denied, 510 U.S. 905, 114 S.Ct. Thus, evidence that the defendant ingested alcohol or drugs, standing alone, does not warrant a charge on intoxication. And so you have this random discharge. God is with you during this your time of sorrow. Spencer did not claim to be intoxicated at the time of the shootings. Echovita offers a solidarity program that gives back the funds generated to families. KERRY SELLERS OBITUARY. In Ervin, the missing witnesses were not subpoenaed because the circuit clerk's office failed to perform its affirmative duty; there is no such failure by the circuit clerk's office here. 1638.) How long do you want me to sit around and wait on him-on some futile effort to try to get him here? Sat, 25 Feb, 2023 - 02:00. 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. The trial court also placed great weight on the aggravating circumstance contained in 13A-5-49(7), Ala.Code 1975, that the capital offense was committed to disrupt or hinder the lawful exercise of a government function. Spencer stated that he went to the window and that Nate and he were both cursing at Curly, telling him to leave; according to Spencer, after he said a few curse words to Curly, Curly told him, Yeah, there's enough body bags for you too. (R. Williams testified that she then saw an officer come in with his gun out and she heard a third gunshot. We send our deepest sympathies to you and your family. In Ex parte Johnson, however, the Alabama Supreme Court, in distinguishing the facts in Johnson from the facts in Snyder and Minor, stated: It is contradictory and inconsistent to allow, on the one hand, evidence of Johnson's prior bigamy conviction and prior bad acts as substantive evidence of the offense with which she was charged, yet, on the other hand, to require a limiting instruction instructing the jury that it cannot consider the evidence as substantive evidence that Johnson committed the charged offense. 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. The radio he was using kept giving him a busy signal as he frantically tried to call for help. Prayers from Mobile, Alabama have been sent to you'll for strength, during these difficult times. 22, 304 So.2d 263, cert. 77.) Whether the accused was in imminent peril at the time he shot the victim is a question of fact for the jury. SPENCER, Warren Reginald "Reg" - Passed peacefully on Wednesday October 14, 2020 at the age of 80 years. This court previously pretermitted a plain-error review of Spencer's sentencing proceeding, pending the trial court's return to our remand order. It is a basic tenet of Alabama law that a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, and the [trial] court's failure to give those instructions is reversible error. ' Ex parte McGriff, 908 So.2d 1024, 1035 (Ala.2004), quoting Winner Int'l Corp. v. Common Sense, Inc., 863 So.2d 1088, 1091 (Ala.2003), quoting in turn other cases. When asked whether he had taken any narcotics on the morning of the shootings, Spencer stated: Yes, I did. For the reasons expressed here, in our February 27, 2009, opinion, and in our April 4, 2008 opinion, we affirm Spencer's convictions and sentences. 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. Always - Sharetha LaJoyce Ivory*** PIG - I love you all. AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING. The average age of a Spencer family member is 71. [Section] 13A-6-3(a)(2) is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense. Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985). 740, 743, cert. The circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance. On July 6, 1958 in Oklahoma City, Ok. a baby boy was born to Odell Williams and Maxine (Major) Williams. www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . The trial court's consideration of the jury's verdict as a mitigating circumstance and his decision to accord it moderate weight for the reasons stated was proper, as determined by this Court in the opinion issued on return to our original remand order. 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. And now that Kerry is gone, the only thing I can say is this: At least 2 of the most handsome men are united "together" in Heaven. 371, 372, 77 So. Rather, the trial court adequately protected Spencer's rights, including granting Spencer an overnight continuance to the following morning, and then conducting a thorough discussion on the record as to the status of the defense's efforts to locate the witness, the expected testimony of the witness, and the likelihood of the witness taking the stand if located. On cross-examination, the following exchange occurred: [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? Alabama Death Row Inmate List - T. Jarrod Taylor. 2428, 153 L.Ed.2d 556 (2002), next argues that his sentence of death is unconstitutional. Spencer was found hiding in the attic of a nearby home, still armed. Later, with a photo of Woods and a copy of the warrant in hand, they set out to arrest Woods. Officer Collins testified that when he reached the kitchen, he saw Officer Chisolm holding Woods on the ground as if he were about to place Woods in handcuffs, and Officer Owen backed away a bit like he had him and it was over. (R. 