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State v. Floyd

Court of Criminal Appeals of Tennessee, Nashville

March 29, 2018

STATE OF TENNESSEE
v.
GARY E. FLOYD

          Session October 17, 2017

          Appeal from the Criminal Court for Davidson County No. 2015-B-1462 Monte D. Watkins, Judge

         The Defendant, Gary E. Floyd, was indicted on one count of attempted first degree murder, a Class A felony; and one count of employment of a firearm during the commission of a dangerous felony, a Class C felony. See Tenn. Code Ann. §§ 39-12-101, -13-202, -17-1324. Following a jury trial, the Defendant was convicted of employment of a firearm during the commission of a dangerous felony and the lesser-included offense of attempted second degree murder, a Class B felony. See Tenn. Code Ann. §§ 39-12-101, -13-210. The trial court imposed a total effective sentence of fourteen years. In this appeal as of right, the Defendant contends (1) that the evidence was insufficient to sustain his conviction for attempted second degree murder; (2) that the State withheld exculpatory evidence; (3) that the trial court failed to instruct the jury on the lesser-included offenses of attempted voluntary manslaughter and possession of a firearm with the intent to go armed during the commission of a dangerous felony; (4) that the trial court committed several errors when instructing the jury on self-defense; and (5) that he is entitled to a new trial based upon cumulative error.[1] Following our review, we affirm the judgments of the trial court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed.

          C. Ronald Lux (at trial and on appeal) and John Michael Ballard (at trial), Nashville, Tennessee, for the appellant, Gary E. Floyd.

          Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel; Glenn R. Funk, District Attorney General; and Mary Kristen Kyle-Castelli and Doug Thurman, Assistant District Attorneys General, for the appellee, State of Tennessee.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         This case arose from the shooting of the victim, Jason Rhodes, on the afternoon of July 16, 2014. Mr. Rhodes testified that in July 2014 he was living with his mother, Sharon Rhodes. Mr. Rhodes's ex-girlfriend, Shannon Haneen, [2] lived "[r]ight across the street" from him. Mr. Rhodes testified that sometime in the spring of 2014 he loaned Ms. Haneen $200 and that it was not until July 15, 2014, that Ms. Haneen's roommate paid him back. In the interim, Ms. Haneen had started dating the Defendant. Mr. Rhodes testified that he had known the Defendant for "[s]omething like" ten years and that he was not bothered by the Defendant's relationship with Ms. Haneen.

         Mr. Rhodes testified that on July 16, 2014, he was at work when one of his sisters called him and told him that the Defendant had put "a hit on [his] head." However, Mr. Rhodes testified that he was not scared of the Defendant and did not take his threat seriously. Mr. Rhodes recalled that, when he got home from work that afternoon, he took a shower and then went outside to talk to his relatives. Mr. Rhodes further recalled that his mother, two of his sisters, his brother, his cousin, and his daughter were all at his house that afternoon. Mr. Rhodes testified that he was only wearing "[s]ome black cargo shorts" and that he did not have a weapon.

         As he was standing out in the yard, Mr. Rhodes saw the Defendant in the passenger seat of a car coming down the street. Mr. Rhodes testified that he "flagged [] down" the car and that he and the Defendant "just start[ed] talking." According to Mr. Rhodes, he asked the Defendant about the "bounty" and if the Defendant "wanted to kill" him, but the Defendant "didn't say [any]thing." The Defendant got out of the car, and Mr. Rhodes asked him about the "bounty" again while they both stood on the sidewalk. Mr. Rhodes testified that the Defendant again "didn't say [any]thing." Instead, the Defendant walked into Ms. Haneen's house. Mr. Rhodes testified that these exchanges with the Defendant were not "heated."

         According to Mr. Rhodes, the Defendant came out of Ms. Haneen's house about "five or ten minutes" later. Mr. Rhodes recalled that he was standing on the sidewalk in front of "[t]he next-door neighbor's residence" and was talking to the man who had driven the Defendant. The Defendant appeared to be talking on his cell phone. Mr. Rhodes estimated that his relatives were about ten feet away from where he was standing on the sidewalk. Mr. Rhodes testified that none of his relatives had a weapon that afternoon.

         According to Mr. Rhodes, his back was turned to the Defendant when "someone across the street hollered out, '[H]e got a gun.'" Mr. Rhodes testified that the Defendant shot him "[o]n [his] left side" as he was turning around. Mr. Rhodes estimated that the Defendant was about four feet away when he shot him. Mr. Rhodes testified that he did not remember much of what happened after he was shot. Mr. Rhodes's nephew drove him to the hospital. Mr. Rhodes testified that "the bullet nicked [his] aorta, tore [his] intestines, and [] messed up [his] pancreas." Mr. Rhodes further testified that he was also diagnosed with post-traumatic stress disorder.

         Mr. Rhodes testified that about six months before trial, the Defendant's brother "pulled up on [him], talking about somebody want[ed] to talk to [him]" and gave him a cell phone. According to Mr. Rhodes, the Defendant was on the phone. The Defendant told him that "this wasn't supposed to happen" and offered to pay Mr. Rhodes $3, 000 if he did not show up for court.

