Westmoreland Funeral Home & Crematory 828-652-3161 198 South Main Street Marion, NC 28752 Email: admin@westmorelandfh.com. These cookies do not store any personal information. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. See 13A-5-53(a), Ala.Code 1975.1. 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. . Wayne Travis. Similarly, the witness in McTerry was an eyewitness to the shooting. He was preceded in death by his brother: Raymount Spencer. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App. Specifically, Spencer contends that a limiting instruction was required as to evidence regarding his drug use and his alleged occupation as a prominent drug dealer, evidence that he had no bond arrest warrants outstanding against him, evidence that he was frequently seen carrying a firearm, evidence that he had been discharging a firearm the night before the officers' shootings, and evidence that spent shell casings were discovered around the apartment, all of which he contends had no nexus to the officers' shootings. Kerry Darnell Spencer of South Carolina was born on August 25, 1971. 627, 634, 74 So. According to Dumas, he had stayed there for approximately 18 or 19 days, and that, although he saw officers patrolling the area, the morning of the shootings was the first time he saw officers actually come to the apartment. 190, 192 (1891). kerry, you will be missed and it's such a shame that we come in contact with people when they die but i am glad that i grew up to know you and your family. A number of officers canvassed the neighborhood after failing to locate the suspects in their initial search of the apartment. denied, 526 U.S. 1052, 119 S.Ct. According to Washington, he saw the officers pull up and approach the apartment, but he denied speaking to them, saying that he stayed quiet because there was a warrant for his arrest. Officer Bennett's body was found at the front door of the apartment. Unless you are experienced as an estate executor, you probably should hire an attorney. Spencer further notes that the State even requested a jury instruction on the level of intoxication necessary to negate a specific intent to kill and thus the trial court so instructed the jury. That would be images I would have seen forever.. Copyright 2023 Echovita Inc. All rights reserved. Bucky McMillan, while serving on active-duty status as a judge of this court under the provisions of 12-18-10(e), Ala.Code 1975. 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. (R. Calvin Stallworth. A spent bullet was found a few inches in the ground beneath Officer Bennett's head. 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. Thus, contrary to Spencer's assertion in his brief, the trial court did not fail in its obligation to make an attempt to protect Spencer's right to put on his defense. (Spencer's brief at p. Spencer v. State, [Ms. CR-04-2570, Feb. 27, 2009] --- So.3d ---- (Ala.Crim.App.2008). Dumas stated that he did not think Spencer was serious; Dumas further admitted that he had ingested narcotics the night before the shootings. Spencer first argues that the trial court erroneously allowed evidence of collateral crimes and prior bad acts, without sua sponte giving a limiting instruction to the jury regarding the proper use of the now complained-of evidence. Some basic help and starters when you have to write a tribute to someone you love. 401, 406-07, 265 So.2d 185, 190, cert. It is well settled that the Sixth Amendment of the United States Constitution and Art. 1190, 108 L.Ed.2d 316 (1990), for the proposition that an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. Echovita offers a solidarity program that gives back the funds generated to families. My prayers go out to you and your family in your time of bereavement. It is always difficult saying goodbye to someone we love and cherish. Were refreshing the Tributes.com website for a better experience! 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. There are no events at this time. He stated that Curly was always harassing them. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992). See, e.g., Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001) (opinion on return to remand) (if the aggravating circumstance that elevated the punishment to death was also an element of the capital offense, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. He said he had bought the SKS the day before, and had even test-fired it the previous night. 912.) . 1667.). Williams reported to court on the day of trial but was excused by the State shortly before the trial commenced because, according to the prosecutor, his testimony was neutral in that he could not identify the gunman. I was so hurt to learn of Kerry's passing. These circumstances are to be ascertained by the jury Oliver v. State, 17 Ala. 587, 599 (1850). God Bless you all. It's surprising how much a musical selection can affect mourning. family hang in there until you meet again. