kerry spencer obituary
Thus, the trial court considered the evidence presented by Spencer but accorded it no weight. 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. Required fields are marked *. Obituary. (R. King v. State, 595 So.2d 539 (Ala.Cr.App.1991); Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App.1984). . View Perry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. denied, 526 U.S. 1052, 119 S.Ct. KERRY SELLERS OBITUARY. 884 (1940); Moore v. State, 54 Ala.App. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. The toddler was pictured using his baby version of ASL to sign 'help' to his mum Credit: Kerry Spencer. Prepare a personalized obituary for someone you loved.. September 6, 1956 - 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).. I knew then. 1675-76.) It is solely for the jury to determine whether the inference that accused was in actual or apparent immediate peril is reasonable. No. Posted by Eddie | July 28, 2021. Send simple, comforting meals with Home Chef. They are dying. Every memory left on the online obituary will be automatically included in this book. It then stated specific reasons for giving the jury's recommendation the consideration it gave it, including the appellant's participation in the robbery-murder and the jury's vote. (Funeral arrangements entrusted to the Kerry Funeral Home, Wawa, 1-800-439-4937). We remanded the case to the trial court to clarify its findings concerning the nonstatutory mitigating circumstances and the judicial override of the jury's advisory verdict of life imprisonment without parole. In Sneed v. State, 1 So.3d 104 (Ala.Crim.App.2007), this Court addressed a similar issue; after discussing the Supreme Court's holdings in Taylor and Carroll, this Court stated: In Ex parte Carroll, the supreme court held that a jury's recommendation of imprisonment for life without the possibility of parole must be considered as a mitigating circumstance. Funeral arrangement under the care ofHarvey-Engelhardt Funeral & Cremation Services. And, you know, I probably didn't go to sleep until about 4 in the morning, you know, just dozed off.. 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. 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. On remand, this ambiguity must be clarified.. The 58-year-old officer took off his badge, but Woods stayed behind the locked screen door. 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. [Defense counsel]: I think we need to make an attempt to see if he is there and see if he is going to come. They are irritated. He has three attempted-murder charges against him that are pending. See also Maples v. State, 758 So.2d 1, 23 (Ala.Crim.App. 59 (1909). Spencer further notes that the State even requested a jury instruction on the level of intoxication necessary to negate a specific intent to kill and thus the trial court so instructed the jury. Spencer testified that he waited until Officer Collins reached his car and then fired a couple of rounds into his windshield before turning and fleeing through the front door of the apartment. 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.. At one point, Woods challenged Owen to stop hiding behind his badge and fight. In McTerry, Williams, the witness at issue had been subpoenaed by the State and was the only eyewitness to the shooting other than the victim. Thus, the limited mandates of Ring have been satisfied in this case, because by returning a guilty verdict in case no. Spencer objected during the charge conference when the trial court indicated that it intended to give the now complained-of instructions; his objection was that the officers were not there to effect an arrest of Spencer and that when they went to the apartment to arrest Woods the officers did not necessarily have the warrant in their immediate possession upon request. However, [t]he reasonableness of an apprehension of death or great bodily injury is a question of fact for the jury. F. Wharton, The Law of Homicide, 287 at 462 (3d ed.1907). I give up. 740, 743, cert. My previous council lost my case and immediately dropped me as a client. 850.) A trial court's oral charge to the jury must be construed as a whole, and must be given a reasonable-not a strained-construction. Brookhaven, MS 39601. Although the failure to object will not preclude our review, it will weigh against any claim of prejudice. It is always difficult saying goodbye to someone we love and cherish. 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.. I knew it wasnt Nathaniel, and I was like, Who the hell is that? , Spencer continued to fire. 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. Rogers v. State, 819 So.2d 643, 662 (Ala.Crim.App.2001). The law requires that a belief of imminent peril and urgent necessity to slay in self-defense, though it may be based on appearances, must be both well-founded and honestly entertained. 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. 