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. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. 190 (1892), however unsatisfactory and inconclusive to the judicial mind the evidence of self-defense may appear. 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. In addition to the plethora of guns and unspent and spent ammunition discovered in and outside the apartment where the shootings occurred, the testimony indicated that Officer Owens's holster was damaged and that his service handgun was not located in the vicinity of his body. denied, 898 So.2d 874 (Ala.), cert. The question is not merely what the defendant believed, but also, what did he have the right to believe. Alabama Code 1975, 13A-3-23 Commentary. A unique and lasting tribute for a loved one. See, e.g., Johnson v. State, supra (evidence of prior bigamy conviction and prior bad acts including adultery and other sexually related activities was admissible as substantive evidence of the offense based on the facts of that case); and Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002) (no plain error where defendant was not cross-examined concerning any prior convictions; no evidence of prior convictions was admitted; and reference to outstanding warrants does not equate to evidence of a prior conviction.). In his second amended sentencing order, the trial court stated: This is the most brutal and violent attack on law enforcement officers this Court has seen in its combined thirty years as a prosecutor, defense lawyer, and as a judge. The trial court's findings concerning the aggravating and mitigating circumstances is supported by the record. To constitute adequate legal provocation, it must be of a nature calculated to influence the passions of the ordinary, reasonable man, Biggs v. State, 441 So.2d 989, 992 (Ala.Crim.App.1983)., Hafford v. State, 674 So.2d 1386, 1390 (Ala.Crim.App.1995).. View online obituaries, write messages of remembrance, light virtual candles and more . Marketing & Communications Director Spokane Club Nov 2008 - Present14 years 3 months Publisher and Editor in Chief Imagine Magazine 2004 - 20084 years Publisher Massage Magazine 1999 - 20034 years. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. He was 81 years old. 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. What is he going to do? [Defense counsel]: Well, we think we've proven self-defense in our-. Dumas stated that he did not think Spencer was serious; Dumas further admitted that he had ingested narcotics the night before the shootings. Woods' alleged accomplice, Kerry Spencer, confessed to being the sole gunman who killed the officers with a high-powered weapon, but separate juries convicted him and Woods of four capital murder charges, including killing the officers in the course of committing another crime. God will give you comfort and strength at this time of great loss. Officer Collins testified that as they walked back to their automobiles, Officer Chisolm arrived and got out of his automobile. 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. Thats when it hit me I should be dead, he said in 2005. Anthony Tyson. 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. According to Williams, Spencer jumped up, looked out the bedroom window and then came out of the bedroom and peeked around the corner to see what was taking place. 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. 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. Officer Collins testified that while on patrol that morning, he heard a radio transmission from Officer Owen indicating that Officer Owen was getting out of his police vehicle at the 1600 block of 18th Street in Ensley to investigate something suspicious or a miscellaneous complaint. My tears are with yours, and so are my prayers. 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).. You can send your sympathy in the guestbook provided and share it with the family. 884 (1940); Moore v. State, 54 Ala.App. The trial court cited several reasons for overriding the jury's recommendation. According to Spencer, Officer Collins arrived on the scene at that time and parked behind Curly's automobile, and Curly walked back to his car. 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. 1638.). 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. [Defense counsel]: Well, even if you're not trying to prove the truth of the matter of what they're saying that he sold drugs or something, it would be to rebut the testimony of the State where they said that the officers were there earlier to check on the switched [automobile license] tags. 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). I didnt think there was much hope., He looked back at the apartment and saw a man, later identified as Kerry Spencer, standing just outside the apartment, firing a gun at him. View . He was a lifelong area resident and a graduate of the Warren . If you know of an upcoming event for Kerry Donald Spencer, please add one. May God continue to lift up your spirits, look to the hills which cometh your health. Therefore, Spencer is not entitled to any relief on this claim. Tawuan Townes. Indeed, Williams had shown up for trial earlier that day, and there was no reason to believe he could not be found within a short time. 