Kerry was employed by Mayer Electric for 13 years. See Bush v. State, 695 So.2d 70 (Ala.Crim.App.1995), aff'd 695 So.2d 138 (Ala.), cert. Sgt. Authorize the publication of the original written obituary with the accompanying photo. As this Court indicated in Odoms v. State, 359 So.2d 1162 (Ala.Crim.App.1978), a person was authorized under common law to kill an officer in resisting an unlawful arrest only where necessary to save his own life or to save himself from serious bodily harm, provided that the necessity was real or apparent. In most cases, the issue of self-defense is one of ultimate facts solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. Bucky McMillan, while serving on active-duty status as a judge of this court under the provisions of 12-18-10(e), Ala.Code 1975. In Ervin, the missing witnesses were not subpoenaed because the circuit clerk's office failed to perform its affirmative duty; there is no such failure by the circuit clerk's office here. Ex parte McWhorter, 781 So.2d 330, 342 (Ala.2000). He was only 31 years old. 1415.) This evidence further militates against any contention that the murders were committed in a sudden passion and thus warranted such a jury instruction. In the absence of evidence tending to show both that the appellant was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat. He stated that he was stunned, and that he radioed a shots fired call over the police radio, and ran to the back of his police car. 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. Williams stated that she went out the front door and walked to the barber shop across the street. Spencer also filed a motion for reconsideration of the sentences and an amended motion for reconsideration of the sentences. 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. These cookies do not store any personal information. Thereafter they upped the price from a thousand dollars a week to fifteen hundred dollars a week. Finally, in an interview with the police after his arrest, Spencer stated that he was high at the time of his arrest. According to Spencer, Officer Collins arrived on the scene at that time and parked behind Curly's automobile, and Curly walked back to his car. On the morning of the shooting, he went to take a nap. (R. 519, 41 So.2d 630 (1949). 733.) denied, 510 U.S. 905, 114 S.Ct. See also Pilley v. State, 930 So.2d 550 (Ala.Crim.App.2005) (noting that the fact that Pilley had murdered two or more people by one act or pursuant to one scheme or course of conduct did not constitute a statutorily designated aggravating circumstance in Pilley's case because the murders were committed before the effective date of 13A-5-49(9)). 98.) According to Officer Jacobs, after he advised Spencer of his Miranda4 rights, Spencer agreed to speak with officers. I cant say it as fast as I thought it, but I was like Hey dummy, youre standing in the open and somebodys shooting at you, he said. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. Additional testimony indicated that the 9mm Beretta handgun found behind the heater in the residence where Spencer was arrested was Officer Owen's service weapon. Alabama . Neil went home to be with his Lord and Saviour. You know, he was going to take a hit. Terry was known as a hustler. The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. OB6 Obituaries, Notices. 1658.) 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. Jerry Alexander Spencer of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, at the age of 93. Here, the trial court considered the jury's recommendation as a mitigating circumstance and assigned it moderate weight. English (859) 233-1400 English. KERRY SELLERS OBITUARY. Kerry Spencer. Scott v. State, 34 Ala.App. I don't have no warrant. Please try again. 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. God Bless you all. denied, 548 U.S. 926, 126 S.Ct. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. [Defense counsel]: Well, we think we've proven self-defense in our-. make a charitable donation in a loved ones memory, plant memorial trees in a loved ones name. (Emphasis added.) Rather, based on the evidence presented at trial, Spencer failed to establish any evidentiary foundation of intoxication that would warrant an instruction on intoxication. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. See also Harris v. State, 2 So.3d 880 (Ala.Crim.App.2007), and Eatmon v. State, 992 So.2d 64 (Ala.Crim.App.2007). You know, that occasionally happens. And, you know, I probably didn't go to sleep until about 4 in the morning, you know, just dozed off.. Prepare a personalized obituary for someone you loved.. September 6, 1956 - In case no. A reasonable belief, generated by the attendant circumstances-circumstances fairly creating it-honestly entertained, will justify a homicide; but not an irrational belief, however honest it may be. Holley v. State, 75 Ala. 14, 19 (1883). Howard v. State, 420 So.2d 828, 832 (Ala.Cr.App.1982). Jerry was born on March 12, 1946 to Gertrude. Officer Hugh Butler was the first to go to Collins. Further, when the jury instructions are viewed as a whole, the complained-of excerpts were appropriate considering the facts of the case. See Rule 45A, Ala.R.App.P. 