However, as a young boy I can remember Kerry with fondness. King v. State, 71 Ala. 1, 4 (1881). A neighbor came over and told them to stop the nonsense and persuaded Owen to put his badge back on. The question is not merely what the defendant believed, but also, what did he have the right to believe. Alabama Code 1975, 13A-3-23 Commentary. Would you like to offer Kerry Spencer Shoemakers loved ones a condolence message? It was a split second decision. According to Slaughter, Nate told Officer Owens to get a warrant, and Officer Owens responded that the narcotics task force would be back. According to Spencer, he dozed off for some time and Nate likely went outside and messed with his radio for awhile. (R. The trial court was also instructed to reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer. 968.) Spencer v. State, [Ms. CR-04-2570, April 4, 2008] --- So.3d ----, ---- (Ala.Crim.App.2008). Learn more about FindLaws newsletters, including our terms of use and privacy policy. It is to be noted that reasonableness is determined by a standard-a reasonable person under like circumstances-and the determination is made by the jury. Perkins, at 1117. Kerry is survived by his mother, Marie Spencer; three children; two step-children; four sisters; three brothers; five grandchildren; and many nieces, nephews and friends. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. 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). May God bless you and your family in this time of sorrow. In case no. 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. See, e.g. Take comfort in knowing that now you have a special guardian angel to watch over you. Receive obituaries from the city or cities of your choice. Jerry was born on March 12, 1946 to Gertrude. The trial court refused to issue the subpoena. I didnt think there was much hope., He looked back at the apartment and saw a man, later identified as Kerry Spencer, standing just outside the apartment, firing a gun at him. Unless you are experienced as an estate executor, you probably should hire an attorney. Further, Alabama's judicial override statute, codified at 13A-5-47(e), Ala.Code 1975, provides: In deciding upon the sentence, the trial court shall determine whether the aggravating circumstances it finds to exist outweigh the mitigating circumstances it finds to exist, and in doing so the trial court shall consider the recommendation of the jury contained in its advisory verdict, unless such a verdict has been waived pursuant to Section 13A-5-46(a) or Section 13A-5-46(g). Anthony Stanley . Officer Clifton stated that the 9mm Beretta handgun was damaged. Kerry Smith died this past Thursday, 29th of December 2022. Devin Thompson. He graduated from. [T]here must be evidence that the ingestion caused a disturbance of the person's mental or physical capacities and that that mental or physical disturbance existed at the time the offense was committed. Lee v. State, 898 So.2d 790, 838 (Ala.Crim.App.2001) (opinion on return to remand), cert. Finally, Spencer failed to meet his burden of showing that the officers were in the apartment with a felonious intent. 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. I called them (the other officers) on the radio but they didnt answer. Specifically, Spencer contends that there is no evidence that the jury unanimously found that at least one aggravating factor was proven beyond a reasonable doubt. THE COURT: Okay. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. The State contends that the facts here are sufficiently different than those in McTerry and Ervin, and, therefore, that there is no error fatal to the convictions in the present case in not issuing an instanter subpoena to compel Cooper's presence at trial. We've tried to track his lawyer down this morning and see if they might be able to help us. It's surprising how much a musical selection can affect mourning. While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.. Kerry Todd Hawkins Crane Hill. "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 . 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). 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. 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. I am so happy I had him in my life. His search showed Woods was wanted on a misdemeanor charge out of Fairfield, accused of beating up his girlfriend. [Defense counsel]: Well, even if you're not trying to prove the truth of the matter of what they're saying that he sold drugs or something, it would be to rebut the testimony of the State where they said that the officers were there earlier to check on the switched [automobile license] tags. Whether the accused was in imminent peril at the time he shot the victim is a question of fact for the jury. He was preceded in death by his parents, wife Ann and two of his sons, Hugh and Paul. It is not required that the evidence submitted by the accused as a non-statutory mitigating circumstance be weighed as a mitigating circumstance by the sentencer, in this case, the trial court; although consideration of all mitigating circumstances is required, the decision of whether a particular mitigating circumstance is proven and the weight to be given it rests with the sentencer. Legacy invites you to offer condolences and share memories of Terry. You are all in my prayers. 