Spencer testified that Nate went to the front door and engaged in a discussion with an officer. Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. A trial court's oral charge to the jury must be construed as a whole, and must be given a reasonable-not a strained-construction. Harry was born May 1927 in Staten Island New York, to parents Margaret and Henry Spencer. Our staff does not correct grammar or spelling. She stated that she next saw the officers take Nate down inside the kitchen and that she got up and went into the bathroom. That subpoena was returned unserved on May 23, 2005, because Cooper had not been located. If the lawyer is going to advise him to take the Fifth Amendment, I can't make him testify. Eve Kelliher. Alabama Death Row Inmate List - U. Alabama Death Row Inmate List - V. Kim Vanpelt. My tears are with yours, and so are my prayers. Sgt. Expand the Memories and Condolences form. 733.) 1088-89.). 1658-59.) 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). 1647.) 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. 1. Just look to God and he will see you through your time of sorrow. [Defense counsel]: I can't speak for what-he's afraid of what may happen to him if he testifies. 703, 34 L.Ed.2d 669 (1972). Thus, it is permissible for a trial court to discuss some or even none of the nonstatutory mitigating evidence offered by a defendant and its reasons for concluding that that evidence was not mitigating. 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. It was a good thing. denied, 293 Ala. 768, 304 So.2d 268 (1974); Sterrett v. State, 31 Ala.App. The rule of self-defense is that persons may and must act on the reasonable appearance of things. 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. Photos Add a photo 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. 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.. 2450, 124 L.Ed.2d 666 (1993); and Ex parte Slaton, 680 So.2d 909, 924 (1996) ( While Lockett and its progeny require consideration of all evidence submitted as mitigation, whether the evidence is actually found to be mitigating is in the discretion of the sentencing authority. ) (quoting Bankhead v. State, 585 So.2d 97, 108 (Ala.Crim.App.1989), cert. We again pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand. An independent weighing of the aggravating and mitigating circumstances indicates that death is the proper sentence. 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). 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. Sgt. 1638.). When Collins looked again, he was gone. Bill is survived by his wife, Sherry Spencer; children, Scott Spencer of Yachats, Holly Spencer of Oregon City and Craig Spencer of West Linn; stepchildren, Lisa Peterson of West Linn, Nels Peterson of Baton Rouge . A spent bullet was found a few inches in the ground beneath Officer Bennett's head. 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. However, [t]he reasonableness of an apprehension of death or great bodily injury is a question of fact for the jury. F. Wharton, The Law of Homicide, 287 at 462 (3d ed.1907). 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. ), cert. 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. On September 9, 2005, the trial court held the final sentencing hearing. 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. It is well settled that the Sixth Amendment of the United States Constitution and Art. 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. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. According to Dumas, Woods went to the front door and began arguing with police officers at the door. www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . Kerry was a 2010. The following exchange then occurred: [Defense counsel]: Secondly, if not served, we would ask the Court to issue instanter subpoena since we know where he's at and he's a critical witness in this capital murder case. Obituaries. No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.. But opting out of some of these cookies may affect your browsing experience. Perry Lee Spencer, 71, of Pittsfield, PA, passed away at the Millcreek Community Hospital in Erie, PA on Tuesday, January 4, 2022, following a recent illness. If youre in charge of handling the affairs for a recently deceased loved one, this guide offers a helpful checklist. 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. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. Sgt. 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. Please accept Echovita's sincere condolences. Flawless Execution. Williams stated that she went out the front door and walked to the barber shop across the street. The God we serve in Mobile, Alabama is the same one that sits high and looks low in Dallas, Texas. 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? 22, 304 So.2d 263, cert. Other times people just die and they don't have any seizures at all. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. According to Buchanan, she confirmed for the Birmingham Police Department's dispatcher that Fairfield had an outstanding arrest warrant for Nathaniel Woods. According to Dumas, at some point he heard Spencer yelling at the officers as well, and he heard an officer say that the officers would be back. (R. Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother. Spencer stated that although they sold approximately $3,000 in drugs from the residence on a daily basis, they had never had problems with the police. You know, most folks would have called his lawyer and said, Look, I want to subpoena him. 1689.) An accused is entitled to have the jury consider the issue of his intoxication where the evidence of intoxication is conflicting, Owen v. State, 611 So.2d 1126, 1128 (Ala.Crim.App.1992); Crosslin v. State, 446 So.2d 675, 682 (Ala.Crim.App.1983), where the defendant denies the commission of the crime, Coon v. State, 494 So.2d at 187; see Moran v. State, 34 Ala.App. 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. 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. Copyright 2023 Echovita Inc. All rights reserved. David Kessler's top 4 tips for dealing with holiday grief. make a charitable donation in a loved ones memory, plant memorial trees in a loved ones name. In case no. See also Pilley v. State, 930 So.2d 550 (Ala.Crim.App.2005) (noting that the fact that Pilley had murdered two or more people by one act or pursuant to one scheme or course of conduct did not constitute a statutorily designated aggravating circumstance in Pilley's case because the murders were committed before the effective date of 13A-5-49(9)). On September 23, 2005, the trial court overrode the jury's recommendations and instead sentenced Spencer to death for the capital-murder convictions (CC-04-4129, CC-04-4130, CC-04-4131, and CC-04-4833); the trial court sentenced Spencer to life imprisonment for the attempted-murder conviction in case no. 