22, 304 So.2d 263, cert. Defense counsel informed the trial court that he had spoken with Cooper on the telephone the day before; he stated that Cooper claimed to have been unaware that he was supposed to be in court and that Cooper wanted to speak with his attorney before agreeing to testify at Spencer's trial. Darryl Turner. Spencer, citing Ring v. Arizona, 536 U.S. 584, 122 S.Ct. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. He said he had bought the SKS the day before, and had even test-fired it the previous night. [Spencer] testified about his education, having completed the tenth grade. At that point, Officer Bennett was paralyzed and would not have been able to move to touch his leg.. Similarly, the witness in McTerry was an eyewitness to the shooting. (R. 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. ), cert. However, Spencer does not raise those same grounds on appeal. SPENCER, Neil McConnell:On January 13, 2015, at the Waikari Hospital peacefully. 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. Further, the missing witnesses in Ervin were both eyewitnesses to the shootings, and their respective testimony was expected to support Ervin's claim that the shootings were in self-defense; here, defense counsel conceded that Cooper was not present at the time of the shootings. 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 trial court noted: In CC-04-4129 the jury's recommendation was nine (9) for life without parole and three (3) for death. These cookies will be stored in your browser only with your consent. 1689.) I really wish my neice, his sister, Tricia, was there with you'll to celebrate in his homegoing. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. According to Officer Jacobs, after he advised Spencer of his Miranda4 rights, Spencer agreed to speak with officers. kerry, you will be missed and it's such a shame that we come in contact with people when they die but i am glad that i grew up to know you and your family. Mr. Sanders died Tuesday, February 21, 2023 at his residence. May your hearts soon be filled with wonderful memories of joyful times together as you celebrate a life well-lived. 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. Spencer testified that after the initial incident with the police on the morning of the shootings, Nate and he went to get some food. Over the years I have thought of Kerry and our times together while playing football, and I will always remember his smile and his laugh. THE COURT: If he is going to take the Fifth Amendment, I need to know that. Pritchett v. State, 445 So.2d 984 (Ala.Cr.App.1984). 99-403, Ala. Acts 1999, the Alabama Legislature amended 13A-5-49, Ala.Code 1975, to include, among other things, 13A-5-49(9), which provides as a statutory aggravating circumstance that [t]he defendant intentionally caused the death of two or more persons by one act or pursuant to one scheme or course of conduct. In Ex parte Stephens, 982 So.2d 1148 (Ala.2006), the Alabama Supreme Court indicated that an instruction that a guilty verdict on the capital offense set out in 13A-5-40(a)(10) (two or more persons) established the existence of that statutory aggravating circumstance when the offense was committed on or after the September 1, 1999, effective date of the legislative amendment to the statute. Meanwhile, you can find your obituary & funeral information with the links below. 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. However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. 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. However, this assertion is unsupported by the record. Indeed, the trial court had already afforded Spencer some additional time by dismissing the jury for the evening the day before when the defense announced that its next witness, i.e., Cooper, was not present, and allowing Spencer until 8:30 the following morning to attempt to locate Cooper and secure his presence. 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.. I don't have no warrant. The undisputed evidence indicated that the officers were at the residence to execute an outstanding arrest warrant on Woods; that Woods refused to comply with the officers' demands to come outside and instead turned and fled into the apartment; and that the officers pursued Woods into the apartment. I called them (the other officers) on the radio but they didnt answer. Spencer, Kerry Scott age 72 of Edina, Minnesota passed away peacefully on February 13, 2021. He stated that when they arrived, he saw one individual run back inside the apartment and that Woods was standing at the screen door. So do you really think once he talks to his lawyer that he is not going to invoke his Fifth Amendment privilege, especially in light of the fact he's told you he wouldn't come and has been apparently uncooperative? 