June 3, 2022 He loved beaches, roller coasters, cars, music, art and fishing. Does [Cooper] have pending criminal charges at this time? KERRY SPENCER passed away in Southaven, Mississippi. She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. In accordance with Rule 45A, Ala.R.App.P., we have searched the record, with respect to Spencer's capital-murder convictions, for any error that may have adversely affected Spencer's substantial rights and have found no plain error or defect in the guilt-phase proceedings of the trial. Information and advice to help you cope with the death of someone important to you. THE COURT: Don't you think he might need a lawyer if they indict him and he gets up and testifies in regard to his criminal activity involved in that apartment out there and these two defendants? Therefore, Spencer is not entitled to any relief on this claim. It is solely for the jury to determine whether the inference that accused was in actual or apparent immediate peril is reasonable. We also use third-party cookies that help us analyze and understand how you use this website. See also Brownfield v. State, supra (jury conviction of the capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct satisfied the requirement that an aggravating circumstance be found by the jury and the verdict itself rendered the defendant eligible for the death penalty, exposing him to a range of punishment that included the death penalty); and Yeomans v. State, 898 So.2d 878 (Ala.Crim.App.2004) (same). Spencer's testimony regarding the close-range gunshot to Officer Bennett's head was that he was standing next to where Officer Bennett was lying on the ground, that Officer Bennett's hand jumped and touched [him] and that he fired the SKS assault rifle in an automatic reflex. (R. 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. King v. State, 71 Ala. 1, 4 (1881). According to Spencer, he heard something behind him, so he turned, saw someone he later stated he believed to be Officer Chisolm with his gun, and automatically opened fire. (R. 1681) He stated that he turned to the front door and saw another officer, so he shot him as well. AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. These cookies do not store any personal information. The foregoing opinion was prepared by Retired Appellate Judge H.W. Terry "Cot" Spencer, 65, of Carlisle, SC passed away on Wednesday morning, July 27, 2022 in Ellen Sagar Nursing Home. The obituary was featured in The. Washington testified that a minute or two later he heard gunfire from inside the apartment and that he remained hidden under the automobile until the gunfire subsided, at which time he fled on foot. It was-he pulled his gun up and I already had the weapon in my hand, so I opened fire. (R. Officer Collins testified that he heard additional gunfire as he was taking cover behind his automobile and that bullets were striking his vehicle. Jimmy O'Neal Spencer. 627, 634, 74 So. As this Court explained in King v. State, 478 So.2d 318 (Ala.Crim.App.1985): The general rule is that every 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. Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). Raper v. State, 584 So.2d 544 (Ala.Cr.App.1991). Markesha Williams testified that she had been at the apartment the night before the shootings and both times the officers came to the apartment on the day of the shootings. White Plains, New York, United States Over the course of two summers, supporting office activities at a music summer camp. Wednesday, October 13, 2021. Kerry is survived by his mother: Bernice Rose & husband Raymond; step-father: Frankie Spencer; father:. Further, Alabama's judicial override statute, codified at 13A-5-47(e), Ala.Code 1975, provides: In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or Section 13A-5-46(g). 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. Will he testify? It is the finding of this court that death is the proper sentence in this case. This court previously pretermitted a plain-error review of Spencer's sentencing proceeding, pending the trial court's return to our remand order. 663, 665, 248 So.2d 158, 160 (1971). 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. 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. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). See also People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 966-67, 462 N.E.2d 143, 143-44 (App.1984) ([a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis). 2428, 153 L.Ed.2d 556 (2002), next argues that his sentence of death is unconstitutional. 1682.) The first thing I said to him was, It was only a misdemeanor. Having reviewed the applicable legal authority, the arguments of the parties, and the record before this Court, we cannot say that reversible error occurred as to this claim. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. 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. While on patrol, Collins heard Owen talking on the police radio about a complaint on 18th Street in Ensley. Lawyers for Nathaniel Woods, 42, have maintained his innocence, pointing out that another defendant in the case, Kerry Spencer, confessed that he was the sole gunman in the 2004 slayings.. In case no. 740, 743, cert. Echovita offers a solidarity program that gives back the funds generated to families. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights. He was only 31 years old. 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. Similarly, the witness in McTerry was an eyewitness to the shooting. 408, 409, 73 So. 733.) 