Kerry Todd Hawkins Crane Hill. Mr. Sanders died Tuesday, February 21, 2023 at his residence. Spencer bases his argument, however, in large part on the Alabama Supreme Court's holding in Ex parte Minor, 780 So.2d 796 (Ala.2000), which he characterizes as a case in which that Court came close to establishing a per se claim of reversible error when a trial court did not give, sua sponte, a limiting instruction concerning the proper use of bad acts evidence introduced in a capital murder trial. (Spencer's brief at p. Kerry Spencer had taught her kids to baby sign before they could speak so they could communicate while they were infants. The Alabama Legislature has defined intoxication to include a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. 13A-3-2(c)(1), Ala.Code 1975. Calhoun v. State, 932 So.2d 923, 975 (Ala.Crim.App.2005), cert. We've tried to track his lawyer down this morning and see if they might be able to help us. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. Burns v. State, 229 Ala. 68, 70, 155 So. 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. This appeal, which is automatic when a defendant has been sentenced to death, followed. McTerry, 680 So.2d at 955. A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case. Mike Collins and fellow West Precinct officers Carlos Curly Owen, Harley Chisolm III and Charles Robert Bennett. I think there has been testimony in court he was the drug supplier of this particular apartment complex of my client. 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. He was paying them a thousand dollars a week. Kerry Spencer shared an old photo of her son. The law requires that the circumstances should be such as to create a reasonable belief of impending necessity. My deepest sympathy goes out to you and your family. 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. That in and of itself ties the rest of our case together, what we submit to the Court is part of the self-defense and the reason why they were there during the times and the reason they were making the statements they were to him. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had been fired from close range. He went to the back door and saw an officer at a police car, so he fired additional shots and then fled through the front door. He said he was stunned and that he radioed a shots fired call and considered his options. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. Scott v. State, 34 Ala.App. 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.'. Remembering all the football games we played together at Sellers with all the other guys was such a joy. 1638.) We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. They found an SKS assault rifle outside the front door of the apartment, and a number of guns inside in plain view. 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.. 706.) The evidence adduced at trial indicated the following: On July 17, 2004, Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, of the Birmingham Police Department, were shot and killed, and a fourth officer, Officer Michael Collins, also of the Birmingham Police Department, was shot but survived. The Court has carefully considered all of the evidence presented during all stages of the trial in this cause, as well as the Court's observation and evidence admitted during all proceedings, pretrial and posttrial with regard to this case and the Court finds that mitigating circumstances exist with regard to this case.. 401 So.2d at 349, quoting Thomas v. State, 15 Ala.App. 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. 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. CC-04-4383, Spencer was convicted of intentionally causing the death of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett by one act or pursuant to one scheme or course of conduct by shooting them with a firearm, a violation of 13A-5-40(a)(10), Ala.Code 1975. These circumstances are to be ascertained by the jury Oliver v. State, 17 Ala. 587, 599 (1850). On September 9, 2005, the trial court held the final sentencing hearing. Williams reported to court on the day of trial but was excused by the State shortly before the trial commenced because, according to the prosecutor, his testimony was neutral in that he could not identify the gunman. OBITUARY Kerry Spears, Jr. closed the final chapter of his earthly life on Tuesday, August 30, 2022, at the age of 31. It is to be noted that reasonableness is determined by a standard-a reasonable person under like circumstances-and the determination is made by the jury. Perkins, at 1117. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. Write your message of sympathy today. Spencer was born on July 23, 1991 to parents Eric and Diane Brown. Evidence technicians and a crime-scene investigator photographed and diagramed the scene and collected evidence in the area. According to Spencer, he dropped the SKS assault rifle at that time and fled. According to Williams, Spencer jumped up, looked out the bedroom window and then came out of the bedroom and peeked around the corner to see what was taking place. She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. 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. It is mandatory to procure user consent prior to running these cookies on your website. It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. 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. 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. Both this Court and the Alabama Supreme Court have repeatedly denied the very claims now raised by Spencer on appeal. 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. Southfield, MI, 48033-2584. 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. These cookies will be stored in your browser only with your consent. 17.) A celebration of life will be held at the Spencer household on May 15 at 2:00 pm. 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. 1088.) In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. He stated that he then heard a radio transmission from Officer Bennett that [t]hey are coming out the front. (R. And secondly he's your last witness. However, as a young boy I can remember Kerry with fondness. Here is Kerry Donald Spencer's obituary. May the love of friends and family carry you through your grief. Spencer v. State, [Ms. CR-04-2570, February 27, 2009] --- So.3d ----, ---- (Ala.Crim.App.2008). SERVICES. 