Court of Criminal Appeals of Tennessee, Nashville
Session October 17, 2017
from the Criminal Court for Davidson County No. 2015-B-1462
Monte D. Watkins, Judge
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. Following our review, we
affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Criminal
Ronald Lux (at trial and on appeal) and John Michael Ballard
(at trial), Nashville, Tennessee, for the appellant, Gary E.
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
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ.,
KELLY THOMAS, JR., JUDGE
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,  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.
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.
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
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
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.
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 $3,
000 if he did not show up for court.
Rhodes's aunt, Deborah Jarrett, testified that she was in
Mr. Rhodes's driveway helping her paralyzed nephew,
Tavaris Smith, out of the car about an hour to an hour and a
half before the shooting. Ms. Jarrett testified that she saw
the Defendant walking down the street. Ms. Jarrett explained
that she recognized the Defendant from his "[h]anging
around the neighborhood." Ms. Jarrett testified that she
saw a "dude  walking up behind" the Defendant and
that she overheard the Defendant ask the man if he wanted to
"make [$]2, 500."
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,  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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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,
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.
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.
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.
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 ...