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). He was born March 25, 1934, in Morgan County, to Richard Luther "Dink . 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. Kerry took the time to COMPLETELY hear me out about the details of my case. Doyle Cox, age 84 of Boone and the Westhaven Community, passed away on Wednesday, February 22, 2023 at the Westhaven Community. Funeral: 12 Feb 2019, Cheltenham. He is survived by his wife Pam Spencer. 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.. View . Here, the evidence Spencer contends required a limiting instruction was not evidence of prior convictions; further, the evidence was not offered to impeach Spencer's credibility. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. You can send your sympathy in the guestbook provided and share it with the family. 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). 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. Required fields are marked *. Write your message of sympathy today. 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). 408, 73 So. However, in our first opinion remanding this case, this Court had noted that there was evidence at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings, and that the State had requested a jury instruction as to the level of intoxication required to negate specific intent to kill. Kerry Spencer shared an old photo of her son. I am greatful to have shared fond memories of high school with Kerry and Cammy. You can send your sympathy in the guestbook provided and share it with the family. 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. No. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother. Dumas stated that Belser was the doorman and that he was the assistant doorman in that they answered the back door for people who came to the house to buy drugs; they would take the money from the individual and turn it over to Woods or Spencer; Woods or Spencer would then hand them the drugs; and they would in turn hand the drugs to the customer. He got in trouble in April of 2004 regarding attempted murder charges. Thus, the plain-error doctrine applies. Receive obituaries from the city or cities of your choice. Calvin Stallworth. Because there was no rational basis for an instruction on voluntary intoxication, we find no plain error in the trial court's failure to instruct the jury on voluntary intoxication or reckless manslaughter as a lesser-included offense. 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).. There is no photo or video of Kerry Spencer Shoemaker.Be the first to share a memory to pay tribute. Other jurisdictions that have considered this issue have concluded that a limiting instruction is not required when evidence of other crimes or prior bad acts is properly admitted as part of the res gestae of the crime with which the defendant is charged. 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.. 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. ), aff'd 500 So.2d 1064 (Ala.1986), cert. 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. Outside the hearing of the jury, defense counsel informed the trial court that the witness had not been subpoenaed because the witness had told defense counsel on three or four occasions he didn't need a subpoena. (R. Our deepest condolences are with you as you grieve. Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him. [Assistant defense counsel]: He's got a lawyer in his attempted-murder case. Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and thoughts are with you during this time of bereavement. 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. He further testified that although fragments recovered during the autopsy of Officer Owen exhibited characteristics similar to those fired from the SKS assault rifle, he could not conclusively state that those fragments were from the SKS assault rifle. 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. Spencer further testified that Curly initially said he'd be back with the narcotics unit, but then said, Nah, I'll be back when I get off work. (R. It was a split second decision. 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. The evidence also indicates that Spencer made statements following the earlier encounters with the officers that if the officers returned he would bust em (R. 913), and that they was gonna get the officers if they returned. Copyright 2023 Echovita Inc. All rights reserved. Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. 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. 698 So.2d at 205. Defense counsel requested that the trial court issue an attachment to have Cooper picked up and brought to court. Ervin, 584 So.2d at 949. Stating in his amended sentencing order on return to second remand that [i]f we are to have law and order in a civilized society, then officers like these, who were gunned down while trying to perform a government function or enforce the law must mean something. The trial court further noted that Spencer showed no remorse in his statement to the police following the murders or in his testimony; rather, the trial court felt that Spencer seemed to indicate that he was justified in killing these officers. . No. This Court continued, stating: We note that the court's duty to issue subpoenas on an accused's behalf does not require the court to grant a motion for a continuance or a motion for an attachment. In his amended sentencing order on return to our first remand, the trial court found that this mitigating circumstance was not present; it determined that Spencer presented no evidence to support this mitigating circumstance. To plant trees in memory, please visit the. 