Spencer v. State, No. CR-04-2570 (Ala. Crim. App. 4/4/2008), CR-04-2570.
| Decision Date | 04 April 2008 |
| Docket Number | No. CR-04-2570.,CR-04-2570. |
| Parties | Kerry Spencer v. State of Alabama. |
| Court | Alabama Court of Criminal Appeals |
Appeal from Jefferson Circuit Court (CC-04-4129; CC-04-4130; CC-04-4131; CC-04-4132; CC-04-4383)
The appellant, Kerry Spencer, was convicted of four counts of capital murder for his involvement in the shootings of four Birmingham police officers. In case no. CC-04-4129, Spencer was convicted of intentionally causing the death of Carlos Owen by shooting him with a firearm while Owen was on duty as a police officer, a violation of § 13A-5-40(a)(5), Ala. Code 1975. In case no. 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. In case no. CC-04-4131, Spencer was convicted of intentionally causing the death of Charles R. Bennett by shooting him with a firearm while Bennett was on duty as a police officer, a violation of § 13A-5-40(a)(5), Ala. Code 1975. In case no. CC-04-4383, Spencer was convicted of intentionally causing the death of Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett by one act or pursuant to one scheme or course of conduct by shooting them with a firearm, a violation of § 13A-5-40(a)(10), Ala. Code 1975. Finally, in case no. 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.
The penalty phase of the trial was conducted before the jury. In CC-04-4129, the jury recommended, by a vote of 9 to 3, that Spencer be sentenced to life imprisonment without the possibility of parole; in CC-04-4130, the jury recommended, by a vote of 10 to 2, that Spencer be sentenced to life imprisonment without parole; in CC-04-4131, the jury recommended, by a vote of 9 to 3, that Spencer be sentenced to life imprisonment without parole; and in CC-04-4383, the jury recommended, by a vote of 7 to 5, that Spencer be sentenced to life imprisonment without parole. On September 9, 2005, the trial court held the final sentencing hearing. On September 23, 2005, the trial court overrode the jury's recommendations and instead sentenced Spencer to death for the capital-murder convictions (CC-04-4129, CC-04-4130, CC-04-4131, and CC-04-4833); the trial court sentenced Spencer to life imprisonment for the attempted-murder conviction in case no. CC-04-4132. On October 5, 2005, Spencer filed a motion for a new trial. Spencer also filed a motion for reconsideration of the sentences and an amended motion for reconsideration of the sentences. On October 9, 2005, the trial court issued an amended sentencing order. On October 20, 2005, the trial court held a hearing on Spencer's motion for a new trial and denied that motion and Spencer's motion for reconsideration of his sentences and amended motion for reconsideration of his sentences that day. This appeal, which is automatic when a defendant has been sentenced to death, followed. See § 13A-5-53(a), Ala. Code 1975.1
The evidence adduced at trial indicated the following: On July 17, 2004, Officers Carlos Owen, Harley A. Chisolm III, and Charles R. Bennett, of the Birmingham Police Department, were shot and killed, and a fourth officer, Officer Michael Collins, also of the Birmingham Police Department, was shot but survived. 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. Officer Collins stated that he was familiar with the area so he proceeded to that location to back up Officer Owen. 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. 706.) Officer Collins stated that the individual told Officer Owen, " " (R. 709.) Officer Owen removed his badge and a female neighbor standing nearby called Officer Owen by his nickname, "Curly," at which time Officer Owen put his badge back on, put his arm around the female and then the two officers walked back toward their automobiles. Carolyn Slaughter testified that she lived in the apartment complex at the time of the shootings. Slaughter stated that she walked outside and saw Officer Owen talking to Nathaniel "Nate" Woods; according to Slaughter, she heard Nate tell Curly to "'[t]ake off that mother fucking badge and that gun and I will whoop your mother fucking ass.'" (R. 968.) Slaughter testified that Officer Owens removed his badge, but put it back on when she walked over to him and had a conversation with him. According to Slaughter, Nate told Officer Owens to get a warrant, and Officer Owens responded that the narcotics task force would be back.
Officer Collins testified that as they walked back to their automobiles, Officer Chisolm arrived and got out of his automobile. According to Officer Collins, he and Officer Owen were informing Officer Chisolm of the series of events that had transpired and someone inside the residence continued yelling, "Fuck the police." (R. 710.) Officer Owen informed Officer Collins that the man at the doorway was Nathaniel Woods.3 Officer Collins testified that he then conducted an inquiry through the computer equipment in his police vehicle, checking the City of Birmingham files and the National Crime Information Center ("NCIC") files, and he ascertained that a person named Nathaniel Woods, matching the general physical description of the man in the doorway and with an address in the area had an outstanding misdemeanor arrest warrant from the City of Fairfield Police Department.
Jacqueline Buchanan testified that she was a public safety dispatcher with the City of Fairfield. According to Buchanan, she confirmed for the Birmingham Police Department's dispatcher that Fairfield had an outstanding arrest warrant for Nathaniel Woods. Vicky Young, a dispatcher with the Birmingham Police Department, testified that she informed Officer Chisolm over the radio that the warrant was still outstanding. Officer Collins testified that after receiving confirmation that the warrant was valid, he and Officers Owen, Bennett, and Chisolm returned to the apartment to serve the arrest warrant on Woods. 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. He stated that when they arrived, he saw one individual run back inside the apartment and that Woods was standing at the screen door. 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. 727.) 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, " " (R. 728.) and (R. 803.) Officer Collins testified that they radioed Officer Chisolm and asked that he come to the back of the apartment to show Woods the printout of the NCIC information and the photograph of Woods from the files.
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. Officer Collins testified that Officer Chisolm pursued Woods into the apartment. Officer Owen followed Officer Chisolm into the apartment, with Officer Collins following Officer Owen. 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. 733.) Officer Collins stated that he heard Woods yell, " " (R. 733.) He stated that he then heard a radio transmission from Officer Bennett that "'[t]hey are coming out the front.'" (R. 733.) Officer Collins testified that he was unable to proceed through the apartment to the front door because Woods and Officers Chisolm and Owen were blocking the doorway, so he turned to go out the back door to go around the apartments to the front to assist Officer Bennett. 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.
According to Officer Collins, as he got to the back door, he heard the shooting begin inside the apartment and then felt a slap on his side and on his pistol which was holstered. He stated that he was stunned, and that he radioed a "shots fired" call over the police radio, and ran to the back of his police car. Officer Collins then radioed a "double aught" call, which he stated was the most drastic request for assistance, meaning an officer was down and assistance was needed from any precinct in the city. Officer Collins testified that he heard additional gunfire as he was taking cover behind his automobile and that bullets were striking his vehicle. He stated that he looked at the doorway of the apartment and saw a man...
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