                                                                                               03/29/2018
          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 October 17, 2017 Session

                   STATE OF TENNESSEE v. GARY E. FLOYD

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


                              No. M2017-00272-CCA-R3-CD


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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT H.
MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

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




1
 For the sake of clarity, we have reordered and renumbered the issues from how they appear in the
Defendant’s brief.
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.

                                            OPINION

                                 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

2
 There was confusion at trial about whether Ms. Haneen was named Shannon Haneen, Haneen Shannon,
or Haneen Shenen. Through most of the trial Ms. Haneen was referred to as Shannon Haneen, and that is
how we will refer to her in this opinion.
                                                 -2-
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.



3
  Because several witnesses share the same surname, we will refer to some witnesses by their first names
to avoid confusion. No disrespect is intended.
                                                  -3-
        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

                                            -4-
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
                                           -5-
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
                                             -6-
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 to
protect yourself.” The Defendant also admitted that he had a prior conviction for
criminal impersonation.

       The Defendant confirmed that in July 2014 he was living in Ms. Haneen’s house
across the street from Mr. Rhodes. Despite this, the Defendant testified that he had no
contact with Mr. Rhodes’s family before July 16, 2014. The Defendant claimed that he
was present when Ms. Haneen’s roommate repaid Mr. Rhodes’s $200 loan on July 15,
2014. The Defendant testified that Mr. Rhodes was angry and arguing with Ms. Haneen
that night. However, the Defendant also claimed that he never spoke to Ms. Haneen
about the $200 loan.

       The Defendant testified that the next day, he “was minding [his] own business,”
riding a bicycle, when four women “surrounded” him. The Defendant claimed that the
women were “real hostile” and that “[t]hey all [were] yelling” at him. The Defendant
further claimed that the women were “telling [him that] they [were not] losing another
brother” and “never asked [him] why.” The Defendant denied taking out “a bounty” on
Mr. Rhodes and claimed that the incident on the bicycle was the first time he heard about
the alleged “hit.” The Defendant stated that Ms. Jarrett was lying about his offering a
man $2,500 to kill Mr. Rhodes. The Defendant admitted that he was armed with a gun
during this incident, while the women had no weapons.

       The Defendant testified that he rode away from the women on his bicycle and
went to a nearby store. The Defendant was at the store when his friend, Montress Miller,
pulled up in his car. The Defendant decided that he “was gonna ride with him” for the
afternoon. The Defendant testified that after thirty minutes, he and Mr. Miller went back
to Ms. Haneen’s house so the Defendant could “pick up [his] antibiotics” because he had
“just got bit by a spider.” The Defendant testified that Mr. Rhodes and his family were
outside when he and Mr. Miller drove up to Ms. Haneen’s house. According to the
Defendant, Mr. Rhodes was mad and “getting in the street, flagging the car down.” The
Defendant testified that Mr. Rhodes “ran up on the car and he was like[,] ‘[W]hat they
talking about[?]’” The Defendant claimed that he tried to ignore Mr. Rhodes, but that he
eventually got “short” with him and told Mr. Rhodes that he “didn’t know what they
[were] talking about.”

       The Defendant testified that he got out of the car and “went in [Ms. Haneen’s]
house to get [his] antibiotics.” According to the Defendant, when he came back outside,
Mr. Rhodes and his family were across the street and there “was a lot” of Mr. Rhodes’s
family outside, “more than ten of them.” The Defendant claimed that he stood on the
porch talking on his cell phone. However, the Defendant could not recall to whom he
                                           -7-
was talking. The Defendant denied that he was eating candy when he came back outside.
The Defendant claimed that he got off the phone and “was just trying to leave” when he
saw Mr. Rhodes and his family cross the street and approach him. The Defendant
explained that “[a]s [he] was coming down the stairs [of Ms. Haneen’s porch], [he] was
approached by [Mr. Rhodes], his sister, and his cousins and his nephews. Like all of
‘em.”

