(C. Survived by wife Joyce Spencer, Daughters Corryl (Nick) Holm and Allison Spencer, Grandsons James and Thomas Holm, Sisters Carol and Randee and Brother Kevin. Additionally, Spencer, knowing that the officers had returned because he looked out the window, exacerbated the situation by intentionally grabbing his loaded SKS assault rifle and proceeding toward the commotion in the kitchen. I still miss Spud. According to Spencer, he dropped the SKS assault rifle at that time and fled. 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. denied, 200 Ala. 23, 75 So. Family and friends must say goodbye to their beloved Kerry Spencer Shoemaker (Saint Pete Beach, Florida), who passed away at the age of 82, on June 3, 2022. Before reweighing the aggravating and mitigating circumstances in his amended sentencing order on return to second remand, the trial judge clearly stated that he had determined that the evidence concerning the testimony of Spencer's mother and uncle did not constitute mitigating evidence, nor did Spencer's proclamation of remorse and his apology to the victims' families. 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.. Would you like to offer Kerry Donald Spencers loved ones a condolence message? Because the trial court has complied with the requirements of our remand concerning its sentencing order, Spencer's sentencing will now be reviewed pursuant to Rule 45A, Ala. R.App. Wayne Travis. 41-42.) Defense counsel requested that the trial court issue an attachment to have Cooper picked up and brought to court. 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. Travis Dumas testified that he lived at the apartment with Nate Woods, Nock Spencer, and Fernando Blue Belser at the time of the shooting. Necessary cookies are absolutely essential for the website to function properly. (R. No. Spencer George Hare. 1659.) However, with regard to the sentencing order, although the trial court made thorough and specific findings of fact regarding the statutory aggravating circumstances and statutory mitigating circumstances, it did not make specific findings of fact regarding the existence or nonexistence of nonstatutory mitigating circumstances offered pursuant to 13A-5-52. They are irritated. McTerry, 680 So.2d at 955. 709.) Harrison v. State, 580 So.2d 73, 74 (Ala.Crim.App.1991). An accused is entitled to have the jury consider the issue of his intoxication where the evidence of intoxication is conflicting, Owen v. State, 611 So.2d 1126, 1128 (Ala.Crim.App.1992); Crosslin v. State, 446 So.2d 675, 682 (Ala.Crim.App.1983), where the defendant denies the commission of the crime, Coon v. State, 494 So.2d at 187; see Moran v. State, 34 Ala.App. Here, the trial court considered the jury's recommendation as a mitigating circumstance and assigned it moderate weight. "Nathaniel Woods is 100% innocent," Kerry Spencer, the confessed gunman also on death row, wrote in an open letter ahead of Woods' planned execution, adding, "I pray that my words don't fall on . Westmoreland Funeral & Cremation Services 828-668 3161 It is always difficult saying goodbye to someone we love and cherish. The first thing I said to him was, It was only a misdemeanor. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). In his second amended sentencing order, the trial court stated: This is the most brutal and violent attack on law enforcement officers this Court has seen in its combined thirty years as a prosecutor, defense lawyer, and as a judge. The trial court's findings concerning the aggravating and mitigating circumstances is supported by the record. May happy Share Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. [Defense counsel]: I do object, for the record. (C. The trial court considered this evidence to be a nonstatutory mitigating circumstance entitled to moderate weight considering the jury's vote, which in one case was 10 for life imprisonment without parole and 2 for death, and in two of the cases was 9 for life imprisonment without parole and 3 for death, and in the final case was 7 for life imprisonment without parole and 5 for death. 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. 1647.) [Defense counsel]: He has indicated on numerous occasions he's going to be here. Kerry was a very special person, and I'm glad to have known him. It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. Expand the Memories and Condolences form. 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. [Defense counsel]: New Hill. With regard to Spencer's third allegation, the amended sentencing order states: In addition, Dr. [Gary] Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment was shot multiple times. 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. She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. (R. 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. In case no. 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. 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 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. 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. Funeral: 2 Mar 2020, Narberth. 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. ), aff'd 500 So.2d 1064 (Ala.1986), cert. So I issue an instanter subpoena, what are we going to do? Officer Collins then radioed a double aught call, which he stated was the most drastic request for assistance, meaning an officer was down and assistance was needed from any precinct in the city. denied, 898 So.2d 874 (Ala.), cert. My families thoughts and prayers go out to you all during your time of loss. 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. 1659.) The penalty phase of the trial was conducted before the jury. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. 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. family hang in there until you meet again. 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. The email address cannot be subscribed. See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992). Spencer testified that Nate went to the front door and engaged in a discussion with an officer. It's surprising how much a musical selection can affect mourning. 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. Although the trial court need not list and make findings as to each item of alleged nonstatutory mitigating evidence offered by a defendant, Reeves v. State, 807 So.2d 18, 48 (Ala.Crim.App.2000), it must make a clear finding regarding the existence or nonexistence of nonstatutory mitigating evidence offered by a defendant. He testified that he kept guns at the apartment, and that he had purchased the SKS assault rifle the night before the shootings and had test-fired it in the backyard. Echovita Inc is a registered trademark. Our thoughts and prayers are with you in your time of sorrow. Terry Spencer's passing on Thursday, December 22, 2022 has been publicly announced by Midland Cremation Society in Joplin, MO. A 1991 graduate of Tarrant High School. 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. In his amended sentencing order on return to second remand, the trial court has clarified its findings concerning the mitigating circumstance in 13A-5-51 (Ala.Code 1975), as to whether Spencer was capable of appreciating the criminality of his conduct or whether his ability to conform his conduct to the requirement of the law was substantially impaired during the commission of the offenses. These circumstances are to be ascertained by the jury Oliver v. State, 17 Ala. 587, 599 (1850). 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. 335 (1917). [Defense counsel]: Well, we think we've proven self-defense in our-. See 13A-5-53(a), Ala.Code 1975.1. About Us; Staff; Camps; Scuba. 710.) According to Dumas, Woods went to the front door and began arguing with police officers at the door. These cookies do not store any personal information. 1430.) See Rule 45A, Ala.R.App.P. I don't have no warrant. Write your message of sympathy today. 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. They were married for thirty beautiful years and shared many memories together. Kerry Spencer was sentenced to death and remains on Alabama Death Row for the murders of three police officers. What are you asking the Court to do? Our staff does not correct grammar or spelling. 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. (R. Bern, please know that I am with you all. Dumas testified that, after the officers left, he went back to sleep until he was awakened later, at which time he got up, washed his face, and then left the apartment to walk to the store a few blocks away. 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. He did, but it was to curse them and argue he wasnt a wanted man. Nathaniel Wood was executed in 2020. Jimmy O'Neal Spencer. In Act No. Geraldine Smith Obituary. THE COURT: If he is going to take the Fifth Amendment, I need to know that. View online obituaries, write messages of remembrance, light virtual candles and more . Echovita offers a solidarity program that gives back the funds generated to families. We don't know. This is number nine. Published by Dallas Morning News on Aug. 10, 2006. The officers, joined by Chisholm, left to double-check that the warrant was valid. May God bless you with the strength to carry on. This undisputed physical evidence contradicts the testimony of [Spencer] who testified he fire[d] the rifle merely as a reaction to Officer Bennett touching his leg. That would be images I would have seen forever.. My prayers go out to you and your family in your time of bereavement. 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. . [Dr. Simmons]: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain cells and the spinal cord. 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