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. 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. He stated that Curly was always harassing them. Rather, the trial court adequately protected Spencer's rights, including granting Spencer an overnight continuance to the following morning, and then conducting a thorough discussion on the record as to the status of the defense's efforts to locate the witness, the expected testimony of the witness, and the likelihood of the witness taking the stand if located. Receive obituaries from the city or cities of your choice. 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. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). You can object [defense counsel], but quite frankly-. In CC-04-4383 the count was seven (7) for life without parole and five (5) for death. 2. It is solely for the jury to determine whether any particular inference that may possibly be drawn from given facts is or is not a reasonable inference, and not for the court to substitute its judgment for theirs in passing upon the character of inferences afforded by the evidence. Domingus v. State, 94 Ala. 9, 13, 11 So. May god give you strenghth. On direct examination, Dr. Simmons testified as follows: [I]t's likely-in my opinion, you can't say absolutely, but it's likely he would have been immobilized right when he sustained [the gunshot wound to the torso]. (R. It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. See, e.g., Ex parte Hodges, 856 So.2d 936 (Ala.2003); Ex parte Waldrop, 859 So.2d 1181 (Ala.2002); Duke v. State, 889 So.2d 1, 41 (Ala.Crim.App.2002) (opinion on return to remand), cert. He stated that Officer Bennett sustained a very close-range gunshot wound below his left eye, which passed through his brain case and portions of the brain before exiting though the back of his skull; he further testified that Officer Bennett sustained a gunshot wound to his chest that lacerated his heart and impacted his liver, esophagus, aorta, right adrenal gland, and spine but did not exit his body, and entrance and exit wounds on his arm associated with a third gunshot. Mr. Sanders died Tuesday, February 21, 2023 at his residence. Does [Cooper] have pending criminal charges at this time? Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. Domingus v. State, 94 Ala. 9, 13, 11 So. 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. 2428, 153 L.Ed.2d 556 (2002), next argues that his sentence of death is unconstitutional. Anthony Tyson. View Tribute Book Share Your Memory of . Spencer concedes that, although he requested an instruction on voluntary intoxication, he did not object to the lack of the now requested instructions. I am so happy I had him in my life. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. 42.). Sgt. It is well settled that [t]he statement of specific grounds of objection waives all grounds not specified, and the trial court will not be put in error on grounds not assigned at trial. Ex parte Frith, 526 So.2d 880, 882 (Ala.1987). He love is everlasting. Spencer next challenges the trial court's use of the State's requested jury instructions number eight and number nine. Clearly, the facts in this case differ from those in the authority on which Spencer relies, i.e., Ervin and McTerry. A merely honest belief, unless a reasonable one, that the killing was necessary, will not make it justifiable. Later, with a photo of Woods and a copy of the warrant in hand, they set out to arrest Woods. and Fuck you. When asked whether he had taken any narcotics on the morning of the shootings, Spencer stated: Yes, I did. See also Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984)., 599 So.2d at 74 (emphasis added). 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. On September 9, 2005, the trial court held the final sentencing hearing. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. 190 (1892), however unsatisfactory and inconclusive to the judicial mind the evidence of self-defense may appear. These cookies will be stored in your browser only with your consent. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. All of this should have been addressed long before we got to this point and worked out with his lawyer about whether he would testify. Williams testified that she then saw an officer come in with his gun out and she heard a third gunshot. 190, 192 (1891). He loved telling stories, spending time with his grandchildren, playing cribbage and helping people. [Defense counsel]: He's also kin to Nathaniel Woods. Because the trial court has complied with the requirements of our remand concerning its sentencing order, Spencer's sentencing will now be reviewed pursuant to Rule 45A, Ala. R.App. Her son, Samuel Spencer, is 13 now, but was just a 1-year-old when. This undisputed physical evidence contradicts the testimony of [Spencer] who testified he fire[d] the rifle merely as a reaction to Officer Bennett touching his leg. 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. We send our deepest sympathies to you and your family. Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger). The officers' deaths in a hail of gunfire rocked Alabama's . It was a good thing. He said he had bought the SKS the day before, and had even test-fired it the previous night. Obituary Terry Allen Spencer, 38, of Lexington, died November 4, 2021. The 58-year-old officer took off his badge, but Woods stayed behind the locked screen door. (R. Michael Taylor. 850.) 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. And so you have this random discharge. Giving to charity is a meaningful way to honor someone who has died. (82 years old). Additionally, although neither witness believed at the time that Spencer was serious, one witness testified that Spencer had made statements about the officers, following the initial encounter the morning of the shooting, indicating that he was going to bust em, which the witness said he interpreted to mean that Spencer was going to shoot the officers if they returned. Wayne Travis. Scuba Certification; Private Scuba Lessons; Scuba Refresher for Certified Divers; Try Scuba Diving; Enriched Air Diver (Nitrox) We'll help you find the right words to comfort your family member or loved one during this difficult time. That's why you deal with the witness's lawyer rather than directly with him. Mike Collins and fellow West Precinct officers Carlos Curly Owen, Harley Chisolm III and Charles Robert Bennett. 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. On October 5, 2005, Spencer filed a motion for a new trial. Echovita offers a solidarity program that gives back the funds generated to families. Owen told Collins to check Woods name in the criminal database from his patrol car. In the present case, at approximately 4:45 p.m. on Saturday, June 19, 2005, during the defense's case, the defense called Cooper as its final witness; however, he was not present. Kerry was a 2010. KERRY SPENCER Office and Finance Manager admin@cif-ifc.org About Kerry NATASHA MACHADO Director of Programs and Initiatives nmachado@cif-ifc.org About Natasha JEN DICKMAN Communications Manager jdickman@cif-ifc.org About Jen STEPHANIE ROBINSON Fundraising and Membership Coordinator srobinson@cif-ifc.org About Steph MATTHEW PERRY 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. 