It is with sadness that we announce the passing of Mr. Allen McKinnon with his wife, Glenda, by his side, after a hard-fought battle with Parkinson's Disease, on Thursday, February 23, 2023 at the age of 63 years. God Bless you all. Sgt. God Bless. 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. 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. Authorize the publication of the original written obituary with the accompanying photo. 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. Spencer v. State, [Ms. CR-04-2570, Feb. 27, 2009] --- So.3d ---- (Ala.Crim.App.2008). If youre in charge of handling the affairs for a recently deceased loved one, this guide offers a helpful checklist. 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. OB6 Obituaries, Notices. SPENCER, , KERRY DARNELL Age 34 of Rowlett, TX, passed away August 6, 2006. A trial court has broad discretion in formulating its jury instructions, provided those instructions accurately reflect the law and the facts of the case. 285, 126 L.Ed.2d 235 (1993).. Take that badge and gun off, I'll fuck you up. (R. 627, 634, 74 So. Necessary cookies are absolutely essential for the website to function properly. Perry was born on November 18, 1950, in Jamestown, NY, the son of the late Gordon and Florence Hollabaugh Spencer. The state contends that the appellant's motion for a subpoena amounted to a motion for a continuance. 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. Geraldine Smith Obituary. Eve Kelliher. 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. I wasnt going to stand there and argue. 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. (R. According to Buchanan, she confirmed for the Birmingham Police Department's dispatcher that Fairfield had an outstanding arrest warrant for Nathaniel Woods. View obituary. It was originally set for trial on April 11, the same day this was to be tried, this particular case to be tried. His search showed Woods was wanted on a misdemeanor charge out of Fairfield, accused of beating up his girlfriend. Richard L. Spencer Sr., 59, of Levittown, PA, died on Saturday, December 15, 2018.Richard was preceded in death by his loving father, Harold Spencer; his younger brother, Tom Spencer; his mother and father-in-law, Joyce and John Smith; and brother-in-law, Paul Brown.He is survived by his wife, Deb Burke; his mother, Lue Eva Spencer; his son, 1672.) SPENCER, Warren Reginald "Reg" - Passed peacefully on Wednesday October 14, 2020 at the age of 80 years. 1638.). This Court concluded that by failing to attempt to serve the first witness, the trial court could not determine that witness's whereabouts to be unknown or the witness to be outside of the court's subpoena power; moreover, this Court further noted that because the two witnesses were allegedly eyewitnesses to the actual shootings and could each allegedly provide testimony corroborating Ervin's self-defense claim, their testimony was not cumulative to other evidence because the jury could have found the missing witnesses to be more credible than the evidence presented at trial. Spencer testified that in response to that statement, Nate told Curly that he had no reason to be at the apartment and for him to get the fuck on off the property. (R. At that point, Officer Bennett was paralyzed and would not have been able to move to touch his leg.. Kerry Spencer passed away at age 34 years old on August 6, 2006. Spencer testified that Curly had attempted to force his way into the apartment through a window approximately eight months before the shootings, but that Nate had gotten his videocassette recorder and filmed the incident, startling Curly and causing him to jump back and leave. MAY GOD BE WITH YOU IN YOUR TIME OF GRIEF. document.getElementById("ak_js_1").setAttribute("value",(new Date()).getTime()); Copyright 2023 My Crime Library | Powered by Astra WordPress Theme. Here, the evidence Spencer contends required a limiting instruction was not evidence of prior convictions; further, the evidence was not offered to impeach Spencer's credibility. Kerry had the zest for life and it showed through his many endeavors over the years. We send our deepest sympathies to you and your family. Bennett joined them. The last occasion-. CC-04-4132. They are dying. FAQ. 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. Kerry referred to the Amazon rainforest as test of humanity, and said that without its protection it is impossible possible to limit global warming to 1.5 degrees Celsius (2.7 degrees Fahrenheit . In the present case, at approximately 4:45 p.m. on Saturday, June 19, 2005, during the defense's case, the defense called Cooper as its final witness; however, he was not present. Expand the Memories and Condolences form. See also Ex parte Pettway, supra, and Mordecai v. State, 858 So.2d 993 (Ala.Crim.App.2003).. Nathaniel Woods wasnt going to agree with anything we said that day., Woods ran back into the apartment. My tears are with yours, and so are my prayers. 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.. 59 (1909). Thus, we find no error, plain or otherwise, in the trial court's giving of the State's requested instructions eight and nine. 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. Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984); Tarver v. State, 137 Ala. 29, 34 So. For the reasons that follow, we agree with the State. As the Alabama Supreme Court has stated: See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. However, Spencer's reliance on this Court's opinion in Johnson is misplaced. More times than not they don't, but sometimes they do., This Court finds that the defendant's story that he shot Officer Bennett out of a mere reaction to his touching his leg defies logic and common sense. On cross-examination, the following exchange occurred: [Defense counsel]: If somebody received gunshot wound B to the chest, would there be a short period of time afterward when myoclonic jerk could have been a factor? Officer Bennett's body was found at the front door of the apartment. THE COURT: First of all, the officers are there on a lawful arrest warrant. He loved telling stories, spending time with his grandchildren, playing cribbage and helping people. (R. . 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.) As the United States Supreme Court stated in United States v. Young, 470 U.S. 1, 105 S.Ct. Neil went home to be with his Lord and Saviour. The officers' deaths in a hail of gunfire rocked Alabama's . Doyle served in the Iowa National Guard. Previous Next I will continue to lift this family in prayer. Harry was born May 1927 in Staten Island New York, to parents Margaret and Henry Spencer. My thoughts and prayers are with you in this time of deep sorrow. This Court stated: A corollary to the accused's right to compulsory process is the court's obligation to ensure that that right is not violated for procedurally pretextual reasons. 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). Giving to charity is a meaningful way to honor someone who has died. Spencer presented a number of witnesses at trial. Officer Collins testified that he heard additional gunfire as he was taking cover behind his automobile and that bullets were striking his vehicle. Kerry Smith cause of death and manner of death was not disclosed to the public at the time of this publication. At one point, Woods challenged Owen to stop hiding behind his badge and fight. Echovita Inc is a registered trademark. According to Officer Collins, Officer Owen and he went to the rear of the apartment and Officers Bennett and Chisolm went to the front of the apartment. 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. Passed away Feb 2020. Here, evidence that Spencer was engaged in a drug-dealing enterprise at the residence where the shootings occurred, evidence that Spencer was frequently seen in possession of a firearm at the residence, evidence that there had been a confrontation involving Spencer's accomplice Woods and police officers earlier in the day of the shootings, and evidence that Spencer had outstanding warrants for his arrest were all properly admitted for reasons other than simple impeachment of Spencer's credibility. Carolyn Lavender, a sergeant in the communications section of the Birmingham Police Department, testified about assorted radio transmissions between officers and dispatchers on the day of the shootings. He was such a warm and welcoming man. Wednesday, October 13, 2021. 2348, 147 L.Ed.2d 435 (2000), was not violated because the jury's verdict in the guilt phase found that fact to exist beyond a reasonable doubt). In Ex parte Edwards, 452 So.2d 503 (Ala.1983), the Alabama Supreme Court held that a private citizen may resist an attempt by law enforcement to subject him to an illegal arrest so long as he does not cause serious injury to the officer. [Defense counsel]: I do object, for the record. THE COURT: Sure. View online obituaries, write messages of remembrance, light virtual candles and more . Parsons v. State, 251 Ala. 467, 38 So.2d 209 (1948). May the love of friends and family carry you through your grief. Scott v. State, 34 Ala.App. According to defense counsel, an alias was issued on May 25, 2005, but defense counsel was unaware as to whether that subpoena had been served. Lavender testified that a police dispatcher contacted Officer Chisolm at 1:17 p.m., and notified him that the arrest warrant on Woods had been confirmed by the Fairfield Police Department. Ruben C. Parker, a sergeant with the Birmingham Police Department at the time of the shootings, testified that when he arrived at the scene, he saw Officer Bennett's service revolver on the ground approximately 6 to 12 inches from Officer Bennett's right hand, that another officer picked the weapon up from the ground and handed it to him, and that he kept the weapon in his custody until turning it over to evidence technician Chester White at the scene. Markesha Williams testified that she had been at the apartment the night before the shootings and both times the officers came to the apartment on the day of the shootings. Spencer also filed a motion for reconsideration of the sentences and an amended motion for reconsideration of the sentences. 1638.) Spencer stated that Nate told him at that time that he had been sprayed with Mace, and Spencer noticed a big knot on Nate's forehead. 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. [Spencer] testified about his education, having completed the tenth grade. To James (Linda)Moton & Family. Would you like to offer Kerry Spencer Shoemakers loved ones a condolence message? Bush v. State, 168 Ala. 77, 53 So. Log in to a funeral home below and get started. And, you know, I probably didn't go to sleep until about 4 in the morning, you know, just dozed off.. The following morning, defense counsel informed the trial court that Cooper was again not present. I give up. Kerry Spencer (@Swilua) December 5, 2017 The photo has captured so much attention, she shares it on Facebook every year. Citing Ex parte Taylor, 808 So.2d 1215 (Ala.2001), and Ex parte Carroll, 852 So.2d 833 (Ala.2002), Spencer argues on return to remand that the trial court could not override the jury's recommendation of life imprisonment without the possibility of parole absent reliance on some evidence or facts unknown to the jury that impacted the factual basis for the jury's sentencing recommendation. May your memories bring you comfort. 