        The Defendant estimated that he was surrounded by seven or eight people. The
Defendant claimed that Mr. Rhodes was shirtless and directly in front of him, but he
admitted that Mr. Rhodes did not have a weapon. The Defendant further claimed that
Mr. Knight was standing next to Mr. Rhodes and holding a baseball bat. The Defendant
also claimed that another man was on the other side of Mr. Rhodes with “like baseball
gloves on.” The Defendant testified that he was also afraid of Mr. Rhodes’s sisters
because he “knew they could do damage too[,] . . . [t]hey all weighed approximately 200
pounds” and he “was like 140 something at the time.” The Defendant claimed that Mr.
Rhodes “was real hostile” and that he “could tell . . . [that] [t]hey all [were] ready to
fight.”

       The Defendant claimed that Mr. Rhodes and his family were all “in reaching
distance.” The Defendant further claimed that Mr. Knight said something that made him
think that “they [were] ready to do something” and that Mr. Knight “was like closing in
on [him] with the bat in his hand.” The Defendant explained that Mr. Knight was so
close that he thought Mr. Knight “was gonna swing the bat.” The Defendant testified that
he “really was just like scared for [his] life at the time.” The Defendant reiterated that
Mr. Rhodes and his family were “so close” that he “just thought [he] was gonna get hit by
the bat.” The Defendant also claimed that Mr. Rhodes “made [a] movement[] like” he
was about to hit the Defendant.

       The Defendant testified that he “just didn’t know what was going to happen” and
that he was afraid for his life, so he pulled “a small caliber pistol” from his right front
pocket. The Defendant testified that he did not have time to call 911 while Mr. Rhodes
and his family were approaching him, and he felt that the gun “was the only thing that
was going to save [his] life.” The Defendant claimed that he did not look or aim when he
pulled out the gun, he “just shot the gun” one time. The Defendant denied that Mr.
Rhodes was standing on the sidewalk when he was shot. Rather, the Defendant claimed
that Mr. Rhodes was standing in the street. The Defendant further claimed that he did not
intend to shoot Mr. Rhodes that day. The Defendant explained that it did not matter who
was standing in front of him, “[w]hoever would’ve been right there would’ve got[ten]
shot.”

      The Defendant testified that after he shot Mr. Rhodes, he “[j]ust r[a]n” and “never
looked back.” According to the Defendant, he ran “to a friend’s house” and his friend
                                            -8-
gave him a ride out of the neighborhood. The Defendant testified that he disposed of the
gun the next day. The Defendant further testified that he did not tell anyone what
happened because he “was scared.” The Defendant explained that he was scared to turn
himself in because the police had told his grandmother that they would shoot him if they
caught him with a gun. The Defendant admitted that he was not arrested until the middle
of August 2014. The Defendant denied having spoken to Mr. Rhodes since the shooting.
The Defendant claimed that Mr. Rhodes and his family had “said a lotta stuff that wasn’t
true” during the trial.

       Based upon the foregoing, the jury convicted the Defendant of employment of a
firearm during the commission of a dangerous felony and the lesser-included offense of
attempted second degree murder. Following a sentencing hearing, the trial court imposed
a sentence of eight years for the attempted second degree murder conviction and a
sentence of six years for the employment of a firearm conviction. The trial court ordered
the sentences to be served consecutively for a total effective sentence of fourteen years.
This appeal followed.

                                       ANALYSIS

                              I. Sufficiency of the Evidence

        The Defendant contends that the evidence was insufficient to sustain his
conviction for attempted second degree murder. The Defendant does not dispute that he
shot Mr. Rhodes. Rather, the Defendant argues that “the evidence showed that [he] acted
in self-defense” and that “the State failed to negate” his claim of self-defense. The State
responds that the evidence was sufficient to sustain his conviction for attempted second
degree murder.