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).. Mon Feb 27 2023 - 05:00. 1672.) Washington stated that someone inside the apartment and some of the officers engaged in a conversation at the back door of the apartment, that Officer Owen said that they had a warrant, and that he heard someone inside the apartment tell the officers they could not come in without a warrant; he further testified that another officer came from the front to the back door and snatched the door open without saying anything about having a warrant, and the officers then proceeded inside. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. KERRY SPENCER OBITUARY Kerry D. Spencer, 65, passed away Oct. 7, 2021, in Fort Myers, Fla. According to Spencer, he was cautious as he left the front of the apartment because he did not know if any officers were waiting for him; that he had the SKS in his hand pointed down at the ground; that as he was standing next to where Officer Bennett was lying on the ground, the officer's hand jumped and touched [him] and he fired the SKS assault rifle in an automatic reflex. (R. 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. 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. Spencer concedes that much of the evidence was admitted without objection; that the defense also introduced evidence and argument regarding his possession of a firearm and that sales of illegal drugs took place at the apartment; and that much of the evidence was admissible at trial. He graduated from. Westmoreland Funeral & Cremation Services 828-668 3161 The trial court was directed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. 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. May your hearts soon be filled with wonderful memories of joyful times together as you celebrate a life well-lived. THE COURT: Well, let's talk about that. The undisputed evidence indicated that the officers were at the residence to execute an outstanding arrest warrant on Woods; that Woods refused to comply with the officers' demands to come outside and instead turned and fled into the apartment; and that the officers pursued Woods into the apartment. Grief researchers say holding that missing funeral service, even a year or more later, can still help us heal. 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. It is well settled that the Sixth Amendment of the United States Constitution and Art. Dumas stated that more officers were at the back door. 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 am so happy I had him in my life. Kerry was a 2010. 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. He was preceded in death by his parents, Odell and Maxine Williams, two half sisters LaDell Williams and Lenora Tipton. We have also reviewed the propriety of the sentence of death as required by 13A-5-53(a), Ala.Code 1975. 418, 139 L.Ed.2d 320 (1997). Hodges v. State, 856 So.2d 875, 893 (Ala.Crim.App.2001), aff'd 856 So.2d 936 (Ala.2003). Terry Spencer's passing on Thursday, December 22, 2022 has been publicly announced by Midland Cremation Society in Joplin, MO. A trial judge may properly refuse to charge the jury on self-defense where he determines that the defendant could not set up self-defense under the facts. Consford v. State, 15 Ala.App. I wasnt going to stand there and argue. Spencer stated that Curly put his badge back on his uniform and that Curly and Officer Collins drove away in their vehicles. He stated that he looked at the doorway of the apartment and saw a man standing just outside the apartment and firing a gun in his direction. Another witness testified that she heard Spencer and Woods remark that they was gonna get the officers if they returned. See Bush v. State, 695 So.2d 70 (Ala.Crim.App.1995), aff'd 695 So.2d 138 (Ala.), cert. Here, however, Spencer did not bring Cooper's absence to the trial court's attention until shortly before the close of the defense's case. ', Collins moved toward the apartment, but Butler blocked him. Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984); Tarver v. State, 137 Ala. 29, 34 So. 727.) A self-defense instruction should be given when any evidence is given showing the defendant's subjective belief that the use of force was necessary. Perkins, at 1115-16, quoting People v. Lockett, 82 Ill.2d 546, 45 Ill.Dec. 161, 13 So.2d 776, cert. My thoughts and prayers are with you in this time of deep sorrow. The evidence from trial showed that the defendant ran out the back door of the apartment as he fired at Officer Collins as he took cover behind his patrol car. 99-403, Ala. Acts 1999, the Alabama Legislature amended 13A-5-49, Ala.Code 1975, to include, among other things, 13A-5-49(9), which provides as a statutory aggravating circumstance that [t]he defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct. In Ex parte Stephens, 982 So.2d 1148 (Ala.2006), the Alabama Supreme Court indicated that an instruction that a guilty verdict on the capital offense set out in 13A-5-40(a)(10) (two or more persons) established the existence of that statutory aggravating circumstance when the offense was committed on or after the September 1, 1999, effective date of the legislative amendment to the statute. