Spencer v. State

201 So.3d 573

Kerry M. SPENCER

v.STATE of Alabama.

CR–12–1837.

Court of Criminal Appeals of Alabama.

Feb. 6, 2015.

Rehearing Denied July 2, 2015.

Certiorari Denied Feb. 19, 2016

Alabama Supreme Court 1141123.

Stephen D. Wadsworth, Birmingham, for appellant.

Luther Strange, atty. gen., and Beth Jackson Hughes, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

Kerry M. Spencer, an inmate on death row at Holman Correctional Facility on Alabama's death row, appeals the Jefferson Circuit Court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P., attacking his capital-murder convictions and sentences of death.

In 2005, Spencer was convicted of murdering Birmingham Police Officers Carlos Owen, Harley A. Chisholm III,^* and Charles R. Bennett and of attempting to murder Officer Michael Collins. The jury recommended that Spencer be sentenced to life imprisonment without the possibility of parole. The circuit court declined to follow the jury's recommendation and sentenced Spencer to death for his capital-murder convictions and to life imprisonment for the attempted-murder conviction. On direct appeal, this Court ultimately affirmed Spencer's convictions and sentences. See Spencer v. State, 58 So.3d 215 (Ala.Crim.App.2008). This Court issued the certificate of judgment on September 17, 2010.

On September 16, 2011, Spencer filed a timely Rule 32, Ala. R.Crim. P., petition in the circuit court attacking his capital-murder convictions and sentences of death. Spencer filed amended petitions in March 2012 and August 2012. In July 2013, the circuit court issued an order summarily dismissing Spencer's postconviction petition. Spencer moved the circuit court to reconsider its dismissal. That motion was denied. Spencer then filed a timely notice of appeal to this Court.

On direct appeal, this Court set out the following facts surrounding the murders of three Birmingham police officers and the attempted murder of a fourth officer:

“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. According to Officer Collins, the man was belligerent, yelling ‘ “F[– – –] the police.” ’ (R. 706.) Officer Collins stated that the individual told Officer Owen, ‘ “[Y]ou hide behind that badge and gun. I'll f [– – –] you up. Take that badge and gun off, I'll f[– – –] you up.” ’ (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; ^[1]according to Slaughter, she heard Nate tell Curly to ‘ “[t]ake off that mother f[– – –]ing badge and that gun and I will whoop your mother f[– – –]ing ass.” ’ (R. 968.) Slaughter testified that Officer Owen 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 Owen to get a warrant, and Officer Owen 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, ‘F[– – –] the police.’ (R. 710.) Officer Owen informed Officer Collins that the man at the doorway was Nathaniel Woods. 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.

“....

“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, ‘ “I give up. I give up. Just don't spray me with that mace.” ’ (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 standing just outside the apartment and firing a gun in his direction. Officer Collins stated that his holster was damaged during the shooting, that he had a hole in his pants, that he sustained a wound in his leg, and that he later found a metal fragment in his pants pocket. Officer Collins identified Spencer in court as the man he saw standing outside the apartment shooting at him.

“....

“Several of the officers who responded to the double-aught call testified at trial. 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. 850.) He stated that he and other officers entered the front door of the apartment and that he saw Officers Owen and Chisolm lying on the floor ‘pretty obviously dead.’ (R. 862.) Officers discovered an SKS assault rifle outside the front door of the apartment, and a number of weapons in plain view in assorted rooms of the apartment. Officer Fred Alexander arrived in the front of the apartment and radioed that there was an officer down in the front of the apartment and then made an additional radio transmission, indicating that two more officers were down inside the apartment. The officers checked the apartment to ensure that no one else was present and then established a perimeter around the apartment to begin searching the area for the suspects and to preserve the scene for evidence technicians. Officer Terrance Hardin testified that before entering the apartment, he secured the SKS assault rifle in a patrol car and then joined the other officers in entering the apartment.

“....

“A number of officers canvassed the neighborhood after failing to locate the suspects in their initial search of the apartment. Sgt. James Blanton testified that he led one team of officers in a search of one side of the block while another team of officers searched the other side of the block. 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. Sgt. Blanton testified that the suspect, who was discovered in the attic of the residence, was taken into custody. Sgt. Blanton identified Spencer in court as the suspect taken into custody.

“....

“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. Dr. Simmons testified that stippling on Officer Chisolm's face indicated that at least one of the bullets had

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