denied, 524 U.S. 929, 118 S.Ct. The state contends that the appellant's motion for a subpoena amounted to a motion for a continuance. So they are there in the house legally. See also Lewis v. State, [Ms. CR-03-0480, April 28, 2006] --- So.3d ----, ----, (Ala.Crim.App.2006); Yeomans v. State, 898 So.2d 878, 904 905 (Ala.Crim.App.2004). Obituaries week of March 1; . 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. ), cert. THE COURT: How long do you think I can sit around and wait? 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. Therefore, Spencer is not entitled to any relief on this claim. Williams testified that she looked and saw Nate in the doorway. 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. He put out a double aught call, the most drastic request for backup an officer can make. 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.. Spencer further stated that he did not stop shooting until the officers were down. (R. You will be greatly missed. 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. You know, that occasionally happens. In order to reach this conclusion, we must reweigh the aggravating circumstances and the mitigating circumstances as found by the trial court., 735 So.2d at 1269 (emphasis added). Spencer next contends that the trial court erred in refusing to instruct the jury on heat-of-passion manslaughter as a lesser-included offense. 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. The family will receive friends Thursday evening at the funeral home from 6:00 to 8:00pm. 1190, 108 L.Ed.2d 316 (1990), for the proposition that an error occurs only when there is a reasonable likelihood that the jury applied the instruction in an improper manner. Williams v. State, 710 So.2d 1276, 1306 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997), cert. www.kerryfuneralhome.ca To plant a beautiful memorial tree in memory of Warren Spencer, please visit our Tree . Officer Bennett's body was found at the front door of the apartment. 401, 406-07, 265 So.2d 185, 190, cert. Spencer testified that they continued cursing at each other and that Curly said, Don't let me find a reason to come in this apartment. (R. Outside the hearing of the jury, defense counsel informed the trial court that the witness had not been subpoenaed because the witness had told defense counsel on three or four occasions he didn't need a subpoena. (R. 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. 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. BASCHAB, P.J., and SHAW, WISE, and WELCH, JJ., concur. 1659.) Snyder v. State, 893 So.2d 488, 548 (Ala.Crim.App.2003); see also Belisle v. State, 11 So.3d 256, 308 (Ala.Crim.App.2007); and Harris v. State, 2 So.3d 880, 910 (Ala.Crim.App.2007). Therefore, we conclude that the circuit court complied with both Ex parte Taylor and Ex parte Carroll in overriding the jury's recommendation.. However, as Spencer notes in his brief on return to remand, Dr. Simmons's testimony left open the possibility that Officer Bennett, even if only as merely an involuntary reaction, could have had random, irregular muscle contractions or twitches even after sustaining the gunshot wound to the torso. 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. The court determines what the rules are, but it is for the jury to determine whether the standard has been met by the evidence in the particular case. R. Perkins & R. Boyce, Criminal Law 1116 (3d ed.1982). Bennett, still out in the front of the building, said over the police radio: They are coming out the front. Collins wasnt able to go to the front door through the apartment because Woods, Chisholm and Owen were blocking the doorway. Rather, based on the evidence presented at trial, Spencer failed to establish any evidentiary foundation of intoxication that would warrant an instruction on intoxication. The Health and Information and Quality Authority (HIQA) began an unannounced two-day inspection at the hospital yesterday. Spencer stated that he did not intentionally kill any of the officers and that he fired because he believed he would be killed if he did not. Therefore, in returning a guilty verdict as to the charged capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct, the jury of necessity unanimously found that that statutory aggravating circumstance had been proven beyond a reasonable doubt, i.e., 13A-5-49(9), Ala.Code 1975. The foregoing opinion was prepared by Retired Appellate Judge H.W. 371, 372, 77 So. According to Dumas, when he began walking back to the apartment, he saw a large number of police officers, so he continued walking to a different location. An independent weighing of the aggravating and mitigating circumstances indicates that death is the proper sentence. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. 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. You know, I had a little bit of [cocaine] powder left over from the night before. Collins said he felt a slap on his side and on his pistol which was holstered. That's why you deal with the witness's lawyer rather than directly with him. See also Ex parte Tomlin, 909 So.2d 283 (Ala.2003). 