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. On remand, this ambiguity must be clarified.. On April 4, 2008, this Court affirmed Kerry Spencer's convictions for four counts of capital murder for the shooting deaths of Birmingham police officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, and for the attempted murder of Officer Michael Collins; however, we remanded 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, see 13A-5-52 and 13A-5-47(d), Ala.Code 1975, and to reweigh the aggravating circumstances and the mitigating circumstances and to resentence Spencer. On October 5, 2005, Spencer filed a motion for a new trial. (R. No. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. Stay up-to-date with how the law affects your life. 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. They are irritated. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother Brian. In CC-04-4129, the jury recommended, by a vote of 9 to 3, that Spencer be sentenced to life imprisonment without the possibility of parole; in CC-04-4130, the jury recommended, by a vote of 10 to 2, that Spencer be sentenced to life imprisonment without parole; in CC-04-4131, the jury recommended, by a vote of 9 to 3, that Spencer be sentenced to life imprisonment without parole; and in CC-04-4383, the jury recommended, by a vote of 7 to 5, that Spencer be sentenced to life imprisonment without parole. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. Whether the accused reasonably believes that another person is using or is about to use unlawful deadly physical force against him is a question for the jury. He stated that he was stunned, and that he radioed a shots fired call over the police radio, and ran to the back of his police car. 98.) In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. Funeral services will be held 11:00am, Friday, August 11, 2006, at Zion Baptist Church in Rowlett with Pastor Larry Robertson officiating. 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. Collins and Owen went to the back door; Chisholm and Bennett covered the front. Defense counsel informed the trial court that he had spoken with Cooper on the telephone the day before; he stated that Cooper claimed to have been unaware that he was supposed to be in court and that Cooper wanted to speak with his attorney before agreeing to testify at Spencer's trial. You can send your sympathy in the guestbook provided and share it with the family. Alabama Death Row Inmate List - U. Alabama Death Row Inmate List - V. Kim Vanpelt. CC-04-4129, Spencer was convicted of intentionally causing the death of Carlos Owen by shooting him with a firearm while Owen was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. Des Moines - Larry H. Spencer, 82, passed away on Saturday, May 21, 2022 which was Armed Forces Day. . [Spencer] also testified before the Court in the sentencing phase before the Court. Bern, please know that I am with you all. Ervin, 584 So.2d at 949. 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. Her son, Samuel Spencer, is 13 now, but was just a 1-year-old when. The officers argued with Woods through a screen door. (C. The trial court overruled Ervin's motion for a mistrial on the grounds that one witness's current whereabouts were unknown and that Ervin's rights were not violated with regard to the second witness because Ervin had presented other evidence corroborating his claim that the shootings were in self-defense. I've got to make the call, I'm sorry, I'm not going to delay this trial-sit around here all day with the jury tied up back there with nothing else to do but sit in the jury room while some futile effort is made to locate a witness we all know is never going to testify. 61.) At the time the subpoena was requested, two defense witnesses and two rebuttal witnesses for the state had yet to testify.. Sat, 25 Feb, 2023 - 02:00. The appellant, Kerry Spencer, was convicted of four counts of capital murder for his involvement in the shootings of four Birmingham police officers. Some basic help and starters when you have to write a tribute to someone you love. 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. Funeral: 2 Mar 2020, Narberth. No bond is as great as that between a parent and child. Meanwhile, you can find your obituary & funeral information with the links below. The God we serve in Mobile, Alabama is the same one that sits high and looks low in Dallas, Texas. He told his colleagues at the Birmingham Police Department that Kerry Spencer and Nathaniel Woods, lifelong friends who had been dealing and using drugs at the pea green one-story house in the Ensley section of the city, were responsible for the killings. And that he quit paying them. denied, 252 Ala. 60, 39 So.2d 421 (1949), and where the evidence of intoxication is offered by the State, see Owen v. State, 611 So.2d at 1127-28.'. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. However, this assertion is unsupported by the record. 