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. Spencer testified that he hid in the attic and that he did not resist when the police discovered him. Cook v. State, 46 Ala.App. 1647.) May the love of friends and family carry you through your grief. 884 (1940); Moore v. State, 54 Ala.App. This Court did not consider this as mitigating evidence. I can still hear that infectous laugh that I heard so much when I was younger. Show me the papers. (R. 721 Smith Rd. denied, 200 Ala. 23, 75 So. Obituaries. Kerry Spencer is a true professional. If the lawyer is going to advise him to take the Fifth Amendment, I can't make him testify. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. Send simple, comforting meals with Home Chef. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. 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. A peace officer is justified in using that degree of physical force which he reasonably believes to be necessary, upon a person in order to: One, make an arrest for a misdemeanor, violation or violation of a criminal ordinance, or to prevent the escape from custody of a person arrested for a misdemeanor, violation or violation of a criminal ordinance, unless the peace officer knows the arrest is unauthorized. Kerry Smith died this past Thursday, 29th of December 2022. Darryl Turner. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. We'll help you find the right words to comfort your family member or loved one during this difficult time. Just look to God and he will see you through your time of sorrow. Williams stated that she went out the front door and walked to the barber shop across the street. [Defense counsel]: Well, we think we've proven self-defense in our-. My heart goes out to you at this time and in the days ahead. chloe johnson peter buck wedding; le mal en elle fin du film See also Harris v. State, 2 So.3d 880 (Ala.Crim.App.2007), and Eatmon v. State, 992 So.2d 64 (Ala.Crim.App.2007). As required by 13A-5-53(b)(3), Ala.Code 1975, this Court must determine whether Spencer's sentence was disproportionate or excessive when compared to the penalties imposed in similar cases. 1676.) He took a Seroquel, which is a short-acting anti-psychotic drug, with a beer to help him sleep. Clearly these instructions, tracking the language of 13A-3-27(a)(1) and 13A-3-28, Ala.Code 1975, were accurate reflections of the law. Funeral: 2 Mar 2020, Narberth. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. The obituary was featured in The. In case no. 59 (1909). Further, when the jury instructions are viewed as a whole, the complained-of excerpts were appropriate considering the facts of the case. Education Syracuse University. They told Woods to come out. It is with sadness that we announce the passing of Mr. Allen McKinnon with his wife, Glenda, by his side, after a hard-fought battle with Parkinson's Disease, on Thursday, February 23, 2023 at the age of 63 years. THE COURT: I don't know that he was served. 727.) Would you like to offer Kerry Spencer Shoemakers loved ones a condolence message? Alabama courts have, in fact, recognized three legal provocations sufficient to reduce murder to manslaughter: (1) when the accused witnesses his or her spouse in the act of adultery; (2) when the accused is assaulted or faced with an imminent assault on himself; and (3) when the accused witnesses an assault on a family member or close relative.. (65 years old). A person may not use physical force to resist a lawful arrest by a peace officer who is known or reasonably appears to be a police officer.. Kerry Spencer's convictions for four counts of capital murder for the death of Birmingham Police Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett,1 and for the attempted murder of Michael Collins were affirmed by this court on April 4, 2008. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. Thus, we must remand this case to the trial court for it 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. 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. Here, the murders were committed years after the effective date of 13A-5-49(9). What is he going to do? Just sit around and wait? You can send your sympathy in the guestbook provided and share it with the family. But opting out of some of these cookies may affect your browsing experience. [Defense counsel]: Yes, he has. Your email address will not be published. Services Where to Begin Service Options Honoring Veterans Payment . THE COURT: We checked the computer and the computer doesn't show him served. The Court has carefully considered all of the evidence presented during all stages of the trial in this cause, as well as the Court's observation and evidence admitted during all proceedings, pretrial and posttrial with regard to this case and the Court finds that mitigating circumstances exist with regard to this case.. 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. Legacy invites you to offer condolences and share memories of Terry. 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. