To plant trees in memory, please visit the. 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. Survived by wife Joyce Spencer, Daughters Corryl (Nick) Holm and Allison Spencer, Grandsons James and Thomas Holm, Sisters Carol and Randee and Brother Kevin. SPENCER, Neil McConnell:On January 13, 2015, at the Waikari Hospital peacefully. A peace officer is justified in using that degree of physical force which he reasonably believes to be necessary, upon a person in order to: One, make an arrest for a misdemeanor, violation or violation of a criminal ordinance, or to prevent the escape from custody of a person arrested for a misdemeanor, violation or violation of a criminal ordinance, unless the peace officer knows the arrest is unauthorized. He was only 31 years old. He further stated that Curly had tried to push his way into the apartment window on a previous occasion but that Nate had grabbed a videocassette recorder and videotaped the incident, startling Curly and forcing him to leave. Both this Court and the Alabama Supreme Court have repeatedly denied the very claims now raised by Spencer on appeal. 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. We again pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand. CC-04-4383 as to the capital offense of the murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct, see 13A-5-40(a)(10), the jury unanimously found at least one statutory aggravating circumstance, making Spencer eligible for the death penalty. I don't have no warrant. Kerry Spencer passed away at age 34 years old on August 6, 2006. [Section] 13A-6-3(a)(2) is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense. Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985). 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. He testified that Officer Chisolm made threatening statements to him that put him in fear for his life and made him believe the police would be back and that he would be a dead man by [Officer Chisolm]. (R. Allen was born on September 6, 1959 in Red Deer, Alberta, where he grew and thrived surrounded by a family that he . Alabama courts have, in fact, recognized three legal provocations sufficient to reduce murder to manslaughter: (1) when the accused witnesses his or her spouse in the act of adultery; (2) when the accused is assaulted or faced with an imminent assault on himself; and (3) when the accused witnesses an assault on a family member or close relative.. May your hearts soon be filled with wonderful memories of joyful times together as you celebrate a life well-lived. It is well settled that a trial court need not specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating. Wilson v. State, 777 So.2d 856, 892 (Ala.Crim.App.1999), quoting Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (emphasis omitted). Oct 1932 - Apr 2020. View Terry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. 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,. Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. See also Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984)., 599 So.2d at 74 (emphasis added). Ryan Kreidler (R) -- IF, OF The first nine on this list are pretty good bets. He further testified that although fragments recovered during the autopsy of Officer Owen exhibited characteristics similar to those fired from the SKS assault rifle, he could not conclusively state that those fragments were from the SKS assault rifle. You also have the option to opt-out of these cookies. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. Although the trial court need not list and make findings as to each item of alleged nonstatutory mitigating evidence offered by a defendant, Reeves v. State, 807 So.2d 18, 48 (Ala.Crim.App.2000), it must make a clear finding regarding the existence or nonexistence of nonstatutory mitigating evidence offered by a defendant. 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. If he gets up and says, Yeah, I'm a dope dealer-. Thus, evidence that the defendant ingested alcohol or drugs, standing alone, does not warrant a charge on intoxication. A unique and lasting tribute for a loved one. According to Spencer, he looked out the window and saw Curly. Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. 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. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992). It is the finding of this court that death is the proper sentence in this case. She said Spencer was still asleep when Nate first began talking with the officers at the back door. The evidence adduced at trial indicated the following: On July 17, 2004, Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, of the Birmingham Police Department, were shot and killed, and a fourth officer, Officer Michael Collins, also of the Birmingham Police Department, was shot but survived. Dumas identified the SKS assault rifle as the weapon Spencer had purchased on the night before the shootings. That's why he is going to take the Fifth Amendment. Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. There they found, and removed, shrapnel from his leg. 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. If the lawyer is going to advise him to take the Fifth Amendment, I can't make him testify. He loved beaches, roller coasters, cars, music, art and fishing. The trial court cited several reasons for overriding the jury's recommendation. May God bless your family and you have our sympathy at this time of sorrow. Because there was no rational basis for an instruction on voluntary intoxication, we find no plain error in the trial court's failure to instruct the jury on voluntary intoxication or reckless manslaughter as a lesser-included offense. So it's possible. denied, 526 U.S. 1052, 119 S.Ct. 77.) (R. In addressing a similar situation on the appeal of Nathaniel Woods, this Court recently noted: In Morrow v. State, 928 So.2d 315 (Ala.Crim.App.2004), this Court addressed a similar situation: In addition, in its order, the trial court stated the following regarding nonstatutory mitigating circumstances: The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. 