       An appellate court’s standard of review when the defendant questions the
sufficiency of the evidence on appeal is “whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
319 (1979). This court does not reweigh the evidence, rather, it presumes that the jury
has resolved all conflicts in the testimony and drawn all reasonable inferences from the
evidence in favor of the State. See State v. Sheffield, 676 S.W.2d 542, 547 (Tenn. 1984);
State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). Questions regarding witness
credibility, conflicts in testimony, and the weight and value to be given to evidence were
resolved by the jury. See State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997).

      A guilty verdict “removes the presumption of innocence and replaces it with a
presumption of guilt, and [on appeal] the defendant has the burden of illustrating why the
evidence is insufficient to support the jury’s verdict.” Bland, 958 S.W.2d at 659; State v.
                                            -9-
Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). A guilty verdict “may not be based solely
upon conjecture, guess, speculation, or a mere possibility.” State v. Cooper, 736 S.W.2d
125, 129 (Tenn. Crim. App. 1987). However, “[t]here is no requirement that the State’s
proof be uncontroverted or perfect.” State v. Williams, 657 S.W.2d 405, 410 (Tenn.
1983). Put another way, the State is not burdened with “an affirmative duty to rule out
every hypothesis except that of guilt beyond a reasonable doubt.” Jackson, 443 U.S. at
326.

       The foregoing standard “applies to findings of guilt based upon direct evidence,
circumstantial evidence, or a combination of [both] direct and circumstantial evidence.”
State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). Both “direct and
circumstantial evidence should be treated the same when weighing the sufficiency of
such evidence.” State v. Dorantes, 331 S.W.3d 370, 381 (Tenn. 2011). The duty of this
court “on appeal of a conviction is not to contemplate all plausible inferences in the
[d]efendant’s favor, but to draw all reasonable inferences from the evidence in favor of
the State.” State v. Sisk, 343 S.W.3d 60, 67 (Tenn. 2011).

       In Tennessee, a person may use deadly force in self-defense when that person has
a reasonable belief, based upon reasonable grounds, that there is an imminent, real danger
of death or serious bodily injury. Tenn. Code Ann. § 39-11-611(b)(2). It is well
established, under Tennessee law, “that whether an individual acted in self-defense is a
factual determination to be made by the jury as the sole trier of fact.” State v. Goode,
956 S.W.2d 521, 527 (Tenn. Crim. App. 1997) (citing State v. Ivy, 868 S.W.2d 724, 727
(Tenn. Crim. App. 1993)).

       The Defendant’s argument relies solely on his testimony that, immediately prior to
the shooting, he was surrounded by Mr. Rhodes and his family and that they
“approach[ed] him in a way that led him to believe that he was about to be attacked.”
This argument ignores the testimony of Mr. Rhodes, as well as the litany of other
eyewitnesses, who all testified that Mr. Rhodes was standing on the sidewalk across the
street with his back to the Defendant and unarmed when the Defendant crossed the street,
called to Mr. Rhodes, and shot Mr. Rhodes as he was turning around. Mr. Rhodes and
the other eyewitnesses all testified that neither Mr. Rhodes nor his family had approached
or yelled at the Defendant immediately prior to the shooting. Likewise, they all testified
that Mr. Rhodes and his relatives were unarmed. Accordingly, we conclude that it was
well within the province of the jury to accredit the testimony of Mr. Rhodes and his
relatives over the Defendant’s testimony and reject the Defendant’s claim of self-defense.

                                  II. Brady Violation

      The Defendant contends that the State withheld exculpatory evidence in violation
of Brady v. Maryland, 373 U.S. 83 (1963). The Defendant argues that the State withheld
                                           -10-
a police report and a video of an assault committed against Ms. Haneen “just hours
after[]” the shooting and purportedly by relatives of Mr. Rhodes. Specifically, the
Defendant argues that this evidence “would have bolstered [his claim] of self-defense” by
showing that he had reason to fear “all of [Mr. Rhodes’s] family members [who had]
surround[ed] him.” The Defendant also argues that this evidence was “possible
impeachment material for the State’s witnesses.” The State responds that there was no
Brady violation as this evidence was “neither relevant nor material to the [D]efendant’s
claim of self-defense, nor [did] it reflect on the credibility of the State’s witnesses.”

