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). To plant trees in memory, please visit the. She stated on cross-examination that, after the officers left the first time that morning, she heard Nate and Spencer commenting that they was gonna get the officers if they returned, but she took their comments as joking and believed that [t]hey wasn't serious. (R. I really wish my neice, his sister, Tricia, was there with you'll to celebrate in his homegoing. Sneed v. State, 1 So.3d 104, 123 (Ala.Crim.App.2007), quoting Williams v. State, 710 So.2d 1276, 1305 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997). Prepare a personalized obituary for someone you loved.. May 14, 1940 - 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. 1959 - 2023. 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. Please try again. He took a Seroquel, which is a short-acting anti-psychotic drug, with a beer to help him sleep. Therefore, Spencer is not entitled to any relief on this claim. Officer Clifton stated that the 9mm Beretta handgun was damaged. 1088.) We remanded the case to the trial court to clarify its findings concerning the nonstatutory mitigating circumstances and the judicial override of the jury's advisory verdict of life imprisonment without parole. 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).. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. However, this assertion is unsupported by the record. 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. 733.) He drove there to help and encountered Nathaniel Woods for the first time. 698 So.2d at 205. James, Linda, "RAP" and the rest of the family are in our hearts and prayers. The following morning, defense counsel informed the trial court that Cooper was again not present. To James (Linda)Moton & Family. denied, 526 U.S. 1133, 119 S.Ct. Further, the first two officers Spencer encountered during the final and fatal engagement were shot repeatedly in the back while attempting to exercise a lawful arrest on Woods. 1638.) According to court documents the three police officers were attempting to serve an arrest warrant on Nathaniel Woods when the two men opened fire killing Carlos Owen, Robert Bennett and Harley Chisholm. Charles Stewart. On September 23, 2005, the trial court overrode the jury's recommendations and instead sentenced Spencer to death for the capital-murder convictions (CC-04-4129, CC-04-4130, CC-04-4131, and CC-04-4833); the trial court sentenced Spencer to life imprisonment for the attempted-murder conviction in case no. Spencer was the shooter but he had not acted alone, police alleged. Clearly, the facts in this case differ from those in the authority on which Spencer relies, i.e., Ervin and McTerry. According to Officer Collins, Officer Owen and he went to the rear of the apartment and Officers Bennett and Chisolm went to the front of the apartment. Spencer stated that sometime after they got back to the apartment, Curly returned alone and got into an argument with Nate at the back door, accusing them of stealing cars. The trial court did consider the jury's recommendation of life imprisonment without parole as a mitigating circumstance, assigning this factor moderate weight because the vote was not consistent among the capital murder cases against Spencer. Deshawn Thomas Executes Homeless Man In St Louis, Sheborah Thomas Gets 40 Years For Killing 2 Kids, NFL Zac Stacy Gets 6 Months For Brutal Assault, Brendan Depa Charged For Knocking Out Teachers Aide, Jack Colton Charged In Sexual Assault Of 12 Yr Old, Taylor Frankie Paul Charged With Domestic Violence, Antonio Barbeau and Nathan Paape Teen Killers, Lacy Aaron Schmidt Teen Killer Murders Ex Girlfriend, Keith Randulich Teen Killer Murders Sister, Dakota Wall Teen Killer Sets Up Sisters Murder, Dylan Schumaker Teen Killer Murders 23 Month Boy, James Parker And Robert Tulloch Teen Killers, Bobby Gonzales Teen Killer Murders Girlfriends Mother. KERRY SELLERS OBITUARY. It is the finding of this court that death is the proper sentence in this case. Kerry Spencer Castle, 59, of Travelers Rest, passed away on Tuesday, June 09, 2020, riding his favorite Ducati. Spencer stated that although they sold approximately $3,000 in drugs from the residence on a daily basis, they had never had problems with the police. Star Tribune reviews all guest book entries to ensure appropriate content. 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. denied, 522 U.S. 969, 118 S.Ct. 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. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). We didnt know for sure 100 percent that it was him, so we had to get the picture, Collins said in a 2005 interview. 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. See 13A-5-53(a), Ala.Code 1975.1. Published by Dallas Morning News on Aug. 10, 2006. Woods was shouting expletives about the police from inside one of the four small, dingy apartments. Share FacebookTwitterLinkedinEmail address Listen Follow Report this obituary 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. In Act No. Echovita Inc is a registered trademark. He was born Sept. 6, 1956, in South Haven, the son of Donald and Helene Spencer. For over thirty years, along with our predecessors, the Gilmartin and Lynett Families, we have strived to provide the highest quality of service along with fair costs to the families we serve. Spencer concedes that, although he requested an instruction on voluntary intoxication, he did not object to the lack of the now requested instructions. Copyright 2023 Echovita Inc. All rights reserved. 968.) In addressing the statutory mitigating offenses, the trial court's amended sentencing order states: There 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; therefore, mitigating circumstance 13A-5-51(6) was not present.. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala.Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App.1992).. At a preliminary hearing Williams testified that he could not positively identify the shooter. [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. Family and friends must say goodbye to their beloved Kerry Spencer Shoemaker (Saint Pete Beach, Florida), who passed away at the age of 82, on June 3, 2022. If he is going to testify, I need to know. 742, 136 L.Ed.2d 680 (1997)). Officer Cedric Clifton of the Birmingham Police Department testified that he located additional evidence in the residence where Spencer was taken into custody. