Khalid Ali Pasha v. State of Florida

Supreme Court of Florida
____________

No. SC13-1551
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KHALID ALI PASHA,
Appellant,

vs.

STATE OF FLORIDA,
Appellee.

[May 11, 2017]

PER CURIAM.

This case is before the Court on direct appeal, following a retrial, from a

judgment of conviction of two counts of first-degree murder and two sentences of

death for the slaying of Robin Canady and Reneesha Singleton.1 We have

jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons expressed below, we

affirm Khalid Ali Pasha’s convictions but vacate the death sentences and remand

for a new penalty phase based on the United States Supreme Court’s opinion

1. In 2007, Pasha was tried, convicted, and sentenced to death for the two
murders, but his convictions and sentences were reversed due to a violation of his
right to self-representation. Pasha v. State, 39 So. 3d 1259 (Fla. 2010).
in Hurst v. Florida (Hurst v. Florida), 136 S. Ct. 616 (2016), and this Court’s

opinion on remand in Hurst v. State (Hurst), 202 So. 3d 40 (Fla. 2016), petition for

cert. filed, No. 16-998 (U.S. Feb. 13, 2017).

FACTS AND PROCEDURAL HISTORY

At approximately 10 p.m. on August 23, 2002, Robin Canady drove to the

Woodland Corporate Center (“WCC”) in her white Buick to pick up Reneesha

Singleton, her daughter, from a training class. Earlier that day, Canady had

discussed with Pasha, her husband, Canady’s plan to pick up Singleton. That same

evening, Pasha drove to the WCC in his white work van after visiting his ex-wife.

Upon arriving at the WCC, Pasha put on a white jumpsuit and white boots. He

then walked to Canady’s vehicle, sat in the backseat while Canady remained in the

driver’s seat, and awaited Singleton’s arrival. Pasha was still sitting in the

backseat of Canady’s vehicle when Singleton entered it.

At approximately 11:15 p.m. on that day, Jose Sanchez observed Pasha

walking through the WCC wearing a white jumpsuit and white boots, covered in

blood, and carrying a shiny object. Mr. Sanchez called his wife Gigi and told her

to remain where she was until he came to get her. After Mr. Sanchez picked up

Mrs. Sanchez in their red pickup truck, Mrs. Sanchez called 911 and provided

information to the 911 dispatcher. While Mrs. Sanchez remained on the phone

with the 911 dispatcher, the Sanchezes observed Pasha run into a wooded area near

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a parking lot wearing the white jumpsuit and white boots, covered in blood, and

carrying a shiny object. When Pasha emerged from the wooded area, the

Sanchezes observed him wearing tan pants and a white t-shirt. The Sanchezes then

observed Pasha leaving the WCC in his white work van. The Sanchezes followed

Pasha and continued to provide detailed information to the 911 dispatcher

including the license plate number of Pasha’s vehicle.

Deputy Stahlschmidt and Deputy Mason responded to the dispatch that

resulted from Mrs. Sanchez’s 911 call. Upon nearing the WCC, the deputies

observed Pasha’s white van stopped at a red light followed by the Sanchezes’ red

pickup truck. The deputies observed the Sanchezes flashing their lights, motioning

toward Pasha’s van, and yelling. After making a U-turn, the deputies pulled

directly behind Pasha’s van and approached it on foot. Deputy Stahlschmidt

approached the driver’s side of the van and observed that Pasha appeared nervous,

was sweating profusely, was gripping the wheel tightly, and had blood on his white

t-shirt. Deputy Mason approached the passenger’s side of the van, observed a

white, bloody jumpsuit and white boots through the rear window of the van, and

gave a danger signal to Deputy Stahlschmidt. Deputy Stahlschmidt asked Pasha to

exit the van and noticed that Pasha was wearing dress pants and a white t-shirt

without shoes. When Deputy Mason asked Pasha if he was injured, Pasha claimed

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

his Miranda2 rights.

After the stop, the Sanchezes led the deputies into the WCC and identified

the area where they had seen Pasha. During this trip, Deputy Stahlschmidt entered

a cul-de-sac where he observed blood and a pair of shoes in the middle of the

street. After exiting the patrol car, Deputy Stahlschmidt found Canady’s vehicle

covered in blood and crashed into a wall. He then observed a bloody fire hydrant

and bloody drag marks going into a nearby wooded area. After walking

approximately fifteen feet into the wooded area, Deputy Stahlschmidt found the

bodies of Canady and Singleton, both of which showed significant signs of trauma.

While neither victim had a pulse, both bodies were warm.

Soon thereafter, Crime Scene Technician Egan began processing the crime

scene. Egan found blood smears consistent with having been made by hands on

both the trunk and passenger’s side roof of Canady’s vehicle. Inside the vehicle,

Egan found blood on numerous surfaces including the front seats, the console, the

armrest, and the passenger’s front door. Egan also observed blood spatter on the

dashboard and windshield.

2. Miranda v. Arizona, 384 U.S. 436 (1966).

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 During a search of Pasha’s van after a warrant had been obtained, Pasha’s

white, bloody jumpsuit and white boots were seized. Inside one of the boots was a

bloody, broken, 18” to 20” bat made of wood with a metal rod running through it

known as a “tire thumper.” In the other boot, a bloody butcher knife and latex

gloves were found. During a search of Canady’s vehicle, Crime Scene Analyst

Lynn Ernst observed that the front seat was soaked with blood, multiple surfaces

were spattered with blood, the rear seat contained little to no blood, and cuts in the

headliner of the vehicle were made by a sharp object. Ernst concluded that this

evidence was consistent with the perpetrator having sat in the back of the vehicle.

Additionally, Ernst compared photographs of footwear impressions from the cul-

de-sac to boots recovered from Pasha’s van, and concluded that the impressions in

the cul-de-sac were consistent with having been made by the boots found in

Pasha’s van.

Patricia Bencivenga, a DNA analyst, found evidence of blood on the knife

and rubber gloves found in one of Pasha’s boots, the tire thumper found in Pasha’s

other boot, and swabs taken by crime scene personnel. Bencivenga also found

evidence of blood on Pasha’s white boots, white jumpsuit, white t-shirt, and tan

pants. Bencivenga matched Canady’s DNA to the blood found on the tire thumper,

Pasha’s right boot, and Pasha’s white t-shirt. Bencivenga matched Singleton’s

DNA to the blood on the knife, Pasha’s pants, and a swab of Pasha’s face.

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Bencivenga matched the DNA of both Canady and Singleton to the blood on

Pasha’s jumpsuit.

Dr. Volnikh, a medical examiner, visited and examined the crime scene. At

the scene, she observed blood spatter consistent with arterial spray on the interior

of Canady’s vehicle consistent with the fact that both victims had severed carotid

arteries. Dr. Volnikh also observed blood smears on the ground and abrasions on

the backs of both victims consistent with the bodies having been dragged by the

feet across pavement and into a grassy area. Thereafter, Dr. Volnikh performed

the autopsies of Canady and Singleton. Both victims suffered numerous incised

wounds, blunt force trauma to the head, and defensive wounds. The cause of death

for Canady was determined to be an incised wound to the neck that severed her

carotid artery and jugular veins. The cause of death for Singleton was determined

to be a sharp force injury to the neck and an incised wound to the neck that severed

her carotid artery and jugular veins. According to Dr. Volnikh, the knife found in

Pasha’s van was consistent with having caused the stabbing and slicing injuries of

the victims and the tire thumper found in Pasha’s van was consistent with having

caused the blunt force trauma injuries of the victims. Dr. Volnikh concluded that

the victims were alive when the injuries were inflicted.