       On the second day of trial, defense counsel stated that after numerous attempts to
contact Ms. Haneen, he had “finally got[ten] ahold of her” during the “lunch break.”
Defense counsel further stated that Ms. Haneen told him that she had been assaulted by
“several of the [State’s] witnesses” after the shooting and that there was a video recording
of this incident. Defense counsel argued that this evidence was relevant to the
Defendant’s “theory of self-defense” and to impeach the State’s witnesses. The trial
court ruled that this evidence would not have been admissible because it “happened after
the incident” and would not “go to self-defense.” Defense counsel attempted to cross-
examine Jermira Rhodes about the assault on Ms. Haneen, but the trial court sustained the
State’s objection on relevancy grounds.

       The next day, defense counsel asked for a continuance because he was unable to
locate Ms. Haneen. The trial court denied the request and defense counsel again raised
the issue of the police report and video. The trial court again found that the evidence was
not relevant to the Defendant’s claim of self-defense. Defense counsel later made an
offer of proof, calling MNPD Officer Lindsey Smith to testify. Officer Smith was the
responding officer to the assault of Ms. Haneen. Officer Smith’s report listed the
assailant as “Mody Rhodes.” The brief video showed a woman stomping, kicking, and
punching a woman lying on the ground and a second woman joining the assault at the end
of the video. Officer Smith testified that she was unable to identify who was on the
video. The prosecutor informed the trial court that the assault case was ultimately
dismissed.

       In order to ensure a defendant’s constitutional right to a fair trial, the State must
provide the defendant with exculpatory evidence that is either material to guilt or relevant
to punishment. State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999). This also includes
evidence which could be used to impeach the State’s witnesses. Johnson v. State, 38
S.W.3d 52, 56 (Tenn. 2001). To establish a Brady violation,

       a defendant must show that: (1) the defendant requested the evidence
       (unless the evidence is obviously exculpatory, in which case the
       prosecution is bound to produce the information, without a request); (2) the

                                            -11-
       State suppressed evidence in its possession; (3) the suppressed evidence
       was favorable to the defendant; and (4) the evidence was material.

State v. Jackson, 444 S.W.3d 554, 594 (Tenn. 2014). Here, the Defendant has failed to
establish that the evidence of the assault on Ms. Haneen was material. For purposes of a
Brady violation, “[e]vidence is deemed to be material when ‘there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” Johnson, 38 S.W.3d at 58 (quoting State v.
Edgin, 902 S.W.2d 387, 390 (Tenn. 1995)).

        With respect to the Defendant’s argument that this evidence “would have
bolstered [his claim] of self-defense,” we note that “[t]he general rule is that a defendant
may use evidence of specific prior acts of violence by the victim against third parties to
corroborate the defendant’s theory that the victim was the first aggressor.” State v.
Chancy Jones, No. W2010-02424-CCA-R3-CD, 2012 WL 1143583, at *7 (Tenn. Crim.
App. Apr. 5, 2012) (emphasis added). Similarly, “when a defendant seeks to use such
evidence to establish the defendant’s own fear of the victim[,] . . . the defendant must
testify that he or she was aware of the victim’s prior acts of violence against third parties
at the time of the alleged self-defense.” Id. at *7 n.6. As such, the evidence regarding
the assault on Ms. Haneen was not admissible to support the Defendant’s claim of self-
defense as it did not involve the victim, Mr. Rhodes. Moreover, it was not a prior act of
violence. To the extent the Defendant argues that it would have established his fear of
Mr. Rhodes’s relatives, the Defendant was unaware of the event at the time of the alleged
self-defense.

