Khalid Ali Pasha v. State of Florida , 42 Fla. L. Weekly Supp. 569 ( 2017 )

Supreme Court of Florida
____________
No. SC13-1551
____________
KHALID ALI PASHA,
Appellant,
vs.
STATE OF FLORIDA,
Appellee.
[May 11, 2017]
PER CURIAM.
This case is before the Court on direct appeal, following a retrial, from a
judgment of conviction of two counts of first-degree murder and two sentences of
death for the slaying of Robin Canady and Reneesha Singleton.1 We have
jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we
affirm Khalid Ali Pasha’s convictions but vacate the death sentences and remand
for a new penalty phase based on the United States Supreme Court’s opinion
1. In 2007, Pasha was tried, convicted, and sentenced to death for the two
murders, but his convictions and sentences were reversed due to a violation of his
right to self-representation. Pasha v. State, 39 So. 3d 1259 (Fla. 2010).
in Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), and this Court’s
opinion on remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), petition for
cert. filed, No. 16-998 (U.S. Feb. 13, 2017).
FACTS AND PROCEDURAL HISTORY
At approximately 10 p.m. on August 23, 2002, Robin Canady drove to the
Woodland Corporate Center (“WCC”) in her white Buick to pick up Reneesha
Singleton, her daughter, from a training class. Earlier that day, Canady had
discussed with Pasha, her husband, Canady’s plan to pick up Singleton. That same
evening, Pasha drove to the WCC in his white work van after visiting his ex-wife.
Upon arriving at the WCC, Pasha put on a white jumpsuit and white boots. He
then walked to Canady’s vehicle, sat in the backseat while Canady remained in the
driver’s seat, and awaited Singleton’s arrival. Pasha was still sitting in the
backseat of Canady’s vehicle when Singleton entered it.
At approximately 11:15 p.m. on that day, Jose Sanchez observed Pasha
walking through the WCC wearing a white jumpsuit and white boots, covered in
blood, and carrying a shiny object. Mr. Sanchez called his wife Gigi and told her
to remain where she was until he came to get her. After Mr. Sanchez picked up
Mrs. Sanchez in their red pickup truck, Mrs. Sanchez called 911 and provided
information to the 911 dispatcher. While Mrs. Sanchez remained on the phone
with the 911 dispatcher, the Sanchezes observed Pasha run into a wooded area near
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a parking lot wearing the white jumpsuit and white boots, covered in blood, and
carrying a shiny object. When Pasha emerged from the wooded area, the
Sanchezes observed him wearing tan pants and a white t-shirt. The Sanchezes then
observed Pasha leaving the WCC in his white work van. The Sanchezes followed
Pasha and continued to provide detailed information to the 911 dispatcher
including the license plate number of Pasha’s vehicle.
Deputy Stahlschmidt and Deputy Mason responded to the dispatch that
resulted from Mrs. Sanchez’s 911 call. Upon nearing the WCC, the deputies
observed Pasha’s white van stopped at a red light followed by the Sanchezes’ red
pickup truck. The deputies observed the Sanchezes flashing their lights, motioning
toward Pasha’s van, and yelling. After making a U-turn, the deputies pulled
directly behind Pasha’s van and approached it on foot. Deputy Stahlschmidt
approached the driver’s side of the van and observed that Pasha appeared nervous,
was sweating profusely, was gripping the wheel tightly, and had blood on his white
t-shirt. Deputy Mason approached the passenger’s side of the van, observed a
white, bloody jumpsuit and white boots through the rear window of the van, and
gave a danger signal to Deputy Stahlschmidt. Deputy Stahlschmidt asked Pasha to
exit the van and noticed that Pasha was wearing dress pants and a white t-shirt
without shoes. When Deputy Mason asked Pasha if he was injured, Pasha claimed
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that the blood came from a rabbit. Deputy Mason immediately advised Pasha of
his Miranda2 rights.
After the stop, the Sanchezes led the deputies into the WCC and identified
the area where they had seen Pasha. During this trip, Deputy Stahlschmidt entered
a cul-de-sac where he observed blood and a pair of shoes in the middle of the
street. After exiting the patrol car, Deputy Stahlschmidt found Canady’s vehicle
covered in blood and crashed into a wall. He then observed a bloody fire hydrant
and bloody drag marks going into a nearby wooded area. After walking
approximately fifteen feet into the wooded area, Deputy Stahlschmidt found the
bodies of Canady and Singleton, both of which showed significant signs of trauma.
While neither victim had a pulse, both bodies were warm.
Soon thereafter, Crime Scene Technician Egan began processing the crime
scene. Egan found blood smears consistent with having been made by hands on
both the trunk and passenger’s side roof of Canady’s vehicle. Inside the vehicle,
Egan found blood on numerous surfaces including the front seats, the console, the
armrest, and the passenger’s front door. Egan also observed blood spatter on the
dashboard and windshield.
2. Miranda v. Arizona, 384 U.S. 436 (1966).
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During a search of Pasha’s van after a warrant had been obtained, Pasha’s
white, bloody jumpsuit and white boots were seized. Inside one of the boots was a
bloody, broken, 18” to 20” bat made of wood with a metal rod running through it
known as a “tire thumper.” In the other boot, a bloody butcher knife and latex
gloves were found. During a search of Canady’s vehicle, Crime Scene Analyst
Lynn Ernst observed that the front seat was soaked with blood, multiple surfaces
were spattered with blood, the rear seat contained little to no blood, and cuts in the
headliner of the vehicle were made by a sharp object. Ernst concluded that this
evidence was consistent with the perpetrator having sat in the back of the vehicle.
Additionally, Ernst compared photographs of footwear impressions from the cul-
de-sac to boots recovered from Pasha’s van, and concluded that the impressions in
the cul-de-sac were consistent with having been made by the boots found in
Pasha’s van.
Patricia Bencivenga, a DNA analyst, found evidence of blood on the knife
and rubber gloves found in one of Pasha’s boots, the tire thumper found in Pasha’s
other boot, and swabs taken by crime scene personnel. Bencivenga also found
evidence of blood on Pasha’s white boots, white jumpsuit, white t-shirt, and tan
pants. Bencivenga matched Canady’s DNA to the blood found on the tire thumper,
Pasha’s right boot, and Pasha’s white t-shirt. Bencivenga matched Singleton’s
DNA to the blood on the knife, Pasha’s pants, and a swab of Pasha’s face.
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Bencivenga matched the DNA of both Canady and Singleton to the blood on
Pasha’s jumpsuit.
Dr. Volnikh, a medical examiner, visited and examined the crime scene. At
the scene, she observed blood spatter consistent with arterial spray on the interior
of Canady’s vehicle consistent with the fact that both victims had severed carotid
arteries. Dr. Volnikh also observed blood smears on the ground and abrasions on
the backs of both victims consistent with the bodies having been dragged by the
feet across pavement and into a grassy area. Thereafter, Dr. Volnikh performed
the autopsies of Canady and Singleton. Both victims suffered numerous incised
wounds, blunt force trauma to the head, and defensive wounds. The cause of death
for Canady was determined to be an incised wound to the neck that severed her
carotid artery and jugular veins. The cause of death for Singleton was determined
to be a sharp force injury to the neck and an incised wound to the neck that severed
her carotid artery and jugular veins. According to Dr. Volnikh, the knife found in
Pasha’s van was consistent with having caused the stabbing and slicing injuries of
the victims and the tire thumper found in Pasha’s van was consistent with having
caused the blunt force trauma injuries of the victims. Dr. Volnikh concluded that
the victims were alive when the injuries were inflicted.
Pasha represented himself and testified at trial. Pasha testified that on
August 23, 2002, he visited his ex-wife to drop off an alimony check and then
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proceeded to drive home. According to Pasha, Canady called him and convinced
him to come to the WCC to help her find a lost ring. Pasha claimed that when he
arrived at the WCC, he met Canady in a parking lot to the west of a nearby cul-de-
sac. Pasha claimed that Canady told him she had not lost a ring, needed him to act
as a lookout while she did something to get money to support her family, and
asked him to put on the white jumpsuit and boots because his clothes and shoes
were expensive. Pasha testified that Canady told him to wait in the parking lot
until she came back to get him or signaled him for help with her vehicle’s lights or
horn.
Pasha testified that, after waiting in the parking lot for approximately fifteen
to twenty minutes, he walked to the nearby cul-de-sac and found the bodies of
Canady and Singleton. According to Pasha, after holding both bodies, he ran
around the WCC looking for someone, picked up a tire thumper, and returned to
his van. Pasha stated that he saw a group of people sitting at a table and observed a
truck following him as he walked towards his van. Pasha testified that he went
between some buildings, took off his jumpsuit, walked to his van, and placed the
jumpsuit, tire thumper, and boots in the back of the van. Pasha explained that he
wrapped the tire thumper in his white jumpsuit, placed both items in his white
boots, and began to drive away from the WCC without putting on his shirt or
shoes. Soon thereafter, Pasha was stopped by the police at a nearby stoplight.
