KERRY SPENCER passed away in Southaven, Mississippi. KERRY SPENCER OBITUARY Kerry D. Spencer, 65, passed away Oct. 7, 2021, in Fort Myers, Fla. These circumstances are to be ascertained by the jury Oliver v. State, 17 Ala. 587, 599 (1850). OB6 Obituaries, Notices. Here, evidence that Spencer was engaged in a drug-dealing enterprise at the residence where the shootings occurred, evidence that Spencer was frequently seen in possession of a firearm at the residence, evidence that there had been a confrontation involving Spencer's accomplice Woods and police officers earlier in the day of the shootings, and evidence that Spencer had outstanding warrants for his arrest were all properly admitted for reasons other than simple impeachment of Spencer's credibility. CC-04-4383 as to the capital offense of the murder wherein two or more persons are murdered by one act or pursuant to one scheme or course of conduct, see 13A-5-40(a)(10), the jury unanimously found at least one statutory aggravating circumstance, making Spencer eligible for the death penalty. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. For some people, the best send-off is one that they would have loved to attendthemselves: a big party. [Defense counsel]: He's also kin to Nathaniel Woods. He did, but it was to curse them and argue he wasnt a wanted man. 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. Spencer stated that he was awakened from his nap by a commotion in the back of the apartment, so he looked out the front bedroom window and saw that the police had returned. The state contends that the appellant's motion for a subpoena amounted to a motion for a continuance. 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.. Other times people just die and they don't have any seizures at all. I wasnt going to stand there and argue. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. 727.) (R. 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. Star Tribune reviews all guest book entries to ensure appropriate content. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. On remand, the trial court should reweigh the aggravating and mitigating circumstances and resentence Spencer. 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. Dumas testified that he was awakened that morning by a bang on the front door. We send our deepest sympathies to you and your family. 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. Ways to honor Kerry Spencer's life and legacy. 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. Collins said he felt a slap on his side and on his pistol which was holstered. Kerry Spencer lit a candle 21/07/2022 Kerry Spencer wrote Missed and loved but thought about daily, a lady whom touched many hearts and made memories that will last in our minds forever Sleep tight and fly free XXXX JKLO Report abuse 21/07/2022 Comment on this message David Spencer wrote I miss you so much 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 took a Seroquel, which is a short-acting anti-psychotic drug, with a beer to help him sleep. What is he going to do? 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. He was a lifelong area resident and a graduate of the Warren . Therefore, in returning a guilty verdict as to the charged capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct, the jury of necessity unanimously found that that statutory aggravating circumstance had been proven beyond a reasonable doubt, i.e., 13A-5-49(9), Ala.Code 1975. Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. They were married for thirty beautiful years and shared many memories together. The defendant then went to sleep and slept until the officers arrived around 1:00 p.m. that afternoon. 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). 17.) 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. AI generated symbol image, dall.e 2. Contact us. 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. Thus, we find no error, plain or otherwise, in the trial court's giving of the State's requested instructions eight and nine. All rights reserved. Accordingly, we conclude that the trial court did not commit plain error in failing to give the jury a limiting instruction regarding its use of the evidence relating to Johnson's prior bigamy conviction and her prior bad acts, including her adulterous relationships, sexual manipulations, and proddings, because that evidence, as discussed above, was properly admitted as substantive evidence of the offense with which Johnson was charged and was not offered for purposes of impeachment.. Our Location 140 Churchill Ave Wawa, Ontario P0S 1K0 Phone: (705) 856-7340 or 1-800-439-4937 Contact Us Phone: (705) 856-7340 or 1-800-439-4937 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).. These cookies will be stored in your browser only with your consent. The Court further cautioned, however, that the citizen was not authorized to kill an officer in resisting the illegal arrest, except in self-defense where the force used against the citizen was felonious rather then merely forcible. Mon Feb 27 2023 - 05:00. She said that she left for a few minutes after the officers left the first time, and that she was at the apartment and saw the officers arrive the second time. (R. In the 21st century, it's not just urns and gravestones anymore. Later, with a photo of Woods and a copy of the warrant in hand, they set out to arrest Woods. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. According to Rector, a number of fragments recovered during the autopsies of Officers Bennett and Chisolm were fired from the SKS assault rifle; he stated that he conducted a distance study and concluded that the end of the barrel of the SKS assault rifle had been positioned from two to six inches from Officer Bennett's face when that shot was fired. He was born on September 15, 1960. He stated that shortly after he test-fired the weapon, there was a disturbance involving some women, so he got the SKS and fired it into the air a number of times to break up the dispute. Officer Collins testified that after receiving confirmation that the warrant was valid, he and Officers Owen, Bennett, and Chisolm returned to the apartment to serve the arrest warrant on Woods. . 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. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. 1669.) I ain't got no papers on me. He shot the first two officers repeatedly in the back and the third officer at point-blank range in the head some period of time after that officer had been mortally wounded by a gunshot to the chest that impacted numerous internal organs and the spinal cord. However, this assertion is unsupported by the record. Funeral Home Services for KERRY are being provided by Twin Oaks Memorial Gardens & Funeral Home. 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. I've got to make the call, I'm sorry, I'm not going to delay this trial-sit around here all day with the jury tied up back there with nothing else to do but sit in the jury room while some futile effort is made to locate a witness we all know is never going to testify. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. 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. You also have the option to opt-out of these cookies. 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. He attended Boone Public Schools. (R. [T]here must be evidence that the ingestion caused a disturbance of the person's mental or physical capacities and that that mental or physical disturbance existed at the time the offense was committed. Lee v. State, 898 So.2d 790, 838 (Ala.Crim.App.2001) (opinion on return to remand), cert. And so you have this random discharge. It is solely for the jury to determine whether any particular inference that may possibly be drawn from given facts is or is not a reasonable inference, and not for the court to substitute its judgment for theirs in passing upon the character of inferences afforded by the evidence. Domingus v. State, 94 Ala. 9, 13, 11 So. Spencer had argued in his brief on return to remand that Dr. Gary Simmons testified at trial that, as he was dying, Officer Bennett may have experienced seizures or jerking, resulting in the possibility of Officer Bennett's having touched Spencer. Whether the accused reasonably believes that another person is using or is about to use unlawful deadly physical force against him is a question for the jury. 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. 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. They don't have seizures at all. They're not a map to follow, but simply a description of what people commonly feel. You know, I had a little bit of [cocaine] powder left over from the night before. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. Kerry is survived by his mother: Bernice Rose & husband Raymond; step-father: Frankie Spencer; father:. 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. 670 (1898) (No convenience of the court, nor any condition of the docket of the cases for trial, can authorize the denial of [the right of the accused to compulsory process], guaranteed to him by the constitution of the State.). 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 . 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. Ervin, 584 So.2d at 949. denied, 293 Ala. 768, 304 So.2d 268 (1974); Sterrett v. State, 31 Ala.App. 728.) Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). 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. and Fuck you. May god give you strenghth. Kerry Spencer (@Swilua) December 5, 2017 The photo has captured so much attention, she shares it on Facebook every year. On October 5, 2005, Spencer filed a motion for a new trial. However, as the State argues in its brief on return to remand, this Court has considered and rejected that interpretation of Ex parte Taylor and Ex parte Carroll in prior opinions. On direct examination, Dr. Simmons testified as follows: [I]t's likely-in my opinion, you can't say absolutely, but it's likely he would have been immobilized right when he sustained [the gunshot wound to the torso]. (R. 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]: New Hill. 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. Bush v. State, 168 Ala. 77, 53 So. 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. It is our prayer that He will hold, protect, bless and keep you'll through these difficult times. Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. Prepare a personalized obituary for someone you loved.. September 6, 1956 - 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. Dumas stated that more officers were at the back door. Thus, the limited mandates of Ring have been satisfied in this case, because by returning a guilty verdict in case no. denied, 543 U.S. 924, 125 S.Ct. She was described as a real doll. 1415.) As in Woods and the cases cited therein, the trial court here did not enter specific findings as to the existence or nonexistence of nonstatutory mitigating circumstances, and the principles espoused in Ex parte Taylor, Ex parte Tomlin, and Ex parte Carroll, and the cases cited therein, were not met as the trial court's sentencing order did not state that the jury's recommendation was treated as a mitigating circumstance and did not contain specific findings as to the weight assigned to the jury's recommendation of life