       With respect to the Defendant’s argument that this evidence was “possible
impeachment material for the State’s witnesses,” Tennessee Rule of Evidence 608(b)
provides that “[s]pecific instances of conduct of a witness for the purpose of attacking or
supporting the witness’s character for truthfulness . . . [may] be inquired into on
cross-examination,” but “may not be proved by extrinsic evidence.” (Emphasis added).
This court has previously held that assaultive conduct is not probative of a witness’s
character for truthfulness. State v. James Thomas Manning, No. M2004-03035-CCA-R3-
CD, 2006 WL 163636, at *6 (Tenn. Crim. App. Jan. 24, 2006). Therefore, the evidence
was not “possible impeachment material for the State’s witnesses.” Accordingly, we
conclude that this issue is without merit.

                         III. Lesser-Included Jury Instructions

       The Defendant contends 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. The Defendant
argues that the trial court should have instructed the jury as to these lesser-included
                                            -12-
offenses because each was a lesser-included offense of one of the charged offenses and
that “the evidence in the record would [have] legally support[ed] a conviction for the
lesser[-]included offense[s].” The State responds that the evidence at trial did not warrant
an instruction on attempted voluntary manslaughter. The State further responds that “the
[D]efendant’s employment of [a] firearm [was] uncontroverted”; therefore, “no
reasonable jury would have convicted [him] on the lesser-included offense of possession
of a firearm during the commission . . . of a dangerous felony.”

        Prior to trial, the Defendant filed a written request that the jury be instructed on
attempted voluntary manslaughter and possession of a firearm during the commission of
a dangerous felony as lesser-included offenses of the charged offenses. The trial court
stated that it would instruct the jury on the lesser-included offenses “required by law.”
Regarding attempted voluntary manslaughter, the trial court stated that it would only
instruct the jury on that offense if it was warranted by the evidence at trial. Ultimately,
the trial court did not instruct on either of the requested lesser-included offenses.

        “Whether the trial court properly instructed the jury on a certain offense is a mixed
question of law and fact,” which we review de novo with no presumption of correctness.
State v. Howard, 504 S.W.3d 260, 267 (Tenn. 2016). A trial court must instruct the jury
on a lesser-included offense if it “determines that any evidence as to a lesser-included
offense exists that reasonable minds could accept and that the evidence, viewed liberally
in the light most favorable to the lesser-included offense, is legally sufficient to support a
conviction.” Id. at 268.

                         A. Attempted voluntary manslaughter

       Voluntary manslaughter is defined as “the intentional or knowing killing of
another in a state of passion produced by adequate provocation sufficient to lead a
reasonable person to act in an irrational manner.” Tenn. Code Ann. § 39-13-211(a).
Attempted voluntary manslaughter is a lesser-included offense of attempted first degree
murder. See Tenn. Code Ann. § 40-18-110(g)(2) (providing that voluntary manslaughter
is a lesser-included offense of “premeditated first degree murder and second degree
murder); State v. Sims, 45 S.W.3d 1, 21 (Tenn. 2001) (voluntary manslaughter is a lesser-
included offense of first degree murder under part (b) of the test provided in State v.
Burns, 6 S.W.3d 453 (Tenn. 1999)).

        Here, there was no evidence presented at trial that the Defendant acted in a state of
passion produced by adequate provocation. Mr. Rhodes and the other eyewitnesses who
testified for the State all testified that the Defendant’s shooting of Mr. Rhodes was
unprovoked. They testified that Mr. Rhodes was standing on the sidewalk, unarmed, and
with his back to the Defendant when the Defendant approached Mr. Rhodes, called out to
him, and shot him as he was turning around. Further, they all denied that Mr. Rhodes or
                                            -13-
any member of his family was armed or had approached the Defendant when he came
back outside from Ms. Haneen’s house. The Defendant and Mr. Rhodes “had some
words” a few minutes before the shooting, but generally, “the law regards no mere epithet
or language, however violent or offensive, as sufficient provocation for taking [a] life.”
Freddo v. State, 155 S.W. 170, 172 (Tenn. 1913). As such, there was nothing in the
State’s evidence that would be legally sufficient to support a conviction for attempted
voluntary manslaughter.

