See Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992). 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). In Williams v. State, 938 So.2d 440 (Ala.Crim.App.2005), this Court addressed a similar issue as follows: An accused has the right to have the jury charged on any material hypothesis which the evidence in his favor tends to establish. Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). 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. No. It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. 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. In addition to the plethora of guns and unspent and spent ammunition discovered in and outside the apartment where the shootings occurred, the testimony indicated that Officer Owens's holster was damaged and that his service handgun was not located in the vicinity of his body. [Defense counsel]: One, to make a determination if the last May 25 subpoena has been served at Pearson Hall. denied, 252 Ala. 60, 39 So.2d 421 (1949), and where the evidence of intoxication is offered by the State, see Owen v. State, 611 So.2d at 1127-28.'. The prosecutor later clarified, and defense counsel agreed, that Cooper was not expected to testify that he was present at the apartment when the shootings occurred or that he actually witnessed the shootings.6. A 1991 graduate of Tarrant High School. See also Ex parte Waldrop, 859 So.2d 1181 (Ala.2002), with regard to Spencer's contention regarding the weighing of aggravating and mitigating circumstances. See Ex parte Carroll, 852 So.2d 833 (Ala.2002) ([A jury's recommendation of life imprisonment without parole] is to be treated as a mitigating circumstance.); and Ex parte Taylor, 808 So.2d 1215, 1219 (Ala.2001) ([T]he trial judge must state specific reasons for giving the jury's recommendation the consideration he gave it.). Sgt. 17.) See Rule 17.5, Ala.R.Crim.P., ([a]ny witness who, after being subpoenaed, fails to appear may be attached by order of the court) and 12-21-182(a) (the attendance of such witness may be compelled by attachment). He said he had bought the SKS the day before, and had even test-fired it the previous night. The rule of self-defense is that persons may and must act on the reasonable appearance of things. In this case, the trial court considered the jury's recommendation as a nonstatutory mitigating circumstance and gave it moderate weight. According to Dumas, Spencer fired the weapon on the night before the shootings and essentially kept it in his possession from the time he purchased it until the shootings the following day. His holster had been hit, there was a hole in his pants and a wound to his leg. 1689.) Spencer testified that Nate went to the front door and engaged in a discussion with an officer. The trial court noted: In CC-04-4129 the jury's recommendation was nine (9) for life without parole and three (3) for death. Des Moines - Larry H. Spencer, 82, passed away on Saturday, May 21, 2022 which was Armed Forces Day. It is well settled that a trial court need not specify in its sentencing order each item of proposed nonstatutory mitigating evidence offered that it considered and found not to be mitigating. Wilson v. State, 777 So.2d 856, 892 (Ala.Crim.App.1999), quoting Williams v. State, 710 So.2d 1276, 1347 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (emphasis omitted). Please try again. ', Ex parte Ferguson, 814 So.2d 970, 976 (Ala.2001).. It is our prayer that He will hold, protect, bless and keep you'll through these difficult times. I really wish my neice, his sister, Tricia, was there with you'll to celebrate in his homegoing. Ill never forget that, Collins said. Please accept Echovita's sincere condolences. 190 (1892), however unsatisfactory and inconclusive to the judicial mind the evidence of self-defense may appear. Our staff does not correct grammar or spelling. At Find-a-Grave, you can view a loved ones gravestone, seeing photos from your local cemetery. Ervin, 584 So.2d at 949. That was the first time I saw him. 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. Nathaniel Woods wasnt going to agree with anything we said that day., Woods ran back into the apartment. Spencer stated that they were going to wait until the police shift changed at 3:00 p.m., and then slip out of the apartment at that time to avoid encountering the officers that day. See People v. Coney, 98 P.3d 930 (Colo.Ct.App.2004) (holding that evidence of other offenses or acts that are part and parcel of the charged offense is admissible as res cestae and may be admitted without a limiting instruction); State v. Long, 173 N.J. 138, 171, 801 A.2d 221, 242 (2002) (evidence of the defendant's actions served to paint a complete picture of the relevant criminal transaction and therefore was admissible, and a limiting instruction was unnecessary because the evidence was admitted under the res gestae exception); and Camacho v. State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993) (holding the evidence of the extraneous offenses showed the context in which the criminal act occurred, i.e., the res gestae, and was therefore admissible and not subject to the requirement of a limiting instruction). Woods was shouting expletives about the police from inside one of the four small, dingy apartments. Evidence technicians and a crime-scene investigator photographed and diagramed the scene and collected evidence in the area. Both Nathaniel Woods and Kerry Spencer were arrested, convicted and sentenced to death. 