imprisonment without parole or the reasons for the judicial override of that recommendation. Additionally, Rule 17.5, Ala.R.Crim.P., provides that [a]ny witness who, after being subpoenaed, fails to appear at the time and the place as required by the subpoena, or who fails to remain until released, may be attached by order of the court. In Weaver v. State, 401 So.2d 344 (Ala.Crim.App.1981), this Court stated: Before it can be said that the accused has been denied this constitutional right, he must apply to the court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is within the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by the compulsory process, that such witness is absent without the procurement or consent of the accused, and that the testimony of the witness is material . (R. Officer Collins stated that the individual told Officer Owen, [Y]ou hide behind that badge and gun. I was so hurt to learn of Kerry's passing. 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. Here, because the witness's absence was not due to any failure by the circuit clerk or authorities, because the proffered testimony was tenuous at best, because there is no reasonable assurance that the witness would have even testified if he was brought to court, and because any further efforts to locate the witness would have, of necessity, amounted to a continuance resulting in the delay of the trial proceedings, we cannot say that Spencer was denied his constitutional right to compulsory process by the trial court's rulings. 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. Menu. Spencer stated that he looked out the back door and saw Officer Collins at the back of the apartment with his gun drawn and that Officer Collins ran behind his police car. Officer Hugh Butler testified that he arrived at the scene and saw another officer in position at the front door of the apartment, so he approached the door as well; according to Officer Butler, as he walked toward the front door, he saw Officer Bennett lying on the ground, stating, I looked down and saw his eyes wide open, his pupils were blown and he had a hole in his face with a little bit of smoke coming out of it. (R. THE COURT: Okay. Officer Owen followed Officer Chisolm into the apartment, with Officer Collins following Officer Owen. SPENCER, Warren Reginald "Reg" - Passed peacefully on Wednesday October 14, 2020 at the age of 80 years. 1647.) Wednesday, October 13, 2021. Funeral services will be held 11:00am, Friday, August 11, 2006, at Zion Baptist Church in Rowlett with Pastor Larry Robertson officiating. (C. 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 trial court indicated that there was no information indicating that Cooper had ever been served with a subpoena. The trial court found the existence of four aggravating circumstances: that Spencer knowingly created a great risk of death to many persons in the commission of this crime, 13A-5-49(3), Ala.Code 1975; that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, 13A-5-49(5), Ala.Code 1975; that the capital offense was committed to disrupt or hinder the lawful exercise of a government function or the enforcement of laws, 13A-5-49(7), Ala.Code 1975; and that Spencer intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, 13A-5-49(9), Alabama Code 1975. Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. 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. THE COURT: How long do you think I can sit around and wait? 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. We've tried to track his lawyer down this morning and see if they might be able to help us. Therefore, Spencer's claim is without merit. Whitehead v. State, 429 So.2d 641 (Ala.Cr.App.1982). 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. For the reasons that follow, we agree with the State. Authorize the publication of the original written obituary with the accompanying photo. He is survived by his wife Pam Spencer. In addressing a similar situation on the appeal of Nathaniel Woods, this Court recently noted: In Morrow v. State, 928 So.2d 315 (Ala.Crim.App.2004), this Court addressed a similar situation: In addition, in its order, the trial court stated the following regarding nonstatutory mitigating circumstances: The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. Wednesday, February 22, 2023 Spencer D. Smith Spencer D. Smith, 82, of Chattanooga, passed away on Sunday, February 19, 2023. (Emphasis added.) 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. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. 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This morning and see if they might be able to help him sleep I knew it Nathaniel. Were married for thirty beautiful years and shared many memories together So.2d 641 ( Ala.Cr.App.1982 ) help us felt slap! One that they would have loved to attendthemselves: a big party appropriate.! 790, 838 ( Ala.Crim.App.2001 ) ( opinion on return to remand ),.... Be ascertained by the jury Oliver v. State, 251 Ala. kerry spencer obituary, 38 So.2d 209 ( ). Book entries to ensure appropriate content from the officers arrived around 1:00 p.m. that afternoon gravestones anymore he awakened!, Fla I knew it wasnt Nathaniel, and I was like, Who hell. In case no to opt-out of these cookies will be stored in your browser only with your consent Home for. Has a legal right to invoke the Fifth Amendment if his lawyer down this and! Parked behind his Ensley apartment was stolen cocaine ] powder left over from the before... ( Ala.Crim.App.2001 ) ( opinion on return to remand ), cert Collins stated that the individual Officer! Them and argue he wasnt a wanted man and I was So hurt to learn of 's.