Floyd v. State

289 So.3d 337

Cedric Jerome FLOYD

v.STATE of Alabama

CR-13-0623

Court of Criminal Appeals of Alabama.

July 7, 2017

Opinion Issued on Return to Remand July 13, 2018

Rehearing Denied August 24, 2018

Certiorari Denied February 22, 2019

Cedric Jerome Floyd was convicted of murder made capital because it was committed during the course of a burglary. See § 13A-5-40(a)(4), Ala. Code 1975. The jury unanimously found beyond a reasonable doubt the existence of four aggravating circumstances -- that the murder was committed during the course of a burglary, see § 13A-5-49(4), Ala. Code 1975; that the murder was committed while Floyd was under a sentence of imprisonment, see § 13A-5-49(1), Ala. Code 1975; that the murder was committed after Floyd had previously been convicted of a felony involving the use or threat of violence, see § 13A-5-49(2), Ala. Code 1975; and that the murder was especially heinous, atrocious, or cruel when compared to other capital offenses, see § 13A-5-49(8), Ala. Code 1975. By a vote of 11-1, the jury recommended that Floyd be sentenced to death for his capital-murder conviction. The trial court followed the jury's recommendation and sentenced Floyd to death.¹

Facts

The evidence adduced during the guilt phase of the trial indicated the following. In the early morning hours of January 2, 2011, Tina Jones, a single mother of four, was shot and killed in her home in Atmore. Floyd and Jones had dated for approximately two years before the murder. The State presented evidence indicating that the relationship had been tumultuous and that there had been altercations between Floyd and Jones during their relationship. Jones ended the relationship in November 2010, approximately two months before she was killed, and began dating another man.

On December 31, 2010, Jones and her three youngest children² spent the night at Jones's aunt's house because, according to Lakeshia Finley, Jones's cousin, Jones was afraid of Floyd. Jones's uncle, James Jones ("James"), and his girlfriend, Sarah Marshall ("Sarah"), who were living with Jones at the time, were alone at Jones's house that night, or thought they were. James testified that when he woke on January 1, 2011, he found Floyd sitting in the living room smoking a cigarette. James said that he did not know how Floyd had gotten into the house. James telephoned Jones and told her that Floyd was in the house. He and Sarah then left; Floyd was still in the house when James and Sarah left.

After learning that Floyd had been in her house, Jones, accompanied by her father, Curtis Jones, and Finley, went to the Atmore Police Department to report the incident. Floyd also went to the police department. Jones informed Officer John Stallworth that Floyd had broken into her house and had stolen her cellular telephone. Officer Stallworth explained to Jones that she could file a complaint for burglary and theft, but Jones declined, telling Officer Stallworth that she wanted a restraining order against Floyd but that she did not want Floyd arrested. Officer Stallworth explained to Jones that the police department did not issue restraining orders, and he explained the steps Jones could take to obtain a restraining order. At Jones's request, Officer Stallworth instructed Floyd not to return to Jones's residence and told Floyd that if he did so he would be arrested on sight. Floyd agreed not to return to Jones's residence.

Throughout the day on January 1, 2011, Floyd sent numerous text messages to Jones's 18-year-old daughter, Ky'Toria Lawson, who lived with Jones. In many of the messages, Floyd threatened Jones and other members of her family. Floyd also told Ky'Toria that he had let the family dog out of the backyard fence and that it had been hit by a car. Some of Floyd's text messages were also sexual in nature. Ky'Toria told Jones about the text messages, and that afternoon she and Jones went to the police station to report the messages, where, once again, Jones spoke with Officer Stallworth. Jones told Officer Stallworth that she was afraid of Floyd because, when Floyd had previously been in jail, he had telephoned her and had told her that he had people watching her and reporting to him. Jones also told Officer Stallworth that her aunt had told her that Floyd had said that he was going to kill Jones and then kill himself. Neither Jones nor Ky'Toria filed a complaint against Floyd at that time. Ky'Toria testified that she did not file a complaint because she was scared that she would have to testify against Floyd and that Floyd would then "come after us." (R. 2518.) Officer Stallworth assured them that officers would drive by Jones's house throughout the night. Officer Stallworth instructed Jones to turn her porch light on that night and, if Floyd came to her house, to turn her porch light off to signal the officers driving by that Floyd was inside the house.