2167 Heucks Retreat Road NE. Because the evidence was proper to establish factors such as motive and intent, we find no plain error in the trial court's failure to sua sponte issue a limiting instruction as to the complained-of evidence. 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. Expand the Memories and Condolences form. 733.) Ryan Kreidler (R) -- IF, OF The first nine on this list are pretty good bets. Spencer stated that shortly after 10:00 a.m. that morning, he took a Seroquel tablet and drank a beer to help him sleep. Photos Add a photo Grief researchers say holding that missing funeral service, even a year or more later, can still help us heal. Mifflintown, PA 17059. 1658.) As to other mitigating evidence, the trial court found that the evidence showing that Spencer had obtained a GED and was an electrician by trade did not carry any significant weight. Passed away Feb 2020. 1647.) Whether the accused reasonably believes that another person is using or is about to use unlawful deadly physical force against him is a question for the jury. 862.) Although there was evidence that the appellant had been drinking beer on the day of the robbery-murder, there was no evidence concerning the quantity of beer he consumed that day at the time of the murder. family hang in there until you meet again. Kerry had the zest for life and it showed through his many endeavors over the years. Therefore, Spencer's claim is without merit. He was born August 25, 1971, in Dallas, TX, to James Moton and Bernice (Scroggins) Rose. Unless you are experienced as an estate executor, you probably should hire an attorney. denied, 526 U.S. 1052, 119 S.Ct. This website uses cookies to improve your experience while you navigate through the website. It wasnt like I had time to say, Oh, you fixing to shoot me. Spencer v. State, [Ms. CR-04-2570, April 4, 2008] --- So.3d ---- (Ala.Crim.App.2008). As to whether the second legally recognized provocation (whether Spencer was assaulted or faced with an imminent assault on himself) is applicable under the facts of this case, we have reviewed the evidence and answer that question in negative. 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. 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. Published by Dallas Morning News on Aug. 10, 2006. Mon Feb 27 2023 - 05:00. This court previously pretermitted a plain-error review of Spencer's sentencing proceeding, pending the trial court's return to our remand order. Officer Hugh Butler was the first to go to Collins. The officers, joined by Chisholm, left to double-check that the warrant was valid. THE COURT: Okay. Kerry Washington leads the cast as Paige Alexander, a marriage and family therapist and mom to 16-year-old Finn. Dr. Gary Simmons, a forensic pathologist with the Jefferson County coroner's office, testified that he performed the autopsies on all three officers and concluded that each had died of multiple gunshot wounds. 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. 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. IF YOU ABIDE WITH GOD, HE WILL ABIDE WITH YOU. The best poems for funerals, memorial services., and cards. According to Spencer, Officer Collins arrived on the scene at that time and parked behind Curly's automobile, and Curly walked back to his car. Ingram v. State, 779 So.2d 1225 (Ala.Cr.App.1999). Johnson v. State, 820 So.2d 842, 874 (Ala.Crim.App.2000).. These circumstances are to be ascertained by the jury Oliver v. State, 17 Ala. 587, 599 (1850). According to Dumas, he had stayed there for approximately 18 or 19 days, and that, although he saw officers patrolling the area, the morning of the shootings was the first time he saw officers actually come to the apartment. The following exchange then occurred: [Defense counsel]: Secondly, if not served, we would ask the Court to issue instanter subpoena since we know where he's at and he's a critical witness in this capital murder case. So do you really think once he talks to his lawyer that he is not going to invoke his Fifth Amendment privilege, especially in light of the fact he's told you he wouldn't come and has been apparently uncooperative? 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. Spencer may indeed have had a fear of the officers, but based on the evidence presented, we cannot say that that fear was reasonable. 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