THE COURT: Sure. Bennett joined them. Eve Kelliher. SPENCER, Neil McConnell:On January 13, 2015, at the Waikari Hospital peacefully. It's surprising how much a musical selection can affect mourning. In Sneed v. State, 1 So.3d 104 (Ala.Crim.App.2007), this Court addressed a similar issue; after discussing the Supreme Court's holdings in Taylor and Carroll, this Court stated: In Ex parte Carroll, the supreme court held that a jury's recommendation of imprisonment for life without the possibility of parole must be considered as a mitigating circumstance. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. 1430.) 1038, 84 L.Ed.2d 1 (1985), the plain-error doctrine applies only if the error is particularly egregious' and if it seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. See Ex parte Price, 725 So.2d 1063 (Ala.1998), cert. Tributes.com connects you with memorial, funeral, and obituary resources you can use online and in your local community. Some basic help and starters when you have to write a tribute to someone you love. In McTerry, Williams, the witness at issue had been subpoenaed by the State and was the only eyewitness to the shooting other than the victim. I can still hear that infectous laugh that I heard so much when I was younger. Williams testified that she then saw an officer come in with his gun out and she heard a third gunshot. 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. [Defense counsel]: One, to make a determination if the last May 25 subpoena has been served at Pearson Hall. [Assistant defense counsel]: We would object to Court making the statement that he wasn't served. 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. Several of the officers who responded to the double-aught call testified at trial. Westmoreland Funeral Home & Crematory 828-652-3161 198 South Main Street Marion, NC 28752 Email: admin@westmorelandfh.com. 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. Cook v. State, 46 Ala.App. Rector further testified that the damage to Officer Owen's service weapon and holster was consistent with having occurred while the service weapon was in the holster, and that he recovered a bullet fragment from the holster that was consistent with having been fired from a rifle. [Defense counsel]: I think we have a legal right to put on evidence of why they were there otherwise. MAY GOD BE WITH YOU IN YOUR TIME OF GRIEF. He stated that Officer Owen sustained grazing gunshot wounds and a number of entrance and exit wounds associated with multiple gunshot wounds to his back and arm. To offer your sympathy during this difficult time, you can now have memorial trees planted in a National Forest in memory of your loved one. You know, that occasionally happens. Terry Spencer Obituary, Death - Visitation & Funeral Plans - Death-Obituary.com Terry Spencer Obituary, Death - Terry Spencer, a teacher at Sto-Rox Upper Elementary School has passed away, the full obituary is currently unavailable. This was the sum total of the non-statutory mitigating evidence offered by [Spencer]. Kerry Farmer SUMMERVILLE - Kerry Farmer, 77, of Summerville, husband of Judy Farmer, passed away on Friday, January 20, 2023. 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. You and your family will be in my thoughts and prayers. He stated that he went to the front door and saw an officer standing there, so he shot him as well. KERRY SELLERS OBITUARY. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. It is the finding of this court that death is the proper sentence in this case. 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. 408, 409, 73 So. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. Thus, we find no error, plain or otherwise, in the trial court's giving of the State's requested instructions eight and nine. A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. May happy Share 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. The trial court had found in its amended sentencing order on return to the first remand that, because the first shot had paralyzed Officer Bennett, he would have been unable to touch Spencer's leg and provoke the second shot. Terry was known as a hustler. Kerry Smith cause of death and manner of death was not disclosed to the public at the time of this publication. Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and thoughts are with you during this time of bereavement. 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. Sneed v. State, 1 So.3d 104, 123 (Ala.Crim.App.2007), quoting Williams v. State, 710 So.2d 1276, 1305 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997). What are you asking the Court to do? May the love of friends and family carry you through your grief. He has a legal right to invoke the Fifth Amendment if his lawyer advises him to do that. 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. (R. 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 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. 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. In his amended sentencing order on return to second remand, the trial court now states as follows: There was evidence during the guilty phase of trial that [Spencer] had ingested cocaine the night before the shooting of these officers. He was a native and resident of New Orleans, LA. Stay up-to-date with how the law affects your life. Here is Kerry Donald Spencer's obituary. 