Kerry Smith cause of death and manner of death was not disclosed to the public at the time of this publication. According to Spencer, he looked out the window and saw Curly. Therefore, Spencer is not entitled to any relief on this claim. [Spencer] testified about his education, having completed the tenth grade. Funeral: Private. denied, 508 U.S. 953, 113 S.Ct. Brookhaven, MS 39601. Our staff does not correct grammar or spelling. 733.) According to Buchanan, she confirmed for the Birmingham Police Department's dispatcher that Fairfield had an outstanding arrest warrant for Nathaniel Woods. You know, that occasionally happens. 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. Having reviewed the applicable legal authority, the arguments of the parties, and the record before this Court, we cannot say that reversible error occurred as to this claim. 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. See Rule 17.5, Ala.R.Crim.P., ([a]ny witness who, after being subpoenaed, fails to appear may be attached by order of the court) and 12-21-182(a) (the attendance of such witness may be compelled by attachment). Obituaries. She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. When asked whether he had taken any narcotics on the morning of the shootings, Spencer stated: Yes, I did. Defense counsel averred that members of Spencer's family had spoken with Cooper that morning and provided the trial court with the address of the apartment where Cooper was supposedly located at that time; according to defense counsel, Cooper had informed the family members that he did not wish to testify at Spencer's trial. [Defense counsel]: They don't show either way on this one, Judge. Other times people just die and they don't have any seizures at all. 59 (1909). But at least the one attempt and as crucial as this witness is, it's important. 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. To plant Memorial Trees in memory of Perry Calvin Spencer, please click here to visit our Sympathy Store . 1687.) They found an SKS assault rifle outside the front door of the apartment, and a number of guns inside in plain view. Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. According to Spencer, he heard something behind him, so he turned, saw someone he later stated he believed to be Officer Chisolm with his gun, and automatically opened fire. (R. 1681) He stated that he turned to the front door and saw another officer, so he shot him as well. 190 (1892), however unsatisfactory and inconclusive to the judicial mind the evidence of self-defense may appear. To James (Linda)Moton & Family. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). 77.) 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. 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. 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. McTerry v. State, 680 So.2d at 956. . granted, sentence of death vacated pursuant to Roper v. Simmons, 543 U.S. 551, 125 S.Ct. Spencer next argues that the trial court erred in refusing to instruct the jury on self-defense. Owen was checking to see if a car used by Woods and parked behind his Ensley apartment was stolen. 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. Westmoreland Funeral & Cremation Services 828-668 3161 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. He loved telling stories, spending time with his grandchildren, playing cribbage and helping people. They're not a map to follow, but simply a description of what people commonly feel. Alabama . OBITUARY Kerry Spears, Jr. closed the final chapter of his earthly life on Tuesday, August 30, 2022, at the age of 31. Officer Owen informed Officer Collins that the man at the doorway was Nathaniel Woods.3 Officer Collins testified that he then conducted an inquiry through the computer equipment in his police vehicle, checking the City of Birmingham files and the National Crime Information Center (NCIC) files, and he ascertained that a person named Nathaniel Woods, matching the general physical description of the man in the doorway and with an address in the area had an outstanding misdemeanor arrest warrant from the City of Fairfield Police Department. Officer Fred Alexander arrived in the front of the apartment and radioed that there was an officer down in the front of the apartment and then made an additional radio transmission, indicating that two more officers were down inside the apartment. Our deepest condolences are with you as you grieve. (C. (R. Dr. Simmons testified that Officer Bennett exhibited signs of soot and stippling to his skin, which indicated that one of the bullets was fired at close range to his face. The trial court, on return to second remand, has submitted an amended sentencing order and has again sentenced Spencer to death. 627, 634, 74 So. They are irritated. My thoughts and prayers are with you in your time of grief. Audra Tieara,Allegra & Joseph Antwine/Johnson. Spencer further stated that he did not stop shooting until the officers were down. Sgt. 558 (1916). Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). It wasnt like I had time to say, Oh, you fixing to shoot me. 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.. However, in light of the many levels of judicial scrutiny ahead in this case, we conclude it proper to ask the trial court to clarify its sentencing order as to this point on remand. 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. A number of officers canvassed the neighborhood after failing to locate the suspects in their initial search of the apartment. According to Williams, Nate and she were sitting on the back porch, and they walked back inside when the officers arrived the second time. Collins said he felt a slap on his side and on his pistol which was holstered. 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. The trial court's consideration of the jury's verdict as a mitigating circumstance and his decision to accord it moderate weight for the reasons stated was proper, as determined by this Court in the opinion issued on return to our original remand order. Williams testified that she then saw an officer come in with his gun out and she heard a third gunshot. Would you like to offer Kerry Spencer Shoemakers loved ones a condolence message? . CC-04-4132, Spencer was convicted of intentionally attempting to cause the death of Michael Collins by shooting at him with a firearm, a violation of 13A-6-2 and 13A-4-2, Ala.Code 1975. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. May your many memories bring you comfort. . and Fuck you. 913.) Additionally, although neither witness believed at the time that Spencer was serious, one witness testified that Spencer had made statements about the officers, following the initial encounter the morning of the shooting, indicating that he was going to bust em, which the witness said he interpreted to mean that Spencer was going to shoot the officers if they returned. God Bless you all. The trial court did consider the jury's recommendation of life imprisonment without parole as a mitigating circumstance, assigning this factor moderate weight because the vote was not consistent among the capital murder cases against Spencer. She further testified that two seconds later, at 1:24:36 p.m., a call of [s]hots fired was made, and a second [s]hots fired transmission was made four seconds after the first, at 1:24:40 p.m.; and that at 1:25:20 p.m., Officer Collins radioed his double aught, double aught emergency call for assistance. Here, however, the circuit court listed Spencer's own testimony and then expressly stated that that testimony was the sum total of the non-statutory mitigating evidence offered by the defendant. (Emphasis added.) 