Around 11:00 p.m. that night, Ky'Toria came home with her friend, Tramescka Peavy. Jones was asleep in her bedroom, and Ky'Toria and Peavy woke her up and spoke to her. Ky'Toria and Peavy then went to Ky'Toria's bedroom to watch a movie. Ky'Toria said that as soon as the movie started, she fell asleep. Peavy testified that she did not fall asleep but dozed off and on. At approximately 12:45 a.m., Ky'Toria awoke to a loud bang. Ky'Toria said that she jumped when she heard the noise and that Peavy grabbed her. At that point, Floyd entered Ky'Toria's bedroom and demanded her car keys. Ky'Toria testified that Floyd appeared to be in a hurry. Ky'Toria asked Floyd why he was there, at which point, Floyd grabbed Ky'Toria's cellular telephone and Peavy's cellular telephone, eyeglasses, and Army-issued dog tags, and fled. Peavy attempted to chase Floyd, but Ky'Toria stopped her. Peavy testified that Floyd dropped her eyeglasses and dog tags in the living room but that he kept both her and Ky'Toria's cellular telephones.

At that point, Ky'Toria, whose bedroom was across the hall from James and Sarah's room, but on the other side of the house from Jones's bedroom, woke up James and Sarah. James and Sarah both testified that they were awakened that night by Ky'Toria screaming that Floyd was in the house. The three then went into the den and Ky'Toria telephoned emergency 911. Testimony indicated that the call was made at 12:46 a.m. At that point, Ky'Toria did not know that her mother had been killed, and she simply asked the 911 dispatcher to send police to the house because Floyd was there. James then looked for Jones and found her lying on the floor in a pool of blood in the hallway just outside her bedroom. Sarah then telephoned emergency 911 to request an ambulance.

Police and paramedics arrived at the scene shortly after the emergency calls. Paramedics began working on Jones. Police cleared the house and later transported James, Sarah, Ky'Toria, and Peavy to the police station, where they gave statements to police about the events of that night. Diana Chavers, one of the medics who responded to the emergency call, testified that when she arrived she was informed by police that the victim had multiple gunshot wounds and was believed to be deceased. Chavers said that Jones was not breathing and did not have a pulse. However, when Chavers placed a cardiac monitor on Jones, there appeared to be some electrical activity in the heart. Chavers and her partner then attempted to resuscitate Jones. To clear Jones's airway for intubation, Chavers had to remove several teeth from Jones's throat; the teeth had been knocked out and had lodged in Jones's throat as a result of a gunshot to Jones's face. The resuscitation efforts were ultimately unsuccessful and Jones was transported to the hospital where she was pronounced dead on arrival.

Dr. Eugene Hart, a forensic pathologist with the Alabama Department of Forensic Sciences who performed the autopsy on Jones, testified that the cause of Jones's death was multiple gunshot wounds. Specifically, Dr. Hart testified that Jones suffered three gunshot wounds -- one to the back of the head, one to the face, and one to the back. Dr. Hart characterized the gunshot wound to the back of the head as a "hard contact gunshot wound," meaning that the gun was pressed firmly against Jones's head when it was fired. (R. 2921.) Dr. Hart said that the bullet traveled from back to front through Jones's brain, with a slightly downward trajectory. Dr. Hart testified that the gunshot wound to Jones's face was not a contact wound, but was fired from less than 12 inches away. The bullet, Dr. Hart said, went through the bridge of Jones's nose and down through the upper jaw, finally stopping in Jones's lower jaw. Dr. Hart removed both of those bullets and sent them for ballistics testing. As for the gunshot wound to the back, Dr. Hart testified that the bullet entered the upper left portion of Jones's back and exited through the left front of the chest. Dr. Hart characterized this wound as an "indeterminate range gunshot wound" based on the lack of soot and stippling around the wound. (R. 2936.) Dr. Hart said that the lack of soot or stippling may have been because Jones was clothed at the time the shot was fired or it may have been because the shot was fired from a distance; because he could not make that determination conclusively, he characterized the wound as being from an indeterminate range. Dr. Hart testified that the gunshot wounds to Jones's face and back were likely survivable, but that it was unlikely that Jones could have survived the gunshot wound to the back of her head.

At the scene, police found that the window in Jones's bedroom had been broken from the outside and shards of glass were on the bedroom floor. One of those shards was stained with blood, and subsequent DNA testing revealed that the blood was Floyd's. On a dresser in Jones's bedroom, police found a .38 caliber revolver, which was later determined through ballistics testing to be the murder weapon. The revolver contained three spent shell casings,...