2984, 165 L.Ed.2d 990 (2006). Spencer had argued in his brief on return to remand that Dr. Gary Simmons testified at trial that, as he was dying, Officer Bennett may have experienced seizures or jerking, resulting in the possibility of Officer Bennett's having touched Spencer. At that point, Officer Bennett was paralyzed and would not have been able to move to touch his leg.. Collins and Owen went to the back door; Chisholm and Bennett covered the front. You can object [defense counsel], but quite frankly-. Spencer objected during the charge conference when the trial court indicated that it intended to give the now complained-of instructions; his objection was that the officers were not there to effect an arrest of Spencer and that when they went to the apartment to arrest Woods the officers did not necessarily have the warrant in their immediate possession upon request. (Arrangements entrusted to Kerry Funeral Home Ltd., Wawa, Ontario 705-856-7340). Officer Collins testified that they radioed Officer Chisolm and asked that he come to the back of the apartment to show Woods the printout of the NCIC information and the photograph of Woods from the files. McTerry requested a subpoena after the victim testified, contending that it had not previously subpoenaed Williams because Williams was already under subpoena by the State, and it did not anticipate any conflict between Williams's expected testimony and the victim's expected testimony. I am greatful to have shared fond memories of high school with Kerry and Cammy. If he is going to testify, I need to know. 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. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. Obituary of Warren Reginald Spencer. However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. Passed away Feb 2020. She exemplified the meaning of the word "sweetheart" in every possible way. Scuba Certification; Private Scuba Lessons; Scuba Refresher for Certified Divers; Try Scuba Diving; Enriched Air Diver (Nitrox) Just sit around and wait? Because the specific grounds now raised on appeal were not properly raised at trial, we review Spencer's claim for plain error. I give up. This beautiful baby boy was named Kerry Darnell Williams, the second oldest of six children. Spencer testified that at the time of the shootings, he had a cocaine habit of about six to seven grams a day. (R. THE COURT: First of all, the officers are there on a lawful arrest warrant. It had been continued over. Star Tribune reviews all guest book entries to ensure appropriate content. 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). 1619.) Obituaries week of March 1; . 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.). 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. My heart goes out to his family during this trying time. Alabama Death Row Inmate List - T. Jarrod Taylor. Dr. Gary Simmons, a forensic pathologist with the Jefferson County coroner's office, testified that he performed the autopsies on all three officers and concluded that each had died of multiple gunshot wounds. With regard to Spencer's third allegation, the amended sentencing order states: In addition, Dr. [Gary] Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment was shot multiple times. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. October 7, 2021 The trial court indicated that it found nonstatutory mitigating circumstances to exist, but it failed to identify which nonstatutory mitigating circumstances it found to exist. Prepare a personalized obituary for someone you loved.. September 6, 1956 - The toddler was pictured using his baby version of ASL to sign 'help' to his mum Credit: Kerry Spencer. 2428, 153 L.Ed.2d 556 (2002), next argues that his sentence of death is unconstitutional. As the days and weeks pass, and as you return to lifes routine, may you continue to feel comforted by the love and support of family and friends. Between 9:00 o'clock and 10:00 o'clock the next morning he drank one beer, he took one Seraquil [sic] and possibly a very small amount of powder cocaine. The right to compulsory process is guaranteed by the constitution, and neither the legislature nor the courts can deprive a defendant of that right. Will he testify? The trial court indicated that there was no information indicating that Cooper had ever been served with a subpoena. You know, I had a little bit of [cocaine] powder left over from the night before. She was described as a real doll. He graduated from. 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. No. May your hearts soon be filled with wonderful memories of joyful times together as you celebrate a life well-lived. 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. . 803.) It is to be noted that reasonableness is determined by a standard-a reasonable person under like circumstances-and the determination is made by the jury. Perkins, at 1117. However, as Spencer argues in his brief on return to remand, there was evidence presented at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings. Pritchett v. State, 445 So.2d 984 (Ala.Cr.App.1984). Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. Spencer testified that they continued cursing at each other and that Curly said, Don't let me find a reason to come in this apartment. (R. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 1638.) You and your family will be in my thoughts and prayers. White Plains, New York, United States Over the course of two summers, supporting office activities at a music summer camp. 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. [Defense counsel]: He has indicated on numerous occasions he's going to be here. 