         Mr. Rhodes's aunt, Deborah Jarrett, testified that she was in Mr. Rhodes's driveway helping her paralyzed nephew, Tavaris Smith, out of the car about an hour to an hour and a half before the shooting. Ms. Jarrett testified that she saw the Defendant walking down the street. Ms. Jarrett explained that she recognized the Defendant from his "[h]anging around the neighborhood." Ms. Jarrett testified that she saw a "dude [] walking up behind" the Defendant and that she overheard the Defendant ask the man if he wanted to "make [$]2, 500."

         Ms. Jarrett testified that the man, whom she did not know, responded, "Where?" According to Ms. Jarrett, the Defendant then "pointed dead at" Mr. Rhodes's house. Ms. Jarrett explained that she knew the Defendant "was specifically referencing" Mr. Rhodes because the Defendant "had kept calling the phone and threatening" Mr. Rhodes. A short time later, the Defendant rode by Mr. Rhodes's house on a bicycle, and Mr. Rhodes's sister, Linda Rhodes, [3] asked the Defendant why he had "[$]2, 500 on [her] brother['s] head." According to Ms. Jarrett, the Defendant responded, "I can't talk to y'all. Y'all women." The Defendant then rode away on his bicycle.

         Ms. Jarrett testified that around 4:00 p.m., Mr. Rhodes came home from work, "took off his work clothes, put on his shorts[, ] and was sitting out there in the yard" when the Defendant "came up in the car." According to Ms. Jarrett, the Defendant said, "[W]hat's up, Jason?" Ms. Jarrett testified that the Defendant and Mr. Rhodes then "had some words." Ms. Jarrett recalled Mr. Rhodes's telling the Defendant that they could "fist fight" and that he did not "carry [any] guns." According to Ms. Jarrett, the Defendant "left on the phone" and went to Ms. Haneen's house without responding to Mr. Rhodes.

         Ms. Jarrett testified that she and three other relatives were standing by Mr. Rhodes. Ms. Jarrett further testified that neither Mr. Rhodes nor any of his relatives were armed with a weapon that afternoon. According to Ms. Jarrett, she saw the Defendant come out of Ms. Haneen's house "eating some M&Ms" and talking on his cell phone. The Defendant started walking toward Mr. Rhodes and "looked around" before he hung up his cell phone.

         According to Ms. Jarrett, the Defendant said to Mr. Rhodes, "What's up, b---h?" Ms. Jarrett testified that as Mr. Rhodes started to turn around, the Defendant pulled out a "little bitty handgun" from his right front pocket and shot Mr. Rhodes without looking at him. The Defendant then "took off running." Ms. Jarrett testified that no one from the victim's family approached the Defendant when he came back out of Ms. Haneen's house and that the Defendant waited until he "got up on" Mr. Rhodes to shoot him.

         Mr. Rhodes's sister, Linda, testified that when she got to Mr. Rhodes's house on the afternoon of July 16, 2014, she heard that the Defendant "had a hit on [Mr. Rhodes's] head." A short time after Mr. Rhodes got home from work, a car with the Defendant in it pulled up. Linda testified that Mr. Rhodes and the Defendant "had some words back and forth" as the Defendant got out of the car. According to Linda, Mr. Rhodes asked the Defendant if there was "a hit out on [his] head, " and the Defendant "was like[, ] '[W]hat you talking about[?]'" Linda testified that she was standing next to Mr. Rhodes during this conversation and that she did not hear Mr. Rhodes challenge the Defendant to a fist fight.

         Linda testified that Mr. Rhodes was standing with her and "a couple more people" talking as the Defendant got out of the car and went to Ms. Haneen's house. Linda further testified that the rest of her family was in the front yard and that none of them, including Mr. Rhodes, had a weapon. At no point did Linda think that Mr. Rhodes's conversation with the Defendant was about to turn into a fight. After a short period of time, the Defendant came back outside and started walking toward Mr. Rhodes. Linda testified that she did not see anything in the Defendant's hands as he walked toward Mr. Rhodes. The Defendant said, "[W]hat's up?" A "[s]hot was fired, " and the Defendant then "took off running." Linda testified that the Defendant looked and aimed at Mr. Rhodes when he shot him.

         Mr. Rhodes's other sister, Jermira Rhodes, testified that Mr. Rhodes "flagged [the Defendant] down" when his car pulled up by asking, "[B]---h, do you got a hit on my head?" Jermira testified that she did not hear how the Defendant responded. She saw the Defendant get out of the car and go into Ms. Haneen's house. Jermira further testified that Mr. Rhodes did not move toward the Defendant and that none of her family, including Mr. Rhodes, had a weapon that day.

