[Defense counsel]: I can't speak for what-he's afraid of what may happen to him if he testifies. The radio he was using kept giving him a busy signal as he frantically tried to call for help. Spencer stated that he did not intentionally kill any of the officers and that he fired because he believed he would be killed if he did not. Olive Evelyn Decima Spencer. Spencer next challenges the trial court's use of the State's requested jury instructions number eight and number nine. In order to determine whether the evidence is sufficient to necessitate an instruction and to allow the jury to consider the defense, we must view the testimony most favorably to the defendant. Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991).''. Finally, Spencer argues that the jury-verdict-override sentencing scheme of Alabama's capital-murder statute is unconstitutional for a number of reasons. Officer Collins testified that when he arrived, he saw Officer Owen standing at the screen door of an apartment speaking with a black male, so he got out of his vehicle and began to approach the apartment.2 According to Officer Collins, the man was belligerent, yelling Fuck the police. (R. So do you really think once he talks to his lawyer that he is not going to invoke his Fifth Amendment privilege, especially in light of the fact he's told you he wouldn't come and has been apparently uncooperative? Ill never forget that, Collins said. 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.. On September 9, 2005, the trial court held the final sentencing hearing. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. I give up. View Terry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. In Act No. Finally, the trial court considered as a mitigating circumstance the jury's punishment recommendation. 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. 1638.) and Fuck you. 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. 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.. In case no. www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . He graduated from. Rather, the evidence was properly admitted for other reasons, including, but not limited to, evidence of his intent and motive. Terry "Cot" Spencer, 65, of Carlisle, SC passed away on Wednesday morning, July 27, 2022 in Ellen Sagar Nursing Home. Will he testify? It had been continued over. Blanton identified Spencer in court as the suspect taken into custody. It was Dr. Simmons' opinion that the first shot to Officer Bennett struck his torso severing his spine which would have made it impossible for him to move, and that as he lay dying, the defendant shot Officer Bennett point blank in the face, the bullet passing through his brain. Jimmy O'Neal Spencer. Star Tribune reviews all guest book entries to ensure appropriate content. Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). 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. The penalty phase of the trial was conducted before the jury. The best poems for funerals, memorial services., and cards. Published by Dallas Morning News on Aug. 10, 2006. Take comfort in knowing that now you have a special guardian angel to watch over you. Spencer later would testify that they sold drugs out of the apartment, making up to $3,000 a day. Share FacebookTwitterLinkedinEmail address Listen Follow Report this obituary Over the years I have thought of Kerry and our times together while playing football, and I will always remember his smile and his laugh. 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. Although [Spencer] offered an apology for his actions, it is in direct contradiction with the undisputed facts of the case nor his statement to police after his arrest, or his testimony before the jury in the penalty phase. Harris v. State, 2 So.3d at 911. It was Doctor Simmons' opinion that the first shot to Officer Bennett struck his torso severing his spine which would have made it impossible for him to move and, as he lay dying, [Spencer] shot Officer Bennett point blank in the face, the bullet passing through his brain. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. 912.) Our trusted partners offer additional helpful tools: At Legacy.com, you can find obituaries from any high school in your local community, you can make a charitable donation in a loved ones memory, and you can plant memorial trees in a loved ones name. 13A-5-47(d), Ala.Code 1975. Further, the witness in McTerry actually appeared at the courthouse for trial in response to the subpoena issued by the State, and there were no reasons present in the record to indicate that he would not return to testify. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother Brian. BASCHAB, P.J., and SHAW, WISE, and WELCH, JJ., concur. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). 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. My prayers go out to you and your family in your time of bereavement. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. denied, 526 U.S. 1052, 119 S.Ct. Spencer then said he had his AK and that the officers came into the apartment with their guns for no reason spraying Mace, so he shot everyone who was pointing a gun at him. Westmoreland Funeral & Cremation Services 828-668 3161 The following morning, defense counsel informed the trial court that Cooper was again not present. In reversing the trial court's decision, this Court stated: The object of the constitutional guarantee of compulsory process is that the court will exercise its power to compel attendance of witnesses. 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. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. 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. 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. Send simple, comforting meals with Home Chef. That was the first time I saw him. He has three attempted-murder charges against him that are pending. 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. 