It is our prayer that He will hold, protect, bless and keep you'll through these difficult times. 627 (1903); C. Gamble, McElroy's Alabama Evidence, 457.02(5) (3d ed.1977). Perry was born on November 18, 1950, in Jamestown, NY, the son of the late Gordon and Florence Hollabaugh Spencer. It was he pulled his gun up and I already had the weapon in my hand so I opened fire.. Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. Here, although the trial court referenced the jury's recommendation that Spencer be sentenced to life imprisonment without parole, the circuit court's order did not state that the trial court found the jury's recommendation to be a mitigating circumstance and did not contain written findings concerning what weight that jury recommendation was given, or the reasons why it overrode the jury's recommendation. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. I wasnt going to stand there and argue. 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. Receive obituaries from the city or cities of your choice. He was such a warm and welcoming man. Sgt. 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. See also Kennedy v. State, 240 Ala. 89, 196 So. He took the assault rifle with him. The obituary was featured in The. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. Contact us. 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. My families thoughts and prayers go out to you all during your time of loss. He has three attempted-murder charges against him that are pending. However, as a young boy I can remember Kerry with fondness. Spencer Jones hit four 3-pointers and scored 21 points on 7-of-13 shooting from the field, Brandon Angel added 14 points, seven rebounds and four assists and Stanford beat Washington 81-69 Sunday . Spencer concedes that, although he requested an instruction on voluntary intoxication, he did not object to the lack of the now requested instructions. Spencer did not claim to be intoxicated at the time of the shootings. THE COURT: It doesn't matter what they are there for earlier. Prepare a personalized obituary for someone you loved.. September 6, 1956 - The trial court filed an amended sentencing order with this court, and on February 27, 2009, we again remanded this cause to the trial court with instructions that it amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and the judicial override of the jury's recommendation of life imprisonment without parole. (Emphasis added.) ), aff'd 758 So.2d 81 (Ala.1999). Authorize the publication of the original written obituary with the accompanying photo. Eve Kelliher. 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. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). Necessary cookies are absolutely essential for the website to function properly. 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 put out a double aught call, the most drastic request for backup an officer can make. I will keep you in my prayers. October 7, 2021 We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. Spencer stated that he was awakened from his nap by a commotion in the back of the apartment, so he looked out the front bedroom window and saw that the police had returned. Funeral services will be held 11:00am, Friday, August 11, 2006, at Zion Baptist Church in Rowlett with Pastor Larry Robertson officiating. Will he testify? [E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). It necessarily follows that the accused has the burden of producing evidence warranting both of such findings and that the discharge of that burden is one of the conditions precedent to his being entitled to having his claim of self-defense submitted to the jury. Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and thoughts are with you during this time of bereavement. His family is . 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). At that point, Officer Bennett was paralyzed and would not have been able to move to touch the defendant's leg. 309, 160 L.Ed.2d 222 (2004). Rather, based on the evidence presented at trial, Spencer failed to establish any evidentiary foundation of intoxication that would warrant an instruction on intoxication. 862.) He got in trouble in April of 2004 regarding attempted murder charges. Slaughter testified that Officer Owens removed his badge, but put it back on when she walked over to him and had a conversation with him. Haney v. State, 603 So.2d 368, 389 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992). During the sentencing hearing before the Court, [Spencer] testified that he was sorry for what he had done and apologized to the families of the victims. The last occasion-. I'm not sure that that testimony would be admissible anyway. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother. Born February 13, 1983, in Morehead, KY, Terry was the son of the late James Spencer and Sharon Stevens Richmond. Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. See also Ex parte Tomlin, 909 So.2d 283 (Ala.2003). | Hired Attorney. CC-04-4383, Spencer was convicted of intentionally causing the death of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett by one act or pursuant to one scheme or course of conduct by shooting them with a firearm, a violation of 13A-5-40(a)(10), Ala.Code 1975. 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. 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).. Another witness testified that she heard Spencer and Woods remark that they was gonna get the officers if they returned. It wasn't like I had time to say, Oh, you fixing to shoot me. Education Syracuse University. Spencer initially denied being at the residence and any involvement in the shootings, claiming that he hid in the attic after hearing that officers were searching the neighborhood because he had two outstanding warrants and did not want to go to jail. View . Send simple, comforting meals with Home Chef. The appellant, Kerry Spencer, was convicted of four counts of capital murder for his involvement in the shootings of four Birmingham police officers. 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. The best poems for funerals, memorial services., and cards. 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. Thus, it is permissible for a trial court to discuss some or even none of the nonstatutory mitigating evidence offered by a defendant and its reasons for concluding that that evidence was not mitigating. (R. The sentencing order is unclear as to whether the court found any nonstatutory mitigating circumstances to exist. You can send your sympathy in the guestbook provided and share it with the family. 1965, 95 L.Ed.2d 537 (1987).. 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. According to Spencer, he looked out the window and saw Curly. As Spencer correctly argues, there was additional nonstatutory mitigating evidence offered by the defense; Spencer's mother and uncle testified at the sentencing hearing about Spencer's upbringing and demeanor. They are dying, and so you have this random discharge and so instead of having a coordinated movement like I have when I pick up this paper clip or whatever, you have just random contractions, a seizure if you [w]ould. In Pilley this Court provided guidance as to what evidence would be required to form that evidentiary foundation. Kerry Spencer had taught her kids to baby sign before they could speak so they could communicate while they were infants. make a charitable donation in a loved ones memory, plant memorial trees in a loved ones name. 41-42.) Services Where to Begin Service Options Honoring Veterans Payment . Just look to God and he will see you through your time of sorrow. denied, 510 U.S. 905, 114 S.Ct. June 3, 2022 The trial court was directed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. Spencer next challenges the trial court's use of the State's requested jury instructions number eight and number nine. Kevin Towles. If he is going to testify, I need to know. P. As required pursuant to that rule, we have searched the entire proceedings and found no plain error or defect that has or probably has adversely affected any of Spencer's substantial rights. Kerry Smith died this past Thursday, 29th of December 2022. As with the two above-discussed portions of the amended sentencing order, what weight and credibility to assign the evidence rests with the trial court. Echovita offers a solidarity program that gives back the funds generated to families. The record clearly shows that more than sufficient time had elapsed between the time the last drugs or alcohol was ingested and the shooting.. Officer Cedric Clifton of the Birmingham Police Department testified that he located additional evidence in the residence where Spencer was taken into custody. There was no reasonable theory to support an instruction on intoxication because there was no evidence of intoxication. Dr. Simmons testified that Officer Bennett exhibited signs of soot and stippling to his skin, which indicated that one of the bullets was fired at close range to his face. However, in light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to ask the trial court to clarify its sentencing order as to this point on remand. June 17, 2004, started out as an unremarkable day for Birmingham Police Sgt. AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING. In determining whether to charge the jury on self-defense, 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 for the jury. Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). 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