       Nor did the Defendant’s testimony establish that he acted in a state of passion
produced by adequate provocation. The Defendant did claim that Mr. Rhodes was
“hostile” and “made [a] movement[] like” he was about to hit the Defendant. However,
much of the Defendant’s testimony was focused on his claim that he was surrounded by
Mr. Rhodes and his relatives immediately before the shooting. Specifically, the
Defendant focused on his claim that he was “scared for [his] life” because he thought Mr.
Knight “was gonna swing the bat” and hit him. The Defendant further claimed that Mr.
Knight had said something that made him think “they [were] ready to do something.”
Moreover, the Defendant testified that he did not intend to shoot Mr. Rhodes, that he did
not aim at Mr. Rhodes, and that it did not matter who was standing in front of him,
“[w]hoever would’ve been right there would’ve got[ten] shot.”

       It has long been held under Tennessee law, and at common law, that a murder will
only be reduced to voluntary manslaughter when the provocation was caused by the
victim. See State v. Tilson, 503 S.W.2d 921 (Tenn. 1974); State v. Chris Jones, No.
W2009-01698-CCA-R3-CD, 2011 WL 856375, at *11 (Tenn. Crim. App. Mar. 9, 2011);
State v. Antonius Harris, No. W2001-02617-CCA-R3-CD, 2002 WL 31654814 (Tenn.
Crim. App. Nov. 7, 2002); State v. Khristian Love Spann, No. 1230, 1989 WL 86566, at
*7 (Tenn. Crim. App. Aug. 3, 1989); see also Commonwealth v. LeClair, 840 N.E.2d 510
(Mass. 2006) (providing a history of the rule at common law and citing supporting cases
from other jurisdictions); 40 C.J.S. Homicide § 114 (2010); 40 Am. Jur. 2d Homicide §
53 (2010).

        Here, the Defendant testified that he did not intend to shoot Mr. Rhodes and that
he was not aiming at Mr. Rhodes. The Defendant’s testimony was that he fired a single
shot into a crowd because he was afraid for his life due to the crowd surrounding him,
Mr. Knight’s having said something to him, and the fact that Mr. Knight was so close he
“just thought [he] was gonna get hit by the bat.” As such, the Defendant’s testimony did
not establish that the victim, Mr. Rhodes, specifically caused the alleged provocation or
was even the intended target of the Defendant’s shot. Accordingly, we conclude that
there was nothing in the Defendant’s testimony that would be legally sufficient to support
a conviction for attempted voluntary manslaughter.

                               B. Possession of a firearm
                                           -14-
        Possession of a firearm during the commission of a dangerous felony is a lesser-
included offense of employment of a firearm during the commission of dangerous felony.
State v. Fayne, 451 S.W.3d 362, 370 (Tenn. 2014). However, the Defendant failed to
raise this issue in his motion for new trial and did not mention it during the motion for
new trial hearing. As such, the Defendant has waived full appellate review of this issue.
See Tenn R. App. P. 3(e) (providing “that in all cases tried by a jury, no error presented
for review shall be predicated upon error in the . . . jury instructions granted or
refused . . . unless the same was specifically stated in a motion for new trial”); State v.
Spadafina, 952 S.W.2d 444, 451 (Tenn. Crim. App. 1996) (holding that failure to raise a
trial court’s not having charged a lesser-included offense in a motion for new trial waives
the issue on appeal). Therefore, we review this issue solely to determine if plain error
review is warranted.

       The doctrine of plain error applies when all five of the following factors have been
established:

       (a) the record must clearly establish what occurred in the trial court;
       (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected;
       (d) the accused must not have waived the issue for tactical reasons; and
       (e) consideration of the error must be “necessary to do substantial justice.”

State v. Page, 184 S.W.3d 223, 230-31 (Tenn. 2006) (quoting State v. Terry, 118 S.W.3d
355, 360 (Tenn. 2003)) (internal brackets omitted). “An error would have to [be]
especially egregious in nature, striking at the very heart of the fairness of the judicial
proceeding, to rise to the level of plain error.” Id. at 231.

