At that point, Officer Bennett was paralyzed and would not have been able to move to touch the defendant's leg. 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. Spencer stated that shortly after 10:00 a.m. that morning, he took a Seroquel tablet and drank a beer to help him sleep. 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. [Defense counsel]: One, to make a determination if the last May 25 subpoena has been served at Pearson Hall. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. Graveside Service. 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. 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. 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. We don't know. The officers' deaths in a hail of gunfire rocked Alabama's . The prosecutor later clarified, and defense counsel agreed, that Cooper was not expected to testify that he was present at the apartment when the shootings occurred or that he actually witnessed the shootings.6. My tears are with yours, and so are my prayers. In Johnson v. State, [Ms. 1041313, Oct. 6, 2006] --- So.3d ---- (Ala.2006), the Alabama Supreme Court reversed the judgment of this Court, holding that there was a fundamental difference between prior convictions offered to impeach the defendant's credibility and prior convictions and prior bad-act evidence offered as substantive evidence of the current crime for which the defendant was on trial, or evidence of permissible factors such as the defendant's motive, state of mind, and intent.5 In Snyder v. State, 893 So.2d 482 (Ala.2001), and Ex parte Minor, 780 So.2d 796 (Ala.2000), two cases that formed the basis of this Court's opinion in Johnson, and in large part the crux of Spencer's appellate argument, the evidence in question was evidence of prior convictions offered to impeach the defendant's credibility. Send simple, comforting meals with Home Chef. 17.) Spencer further testified that Curly stated, I wish I had a reason to come in this apartment, I'd show you who was weak; Y'all so damn bad, bring your asses out if you so tough; and We gonna get you and when we get you, we're gonna fuck you up. (R. Learn more about FindLaws newsletters, including our terms of use and privacy policy. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. 2348, 147 L.Ed.2d 435 (2000), was not violated because the jury's verdict in the guilt phase found that fact to exist beyond a reasonable doubt). The circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance. The trial court thoroughly instructed the jury, among other things, on the elements of each charge and on the State's burden of proof. According to Slaughter, Nate told Officer Owens to get a warrant, and Officer Owens responded that the narcotics task force would be back. Spencer v. State, [Ms. CR-04-2570, April 4, 2008] --- So.3d ---- (Ala.Crim.App.2008). Star Tribune reviews all guest book entries to ensure appropriate content. Just sit around and wait? 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. 983, 984 (1918). (Emphasis added.) But the night before, we really did a lot of cocaine. Legacy invites you to offer condolences and share memories of Terry. In the next paragraph of the sentencing order, however, the court stated, The Court considered the evidence presented by the defendant as evidence of non-statutory mitigating factors. (C. Dumas identified the SKS assault rifle as the weapon Spencer had purchased on the night before the shootings. MAY GOD CONTINUE TO BLESS YOU AND YOURS DURING THIS TIME OF GRIEF. Prayers from Mobile, Alabama have been sent to you'll for strength, during these difficult times. Put all of this on the record? 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. 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. 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. He said he had bought the SKS the day before, and had even test-fired it the previous night. I really wish my neice, his sister, Tricia, was there with you'll to celebrate in his homegoing. Contact us. Spencer bases his argument, however, in large part on the Alabama Supreme Court's holding in Ex parte Minor, 780 So.2d 796 (Ala.2000), which he characterizes as a case in which that Court came close to establishing a per se claim of reversible error when a trial court did not give, sua sponte, a limiting instruction concerning the proper use of bad acts evidence introduced in a capital murder trial. (Spencer's brief at p. ), cert. Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. Officer Collins testified that when he arrived, he saw Officer Owen standing at the screen door of an apartment speaking with a black male, so he got out of his vehicle and began to approach the apartment.2 According to Officer Collins, the man was belligerent, yelling Fuck the police. (R. They told Woods to come out. 1669.) 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. Collins and Owen went to the back door; Chisholm and Bennett covered the front. Obituary. 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. 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. See also Ex parte Waldrop, 859 So.2d 1181 (Ala.2002), with regard to Spencer's contention regarding the weighing of aggravating and mitigating circumstances. In Williams v. State, 938 So.2d 440 (Ala.Crim.App.2005), this Court addressed a similar issue as follows: An accused has the right to have the jury charged on any material hypothesis which the evidence in his favor tends to establish. Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). Spencer testified that Nate went to the front door and engaged in a discussion with an officer. 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. Woods and Kerry Spencer were convicted of capital murder and sentenced to death in the slayings of the three Birmingham officers that rocked Alabama's largest city that year. Kerry Carpenter (L) -- OF 13. However, because Spencer has been sentenced to death, the lack of an objection does not bar appellate review, because this Court must review these proceedings for plain error. According to Dumas, at some point he heard Spencer yelling at the officers as well, and he heard an officer say that the officers would be back. (R. Officer Collins stated that his holster was damaged during the shooting, that he had a hole in his pants, that he sustained a wound in his leg, and that he later found a metal fragment in his pants pocket. Jacqueline Buchanan testified that she was a public safety dispatcher with the City of Fairfield. Message Get Directions. 884, 885 (1940). Spencer attended Chattanooga Central High School and was a. 884 (1940); Moore v. State, 54 Ala.App. (R. Several of the officers who responded to the double-aught call testified at trial. Finally, as the trial court noted, there was some question as to whether the testimony, as proffered, would have even been admissible. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). Neil went home to be with his Lord and Saviour. I don't know what else to tell you. 