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. If you know of an upcoming event for Kerry Donald Spencer, please add one. And so instead of having a coordinated movement, like when I pick up this paper clip or whatever, you have just random contractions, seizures if you would. You say he is crucial. However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. 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. 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). Similarly, in Lemley v. State, 599 So.2d 64 (Ala.Crim.App.1992), this Court stated: If there is any evidence to show a hostile demonstration that can be reasonably considered as having placed the accused in apparent imminent danger of his life, the issue of self-defense is for the jury. Here is Kerry Donald Spencer's obituary. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. ), cert. 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. On October 5, 2005, Spencer filed a motion for a new trial. He drove there to help and encountered Nathaniel Woods for the first time. Funeral arrangement under the care ofHarvey-Engelhardt Funeral & Cremation Services. It is solely for the jury to determine whether the inference that accused was in actual or apparent immediate peril is reasonable. Write your message of sympathy today. 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. Spencer stated that they were going to wait until the police shift changed at 3:00 p.m., and then slip out of the apartment at that time to avoid encountering the officers that day. Receive obituaries from the city or cities of your choice. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. Other times people just die and they don't have any seizures at all. 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. Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. He testified that Officer Chisolm made threatening statements to him that put him in fear for his life and made him believe the police would be back and that he would be a dead man by [Officer Chisolm]. (R. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. Thats when it hit me I should be dead, he said in 2005. A merely honest belief, unless a reasonable one, that the killing was necessary, will not make it justifiable. 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. Spencer testified that he hid in the attic and that he did not resist when the police discovered him. [Dr. Simmons]: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain cells and the spinal cord. SPENCER, Neil McConnell:On January 13, 2015, at the Waikari Hospital peacefully. 710.) 1647.) Photos Add a photo 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). 983, 984 (1918). 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. 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. He took the assault rifle with him. Cook v. State, 46 Ala.App. Just look to God and he will see you through your time of sorrow. 5. 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. This comes out of the Code of Alabama 1975, 13A-3-28. Anthony Stanley . In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court., 735 So.2d at 1269 (emphasis added). Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him. 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. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. Sgt. As to whether the second legally recognized provocation (whether Spencer was assaulted or faced with an imminent assault on himself) is applicable under the facts of this case, we have reviewed the evidence and answer that question in negative. 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. God is with you during this your time of sorrow. The God we serve in Mobile, Alabama is the same one that sits high and looks low in Dallas, Texas. Allen was born on September 6, 1959 in Red Deer, Alberta, where he grew and thrived surrounded by a family that he . Ex parte McWhorter, 781 So.2d 330, 342 (Ala.2000). Dumas stated that more officers were at the back door. View . 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. In light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to again remand for the trial court to clarify its sentencing order on this point. So he was going to do it because of the family. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. Her son, Samuel Spencer, is 13 now, but was just a 1-year-old when. 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. Kerry Spencer shared an old photo of her son. 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. See People v. Coney, 98 P.3d 930 (Colo.Ct.App.2004) (holding that evidence of other offenses or acts that are part and parcel of the charged offense is admissible as res cestae and may be admitted without a limiting instruction); State v. Long, 173 N.J. 138, 171, 801 A.2d 221, 242 (2002) (evidence of the defendant's actions served to paint a complete picture of the relevant criminal transaction and therefore was admissible, and a limiting instruction was unnecessary because the evidence was admitted under the res gestae exception); and Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993) (holding the evidence of the extraneous offenses showed the context in which the criminal act occurred, i.e., the res gestae, and was therefore admissible and not subject to the requirement of a limiting instruction). Spencer testified that Nate went to the front door and engaged in a discussion with an officer. (R. 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. The rule of self-defense is that persons may and must act on the reasonable appearance of things. Obviously he's afraid of the police. No. THE COURT: First of all, the officers are there on a lawful arrest warrant. chloe johnson peter buck wedding; le mal en elle fin du film This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable. He was such a warm and welcoming man. Alabama Death Row Inmate List - U. Alabama Death Row Inmate List - V. Kim Vanpelt. The circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance. 2325, 141 L.Ed.2d 699 (1998). 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