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. Echovita offers a solidarity program that gives back the funds generated to families. Lavender testified that the radio dispatch tape indicated that at 1:24:34 p.m. an unidentified officer at the scene stated, They're going out the front (R. 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. denied, 508 U.S. 953, 113 S.Ct. Born on January 22, 1928, in Wichita Falls, Texas, to A.A. (Bill) and Hester Ann (Bainey) (ne Roberts) Spencer, Jerry and his parents moved to Yazoo City, Mississippi, where he attended high school. On October 20, 2005, the trial court held a hearing on Spencer's motion for a new trial and denied that motion and Spencer's motion for reconsideration of his sentences and amended motion for reconsideration of his sentences that day. McTerry, 680 So.2d at 955. See, e.g. In discussing nonstatutory mitigating circumstances, the trial court's amended sentencing order states: The defense called [Spencer] to the stand to testify in the penalty phase before the jury. Trending Information and advice to help you cope with the death of someone important to you. Previous Next Kerry Carpenter (L) -- OF 13. According to Spencer, he dozed off for some time and Nate likely went outside and messed with his radio for awhile. (R. Thus, unlike the situation in McTerry, where the missing witness might have reasonably been located without causing any delay in trial, here, Cooper was to be Spencer's final witness, and the State indicated that it had no rebuttal witnesses based on the testimony previously presented; thus, any efforts in locating Cooper would have delayed the trial proceedings. 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. Southfield, MI, 48033-2584. Kerry Spencer shared an old photo of her son. Always stand on the solid rock, Jesus! 1965, 95 L.Ed.2d 537 (1987).. My prayers go out to you and your family in your time of bereavement. Owen told Collins to check Woods name in the criminal database from his patrol car. 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. 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. June 17, 2004, started out as an unremarkable day for Birmingham Police Sgt. The Health and Information and Quality Authority (HIQA) began an unannounced two-day inspection at the hospital yesterday. It is not an honest, but a reasonable belief, that justifies. Fuck you. (R. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. 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). 1619.) 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger). We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. 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. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. 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. ', Collins moved toward the apartment, but Butler blocked him. Officer Owen removed his badge and a female neighbor standing nearby called Officer Owen by his nickname, Curly, at which time Officer Owen put his badge back on, put his arm around the female and then the two officers walked back toward their automobiles. Geraldine Smith Obituary. Ex parte McWhorter, 781 So.2d 330, 342 (Ala.2000). 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. 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. 913.) He got in trouble in April of 2004 regarding attempted murder charges. 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. 706.) Kerry Spencer Castle, 59, of Travelers Rest, passed away on Tuesday, June 09, 2020, riding his favorite Ducati. We'll help you find the right words to comfort your family member or loved one during this difficult time. Additionally, the initial arguments were between Woods and officers; Spencer willingly joined in the verbal jousting, and again continued his verbal sparring with a second officer even though the first officer had, according to Spencer, made threatening comments. The trial court thoroughly instructed the jury, among other things, on the elements of each charge and on the State's burden of proof. 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. 1691.) 285, 126 L.Ed.2d 235 (1993).. BRASILIA, Brazil (AP) The U.S. special climate envoy John Kerry was holding his second day of meetings Tuesday with Brazilian government officials, executives and lawmakers to discuss . According to Spencer, sometime between 6:00 a.m. and 8:00 a.m. on the morning of the shootings, he was awakened by someone kicking on the front door; he stated that the sound was different than when customers knocked on the door and that their business was always conducted at the back door, so he immediately knew it was not related to his drug business. I don't know what else to tell you. In determining this question evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question of fact for the jury., Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). Spencer stated that Nate told him at that time that he had been sprayed with Mace, and Spencer noticed a big knot on Nate's forehead. THE COURT: It doesn't matter what they are there for earlier. On October 5, 2005, Spencer filed a motion for a new trial. 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. I give up. Clearly, the facts in this case differ from those in the authority on which Spencer relies, i.e., Ervin and McTerry. Sgt. 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).. 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. He stated that Curly was always harassing them. The trial court has clarified its findings in this regard, stating: In addition, Dr. Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment, was shot multiple times. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. CC-04-4131, Spencer was convicted of intentionally causing the death of Charles R. Bennett by shooting him with a firearm while Bennett was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. Copyright 2023, Thomson Reuters. Our deepest condolences are with you as you grieve. 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. Kerry Spencer (@Swilua) December 5, 2017 The photo has captured so much attention, she shares it on Facebook every year. There is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. 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Birmingham Police Department 's dispatcher that Fairfield had an outstanding arrest warrant for Nathaniel Woods Kerry... Pay them a last tribute the aggravating and mitigating circumstances indicates that death is the same that. So.2D 1161, 1198 ( Ala.Crim.App.2003 ) you ABIDE with God, he will see you through time. Williams stated that she went out the front door and began arguing with Police officers at the.. The Spencer household on May 23, 2005, the facts in this case differ from those the... Plain-Error review of Spencer 's death sentence pending the trial court 's return to.... Repeat visits time and Nate likely went outside and messed with his radio for awhile God he! The death of someone important to you 893 ( Ala.Crim.App.2001 ), cert, 2004, started out an.