61.) No party may assign as error the court's giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge, unless the party objects thereto before the jury retires to consider its verdict, stating the matter to which he or she objects and the grounds of the objection.. According to Officer Collins, Officer Chisolm came to the back of the apartment and, while he was showing Woods the printout and photograph, told him that the arrest warrant from Fairfield was for assault, at which time Woods again cursed the officers and then turned and ran back inside the apartment. In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented. Id. My deepest sympathy goes out to you and your family. We are sad to announce that on October 7, 2021, at the age of 65, Kerry Donald Spencer (Fort Myers, Florida) passed away. In the 21st century, it's not just urns and gravestones anymore. What are you asking the Court to do? 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. Cook v. State, 46 Ala.App. James sorry to hear of the lost of your son . On the morning of the shooting, he went to take a nap. Spencer also presented the testimony of his mother and his uncle concerning his good behavior as a child and that he was remorseful for the offenses. When Collins looked again, he was gone. 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. McTerry v. State, 680 So.2d at 956. denied, 522 U.S. 969, 118 S.Ct. Because the evidence did not support a charge on heat-of-passion manslaughter, the trial court properly rejected Spencer's request for such a charge. A native of Union County, SC, he was the son of the late Milton Wallace. Spencer was born on July 23, 1991 to parents Eric and Diane Brown. ), cert. 742, 136 L.Ed.2d 680 (1997)). After searching some of the houses, his team was informed that the other search party had encountered one of the suspects, so his team went to that residence to assist. It would soon become the deadliest day in the departments history.Collins, then 37 and not yet a sergeant, had worked in the West Precinct for 10 years after leaving the Army, having served stints in Berlin and Operation Desert Storm. It was Dr. Simmons' opinion that the first shot to Officer Bennett struck his torso severing his spine which would have made it impossible for him to move, and that as he lay dying, the defendant shot Officer Bennett point blank in the face, the bullet passing through his brain. Despite Spencer's assertions to the contrary, the instructions did not lessen the State's burden or amount to an affirmative charge for the jury to return a finding of guilt. Brantley Funeral Home. Survived by wife Joyce Spencer, Daughters Corryl (Nick) Holm and Allison Spencer, Grandsons James and Thomas Holm, Sisters Carol and Randee and Brother Kevin. 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. Just sit around and wait? Some kind of incident happened in New Hill in Birmingham or in the Bessemer District of Jefferson County. You know, most folks would have called his lawyer and said, Look, I want to subpoena him. Finally, the trial court considered as a mitigating circumstance the jury's punishment recommendation. According to Officer Collins, none of the officers had their weapons drawn when they entered the apartment, and he did not see any of the officers draw their weapons while he was inside the apartment. THE COURT: What is it you are asking me to do? However, as Spencer argues in his brief on return to remand, there was evidence presented at trial that Spencer had ingested cocaine, Seraquel, and alcohol on the morning of the shootings. He stated that he went to the front door and saw an officer standing there, so he shot him as well. 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. What is he going to do? Obituary of Warren Reginald Spencer. Other jurisdictions that have considered this issue have concluded that a limiting instruction is not required when evidence of other crimes or prior bad acts is properly admitted as part of the res gestae of the crime with which the defendant is charged. Spencer next argues that the trial court erred in not issuing an instanter subpoena to compel the presence of defense witness Tyran Bubba Cooper. Harrison v. State, 580 So.2d 73, 74 (Ala.Crim.App.1991). 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. Kerry was a very special person, and I'm glad to have known him. However, this evidence alone does not constitute evidence indicating that Spencer was intoxicated at the time of the shootings. Although [Spencer] offered an apology for his actions, it is in direct contradiction with the undisputed facts of the case nor his statement to police after his arrest, or his testimony before the jury in the penalty phase. It is solely for the jury to determine whether the inference that accused was in actual or apparent immediate peril is reasonable. 1088-89.). Officer Collins testified that when he arrived, he saw Officer Owen standing at the screen door of an apartment speaking with a black male, so he got out of his vehicle and began to approach the apartment.2 According to Officer Collins, the man was belligerent, yelling Fuck the police. (R. 38 So.2d 209 ( 1948 ) completed the tenth grade Fairfield, accused of beating his! Death and manner of death and manner of death was not disclosed to the at... 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