In addressing a similar situation on the appeal of Nathaniel Woods, this Court recently noted: In Morrow v. State, 928 So.2d 315 (Ala.Crim.App.2004), this Court addressed a similar situation: In addition, in its order, the trial court stated the following regarding nonstatutory mitigating circumstances: The Judge, just as the jury, is entitled to consider anything, any matter that the Court might find in any way to be mitigating in order to consider the same and balance the same with the aggravating circumstances as found by the Court. Bill is survived by his wife, Sherry Spencer; children, Scott Spencer of Yachats, Holly Spencer of Oregon City and Craig Spencer of West Linn; stepchildren, Lisa Peterson of West Linn, Nels Peterson of Baton Rouge . CC-04-4132, Spencer was convicted of intentionally attempting to cause the death of Michael Collins by shooting at him with a firearm, a violation of 13A-6-2 and 13A-4-2, Ala.Code 1975. A native of Union County, SC, he was the son of the late Milton Wallace. We pretermit our plain-error review of Spencer's death sentence pending the trial court's return to remand. As noted above, ironically in one of the very cases relied upon by Spencer on appeal, the court's duty to issue subpoenas on an accused's behalf does not require the court to grant a motion for a continuance or a motion for an attachment. Because there was no rational basis for an instruction on voluntary intoxication, we find no plain error in the trial court's failure to instruct the jury on voluntary intoxication or reckless manslaughter as a lesser-included offense. [Spencer] also testified before the Court in the sentencing phase before the Court. Funeral: 2 Mar 2020, Narberth. Share FacebookTwitterLinkedinEmail address Listen Follow Report this obituary 884 (1940); Moore v. State, 54 Ala.App. Spencer further testified that Curly initially said he'd be back with the narcotics unit, but then said, Nah, I'll be back when I get off work. (R. Spencer testified that he came out of the bedroom with the SKS assault rifle in his hands and encountered Nate coming toward him, holding his face as if he were in pain. Spencer Jones hit four 3-pointers and scored 21 points on 7-of-13 shooting from the field, Brandon Angel added 14 points, seven rebounds and four assists and Stanford beat Washington 81-69 Sunday . She said that she left for a few minutes after the officers left the first time, and that she was at the apartment and saw the officers arrive the second time. 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 A person may use deadly physical force if the actor reasonably believes that such other person is: (1) Using or about to use unlawful deadly physical force; or, (2) Using or about to use physical force against an occupant of a dwelling while committing or attempting to commit a burglary of such dwelling; or, (3) Committing or about to commit a kidnapping in any degree, assault in the first or second degree, burglary in any degree, robbery in any degree 7. Other times people just die. 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. denied, 548 U.S. 926, 126 S.Ct. See also Guthrie v. State, 689 So.2d 935 (Ala.Crim.App.1996), aff'd, 689 So.2d 951 (Ala.1997). It is not an honest, but a reasonable belief, that justifies. View Terry Spencer's obituary, contribute to their memorial, see their funeral service details, and more. 98.) He conceded that he had fired his assault rifle the night before. Officer Collins testified that, as he and Officer Owen walked toward the back door, a man who was working on an automobile parked near the apartment got up and walked away, saying, I don't want no part of this. (R. OBITUARY Kerry Spears, Jr. closed the final chapter of his earthly life on Tuesday, August 30, 2022, at the age of 31. Kerry Todd Hawkins Crane Hill. Finally, Spencer failed to meet his burden of showing that the officers were in the apartment with a felonious intent. Evidence technicians and a crime-scene investigator photographed and diagramed the scene and collected evidence in the area. The average age of a Spencer family member is 71. Spencer next contends that the trial court erred in refusing to instruct the jury on heat-of-passion manslaughter as a lesser-included offense. According to Spencer, he was cautious as he left the front of the apartment because he did not know if any officers were waiting for him; that he had the SKS in his hand pointed down at the ground; that as he was standing next to where Officer Bennett was lying on the ground, the officer's hand jumped and touched [him] and he fired the SKS assault rifle in an automatic reflex. (R. Spencer concedes that much of the evidence was admitted without objection; that the defense also introduced evidence and argument regarding his possession of a firearm and that sales of illegal drugs took place at the apartment; and that much of the evidence was admissible at trial. 42.). MAY GOD CONTINUE TO BLESS YOU AND YOURS DURING THIS TIME OF GRIEF. [Defense counsel]: Well, we think we've proven self-defense in our-. He stated that when they arrived, he saw one individual run back inside the apartment and that Woods was standing at the screen door. 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.. Collins said Woods left the officers with one warning: Come in here, and well (expletive) you up.. 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. Officer Collins stated that he heard Woods yell, I give up. (Emphasis added.) So they are there in the house legally. 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. Spencer first argues that the trial court erroneously allowed evidence of collateral crimes and prior bad acts, without sua sponte giving a limiting instruction to the jury regarding the proper use of the now complained-of evidence. Ill never forget that, Collins said. Spencer was found hiding in the attic of a nearby home, still armed. 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). 913.) Here, the trial court considered the jury's recommendation as a mitigating circumstance and assigned it moderate weight. You say he is crucial. Sat, 25 Feb, 2023 - 02:00. When discussing the application of the plain-error standard of review, this Court has stated: The standard of review in reviewing a claim under the plain-error doctrine is stricter than the standard used in reviewing an issue that was properly raised in the trial court or on appeal. 