Pasha represented himself and testified at trial. Pasha testified that on

August 23, 2002, he visited his ex-wife to drop off an alimony check and then

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proceeded to drive home. According to Pasha, Canady called him and convinced

him to come to the WCC to help her find a lost ring. Pasha claimed that when he

arrived at the WCC, he met Canady in a parking lot to the west of a nearby cul-de-

sac. Pasha claimed that Canady told him she had not lost a ring, needed him to act

as a lookout while she did something to get money to support her family, and

asked him to put on the white jumpsuit and boots because his clothes and shoes

were expensive. Pasha testified that Canady told him to wait in the parking lot

until she came back to get him or signaled him for help with her vehicle’s lights or

horn.

Pasha testified that, after waiting in the parking lot for approximately fifteen

to twenty minutes, he walked to the nearby cul-de-sac and found the bodies of

Canady and Singleton. According to Pasha, after holding both bodies, he ran

around the WCC looking for someone, picked up a tire thumper, and returned to

his van. Pasha stated that he saw a group of people sitting at a table and observed a

truck following him as he walked towards his van. Pasha testified that he went

between some buildings, took off his jumpsuit, walked to his van, and placed the

jumpsuit, tire thumper, and boots in the back of the van. Pasha explained that he

wrapped the tire thumper in his white jumpsuit, placed both items in his white

boots, and began to drive away from the WCC without putting on his shirt or

shoes. Soon thereafter, Pasha was stopped by the police at a nearby stoplight.

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 On cross-examination, Pasha acknowledged that after arriving at the WCC,

he approached Canady’s vehicle in a white jumpsuit and sat in the backseat of the

vehicle behind Canady. Pasha admitted that he was still sitting in Canady’s

vehicle when Singleton arrived. Although Pasha claimed that he did not observe a

knife at the crime scene, he testified that he had previously taken the same knife

found at the crime scene out of a flower bed at his home, used it to remove a fuse

from Canady’s vehicle, and left it on the floorboard of the vehicle two or three

days before the murder. Pasha testified that he found the tire thumper in the road

south of Canady’s vehicle and “took it because I thought it was a murder weapon.”

Pasha claimed that he did not know how the knife ended up in the back of his van,

despite the fact that it was found in one of his boots. Pasha claimed that the police

officers could not have seen the bloody objects concealed within one of his boots

from outside of the van when they approached at the red light. Pasha admitted that

he had lied to the police about killing a rabbit in order to explain the blood on his

white t-shirt. When asked whether the blood of Canady and Singleton was on his

jumpsuit, Pasha responded that “[o]bviously it was, yeah.”

The jury found Pasha guilty as charged on both counts of first-degree

murder. During the penalty phase, the State presented evidence that it would have

taken a significant period of time to inflict the injuries on Canady and Singleton,

the victims struggled with their attacker, the injuries would have been very painful,

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and the victims remained conscious long enough after their throats were cut to exit

the vehicle. The State also presented evidence that Pasha had been on parole since

1997 as a result of a 1970 conviction for bank robbery from the Western District of

Kentucky, and that Pasha was convicted for robbing a bank in Indiana on March

27, 1984. Pasha called family members, friends, coworkers, and others to testify in

mitigation. The jury recommended that Pasha be sentenced to death for each

murder by a vote of eleven to one.

After the Spencer3 hearing, the trial court4 sentenced Pasha to death for each

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

aggravating factors5 substantially outweighed the two statutory mitigators and

eleven nonstatutory mitigators.6 In its sentencing order, the trial court stated that it

3. Spencer v. State, 615 So. 2d 688 (Fla. 1993).

4. Judge Fernandez—the trial court—presided over Pasha’s case subsequent
to Judge Fuente and Judge Tharpe.
5. The trial court concluded that the following four aggravating factors were
proven beyond a reasonable doubt: (1) Pasha had committed a prior violent felony,
based on Pasha’s conviction for the contemporaneous murders of Canady and
Singleton and the 1984 bank robbery—great weight and significant weight,
respectively; (2) the murders were cold, calculated, and premeditated (CCP)—
significant weight; (3) the murders were heinous, atrocious, or cruel (HAC)—great
weight; and (4) Pasha committed the murders while on parole and under a sentence
of imprisonment—significant weight. We note that neither party raised any
doubling issue regarding the weighing of the prior violent felony aggravator.

6. The trial court found two statutory mitigators: (1) the age of Pasha at the
time of the murders—slight weight and (2) extreme mental or emotional
disturbance—moderate weight. The trial court also found that Pasha established
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would still have sentenced Pasha to death even if it had not found CCP because

“the remaining three (3) aggravators would seriously outweigh the existing

mitigating circumstances.”

ANALYSIS

On appeal, Pasha raises thirteen issues: (1) the trial court violated his right to

self-representation, due process, and a speedy trial, and erred in denying his motion

for disqualification; (2) the trial court erred in denying his motion to suppress; (3)

Judge Fuente erred in reappointing Attorney Daniel Hernandez as Pasha’s standby

counsel and in ordering Pasha to communicate through Hernandez, and the trial

court erred in denying Pasha’s motions regarding the dismissal of Hernandez; (4)

the trial court erred in admitting the 911 recording and distributing the transcript of

the recording to the jurors; (5) the trial court erred in denying his request for a

standard alibi instruction; (6) the trial court erred when it impressed on the jurors

during the guilt phase the need to reconvene later for a penalty phase; (7) the trial

court erred in admitting photographs of the victims that were not relevant to a

disputed issue; (8) the trial court made other erroneous evidentiary rulings that

individually and collectively served to deprive him of a fair trial; (9) the

prosecutor’s comments during the guilt and penalty phases deprived him of a fair

eleven nonstatutory mitigating circumstances and accorded each slight or moderate
weight.

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trial; (10) the CCP aggravating factor was barred by double jeopardy; (11) the trial

court erred in instructing the jury on two aggravating circumstances; (12) the trial

court improperly utilized the Tedder7 standard in deciding to impose the death

sentences; and (13) the Florida death penalty statute, on its face and as applied,

violates Ring v. Arizona, 536 U.S. 584 (2002).

Because we determine that Pasha is entitled to a new penalty phase based on

Hurst, we address only Pasha’s guilt phase claims and none of the other penalty

phase claims. In addition, we address whether the evidence in this case was

sufficient to sustain Pasha’s first-degree murder convictions, which this Court is

independently obligated to review in death penalty cases.