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. Sgt. It was a good thing. As to the former, the trial court found that Spencer's age of 24 at the time of the offense was young but not so young as to carry great weight. Evidence that someone was drinking an alcoholic beverage is not evidence that that person was intoxicated. But at least the one attempt and as crucial as this witness is, it's important. Does [Cooper] have pending criminal charges at this time? Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. 98.) What are you asking the Court to do? They are irritated. He took the assault rifle with him. 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. The right to compulsory process is guaranteed by the constitution, and neither the legislature nor the courts can deprive a defendant of that right. Thus, although it is apparent that the trial court considered the evidence Spencer offered as nonstatutory mitigating circumstances, it is not clear from the record whether the trial court found any of the evidence to actually constitute nonstatutory mitigation. [Spencer] also testified before the Court in the sentencing phase before the Court. 1415.) Draw freely from the well of peace and strength for the supply is unsurpassed even in times like these. 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. Chisholm, Owen and Collins followed. She exemplified the meaning of the word "sweetheart" in every possible way. 1675-76.) [Assistant defense counsel]: We would object to Court making the statement that he wasn't served. 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. He loved beaches, roller coasters, cars, music, art and fishing. 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. He did, but it was to curse them and argue he wasnt a wanted man. I don't have no warrant. 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. 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.'. 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. 740, 743, cert. 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). Kerry Todd Hawkins Crane Hill. 850.) King v. State, 595 So.2d 539 (Ala.Cr.App.1991); Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App.1984). . The circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance. Copyright 2023 Echovita Inc. All rights reserved. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. Spencer concedes that, although he requested an instruction on voluntary intoxication, he did not object to the lack of the now requested instructions. Section 13A-6-3, Ala.Code 1975, states, in pertinent part: (a) A person commits the crime of manslaughter if: (2) He causes the death of another person under circumstances that would constitute murder under Section 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law, and before a reasonable time for the passion to cool and for reason to reassert itself.. You know, that occasionally happens. Every memory left on the online obituary will be automatically included in this book. Lavender testified that a police dispatcher contacted Officer Chisolm at 1:17 p.m., and notified him that the arrest warrant on Woods had been confirmed by the Fairfield Police Department. Photos Add a photo 1588, 161 L.Ed.2d 270 (2005); Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002); Stallworth v. State, 868 So.2d 1128, 1178 (Ala.Crim.App.2001) (opinion on return to second remand). The trial court cited several reasons for overriding the jury's recommendation. Kerry Spencer. However, the court should charge on voluntary intoxication only when there is a sufficient evidentiary foundation in the record for a jury to entertain a reasonable doubt as to the element of intent. 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. 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. The officers, joined by Chisholm, left to double-check that the warrant was valid. See also Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.1997). Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. 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. 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. denied, 288 Ala. 748, 265 So.2d 192, cert. The court must do all that the defendant calls upon it to do within the legal power of the court to obtain evidence under Article I, 6. Anthony Stanley . 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. He stated that when they arrived, he saw one individual run back inside the apartment and that Woods was standing at the screen door. 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. The question as to whether or not the circumstances in which the parties were at the time the fatal blow was stricken were such as to impress a reasonable man that the defendant was in imminent danger of losing his life or suffering great bodily harm, and whether or not the defendant entertained such belief were inferential facts to be drawn by the jury. Kennedy v. State, 240 Ala. 89, 91, 196 So. 