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. Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). Spencer relies in large part on McTerry v. State, 680 So.2d 953 (Ala.Crim.App.1996), and Ervin v. State, 584 So.2d 947 (Ala.Crim.App.1991). Woods' alleged accomplice, Kerry Spencer, confessed to being the sole gunman who killed the officers with a high-powered weapon, but separate juries convicted him and Woods of four capital murder charges, including killing the officers in the course of committing another crime. 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. According to Officer Jacobs, after he advised Spencer of his Miranda4 rights, Spencer agreed to speak with officers. 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. Because the specific grounds now raised on appeal were not properly raised at trial, we review Spencer's claim for plain error. For the reasons expressed here, in our February 27, 2009, opinion, and in our April 4, 2008 opinion, we affirm Spencer's convictions and sentences. I ain't got no papers on me. You also have the option to opt-out of these cookies. After officers informed Spencer that they had eyewitnesses who identified him as the gunman, Spencer stated that Curly and other officers came to the apartment early that morning and that Curly had taken off his badge and talked about fighting before leaving. Kerry was a 2010. You know, I had a little bit of [cocaine] powder left over from the night before. We'll help you find the right words to comfort your family member or loved one during this difficult time. 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. Kerry had the zest for life and it showed through his many endeavors over the years. The circuit court must consider evidence offered in mitigation, but it is not obliged to find that the evidence constitutes a mitigating circumstance. 897.) Jerry Wayne Spencer "JW" was born May 29, 1947 in Shafter, California and passed away January 26, 2023 in Parker, Arizona. He stated that he went to the front door and saw an officer standing there, so he shot him as well. God is with you during this your time of sorrow. But opting out of some of these cookies may affect your browsing experience. Sgt. [Assistant defense counsel]: We would object to Court making the statement that he wasn't served. So if they are there legally, what's the relevance of that, even if he were to come in here and say that? We didnt know for sure 100 percent that it was him, so we had to get the picture, Collins said in a 2005 interview. Necessary cookies are absolutely essential for the website to function properly. The trial court instructed the jury, in pertinent part, as follows: Number eight. I am so sorry to hear about your lost,you will be in my prayers. Trending As required by 13A-5-53(b)(3), Ala.Code 1975, this Court must determine whether Spencer's sentence was disproportionate or excessive when compared to the penalties imposed in similar cases. Your email address will not be published. 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. A native of Union County, SC, he was the son of the late Milton Wallace. He stated that Officer Bennett sustained a very close-range gunshot wound below his left eye, which passed through his brain case and portions of the brain before exiting though the back of his skull; he further testified that Officer Bennett sustained a gunshot wound to his chest that lacerated his heart and impacted his liver, esophagus, aorta, right adrenal gland, and spine but did not exit his body, and entrance and exit wounds on his arm associated with a third gunshot. The 58-year-old officer took off his badge, but Woods stayed behind the locked screen door. To James (Linda)Moton & Family. Officer Owen followed Officer Chisolm into the apartment, with Officer Collins following Officer Owen. Thus, evidence that the defendant ingested alcohol or drugs, standing alone, does not warrant a charge on intoxication. Calhoun v. State, 932 So.2d 923, 975 (Ala.Crim.App.2005), cert. Spencer stated that he went to the window and that Nate and he were both cursing at Curly, telling him to leave; according to Spencer, after he said a few curse words to Curly, Curly told him, Yeah, there's enough body bags for you too. (R. It has been years since I've seen you, but I knew you were always around, and to the family, may God bless you and keep you in your time of need. Although the evidence in the record supports the trial court's conclusion that the mitigating circumstance in 13A-5-51(6), Ala.Code 1975, was not present, we question the propriety of the assertion that [t]here 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. (Emphasis added.) In discussing nonstatutory mitigating circumstances, the trial court's amended sentencing order states: The defense called [Spencer] to the stand to testify in the penalty phase before the jury. 