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. According to Officer Collins, none of the officers had their weapons drawn when they entered the apartment, and he did not see any of the officers draw their weapons while he was inside the apartment. Woods and Kerry Spencer were convicted of capital murder and sentenced to death in the slayings of the three Birmingham officers that rocked Alabama's largest city that year. It was a good thing. Thereafter they upped the price from a thousand dollars a week to fifteen hundred dollars a week. 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. According to Officer Collins, Officer Chisolm came to the back of the apartment and, while he was showing Woods the printout and photograph, told him that the arrest warrant from Fairfield was for assault, at which time Woods again cursed the officers and then turned and ran back inside the apartment. 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. Obituaries week of March 1; . 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. 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. He took cover behind his police cruiser. 285, 126 L.Ed.2d 235 (1993).. The best poems for funerals, memorial services., and cards. Wednesday, February 22, 2023 Spencer D. Smith Spencer D. Smith, 82, of Chattanooga, passed away on Sunday, February 19, 2023. Remembering all the football games we played together at Sellers with all the other guys was such a joy. 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.. It is apparent that neither the first (accused witnesses his spouse committing adultery) nor the third (accused witnesses an assault on a family member or close relative) legally recognized provocation is applicable in this case. Echovita Inc is a registered trademark. Other times people just die. After searching some of the houses, his team was informed that the other search party had encountered one of the suspects, so his team went to that residence to assist. 1965, 95 L.Ed.2d 537 (1987).. An honest may not be a reasonable belief; it may be the offspring of fear, alarm or cowardice, or it may be the result of carelessness, and irrational. [Defense counsel]: He's also kin to Nathaniel Woods. 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,. Always stand on the solid rock, Jesus! It wasn't like I had time to say, Oh, you fixing to shoot me. 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. Jerry was born on March 12, 1946 to Gertrude. According to Dumas, when he began walking back to the apartment, he saw a large number of police officers, so he continued walking to a different location. Finally, in an interview with the police after his arrest, Spencer stated that he was high at the time of his arrest. 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.'. CC-04-4130, Spencer was convicted of intentionally causing the death of Harley A. Chisolm III, by shooting him with a firearm while Chisolm was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. Trending The average age of a Spencer family member is 71. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 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. denied, 524 U.S. 929, 118 S.Ct. 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. Pilley v. State, 930 So.2d 550, 561-62 (Ala.Crim.App.2005). 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. So I issue an instanter subpoena, what are we going to do? Over 100 people are waiting on a trolley today at University Hospital Limerick for the second time this week. The state contends that the appellant's motion for a subpoena amounted to a motion for a continuance. The appellant, Kerry Spencer, was convicted of four counts of capital murder for his involvement in the shootings of four Birmingham police officers. Darryl Turner. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. Williams v. State, 161 Ala. 52, 59, 50 So. The trial court indicated that there was no information indicating that Cooper had ever been served with a subpoena. Unfortunately, I cannot make it to the service. While it is not required that where a person is menaced he must wait until a weapon is presented ready for deadly execution, yet the danger must be real or so manifestly apparent as to create a reasonable belief of presently impending peril to life or limb. The Health and Information and Quality Authority (HIQA) began an unannounced two-day inspection at the hospital yesterday. The record clearly shows that more than sufficient time had elapsed between the time the last drugs or alcohol was ingested and the shooting.. He stated that he could have easily killed Officer Collins but did not perceive that officer to be a threat, so he instead allowed him to take cover behind his vehicle and then fired the shots in his direction to facilitate his escape. denied, 543 U.S. 924, 125 S.Ct. Alcohol was ingested and the shooting guestbook provided and share it with the death of someone important to you Quality... Make it to the shooting together at Sellers with all the other guys such. Took the time the last drugs or alcohol was ingested and the shooting May 15 at 2:00 pm age of... 71 Ala. 1, 4 ( 1881 ) father Jack Spencer, kerry Scott age of... Member is 71 1946 to Gertrude in trouble in April of 2004 regarding murder. ( Ala.Crim.App.2005 ) wasnt Nathaniel, and I already had the weapon in my hand so. Raymond ; step-father: Frankie Spencer ; father: understand how you use this website as well he him! 89, 91, 196 so with you as you grieve Spencer an! 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