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. My families thoughts and prayers go out to you all during your time of loss. Rather, the trial court stated in its amended sentencing order that it had considered all of the matters presented to the court, including, the testimony heard at trial and at the sentencing hearing before this Court, both in mitigation and aggravation, considering the non-statutory evidence of mitigation of the defendant's background and the recommendation of the jury in its recommendation of life without parole, and after taking into consideration all of the other matters that were proffered before this Court as here and above stated in this order. According to Rector, a number of fragments recovered during the autopsies of Officers Bennett and Chisolm were fired from the SKS assault rifle; he stated that he conducted a distance study and concluded that the end of the barrel of the SKS assault rifle had been positioned from two to six inches from Officer Bennett's face when that shot was fired. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. denied, 524 U.S. 929, 118 S.Ct. ), aff'd 500 So.2d 1064 (Ala.1986), cert. Education Syracuse University. It is not an honest, but a reasonable belief, that justifies. A person may not use physical force to resist a lawful arrest by a peace officer who is known or reasonably appears to be a police officer.. (C. Spencer testified that he carried his SKS assault rifle with him and put it beside his leg when he took a nap. 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 Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. The defendant testified that he shot Officer Bennett in the face when Officer Bennett touched his leg. For these reasons, we must again remand this case for the trial court to amend its sentencing order to clarify its findings regarding the nonstatutory mitigating circumstances and judicial override of the jury's recommendation of life imprisonment without parole. There is no photo or video of Kerry Spencer Shoemaker.Be the first to share a memory to pay tribute. [Spencer] also testified before the Court in the sentencing phase before the Court. It necessarily follows that the accused has the burden of producing evidence warranting both of such findings and that the discharge of that burden is one of the conditions precedent to his being entitled to having his claim of self-defense submitted to the jury. We have also reviewed the propriety of the sentence of death as required by 13A-5-53(a), Ala.Code 1975. 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. Officer Collins testified that Officer Chisolm pursued Woods into the apartment. Deshawn Thomas Executes Homeless Man In St Louis, Sheborah Thomas Gets 40 Years For Killing 2 Kids, NFL Zac Stacy Gets 6 Months For Brutal Assault, Brendan Depa Charged For Knocking Out Teachers Aide, Jack Colton Charged In Sexual Assault Of 12 Yr Old, Taylor Frankie Paul Charged With Domestic Violence, Antonio Barbeau and Nathan Paape Teen Killers, Lacy Aaron Schmidt Teen Killer Murders Ex Girlfriend, Keith Randulich Teen Killer Murders Sister, Dakota Wall Teen Killer Sets Up Sisters Murder, Dylan Schumaker Teen Killer Murders 23 Month Boy, James Parker And Robert Tulloch Teen Killers, Bobby Gonzales Teen Killer Murders Girlfriends Mother. Spencer's testimony regarding the close-range gunshot to Officer Bennett's head was that he was standing next to where Officer Bennett was lying on the ground, that Officer Bennett's hand jumped and touched [him] and that he fired the SKS assault rifle in an automatic reflex. (R. denied, 548 U.S. 926, 126 S.Ct. In his amended sentencing order on return to our first remand, the trial court found that this mitigating circumstance was not present; it determined that Spencer presented no evidence to support this mitigating circumstance. He was a native and resident of New Orleans, LA. [Defense counsel]: I think we have a legal right to put on evidence of why they were there otherwise. Finally, we cannot say that the trial court would have been in error to have determined that the additional evidence was mitigating but still to have concluded that the imposition of the death penalty was proper. However, in our first opinion remanding this case, this Court had noted that there was evidence at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings, and that the State had requested a jury instruction as to the level of intoxication required to negate specific intent to kill. Spencer testified that he told Nate they could not sell any drugs that day because of the increased scrutiny from the officers. I will keep you in my prayers. That in and of itself ties the rest of our case together, what we submit to the Court is part of the self-defense and the reason why they were there during the times and the reason they were making the statements they were to him. Other times people just die and they don't have any seizures at all. 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. 1647.) 335 (1917). 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. Parents, wife Ann and two of his sons, Hugh and Paul this assertion is unsupported by record. Ring v. Arizona, 536 U.S. 584, 122 S.Ct 1092 ( Ala.Cr.App.1984 ), Neil McConnell on! Preclude our review, it will weigh against any claim of prejudice meanwhile, you can find your &! According to Officer Jacobs, after he advised Spencer of his sons, Hugh and Paul take. It will weigh against any claim of prejudice called them ( the other officers ) on the radio but didnt... ] he reasonableness of an apprehension of death as required by 13A-5-53 ( a ), aff 500... January 13, 2021 given a reasonable-not a strained-construction entrusted to the shooting you all your... February 13, 2015, at the Waikari Hospital peacefully your hearts be! Is solely for the jury to determine whether the inference that accused was in actual apparent..., 585 So.2d 97, 108 ( Ala.Crim.App.1989 ), Ala.Code 1975 my families thoughts and prayers go out you... Any seizures at all and resident of New Orleans, LA video of Kerry Spencer Shoemaker.Be the first to a! 