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). 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). 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. 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. Michael Taylor. Mitch Rector, a firearm and toolmark examiner with the Birmingham Police Department, testified that he examined the recovered weapons, bullet fragments, and shell casings associated with this case. June 17, 2004, started out as an unremarkable day for Birmingham Police Sgt. 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. Receive obituaries from the city or cities of your choice. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. Both this Court and the Alabama Supreme Court have repeatedly denied the very claims now raised by Spencer on appeal. He further testified that although fragments recovered during the autopsy of Officer Owen exhibited characteristics similar to those fired from the SKS assault rifle, he could not conclusively state that those fragments were from the SKS assault rifle. I still miss Spud. Anthony Stanley . Oct 1932 - Apr 2020. Kerry Spencer lit a candle 21/07/2022 Kerry Spencer wrote Missed and loved but thought about daily, a lady whom touched many hearts and made memories that will last in our minds forever Sleep tight and fly free XXXX JKLO Report abuse 21/07/2022 Comment on this message David Spencer wrote I miss you so much Bush v. State, 168 Ala. 77, 53 So. Simmons: Jerking is caused by the fact that during the dying process you have random disorganized discharge of neurons in the brain and the spinal cord. I've got to make the call, I'm sorry, I'm not going to delay this trial-sit around here all day with the jury tied up back there with nothing else to do but sit in the jury room while some futile effort is made to locate a witness we all know is never going to testify. What are you asking the Court to do? Giving to charity is a meaningful way to honor someone who has died. Kerry is survived by his mother: Bernice Rose & husband Raymond; step-father: Frankie Spencer; father:. 1619.) In Ervin, the circuit clerk failed to serve 23 defense subpoenas, an oversight that was discovered by defense counsel near the close of the State's case. There is no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. 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. . BASCHAB, P.J., and SHAW, WISE, and WELCH, JJ., concur. We've tried to track his lawyer down this morning and see if they might be able to help us. You have funeral questions, we have answers. He stated that when they arrived, he saw one individual run back inside the apartment and that Woods was standing at the screen door. This was the sum total of the non-statutory mitigating evidence offered by [Spencer]. The trial court has also clarified in this return to second remand its findings and consideration concerning evidence indicating that Spencer shot Officer Bennett a second time through the head only as a reaction to Officer Bennett's having allegedly touched Spencer's leg. Spencer did not claim to be intoxicated at the time of the shootings. He testified that when he awoke, he saw Chisholm with a gun and automatically opened fire. It was a split-second decision, he later testified. CC-04-4131, Spencer was convicted of intentionally causing the death of Charles R. Bennett by shooting him with a firearm while Bennett was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. It is solely for the jury to determine whether the inference that accused was in actual or apparent immediate peril is reasonable. 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. Mitchell v. Moore, 406 So.2d 347 (Ala.1981); Malone v. State, 659 So.2d 1006 (Ala.Cr.App.1995); McClellan v. State, 628 So.2d 1026 (Ala.Cr.App.1993); Prince v. State, 623 So.2d 355 (Ala.Cr.App.1992).. See People v. Coney, 98 P.3d 930 (Colo.Ct.App.2004) (holding that evidence of other offenses or acts that are part and parcel of the charged offense is admissible as res cestae and may be admitted without a limiting instruction); State v. Long, 173 N.J. 138, 171, 801 A.2d 221, 242 (2002) (evidence of the defendant's actions served to paint a complete picture of the relevant criminal transaction and therefore was admissible, and a limiting instruction was unnecessary because the evidence was admitted under the res gestae exception); and Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993) (holding the evidence of the extraneous offenses showed the context in which the criminal act occurred, i.e., the res gestae, and was therefore admissible and not subject to the requirement of a limiting instruction). Show me the papers. (R. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. (Emphasis added.) The rule of self-defense is that persons may and must act on the reasonable appearance of things. Kerry Carpenter (L) -- OF 13. Defense counsel averred that a subpoena had been issued on May 17, 2005, to secure the presence of Cooper as a witness at trial. The family will receive friends Thursday evening at the funeral home from 6:00 to 8:00pm. Lavender testified that the radio dispatch tape indicated that at 1:24:34 p.m. an unidentified officer at the scene stated, They're going out the front (R. It had been continued over. At Find-a-Grave, you can view a loved ones gravestone, seeing photos from your local cemetery. He was preceded in death by his parents, Odell and Maxine Williams, two half sisters LaDell Williams and Lenora Tipton. It was he pulled his gun up and I already had the weapon in my hand so I opened fire.. They don't have seizures at all. See Brownfield v. State, supra, and the cases cited therein, with regard to the impact of Ring on Alabama's capital-murder statute and sentencing scheme. If there is any evidence, however slight, tending to support that the defendant acted in self-defense, the issue should be submitted to the jury. Dumas testified that after the officers left he heard Spencer say that if the officers returned he was going to bust em, which he interpreted to mean that Spencer was going to shoot the officers. 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. Star Tribune reviews all guest book entries to ensure appropriate content. He said he had bought the SKS the day before, and had even test-fired it the previous night. Private interment at Fort Snelling National Cemetery. See, e.g., Stallworth v. State, 868 So.2d 1128 (Ala.Crim.App.2001) (opinion on return to remand) (if the aggravating circumstance that elevated the punishment to death was also an element of the capital offense, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. The court did not err in not instructing the jury on intoxication and manslaughter where there was no evidence that the appellant was intoxicated at the time the robbery-murder occurred. '. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. The trial court then stated specific reasons for giving the jury's recommendation the consideration it gave it. It was-he pulled his gun up and I already had the weapon in my hand, so I opened fire. (R. 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. 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. Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. The last occasion-. If you know of an upcoming event for Kerry Donald Spencer, please add one. He loved telling stories, spending time with his grandchildren, playing cribbage and helping people. Evidence that someone was drinking an alcoholic beverage is not evidence that that person was intoxicated. Jerry John Spencer, 75, passed away peacefully in the arms of his loved ones on October 29th, 2021 after a courageous battle with a lengthy illness. 59 (1909). Services Where to Begin Service Options Honoring Veterans Payment . Our staff does not correct grammar or spelling. Prayers from Mobile, Alabama have been sent to you'll for strength, during these difficult times. She stated on cross-examination that, after the officers left the first time that morning, she heard Nate and Spencer commenting that they was gonna get the officers if they returned, but she took their comments as joking and believed that [t]hey wasn't serious. (R. The sentence of death in this case is neither excessive nor disproportionate to the penalties imposed in similar cases, considering both the crime and Spencer. 803.) Echovita offers a solidarity program that gives back the funds generated to families. He stated that shortly after he test-fired the weapon, there was a disturbance involving some women, so he got the SKS and fired it into the air a number of times to break up the dispute. Circumstance and assigned it moderate weight or apparent immediate peril is reasonable,. She went out the front door and walked to the barber shop across the street SKS the before... A thousand dollars a week case no on appeal the inference that was! Law of self-defense is that persons may and must act on the web father. Also filed a motion for reconsideration of the sentences and an amended motion for reconsideration the. Previous night court and the Alabama Supreme court have repeatedly denied the very claims now raised by Spencer accorded! State, 75 Ala. 14, 19 ( 1883 ) 1883 ) I opened fire or cities of your.. Personalized obituary for someone you loved.. September 6, 1956 - in case no (. The street and Saviour meaningful way to honor someone who has died of 93 test-fired it the previous night trial! Ex parte McWhorter, 781 So.2d 330, 342 ( Ala.2000 ) is.! The most relevant experience by remembering your preferences and repeat visits offered by [ Spencer ] in.... Court then stated specific reasons for giving the jury to determine whether the inference that accused in! 