         According to Jermira, when the Defendant came out of Ms. Haneen's house, he was eating candy and "acting like he was talking on the phone." Jermira recalled that the Defendant had his cell phone pinned between his ear and his shoulder as he put candy in his mouth. According to Jermira, none of her family approached the Defendant when he came back outside. Jermira testified that the Defendant then said, "[W]hat's up, smart brother?" Jermira further testified that Mr. Rhodes's back was to the Defendant and that the Defendant shot Mr. Rhodes as he was turning around. According to Jermira, the Defendant dropped his cell phone and "took off running." Jermira testified that she could not tell if the Defendant was aiming at Mr. Rhodes when he fired the gun.

         Mr. Rhodes's nephew, Aaron Knight, testified that about an hour before the shooting, the Defendant was on a bicycle and that some of Mr. Rhodes's relatives angrily confronted the Defendant "about a bounty being put on [Mr. Rhodes's] head." Mr. Knight testified that the Defendant "was trying to ignore" Mr. Rhodes during the first interaction between the Defendant and Mr. Rhodes. Mr. Knight further testified that he was standing next to Mr. Rhodes. Mr. Knight recalled that Mr. Rhodes was on the sidewalk and talking to the driver of the car, who was standing on the sidewalk on the other side of the street.

         Mr. Knight testified that he later saw the Defendant with a cell phone at his ear and candy in his hand as he approached Mr. Rhodes. According to Mr. Knight, the Defendant pulled a gun from his waistband, aimed at Mr. Rhodes, and shot Mr. Rhodes. Mr. Knight testified that Mr. Rhodes did not have a weapon and that no one had yelled at the Defendant when he came back outside from Ms. Haneen's house. Mr. Knight recalled that "[h]alf of the whole neighborhood was out" when Mr. Rhodes was shot. Mr. Knight testified that he drove Mr. Rhodes directly to the hospital after the shooting. Mr. Knight recalled that Mr. Rhodes was "moaning in pain and praying" on the way to the hospital.

         Metropolitan Nashville Police Department (MNPD) Officer William Holls testified that he was one of the first officers to respond to the scene of the shooting. Officer Holls recalled that Mr. Rhodes had already been taken to the hospital by the time he got to the scene. Officer Holls further recalled that "[i]t was very chaotic, " that "a lot of people [were] outside, " and that "[p]eople were yelling and running around the scene." According to Officer Holls, several witnesses at the scene identified the Defendant as the shooter, referring to him by his nickname, "Lil' Man."

         MNPD Sergeant Alfredo Arevalo testified that he was the lead detective in this case. Sgt. Arevalo recalled that he arrived on the scene after Mr. Rhodes had been taken to the hospital and that there were "a lot of people outside." Sgt. Arevalo testified that he spoke to several "members of the Rhodes family" and that they identified the Defendant as the shooter. Sgt. Arevalo further testified that he heard about the "hit" the Defendant had allegedly placed on Mr. Rhodes from several witnesses, but he was not sure if any of the witnesses had firsthand knowledge of the "hit." However, Sgt. Arevalo mentioned it in his report because "all of the witnesses had such consistent statements." Sgt. Arevalo testified that no guns were found at the scene nor were any other weapons, such as a baseball bat.

         Sgt. Arevalo testified that one witness, Keenan Mason, told him that the Defendant and Mr. Rhodes "had gotten into an argument" the night before the shooting over the $200 Mr. Rhodes had loaned to Ms. Haneen. Mr. Mason also stated that Ms. Haneen had said "she was going to have [Mr. Rhodes] shot, " but Mr. Mason "didn't take that [statement] seriously." Sgt. Arevalo later spoke to Mr. Rhodes at the hospital and recalled that Mr. Rhodes was "in pain" during their conversation. MNPD Detective Andrew Davis spoke to Mr. Knight and Mr. Knight's mother, Stacy Knight, at the hospital, and they both identified the Defendant as the shooter. No weapons were recovered from the hospital or Mr. Knight's car. Sgt. Arevalo testified that the Defendant was not apprehended until August 11, 2014.

         The Defendant's uncle, Marcus Bradley, testified that the Defendant was "real respectable, " quiet, kept to himself, and not violent. Mr. Bradley explained that the Defendant tried "to avoid confrontation." Mr. Bradley testified that he had never seen the Defendant with a gun, but that he would not be surprised if the Defendant carried a gun because both the Defendant and his brother had previously been shot. Mr. Bradley also testified that the neighborhood where the shooting occurred was a "high crime" area. Mr. Bradley could not recall the date, but he recalled that sometime before the shooting, the Defendant had called and said that Mr. Rhodes was threatening him and that "[s]ome females . . . had surrounded him." Mr. Bradley admitted that the Defendant did not tell him he was accused of shooting someone. Instead, Mr. Bradley learned this from the Defendant's siblings.

         The Defendant testified that he had known Mr. Rhodes for approximately ten years and that he never had any arguments with Mr. Rhodes during that time. The Defendant admitted that he was on probation in July 2014 and that the terms of his probation forbade him from possessing a gun. However, the Defendant testified that he carried a gun every day "for protection." The Defendant explained that he had "been shot before" and that the neighborhood where he lived was "somewhere you need[ed] a gun ...


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