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] --- So.3d ----, ---- (Ala.Crim.App.2008). We also use third-party cookies that help us analyze and understand how you use this website. 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. While on patrol, Collins heard Owen talking on the police radio about a complaint on 18th Street in Ensley. A 1991 graduate of Tarrant High School. Giving to charity is a meaningful way to honor someone who has died. 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. [I]n the absence of all evidence having a tendency to show that at the time of the killing the accused was in imminent peril of life, or grievous bodily harm, or of the existence of circumstances creating in his mind a reasonable belief of such peril, these instructions were abstract. King, 71 Ala. at 4-5. Doyle served in the Iowa National Guard. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Here, the murders were committed years after the effective date of 13A-5-49(9). (Emphasis added.) What are you going to advise him to do?, [Assistant defense counsel]: We would object to the Court-. Why would it be relevant? The family will receive friends Thursday evening at the funeral home from 6:00 to 8:00pm. I'm not going to issue an attachment for him because he's not served. She was described as a real doll. Calvin Stallworth. Darryl Turner. 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. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. In most cases, the issue of self-defense is one of ultimate facts solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. We've tried to track his lawyer down this morning and see if they might be able to help us. Westmoreland Funeral Home & Crematory 828-652-3161 198 South Main Street Marion, NC 28752 Email: admin@westmorelandfh.com. In case no. On remand, the trial court should reweigh the aggravating and mitigating circumstances and resentence Spencer. Here, however, the circuit court listed Spencer's own testimony and then expressly stated that that testimony was the sum total of the non-statutory mitigating evidence offered by the defendant. (Emphasis added.) When Collins looked again, he was gone. See 13A-5-53(a), Ala.Code 1975.1. 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 Collins and Owen went to the back door; Chisholm and Bennett covered the front. Evidence that someone was drinking an alcoholic beverage is not evidence that that person was intoxicated. The law requires that a belief of imminent peril and urgent necessity to slay in self-defense, though it may be based on appearances, must be both well-founded and honestly entertained. Our thoughts and prayers are with you in your time of grief. 13A-5-52 and 13A-5-47(d), Ala.Code 1975. 1638.). See Brownfield v. State, supra, and the cases cited therein, with regard to the impact of Ring on Alabama's capital-murder statute and sentencing scheme. The trial court had given the jury such an instruction. 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. [Defense counsel]: I think we need to make an attempt to see if he is there and see if he is going to come. 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. Spencer testified that he hid in the attic and that he did not resist when the police discovered him. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother. 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. THE COURT: It doesn't matter what they are there for earlier. Write your message of sympathy today. THE COURT: So even if you got him served and got him here, I would still have to have his lawyer here because the first thing I'm going to have to advise him of is his constitutional rights because apparently he's the same Bubba that's been referred to in these proceedings we've been trying this week as the supplier for the drugs that Mr. Spencer and Mr. Woods were dealing out of that apartment. Here is Kerry Donald Spencer's obituary. 1659.) 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. Officer Fred Alexander arrived in the front of the apartment and radioed that there was an officer down in the front of the apartment and then made an additional radio transmission, indicating that two more officers were down inside the apartment. In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Id. The trial court thoroughly instructed the jury, among other things, on the elements of each charge and on the State's burden of proof. If you know of an upcoming event for Kerry Donald Spencer, please add one. However, as a young boy I can remember Kerry with fondness. Spencer v. State, [Ms. CR-04-2570, April 4, 2008] --- So.3d ---- (Ala.Crim.App.2008). You know, I had a little bit of [cocaine] powder left over from the night before. Funeral Home Services for KERRY are being provided by Twin Oaks Memorial Gardens & Funeral Home. Nathaniel Wood was executed in 2020. I will keep you in my prayers. . Question of fact for the jury ( c ) ( 1 ), aff 'd 695 70. 198 South Main Street Marion, NC 28752 Email: admin @.. 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