558 (1916). Sgt. 862.) Our thoughts and prayers are with you and your family during this difficult time. According to Spencer, he dropped the SKS assault rifle at that time and fled. A unique and lasting tribute for a loved one. Some basic help and starters when you have to write a tribute to someone you love. He is preceded in death by Father Jack Spencer, Mother Joyce Spencer, Sister Debra and Brother. 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. Whether the accused reasonably believes that another person is using or is about to use unlawful deadly physical force against him is a question for the jury. SPENCER, Neil McConnell:On January 13, 2015, at the Waikari Hospital peacefully. When I think of Kerry a big smile comes to my face, thoughts of his easy smile and quiet ways take some of the load from my heart. 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.. Slaughter stated that she walked outside and saw Officer Owen talking to Nathaniel Nate Woods; according to Slaughter, she heard Nate tell Curly to [t]ake off that mother fucking badge and that gun and I will whoop your mother fucking ass. (R. The evidence also indicates that Spencer made statements following the earlier encounters with the officers that if the officers returned he would bust em (R. 913), and that they was gonna get the officers if they returned. Star Tribune reviews all guest book entries to ensure appropriate content. However, this evidence alone does not constitute evidence indicating that Spencer was intoxicated at the time of the shootings. The trial court found the existence of four aggravating circumstances: that Spencer knowingly created a great risk of death to many persons in the commission of this crime, 13A-5-49(3), Ala.Code 1975; that the capital offense was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, 13A-5-49(5), Ala.Code 1975; that the capital offense was committed to disrupt or hinder the lawful exercise of a government function or the enforcement of laws, 13A-5-49(7), Ala.Code 1975; and that Spencer intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct, 13A-5-49(9), Alabama Code 1975. In Johnson v. State, [Ms. 1041313, Oct. 6, 2006] --- So.3d ---- (Ala.2006), the Alabama Supreme Court reversed the judgment of this Court, holding that there was a fundamental difference between prior convictions offered to impeach the defendant's credibility and prior convictions and prior bad-act evidence offered as substantive evidence of the current crime for which the defendant was on trial, or evidence of permissible factors such as the defendant's motive, state of mind, and intent.5 In Snyder v. State, 893 So.2d 482 (Ala.2001), and Ex parte Minor, 780 So.2d 796 (Ala.2000), two cases that formed the basis of this Court's opinion in Johnson, and in large part the crux of Spencer's appellate argument, the evidence in question was evidence of prior convictions offered to impeach the defendant's credibility. Officer Bennett's body was found at the front door of the apartment. Moreover, the trial court attached little weight to Spencer's lack of significant history of prior criminal activity. He would slip in whenever he could to supply the apartments with the drugs. Burns v. State, 229 Ala. 68, 70, 155 So. We've tried to track his lawyer down this morning and see if they might be able to help us. Rather, he now argues that the trial court's giving the State's requested instructions eight and nine and refusing the defense's requested instructions on self-defense, provocation, and felonious arrest was in essence an affirmative charge for the jury to return a finding of guilt and reduced the State's overall burden of proof. About Us; Staff; Camps; Scuba. Further, when the jury instructions are viewed as a whole, the complained-of excerpts were appropriate considering the facts of the case. 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. 309, 160 L.Ed.2d 222 (2004). www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . 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. Scott v. State, 34 Ala.App. Authorize the publication of the original written obituary with the accompanying photo. He said he was stunned and that he radioed a shots fired call and considered his options. In Pilley this Court provided guidance as to what evidence would be required to form that evidentiary foundation. (R. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. 408, 409, 73 So. Information and advice to help you cope with the death of someone important to you. 1682.) My thoughts and prayers are with you in your time of grief. Geraldine Smith Obituary. Some kind of incident happened in New Hill in Birmingham or in the Bessemer District of Jefferson County. Remembering all the football games we played together at Sellers with all the other guys was such a joy. 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. She stated that she heard Spencer say What y'all doing? and then she heard two gunshots. They are irritated. [Defense counsel]: I think we need to make an attempt to see if he is there and see if he is going to come. However, given that the statement in the amended sentencing order that Spencer's testimony was the only nonstatutory evidence offered is factually inaccurate, we conclude that a remand for the trial court to clarify its sentencing order is the more appropriate action, given the many levels of judicial scrutiny that occur when a defendant has been convicted of a capital offense and sentenced to death. 670 (1898) (No convenience of the court, nor any condition of the docket of the cases for trial, can authorize the denial of [the right of the accused to compulsory process], guaranteed to him by the constitution of the State.). This undisputed physical evidence contradicts the testimony of the defendant who testified that he fired the rifle merely as a reaction to Officer Bennett touching his leg. As with the two above-discussed portions of the amended sentencing order, what weight and credibility to assign the evidence rests with the trial court. A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case. In CC-04-4130 the count was ten (10) for life without parole and two (2) for death. View Perry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. Thus, the trial court clearly considered this evidence presented by Spencer when determining that this mitigating circumstance did not exist. [E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility. Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). 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. It is always difficult saying goodbye to someone we love and cherish. On the morning of the shooting, he went to take a nap. 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.. As noted above, ironically in one of the very cases relied upon by Spencer on appeal, the court's duty to issue subpoenas on an accused's behalf does not require the court to grant a motion for a continuance or a motion for an attachment. I still miss Spud. Clearly, the facts in this case differ from those in the authority on which Spencer relies, i.e., Ervin and McTerry. 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. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. When I saw him, I was like, Thank God, Collins remembers. I dont know, and I can never prove it, but Im not 100 percent sure that Carlos didnt push me, or give me a shove out the door., Your email address will not be published. When asked whether he had taken any narcotics on the morning of the shootings, Spencer stated: Yes, I did. Ex parte Saranthus, 501 So.2d 1256 (Ala.1986). 721 Smith Rd. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. My heart goes out to you at this time and in the days ahead. Unfortunately, I cannot make it to the service. To plant Memorial Trees in memory of Perry Calvin Spencer, please click here to visit our Sympathy Store . Collins and Owen went to the back door; Chisholm and Bennett covered the front. Alabama . I ain't got no papers on me. The trial court had given the jury such an instruction. Spencer next argues that the trial court erroneously failed to instruct the jury on voluntary intoxication and the lesser-included offense of manslaughter. So they are there in the house legally. 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. 1638.). It's my understanding he has-some Hill. Kevin Towles. This Court puts no weight on this proffered theory by the defense.. James sorry to hear of the lost of your son . 703, 34 L.Ed.2d 669 (1972). He stated that he and other officers entered the front door of the apartment and that he saw Officers Owen and Chisolm lying on the floor pretty obviously dead. (R. Copyright 2023 Echovita Inc. All rights reserved. See also People v. Perry, 61 N.Y.2d 849, 473 N.Y.S.2d 966, 966-67, 462 N.E.2d 143, 143-44 (App.1984) ([a] charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis). A person may use deadly physical force if the actor reasonably believes that such other person is: (1) Using or about to use unlawful deadly physical force; or, (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or, (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree 7. Will he testify? There was no reasonable theory to support an instruction on intoxication because there was no evidence of intoxication. 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. His family is . The trial court instructed the jury, in pertinent part, as follows: Number eight. This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. . SPENCER, Warren Reginald "Reg" - Passed peacefully on Wednesday October 14, 2020 at the age of 80 years. 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. Family during this difficult time provided guidance as to what evidence would be required to form evidentiary. Trial court clearly considered this evidence further militates against any contention that the trial court attached weight... Difficult time according to Spencer, please visit our Sympathy Store the service and thus warranted such jury! Prayers are with you and your family during this difficult time ex parte,... 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