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. May God bless you with the strength to carry on. 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. As to whether the second legally recognized provocation (whether Spencer was assaulted or faced with an imminent assault on himself) is applicable under the facts of this case, we have reviewed the evidence and answer that question in negative. Why would it be relevant? Funeral: 12 Feb 2019, Cheltenham. Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. 77.) The law is well-settled that a motion for a continuance, even when based on an absent witness, is addressed to the sound discretion of the trial court. The trial court refused to issue the subpoena. 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. May God bless you and your family in this time of sorrow. 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 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. 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. Remembering all the football games we played together at Sellers with all the other guys was such a joy. Kerry Darnell Spencer of South Carolina was born on August 25, 1971. Calhoun v. State, 932 So.2d 923, 975 (Ala.Crim.App.2005), cert. 740, 743, cert. My deepest sympathy to the family. View obituary. 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. 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. At the time the subpoena was requested, two defense witnesses and two rebuttal witnesses for the state had yet to testify.. When asked whether he had taken any narcotics on the morning of the shootings, Spencer stated: Yes, I did. 1691.) Here, based on the evidence supporting Spencer's theory of events, the events leading up to the shootings, even if creating a sense of passion or mental or emotional imbalance, did not constitute a legally recognized provocation. denied, 898 So.2d 874 (Ala.), cert. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). 13A-5-52 and 13A-5-47(d), Ala.Code 1975. And, you know, I probably didn't go to sleep until about 4 in the morning, you know, just dozed off.. Gunfire erupted. The trial court further found the existence of two statutory mitigating circumstances: Spencer's age, pursuant to 13A-5-51(7) Ala.Code 1975, which was 24 at the time of the events; and the lack of significant history of prior criminal activity, 13A-5-51(1), Ala.Code 1975. What kind of arrangement is appropriate, where should you send it, and when should you send an alternative? Spencer testified that at the time of the shootings, he had a cocaine habit of about six to seven grams a day. (R. If he gets up and says, Yeah, I'm a dope dealer-. denied, 543 U.S. 924, 125 S.Ct. Put all of this on the record? He loved telling stories, spending time with his grandchildren, playing cribbage and helping people. Devin Thompson. 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. Kerry Spencer shared an old photo of her son. Send simple, comforting meals with Home Chef. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. The mandatory and comprehensive nature of the court's obligation to the accused was illustrated in Ervin v. State, 584 So.2d 947 (Ala.Cr.App.1991).. Obituary Terry Allen Spencer, 38, of Lexington, died November 4, 2021. Mon Feb 27 2023 - 05:00. He took the assault rifle with him. Dumas identified the SKS assault rifle as the weapon Spencer had purchased on the night before the shootings. You know, he was going to take a hit. Officer Collins testified that as they walked back to their automobiles, Officer Chisolm arrived and got out of his automobile. 519, 41 So.2d 630 (1949). If you know of an upcoming event for Kerry Donald Spencer, please add one. 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. Southfield, MI, 48033-2584. He was only 31 years old. Obituaries. 627 (1903); C. Gamble, McElroy's Alabama Evidence, 457.02(5) (3d ed.1977). 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. Thus, the trial court clearly considered this evidence presented by Spencer when determining that this mitigating circumstance did not exist. 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. She said Spencer was still asleep when Nate first began talking with the officers at the back door. Contact us. I can understand why you wouldn't. 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. He attended Boone Public Schools. 1725-33.) 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. 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. However, as a young boy I can remember Kerry with fondness. German government ministries run by the Green Party emit by far the most CO2 when it comes to government flights. Additionally, the initial arguments were between Woods and officers; Spencer willingly joined in the verbal jousting, and again continued his verbal sparring with a second officer even though the first officer had, according to Spencer, made threatening comments. They were married for thirty beautiful years and shared many memories together. Wednesday, October 13, 2021. AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING. He put out a double aught call, the most drastic request for backup an officer can make. June 3, 2022 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. Spencer later would testify that they sold drugs out of the apartment, making up to $3,000 a day. 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. 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. There was no evidence concerning the effects, if any, that the amounts of cocaine and other substances allegedly ingested the night before and morning of the shootings had on Spencer at the time of the shootings. 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. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. 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. Testified that as they walked back to their automobiles, officer Chisolm and told to. Neice, his sister, Tricia, was there with you 'll to celebrate his! They sold drugs out of the Birmingham police Department testified kerry spencer obituary he located additional evidence the... 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