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On cross-examination, Pasha acknowledged that after arriving at the WCC,
he approached Canady’s vehicle in a white jumpsuit and sat in the backseat of the
vehicle behind Canady. Pasha admitted that he was still sitting in Canady’s
vehicle when Singleton arrived. Although Pasha claimed that he did not observe a
knife at the crime scene, he testified that he had previously taken the same knife
found at the crime scene out of a flower bed at his home, used it to remove a fuse
from Canady’s vehicle, and left it on the floorboard of the vehicle two or three
days before the murder. Pasha testified that he found the tire thumper in the road
south of Canady’s vehicle and “took it because I thought it was a murder weapon.”
Pasha claimed that he did not know how the knife ended up in the back of his van,
despite the fact that it was found in one of his boots. Pasha claimed that the police
officers could not have seen the bloody objects concealed within one of his boots
from outside of the van when they approached at the red light. Pasha admitted that
he had lied to the police about killing a rabbit in order to explain the blood on his
white t-shirt. When asked whether the blood of Canady and Singleton was on his
jumpsuit, Pasha responded that “[o]bviously it was, yeah.”
The jury found Pasha guilty as charged on both counts of first-degree
murder. During the penalty phase, the State presented evidence that it would have
taken a significant period of time to inflict the injuries on Canady and Singleton,
the victims struggled with their attacker, the injuries would have been very painful,
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and the victims remained conscious long enough after their throats were cut to exit
the vehicle. The State also presented evidence that Pasha had been on parole since
1997 as a result of a 1970 conviction for bank robbery from the Western District of
Kentucky, and that Pasha was convicted for robbing a bank in Indiana on March
27, 1984. Pasha called family members, friends, coworkers, and others to testify in
mitigation. The jury recommended that Pasha be sentenced to death for each
murder by a vote of eleven to one.
After the Spencer3 hearing, the trial court4 sentenced Pasha to death for each
murder. In imposing the death sentences, the trial court concluded that the four
aggravating factors5 substantially outweighed the two statutory mitigators and
eleven nonstatutory mitigators.6 In its sentencing order, the trial court stated that it
3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).
4. Judge Fernandez—the trial court—presided over Pasha’s case subsequent
to Judge Fuente and Judge Tharpe.
5. The trial court concluded that the following four aggravating factors were
proven beyond a reasonable doubt: (1) Pasha had committed a prior violent felony,
based on Pasha’s conviction for the contemporaneous murders of Canady and
Singleton and the 1984 bank robbery—great weight and significant weight,
respectively; (2) the murders were cold, calculated, and premeditated (CCP)—
significant weight; (3) the murders were heinous, atrocious, or cruel (HAC)—great
weight; and (4) Pasha committed the murders while on parole and under a sentence
of imprisonment—significant weight. We note that neither party raised any
doubling issue regarding the weighing of the prior violent felony aggravator.
6. The trial court found two statutory mitigators: (1) the age of Pasha at the
time of the murders—slight weight and (2) extreme mental or emotional
disturbance—moderate weight. The trial court also found that Pasha established
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would still have sentenced Pasha to death even if it had not found CCP because
“the remaining three (3) aggravators would seriously outweigh the existing
mitigating circumstances.”
ANALYSIS
On appeal, Pasha raises thirteen issues: (1) the trial court violated his right to
self-representation, due process, and a speedy trial, and erred in denying his motion
for disqualification; (2) the trial court erred in denying his motion to suppress; (3)
Judge Fuente erred in reappointing Attorney Daniel Hernandez as Pasha’s standby
counsel and in ordering Pasha to communicate through Hernandez, and the trial
court erred in denying Pasha’s motions regarding the dismissal of Hernandez; (4)
the trial court erred in admitting the 911 recording and distributing the transcript of
the recording to the jurors; (5) the trial court erred in denying his request for a
standard alibi instruction; (6) the trial court erred when it impressed on the jurors
during the guilt phase the need to reconvene later for a penalty phase; (7) the trial
court erred in admitting photographs of the victims that were not relevant to a
disputed issue; (8) the trial court made other erroneous evidentiary rulings that
individually and collectively served to deprive him of a fair trial; (9) the
prosecutor’s comments during the guilt and penalty phases deprived him of a fair
eleven nonstatutory mitigating circumstances and accorded each slight or moderate
weight.
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trial; (10) the CCP aggravating factor was barred by double jeopardy; (11) the trial
court erred in instructing the jury on two aggravating circumstances; (12) the trial
court improperly utilized the Tedder7 standard in deciding to impose the death
sentences; and (13) the Florida death penalty statute, on its face and as applied,
violates Ring v. Arizona, 536 U.S. 584 (2002).
Because we determine that Pasha is entitled to a new penalty phase based on
Hurst, we address only Pasha’s guilt phase claims and none of the other penalty
phase claims. In addition, we address whether the evidence in this case was
sufficient to sustain Pasha’s first-degree murder convictions, which this Court is
independently obligated to review in death penalty cases.
I. Self-Representation and Due Process, Speedy Trial, Demand for Speedy
Trial and Related Motions, and Motion for Disqualification
On October 24, 2012, Pasha filed a demand for speedy trial. On November
7, 2012, the trial court conducted a Faretta8 inquiry and continued to permit Pasha
to proceed pro se. On November 19, 2012, a hearing was held at which the trial
court offered to appoint counsel for Pasha. At the hearing, the following exchange
occurred in which the trial court explained to Pasha that it would permit Hernandez
7. Tedder v. State, 322 So. 2d 908 (Fla. 1975).
8. Faretta v. California, 422 U.S. 806 (1975).
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to relitigate any of the motions that Pasha had filed, and the trial court had ruled
on, if Pasha agreed to the offer of counsel:
THE COURT: Do you want me to appoint an attorney to represent
you so that you can re-litigate any motions that you filed?
You would end up -- your attorney would be representing you,
though. I’m telling you that. I’m making these offers to you, Mr.
Pasha, because this is the last time that I’m going to see you before I
see you when we’re picking a jury on November 26th. We’re set for
jury selection November 26th, at 8:00, and this is the last time I’m
going to see you before the jury walks in.
THE DEFENDANT: Yeah, I know. I understand.
THE COURT: So I really want to give you an opportunity to rethink
your position about trying to represent yourself.
THE DEFENDANT: You going to appoint Danny Hernandez as my
attorney?
THE COURT: He’s your standby counsel. Yes. . . . I will allow Mr.
Hernandez to represent you. I will allow Mr. Hernandez to refile and
re-litigate any of the motions that you filed in the past that I’ve
already ruled on because he’s more experienced in my opinion. He’s
a more experienced attorney than you are because you haven’t been to
law school yet, and you don’t have a law degree. So I will offer that
to you.
I mean, obviously, we can’t have a trial on Monday if Mr.
Hernandez is going to re-litigate all of these motions because I know
that he’s going -- he’s going to want some time to review the motions.
I’m doing this, Mr. Pasha, because honestly, this is the last time
I’m going to see you [before trial].
....
THE COURT: I think the clerk has just handed me two additional
motions that you filed. And again before we go through these
motions, you do not want me to appoint Mr. Hernandez to represent
you on these, either; is that correct?
THE DEFENDANT: No.
THE COURT: Again, any of the motions that you previously filed,
I’m willing to allow Mr. Hernandez, if you want him to represent you,
I would allow him to re-litigate them, which means I would allow him
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to refile and reargue any of the motions that you previously filed in
front of me.
Do you want Mr. Hernandez to represent you? I’m asking you
for a third time because I’m getting ready to rule.
After conferring privately with Hernandez, Pasha requested counsel be appointed,
took a continuance, and withdrew his speedy trial demand. The trial court granted
Pasha’s request and appointed Hernandez. The trial court explained the reasoning
behind its offer of counsel as follows:
THE COURT: Mr. Pasha, it’s not my intention to prolong your case.
I mean, when you demanded speedy trial, I ordered 200 jurors to show
up Monday so that we could begin jury selection. And it was my
intention of trying your case for the next three weeks. It is not my
intention to prolong your case or delay your case.
On the same side, on the same token, I want to balance that
desire to give you efficient and effective justice. I want to balance
that with the fact that I want to make sure that you understand what
you’re doing and [for] you [to] make very thoughtful judgments and
[for] you [to] make very -- [to] exercise good thought and good
judgment. And so that’s why I offered again [to appoint Mr.
Hernandez as counsel].
On November 30, 2012, Pasha filed a motion to proceed pro se and a
pleading he entitled “Motion to Be Heard.” Pasha claimed that he was
“hoodwinked” by the trial court’s offer and the offer forced him to make a choice
between the right to be heard and the right to continue pro se, and he requested that
his case be set for trial within the recapture window of the original demand filed on
October 24, 2012.
