station after Spencer was taken into custody. Sgt. Westmoreland Funeral & Cremation Services 828-668 3161 No. You will be greatly missed. Washington stated that someone inside the apartment and some of the officers engaged in a conversation at the back door of the apartment, that Officer Owen said that they had a warrant, and that he heard someone inside the apartment tell the officers they could not come in without a warrant; he further testified that another officer came from the front to the back door and snatched the door open without saying anything about having a warrant, and the officers then proceeded inside. He stated that he then heard a radio transmission from Officer Bennett that [t]hey are coming out the front. (R. Similarly, the witness in McTerry was an eyewitness to the shooting. May God bless you with the strength to carry on. 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. Between 9:00 o'clock and 10:00 o'clock the next morning he drank one beer, he took one Seraquil [sic] and possibly a very small amount of powder cocaine. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. 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. However, this assertion is unsupported by the record. Bill is survived by his wife, Sherry Spencer; children, Scott Spencer of Yachats, Holly Spencer of Oregon City and Craig Spencer of West Linn; stepchildren, Lisa Peterson of West Linn, Nels Peterson of Baton Rouge . Woods and Kerry Spencer were convicted of capital murder and sentenced to death in the slayings of the three Birmingham officers. According to Dumas, Spencer fired the weapon on the night before the shootings and essentially kept it in his possession from the time he purchased it until the shootings the following day. During the sentencing hearing before the Court, [Spencer] testified that he was sorry for what he had done and apologized to the families of the victims. [Assistant defense counsel]: He's got a lawyer in his attempted-murder case. The trial court has complied with our instructions and has submitted on remand an amended sentencing order, again sentencing Spencer to death. (R. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. Remembering all the football games we played together at Sellers with all the other guys was such a joy. 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. 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger). I called them (the other officers) on the radio but they didnt answer. Further, when the jury instructions are viewed as a whole, the complained-of excerpts were appropriate considering the facts of the case. Southfield, MI, 48033-2584. | Hired Attorney. Williams testified that she then saw an officer come in with his gun out and she heard a third gunshot. Spencer Jones hit four 3-pointers and scored 21 points on 7-of-13 shooting from the field, Brandon Angel added 14 points, seven rebounds and four assists and Stanford beat Washington 81-69 Sunday . When Collins looked again, he was gone. While it is not required that where a person is menaced he must wait until a weapon is presented ready for deadly execution, yet the danger must be real or so manifestly apparent as to create a reasonable belief of presently impending peril to life or limb. So it's possible. Draw freely from the well of peace and strength for the supply is unsurpassed even in times like these. 309, 160 L.Ed.2d 222 (2004). 1719.) He loved beaches, roller coasters, cars, music, art and fishing. This website uses cookies to improve your experience while you navigate through the website. The court must do all that the defendant calls upon it to do within the legal power of the court to obtain evidence under Article I, 6. 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. Turner v. State, 160 Ala. 40, 43, 49 So. 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. The rule of self-defense is that persons may and must act on the reasonable appearance of things. Private interment at Fort Snelling National Cemetery. 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. 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. However, in light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to ask the trial court to clarify its sentencing order as to this point on remand. It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. There are no events at this time. A number of officers canvassed the neighborhood after failing to locate the suspects in their initial search of the apartment. The trial court instructed defense counsel to telephone Cooper at the number they had been given, but that number was the general office number for the apartment complex, rather than the specific apartment where Cooper was allegedly located. 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. Spencer further stated that sometime shortly after 9:00 a.m. on the morning of the shootings, he took a Seroquel tablet and drank a beer to help him go to sleep. Carolyn Lavender, a sergeant in the communications section of the Birmingham Police Department, testified about assorted radio transmissions between officers and dispatchers on the day of the shootings. 1658-59.) Photos Add a photo Thus, the trial court clearly considered this evidence presented by Spencer when determining that this mitigating circumstance did not exist. Prepare a personalized obituary for someone you loved.. May 14, 1940 - Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. Kerry Carpenter (L) -- OF 13. Spencer stated that Curly again approached the door and Nate commented that Curly was hiding behind his badge. See also Ex parte Pettway, supra, and Mordecai v. State, 858 So.2d 993 (Ala.Crim.App.2003).. Owen told Collins to check Woods name in the criminal database from his patrol car. Even assuming, without finding as true, Spencer's contentions that the officers made remarks during the earlier encounter that caused Spencer to fear that the officers would hurt or kill him, those comments were made hours before the final encounter where the officers were killed. It would soon become the deadliest day in the departments history.Collins, then 37 and not yet a sergeant, had worked in the West Precinct for 10 years after leaving the Army, having served stints in Berlin and Operation Desert Storm. I give up. Officer Fred Alexander arrived in the front of the apartment and radioed that there was an officer down in the front of the apartment and then made an additional radio transmission, indicating that two more officers were down inside the apartment. The officers' deaths in a hail of gunfire rocked Alabama's . 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. He, therefore, instead of staying in and around the apartments he was staying at, he started staying evidently in this Clay Chalkville area outside or in the East Lake area in order to avoid them. The uncontroverted evidence further indicated that Spencer fired a final shot point-blank into Officer Bennett's head, as Officer Bennett lay on the ground outside the apartment. Aoife Buckley and Eoin McEnery travelled in style on their big day in a vintage set of wheels. And, you know, I probably didn't go to sleep until about 4 in the morning, you know, just dozed off.. The toddler was pictured using his baby version of ASL to sign 'help' to his mum Credit: Kerry Spencer. In case no. The trial court denied Ervin's motion for a mistrial and instead ordered the clerk to prepare instanter subpoenas for the trial court to issue to attempt to secure the missing defense witnesses. Funeral Home Services for KERRY are being provided by Twin Oaks Memorial Gardens & Funeral Home. 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. We send our deepest sympathies to you and your family. Receive obituaries from the city or cities of your choice. He was born Sept. 6, 1956, in South Haven, the son of Donald and Helene Spencer. Tawuan Townes. Obituary. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. The average age of a Spencer family member is 71. [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. To share condolences please visit www.brookhavenfuneral home.net. Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. Kerry Farmer SUMMERVILLE - Kerry Farmer, 77, of Summerville, husband of Judy Farmer, passed away on Friday, January 20, 2023. 1687.) Collins and Owen went to the back door; Chisholm and Bennett covered the front. Spencer next argues that the trial court erred in not issuing an instanter subpoena to compel the presence of defense witness Tyran Bubba Cooper. In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. 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. Here, however, defense counsel conceded that there was conflicting information as to whether Cooper would testify at trial, particularly in light of pending criminal charges against him and the fact that his expected testimony could implicate him in additional criminal activity. make a charitable donation in a loved ones memory, plant memorial trees in a loved ones name. 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. He stated that shortly after he test-fired the weapon, there was a disturbance involving some women, so he got the SKS and fired it into the air a number of times to break up the dispute. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. Finally, in case no. (R. He then went on to relate his version of the events that led to the shooting of these officers. 1647.) 1725-33.) David Kessler's top 4 tips for dealing with holiday grief. 1088-89.). 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. 721 Smith Rd. 13A-5-52 and 13A-5-47(d), Ala.Code 1975. ( Arrangements entrusted to Kerry Funeral Home Services for Kerry Spencer were convicted of capital and. 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