I. Self-Representation and Due Process, Speedy Trial, Demand for Speedy
Trial and Related Motions, and Motion for Disqualification

On October 24, 2012, Pasha filed a demand for speedy trial. On November

7, 2012, the trial court conducted a Faretta8 inquiry and continued to permit Pasha

to proceed pro se. On November 19, 2012, a hearing was held at which the trial

court offered to appoint counsel for Pasha. At the hearing, the following exchange

occurred in which the trial court explained to Pasha that it would permit Hernandez

7. Tedder v. State, 322 So. 2d 908 (Fla. 1975).
8. Faretta v. California, 422 U.S. 806 (1975).

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to relitigate any of the motions that Pasha had filed, and the trial court had ruled

on, if Pasha agreed to the offer of counsel:

THE COURT: Do you want me to appoint an attorney to represent
you so that you can re-litigate any motions that you filed?
You would end up -- your attorney would be representing you,
though. I’m telling you that. I’m making these offers to you, Mr.
Pasha, because this is the last time that I’m going to see you before I
see you when we’re picking a jury on November 26th. We’re set for
jury selection November 26th, at 8:00, and this is the last time I’m
going to see you before the jury walks in.
THE DEFENDANT: Yeah, I know. I understand.
THE COURT: So I really want to give you an opportunity to rethink
your position about trying to represent yourself.
THE DEFENDANT: You going to appoint Danny Hernandez as my
attorney?
THE COURT: He’s your standby counsel. Yes. . . . I will allow Mr.
Hernandez to represent you. I will allow Mr. Hernandez to refile and
re-litigate any of the motions that you filed in the past that I’ve
already ruled on because he’s more experienced in my opinion. He’s
a more experienced attorney than you are because you haven’t been to
law school yet, and you don’t have a law degree. So I will offer that
to you.
I mean, obviously, we can’t have a trial on Monday if Mr.
Hernandez is going to re-litigate all of these motions because I know
that he’s going -- he’s going to want some time to review the motions.
I’m doing this, Mr. Pasha, because honestly, this is the last time
I’m going to see you [before trial].
....
THE COURT: I think the clerk has just handed me two additional
motions that you filed. And again before we go through these
motions, you do not want me to appoint Mr. Hernandez to represent
you on these, either; is that correct?
THE DEFENDANT: No.
THE COURT: Again, any of the motions that you previously filed,
I’m willing to allow Mr. Hernandez, if you want him to represent you,
I would allow him to re-litigate them, which means I would allow him

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 to refile and reargue any of the motions that you previously filed in
front of me.
Do you want Mr. Hernandez to represent you? I’m asking you
for a third time because I’m getting ready to rule.

After conferring privately with Hernandez, Pasha requested counsel be appointed,

took a continuance, and withdrew his speedy trial demand. The trial court granted

Pasha’s request and appointed Hernandez. The trial court explained the reasoning

behind its offer of counsel as follows:

THE COURT: Mr. Pasha, it’s not my intention to prolong your case.
I mean, when you demanded speedy trial, I ordered 200 jurors to show
up Monday so that we could begin jury selection. And it was my
intention of trying your case for the next three weeks. It is not my
intention to prolong your case or delay your case.
On the same side, on the same token, I want to balance that
desire to give you efficient and effective justice. I want to balance
that with the fact that I want to make sure that you understand what
you’re doing and [for] you [to] make very thoughtful judgments and
[for] you [to] make very -- [to] exercise good thought and good
judgment. And so that’s why I offered again [to appoint Mr.
Hernandez as counsel].

On November 30, 2012, Pasha filed a motion to proceed pro se and a

pleading he entitled “Motion to Be Heard.” Pasha claimed that he was

“hoodwinked” by the trial court’s offer and the offer forced him to make a choice

between the right to be heard and the right to continue pro se, and he requested that

his case be set for trial within the recapture window of the original demand filed on

October 24, 2012.

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 On December 7, 2012, a hearing was held at which the trial court addressed

Pasha’s motions. The trial court regarded Pasha’s “Motion to Be Heard” as an

entirely new demand for speedy trial and noted that “there is no continuation of the

initial speedy trial [demand filed on October 24, 2012,] because [Pasha] withdrew

that motion the last time that we were here [on November 19, 2012].” Although

Pasha insisted that he had been coerced into accepting Hernandez as counsel, the

trial court rejected that coercion argument. The trial court set jury selection for

January 14, 2013, within the required timeframe of Pasha’s new demand for

speedy trial.

On December 17, 2012, Pasha filed a notice of expiration of speedy trial

time and a motion to disqualify the trial court on the basis that the trial court was

no longer fair and impartial. The trial court ruled on the truth of the facts alleged

in support of Pasha’s motion to disqualify and denied the motion. On January 2,

2013, Pasha moved for discharge claiming a speedy trial violation. On January 3,

2013, the trial court struck the notice of expiration and denied the motion for

discharge because Pasha’s initial demand had been withdrawn and the trial court

had treated Pasha’s November 30, 2012, “Motion to Be Heard” as a new demand

for speedy trial. In the words of the trial court, “the time for speedy trial ha[d] not

yet expired.”

A. Self-Representation and Due Process

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 Pasha asserts that the trial court’s offer of counsel at the hearing held on

November 19, 2012, violated his Sixth Amendment right to self-representation

under Faretta v. California, 422 U.S. 806 (1975). In Faretta, the Supreme Court

held that “a defendant in a state criminal trial has a constitutional right to proceed

without counsel when he voluntarily and intelligently elects to do so.” Id. at 807.

The Supreme Court explained that “[t]o force a lawyer on a defendant can only

lead him to believe that the law contrives against him.” Id. at 834 (emphasis

added). Faretta does not address whether a trial court can offer a procedural

benefit to a defendant that necessarily requires the defendant to waive his or her

Sixth Amendment right to self-representation.

Pasha correctly notes that the trial court’s offer of counsel on November 19,

2012, simultaneously included a procedural benefit: permitting Hernandez to refile

and relitigate Pasha’s previously denied motions. However, contrary to Pasha’s

assertion, the trial court’s offer did not violate his Sixth Amendment right to self-

representation because the trial court did not force Pasha against his will to accept

Hernandez as counsel. See id. at 807, 835-36 (recognizing that when a defendant

voluntarily, intelligently, and unequivocally elects to proceed without counsel

under the Sixth Amendment, a court cannot force the defendant to accept counsel

against his or her will). Rather, the record reflects that the trial court offered

counsel to Pasha and Pasha accepted.

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 In fact, the record reflects that the trial court fully respected Pasha’s Sixth

Amendment rights by permitting Pasha to waive his right to self-representation

from November 19, 2012, to December 7, 2012, permitting Pasha to reassert his

right to self-representation on December 7, 2012, and permitting Pasha to represent

himself at trial. Since the trial court never denied Pasha’s constitutional right to

self-representation, Pasha is not entitled to relief.

Pasha also asserts that the trial court’s offer of counsel violated his right to

due process by inducing him to waive his right to proceed pro se. However, as the

Supreme Court has recognized, “not every burden on the exercise of a

constitutional right, and not every pressure or encouragement to waive such a right,

is invalid.” Corbitt v. New Jersey, 439 U.S. 212, 218 (1978). Although a trial

court’s offer of counsel that simultaneously contains a procedural benefit may raise

concerns about safeguarding a defendant’s right to due process in some

circumstances, no cause for concern exists under the facts of this case. First, the

record reflects that the trial court had previously considered and ruled on each of

the motions in question—thus, the trial court’s offer did not require Pasha to give

up any right, privilege, or advantage regarding the motions. Second, any

procedural benefit obtained by Pasha would have required the prosecutor to

relitigate motions that previously favored the State—thus, only the State stood the

risk of receiving an unfavorable ruling on the motions. And third, Pasha waived

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his right to self-representation from November 19, 2012, to December 7, 2012,

Pasha reasserted his right to self-representation on December 7, 2012, and Pasha

subsequently represented himself at trial. Accordingly, under the facts of this case,

the trial court’s offer of counsel did not violate Pasha’s right to due process. Pasha

further claims that the trial court’s offer of counsel violated public policy and

constituted fraud in the inducement. We reject these claims as they are

unsupported by the record and without merit.

B. Speedy Trial

Pasha claims that he was denied his Sixth Amendment right to speedy trial

because the trial court and the prosecutor allegedly acted in bad faith and official

bad faith is purportedly demonstrated on the record. When determining whether a

defendant has been deprived of the constitutional right to speedy trial, courts

balance the following four factors: (1) the length of delay; (2) the reason for the

delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.