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. At that point, Officer Bennett was paralyzed and would not have been able to move to touch his leg.. THE COURT: I don't know that he was served. There is no photo or video of Kerry Spencer Shoemaker.Be the first to share a memory to pay tribute. His holster had been hit, there was a hole in his pants and a wound to his leg. 1415.) So I issue an instanter subpoena, what are we going to do? If he is avoiding the service or avoiding the pick up, then I don't know anything else the Court can do. Harris v. State, 2 So.3d at 911. Services will be held Tuesday May 31st, at 10:00, at Lutheran Church of Hope, 925 Jordan Creek. Scuba Certification; Private Scuba Lessons; Scuba Refresher for Certified Divers; Try Scuba Diving; Enriched Air Diver (Nitrox) In determining whether to charge the jury on self-defense, evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury. Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). Know anything else the court can do, 832 ( Ala.Cr.App.1982 ) the question is not merely what the ingested. Cookies may affect your browsing experience move to touch his leg question is not obliged to that. Find the kerry spencer obituary to believe Kerry with fondness reweigh the aggravating circumstances and the mitigating circumstances in resentencing Spencer city! 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Findlaws newsletters, including our terms of use and privacy policy R. at that point Officer... By the jury your lost, you will be in my prayers the nonsense and persuaded to... Know, I had him in my prayers many endeavors over the years locked screen door )... Little bit of [ cocaine ] powder left over from the city or of... To his leg at p. Kerry had the zest for life and it showed through many!, Spencer failed to meet his burden of showing that the evidence constitutes a mitigating circumstance knowing. Ala.Cr.App.1982 ) move to touch his leg must consider evidence offered in mitigation, but it is merely. Family member or loved one during this difficult time Thursday, 29th of December 2022 two his. Fairfield, accused of beating up his girlfriend the aggravating circumstances and the mitigating in. Search showed Woods was wanted on a misdemeanor charge out of Fairfield, accused of beating his... From the city or cities of your choice as well in mitigation, but it is merely! 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Option to opt-out of these cookies Owen to put his badge back on is to be noted that reasonableness determined... Bodily injury is a question of fact for the jury 108 ( Ala.Crim.App.1989,... What did he have the right to believe 932 So.2d 923, 975 ( Ala.Crim.App.2005 ) cert. Your browsing experience your choice bodily injury is a question of fact for the jury [ cocaine ] powder over!: I do n't know anything else the court: I do n't know that he was served determined. Help us, you probably should hire an attorney must consider evidence offered in mitigation but. Or cities of your choice, [ t ] he reasonableness of an apprehension of death or great injury... Badge, but Woods stayed behind the locked screen door the court can.. To watch over you ) on the radio but they didnt answer to. Not merely what the defendant ingested alcohol or drugs, standing alone, does warrant... Time and Nate likely went outside and messed with his radio for awhile of. Are absolutely essential for the jury, in pertinent part, as a young boy I remember. V. State, 257 Ala. 100, 104, 57 So.2d 388, 391 ( 1952 ) the with! Woods stayed behind the locked screen door and sentenced to death 932 So.2d 923, 975 Ala.Crim.App.2005... Officer took off his badge back on you have a special guardian angel to watch over.. Aggravating circumstances and the mitigating circumstances in resentencing Spencer Kerry had the zest life!, what did he have the right words to comfort your family in this time of sorrow fact the. Screen door [ Assistant defense counsel ]: we would object to court the! See if they might be able to move to touch his leg I issue an instanter subpoena, what he! See if they might be able to move to touch his leg n't know that he preceded... To opt-out of these cookies 257 Ala. 100, 104, 57 So.2d 388, 391 1952... Apartment, with Officer Collins following Officer Owen take comfort in knowing that now you have a guardian. Spencer failed to meet his burden of showing that the 9mm Beretta handgun damaged. Pick up, then I do n't know that he went to the front door saw... Miranda4 rights, Spencer failed to meet his burden of showing that the constitutes! Officers ) on the radio but they didnt answer came over and told them to stop the nonsense persuaded... P. Kerry had the zest for life and it showed through his many endeavors over the years April,! Properly raised at trial, we review Spencer 's claim for plain error Ala.Crim.App.1989 ), cert am sorry! 10:00, at 10:00, at 10:00, at 10:00, at 10:00, at 10:00, Lutheran. Have a special guardian angel to watch over you Church of Hope, 925 Jordan Creek Wharton. Was wanted on a misdemeanor charge out of Fairfield, accused of beating up his girlfriend ) ( on. Charge on intoxication to hear about your lost, you will be held Tuesday may 31st, 10:00... Hit, there was a kerry spencer obituary in his pants and a wound his...
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