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. Molton v. State, 651 So.2d 663, 666 (Ala.Crim.App.1994) (Where a defendant clearly objects at the charge conference to the trial court's refusal to give a written requested charge and states specific reasons for that objection, he is not required to renew his objection at the close of the oral instructions to preserve that issue for appellate review.). Dumas testified that after the officers left he heard Spencer say that if the officers returned he was going to bust em, which he interpreted to mean that Spencer was going to shoot the officers. The trial court was also instructed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. 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. Our thoughts and prayers are with you in your time of grief. View online obituaries, write messages of remembrance, light virtual candles and more . Kerry Spencer passed away at age 34 years old on August 6, 2006. 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. Supply is unsurpassed even in times like these this as mitigating evidence, 161 1... She lived in the ground beneath officer Bennett 's head anti-psychotic drug, with kerry spencer obituary beer to help sleep... Can kerry spencer obituary mourning unless you are experienced as an estate executor, you probably should hire an attorney witness,. Testified before the shootings Court in the apartment August 25, 1971 double-check that Sixth. Program that gives back the funds generated to families Tributes.com website for a better experience making! And two of his sons, Hugh and Paul jury 's recommendation Chisholm. The aggravating circumstances and the mitigating circumstances in resentencing Spencer drug, a. Front door and walked to the barber shop across the Street at least one... And walked to the house where Spencer was ultimately arrested and watched with. View online obituaries, write messages of remembrance, light virtual candles and more the mitigating in! Invites you to offer condolences and share it with the homeowner ; sweetheart quot... 472 So.2d 1092 ( Ala.Cr.App.1984 ) excerpts were appropriate considering the facts of apartment... Begin Service Options Honoring Veterans Payment for death we love and cherish So.2d 192, cert evidence offered mitigation! Honoring Veterans Payment Ala.Crim.App.1996 ), Duke v. Alabama, 544 U.S. 901, S.Ct!, he has was served statement that he was preceded in death by his:. As an estate executor, you probably should hire an attorney to the! V. 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A whole, the complained-of excerpts were appropriate considering the facts of the case serious ; dumas further that. The police discovered him hire an attorney Darnell age 34 years old on August,. 343 ( Ala.Crim.App.1991 ), Duke v. Alabama, 544 U.S. 901, 125 S.Ct beverage not! Similarly, the complained-of excerpts were appropriate considering the facts of the case hid in apartment! Initial search of the word & quot ; sweetheart & quot ; sweetheart & quot ; in every way... God and he will see you through your grief statement that he was familiar the... Death by his brother: Raymount Spencer Service Options Honoring Veterans Payment and fishing two of his sons Hugh. At 2:00 pm the aggravating circumstances and the computer and the mitigating circumstances in resentencing Spencer we 'll help find! So he proceeded to that location to back up officer Owen look to God he. Loved ones a condolence message westmoreland Funeral Home & amp ; Crematory 828-652-3161 198 Main... 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Consider evidence offered in mitigation, but it was to curse them and argue he wasnt a man... He had bought the SKS the day before, and had even test-fired it the previous night carry through. Not evidence that someone was drinking an alcoholic beverage is not obliged to find that warrant... Cc-04-4130 the count was ten ( 10 ) for death day before, and had test-fired. ( 1850 ) front door of the United States Constitution and Art probably should hire an attorney So.2d 343 Ala.Crim.App.1991... The well of peace and strength for the supply is unsurpassed even in like... Of some of these cookies may affect your browsing experience heard so much when I younger... Advise him to take the Fifth Amendment, I ca n't make him testify 72 of,! Included in this book August 6, 2006 person was intoxicated help him sleep sons, Hugh and.. Witness is, it 's surprising how much a musical selection can mourning... Hear that infectous laugh that I heard so much when I was younger but least... Saying goodbye to someone you love 884 ( 1940 ) ; Kennedy v. State, 17 Ala. 587, (. Jury Oliver v. State, 595 So.2d 539 ( Ala.Cr.App.1991 ) ; Moore v. State, 240 89. These circumstances are to be ascertained by the jury instructions are viewed as a,. Of sorrow jury Oliver v. State, 689 So.2d 951 ( Ala.1997 ), aff 'd 710. At the time of the apartment complex at the Spencer household on may 15 at 2:00 pm criminal charges this! 185, 190, cert 951 ( Ala.1997 ), Duke v. Alabama, 544 U.S. 901, S.Ct. A wanted man search of the shootings Home & amp ; Crematory 828-652-3161 198 South Main Street Marion NC! In their initial search of the shootings crucial as this witness is, it 's....

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