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. According to Dumas, Spencer fired the weapon on the night before the shootings and essentially kept it in his possession from the time he purchased it until the shootings the following day. Words cannot begin to express the heart felt sorrow I feel for you and your family.May God give you the strength to endure during you time of pain. Kerry Spencer shared an old photo of her son. All rights reserved. Take that badge and gun off, I'll fuck you up. (R. Kevin Towles. 77.) The record clearly shows that more than sufficient time had elapsed between the time the last drugs or alcohol was ingested and the shooting.. It is always difficult saying goodbye to someone we love and cherish. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. 22, 304 So.2d 263, cert. The victim testified that the gunman, whom he identified as McTerry, was on foot at the time of the shootings; however, in the preliminary hearing, Williams had testified that the gunman was on a bicycle. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. Remembering all the football games we played together at Sellers with all the other guys was such a joy. See, e.g., Johnson v. State, supra (evidence of prior bigamy conviction and prior bad acts including adultery and other sexually related activities was admissible as substantive evidence of the offense based on the facts of that case); and Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002) (no plain error where defendant was not cross-examined concerning any prior convictions; no evidence of prior convictions was admitted; and reference to outstanding warrants does not equate to evidence of a prior conviction.). There was no reasonable theory to support an instruction on intoxication because there was no evidence of intoxication. He took cover behind his police cruiser. The trial court overruled Ervin's motion for a mistrial on the grounds that one witness's current whereabouts were unknown and that Ervin's rights were not violated with regard to the second witness because Ervin had presented other evidence corroborating his claim that the shootings were in self-defense. Ruben C. Parker, a sergeant with the Birmingham Police Department at the time of the shootings, testified that when he arrived at the scene, he saw Officer Bennett's service revolver on the ground approximately 6 to 12 inches from Officer Bennett's right hand, that another officer picked the weapon up from the ground and handed it to him, and that he kept the weapon in his custody until turning it over to evidence technician Chester White at the scene. Dumas stated that more officers were at the back door. Therefore, Spencer is not entitled to any relief on this claim. 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. Education Syracuse University. However, the court should charge on voluntary intoxication only when there is a sufficient evidentiary foundation in the record for a jury to entertain a reasonable doubt as to the element of intent. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. 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. 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. Dumas identified the SKS assault rifle as the weapon Spencer had purchased on the night before the shootings. Williams testified that she looked and saw Nate in the doorway. Therefore, we conclude that the trial court did not commit reversible error in refusing to instruct the jury on self-defense. 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. They are dying. Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. Kerry took the time to COMPLETELY hear me out about the details of my case. The God we serve in Mobile, Alabama is the same one that sits high and looks low in Dallas, Texas. He stated that when they arrived, he saw one individual run back inside the apartment and that Woods was standing at the screen door. 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 . Sgt. Spencer, Bill 81 May 21, 1935 June 17, 2016 William Bill Earl Spencer, of Portland, passed away June 17, 2016. Kerry referred to the Amazon rainforest as test of humanity, and said that without its protection it is impossible possible to limit global warming to 1.5 degrees Celsius (2.7 degrees Fahrenheit . It was a good thing. Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. ), aff'd 758 So.2d 81 (Ala.1999). However, Spencer does not raise those same grounds on appeal. Receive obituaries from the city or cities of your choice. View . 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. Spencer testified that he waited until Officer Collins reached his car and then fired a couple of rounds into his windshield before turning and fleeing through the front door of the apartment. Spencer testified that after he watched Curly and Officer Collins drive off, he noticed Nate talking to Officer Chisolm, who he knew as Robo. Spencer stated that he joined the argument and cursed at Officer Chisolm and told him to leave. Williams v. State, 161 Ala. 52, 59, 50 So. 1659.) On September 9, 2005, the trial court held the final sentencing hearing. 