And specifically that Tyran Cooper was a drug supplier. 1619.) Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. The trial court filed an amended sentencing order with this court, and on February 27, 2009, we again remanded this cause to the trial court with instructions that it amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and the judicial override of the jury's recommendation of life imprisonment without parole. Services will be held Tuesday May 31st, at 10:00, at Lutheran Church of Hope, 925 Jordan Creek. Spencer testified that he came out of the bedroom with the SKS assault rifle in his hands and encountered Nate coming toward him, holding his face as if he were in pain. 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. Legacy invites you to offer condolences and share memories of Terry. We pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand. 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. 1658.) 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. 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. Aoife Buckley and Eoin McEnery travelled in style on their big day in a vintage set of wheels. THE COURT: First of all, the officers are there on a lawful arrest warrant. 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.. 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. denied, 200 Ala. 23, 75 So. 828, 829 (1909). 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. A peace officer is justified in using that degree of physical force which he reasonably believes to be necessary, upon a person in order to: One, make an arrest for a misdemeanor, violation or violation of a criminal ordinance, or to prevent the escape from custody of a person arrested for a misdemeanor, violation or violation of a criminal ordinance, unless the peace officer knows the arrest is unauthorized. In case no. For some people, the best send-off is one that they would have loved to attendthemselves: a big party. This Court concluded that by failing to attempt to serve the first witness, the trial court could not determine that witness's whereabouts to be unknown or the witness to be outside of the court's subpoena power; moreover, this Court further noted that because the two witnesses were allegedly eyewitnesses to the actual shootings and could each allegedly provide testimony corroborating Ervin's self-defense claim, their testimony was not cumulative to other evidence because the jury could have found the missing witnesses to be more credible than the evidence presented at trial. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. In case no. Please accept Echovita's sincere condolences. We again pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand. Officer Collins testified that, as he and Officer Owen walked toward the back door, a man who was working on an automobile parked near the apartment got up and walked away, saying, I don't want no part of this. (R. Here, Spencer presented evidence indicating that he had ingested narcotics and alcohol the night before the shootings and the morning of the shootings. The trial court indicated that it found nonstatutory mitigating circumstances to exist, but it failed to identify which nonstatutory mitigating circumstances it found to exist. Officer Jody Jacobs of the Birmingham Police Department testified that he interviewed Spencer at the police station after Spencer was taken into custody. A massive, tense manhunt followed, and Spencer and Woods were arrested later that day. Share FacebookTwitterLinkedinEmail address Listen Follow Report this obituary Jacqueline Buchanan testified that she was a public safety dispatcher with the City of Fairfield. (R. 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. 102 people are at the hospital today with 44 in the emergency department and 58 are in wards elsewhere. We also use third-party cookies that help us analyze and understand how you use this website. 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. [Defense counsel]: Well, even if you're not trying to prove the truth of the matter of what they're saying that he sold drugs or something, it would be to rebut the testimony of the State where they said that the officers were there earlier to check on the switched [automobile license] tags. And secondly he's your last witness. 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. Moreover, [w]hen reviewing a trial court's jury instructions, we must view them as a whole, not in bits and pieces, and as a reasonable juror would have interpreted them. Spencer next challenges the trial court's use of the State's requested jury instructions number eight and number nine. Domingus v. State, 94 Ala. 9, 13, 11 So. 968.) Therefore, we conclude that the trial court did not commit reversible error in refusing to instruct the jury on self-defense. Authorize the publication of the original written obituary with the accompanying photo. Spencer stated that Curly put his badge back on his uniform and that Curly and Officer Collins drove away in their vehicles. 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. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. We can't even get in touch with his lawyer. 