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. Save my name, email, and website in this browser for the next time I comment. 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. We can't even get in touch with his lawyer. 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). Eve Kelliher. He was preceded in death by grandparents Rollin and Lucille Sellers and Raymond Allison. 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. It is a basic tenet of Alabama law that a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, and the [trial] court's failure to give those instructions is reversible error. ' Ex parte McGriff, 908 So.2d 1024, 1035 (Ala.2004), quoting Winner Int'l Corp. v. Common Sense, Inc., 863 So.2d 1088, 1091 (Ala.2003), quoting in turn other cases. 401, 406-07, 265 So.2d 185, 190, cert. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. Our thoughts and prayers are with you in your time of sorrow. I don't have no warrant. She stated that that morning one of the officer's took off his badge and tried to get Spencer to come outside, but that Spencer said the police could not get him outside in that manner. The first thing I said to him was, It was only a misdemeanor. (C. I am so sorry to hear about your lost,you will be in my prayers. [Assistant defense counsel]: He indicated to us he was going to testify. Spencer further stated that sometime shortly after 9:00 a.m. on the morning of the shootings, he took a Seroquel tablet and drank a beer to help him go to sleep. 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. Just inside the kitchen, Chisholm got Woods down on the floor as if he was about to handcuff him, and Woods yelled, I give up. The trial court instructed the jury, in pertinent part, as follows: Number eight. This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable. We also use third-party cookies that help us analyze and understand how you use this website. The court must do all that the defendant calls upon it to do within the legal power of the court to obtain evidence under Article I, 6. THE COURT: It doesn't matter what they are there for earlier. 1183, 161 L.Ed.2d 1 (2005), Duke v. Alabama, 544 U.S. 901, 125 S.Ct. King v. State, 71 Ala. 1, 4 (1881). He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. If he is avoiding the service or avoiding the pick up, then I don't know anything else the Court can do. Jerry has three wonderful children Jesse Spencer, Kim Ortega and Anna Pate. Sgt. They're not a map to follow, but simply a description of what people commonly feel. Always - Sharetha LaJoyce Ivory*** PIG - I love you all. It is mandatory to procure user consent prior to running these cookies on your website. 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. They were married for thirty beautiful years and shared many memories together. He put out a double aught call, the most drastic request for backup an officer can make. Funeral: Private. Spencer, Bill 81 May 21, 1935 June 17, 2016 William Bill Earl Spencer, of Portland, passed away June 17, 2016. Thus, the trial court clearly considered this evidence presented by Spencer when determining that this mitigating circumstance did not exist. 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. Officer Hugh Butler testified that he arrived at the scene and saw another officer in position at the front door of the apartment, so he approached the door as well; according to Officer Butler, as he walked toward the front door, he saw Officer Bennett lying on the ground, stating, I looked down and saw his eyes wide open, his pupils were blown and he had a hole in his face with a little bit of smoke coming out of it. (R. It had been continued over. 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. 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. denied, 481 U.S. 1033, 107 S.Ct. Spencer, citing Ring v. Arizona, 536 U.S. 584, 122 S.Ct. Ex parte McWhorter, 781 So.2d 330, 342 (Ala.2000). 733.) With regard to Spencer's third allegation, the amended sentencing order states: In addition, Dr. [Gary] Simmons testified at trial that Officer Bennett, who was found dead at the front door of the apartment was shot multiple times. He stated that he then heard a radio transmission from Officer Bennett that [t]hey are coming out the front. (R. [Defense counsel]: I think we need to make an attempt to see if he is there and see if he is going to come. Dumas stated that Belser was the doorman and that he was the assistant doorman in that they answered the back door for people who came to the house to buy drugs; they would take the money from the individual and turn it over to Woods or Spencer; Woods or Spencer would then hand them the drugs; and they would in turn hand the drugs to the customer. Spencer testified that at the time of the shootings, he had a cocaine habit of about six to seven grams a day. (R. Learn more about FindLaws newsletters, including our terms of use and privacy policy. The trial court also placed great weight on the aggravating circumstance contained in 13A-5-49(7), Ala.Code 1975, that the capital offense was committed to disrupt or hinder the lawful exercise of a government function. Rather, he now argues that the trial court's giving the State's requested instructions eight and nine and refusing the defense's requested instructions on self-defense, provocation, and felonious arrest was in essence an affirmative charge for the jury to return a finding of guilt and reduced the State's overall burden of proof. 519, 41 So.2d 630 (1949). 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. 698 So.2d at 205. That's why you deal with the witness's lawyer rather than directly with him. In Pilley this Court provided guidance as to what evidence would be required to form that evidentiary foundation. The trial court, on return to second remand, has submitted an amended sentencing order and has again sentenced Spencer to death. 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. [Defense counsel]: I do object, for the record. 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. denied, 526 U.S. 1052, 119 S.Ct. She stated that she next saw the officers take Nate down inside the kitchen and that she got up and went into the bathroom. 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