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. The 58-year-old officer took off his badge, but Woods stayed behind the locked screen door. [Assistant defense counsel]: There are three attempted murders. See, e.g., Harris v. State, 2 So.3d 880 (Ala.Crim.App.2007) (death penalty imposed upon conviction of capital murder for the killing of two or more persons pursuant to one course of conduct or a series of acts); Woods v. State, 13 So.3d 1 (Ala.Crim.App.2007) (death penalty imposed upon conviction of capital murder in the shooting deaths of four Birmingham police officers); McNabb v. State, 887 So.2d 929 (Ala.Crim.App.2001), aff'd 887 So.2d 998 (Ala.2004) (death penalty imposed upon conviction of capital murder for the killing of a Montgomery police officer). 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. Our thoughts and prayers are with you and your family during this difficult time. In Brownfield v. State, [Ms. CR-04-0743, April 27, 2007] --- So.3d ---- (Ala.Crim.App.2007), this Court noted that both this Court and the Alabama Supreme Court have repeatedly held that the United States Supreme Court in Ring did not invalidate Alabama's death-penalty statute. 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).. [Defense counsel]: I do object, for the record. This Court concluded that by failing to attempt to serve the first witness, the trial court could not determine that witness's whereabouts to be unknown or the witness to be outside of the court's subpoena power; moreover, this Court further noted that because the two witnesses were allegedly eyewitnesses to the actual shootings and could each allegedly provide testimony corroborating Ervin's self-defense claim, their testimony was not cumulative to other evidence because the jury could have found the missing witnesses to be more credible than the evidence presented at trial. Spencer relies in large part on McTerry v. State, 680 So.2d 953 (Ala.Crim.App.1996), and Ervin v. State, 584 So.2d 947 (Ala.Crim.App.1991). denied, 481 U.S. 1033, 107 S.Ct. See also Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.1997). I'm not going to issue an attachment for him because he's not served. A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. He was preceded in death by his brother: Raymount Spencer. The sentencing order is unclear as to whether the court found any nonstatutory mitigating circumstances to exist. He loved beaches, roller coasters, cars, music, art and fishing. 1088-89.). 1687.) 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 average age of a Spencer family member is 71. (82 years old). SPENCER, Keith Wilbur - Born July 25, 1938, Keith passed away peacefully, surrounded by his family on Monday, August 5, 2019. . Jerry John Spencer, 75, passed away peacefully in the arms of his loved ones on October 29th, 2021 after a courageous battle with a lengthy illness. We pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand. Spencer concedes that, although he requested an instruction on voluntary intoxication, he did not object to the lack of the now requested instructions. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. Sgt. His grace is sufficient. 1667.). 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). Officer Hugh Butler was the first to go to Collins. Ill never forget that, Collins said. This comes out of the Code of Alabama 1975, 13A-3-28. James sorry to hear of the lost of your son . He was untruthful because the undisputed physical evidence contradicts his testimony.. denied, 510 U.S. 905, 114 S.Ct. Menu. In addressing a similar situation on the appeal of Nathaniel Woods, this Court recently noted: In Morrow v. State, 928 So.2d 315 (Ala.Crim.App.2004), this Court addressed a similar situation: In addition, in its order, the trial court stated the following regarding nonstatutory mitigating circumstances: The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. Spencer, citing Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 61.) Were refreshing the Tributes.com website for a better experience! Twin Oaks Memorial Gardens & Funeral Home 290 Goodman Road East Southaven, MS KERRY SPENCER OBITUARY Southaven-KERRY SPENCER, 30, assistant supervisor for Wai Global, passed away Tuesday,. Therefore, we conclude that the circuit court complied with both Ex parte Taylor and Ex parte Carroll in overriding the jury's recommendation.. You know, most folks would have called his lawyer and said, Look, I want to subpoena him. Thus, the limited mandates of Ring have been satisfied in this case, because by returning a guilty verdict in case no. Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. 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. 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.'. Here, however, defense counsel conceded that there was conflicting information as to whether Cooper would testify at trial, particularly in light of pending criminal charges against him and the fact that his expected testimony could implicate him in additional criminal activity. 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. 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. I can understand why you wouldn't. 897.) 862.) 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. Mon Feb 27 2023 - 05:00. (R. Evidence technicians and a crime-scene investigator photographed and diagramed the scene and collected evidence in the area. 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. On the morning of the shooting, he went to take a nap. He is survived by his wife Pam Spencer. 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. As this Court stated in Roberts v. State, 735 So.2d 1244 (Ala.Crim.App.1997), aff'd, 735 So.2d 1270 (Ala.1999): In capital cases, it is the duty of this court to independently determine whether the sentence of death is appropriate in a particular case. He drove there to help and encountered Nathaniel Woods for the first time. Giving to charity is a meaningful way to honor someone who has died. I knew then. 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. According to Spencer, he looked out the window and saw Curly. 