I knew then. 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. Spencer stated that he looked out the back door and saw Officer Collins at the back of the apartment with his gun drawn and that Officer Collins ran behind his police car. denied, 543 U.S. 924, 125 S.Ct. Blanton testified that the suspect, who was discovered in the attic of the residence, was taken into custody. 1647.) You can send your sympathy in the guestbook provided and share it with the family. Ladies and gentlemen, a peace officer-and this is directly out of the Code of Alabama 1975, 13A-3-27. 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. The trial court thoroughly instructed the jury, among other things, on the elements of each charge and on the State's burden of proof. In Ervin, the circuit clerk failed to serve 23 defense subpoenas, an oversight that was discovered by defense counsel near the close of the State's case. But opting out of some of these cookies may affect your browsing experience. Funeral arrangement under the care ofHarvey-Engelhardt Funeral & Cremation Services. The undisputed evidence further indicated that Spencer had been asleep at the time the officers arrived; that he awakened, hearing commotion in the other end of the apartment; that he looked outside and saw police vehicles; that he rushed toward the commotion; that when he encountered the officers he fatally shot Officers Owen and Chisolm in the kitchen area of the apartment; that he turned and fatally shot Officer Bennett, who was near the front door of the apartment; and that he shot Officer Collins outside the back door of the apartment and fired additional shots at Officer Collins as Collins took cover behind his police car. 1588, 161 L.Ed.2d 270 (2005); Turner v. State, 924 So.2d 737 (Ala.Crim.App.2002); Stallworth v. State, 868 So.2d 1128, 1178 (Ala.Crim.App.2001) (opinion on return to second remand). Peraita v. State, 897 So.2d 1161, 1198 (Ala.Crim.App.2003). He stated that he then heard a radio transmission from Officer Bennett that [t]hey are coming out the front. (R. [Assistant defense counsel]: Well, what I'm saying is through no fault of our own we are here on Sunday morning and the clerk's office is obviously closed and we do not have access to the clerk's office record to determine whether or not he was served. Perry Lee Spencer, 71, of Pittsfield, PA, passed away at the Millcreek Community Hospital in Erie, PA on Tuesday, January 4, 2022, following a recent illness. On September 9, 2005, the trial court held the final sentencing hearing. ', Ex parte Ferguson, 814 So.2d 970, 976 (Ala.2001).. Spencer later would testify that they sold drugs out of the apartment, making up to $3,000 a day. 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.. In accordance with Rule 45A, Ala.R.App.P., we have searched the record, with respect to Spencer's capital-murder convictions, for any error that may have adversely affected Spencer's substantial rights and have found no plain error or defect in the guilt-phase proceedings of the trial. In most cases, the issue of self-defense is one of ultimate facts solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. 733.) Additionally, the initial arguments were between Woods and officers; Spencer willingly joined in the verbal jousting, and again continued his verbal sparring with a second officer even though the first officer had, according to Spencer, made threatening comments. While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court.. 61.) He took the assault rifle with him. Spencer presented a number of witnesses at trial. CC-04-4130, Spencer was convicted of intentionally causing the death of Harley A. Chisolm III, by shooting him with a firearm while Chisolm was on duty as a police officer, a violation of 13A-5-40(a)(5), Ala.Code 1975. The victim testified that the gunman, whom he identified as McTerry, was on foot at the time of the shootings; however, in the preliminary hearing, Williams had testified that the gunman was on a bicycle. [Section] 13A-6-3(a)(2) is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense. Shultz v. State, 480 So.2d 73, 76 (Ala.Crim.App.1985). The witness did not see the shootings; moreover, there was no indication that the witness was going to testify as to any specific communications between himself and the accused that would support a self-defense argument. 