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. Spencer presented a number of witnesses at trial. A reasonable belief, generated by the attendant circumstances-circumstances fairly creating it-honestly entertained, will justify a homicide; but not an irrational belief, however honest it may be. Holley v. State, 75 Ala. 14, 19 (1883). Howard v. State, 420 So.2d 828, 832 (Ala.Cr.App.1982). Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. 983, 984 (1918). 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. What kind of arrangement is appropriate, where should you send it, and when should you send an alternative? 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. Although the evidence in the record supports the trial court's conclusion that the mitigating circumstance in 13A-5-51(6), Ala.Code 1975, was not present, we question the propriety of the assertion that [t]here was no evidence presented that Kerry 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. (Emphasis added.) The Court has carefully considered all of the evidence presented during all stages of the trial in this cause, as well as the Court's observation and evidence admitted during all proceedings, pretrial and posttrial with regard to this case and the Court finds that mitigating circumstances exist with regard to this case.. He is survived by his wife Pam Spencer. 710.) Your email address will not be published. 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. It is a basic tenet of Alabama law that a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, and the [trial] court's failure to give those instructions is reversible error. ' Ex parte McGriff, 908 So.2d 1024, 1035 (Ala.2004), quoting Winner Int'l Corp. v. Common Sense, Inc., 863 So.2d 1088, 1091 (Ala.2003), quoting in turn other cases. 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. To offer your sympathy during this difficult time, you can now have memorial trees planted in a National Forest in memory of your loved one. He was a native and resident of New Orleans, LA. Copyright 2023 Echovita Inc. All rights reserved. Specifically, Spencer contends that there is no evidence that the jury unanimously found that at least one aggravating factor was proven beyond a reasonable doubt. 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. 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. He was the only son of the late William Spencer Castle, Jr. and Edna Jane Yarnall. While on patrol, Collins heard Owen talking on the police radio about a complaint on 18th Street in Ensley. 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.. In his amended sentencing order on return to second remand, the trial court now states as follows: There was evidence during the guilty phase of trial that [Spencer] had ingested cocaine the night before the shooting of these officers. It was a good thing. (R. JUST KNOW THAT YOU ARE NOT ALONE. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. Kerry will be deeply missed by everyone who got the pleasure of meeting him. And so you have this random discharge. In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Id. Spencer George Hare. This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable. If he is avoiding the service or avoiding the pick up, then I don't know anything else the Court can do. We've tried to track his lawyer down this morning and see if they might be able to help us. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. 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. 22, 304 So.2d 263, cert. Photos Add a photo Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. Further, Alabama's judicial override statute, codified at 13A-5-47(e), Ala.Code 1975, provides: In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or Section 13A-5-46(g). Westmoreland Funeral & Cremation Services 828-668 3161 42.). Spencer, citing Johnson v. State, [Ms. CR-99-1349, March 11, 2005] --- So.3d ---- (Ala.Crim.App.2005), avers that while Minor involved the use of prior convictions to impeach a defendant witness, its language was broader. (Spencer's brief at p. The trial court's consideration of the jury's verdict as a mitigating circumstance and his decision to accord it moderate weight for the reasons stated was proper, as determined by this Court in the opinion issued on return to our original remand order. 519, 41 So.2d 630 (1949). 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. In case no. The trial court was directed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. Alabama . Spencer did not claim to be intoxicated at the time of the shootings. Clearly, the facts in this case differ from those in the authority on which Spencer relies, i.e., Ervin and McTerry. Thus, the trial court clearly considered this evidence presented by Spencer when determining that this mitigating circumstance did not exist. Spanish. 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. I can understand why you wouldn't. Write your message of sympathy today. Sat, 25 Feb, 2023 - 02:00. Rule 45A, Ala.R.App.P., states: In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.. Of New Orleans, LA and Paul proper sentence in this case details, and,... Patrol, Collins heard owen talking on the night before the shootings a used... 'S amended sentencing order shall be submitted to this court within 42 days of late! 14, 19 ( 1883 )., 599 So.2d at 74 ( emphasis )... 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Shrapnel from his leg able to help us sons, Hugh and Paul list are pretty good bets Spencer.! Return to remand we again pretermit our plain-error review of Spencer 's sentence!
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