Barker v. Wingo, 407 U.S. 514, 530 (1972). Official bad faith in causing a delay

“will be weighed heavily against the government” and “make relief virtually

automatic.” Doggett v. United States, 505 U.S. 647, 656-57 (1992).

We find that Pasha was not deprived of his constitutional right to speedy

trial under the balancing test established in Barker. First, less than three years

elapsed between the issuance of this Court’s mandate in 2010 ordering a retrial and

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the beginning of Pasha’s retrial in 2013. Second, much of that time was spent with

Pasha filing motions and seeking to relitigate issues. Third, Pasha did not begin to

assert his right to speedy trial until October 24, 2012, less than three months before

his retrial started, and then did so only under Florida’s procedural speedy trial rule.

And fourth, nothing within the record suggests that Pasha was prejudiced by any

delay. Contrary to Pasha’s assertion, neither the trial court nor the prosecutor acted

in bad faith and no official bad faith is demonstrated on the record.

C. Demand for Speedy Trial and Related Motions

Pasha asserts that the trial court erred in striking the notice of expiration of

speedy trial time filed on December 17, 2012, and denying the motion for

discharge filed on January 2, 2013. We reject these claims because we find that

Pasha took a valid continuance on November 19, 2012, and Pasha’s appellate

counsel conceded at oral argument before this Court that a valid continuance

renders these arguments moot.

D. Motion for Disqualification

Within his motion for disqualification filed on December 17, 2012, Pasha

asserted that the trial court held a hearing without his presence on September 21,

2012, coerced Pasha to accept Hernandez as counsel on November 19, 2012, and

abrogated her role as a neutral arbitrator on December 7, 2012. “A motion to

disqualify shall be filed within a reasonable time not to exceed 10 days after

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discovery of the facts constituting the grounds for the motion and shall be promptly

presented to the court for an immediate ruling.” Fla. R. Jud. Admin. 2.330(e). A

motion to disqualify shall show “that the party fears that he or she will not receive

a fair trial or hearing because of specifically described prejudice or bias of the

judge.” Fla. R. Jud. Admin. 2.330(d)(1). “The judge against whom an initial

motion to disqualify under subdivision (d)(1) is directed shall determine only the

legal sufficiency of the motion and shall not pass on the truth of the facts alleged.”

Fla. R. Jud. Admin. 2.330(f). However, “[i]f a judge has been previously

disqualified on motion for alleged prejudice or partiality under subdivision (d)(1),

. . . a successor judge may rule on the truth of the facts alleged in support of the

motion.” Fla. R. Jud. Admin. 2.330(g). The denial of a motion to disqualify by a

successor judge will only be reversed if the record clearly refutes the successor

judge’s decision to deny the motion. Kokal v. State, 901 So. 2d 766, 774 (Fla.

2005).

Irrespective of the timeliness of Pasha’s motion under rule 2.330(e), the

record does not clearly refute the trial court’s decision—as a successor judge—to

deny Pasha’s motion for disqualification under Kokal. First, although the trial

court initially began a hearing without Pasha in attendance on September 21, 2012,

the record from the hearing reflects that the trial court, the State, and standby

counsel simply engaged in administrative discussions until the trial court called

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Pasha into the courtroom. See, e.g., Florida Bar v. Carlon, 820 So. 2d 891, 896

(Fla. 2002) (recognizing that ex parte communications regarding strictly

administrative matters are not sufficient to grant a motion to disqualify a judge).

At no point during Pasha’s absence from the hearing did the trial court, the State,

or standby counsel discuss any matter dealing with the merits of the case. Second,

the record from the hearing held on November 19, 2012, reflects that the trial court

did not coerce Pasha to accept Hernandez as counsel. And third, the record from

the hearing held on December 7, 2012, reflects that the trial court did not abrogate

its role as a neutral arbitrator. Accordingly, the trial court did not err in denying

Pasha’s motion for disqualification.

II. Motion to Suppress

Pasha contends that the trial court erred in denying his motion to suppress

and concluding that Pasha’s stop, detention, and arrest were lawful. “The standard

of review for motions to suppress is that the appellate court affords a presumption

of correctness to a trial [court’s] findings of fact but reviews de novo the mixed

questions of law and fact . . . .” Wyche v. State, 987 So. 2d 23, 25 (Fla. 2008). In

order to perform an investigative stop, an officer must have “reasonable suspicion

that the person is engaged in criminal activity.” J.L. v. State, 727 So. 2d 204, 206

(Fla. 1998). The reasonable suspicion standard for investigative stops “takes into

account ‘the totality of the circumstances—the whole picture.’ ” Navarette v.

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California, 134 S. Ct. 1683, 1687 (2014) (quoting United States v. Cortez, 449 U.S.

411, 417 (1981)). “The ‘reasonable suspicion’ necessary to justify such a stop ‘is

dependent upon both the content of information possessed by police and its degree

of reliability.’ ” Id. (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

An informant’s reliability, basis of knowledge, and veracity are relevant

factors to consider in the reasonable suspicion context. White, 496 U.S. at 328.

“Anonymous tips are at the low-end of the reliability scale” while information

provided by a citizen-informant “is at the high end of the tip-reliability scale.”

State v. Maynard, 783 So. 2d 226, 229-30 (Fla. 2001) (quoting State v. Evans, 692

So. 2d 216, 218-19 (Fla. 4th DCA 1997)). “[A]n anonymous tip alone seldom

demonstrates the informant’s basis of knowledge or veracity . . . .” White, 496

U.S. at 329. However, “if the caller qualifies as a citizen informant, then the

information from the tip . . . would be considered at the high end of the reliability

scale, sufficient by itself to justify a[n investigative] stop.” Maynard, 783 So. 2d at

228.

At the hearing held on Pasha’s motion to suppress, Hillsborough County

Sheriff Deputies Stahlschmidt and Mason testified about the stop of Pasha’s

vehicle. According to Deputy Stahlschmidt:

The information that we received [from the 911 dispatcher] as
annotated in my report was suspicious person in a vehicle. The
subject that emerged from the woodline had gone through the park
and appeared to be covered in blood and holding an unknown object,
- 21 -
 possibly a knife, and entering a van at a different location. . . . It was
a white cargo-style Ford E150 van bearing a Florida [license plate]
U[*****]. . . . He was changing his clothes and he had thrown
something in the woods there . . . and taken off what he was wearing
at that point.

According to Deputy Mason:

[Prior to the stop,] [w]e knew that there were two witnesses that
observed an individual that were now following the individual. They
relayed that the individual entered into a white van. They gave the
[license plate] number of the van. And then they also provided
information to the [dispatcher] that they were following the van. . . .
[T]he information that was given to us was that they observed a black
male running through the woods in a white suit that appeared to be
covered in blood.

On cross-examination, Pasha elicited from Deputy Stahlschmidt that the dispatcher

was not a law enforcement officer or trained professional.

The deputies testified that, upon nearing the WCC, they observed a white

van stopped at a red light followed by a red pickup truck with two occupants

inside. The driver of the truck was flashing his headlights at the deputies and both

the driver and his passenger were “kind of hanging out of both sides of the vehicle

waving at [the deputies] and pointing at the van with hand gestures.” “Based upon

the nature of the occupant[s] of the [red] pickup truck matching the description that

was given to [the deputies by the 911 dispatcher],” the deputies performed a U-

turn, pulled directly behind the white van, confirmed the license plate number that

was given by the 911 dispatcher, activated their police lights, and approached the

van on foot. According to Deputy Stahlschmidt, “[b]ased on the totality of the
- 22 -
circumstances and all the information I received, including the fact that [the

Sanchezes] were flagging the van down and flashing their headlights is why the

van was stopped.”