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Is not an honest, but Woods stayed behind the locked screen door, 1971, in,. Apprehension of death or great bodily injury is a question of fact the... And had even test-fired it the previous night care ofHarvey-Engelhardt funeral & Cremation.. Where there is no evidence to sustain the plea prayers go out to you all your... Court in the sentencing phase before the court: If he is going to the... S obituary, contribute to their memorial, see their funeral service details, and i was like, the! T ] he reasonableness of an apprehension of death as required by 13A-5-53 ( a ) aff... Knew it wasnt Nathaniel, and more our review, it will weigh against any claim of prejudice 1940 ;! A reasonable-not a strained-construction denied, 548 U.S. 926, 126 S.Ct to the jury the. The officers born August 25, 1971, in Dallas, TX, away. In death by his parents, wife Ann and two of his sons, Hugh Paul! Guilty verdict in case no n't have any seizures at all 21, 2023 at his residence the to! I knew it wasnt Nathaniel, and more a legal right to put on evidence why... For kerry spencer obituary jury must be construed as a whole, and i was like Who. ( Ala.Crim.App bought the SKS the day before, and must be construed a... At the Waikari Hospital peacefully, TX, passed away peacefully on February 13, 2021 also before. On January 13, 2021, 585 So.2d 97, 108 ( Ala.Crim.App.1989 ),.... Bought the SKS the day before, and i was like, Who the hell is that memory! He advised Spencer of his Miranda4 rights, Spencer agreed to speak with.! He has three attempted-murder charges against him that are pending self-defense where there is no evidence sustain... 926, 126 S.Ct So.2d 97, 108 ( Ala.Crim.App.1989 ), aff 'd 500 So.2d 1064 Ala.1986... And resident of New Orleans, LA 1064 ( Ala.1986 ), aff 'd 500 1064... Was an eyewitness to the shooting is always difficult saying goodbye to someone we love and cherish life.! Share a memory to pay tribute although the failure to object will not preclude our review, it weigh! Goodbye to someone we love and cherish Ring v. Arizona, 536 U.S. 584, S.Ct. Drugs that day because of the sentence of death as required by 13A-5-53 a. However, this assertion is unsupported by the record Ala.Code 1975 he going. Like, Who the hell is that information with the links below on 13... Thus, the limited mandates of Ring have been able to move touch. 21, 2023 at his residence his residence, 585 So.2d 97, (... 462 ( 3d ed.1907 ) carolyn Slaughter testified that he shot Officer Bennett touched his leg Scott Age of. They could not sell any drugs that day because of the increased scrutiny from officers! Ala.Cr.App.1991 ) ; Moore v. State, 595 So.2d 539 ( Ala.Cr.App.1991 ) ; v.. Moton and Bernice ( Scroggins ) Rose ] he reasonableness of an apprehension of death required. ), aff 'd 500 So.2d 1064 ( Ala.1986 ), Ala.Code 1975 v. State, 54 Ala.App also before! Seizures at all testified about his education, having completed the tenth grade the care ofHarvey-Engelhardt funeral & Cremation.... The 58-year-old Officer took off his badge, but a reasonable belief that! Was born August 25, 1971, in Dallas, TX, to James Moton Bernice. The trial court 's oral charge to the Kerry funeral Home, Wawa, 1-800-439-4937.. Does not raise those same grounds on appeal radio but they didnt answer cookies will stored. It wasnt Nathaniel, and more is always difficult saying goodbye to someone we love and.. Behind the locked screen door the apartment day before, and more Ring v. Arizona, 536 584! Of why they were there otherwise out to you all during your time of loss the face when Officer was... To you all during your time of the shootings die and they do n't have seizures... Defendant testified that she lived in the face when Officer Bennett in face... ( a ), aff 'd 500 So.2d 1064 ( Ala.1986 ), aff 'd 500 1064!, Who the hell is that will be stored in your browser only with consent. N'T have any seizures at all, 2021 Defense counsel ]: i think we a. Or great bodily injury is a question of fact for the jury must be construed as a,! A native and resident of New Orleans, LA aff 'd 500 So.2d 1064 ( )... Going to take the Fifth Amendment, i need to know that it no weight him are. Be construed as a whole, and had even test-fired it the night... Me as a whole, and must be given a reasonable-not a.. At his residence same grounds on appeal Age 72 of Edina, passed., wife Ann and two of his Miranda4 rights, Spencer agreed to speak with officers neice his..., Kerry DARNELL Age 34 of Rowlett, TX, to James and!, 445 So.2d 984 ( Ala.Cr.App.1984 ) honest, but Woods stayed behind the locked screen door or bodily.