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On December 7, 2012, a hearing was held at which the trial court addressed
Pasha’s motions. The trial court regarded Pasha’s “Motion to Be Heard” as an
entirely new demand for speedy trial and noted that “there is no continuation of the
initial speedy trial [demand filed on October 24, 2012,] because [Pasha] withdrew
that motion the last time that we were here [on November 19, 2012].” Although
Pasha insisted that he had been coerced into accepting Hernandez as counsel, the
trial court rejected that coercion argument. The trial court set jury selection for
January 14, 2013, within the required timeframe of Pasha’s new demand for
speedy trial.
On December 17, 2012, Pasha filed a notice of expiration of speedy trial
time and a motion to disqualify the trial court on the basis that the trial court was
no longer fair and impartial. The trial court ruled on the truth of the facts alleged
in support of Pasha’s motion to disqualify and denied the motion. On January 2,
2013, Pasha moved for discharge claiming a speedy trial violation. On January 3,
2013, the trial court struck the notice of expiration and denied the motion for
discharge because Pasha’s initial demand had been withdrawn and the trial court
had treated Pasha’s November 30, 2012, “Motion to Be Heard” as a new demand
for speedy trial. In the words of the trial court, “the time for speedy trial ha[d] not
yet expired.”
A. Self-Representation and Due Process
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Pasha asserts that the trial court’s offer of counsel at the hearing held on
November 19, 2012, violated his Sixth Amendment right to self-representation
under Faretta v. California, 422 U.S. 806 (1975). In Faretta, the Supreme Court
held that “a defendant in a state criminal trial has a constitutional right to proceed
without counsel when he voluntarily and intelligently elects to do so.” Id. at 807.
The Supreme Court explained that “[t]o force a lawyer on a defendant can only
lead him to believe that the law contrives against him.” Id. at 834 (emphasis
added). Faretta does not address whether a trial court can offer a procedural
benefit to a defendant that necessarily requires the defendant to waive his or her
Sixth Amendment right to self-representation.
Pasha correctly notes that the trial court’s offer of counsel on November 19,
2012, simultaneously included a procedural benefit: permitting Hernandez to refile
and relitigate Pasha’s previously denied motions. However, contrary to Pasha’s
assertion, the trial court’s offer did not violate his Sixth Amendment right to self-
representation because the trial court did not force Pasha against his will to accept
Hernandez as counsel. See id. at 807, 835-36 (recognizing that when a defendant
voluntarily, intelligently, and unequivocally elects to proceed without counsel
under the Sixth Amendment, a court cannot force the defendant to accept counsel
against his or her will). Rather, the record reflects that the trial court offered
counsel to Pasha and Pasha accepted.
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In fact, the record reflects that the trial court fully respected Pasha’s Sixth
Amendment rights by permitting Pasha to waive his right to self-representation
from November 19, 2012, to December 7, 2012, permitting Pasha to reassert his
right to self-representation on December 7, 2012, and permitting Pasha to represent
himself at trial. Since the trial court never denied Pasha’s constitutional right to
self-representation, Pasha is not entitled to relief.
Pasha also asserts that the trial court’s offer of counsel violated his right to
due process by inducing him to waive his right to proceed pro se. However, as the
Supreme Court has recognized, “not every burden on the exercise of a
constitutional right, and not every pressure or encouragement to waive such a right,
is invalid.” Corbitt v. New Jersey, 439 U.S. 212, 218 (1978). Although a trial
court’s offer of counsel that simultaneously contains a procedural benefit may raise
concerns about safeguarding a defendant’s right to due process in some
circumstances, no cause for concern exists under the facts of this case. First, the
record reflects that the trial court had previously considered and ruled on each of
the motions in question—thus, the trial court’s offer did not require Pasha to give
up any right, privilege, or advantage regarding the motions. Second, any
procedural benefit obtained by Pasha would have required the prosecutor to
relitigate motions that previously favored the State—thus, only the State stood the
risk of receiving an unfavorable ruling on the motions. And third, Pasha waived
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his right to self-representation from November 19, 2012, to December 7, 2012,
Pasha reasserted his right to self-representation on December 7, 2012, and Pasha
subsequently represented himself at trial. Accordingly, under the facts of this case,
the trial court’s offer of counsel did not violate Pasha’s right to due process. Pasha
further claims that the trial court’s offer of counsel violated public policy and
constituted fraud in the inducement. We reject these claims as they are
unsupported by the record and without merit.
B. Speedy Trial
Pasha claims that he was denied his Sixth Amendment right to speedy trial
because the trial court and the prosecutor allegedly acted in bad faith and official
bad faith is purportedly demonstrated on the record. When determining whether a
defendant has been deprived of the constitutional right to speedy trial, courts
balance the following four factors: (1) the length of delay; (2) the reason for the
delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.
Barker v. Wingo, 407 U.S. 514, 530 (1972). Official bad faith in causing a delay
“will be weighed heavily against the government” and “make relief virtually
automatic.” Doggett v. United States, 505 U.S. 647, 656-57 (1992).
We find that Pasha was not deprived of his constitutional right to speedy
trial under the balancing test established in Barker. First, less than three years
elapsed between the issuance of this Court’s mandate in 2010 ordering a retrial and
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the beginning of Pasha’s retrial in 2013. Second, much of that time was spent with
Pasha filing motions and seeking to relitigate issues. Third, Pasha did not begin to
assert his right to speedy trial until October 24, 2012, less than three months before
his retrial started, and then did so only under Florida’s procedural speedy trial rule.
And fourth, nothing within the record suggests that Pasha was prejudiced by any
delay. Contrary to Pasha’s assertion, neither the trial court nor the prosecutor acted
in bad faith and no official bad faith is demonstrated on the record.
C. Demand for Speedy Trial and Related Motions
Pasha asserts that the trial court erred in striking the notice of expiration of
speedy trial time filed on December 17, 2012, and denying the motion for
discharge filed on January 2, 2013. We reject these claims because we find that
Pasha took a valid continuance on November 19, 2012, and Pasha’s appellate
counsel conceded at oral argument before this Court that a valid continuance
renders these arguments moot.
D. Motion for Disqualification
Within his motion for disqualification filed on December 17, 2012, Pasha
asserted that the trial court held a hearing without his presence on September 21,
2012, coerced Pasha to accept Hernandez as counsel on November 19, 2012, and
abrogated her role as a neutral arbitrator on December 7, 2012. “A motion to
disqualify shall be filed within a reasonable time not to exceed 10 days after
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discovery of the facts constituting the grounds for the motion and shall be promptly
presented to the court for an immediate ruling.” Fla. R. Jud. Admin. 2.330(e). A
motion to disqualify shall show “that the party fears that he or she will not receive
a fair trial or hearing because of specifically described prejudice or bias of the
judge.” Fla. R. Jud. Admin. 2.330(d)(1). “The judge against whom an initial
motion to disqualify under subdivision (d)(1) is directed shall determine only the
legal sufficiency of the motion and shall not pass on the truth of the facts alleged.”
Fla. R. Jud. Admin. 2.330(f). However, “[i]f a judge has been previously
disqualified on motion for alleged prejudice or partiality under subdivision (d)(1),
. . . a successor judge may rule on the truth of the facts alleged in support of the
motion.” Fla. R. Jud. Admin. 2.330(g). The denial of a motion to disqualify by a
successor judge will only be reversed if the record clearly refutes the successor
judge’s decision to deny the motion. Kokal v. State, 901 So. 2d 766, 774 (Fla.
2005).
Irrespective of the timeliness of Pasha’s motion under rule 2.330(e), the
record does not clearly refute the trial court’s decision—as a successor judge—to
deny Pasha’s motion for disqualification under Kokal. First, although the trial
court initially began a hearing without Pasha in attendance on September 21, 2012,
the record from the hearing reflects that the trial court, the State, and standby
counsel simply engaged in administrative discussions until the trial court called
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Pasha into the courtroom. See, e.g., Florida Bar v. Carlon, 820 So. 2d 891, 896
(Fla. 2002) (recognizing that ex parte communications regarding strictly
administrative matters are not sufficient to grant a motion to disqualify a judge).
At no point during Pasha’s absence from the hearing did the trial court, the State,
or standby counsel discuss any matter dealing with the merits of the case. Second,
the record from the hearing held on November 19, 2012, reflects that the trial court
did not coerce Pasha to accept Hernandez as counsel. And third, the record from
the hearing held on December 7, 2012, reflects that the trial court did not abrogate
its role as a neutral arbitrator. Accordingly, the trial court did not err in denying
Pasha’s motion for disqualification.