Deputy Stahlschmidt asked Pasha, the driver of the white van, to step out of

the vehicle after Deputy Stahlschmidt observed drops of blood on Pasha’s white t-

shirt, Deputy Mason observed a bloody jumpsuit through the rear window of the

van, and Deputy Mason signaled to Deputy Stahlschmidt to use caution. Other

deputies arrived soon thereafter and the occupants of the red pickup truck, the

Sanchezes, led Deputy Stahlschmidt and Deputy Mason into the WCC where they

claimed to have seen Pasha. Within the WCC, the deputies discovered bloody

items, pools of blood, a bloody vehicle, and the bodies of Canady and Singleton.

Pasha initially claims that Deputy Stahlschmidt and Deputy Mason lacked

reasonable suspicion to justify the investigative stop of Pasha’s vehicle because the

information provided by the Sanchezes to the 911 dispatcher failed to provide the

deputies with reasonable suspicion of ongoing or completed criminal activity. We

disagree. The record reflects that the deputies received information from a 911

dispatcher that two witnesses had called 911 to report a man covered in blood,

holding a knife-like object, running, changing clothes, throwing something into the

woods, and leaving the WCC in a white cargo-style Ford E150 van bearing a

- 23 -
specific Florida license plate number. This information provided the deputies with

reasonable suspicion of ongoing or completed criminal activity within the WCC.

Pasha further claims that the Sanchezes were anonymous informants whose

anonymous tip required further police investigation. We disagree. Approximately

one minute after receiving the dispatch, the deputies were flagged down by a red

pickup truck at a stoplight near the WCC. The occupants of the red pickup truck

were yelling, pointing, and flashing their headlights at a white van—the exact same

van identified by license plate number within the dispatch—in order to direct the

deputies’ attention towards the van. We find that the Sanchezes were not

anonymous because they called 911 to report suspected ongoing or completed

criminal activity within the WCC, told the 911 dispatcher that they were following

Pasha’s vehicle, and flagged down two deputies at a nearby stoplight. Even

considering only the facts known to the deputies at the time of the investigative

stop of Pasha’s vehicle, the Sanchezes’ identities were easily ascertainable and

readily discoverable. See Maynard, 783 So. 2d at 229-30. Moreover, the

Sanchezes qualified as citizen-informants. There is no indication that the

Sanchezes were motivated by any reason other than a concern for the safety of

others. See id. at 230.

Under the totality of the circumstances, the facts known to the deputies

immediately prior to the investigatory stop of Pasha’s van provided them with an

- 24 -
objectively reasonable basis to justify the stop. Therefore, the trial court did not

err in denying Pasha’s motion to suppress because the investigative stop was

permissible under the Fourth Amendment.

Pasha claims that even if the deputies had reasonable suspicion to justify the

stop, the deputies violated the Fourth Amendment by detaining Pasha longer than

necessary. We reject this claim as it is without merit and unsupported by the

record. Pasha also argues for the first time on appeal that the information given by

Mrs. Sanchez to the 911 dispatcher cannot be imputed to the officers who made the

stop under the fellow officer rule because the dispatcher in this case was a civilian

employee rather than a law enforcement officer. However, because Pasha did not

raise this argument below, he is foreclosed from raising it here. See Reynolds v.

State, 934 So. 2d 1128, 1144 (Fla. 2006) (“[W]e note that this particular claim

was not presented at the trial court level, and, therefore, the claim has not been

properly preserved for review.”).

III. Standby Counsel

A. Reappointment of Standby Counsel

Pasha claims that Judge Fuente erred in reappointing Hernandez as Pasha’s

standby counsel after this Court’s remand for a new trial in 2010 because Judge

Tharpe’s prior order granting Pasha’s motion to discharge Hernandez allegedly

served as a factual finding that a conflict of interest existed. However, the record

- 25 -
indicates otherwise. Pasha had alleged a “conflict” with Hernandez, claimed that

Hernandez had attempted to hide exculpatory evidence, and expressed a lack of

confidence in Hernandez. But Judge Tharpe discharged Hernandez without

making any finding of a conflict of interest within his order dated January 26,

2006. Additionally, Judge Tharpe did not make any finding of a conflict of interest

during the hearing held on Pasha’s motion on September 8, 2005. Pasha

alternatively argues that Judge Tharpe’s order implicitly found that a conflict of

interest existed. We reject this claim. From the record, it is apparent that

Hernandez was discharged as standby cocounsel simply because Pasha had made

clear that he did not wish to consult with him. Since Hernandez was not removed

for cause in 2006 by Judge Tharpe, Judge Fuente did not err by reappointing

Hernandez to Pasha’s case in 2010.

Pasha claims that Hernandez had a duty to decline being reappointed as

Pasha’s standby counsel by Judge Fuente. This claim lacks merit because

Hernandez was not removed for cause by Judge Tharpe. Pasha further claims that

Hernandez had an ethical duty to inform Judge Fuente of his prior involvement in

the case. This claim also lacks merit because, even if true, Judge Fuente was still

within his discretion to appoint Hernandez as standby counsel. We reject Pasha’s

claim that a conflict of interest arose because he filed a Florida Bar complaint

- 26 -
against Hernandez. See Hutchinson v. State, 17 So. 3d 696, 703-04 (Fla. 2009)

(“[T]he filing of a Bar complaint does not per se constitute a conflict of interest.”).

B. Communicating Through Standby Counsel

Pasha claims that Judge Fuente erroneously stated in an order dated October

12, 2011, that “[t]he [c]ourt will communicate with Mr. Pasha through Mr.

Hernandez and the assigned prosecutor.” However, when this isolated statement is

considered within the full context of Judge Fuente’s subsequent actions, any error

in the order was harmless beyond a reasonable doubt. For example, at the very

next hearing held on October 14, 2011, Judge Fuente communicated directly with

Pasha without requiring him to communicate through Hernandez or the assigned

prosecutor and set a hearing on one of Pasha’s motions. Accordingly, there is no

reasonable possibility that any error in Judge Fuente’s order affected Pasha’s right

of self-representation.

C. Dismissal of Standby Counsel

Pasha claims that the trial court erred in: (1) declining to reconsider Judge

Fuente’s order dated October 12, 2011, denying Pasha’s motion to dismiss

Hernandez and (2) denying Pasha’s motions to dismiss Hernandez as standby

counsel. “The general rule is that an indigent defendant has no right to choose a

particular court-appointed attorney.” Weaver v. State, 894 So. 2d 178, 187 (Fla.

2004). “Thus, if a trial court decides that court-appointed counsel is providing

- 27 -
adequate representation, the court does not violate an indigent defendant’s Sixth

Amendment rights if it requires him to keep the original court-appointed lawyer or

represent himself.” Id. at 188.

“[W]hen a defendant complains that his appointed counsel is incompetent[,]

. . . the trial judge is required to make a sufficient inquiry of the defendant [under

Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973),] to determine whether or not

appointed counsel is rendering effective assistance to the defendant.” Morrison v.

State, 818 So. 2d 432, 440 (Fla. 2002). “This Court has consistently found a

Nelson hearing unwarranted where a defendant presents general complaints about

defense counsel’s trial strategy and no formal allegations of incompetence have

been made.” Id. “Similarly, a trial court does not err in failing to conduct a

Nelson inquiry where the defendant merely expresses dissatisfaction with his

attorney.” Id. “A trial court’s decision involving withdrawal or discharge of

counsel is subject to review for abuse of discretion.” Guardado v. State, 965 So.