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. Remembering all the football games we played together at Sellers with all the other guys was such a joy. You know, most folks would have called his lawyer and said, Look, I want to subpoena him. He took the assault rifle with him. You are all in my prayers. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. Defense counsel requested a continuance until 8:30 a.m. the following morning, and the trial court recessed until 8:30 a.m. the following morning. Additionally, the evidence indicates that, upon hearing the commotion in the kitchen and looking outside and seeing police vehicles, Spencer had time to attempt to retreat by attempting to hide or escape from a window; however, he armed himself and proceeded to advance toward the commotion and a certain encounter with officers. All rights reserved. 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. THE COURT: Okay. However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. Authorize the publication of the original written obituary with the accompanying photo. 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.. Authorize the publication of the original written obituary with the accompanying photo. 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). These cookies do not store any personal information. 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. Kerry Spencer shared an old photo of her son. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. Published by Dallas Morning News on Aug. 10, 2006. Here, Spencer presented evidence indicating that he had ingested narcotics and alcohol the night before the shootings and the morning of the shootings. 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. James, Linda, "RAP" and the rest of the family are in our hearts and prayers. I don't know what else to tell you. Over 100 people are waiting on a trolley today at University Hospital Limerick for the second time this week. May your memories bring you comfort. 2954, 57 L.Ed.2d 973 (1978); Ex parte Hart, 612 So.2d 536, 542 (Ala.1992) (Lockett does not require that all evidence offered as mitigating evidence be found to be mitigating.), cert. Several of the officers who responded to the double-aught call testified at trial. Defense counsel averred that a subpoena had been issued on May 17, 2005, to secure the presence of Cooper as a witness at trial. 706.) He got in trouble in April of 2004 regarding attempted murder charges. There was evidence and testimony presented during the trial and sentencing phases of the Defendant's home life, early family life, lack of education and lack of a functional and traditional family unit. See Ex parte Carroll, 852 So.2d 833 (Ala.2002) ([A jury's recommendation of life imprisonment without parole] is to be treated as a mitigating circumstance.); and Ex parte Taylor, 808 So.2d 1215, 1219 (Ala.2001) ([T]he trial judge must state specific reasons for giving the jury's recommendation the consideration he gave it.). [T]he weight to attach to [a] known mitigating circumstance is within the discretion of the trial court. Dr. Gary Simmons testified at trial as follows: Defense counsel: If somebody received gunshot wound B to the chest would there be a short period of time afterward when myoclonic jerk could have been a factor?, Dr. (65 years old). MAY GOD CONTINUE TO BLESS YOU AND YOURS DURING THIS TIME OF GRIEF. Prepare a personalized obituary for someone you loved.. May 14, 1940 - Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. If he gets up and says, Yeah, I'm a dope dealer-. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] --- So.3d ----, ---- (Ala.Crim.App.2008). Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. The trial court has complied with our instructions and has submitted on remand an amended sentencing order, again sentencing Spencer to death. On remand, this ambiguity must be clarified.. If you know of an upcoming event for Kerry Spencer Shoemaker, please add one. 2325, 141 L.Ed.2d 699 (1998). ', Broadnax v. State, 825 So.2d 134, 196 (Ala.Crim.App.2000), quoting Pilley v. State, 789 So.2d 870, 882-83 (Ala.Crim.App.1998). family hang in there until you meet again. 285, 126 L.Ed.2d 235 (1993).. denied, 524 U.S. 929, 118 S.Ct. The law requires that the circumstances should be such as to create a reasonable belief of impending necessity. Save my name, email, and website in this browser for the next time I comment. Evidence that someone was drinking an alcoholic beverage is not evidence that that person was intoxicated. And specifically that Tyran Cooper was a drug supplier. 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. A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. ), aff'd 758 So.2d 81 (Ala.1999). KERRY SELLERS OBITUARY. The trial court has also clarified in this return to second remand its findings and consideration concerning evidence indicating that Spencer shot Officer Bennett a second time through the head only as a reaction to Officer Bennett's having allegedly touched Spencer's leg. 408, 73 So. 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. Meanwhile, you can find your obituary & funeral information with the links below. Finally, Spencer failed to meet his burden of showing that the officers were in the apartment with a felonious intent. Our staff does not correct grammar or spelling. denied, 526 U.S. 1052, 119 S.Ct. Food has always been a go-to for people in mourning. Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him. The average age of a Spencer family member is 71. That being said, we would expect if this man showed up to testify to some very important facts to this case, specifically as to why Carlos Owen and Harley Chisolm were going to the apartments on the numerous times on the date of the shootings. That subpoena was returned unserved on May 23, 2005, because Cooper had not been located. Raper v. State, 584 So.2d 544 (Ala.Cr.App.1991). Your email address will not be published. [Dr. Simmons]: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain cells and the spinal cord. 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. More recently, in Scott v. State, 937 So.2d 1065 (Ala.Crim.App.2005), this Court remanded the case for clarification of the sentencing order, noting in part: In a listing of mitigating circumstances the court found not to exist, the court included, Any other mitigating circumstance offered pursuant to 13A-5-52, Code of Alabama 1975. (C. , February 21, 2023 at his residence to check Woods name in criminal! Reasonable belief of impending necessity authority on which Spencer relies, i.e., Ervin McTerry. Relies, i.e., Ervin and McTerry make it justifiable next time I comment 15 at 2:00.. Law of self-defense may appear upcoming event for kerry Spencer shared an old photo of her.. 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