II. Motion to Suppress
Pasha contends that the trial court erred in denying his motion to suppress
and concluding that Pasha’s stop, detention, and arrest were lawful. “The standard
of review for motions to suppress is that the appellate court affords a presumption
of correctness to a trial [court’s] findings of fact but reviews de novo the mixed
questions of law and fact . . . .” Wyche v. State, 987 So. 2d 23, 25 (Fla. 2008). In
order to perform an investigative stop, an officer must have “reasonable suspicion
that the person is engaged in criminal activity.” J.L. v. State, 727 So. 2d 204, 206
(Fla. 1998). The reasonable suspicion standard for investigative stops “takes into
account ‘the totality of the circumstances—the whole picture.’ ” Navarette v.
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California, 134 S. Ct. 1683, 1687 (2014) (quoting United States v. Cortez, 449 U.S.
411, 417 (1981)). “The ‘reasonable suspicion’ necessary to justify such a stop ‘is
dependent upon both the content of information possessed by police and its degree
of reliability.’ ” Id. (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).
An informant’s reliability, basis of knowledge, and veracity are relevant
factors to consider in the reasonable suspicion context. White, 496 U.S. at 328.
“Anonymous tips are at the low-end of the reliability scale” while information
provided by a citizen-informant “is at the high end of the tip-reliability scale.”
State v. Maynard, 783 So. 2d 226, 229-30 (Fla. 2001) (quoting State v. Evans, 692
So. 2d 216, 218-19 (Fla. 4th DCA 1997)). “[A]n anonymous tip alone seldom
demonstrates the informant’s basis of knowledge or veracity . . . .” White, 496
U.S. at 329. However, “if the caller qualifies as a citizen informant, then the
information from the tip . . . would be considered at the high end of the reliability
scale, sufficient by itself to justify a[n investigative] stop.” Maynard, 783 So. 2d at
228.
At the hearing held on Pasha’s motion to suppress, Hillsborough County
Sheriff Deputies Stahlschmidt and Mason testified about the stop of Pasha’s
vehicle. According to Deputy Stahlschmidt:
The information that we received [from the 911 dispatcher] as
annotated in my report was suspicious person in a vehicle. The
subject that emerged from the woodline had gone through the park
and appeared to be covered in blood and holding an unknown object,
- 21 -
possibly a knife, and entering a van at a different location. . . . It was
a white cargo-style Ford E150 van bearing a Florida [license plate]
U[*****]. . . . He was changing his clothes and he had thrown
something in the woods there . . . and taken off what he was wearing
at that point.
According to Deputy Mason:
[Prior to the stop,] [w]e knew that there were two witnesses that
observed an individual that were now following the individual. They
relayed that the individual entered into a white van. They gave the
[license plate] number of the van. And then they also provided
information to the [dispatcher] that they were following the van. . . .
[T]he information that was given to us was that they observed a black
male running through the woods in a white suit that appeared to be
covered in blood.
On cross-examination, Pasha elicited from Deputy Stahlschmidt that the dispatcher
was not a law enforcement officer or trained professional.
The deputies testified that, upon nearing the WCC, they observed a white
van stopped at a red light followed by a red pickup truck with two occupants
inside. The driver of the truck was flashing his headlights at the deputies and both
the driver and his passenger were “kind of hanging out of both sides of the vehicle
waving at [the deputies] and pointing at the van with hand gestures.” “Based upon
the nature of the occupant[s] of the [red] pickup truck matching the description that
was given to [the deputies by the 911 dispatcher],” the deputies performed a U-
turn, pulled directly behind the white van, confirmed the license plate number that
was given by the 911 dispatcher, activated their police lights, and approached the
van on foot. According to Deputy Stahlschmidt, “[b]ased on the totality of the
- 22 -
circumstances and all the information I received, including the fact that [the
Sanchezes] were flagging the van down and flashing their headlights is why the
van was stopped.”
Deputy Stahlschmidt asked Pasha, the driver of the white van, to step out of
the vehicle after Deputy Stahlschmidt observed drops of blood on Pasha’s white t-
shirt, Deputy Mason observed a bloody jumpsuit through the rear window of the
van, and Deputy Mason signaled to Deputy Stahlschmidt to use caution. Other
deputies arrived soon thereafter and the occupants of the red pickup truck, the
Sanchezes, led Deputy Stahlschmidt and Deputy Mason into the WCC where they
claimed to have seen Pasha. Within the WCC, the deputies discovered bloody
items, pools of blood, a bloody vehicle, and the bodies of Canady and Singleton.
Pasha initially claims that Deputy Stahlschmidt and Deputy Mason lacked
reasonable suspicion to justify the investigative stop of Pasha’s vehicle because the
information provided by the Sanchezes to the 911 dispatcher failed to provide the
deputies with reasonable suspicion of ongoing or completed criminal activity. We
disagree. The record reflects that the deputies received information from a 911
dispatcher that two witnesses had called 911 to report a man covered in blood,
holding a knife-like object, running, changing clothes, throwing something into the
woods, and leaving the WCC in a white cargo-style Ford E150 van bearing a
- 23 -
specific Florida license plate number. This information provided the deputies with
reasonable suspicion of ongoing or completed criminal activity within the WCC.
Pasha further claims that the Sanchezes were anonymous informants whose
anonymous tip required further police investigation. We disagree. Approximately
one minute after receiving the dispatch, the deputies were flagged down by a red
pickup truck at a stoplight near the WCC. The occupants of the red pickup truck
were yelling, pointing, and flashing their headlights at a white van—the exact same
van identified by license plate number within the dispatch—in order to direct the
deputies’ attention towards the van. We find that the Sanchezes were not
anonymous because they called 911 to report suspected ongoing or completed
criminal activity within the WCC, told the 911 dispatcher that they were following
Pasha’s vehicle, and flagged down two deputies at a nearby stoplight. Even
considering only the facts known to the deputies at the time of the investigative
stop of Pasha’s vehicle, the Sanchezes’ identities were easily ascertainable and
readily discoverable. See Maynard, 783 So. 2d at 229-30. Moreover, the
Sanchezes qualified as citizen-informants. There is no indication that the
Sanchezes were motivated by any reason other than a concern for the safety of
others. See id. at 230.
Under the totality of the circumstances, the facts known to the deputies
immediately prior to the investigatory stop of Pasha’s van provided them with an
- 24 -
objectively reasonable basis to justify the stop. Therefore, the trial court did not
err in denying Pasha’s motion to suppress because the investigative stop was
permissible under the Fourth Amendment.
Pasha claims that even if the deputies had reasonable suspicion to justify the
stop, the deputies violated the Fourth Amendment by detaining Pasha longer than
necessary. We reject this claim as it is without merit and unsupported by the
record. Pasha also argues for the first time on appeal that the information given by
Mrs. Sanchez to the 911 dispatcher cannot be imputed to the officers who made the
stop under the fellow officer rule because the dispatcher in this case was a civilian
employee rather than a law enforcement officer. However, because Pasha did not
raise this argument below, he is foreclosed from raising it here. See Reynolds v.
State, 934 So. 2d 1128, 1144 (Fla. 2006) (“[W]e note that this particular claim
was not presented at the trial court level, and, therefore, the claim has not been
properly preserved for review.”).
III. Standby Counsel
A. Reappointment of Standby Counsel
Pasha claims that Judge Fuente erred in reappointing Hernandez as Pasha’s
standby counsel after this Court’s remand for a new trial in 2010 because Judge
Tharpe’s prior order granting Pasha’s motion to discharge Hernandez allegedly
served as a factual finding that a conflict of interest existed. However, the record
- 25 -
indicates otherwise. Pasha had alleged a “conflict” with Hernandez, claimed that
Hernandez had attempted to hide exculpatory evidence, and expressed a lack of
confidence in Hernandez. But Judge Tharpe discharged Hernandez without
making any finding of a conflict of interest within his order dated January 26,
2006. Additionally, Judge Tharpe did not make any finding of a conflict of interest
during the hearing held on Pasha’s motion on September 8, 2005. Pasha
alternatively argues that Judge Tharpe’s order implicitly found that a conflict of
interest existed. We reject this claim. From the record, it is apparent that
Hernandez was discharged as standby cocounsel simply because Pasha had made
clear that he did not wish to consult with him. Since Hernandez was not removed
for cause in 2006 by Judge Tharpe, Judge Fuente did not err by reappointing
Hernandez to Pasha’s case in 2010.
Pasha claims that Hernandez had a duty to decline being reappointed as
Pasha’s standby counsel by Judge Fuente. This claim lacks merit because
Hernandez was not removed for cause by Judge Tharpe. Pasha further claims that
Hernandez had an ethical duty to inform Judge Fuente of his prior involvement in
the case. This claim also lacks merit because, even if true, Judge Fuente was still
within his discretion to appoint Hernandez as standby counsel. We reject Pasha’s
claim that a conflict of interest arose because he filed a Florida Bar complaint
- 26 -
against Hernandez. See Hutchinson v. State, 17 So. 3d 696, 703-04 (Fla. 2009)
(“[T]he filing of a Bar complaint does not per se constitute a conflict of interest.”).