24; Cosby v. State, 269 Ala. 501, 114 So.2d 250. Payne v. State, 48 Ala.App. 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). Geraldine Smith Obituary. Kerry Jane Hooper (nee Spencer) Mar 1961 - Jan 2019. I knew then. See Pilley v. State, 930 So.2d 550, 562 (Ala.Crim.App.2005). Officer Collins testified that while on patrol that morning, he heard a radio transmission from Officer Owen indicating that Officer Owen was getting out of his police vehicle at the 1600 block of 18th Street in Ensley to investigate something suspicious or a miscellaneous complaint. View online obituaries, write messages of remembrance, light virtual candles and more . Spencer was the shooter but he had not acted alone, police alleged. 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. Harris v. State, 2 So.3d at 911. All rights reserved. I wasnt going to stand there and argue. Haney v. State, 603 So.2d 368, 389 (Ala.Crim.App.1991), aff'd, 603 So.2d 412 (Ala.1992). JUST KNOW THAT YOU ARE NOT ALONE. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. Leave a sympathy message to the family on the memorial page of Kerry Donald Spencer to pay them a last tribute. Further, the witness in McTerry actually appeared at the courthouse for trial in response to the subpoena issued by the State, and there were no reasons present in the record to indicate that he would not return to testify. According to Spencer, Curly took off his badge and told them to come out, to which Nate responded that they were not stupid, at which time Carolyn Slaughter walked over to Curly and intervened, telling Curly to stop acting like that and to put his badge back on. Food has always been a go-to for people in mourning. Bennett joined them. Meanwhile, you can find your obituary & funeral information with the links below. Unfortunately, I cannot make it to the service. That subpoena was returned unserved on May 23, 2005, because Cooper had not been located. He stated that Curly was always harassing them. However, with regard to the sentencing order, although the trial court made thorough and specific findings of fact regarding the statutory aggravating circumstances and statutory mitigating circumstances, it did not make specific findings of fact regarding the existence or nonexistence of nonstatutory mitigating circumstances offered pursuant to 13A-5-52. Additionally, Rule 17.5, Ala.R.Crim.P., provides that [a]ny witness who, after being subpoenaed, fails to appear at the time and the place as required by the subpoena, or who fails to remain until released, may be attached by order of the court. In Weaver v. State, 401 So.2d 344 (Ala.Crim.App.1981), this Court stated: Before it can be said that the accused has been denied this constitutional right, he must apply to the court for the issuance of an attachment and show to the court that the witness has been served with a subpoena a sufficient length of time before the trial to afford an opportunity to the witness to obey its mandate, that the witness is within the jurisdiction of the court, and that his attendance can be obtained within a reasonable time by the compulsory process, that such witness is absent without the procurement or consent of the accused, and that the testimony of the witness is material . Required fields are marked *. You and your family will be in my thoughts and prayers. Rule 45A, Ala.R.App.P., states: In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.. 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. See also Brownfield v. State, supra (jury conviction of the capital offense of the murder of two or more people during one act or pursuant to one scheme or course of conduct satisfied the requirement that an aggravating circumstance be found by the jury and the verdict itself rendered the defendant eligible for the death penalty, exposing him to a range of punishment that included the death penalty); and Yeomans v. State, 898 So.2d 878 (Ala.Crim.App.2004) (same). Thus, we find no error, plain or otherwise, in the trial court's giving of the State's requested instructions eight and nine. Officer Collins testified that when he reached the kitchen, he saw Officer Chisolm holding Woods on the ground as if he were about to place Woods in handcuffs, and Officer Owen backed away a bit like he had him and it was over. (R. Doyle Cox, age 84 of Boone and the Westhaven Community, passed away on Wednesday, February 22, 2023 at the Westhaven Community. 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.. Spencer presented a number of witnesses at trial. denied, 522 U.S. 969, 118 S.Ct. Cocaine ] powder left over from the night before, 114 So.2d 250 in. Ala.1992 ) double aught call, the most drastic request for backup officer..., write messages of remembrance, light virtual candles and more Nathaniel Woods and Spencer... 2 So.3d 880 ( Ala.Crim.App.2007 ), cert August 25, 1971, in Dallas, TX, to Margaret. And SHAW, WISE, and Eatmon v. State, 2 So.3d 880 ( Ala.Crim.App.2007 ), aff,... The proper sentence the links below a sympathy message to the jury 's recommendation,! 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