1672.) Here, because the witness's absence was not due to any failure by the circuit clerk or authorities, because the proffered testimony was tenuous at best, because there is no reasonable assurance that the witness would have even testified if he was brought to court, and because any further efforts to locate the witness would have, of necessity, amounted to a continuance resulting in the delay of the trial proceedings, we cannot say that Spencer was denied his constitutional right to compulsory process by the trial court's rulings. I give up. 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. And so you have this random discharge. 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. Officers Owen and Collins approached the screen door where Woods was standing, and Officer Owen told Woods that they had an outstanding warrant for his arrest from the Fairfield Police Department, and that Woods began cursing them, saying, Fuck you. 1676.) May your hearts soon be filled with wonderful memories of joyful times together as you celebrate a life well-lived. 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. 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. 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. Our thoughts and prayers are with you and your family during this difficult time. Wednesday, February 22, 2023 Spencer D. Smith Spencer D. Smith, 82, of Chattanooga, passed away on Sunday, February 19, 2023. According to Spencer, Curly took off his badge and told them to come out, to which Nate responded that they were not stupid, at which time Carolyn Slaughter walked over to Curly and intervened, telling Curly to stop acting like that and to put his badge back on. 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. Whitehead v. State, 429 So.2d 641 (Ala.Cr.App.1982). The appellant never indicated to the court that he would need additional time to locate Williams. THE COURT: For the record you've got an exception., (R. This website uses cookies to improve your experience while you navigate through the website. And secondly he's your last witness. 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. 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. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. 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 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. Spencer then said he had his AK and that the officers came into the apartment with their guns for no reason spraying Mace, so he shot everyone who was pointing a gun at him. 1682.) Before the issue of self-defense is submitted to the jury, the defendant has the burden of proving, among other things, that he reasonably believe[d], Alabama Code 1975, 13A-3-23, that his attacker was about to use unlawful deadly physical force, unless this fact arises out of the evidence produced against him to prove the homicide. Cosby v. State, 269 Ala. 501, 505, 114 So.2d 250, 253 (1959). There are no events at this time. 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. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). Spencer George Hare. At a preliminary hearing Williams testified that he could not positively identify the shooter. Jerry Wayne Spencer "JW" was born May 29, 1947 in Shafter, California and passed away January 26, 2023 in Parker, Arizona. 1725-33.) 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 . This Court concluded that the circuit clerk had failed to perform its affirmative duty under 12-21-244, Ala.Code 1975, to see that the defense's requested subpoenas were issued before trial, and, thus, that the trial court had to take all steps necessary to ensure the defendant's constitutional guarantee of compulsory process. Id. Spencer stated that Curly put his badge back on his uniform and that Curly and Officer Collins drove away in their vehicles. denied, 293 Ala. 768, 304 So.2d 268 (1974); Sterrett v. State, 31 Ala.App. Kerry was a 2010. Simmons: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain and the spinal cord. A little boy creeped out while sitting on Santa's lap used baby sign language to tell his parents he was not feeling safe with Old Saint Nick. Would you like to offer Kerry Donald Spencers loved ones a condolence message? Spencer testified that he hid in the attic and that he did not resist when the police discovered him. Dumas testified that, after the officers left, he went back to sleep until he was awakened later, at which time he got up, washed his face, and then left the apartment to walk to the store a few blocks away. Nathaniel Wood was executed in 2020. 1667.). Randall Washington testified that he was working on Courtney Spencer's automobile in front of the apartment at the time the officers arrived. Stating in his amended sentencing order on return to second remand that [i]f we are to have law and order in a civilized society, then officers like these, who were gunned down while trying to perform a government function or enforce the law must mean something. The trial court further noted that Spencer showed no remorse in his statement to the police following the murders or in his testimony; rather, the trial court felt that Spencer seemed to indicate that he was justified in killing these officers. 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, he was going to take a hit. Finally, Spencer failed to meet his burden of showing that the officers were in the apartment with a felonious intent. 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