       Here, the Defendant has failed to establish that a substantial right was adversely
affected. Page, 184 S.W.3d at 230. Our supreme court has recently held that when, as is
the case here, “the proof at trial [is] uncontroverted and overwhelming that the
[defendant] employed his gun during” the offense, then no reasonable jury “would have
convicted the defendant of the lesser-included offense [of possessing a firearm during the
commission of a dangerous felony] instead of the charged offense.” State v. Martin, 505
S.W.3d 492, 507 (Tenn. 2016). As such, “the [D]efendant has failed to show that the
failure to give the lesser-included offense instruction adversely affected a substantial
right.” Accordingly, we conclude that plain error review of this issue is not warranted.

                            IV. Self-Defense Jury Instructions

       The Defendant contends that the trial court committed several errors when
instructing the jury on self-defense. The Defendant argues that the trial court erroneously
rejected his request to charge “the State’s burden to negate self-defense . . . with the other
                                            -15-
matters the State had to prove” and with the elements of each of the listed offenses. The
Defendant further argues that the trial court erroneously shifted the burden of proof onto
him by rejecting his request to strike the words “[i]f evidence is introduced supporting
self-defense” from the self-defense jury instruction. The State responds that the trial
court’s jury instructions provided a correct and complete charge of the applicable law;
therefore, the trial court did not err in rejecting the Defendant’s requests for special jury
instructions.

        A defendant is entitled to “a correct and complete charge of the law governing the
issues raised by the evidence presented at trial.” State v. Brooks, 277 S.W.3d 407, 412
(Tenn. Crim. App. 2008) (citing State v. Forbes, 918 S.W.2d 431, 447 (Tenn. Crim. App.
1995)). In determining whether a jury instruction correctly, fully, and fairly sets forth the
applicable law, we review the instruction in its entirety. Id. (citing State v. Guy, 165
S.W.3d 651, 659 (Tenn. Crim. App. 2004)). “Phrases may not be examined in isolation.”
Id. (citing State v. Dellinger, 79 S.W.3d 458, 502 (Tenn. 2002)). Because the propriety
of jury instructions is a mixed question of law and fact our review is de novo with no
presumption of correctness. State v. Fayne, 451 S.W.3d 362, 373 (Tenn. 2014).

       The Defendant requested that the trial court add “the negation of the defense of
self-defense” to the jury instruction listing the necessary elements the State needed to
prove beyond a reasonable doubt. The Defendant also requested that the phrase “that the
[offense] was not done in self-defense” be added as an essential element in the jury
instructions for each charged offense and all of the listed lesser-included offenses. The
Defendant based this request on Tennessee Code Annotated section 39-11-201(a), which
reads as follows:

       No person may be convicted of an offense unless each of the following is
       proven beyond a reasonable doubt:
             (1) The conduct, circumstances surrounding the conduct, or a result
             of the conduct described in the definition of the offense;
             (2) The culpable mental state required;
             (3) The negation of any defense to an offense defined in this title if
             admissible evidence is introduced supporting the defense; and
             (4) The offense was committed prior to the return of the formal
             charge.

The Defendant argued that the jury instruction should mirror the structure of section
39-11-201(a).

       The trial court rejected the Defendant’s request. Instead, the trial court used the
applicable Tennessee Pattern Jury Instructions. See 7 Tenn. Prac. Pattern Jury Instr.—
Crim. §§ 2.04, 40.06(b) (21st ed. 2017). While it rejected the Defendant’s request to
                                            -16-
include the State’s burden to negate his claim of self-defense in its general discussion of
the State’s burden of proof and the elements of the applicable offenses, the trial court did
instruct the jury as follows:

               If evidence is introduced supporting self-defense, the burden is on
       the State to prove beyond a reasonable doubt that the defendant did not act
       in self-defense.