1360, 143 L.Ed.2d 521 (1999); Johnson v. State, 620 So.2d 679, 701 (Ala.Cr.App.1992), rev'd on other grounds, 620 So.2d 709 (Ala.1993), on remand, 620 So.2d 714 (Ala.Cr.App. During the sentencing hearing before the Court, [Spencer] testified that he was sorry for what he had done and apologized to the families of the victims. Spencer testified that he sold drugs from the apartment where the shootings occurred. Kerry was a very special person, and I'm glad to have known him. This Court concluded that the circuit clerk had failed to perform its affirmative duty under 12-21-244, Ala.Code 1975, to see that the defense's requested subpoenas were issued before trial, and, thus, that the trial court had to take all steps necessary to ensure the defendant's constitutional guarantee of compulsory process. Id. He loved telling stories, spending time with his grandchildren, playing cribbage and helping people. Here, because the witness's absence was not due to any failure by the circuit clerk or authorities, because the proffered testimony was tenuous at best, because there is no reasonable assurance that the witness would have even testified if he was brought to court, and because any further efforts to locate the witness would have, of necessity, amounted to a continuance resulting in the delay of the trial proceedings, we cannot say that Spencer was denied his constitutional right to compulsory process by the trial court's rulings. [Assistant defense counsel]: He's got a lawyer in his attempted-murder case. It is the finding of this court that death is the proper sentence in this case. I can still hear that infectous laugh that I heard so much when I was younger. 983, 984 (1918). I don't have no warrant. The evidence from trial showed that the defendant ran out the back door of the apartment as he fired at Officer Collins as he took cover behind his patrol car. Before reweighing the aggravating and mitigating circumstances in his amended sentencing order on return to second remand, the trial judge clearly stated that he had determined that the evidence concerning the testimony of Spencer's mother and uncle did not constitute mitigating evidence, nor did Spencer's proclamation of remorse and his apology to the victims' families. 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). No. Spencer testified that at the time of the shootings, he had a cocaine habit of about six to seven grams a day. (R. TO THE FAMILY AND FRIENDS MY SYMPATHY GOES OUT TO YOU AND MY PRAYERS ALSO, BE ENCOURAGED AND KNOW THAT GOD MAKES NO MISTAKE, YOU LOVED HIM BUT GOD LOVED HIM MORE. It had been continued over. 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. Born February 13, 1983, in Morehead, KY, Terry was the son of the late James Spencer and Sharon Stevens Richmond. 1682.) However, the court should charge on voluntary intoxication only when there is a sufficient evidentiary foundation in the record for a jury to entertain a reasonable doubt as to the element of intent. 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. Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him. The trial court further found the existence of two statutory mitigating circumstances: Spencer's age, pursuant to 13A-5-51(7) Ala.Code 1975, which was 24 at the time of the events; and the lack of significant history of prior criminal activity, 13A-5-51(1), Ala.Code 1975. Alabama Death Row Inmate List - U. Alabama Death Row Inmate List - V. Kim Vanpelt. It is highly unlikely that the defendant walked up to the body as he lay dying on the ground knowing that there was another live officer somewhere behind him, that he had attempted to kill. SERVICES. Obituary Terry Allen Spencer, 38, of Lexington, died November 4, 2021. Officer Collins stated that he heard Woods yell, I give up. She stated that she next saw the officers take Nate down inside the kitchen and that she got up and went into the bathroom. Photos Add a photo In Ex parte Johnson, however, the Alabama Supreme Court, in distinguishing the facts in Johnson from the facts in Snyder and Minor, stated: It is contradictory and inconsistent to allow, on the one hand, evidence of Johnson's prior bigamy conviction and prior bad acts as substantive evidence of the offense with which she was charged, yet, on the other hand, to require a limiting instruction instructing the jury that it cannot consider the evidence as substantive evidence that Johnson committed the charged offense. 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger). Eve Kelliher. 742, 136 L.Ed.2d 680 (1997)). The importance of saying "I love you" during COVID-19, Effective ways of dealing with the grieving process, Solutions to show your sympathy safely during the Covid-19 pandemic, Harvey-Engelhardt Funeral & Cremation Services. We also use third-party cookies that help us analyze and understand how you use this website. According to Williams, Spencer had a big gun that he had been carrying that day and the gun was near him while he slept. Kerry Carpenter (L) -- OF 13. She said Spencer was still asleep when Nate first began talking with the officers at the back door. 42.). You know, that occasionally happens. A little boy creeped out while sitting on Santa's lap used baby sign language to tell his parents he was not feeling safe with Old Saint Nick. According to Williams, Nate and she were sitting on the back porch, and they walked back inside when the officers arrived the second time. [Defense counsel]: He's also kin to Nathaniel Woods. 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. At the time of the shootings, 13A-3-23, Ala.Code 1975, provided: (a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. 1689.) (R. 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