B. Communicating Through Standby Counsel
Pasha claims that Judge Fuente erroneously stated in an order dated October
12, 2011, that “[t]he [c]ourt will communicate with Mr. Pasha through Mr.
Hernandez and the assigned prosecutor.” However, when this isolated statement is
considered within the full context of Judge Fuente’s subsequent actions, any error
in the order was harmless beyond a reasonable doubt. For example, at the very
next hearing held on October 14, 2011, Judge Fuente communicated directly with
Pasha without requiring him to communicate through Hernandez or the assigned
prosecutor and set a hearing on one of Pasha’s motions. Accordingly, there is no
reasonable possibility that any error in Judge Fuente’s order affected Pasha’s right
of self-representation.
C. Dismissal of Standby Counsel
Pasha claims that the trial court erred in: (1) declining to reconsider Judge
Fuente’s order dated October 12, 2011, denying Pasha’s motion to dismiss
Hernandez and (2) denying Pasha’s motions to dismiss Hernandez as standby
counsel. “The general rule is that an indigent defendant has no right to choose a
particular court-appointed attorney.” Weaver v. State, 894 So. 2d 178, 187 (Fla.
2004). “Thus, if a trial court decides that court-appointed counsel is providing
- 27 -
adequate representation, the court does not violate an indigent defendant’s Sixth
Amendment rights if it requires him to keep the original court-appointed lawyer or
represent himself.” Id. at 188.
“[W]hen a defendant complains that his appointed counsel is incompetent[,]
. . . the trial judge is required to make a sufficient inquiry of the defendant [under
Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973),] to determine whether or not
appointed counsel is rendering effective assistance to the defendant.” Morrison v.
State, 818 So. 2d 432, 440 (Fla. 2002). “This Court has consistently found a
Nelson hearing unwarranted where a defendant presents general complaints about
defense counsel’s trial strategy and no formal allegations of incompetence have
been made.” Id. “Similarly, a trial court does not err in failing to conduct a
Nelson inquiry where the defendant merely expresses dissatisfaction with his
attorney.” Id. “A trial court’s decision involving withdrawal or discharge of
counsel is subject to review for abuse of discretion.” Guardado v. State, 965 So.
2d 108, 113 (Fla. 2007).
We find that the trial court did not abuse its discretion in denying Pasha’s
motion to reconsider and denying Pasha’s motions to dismiss Hernandez. The
record from the hearing held on Pasha’s motion to reconsider reflects that the
motion was denied after the trial court conducted a Nelson inquiry at which Pasha
presented no grounds to question Hernandez’s competence. With regard to
- 28 -
Pasha’s numerous motions to dismiss Hernandez and the hearings held on those
motions, the record reflects that the trial court either made sufficient inquiry to
determine whether there was reasonable cause to believe that standby counsel was
not rendering effective assistance or that Pasha’s complaints regarding standby
counsel merely expressed his general dissatisfaction with Hernandez.
IV. 911 Recording and Transcript
A. Hearsay
Pasha claims that the trial court erred in admitting the recording of Mrs.
Sanchez’s 911 call under the excited utterance exception to the hearsay rule. “A
trial court’s decision to admit evidence is reviewed under an abuse of discretion
standard.” Davis v. State, 121 So. 3d 462, 481 (Fla. 2013). “That discretion,
however, is limited by the rules of evidence.” Hudson v. State, 992 So. 2d 96, 107
(Fla. 2008). “Hearsay” is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” § 90.801(1)(c), Fla. Stat (2012). The excited
utterance exception authorizes admission of hearsay containing “[a] statement or
excited utterance relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or condition.” § 90.803(2),
Fla. Stat (2012). “[T]o qualify as an excited utterance, the statement must be
made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2)
- 29 -
‘before there was time to contrive or misrepresent’; and (3) ‘while the person was
under the stress or excitement caused by the event.’ ” Hudson, 992 So. 2d at 107
(quoting Henyard v. State, 689 So. 2d 239, 251 (Fla. 1996)). “This Court has
observed that ‘[i]f the statement occurs while the exciting event is still in progress,
courts have little difficulty finding that the excitement prompted the statement.’ ”
Id. (alteration in original) (quoting State v. Jano, 524 So. 2d 660, 662 (Fla. 1988)).
Pasha argues that the 911 recording constituted inadmissible hearsay to
which the excited utterance exception does not apply because Mrs. Sanchez
testified at trial that she was not “excited” when she made the 911 call.
Nevertheless, Mrs. Sanchez’s statement to the 911 dispatcher meets the legal
definition of an excited utterance. First, Mrs. Sanchez made the statement while
she observed Pasha covered in blood, holding a knife-like object, and running
around the WCC. Certainly, this event was startling enough to cause Mrs. Sanchez
to experience nervous excitement. Second, because Mrs. Sanchez made the
statement while contemporaneously observing Pasha covered in blood and carrying
a knife-like object, there was little to no time for her to contrive or misrepresent
what she observed. And third, Mrs. Sanchez made the statement while under the
excitement caused by observing Pasha covered in blood and carrying a knife-like
object. In fact, notwithstanding her disavowal of being “excited,” Mrs. Sanchez
- 30 -
testified at trial that she was afraid, scared, nervous, and concerned when she saw
Pasha covered in blood and called 911.
We acknowledge that the circumstances here—in which the declarant’s
utterance was made contemporaneously with the events described—may fit more
neatly under the exception in section 90.803(1), Florida Statutes, for spontaneous
statements, which covers statements “describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter, except when such statement is made under circumstances
that indicate its lack of trustworthiness.”9 In any event, Pasha’s argument that
there was an abuse of discretion on this point is unavailing.
Pasha claims that the 911 recording constituted hearsay within hearsay to
which the excited utterance exception does not apply because Mrs. Sanchez
relayed to the 911 dispatcher the observations of Mr. Sanchez. However, this issue
is not preserved for review because Pasha failed to contemporaneously make this
9. See Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 803.2, at 1028
(2016 ed.) (“In many situations, the spontaneous statement exception and the
excited utterance exception overlap. The two exceptions differ in the amount of
time that may lapse between the event and the statement describing the event.
Under section 90.803(2) it is not necessary that there be contemporaneity between
the event and the statement. Under section 90.803(2) the statement must only
relate to the event causing the excitement. Section 90.803(1) is limited to
statements that describe or explain the event. In addition, an exciting event or
condition is not required for a spontaneous statement under section 90.803(1).”
(footnotes omitted)).
- 31 -
specific objection at trial. See Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008)
(explaining that in order to preserve error for appellate review, the general rule is a
contemporaneous, specific objection must occur during trial at the time of the
alleged error). Pasha also argues that the introduction to the 911 recording
constituted inadmissible hearsay not subject to an exception. The introduction to
the 911 recording stated: “The following is a recording of a call received at
Hillsborough County Sheriff’s Office on 8/23/2002, on or about 2321 hours,
reference Hillsborough County Case No. 02-081848. Event number is 3585.
Original signal code 050. Call location from 4502 Seedling Circle.” However, the
introduction to the recording was not a hearsay statement offered for its truth. The
introduction was simply offered to orient the jury to the nature of the recording that
followed.
Pasha raises additional arguments related to the authentication of the 911
recording and the transcript of the recording, but none of them were preserved.
B. Sixth Amendment Right of Confrontation
Pasha claims that this Court must reverse because he was denied his
constitutional right to confront the person who made the introduction to the 911
recording and transcript of the recording. In Crawford v. Washington, 541 U.S.
36, 68 (2004), the Supreme Court held that “[w]here testimonial evidence is at
issue, . . . the Sixth Amendment demands what the common law required:
- 32 -
unavailability and a prior opportunity for cross-examination.” In other words,
“testimonial hearsay that is introduced against a defendant violates the
Confrontation Clause unless the declarant is unavailable and the defendant had a
prior meaningful opportunity to cross-examine that witness.” State v. Johnson,
982 So. 2d 672, 675 (Fla. 2008). Since Crawford, “this Court has held that a
specific objection is necessary to preserve a Crawford challenge.” Williams v.
State, 967 So. 2d 735, 747 n.11 (Fla. 2007). Although a defendant need not intone
special “magic words” in order to preserve a Crawford claim, “an objection to an
out-of-court statement as inadmissible hearsay will not preserve the Crawford
issue.” Corona v. State, 64 So. 3d 1232, 1242 (Fla. 2011).
Pasha claims that the introduction to the 911 recording and transcript
constituted testimonial hearsay because it was produced by law enforcement in
anticipation of litigation. However, this issue is not preserved for review because
Pasha never made a specific objection that the admission of the recording or the
transcript would violate the Confrontation Clause. Moreover, Pasha’s hearsay
objection did not preserve the issue for review.