              If, from all the facts and circumstances, you find the defendant acted
       in self-defense, or if you have a reasonable doubt as to whether the
       defendant acted in self-defense, you must find him not guilty.

       This court has previously addressed these issues. See State v. Tanya Nicole
Slimick, No. M2014-00747-CCA-R3-CD, 2015 WL 9244888, at *18-21 (Tenn. Crim.
App. Dec. 17, 2015); see also State v. Christopher Michael Ferrell, No. M2015-01011-
CCA-R3-CD, 2016 WL 6819784, at *16-19 (Tenn. Crim. App. Nov. 18, 2016) (adopting
the reasoning of Slimick and reaching the same conclusion), perm. app. denied (Tenn.
Mar. 9, 2017). Trial courts “are not limited to mere recitation of the pattern instructions.”
Slimick, 2015 WL 9244888, at *20. However,

       [w]hile the requested instruction was not given in conjunction with the
       other statutory requirements, the jury instructions clearly informed the jury
       that the State bore the burden of negating self-defense beyond a reasonable
       doubt and that if the jurors had reasonable doubt that the defendant acted in
       self-defense, they were to acquit [him].

Id. (internal quotation marks omitted). Additionally, we note “that the jury instruction
regarding the State’s burden to negate the Defendant’s claim of self-defense was given to
the jury before it began deliberating.” Ferrell, 2016 WL 6819784, at *17. Accordingly,
we conclude that the trial court did not err in rejecting the Defendant’s request for this
special jury instruction.

       The Defendant also requested that the prefatory phrase, “[i]f evidence has been
introduced supporting self-defense,” be removed from the trial court’s self-defense
instruction. The trial court rejected the Defendant’s request and instructed the jury as
described above. On appeal, the Defendant argues that the prefatory phrase improperly
shifted the burden to “the [D]efendant to ‘raise’ the defense when instead this was an
issue of law for the trial court and not the jury.”

       A panel of this court has previously concluded “that the prefatory phrase [does]
not shift the burden of proof from the State to the [d]efendant.” Ferrell, 2016 WL
6819784, at *18. The prefatory phrase does not explicitly state “who was to introduce
                                            -17-
the evidence of . . . self-defense.” Id. More importantly, “the self-defense jury
instruction given here made clear that the State had the burden of disproving the
Defendant’s claim of self-defense and that the jury should acquit the Defendant if he
acted in self-defense or there was reasonable doubt as to whether he acted in self-
defense.” Id.; cf. Slimick, 2015 WL 9244888, at *16-17 (concluding that use of the
prefatory phrase was harmless error when, as here, “there [was] simply no possibility of
jury confusion regarding the fact that evidence of self-defense had been introduced and
that the jury was required to consider the issue”). Accordingly, we conclude that the trial
court did not err in denying the Defendant’s request for this special jury instruction.

                                    V. Cumulative Error

       The Defendant contends that he is entitled to a new trial based upon cumulative
error. The Defendant argues that the “various errors” raised in his brief are
“individually” sufficient to warrant a new trial, but that “in combination they are even
more overwhelming.” The State responds that the Defendant “is not entitled to relief”
based upon cumulative error.

        The cumulative error doctrine applies to circumstances in which there have been
“multiple errors committed in trial proceedings, each of which in isolation constitutes
mere harmless error, but when aggregated, have a cumulative effect on the proceedings
so great as to require reversal in order to preserve a defendant’s right to a fair trial.” State
v. Hester, 324 S.W.3d 1, 76 (Tenn. 2010). However, circumstances which would warrant
reversal of a conviction under the cumulative error doctrine “remain rare” and require
that there has “been more than one actual error committed in the trial proceedings.” Id. at
76-77. Here, the Defendant has failed to establish that “more than one actual error [was]
committed in the trial proceedings.” Id. at 77. Accordingly, we conclude that this issue
is without merit.

                                      CONCLUSION

        Upon consideration of the foregoing and the record as a whole, the judgments of
the trial court are affirmed.



                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -18-