2d 108, 113 (Fla. 2007).

We find that the trial court did not abuse its discretion in denying Pasha’s

motion to reconsider and denying Pasha’s motions to dismiss Hernandez. The

record from the hearing held on Pasha’s motion to reconsider reflects that the

motion was denied after the trial court conducted a Nelson inquiry at which Pasha

presented no grounds to question Hernandez’s competence. With regard to

- 28 -
Pasha’s numerous motions to dismiss Hernandez and the hearings held on those

motions, the record reflects that the trial court either made sufficient inquiry to

determine whether there was reasonable cause to believe that standby counsel was

not rendering effective assistance or that Pasha’s complaints regarding standby

counsel merely expressed his general dissatisfaction with Hernandez.

IV. 911 Recording and Transcript

A. Hearsay

Pasha claims that the trial court erred in admitting the recording of Mrs.

Sanchez’s 911 call under the excited utterance exception to the hearsay rule. “A

trial court’s decision to admit evidence is reviewed under an abuse of discretion

standard.” Davis v. State, 121 So. 3d 462, 481 (Fla. 2013). “That discretion,

however, is limited by the rules of evidence.” Hudson v. State, 992 So. 2d 96, 107

(Fla. 2008). “Hearsay” is defined as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” § 90.801(1)(c), Fla. Stat (2012). The excited

utterance exception authorizes admission of hearsay containing “[a] statement or

excited utterance relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition.” § 90.803(2),

Fla. Stat (2012). “[T]o qualify as an excited utterance, the statement must be

made: (1) ‘regarding an event startling enough to cause nervous excitement’; (2)

- 29 -
‘before there was time to contrive or misrepresent’; and (3) ‘while the person was

under the stress or excitement caused by the event.’ ” Hudson, 992 So. 2d at 107

(quoting Henyard v. State, 689 So. 2d 239, 251 (Fla. 1996)). “This Court has

observed that ‘[i]f the statement occurs while the exciting event is still in progress,

courts have little difficulty finding that the excitement prompted the statement.’ ”

Id. (alteration in original) (quoting State v. Jano, 524 So. 2d 660, 662 (Fla. 1988)).

Pasha argues that the 911 recording constituted inadmissible hearsay to

which the excited utterance exception does not apply because Mrs. Sanchez

testified at trial that she was not “excited” when she made the 911 call.

Nevertheless, Mrs. Sanchez’s statement to the 911 dispatcher meets the legal

definition of an excited utterance. First, Mrs. Sanchez made the statement while

she observed Pasha covered in blood, holding a knife-like object, and running

around the WCC. Certainly, this event was startling enough to cause Mrs. Sanchez

to experience nervous excitement. Second, because Mrs. Sanchez made the

statement while contemporaneously observing Pasha covered in blood and carrying

a knife-like object, there was little to no time for her to contrive or misrepresent

what she observed. And third, Mrs. Sanchez made the statement while under the

excitement caused by observing Pasha covered in blood and carrying a knife-like

object. In fact, notwithstanding her disavowal of being “excited,” Mrs. Sanchez

- 30 -
testified at trial that she was afraid, scared, nervous, and concerned when she saw

Pasha covered in blood and called 911.

We acknowledge that the circumstances here—in which the declarant’s

utterance was made contemporaneously with the events described—may fit more

neatly under the exception in section 90.803(1), Florida Statutes, for spontaneous

statements, which covers statements “describing or explaining an event or

condition made while the declarant was perceiving the event or condition, or

immediately thereafter, except when such statement is made under circumstances

that indicate its lack of trustworthiness.”9 In any event, Pasha’s argument that

there was an abuse of discretion on this point is unavailing.

Pasha claims that the 911 recording constituted hearsay within hearsay to

which the excited utterance exception does not apply because Mrs. Sanchez

relayed to the 911 dispatcher the observations of Mr. Sanchez. However, this issue

is not preserved for review because Pasha failed to contemporaneously make this

9. See Charles W. Ehrhardt, Ehrhardt’s Florida Evidence § 803.2, at 1028
(2016 ed.) (“In many situations, the spontaneous statement exception and the
excited utterance exception overlap. The two exceptions differ in the amount of
time that may lapse between the event and the statement describing the event.
Under section 90.803(2) it is not necessary that there be contemporaneity between
the event and the statement. Under section 90.803(2) the statement must only
relate to the event causing the excitement. Section 90.803(1) is limited to
statements that describe or explain the event. In addition, an exciting event or
condition is not required for a spontaneous statement under section 90.803(1).”
(footnotes omitted)).

- 31 -
specific objection at trial. See Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008)

(explaining that in order to preserve error for appellate review, the general rule is a

contemporaneous, specific objection must occur during trial at the time of the

alleged error). Pasha also argues that the introduction to the 911 recording

constituted inadmissible hearsay not subject to an exception. The introduction to

the 911 recording stated: “The following is a recording of a call received at

Hillsborough County Sheriff’s Office on 8/23/2002, on or about 2321 hours,

reference Hillsborough County Case No. 02-081848. Event number is 3585.

Original signal code 050. Call location from 4502 Seedling Circle.” However, the

introduction to the recording was not a hearsay statement offered for its truth. The

introduction was simply offered to orient the jury to the nature of the recording that

followed.

Pasha raises additional arguments related to the authentication of the 911

recording and the transcript of the recording, but none of them were preserved.

B. Sixth Amendment Right of Confrontation

Pasha claims that this Court must reverse because he was denied his

constitutional right to confront the person who made the introduction to the 911

recording and transcript of the recording. In Crawford v. Washington, 541 U.S.

36, 68 (2004), the Supreme Court held that “[w]here testimonial evidence is at

issue, . . . the Sixth Amendment demands what the common law required:

- 32 -
unavailability and a prior opportunity for cross-examination.” In other words,

“testimonial hearsay that is introduced against a defendant violates the

Confrontation Clause unless the declarant is unavailable and the defendant had a

prior meaningful opportunity to cross-examine that witness.” State v. Johnson,

982 So. 2d 672, 675 (Fla. 2008). Since Crawford, “this Court has held that a

specific objection is necessary to preserve a Crawford challenge.” Williams v.

State, 967 So. 2d 735, 747 n.11 (Fla. 2007). Although a defendant need not intone

special “magic words” in order to preserve a Crawford claim, “an objection to an

out-of-court statement as inadmissible hearsay will not preserve the Crawford

issue.” Corona v. State, 64 So. 3d 1232, 1242 (Fla. 2011).

Pasha claims that the introduction to the 911 recording and transcript

constituted testimonial hearsay because it was produced by law enforcement in

anticipation of litigation. However, this issue is not preserved for review because

Pasha never made a specific objection that the admission of the recording or the

transcript would violate the Confrontation Clause. Moreover, Pasha’s hearsay

objection did not preserve the issue for review.

C. The McCoy10 Mandates

10. McCoy v. State, 853 So. 2d 396 (Fla. 2003).

- 33 -
 Pasha claims that the trial court erred in failing to make an independent

pretrial determination of the accuracy of the transcript of the 911 recording and in

failing to give a cautionary instruction to the jury regarding the use of the

transcript. In McCoy, this Court instructed trial courts to adhere to the guidance

promulgated in Martinez v. State, 761 So. 2d 1074 (Fla. 2000), regarding the use of

transcripts at trial. Specifically, this Court “mandate[d] that trial courts make an

independent pretrial determination of the accuracy of transcripts, and give a

cautionary instruction to the jury regarding the limited use to be made of the

transcript, prior to employment of these demonstrative aids during trial.” McCoy,

853 So. 2d at 405. A trial court abuses its discretion when it fails to follow the

McCoy mandates. Davis, 121 So. 3d at 491.