C. The McCoy10 Mandates
10. McCoy v. State, 853 So. 2d 396 (Fla. 2003).
- 33 -
Pasha claims that the trial court erred in failing to make an independent
pretrial determination of the accuracy of the transcript of the 911 recording and in
failing to give a cautionary instruction to the jury regarding the use of the
transcript. In McCoy, this Court instructed trial courts to adhere to the guidance
promulgated in Martinez v. State, 761 So. 2d 1074 (Fla. 2000), regarding the use of
transcripts at trial. Specifically, this Court “mandate[d] that trial courts make an
independent pretrial determination of the accuracy of transcripts, and give a
cautionary instruction to the jury regarding the limited use to be made of the
transcript, prior to employment of these demonstrative aids during trial.” McCoy,
853 So. 2d at 405. A trial court abuses its discretion when it fails to follow the
McCoy mandates. Davis, 121 So. 3d at 491.
The claim that the trial court failed to make an independent pretrial
determination of the accuracy of the transcript is preserved for review because
Pasha argued in his motion to suppress that the transcript was “altered,” and this
claim is fairly equivalent to a claim that the transcript is not “accurate.” See
Wilcox v. State, 143 So. 3d 359, 373 (Fla. 2014) (recognizing that courts generally
afford pro se litigants leniency in technical matters). However, we find that any
error in the distribution of the transcript to the jury was harmless beyond a
reasonable doubt because the transcript was cumulative to the testimony provided
at trial by Mr. and Mrs. Sanchez regarding Pasha’s appearance and movements
- 34 -
within the WCC. In fact, both Mr. and Mrs. Sanchez testified at trial that Pasha
was the individual that they identified within the 911 call. Furthermore, Pasha was
not prohibited from cross-examining Mr. and Mrs. Sanchez regarding the contents
of the transcript, all copies of the transcript were collected from the jurors after the
911 call was played, and the transcript was not provided to the jury during
deliberations. And Pasha has failed to identify any inaccuracies in the transcript.
Under these circumstances, there is no reasonable possibility that the distribution
of the transcript affected the verdict.
The claim that the trial court failed to give a cautionary instruction to the
jury is not preserved for review because Pasha failed to request a cautionary
instruction at trial, and “the failure to give such an instruction would not rise to the
level of fundamental error.” Martinez, 761 So. 2d at 1088.
V. Alibi Jury Instruction
Pasha claims that the trial court erred in denying his request for an alibi jury
instruction. According to Pasha, he was entitled to the standard alibi instruction
because he testified at trial that he was elsewhere when the murders of Canady and
Singleton occurred:
And I went to the area of -- the west end. It would be the west
end of Seedling Circle. Seedling Circle is on the east side. This is if
you go west, you see that road. There’s a parking lot up there that you
go off into -- up into, back of a pond and has a TV station all up in the
corner. So I went up there.
- 35 -
[Canady] said, [s]tay here. Give me about 10 or 15 minutes.
She said, [i]f you see me blink my light or blow my horn and stuff,
she said, you come down here, just come down here. Other than that,
just stay there; I’ll be back to get you in just a second. So I said, okay.
I just stood there and stood there and waited and waited.
As I stood there about 15, 20 minutes, I don’t know how much
time it was. I wasn’t paying attention to exactly what time it was. I
saw her walking back down to it. . . .
When I came close . . . to the cul-de-sac, I walked up and saw
my wife, Robin, laying on the ground, and I ran to her. When I ran to
her, I kind of grabbed the body and intended to hold it, but before I
did, I heard something, voom, like kind of a noise like that. I looked
at Raneesha laying on the other side of her. I went to Raneesha, and I
picked her up, and I put my head on her chest to kind of see if she had
a heartbeat. . . .
I go back over to Robin and check her out, and they’re both
dead.
The standard alibi jury instruction provides as follows: “An issue in this case
is whether defendant was present when the crime allegedly was committed. If you
have a reasonable doubt that the defendant was present at the scene of the alleged
crime, it is your duty to find the defendant not guilty.” Fla. Std. Jury Instr. (Crim.)
3.6(i).
“The defense known in law as an ‘alibi’ is that, at the time of the
commission of the crime charged in the [information or] indictment, the defendant
was at a different place, so that he could not have committed it.” Blackwell v.
State, 86 So. 224, 227 (Fla. 1920) (quoting Words and Phrases 298 (Nat’l Rptr.
System ed., 1904)); accord Dees v. State, 128 So. 485, 485 (Fla. 1930); State ex
- 36 -
rel. Mitchell v. Walker, 294 So. 2d 124, 127 (Fla. 2d DCA 1974); Jones v. State,
128 So. 2d 754, 755 (Fla. 2d DCA 1961). “The proof of an alibi must include and
cover the entire time when the presence of the accused was required to commit the
offense charged.” Murphy v. State, 12 So. 453, 454 (Fla. 1893); accord Caldwell
v. State, 39 So. 188, 191 (Fla. 1905); Constantino v. State, 224 So. 2d 341, 342
(Fla. 3d DCA 1969); Jones, 128 So. 2d at 755. Contra Williams v. State, 395 So.
2d 1236, 1238 (Fla. 4th DCA 1981). Evidence in support of an alibi “must be such
as to render it impossible that the crime could have been committed by the party
that claims that he was not present, and could not be guilty as charged.” Bacon v.
State, 22 Fla. 51, 77 (1886) (emphasis added); see Blackwell, 86 So. at 227
(explaining that a defendant who sets up an alibi must show such a state of facts
surrounding his whereabouts at that particular time as would make it practically
improbable or impossible for him to have committed the offense charged); see also
Commonwealth v. Roxberry, 602 A.2d 826, 828 (Pa. 1992) (“There is no
minimum or threshold quantum of physical separation necessary for a defense to
constitute an alibi, so long as the separation makes it impossible for the defendant
to have committed the crime.”); State v. Berry, 419 P.2d 337, 341 (Ariz. 1966)
(“An alibi which leaves it possible for the accused to be the guilty man is no alibi
at all . . . .”) (alteration in original) (emphasis omitted) (quoting Singh v. State, 280
P. 672, 675 (Ariz. 1929)). In sum, an “alibi” is “[a] defense based on the physical
- 37 -
impossibility of a defendant’s guilt by placing the defendant in a location other
than the scene of the crime at the relevant time.” Alibi, Black’s Law Dictionary
(10th ed. 2014).
We conclude that the trial court did not abuse its discretion in denying
Pasha’s request for an alibi jury instruction because Pasha did not present evidence
to show that it would have been physically impossible for him to have committed
the murders of Canady and Singleton. A fair reading of Pasha’s trial testimony
shows that it was a general denial of guilt rather than an alibi defense based on the
physical impossibility of Pasha’s guilt. Pasha testified that he spoke to Canady at
the WCC, in person, a mere fifteen to twenty minutes prior to the murders.
Significantly, Pasha testified that he remained in close proximity to Canady—
within eyeshot and earshot of her vehicle’s lights and horn—during the fifteen to
twenty minutes in which he claims the murders took place. Pasha further testified
that after waiting for fifteen to twenty minutes in the parking lot, he went to the
cul-de-sac where he observed one of the victims making gasping noises.
Accordingly, even if Pasha traveled to the parking lot and remained where he
claimed, Pasha was not so far removed from the nearby cul-de-sac—the scene of
the crimes—at the relevant time in which the murders could have taken place as to
render it physically impossible for him to be the guilty party.
- 38 -
Pasha cites Adams v. State, 10 So. 106 (Fla. 1891), in support of the
argument that he was entitled to an alibi jury instruction. To the extent that Adams
states that “[n]either do we think that the evidence of an alibi should in any case
make it absolutely impossible for the prisoner to be present at the killing,” Adams,
10 So. at 114, it is inconsistent with our holding in this case and we recede from it
to the extent of the inconsistency.
VI. Trial Court’s Comments During the Guilt Phase
Pasha argues on appeal that certain comments of the trial court made on
January 14, 15, and 24, 2013, require reversal because they allegedly implied to the
prospective jurors and jurors that the trial court expected a guilty verdict. Pasha
claims that he properly preserved the issue for appellate review when he moved for
a mistrial on January 25, 2013, told the trial court that he had “a complaint to
lodge,” and the trial court responded “your objection is noted for the record.” We
disagree. Although Pasha moved for a mistrial on January 25, he failed to
contemporaneously object to any of the trial court’s comments on January 14, 15,
or 24, 2013. Accordingly, we conclude that Pasha failed to preserve this issue for
appeal. See, e.g., Norton v. State, 709 So. 2d 87, 94 (Fla. 1997) (“[D]espite
appellant’s motion for mistrial at the close of the witness’s testimony, his failure to
raise an appropriate objection at the time of the impermissible comment failed to
adequately preserve the issue for appellate review.”).