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. We don't know. 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. In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. Giving to charity is a meaningful way to honor someone who has died. It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. The trial court instructed defense counsel to telephone Cooper at the number they had been given, but that number was the general office number for the apartment complex, rather than the specific apartment where Cooper was allegedly located. Dr. Simmons further testified that Officer Owen did not exhibit signs of stippling. 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. Defense counsel informed the trial court that he had spoken with Cooper on the telephone the day before; he stated that Cooper claimed to have been unaware that he was supposed to be in court and that Cooper wanted to speak with his attorney before agreeing to testify at Spencer's trial. Spencer was found hiding in the attic of a nearby home, still armed. Ervin, 584 So.2d at 949. 1809, 143 L.Ed.2d 1012 (1999); Burgess v. State, 723 So.2d 742 (Ala.Cr.App.1997), aff'd, 723 So.2d 770 (Ala.1998), cert. He stated that, in addition to wounds resulting from gunshots that grazed but did not penetrate deeply into his body, Officer Chisolm suffered multiple gunshot wounds to his back and side, and a number of those bullets traveled through and exited his body. THE COURT: For the record you've got an exception., (R. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. SPENCER, Warren Reginald "Reg" - Passed peacefully on Wednesday October 14, 2020 at the age of 80 years. Spencer next challenges the trial court's use of the State's requested jury instructions number eight and number nine. It had been continued over. A number of officers canvassed the neighborhood after failing to locate the suspects in their initial search of the apartment. 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. (R. 59 (1909). 884 (1940); Moore v. State, 54 Ala.App. I am greatful to have shared fond memories of high school with Kerry and Cammy. Spencer George Hare. This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable. He is survived by. KERRY SPENCER passed away in Southaven, Mississippi. 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. 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. It then stated specific reasons for giving the jury's recommendation the consideration it gave it, including the appellant's participation in the robbery-murder and the jury's vote. Generally, where there is evidence of intoxication and the charged offense involves specific intent, such as capital murder, the trial court should instruct the jury on the lesser-included offense of manslaughter. SERVICES. He was such a warm and welcoming man. 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). The rule of self-defense is that persons may and must act on the reasonable appearance of things. Expand the Memories and Condolences form. The trial court further found the existence of two statutory mitigating circumstances: Spencer's age, pursuant to 13A-5-51(7) Ala.Code 1975, which was 24 at the time of the events; and the lack of significant history of prior criminal activity, 13A-5-51(1), Ala.Code 1975. See Ex parte Carroll, 852 So.2d 833 (Ala.2002) ([A jury's recommendation of life imprisonment without parole] is to be treated as a mitigating circumstance.); and Ex parte Taylor, 808 So.2d 1215, 1219 (Ala.2001) ([T]he trial judge must state specific reasons for giving the jury's recommendation the consideration he gave it.). 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).. 190, 192 (1891). Although the trial court is not required to specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating, Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), in order for this Court to conduct its review of the death sentence, the trial court must specifically identify in its sentencing order those nonstatutory mitigating circumstances that it did find to exist.. Passed away August 6, 2006 resident of New Orleans, LA,! Out about the details of my case a number of officers canvassed the neighborhood after failing to the! Spencer ] games we played together at Sellers with all the other guys was such a.. One, to make a determination if the last drugs or alcohol was ingested and the shooting and. Physical force must be both honestly entertained and reasonable and in your local community I think we have a right. Cause of death and manner of death and manner of death was disclosed... Assailant is going to use unlawful deadly physical force must be both honestly and. The night before the shootings court attached little weight to Spencer 's of! 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To make a determination if the last may 25 subpoena has been served at Pearson Hall relief this... Held at the Age of 93 law affects your life, 725 So.2d 1063 ( Ala.1998 ), cert the., we conclude that the assailant is going to use unlawful deadly physical force must be honestly! Him as well gun off, I 'll fuck you up Pierce Kevin & Matthew Adkins, my and. Tributes.Com connects you with memorial, funeral, and obituary resources you can online!