The claim that the trial court failed to make an independent pretrial

determination of the accuracy of the transcript is preserved for review because

Pasha argued in his motion to suppress that the transcript was “altered,” and this

claim is fairly equivalent to a claim that the transcript is not “accurate.” See

Wilcox v. State, 143 So. 3d 359, 373 (Fla. 2014) (recognizing that courts generally

afford pro se litigants leniency in technical matters). However, we find that any

error in the distribution of the transcript to the jury was harmless beyond a

reasonable doubt because the transcript was cumulative to the testimony provided

at trial by Mr. and Mrs. Sanchez regarding Pasha’s appearance and movements

- 34 -
within the WCC. In fact, both Mr. and Mrs. Sanchez testified at trial that Pasha

was the individual that they identified within the 911 call. Furthermore, Pasha was

not prohibited from cross-examining Mr. and Mrs. Sanchez regarding the contents

of the transcript, all copies of the transcript were collected from the jurors after the

911 call was played, and the transcript was not provided to the jury during

deliberations. And Pasha has failed to identify any inaccuracies in the transcript.

Under these circumstances, there is no reasonable possibility that the distribution

of the transcript affected the verdict.

The claim that the trial court failed to give a cautionary instruction to the

jury is not preserved for review because Pasha failed to request a cautionary

instruction at trial, and “the failure to give such an instruction would not rise to the

level of fundamental error.” Martinez, 761 So. 2d at 1088.

V. Alibi Jury Instruction

Pasha claims that the trial court erred in denying his request for an alibi jury

instruction. According to Pasha, he was entitled to the standard alibi instruction

because he testified at trial that he was elsewhere when the murders of Canady and

Singleton occurred:

And I went to the area of -- the west end. It would be the west
end of Seedling Circle. Seedling Circle is on the east side. This is if
you go west, you see that road. There’s a parking lot up there that you
go off into -- up into, back of a pond and has a TV station all up in the
corner. So I went up there.

- 35 -
 [Canady] said, [s]tay here. Give me about 10 or 15 minutes.
She said, [i]f you see me blink my light or blow my horn and stuff,
she said, you come down here, just come down here. Other than that,
just stay there; I’ll be back to get you in just a second. So I said, okay.
I just stood there and stood there and waited and waited.

As I stood there about 15, 20 minutes, I don’t know how much
time it was. I wasn’t paying attention to exactly what time it was. I
saw her walking back down to it. . . .

When I came close . . . to the cul-de-sac, I walked up and saw
my wife, Robin, laying on the ground, and I ran to her. When I ran to
her, I kind of grabbed the body and intended to hold it, but before I
did, I heard something, voom, like kind of a noise like that. I looked
at Raneesha laying on the other side of her. I went to Raneesha, and I
picked her up, and I put my head on her chest to kind of see if she had
a heartbeat. . . .

I go back over to Robin and check her out, and they’re both
dead.

The standard alibi jury instruction provides as follows: “An issue in this case

is whether defendant was present when the crime allegedly was committed. If you

have a reasonable doubt that the defendant was present at the scene of the alleged

crime, it is your duty to find the defendant not guilty.” Fla. Std. Jury Instr. (Crim.)

3.6(i).

“The defense known in law as an ‘alibi’ is that, at the time of the

commission of the crime charged in the [information or] indictment, the defendant

was at a different place, so that he could not have committed it.” Blackwell v.

State, 86 So. 224, 227 (Fla. 1920) (quoting Words and Phrases 298 (Nat’l Rptr.

System ed., 1904)); accord Dees v. State, 128 So. 485, 485 (Fla. 1930); State ex
- 36 -
rel. Mitchell v. Walker, 294 So. 2d 124, 127 (Fla. 2d DCA 1974); Jones v. State,

128 So. 2d 754, 755 (Fla. 2d DCA 1961). “The proof of an alibi must include and

cover the entire time when the presence of the accused was required to commit the

offense charged.” Murphy v. State, 12 So. 453, 454 (Fla. 1893); accord Caldwell

v. State, 39 So. 188, 191 (Fla. 1905); Constantino v. State, 224 So. 2d 341, 342

(Fla. 3d DCA 1969); Jones, 128 So. 2d at 755. Contra Williams v. State, 395 So.

2d 1236, 1238 (Fla. 4th DCA 1981). Evidence in support of an alibi “must be such

as to render it impossible that the crime could have been committed by the party

that claims that he was not present, and could not be guilty as charged.” Bacon v.

State, 22 Fla. 51, 77 (1886) (emphasis added); see Blackwell, 86 So. at 227

(explaining that a defendant who sets up an alibi must show such a state of facts

surrounding his whereabouts at that particular time as would make it practically

improbable or impossible for him to have committed the offense charged); see also

Commonwealth v. Roxberry, 602 A.2d 826, 828 (Pa. 1992) (“There is no

minimum or threshold quantum of physical separation necessary for a defense to

constitute an alibi, so long as the separation makes it impossible for the defendant

to have committed the crime.”); State v. Berry, 419 P.2d 337, 341 (Ariz. 1966)

(“An alibi which leaves it possible for the accused to be the guilty man is no alibi

at all . . . .”) (alteration in original) (emphasis omitted) (quoting Singh v. State, 280

P. 672, 675 (Ariz. 1929)). In sum, an “alibi” is “[a] defense based on the physical

- 37 -
impossibility of a defendant’s guilt by placing the defendant in a location other

than the scene of the crime at the relevant time.” Alibi, Black’s Law Dictionary

(10th ed. 2014).

We conclude that the trial court did not abuse its discretion in denying

Pasha’s request for an alibi jury instruction because Pasha did not present evidence

to show that it would have been physically impossible for him to have committed

the murders of Canady and Singleton. A fair reading of Pasha’s trial testimony

shows that it was a general denial of guilt rather than an alibi defense based on the

physical impossibility of Pasha’s guilt. Pasha testified that he spoke to Canady at

the WCC, in person, a mere fifteen to twenty minutes prior to the murders.

Significantly, Pasha testified that he remained in close proximity to Canady—

within eyeshot and earshot of her vehicle’s lights and horn—during the fifteen to

twenty minutes in which he claims the murders took place. Pasha further testified

that after waiting for fifteen to twenty minutes in the parking lot, he went to the

cul-de-sac where he observed one of the victims making gasping noises.

Accordingly, even if Pasha traveled to the parking lot and remained where he

claimed, Pasha was not so far removed from the nearby cul-de-sac—the scene of

the crimes—at the relevant time in which the murders could have taken place as to

render it physically impossible for him to be the guilty party.

- 38 -
 Pasha cites Adams v. State, 10 So. 106 (Fla. 1891), in support of the

argument that he was entitled to an alibi jury instruction. To the extent that Adams

states that “[n]either do we think that the evidence of an alibi should in any case

make it absolutely impossible for the prisoner to be present at the killing,” Adams,

10 So. at 114, it is inconsistent with our holding in this case and we recede from it

to the extent of the inconsistency.