- 39 -
VII. Photographs of the Victims
Pasha argues that the trial court abused its discretion in admitting morgue
and crime scene photographs of the victims that were gruesome, gratuitous, and
more prejudicial than probative as to guilt. “The standard of review for the
admission of photographs is abuse of discretion.” Doorbal v. State, 983 So. 2d
464, 497 (Fla. 2008). “[P]hotographs are admissible if they are relevant and not so
shocking in nature as to defeat the value of their relevance.” Jennings v. State, 123
So. 3d 1101, 1126 (Fla. 2013) (quoting Hertz v. State, 803 So. 2d 629, 641 (Fla.
2001)). “Crime scene photographs are considered relevant when they establish the
manner in which the murder was committed, show the position and location of the
victim when he or she is found by police, or assist crime scene technicians in
explaining the condition of the crime scene when police arrived.” Douglas v.
State, 878 So. 2d 1246, 1255 (Fla. 2004). “This Court has upheld the admission of
photographs where they are relevant to ‘explain a medical examiner’s testimony, to
show the manner of death, the location of wounds, and the identity of the victim.’ ”
Floyd v. State, 808 So. 2d 175, 184 (Fla. 2002) (quoting Larkins v. State, 655 So.
2d 95, 98 (Fla. 1995)).
Pasha argues that the photographs should not have been admitted at trial
because he and the State stipulated to the identity of the victims. This issue is not
preserved for review because Pasha failed to object at trial on the basis of this
- 40 -
stipulation. Pasha claims that he preserved the issue of the admission of morgue
and scene photographs through a motion in limine. However, since the trial court
never made a definitive ruling on the issue raised in the motion, Pasha was
required to object at the time the photographs were introduced at trial. See
McGirth v. State, 48 So. 3d 777, 791 (Fla. 2010). Pasha also claims that he
preserved the issue of the admission of morgue and scene photographs with a
contemporaneous objection at trial. Although Pasha’s objection preserved the
issue of the admission of the morgue photographs, Pasha failed to preserve any
issue with regards to the subsequent admission of the scene photographs.
The trial court did not abuse its discretion in admitting the morgue
photographs of the victims. The photographs were relevant to a number of
disputed issues in the guilt phase including premeditation, the nature of the
victims’ injuries, the identity of the murder weapons, and the identity of the
murderer. Detective Service used the photographs to describe the injuries she
observed on the victims and the items recovered from their bodies and Dr.
Volnikh, the medical examiner that performed the autopsies of the victims, used
the photographs to explain to the jury the nature and manner in which the victims’
wounds were inflicted.
VIII. Other Evidentiary Rulings
- 41 -
Pasha claims that the trial court made other erroneous evidentiary rulings
during the guilt phase that individually and cumulatively deprived him of a fair trial.
Each of the evidentiary rulings is addressed below.
A. Instructing a Witness
Pasha argues that the trial court improperly refused to instruct Mr. Sanchez
to avoid nonresponsive answers. The record reflects that Pasha requested the trial
court to admonish Mr. Sanchez on three occasions, the trial court granted one of
Pasha’s requests, and the trial court denied two of Pasha’s requests. Accordingly,
two of Pasha’s requests for admonishment are preserved and properly before this
Court. Nevertheless, the trial court did not abuse its discretion in denying those
two requests and refusing to admonish Mr. Sanchez because Mr. Sanchez’s
answers were responsive to Pasha’s questions. See Kormondy v. State, 845 So. 2d
41, 52 (Fla. 2003) (explaining that limitations on the examination of a particular
witness are controlled in the sound discretion of the trial court). Pasha further
alleges that the trial court’s refusal to admonish Mr. Sanchez violated his right of
cross-examination. However, this issue is not preserved for review because it was
raised for the first time in Pasha’s Reply Brief. See Johnson v. State, 135 So. 3d
1002, 1029 n.11 (Fla. 2014).
B. Opinion Testimony
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Pasha argues that the trial court erred in refusing to curtail improper opinion
testimony from Mr. Sanchez regarding Pasha’s guilt. However, this issue is not
preserved for review because Pasha failed to contemporaneously make this specific
objection at trial. Pasha also argues that the trial court erred in refusing to curtail
improper opinion testimony from Mrs. Sanchez on the 911 call regarding Pasha’s
dangerousness. However, this issue is not preserved for review because Pasha
failed to contemporaneously make this specific objection at trial. But even if the
issue were preserved, Mrs. Sanchez’s statement on the 911 recording that Pasha
appeared to be “dangerous” did not provide an improper opinion regarding Pasha’s
guilt. Rather, Mrs. Sanchez’s statement merely relayed to the 911 dispatcher what
she perceived while observing Pasha covered in blood and holding a knife-like
object.
C. Leading Questions
Pasha argues that the trial court improperly overruled three of his objections
to questions as leading during the direct and redirect examinations of Mr. and Mrs.
Sanchez. However, the trial court did not abuse its discretion in overruling Pasha’s
objections. We reject these claims as they are without merit.
D. Impeachment Evidence
Pasha claims that the trial court erred in ruling that he could only impeach
Mr. Sanchez by admitting the entire transcript from a hearing held on October 29,
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2007, rather than using a two-page excerpt. “Before a witness can be impeached
with a prior inconsistent statement, the proper foundation must be laid.” Pearce v.
State, 880 So. 2d 561, 569 (Fla. 2004). Laying the proper foundation to impeach a
witness with a prior inconsistent statement necessarily requires calling the
witness’s attention to the prior inconsistent statement. See § 90.614(2), Fla. Stat.
(2012); Pearce, 880 So. 2d at 570 (explaining that defense counsel laid the proper
foundation under section 90.614(2) by “call[ing] to [the witness’s] attention the
time, place, and person to whom [the witness] made the prior inconsistent
statements, quot[ing] from the prior statements, and g[iving the witness] an
opportunity to explain his prior statements.”).
We find that Pasha was not entitled to admit the two-page excerpt of Mr.
Sanchez’s prior testimony from the hearing held on October 29, 2007, because
Pasha failed to lay a proper foundation to impeach Mr. Sanchez with a prior
inconsistent statement. The record reflects that Pasha called Mr. Sanchez’s
attention to a hearing held on October 29, 2007, and asked Mr. Sanchez a series of
questions that Mr. Sanchez had previously answered at the hearing regarding
where he was sitting when he first saw the individual wearing a white jumpsuit at
the WCC. The record further reflects that Mr. Sanchez acknowledged that the
questions had been asked, Mr. Sanchez answered the questions again, and Pasha
sought to admit a two-page excerpt of Mr. Sanchez’s prior testimony from the
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hearing. However, before seeking to admit the two-page excerpt, Pasha never
called Mr. Sanchez’s attention to any prior inconsistent statement made by Mr.
Sanchez at the hearing. Moreover, Pasha never asked Mr. Sanchez to explain or
deny any prior inconsistent statement made by Mr. Sanchez at the hearing
regarding where he was sitting when he first saw the individual wearing a white
jumpsuit at the WCC. Accordingly, Pasha’s argument lacks merit.
E. Crime Scene Diagram
Pasha argues that the trial court erred in admitting exhibit 156, a cardboard
diagram of the crime scene cul-de-sac, over his contemporaneous objection that it
was inaccurate. “The admissibility of evidence is within the sound discretion of
the trial court, and the trial court’s determination will not be disturbed on appellate
review absent a clear abuse of that discretion.” Gosciminski v. State, 132 So. 3d
678, 697 (Fla. 2013) (quoting Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005)).
This Court has long recognized that “a diagram . . . verified as a correct
representation of physical objects on the ground about which testimony is offered
is admissible in evidence for the use of witnesses in explaining their evidence and
to enable the jury to better understand the case.” Washington v. State, 98 So. 605,
607 (Fla. 1923).
We find that the trial court did not abuse its discretion in admitting the
diagram over Pasha’s contemporaneous objection because Deputy Chancey
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testified that she had been to the crime scene, verified that the diagram fairly and
accurately depicted the crime scene cul-de-sac, and used the diagram to explain her
testimony. Pasha claims that the trial court should have granted his renewed
objection to the admission of the diagram because, during the subsequent cross-
examination of Detective Service, Service conceded that the diagram was not an
accurate reflection of the distance between objects. However, the trial court did
not abuse its discretion in denying Pasha’s renewed objection because the
objection addressed an issue of fact—the weight that should be given to the
diagram by the jury—rather than the admissibility of the diagram.
Moreover, any error in the admission of a crime scene diagram was harmless
for two reasons. First, the State’s case was not premised on the distances between
objects in the cul-de-sac. Rather, it was based on Pasha’s presence at the murder
scene, the victims’ blood on Pasha’s clothes, the victims’ blood on the murder
weapons, and the bloody murder weapons found in Pasha’s van. Second, the jury
became aware that the diagram was not to scale through the testimony of Detective
Service, aerial photographs of the entire WCC, and individual photographs of the
crime scene and evidence. In other words, the jury could not have been misled by
the fact that the crime scene diagram was not to scale. Given these circumstances,
there is no reasonable possibility that any error in the admission of the crime scene
diagram affected the verdict.