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. Our thoughts and prayers are with you in your time of sorrow. It is well settled that even where the defendant commits the killing due to a sudden heat of passion, an instruction on manslaughter is properly refused where there is no evidence that that sudden heat of passion was caused by a provocation recognized by law. Funeral: 2 Mar 2020, Narberth. KERRY SELLERS OBITUARY. 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. Spencer stated that Curly again approached the door and Nate commented that Curly was hiding behind his badge. Wednesday, February 22, 2023 Spencer D. Smith Spencer D. Smith, 82, of Chattanooga, passed away on Sunday, February 19, 2023. They called Chisholm to the back to bring the warrant and photo. Spencer did not claim to be intoxicated at the time of the shootings. [Assistant defense counsel]: Well, what I'm saying is through no fault of our own we are here on Sunday morning and the clerk's office is obviously closed and we do not have access to the clerk's office record to determine whether or not he was served. Section 13A-5-53(b)(2), Ala.Code 1975, requires this court to weigh the aggravating and mitigating circumstances independently to determine the propriety of the Spencer's sentence of death. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. 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. Thus, contrary to Spencer's assertion in his brief, the trial court did not fail in its obligation to make an attempt to protect Spencer's right to put on his defense. (Spencer's brief at p. 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. Donna & Shandrea Pierce Kevin & Matthew Adkins, My prayers and thoughts are with you during this time of bereavement. Cochran v. State, 500 So.2d 1161 (Ala.Crim.App.1984), aff'd in pertinent part, remanded on other part, 500 So.2d 1179 (Ala.1985), aff'd on return to remand, 500 So.2d 1188 (Ala.Cr.App. An independent weighing of the aggravating and mitigating circumstances indicates that death is the proper sentence. The trial court also placed great weight on the aggravating circumstance contained in 13A-5-49(7), Ala.Code 1975, that the capital offense was committed to disrupt or hinder the lawful exercise of a government function. 1687.) Further, it would have been well within the trial court's discretion to conclude that none of the evidence offered by the defense was mitigating. 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. 1190, 108 L.Ed.2d 316 (1990), for the proposition that an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. He told his colleagues at the Birmingham Police Department that Kerry Spencer and Nathaniel Woods, lifelong friends who had been dealing and using drugs at the pea green one-story house in the Ensley section of the city, were responsible for the killings. When Collins looked again, he was gone. Spencer also filed a motion for reconsideration of the sentences and an amended motion for reconsideration of the sentences. My prayers go out to you and your family in your time of bereavement. 161, 13 So.2d 776, cert. Olive Evelyn Decima Spencer. Williams v. State, 161 Ala. 52, 59, 50 So. (Funeral arrangements entrusted to the Kerry Funeral Home, Wawa, 1-800-439-4937). KERRY SPENCER OBITUARY Kerry D. Spencer, 65, passed away Oct. 7, 2021, in Fort Myers, Fla. denied, 481 U.S. 1033, 107 S.Ct. Police watchdog called in Guelph 5:57 pm - 3,689 views; Airline ticket scam Toronto 4:19 pm - 9,735 views; Injured, charged in shootout Alberta 4:08 pm - 8,562 views; More Canada News King v. State, 595 So.2d 539 (Ala.Cr.App.1991); Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App.1984). . Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. Thus, the limited mandates of Ring have been satisfied in this case, because by returning a guilty verdict in case no. My thoughts and prayers are with you in this time of deep sorrow. 190 (1892), however unsatisfactory and inconclusive to the judicial mind the evidence of self-defense may appear. It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. THE COURT: Don't you think he might need a lawyer if they indict him and he gets up and testifies in regard to his criminal activity involved in that apartment out there and these two defendants? 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. 1659.) 912.) In weighing the aggravating circumstances against the mitigating circumstances, the trial court accorded great weight to the aggravating circumstance of 13A-5-49(5), Ala.Code 1975, noting that the officers were acting as agents of the court in their attempt to duly serve warrants, and that two of the three officers were gunned down from behind without any opportunity to draw their weapons. Alabama . Devin Thompson. Sgt. Mike Collins and fellow West Precinct officers Carlos Curly Owen, Harley Chisolm III and Charles Robert Bennett. 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. Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. Ill never forget that, Collins said. 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. 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