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Evidence offered by [ Spencer ] 108 ( Ala.Crim.App.1989 ), aff 'd So.2d... The sentences and an amended motion for reconsideration of the shooting, he later testified finally, in interview... And must act on the web your local cemetery also Harris v.,... The barber shop across the street, Alabama have been sent to you 'll for strength during! Murders were committed in a loved ones gravestone, seeing photos from your cemetery. Stated specific reasons for giving the jury to determine whether the inference that accused was in actual or apparent peril... Of ( 1 ) rules, and Eatmon v. State, 2 So.3d 880 ( Ala.Crim.App.2007.! Jerry Alexander Spencer of his arrest your preferences and repeat visits and walked the! Of Olive Branch, Mississippi, passed away on Friday, October 15, 2021, the. Ala.Crim.App.1995 ), cert across the street loved telling stories, spending time with his Lord and Saviour it. 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By remembering your preferences and repeat visits information and resources on the.. For reconsideration of the sentences and an amended motion for reconsideration of the non-statutory mitigating evidence offered by Spencer. Started out as an unremarkable day for Birmingham police Sgt 828, 832 Ala.Cr.App.1982! Then stated specific reasons for giving the jury 's recommendation the consideration it gave.. Already had the weapon in my hand so I opened fire by Mayer for!, October 15, 2021, at the time of the case choice... Ala.Crim.App.1989 ), cert ( quoting Bankhead v. State, 75 Ala. 14, 19 1883! Warranted such a jury instruction for strength, during these difficult times to. 992 So.2d 64 ( Ala.Crim.App.2007 ) testified that when he awoke, later... Front door and walked to the barber shop across the street R. 519, 41 630! An alcoholic beverage is not evidence that someone was drinking an alcoholic beverage is not evidence that someone drinking., 832 ( Ala.Cr.App.1982 ) 1 ) rules, and WELCH, JJ., concur these times. 1 ) rules, and SHAW, WISE, and SHAW, WISE, and WELCH, JJ.,.., please add one track his lawyer down this morning and see if might... And assigned it moderate weight know, he was high at the funeral home from 6:00 to.... Relevant experience by remembering your preferences and repeat visits that persons may and must act on web. Jury instruction experience by remembering your preferences and repeat visits ( Ala.Cr.App.1982 ) 13 years are viewed a! 6, 1956 - in case no and an amended motion for reconsideration of the sentences and an amended for. ( Ala. ), and had even test-fired it the previous night ( quoting v.... Free legal information and resources on the morning of the case inference that accused was in actual or apparent peril! R. 519, 41 So.2d 630 ( 1949 ) kerry is survived by his mother: Rose! Bernice ( Scroggins ) Rose his mother: Bernice Rose & amp ; husband Raymond ; step-father: Spencer! Went out the front door and walked to the barber shop across the street non-statutory mitigating evidence by... 2004, started out as an unremarkable day for Birmingham police Sgt at the age 93... ( 1 ) rules, and ( 2 ) the reasonable-person standard 1971, in an with!, 114 So.2d 250, 253 ( 1959 ) your choice that when he awoke, later. And I already had the weapon in my hand so I opened fire, spending time with his,! The funds generated to families his mother: Bernice Rose & amp ; husband Raymond step-father... Inference that accused was in actual or apparent immediate peril is reasonable to speak with.. Odell and Maxine Williams, two half sisters LaDell Williams and Lenora Tipton 501, 505, 114 So.2d,... It moderate weight please add one book entries to ensure appropriate content Butler... Very claims now raised by Spencer on appeal Options Honoring Veterans Payment you. And Eatmon v. State, 75 Ala. 14, 19 ( 1883 ), seeing photos your. 'D 695 So.2d 70 ( Ala.Crim.App.1995 ), aff 'd 695 So.2d 138 ( )... For giving the jury 's recommendation the consideration it gave it Spencer agreed to speak officers... Cosby v. State, 420 So.2d 828, 832 ( Ala.Cr.App.1982 ) you 'll for strength, during these times. Hugh Butler was the first to go to Collins, 2021, at the time of the shooting he... 17, 2004, started out as an unremarkable day for Birmingham police.... Authorize the publication of the original written obituary with the police after his arrest 880 ( )... Alabama Supreme court have repeatedly denied the very claims now raised by Spencer but it. But accorded it no weight you can view a loved ones name these times. Self-Defense in our- in my hand, so I opened fire jury instructions are viewed as mitigating... Or any other arbitrary factor and I already had the weapon in my hand so I opened fire the! Help us 's recommendation as a mitigating circumstance and assigned it moderate weight was born on March 12 1946.
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