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F. Proffers
Pasha argues that the trial court erred when it allegedly excluded evidence
and refused to allow Pasha to proffer testimony on twelve occasions. A trial court
commits error by refusing to allow a proffer of excluded evidence. See Wood v.
State, 654 So. 2d 218, 220 (Fla. 1st DCA 1995) (“[A] trial court commits error if it
[excludes evidence and] denies a request to proffer testimony which is reasonably
related to the issues at trial.”). “[R]efusal to permit a proffer [of excluded
evidence] is subject to a harmless error analysis.” Fehringer v. State, 976 So. 2d
1218, 1221 (Fla. 4th DCA 2008). However, a trial court does not abuse its
discretion when it denies a request to proffer testimony after an objection has been
properly sustained on the ground that: (1) the form of a question was improper or
(2) a question has been asked and answered. This is because such a denial does not
relate to excluded evidence.
The record reflects that the trial court did not refuse to allow a proffer, and
Pasha did not make a proffer, in eight of the twelve instances cited by Pasha on
appeal. Accordingly, Pasha’s claims regarding those eight instances lack merit.
The trial court ruled that Pasha could not present a proffer in four of the instances
cited by Pasha on appeal. However, as explained below, the trial court did not
abuse its discretion in denying those four requests to proffer testimony because the
denials did not relate to the exclusion of any evidence.
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In the first instance, Pasha asked Detective Service a question regarding the
crime scene diagram on cross-examination. Thereafter, the trial court properly
sustained the State’s objection to the form of the question and Pasha sought an
offer of proof. The trial court overruled Pasha’s request for an offer of proof but
explained that Pasha was welcome to rephrase the question. Pasha declined to
rephrase his question and proceeded to a different line of questioning. Although
the trial court denied Pasha’s request for an offer of proof, it did not err because the
denial did not relate to the exclusion of any evidence.
In the second instance, Pasha asked Mr. Sanchez a question on cross-
examination regarding the individual Mr. Sanchez had seen covered in blood at the
WCC; in the third instance, Pasha asked Mr. Sanchez a question on cross-
examination regarding a “shiny object” that the individual purportedly carried; and
in the fourth instance, Pasha asked Mr. Sanchez a question on cross-examination
regarding where Mr. Sanchez initially saw the individual. In each instance the trial
court properly sustained the State’s objection to the question as asked and
answered, Pasha sought an offer of proof, and the trial court overruled Pasha’s
request for an offer of proof. Although the trial court denied each of Pasha’s
requests for an offer of proof, it did not err because none of the denials related to
the exclusion of any evidence.
G. Cumulative Error
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Pasha argues that the cumulative effect of these guilt phase evidentiary
errors deprived him of his right to a fair trial. “However, where the individual
claims of error alleged are either procedurally barred or without merit, the claim of
cumulative error also necessarily fails.” Parker v. State, 904 So. 2d 370, 380 (Fla.
2005). As explained in the analysis of the individual issues above, the alleged
errors are either procedurally barred or without merit. Accordingly, we reject
Pasha’s argument of cumulative error.
IX. Prosecutor’s Comments
A. Comments Regarding Post-Miranda Silence During the Guilt Phase
Pasha claims that the prosecutor improperly cross-examined him during the
guilt phase on his post-Miranda silence in violation of the Fifth Amendment.
According to Pasha, this issue is preserved because the trial court granted a motion
in limine prior to trial that precluded the State from infringing on Pasha’s right to
remain silent. However, this issue is not preserved for review because the order
granting the motion in limine simply precluded “the State from arguing certain
matters in a penalty phase proceeding, including . . . the accused person’s right to
remain silent.” Regardless, we conclude that the prosecutor’s questions were not
“fairly susceptible of being construed by the jury,” State v. Hoggins, 718 So. 2d
761, 769 (Fla. 1998), as commenting on Pasha’s exercise of his right to remain
silent. The record reflects that Pasha expressly waived his right to remain silent on
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the day of the murders by speaking to the police and waived his right to remain
silent at trial by taking the stand to testify.
B. Comments Regarding Guilt During the Guilt Phase
Pasha argues that the prosecutor improperly asserted personal knowledge of
Pasha’s guilt while cross-examining him. However, this issue is not preserved for
review because Pasha failed to contemporaneously object to any of the
prosecutor’s comments or questions during Pasha’s cross-examination.
Regardless, none of the prosecutor’s questions or comments on cross-examination
were improper because the prosecutor never expressed his personal belief in or
knowledge of Pasha’s guilt. Rather, the prosecutor merely accused Pasha of
committing the murders and asked why he did so.
Pasha also argues that the prosecutor improperly asserted personal
knowledge of Pasha’s guilt in a single comment during closing argument.
However, this issue is not preserved for review because Pasha failed to
contemporaneously object to the prosecutor’s comment. Regardless, we conclude
that the verdict of guilty could have been obtained “without the assistance of the
alleged error.” Walls v. State, 926 So. 2d 1156, 1176 (Fla. 2006) (quoting Brown
v. State, 124 So. 2d 481, 484 (Fla. 1960)).
X. Sufficiency of the Evidence
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This Court independently reviews the record in death penalty cases to
determine whether sufficient evidence exists to support the conviction. Pham v.
State, 70 So. 3d 485, 501 (Fla. 2011). “In determining the sufficiency of the
evidence, the question is whether, after viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found the existence of the
elements of the crime beyond a reasonable doubt.” Bradley v. State, 787 So. 2d
732, 738 (Fla. 2001).
The evidence in this case showed that at approximately 10 p.m. on August
23, 2002, Canady drove to the WCC in her white Buick to pick up her daughter,
Singleton, from a training class. Aware of Canady’s plan, Pasha drove to the WCC
in his white work van. Upon arriving at the WCC, Pasha put on a white jumpsuit
and white boots. He then walked to Canady’s vehicle, sat in the backseat while
Canady remained in the driver’s seat, and awaited Singleton’s arrival. Pasha was
still sitting in the backseat of Canady’s vehicle when Singleton entered it.
Deputy Stahlschmidt subsequently found the bodies of Canady and
Singleton in the WCC. After obtaining a search warrant, the police discovered a
number of items in Pasha’s van including a white, bloody jumpsuit and white
boots. Inside one of the boots, the police discovered a bloody, broken, 18” to 20”
tire thumper. In the other boot, a bloody butcher knife and latex gloves were
found. The blood on Pasha, the blood on his clothes, and the blood on evidence
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collected from his van matched the blood of one or both victims. The evidence
indicated that the victims’ wounds resulted from the weapons discovered in
Pasha’s vehicle. Pasha was seen covered in blood and carrying a shiny object in
the WCC, the bodies were still warm when Pasha was leaving the WCC, and Pasha
lied about the blood to the police. Accordingly, the circumstantial evidence
presented by the State is sufficient to support the murder convictions in this case.
XI. Ring and Hurst
While Pasha’s appeal was pending before this Court, the United States
Supreme Court issued its decision in Hurst v. Florida in which it held that Florida’s
former capital sentencing scheme violated the Sixth Amendment because it
“required the judge to hold a separate hearing and determine whether sufficient
aggravating circumstances existed to justify imposing the death penalty” even
though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact
necessary to impose a sentence of death.” Hurst v. Florida, 136 S. Ct. at 619. On
remand in Hurst we held that
before the trial judge may consider imposing a sentence of death, the
jury in a capital case must unanimously and expressly find all the
aggravating factors that were proven beyond a reasonable doubt,
unanimously find that the aggravating factors are sufficient to impose
death, unanimously find that the aggravating factors outweigh the
mitigating circumstances, and unanimously recommend a sentence of
death.
Hurst, 202 So. 3d at 57.
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In light of the nonunanimous jury recommendation to impose the death
sentences, it cannot be said that the failure to require a unanimous verdict as to
each death sentence was harmless. See Franklin v. State, 209 So. 3d 1241, 1248
(Fla. 2016) (“In light of the non-unanimous jury recommendation to impose a
death sentence, we reject the State’s contention that any Ring- or Hurst v. Florida-
related error is harmless.”). We therefore reverse Pasha’s death sentences and
remand for a new penalty phase.
CONCLUSION
For the reasons stated above, we affirm Pasha’s convictions, vacate Pasha’s
death sentences, and remand for a new penalty phase.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, POLSTON, and LAWSON, JJ., concur as to the conviction and dissent
as to the sentence.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Hillsborough County,
Kimberly Kay Fernandez, Judge - Case No. 292002CF013748000AHC
Howard L. “Rex” Dimmig, II, Public Defender, and Karen M. Kinney, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,
for Appellant
Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,
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for Appellee
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