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. David Kessler's top 4 tips for dealing with holiday grief. We send our deepest sympathies to you and your family. KERRY SPENCER passed away in Southaven, Mississippi. Officer Clifton stated that the 9mm Beretta handgun was damaged. Snyder v. State, 893 So.2d 488, 548 (Ala.Crim.App.2003); see also Belisle v. State, 11 So.3d 256, 308 (Ala.Crim.App.2007); and Harris v. State, 2 So.3d 880, 910 (Ala.Crim.App.2007). At one point, Woods challenged Owen to stop hiding behind his badge and fight. Instead, he ran out the back door to make his way to Bennett. View Tribute Book Share Your Memory of . Rector further testified that the damage to Officer Owen's service weapon and holster was consistent with having occurred while the service weapon was in the holster, and that he recovered a bullet fragment from the holster that was consistent with having been fired from a rifle. Evidence that someone was drinking an alcoholic beverage is not evidence that that person was intoxicated. Randall Washington testified that he was working on Courtney Spencer's automobile in front of the apartment at the time the officers arrived. Here, the murders were committed years after the effective date of 13A-5-49(9). 733.) What are you asking the Court to do? Spencer stated that he believed the officer was about to kill him based on the officer's earlier statements and that he did not believe that he had any alternative other than to open fire. According to Spencer, he went to the back door and saw a gun next to an officer on the ground so he picked the weapon up and put it in his pocket, because he did not know if the officer was dead and he did not want the officer to shoot him in the back. 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. 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. Kerry had the zest for life and it showed through his many endeavors over the years. [Defense counsel]: One, to make a determination if the last May 25 subpoena has been served at Pearson Hall. 884, 885 (1940). He testified that he kept guns at the apartment, and that he had purchased the SKS assault rifle the night before the shootings and had test-fired it in the backyard. 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. You also have the option to opt-out of these cookies. 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. Michael Taylor. I'll fuck you up. My tears are with yours, and so are my prayers. (R. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. His holster had been hit, there was a hole in his pants and a wound to his leg. The Alabama Legislature has defined intoxication to include a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. 13A-3-2(c)(1), Ala.Code 1975. Rule 45A, Ala.R.App.P., states: In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.. May God bless you and your family in this time of sorrow. Officer Bennett's body was found at the front door of the apartment. Thus, the plain-error doctrine applies. Although there was evidence that the appellant had been drinking beer on the day of the robbery-murder, there was no evidence concerning the quantity of beer he consumed that day at the time of the murder. 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. Dumas testified that he was awakened that morning by a bang on the front door. A person may use deadly physical force if the actor reasonably believes that such other person is: (1) Using or about to use unlawful deadly physical force; or, (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or, (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree 7. Does [Cooper] have pending criminal charges at this time? Citing Ex parte Taylor, 808 So.2d 1215 (Ala.2001), and Ex parte Carroll, 852 So.2d 833 (Ala.2002), Spencer argues on return to remand that the trial court could not override the jury's recommendation of life imprisonment without the possibility of parole absent reliance on some evidence or facts unknown to the jury that impacted the factual basis for the jury's sentencing recommendation. Finally, the trial court considered as a mitigating circumstance the jury's punishment recommendation. Kerry was employed by Mayer Electric for 13 years. 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. MAY GOD BE WITH YOU IN YOUR TIME OF GRIEF. [Defense counsel]: I think we have a legal right to put on evidence of why they were there otherwise. denied, 200 Ala. 23, 75 So. Despite Spencer's assertions to the contrary, the instructions did not lessen the State's burden or amount to an affirmative charge for the jury to return a finding of guilt. 1672.) While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.. (R. If the lawyer is going to advise him to take the Fifth Amendment, I can't make him testify. 728.) Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. Scott v. State, 34 Ala.App. The God we serve in Mobile, Alabama is the same one that sits high and looks low in Dallas, Texas. THE COURT: I don't know that he was served. Sgt. This Court puts no weight on this proffered theory by the defense.. Additional testimony indicated that the 9mm Beretta handgun found behind the heater in the residence where Spencer was arrested was Officer Owen's service weapon. Spencer, Bill 81 May 21, 1935 June 17, 2016 William Bill Earl Spencer, of Portland, passed away June 17, 2016. Kerry will be deeply missed by everyone who got the pleasure of meeting him. Just inside the kitchen, Chisholm got Woods down on the floor as if he was about to handcuff him, and Woods yelled, I give up. 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 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. In his amended sentencing order on return to second remand, the trial court now states as follows: There was evidence during the guilty phase of trial that [Spencer] had ingested cocaine the night before the shooting of these officers. 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