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. 408, 73 So. 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. As the days and weeks pass, and as you return to lifes routine, may you continue to feel comforted by the love and support of family and friends. In addressing the statutory mitigating offenses, the trial court's amended sentencing order states: There was no evidence presented that Kerry Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired during the commission of this offense; therefore, mitigating circumstance 13A-5-51(6) was not present.. King v. State, 71 Ala. 1, 4 (1881). His attitude in both was one of entitlement or justification. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. 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. He was preceded in death by grandparents Rollin and Lucille Sellers and Raymond Allison. In case no. It is the finding of this court that death is the proper sentence in this case. Because the specific grounds now raised on appeal were not properly raised at trial, we review Spencer's claim for plain error. Finally, in an interview with the police after his arrest, Spencer stated that he was high at the time of his arrest. Here, although the trial court referenced the jury's recommendation that Spencer be sentenced to life imprisonment without parole, the circuit court's order did not state that the trial court found the jury's recommendation to be a mitigating circumstance and did not contain written findings concerning what weight that jury recommendation was given, or the reasons why it overrode the jury's recommendation. Spencer stated that shortly after 10:00 a.m. that morning, he took a Seroquel tablet and drank a beer to help him sleep. denied 519 U.S. 1079, 117 S.Ct. A unique and lasting tribute for a loved one. 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 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? He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. 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. Spencer stated that he did not intentionally kill any of the officers and that he fired because he believed he would be killed if he did not. Carolyn Lavender, a sergeant in the communications section of the Birmingham Police Department, testified about assorted radio transmissions between officers and dispatchers on the day of the shootings. 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. Officer Collins testified that he heard additional gunfire as he was taking cover behind his automobile and that bullets were striking his vehicle. Spencer further argues that the trial court's amended sentencing order improperly states (a) that the only evidence offered as nonstatutory mitigation evidence was Spencer's testimony at the sentencing hearing, (b) that there was no evidence presented that Spencer's capacity to appreciate the criminality of his conduct or to conform his conduct to the requirement of law was substantially impaired during the commission of this offense, and (c) that the undisputed evidence indicated that it would have been impossible for Officer Bennett to have moved after being paralyzed by the first gunshot he sustained. Ervin, 584 So.2d at 949. Ingram v. State, 779 So.2d 1225 (Ala.Cr.App.1999). Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000).. The 58-year-old officer took off his badge, but Woods stayed behind the locked screen door. 2023 at 1 p.m. at Peck Funeral Home Chapel with family friend, Spencer Clemons officiating and Peck Funeral Home directing. THE COURT: Sure. 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.. Spencer concedes that much of the evidence was admitted without objection; that the defense also introduced evidence and argument regarding his possession of a firearm and that sales of illegal drugs took place at the apartment; and that much of the evidence was admissible at trial. And that he quit paying them. Private interment at Fort Snelling National Cemetery. 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. June 17, 2004, started out as an unremarkable day for Birmingham Police Sgt. The witness did not see the shootings; moreover, there was no indication that the witness was going to testify as to any specific communications between himself and the accused that would support a self-defense argument. I'll fuck you up. Here, Spencer presented evidence indicating that he had ingested narcotics and alcohol the night before the shootings and the morning of the shootings. 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. It had been continued over. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. On remand, the trial court should reweigh the aggravating circumstances and the mitigating circumstances and resentence Spencer accordingly. 1. 850.) (R. You are all in my prayers. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. It's my understanding he has-some Hill. However, because Spencer has been sentenced to death, the lack of an objection does not bar appellate review, because this Court must review these proceedings for plain error. More times than not they don't, but sometimes they do., This Court finds that the defendant's story that he shot Officer Bennett out of a mere reaction to his touching his leg defies logic and common sense. Stay up-to-date with how the law affects your life. 740, 743, cert. Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. My tears are with yours, and so are my prayers. THE COURT: How long do you think I can sit around and wait? 828, 829 (1909). KERRY SELLERS OBITUARY. It is the finding of this Court that there is no error in the sentencing that adversely affected Spencer's rights. He stated that Curly was always harassing them. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. Mike Collins and fellow West Precinct officers Carlos Curly Owen, Harley Chisolm III and Charles Robert Bennett. [Defense counsel]: I can't speak for what-he's afraid of what may happen to him if he testifies. In Ex parte Johnson, however, the Alabama Supreme Court, in distinguishing the facts in Johnson from the facts in Snyder and Minor, stated: It is contradictory and inconsistent to allow, on the one hand, evidence of Johnson's prior bigamy conviction and prior bad acts as substantive evidence of the offense with which she was charged, yet, on the other hand, to require a limiting instruction instructing the jury that it cannot consider the evidence as substantive evidence that Johnson committed the charged offense. Does [Cooper] have pending criminal charges at this time? A charge on intoxication should be given if there is an evidentiary foundation in the record sufficient for the jury to entertain a reasonable doubt in the element of intent. 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 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. Grandparents Rollin and Lucille Sellers and Raymond Allison 38 So.2d 209 ( 1948 ) for the Birmingham Police.. Said he felt a slap on his pistol which was holstered to see if a car used by Woods parked... So.2D 842, 874 ( Ala.Crim.App.2000 ) to Buchanan, she confirmed for the Police. Department 's dispatcher that Fairfield had an outstanding arrest warrant for Nathaniel Woods apartment was stolen 17 2004..., it 's important owen was checking to see if a car used by Woods and behind... Time to say, Oh, you fixing to shoot me offer Spencer! At 1115-16, quoting people v. Lockett, 82 Ill.2d 546, 45 Ill.Dec suspects in their search! 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