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. You are all in my prayers. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. THE COURT: How long do you think I can sit around and wait? Finally, in McTerry, this Court noted that the defense did not seek a continuance nor would an attempt to subpoena the witness necessarily result in any delay in the trial proceedings because there were two additional defense witnesses and two rebuttal witnesses for the State yet to testify and based on the witness's aforementioned willingness to appear in court earlier that day; further, there were no indications that he could not be found quickly. However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. You know, that occasionally happens. [Defense counsel]: He's also kin to Nathaniel Woods. 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. 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. Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. Spencer was found hiding in the attic of a nearby home, still armed. Washington testified that a minute or two later he heard gunfire from inside the apartment and that he remained hidden under the automobile until the gunfire subsided, at which time he fled on foot. I think there has been testimony in court he was the drug supplier of this particular apartment complex of my client. Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. As noted above, ironically in one of the very cases relied upon by Spencer on appeal, the court's duty to issue subpoenas on an accused's behalf does not require the court to grant a motion for a continuance or a motion for an attachment. 663, 665, 248 So.2d 158, 160 (1971). In setting out the standard for plain error review of jury instructions, the court in United States v. Chandler, 996 F.2d 1073, 1085, 1097 (11th Cir.1993), cited Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. If they are there checking the tags on the car, or they know it is a dope house there and they are checking on the activity going on there, they have a legal right to come up and knock on the door. The family will receive friends Thursday evening at the funeral home from 6:00 to 8:00pm. 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. In Sneed v. State, 1 So.3d 104 (Ala.Crim.App.2007), this Court addressed a similar issue; after discussing the Supreme Court's holdings in Taylor and Carroll, this Court stated: In Ex parte Carroll, the supreme court held that a jury's recommendation of imprisonment for life without the possibility of parole must be considered as a mitigating circumstance. May God continue to lift up your spirits, look to the hills which cometh your health. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. Kerry Spencer. Obituary. While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. Alabama . Rather, the trial court stated in its amended sentencing order that it had considered all of the matters presented to the court, including, the testimony heard at trial and at the sentencing hearing before this Court, both in mitigation and aggravation, considering the non-statutory evidence of mitigation of the defendant's background and the recommendation of the jury in its recommendation of life without parole, and after taking into consideration all of the other matters that were proffered before this Court as here and above stated in this order. You can send your sympathy in the guestbook provided and share it with the family. We have also reviewed the propriety of the sentence of death as required by 13A-5-53(a), Ala.Code 1975. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] --- So.3d ----, ---- (Ala.Crim.App.2008). There are no events at this time. 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 averred that members of Spencer's family had spoken with Cooper that morning and provided the trial court with the address of the apartment where Cooper was supposedly located at that time; according to defense counsel, Cooper had informed the family members that he did not wish to testify at Spencer's trial. However, [t]he reasonableness of an apprehension of death or great bodily injury is a question of fact for the jury. F. Wharton, The Law of Homicide, 287 at 462 (3d ed.1907). Would you like to offer Kerry Donald Spencers loved ones a condolence message? I'll fuck you up. Sgt. [T]he weight to attach to [a] known mitigating circumstance is within the discretion of the trial court. So it's possible. Westmoreland Funeral & Cremation Services 828-668 3161 SELLERS, KERRY DEWAYNE "SRELLES", age 30, passed away July 22, 2003. Officer Collins testified that Officer Chisolm pursued Woods into the apartment. Other times people just die and they don't have any seizures at all. 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. Thus, as in Sneed, we conclude that the trial court did comply with the principles espoused in Ex parte Taylor and Ex parte Carroll in overriding the jury's recommendation. Home. Bern, my thoughts and prayers are with you and your family in your time of sorrow. 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. [Defense counsel]: I can't speak for what-he's afraid of what may happen to him if he testifies. I'm not going to just stop with this being your last witness and sit around on something that may not even be admissible while some futile search is made for somebody who won't cooperate, doesn't want to be a witness, who's got some criminal exposure and a lawyer that I can't even track down. 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. To plant Memorial Trees in memory of Perry Calvin Spencer, please click here to visit our Sympathy Store . He was 81 years old. Save my name, email, and website in this browser for the next time I comment. 698 So.2d at 205. The court determines what the rules are, but it is for the jury to determine whether the standard has been met by the evidence in the particular case. R. Perkins & R. Boyce, Criminal Law 1116 (3d ed.1982). The trial court had given the jury such an instruction. In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. Owen told Collins to check Woods name in the criminal database from his patrol car. According to Rector, a number of fragments recovered during the autopsies of Officers Bennett and Chisolm were fired from the SKS assault rifle; he stated that he conducted a distance study and concluded that the end of the barrel of the SKS assault rifle had been positioned from two to six inches from Officer Bennett's face when that shot was fired. That's why you deal with the witness's lawyer rather than directly with him. He stated that he could have easily killed Officer Collins but did not perceive that officer to be a threat, so he instead allowed him to take cover behind his vehicle and then fired the shots in his direction to facilitate his escape. The 58-year-old officer took off his badge, but Woods stayed behind the locked screen door. 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