FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF
Appeal from the Circuit Court in and for Hillsborough County,
Kimberly Kay Fernandez, Judge - Case No. 292002CF013748000AHC
L. "Rex" Dimmig, II, Public Defender, and Karen M.
Kinney, Assistant Public Defender, Tenth Judicial Circuit,
Bartow, Florida, for Appellant
Jo Bondi, Attorney General, Tallahassee, Florida; and Scott
A. Browne, Senior Assistant Attorney General, Tampa, Florida,
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. 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).
AND PROCEDURAL HISTORY
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.
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.
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
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.
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
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.
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
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.
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.
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.
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."
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.
the Spencer hearing, the trial court sentenced Pasha
to death for each murder. In imposing the death sentences,
the trial court concluded that the four aggravating
factors substantially outweighed the two statutory
mitigators and eleven nonstatutory mitigators. 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."
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 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).
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.
Self-Representation and Due Process, Speedy Trial, Demand for
Speedy Trial and Related Motions, and Motion for
October 24, 2012, Pasha filed a demand for speedy trial. On
November 7, 2012, the trial court conducted a
Faretta 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
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
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.
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].
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
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.
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
Self-Representation and Due Process
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.
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.
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.
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.