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Pasha v. State

Supreme Court of Florida

May 11, 2017

KHALID ALI PASHA, Appellant,
v.
STATE OF FLORIDA, Appellee.

         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, for Appellee

          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 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 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 that the blood came from a rabbit. Deputy Mason immediately advised Pasha of his Miranda[2] 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.

         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. 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 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.

         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, 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 Spencer[3] hearing, the trial court[4] sentenced Pasha to death for each murder. In imposing the death sentences, the trial court concluded that the four aggravating factors[5] substantially outweighed the two statutory mitigators and eleven nonstatutory mitigators.[6] In its sentencing order, the trial court stated that it 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 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 Tedder[7] 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 Faretta[8] 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 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 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.

         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

         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.

         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 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. ...


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