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. Flawless Execution. According to Dumas, Woods went to the front door and began arguing with police officers at the door. 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. Further, Spencer's actions contributed to the earlier confrontations with the officers; he made statements between the earlier encounter and the fatal encounter indicating that he would kill the officers if they returned. [Assistant defense counsel]: He indicated to us he was going to testify. Therefore, Spencer is not entitled to any relief on this claim. The radio he was using kept giving him a busy signal as he frantically tried to call for help. 983, 984 (1918). 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. 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. Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. 727.) A little boy creeped out while sitting on Santa's lap used baby sign language to tell his parents he was not feeling safe with Old Saint Nick. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. If you know of an upcoming event for Kerry Spencer Shoemaker, please add one. There is no photo or video of Kerry Spencer Shoemaker.Be the first to share a memory to pay tribute. 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. According to Spencer, Nate and he ran to the house where Spencer was ultimately arrested and watched television with the homeowner. The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. The trial court's amended sentencing order shall be submitted to this Court within 42 days of the date of this opinion. I didnt think there was much hope., He looked back at the apartment and saw a man, later identified as Kerry Spencer, standing just outside the apartment, firing a gun at him. The trial court had given the jury such an instruction. Education Syracuse University. My prayers go out to you and your family in your time of bereavement. Spencer was the shooter but he had not acted alone, police alleged. 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. 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. Legacy invites you to offer condolences and share memories of Terry. You know, that occasionally happens. The officers checked the apartment to ensure that no one else was present and then established a perimeter around the apartment to begin searching the area for the suspects and to preserve the scene for evidence technicians. According to Spencer, he went to the back door and saw a gun next to an officer on the ground so he picked the weapon up and put it in his pocket, because he did not know if the officer was dead and he did not want the officer to shoot him in the back. It is the finding of this court that death is the proper sentence in this case. Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). In case no. If he is going to testify, I need to know. THE COURT: Sure. Finally, Spencer argues that the jury-verdict-override sentencing scheme of Alabama's capital-murder statute is unconstitutional for a number of reasons. (R. 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. THE COURT: I understand that he may have done that. I, 6, Alabama Constitution of 1901, affords, in pertinent part, an accused the right to have compulsory process for obtaining witnesses in his favor. However, in Smith v. State, 698 So.2d 189 (Ala.Crim.App.1996), this Court stated: To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Washington stated that someone inside the apartment and some of the officers engaged in a conversation at the back door of the apartment, that Officer Owen said that they had a warrant, and that he heard someone inside the apartment tell the officers they could not come in without a warrant; he further testified that another officer came from the front to the back door and snatched the door open without saying anything about having a warrant, and the officers then proceeded inside. Therefore, we conclude that the trial court did not commit reversible error in refusing to instruct the jury on self-defense. On remand, the trial court should reweigh the aggravating and mitigating circumstances and resentence Spencer. The trial court refused to issue the subpoena. In Brownfield v. State, [Ms. CR-04-0743, April 27, 2007] --- So.3d ---- (Ala.Crim.App.2007), this Court noted that both this Court and the Alabama Supreme Court have repeatedly held that the United States Supreme Court in Ring did not invalidate Alabama's death-penalty statute. Harry was born May 1927 in Staten Island New York, to parents Margaret and Henry Spencer. 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. So he was going to do it because of the family. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). Before the issue of self-defense is submitted to the jury, the defendant has the burden of proving, among other things, that he reasonably believe[d], Alabama Code 1975, 13A-3-23, that his attacker was about to use unlawful deadly physical force, unless this fact arises out of the evidence produced against him to prove the homicide. Cosby v. State, 269 Ala. 501, 505, 114 So.2d 250, 253 (1959). The law is well-settled that a motion for a continuance, even when based on an absent witness, is addressed to the sound discretion of the trial court. In Ex parte Edwards, 452 So.2d 503 (Ala.1983), the Alabama Supreme Court held that a private citizen may resist an attempt by law enforcement to subject him to an illegal arrest so long as he does not cause serious injury to the officer. 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. He was preceded in death by grandparents Rollin and Lucille Sellers and Raymond Allison. A unique and lasting tribute for a loved one. 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). Dumas stated that he did not think Spencer was serious; Dumas further admitted that he had ingested narcotics the night before the shootings. Later, with a photo of Woods and a copy of the warrant in hand, they set out to arrest Woods. Spencer Brown, of Parker, Colorado, passed away unexpectedly at his home on January 15. It wasn't like I had time to say, Oh, you fixing to shoot me. According to court documents the three police officers were attempting to serve an arrest warrant on Nathaniel Woods when the two men opened fire killing Carlos Owen, Robert Bennett and Harley Chisholm. 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