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).
- 2 -

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 
- 3 -

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 
- 4 -

that the blood came from a rabbit. Deputy Mason immediately advised Pasha of 

his Miranda2rights.

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).
- 5 -

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 culde-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. 
- 6 -

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 
- 7 -

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-desac. 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.
- 8 -

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, 
- 9 -

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 court4sentenced Pasha to death for each 

murder. In imposing the death sentences, the trial court concluded that the four 

aggravating factors5substantially 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 
- 10 -

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.
- 11 -

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 Tedder7standard 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 Faretta8inquiry 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).
- 12 -

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 
- 13 -

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.
- 14 -

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
- 15 -

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 selfrepresentation 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.
- 16 -

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 
- 17 -

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 
- 18 -

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 
- 19 -

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 
- 20 -

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. 
- 21 -

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, 
- 22 -

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 Uturn, 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 
- 23 -

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 tshirt, 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 
- 24 -

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 
- 25 -

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 
- 26 -

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 
- 27 -

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 
- 28 -

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 
- 29 -

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) 
- 30 -

‘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 
- 31 -

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)).
- 32 -

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: 
- 33 -

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).
- 34 -

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 
- 35 -

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. 
- 36 -

[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 
- 37 -

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 
- 38 -

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.
- 39 -

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.”).
- 40 -

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 
- 41 -

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
- 42 -

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
- 43 -

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, 
- 44 -

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 
- 45 -

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 
- 46 -

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 crossexamination 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.
- 47 -

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.
- 48 -

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 crossexamination regarding the individual Mr. Sanchez had seen covered in blood at the 

WCC; in the third instance, Pasha asked Mr. Sanchez a question on crossexamination 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
- 49 -

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 
- 50 -

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
- 51 -

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 
- 52 -

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.
- 53 -

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. Floridarelated 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,
- 54 -

for Appellee