VI. Trial Court’s Comments During the Guilt Phase

Pasha argues on appeal that certain comments of the trial court made on

January 14, 15, and 24, 2013, require reversal because they allegedly implied to the

prospective jurors and jurors that the trial court expected a guilty verdict. Pasha

claims that he properly preserved the issue for appellate review when he moved for

a mistrial on January 25, 2013, told the trial court that he had “a complaint to

lodge,” and the trial court responded “your objection is noted for the record.” We

disagree. Although Pasha moved for a mistrial on January 25, he failed to

contemporaneously object to any of the trial court’s comments on January 14, 15,

or 24, 2013. Accordingly, we conclude that Pasha failed to preserve this issue for

appeal. See, e.g., Norton v. State, 709 So. 2d 87, 94 (Fla. 1997) (“[D]espite

appellant’s motion for mistrial at the close of the witness’s testimony, his failure to

raise an appropriate objection at the time of the impermissible comment failed to

adequately preserve the issue for appellate review.”).

- 39 -
 VII. Photographs of the Victims

Pasha argues that the trial court abused its discretion in admitting morgue

and crime scene photographs of the victims that were gruesome, gratuitous, and

more prejudicial than probative as to guilt. “The standard of review for the

admission of photographs is abuse of discretion.” Doorbal v. State, 983 So. 2d

464, 497 (Fla. 2008). “[P]hotographs are admissible if they are relevant and not so

shocking in nature as to defeat the value of their relevance.” Jennings v. State, 123

So. 3d 1101, 1126 (Fla. 2013) (quoting Hertz v. State, 803 So. 2d 629, 641 (Fla.

2001)). “Crime scene photographs are considered relevant when they establish the

manner in which the murder was committed, show the position and location of the

victim when he or she is found by police, or assist crime scene technicians in

explaining the condition of the crime scene when police arrived.” Douglas v.

State, 878 So. 2d 1246, 1255 (Fla. 2004). “This Court has upheld the admission of

photographs where they are relevant to ‘explain a medical examiner’s testimony, to

show the manner of death, the location of wounds, and the identity of the victim.’ ”

Floyd v. State, 808 So. 2d 175, 184 (Fla. 2002) (quoting Larkins v. State, 655 So.

2d 95, 98 (Fla. 1995)).

Pasha argues that the photographs should not have been admitted at trial

because he and the State stipulated to the identity of the victims. This issue is not

preserved for review because Pasha failed to object at trial on the basis of this

- 40 -
stipulation. Pasha claims that he preserved the issue of the admission of morgue

and scene photographs through a motion in limine. However, since the trial court

never made a definitive ruling on the issue raised in the motion, Pasha was

required to object at the time the photographs were introduced at trial. See

McGirth v. State, 48 So. 3d 777, 791 (Fla. 2010). Pasha also claims that he

preserved the issue of the admission of morgue and scene photographs with a

contemporaneous objection at trial. Although Pasha’s objection preserved the

issue of the admission of the morgue photographs, Pasha failed to preserve any

issue with regards to the subsequent admission of the scene photographs.

The trial court did not abuse its discretion in admitting the morgue

photographs of the victims. The photographs were relevant to a number of

disputed issues in the guilt phase including premeditation, the nature of the

victims’ injuries, the identity of the murder weapons, and the identity of the

murderer. Detective Service used the photographs to describe the injuries she

observed on the victims and the items recovered from their bodies and Dr.

Volnikh, the medical examiner that performed the autopsies of the victims, used

the photographs to explain to the jury the nature and manner in which the victims’

wounds were inflicted.

VIII. Other Evidentiary Rulings

- 41 -
 Pasha claims that the trial court made other erroneous evidentiary rulings

during the guilt phase that individually and cumulatively deprived him of a fair trial.

Each of the evidentiary rulings is addressed below.

A. Instructing a Witness

Pasha argues that the trial court improperly refused to instruct Mr. Sanchez

to avoid nonresponsive answers. The record reflects that Pasha requested the trial

court to admonish Mr. Sanchez on three occasions, the trial court granted one of

Pasha’s requests, and the trial court denied two of Pasha’s requests. Accordingly,

two of Pasha’s requests for admonishment are preserved and properly before this

Court. Nevertheless, the trial court did not abuse its discretion in denying those

two requests and refusing to admonish Mr. Sanchez because Mr. Sanchez’s

answers were responsive to Pasha’s questions. See Kormondy v. State, 845 So. 2d

41, 52 (Fla. 2003) (explaining that limitations on the examination of a particular

witness are controlled in the sound discretion of the trial court). Pasha further

alleges that the trial court’s refusal to admonish Mr. Sanchez violated his right of

cross-examination. However, this issue is not preserved for review because it was

raised for the first time in Pasha’s Reply Brief. See Johnson v. State, 135 So. 3d

1002, 1029 n.11 (Fla. 2014).

B. Opinion Testimony

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 Pasha argues that the trial court erred in refusing to curtail improper opinion

testimony from Mr. Sanchez regarding Pasha’s guilt. However, this issue is not

preserved for review because Pasha failed to contemporaneously make this specific

objection at trial. Pasha also argues that the trial court erred in refusing to curtail

improper opinion testimony from Mrs. Sanchez on the 911 call regarding Pasha’s

dangerousness. However, this issue is not preserved for review because Pasha

failed to contemporaneously make this specific objection at trial. But even if the

issue were preserved, Mrs. Sanchez’s statement on the 911 recording that Pasha

appeared to be “dangerous” did not provide an improper opinion regarding Pasha’s

guilt. Rather, Mrs. Sanchez’s statement merely relayed to the 911 dispatcher what

she perceived while observing Pasha covered in blood and holding a knife-like

object.

C. Leading Questions

Pasha argues that the trial court improperly overruled three of his objections

to questions as leading during the direct and redirect examinations of Mr. and Mrs.

Sanchez. However, the trial court did not abuse its discretion in overruling Pasha’s

objections. We reject these claims as they are without merit.

D. Impeachment Evidence

Pasha claims that the trial court erred in ruling that he could only impeach

Mr. Sanchez by admitting the entire transcript from a hearing held on October 29,

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2007, rather than using a two-page excerpt. “Before a witness can be impeached

with a prior inconsistent statement, the proper foundation must be laid.” Pearce v.

State, 880 So. 2d 561, 569 (Fla. 2004). Laying the proper foundation to impeach a

witness with a prior inconsistent statement necessarily requires calling the

witness’s attention to the prior inconsistent statement. See § 90.614(2), Fla. Stat.

(2012); Pearce, 880 So. 2d at 570 (explaining that defense counsel laid the proper

foundation under section 90.614(2) by “call[ing] to [the witness’s] attention the

time, place, and person to whom [the witness] made the prior inconsistent

statements, quot[ing] from the prior statements, and g[iving the witness] an

opportunity to explain his prior statements.”).

We find that Pasha was not entitled to admit the two-page excerpt of Mr.

Sanchez’s prior testimony from the hearing held on October 29, 2007, because

Pasha failed to lay a proper foundation to impeach Mr. Sanchez with a prior

inconsistent statement. The record reflects that Pasha called Mr. Sanchez’s

attention to a hearing held on October 29, 2007, and asked Mr. Sanchez a series of

questions that Mr. Sanchez had previously answered at the hearing regarding

where he was sitting when he first saw the individual wearing a white jumpsuit at

the WCC. The record further reflects that Mr. Sanchez acknowledged that the

questions had been asked, Mr. Sanchez answered the questions again, and Pasha

sought to admit a two-page excerpt of Mr. Sanchez’s prior testimony from the

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hearing. However, before seeking to admit the two-page excerpt, Pasha never

called Mr. Sanchez’s attention to any prior inconsistent statement made by Mr.

Sanchez at the hearing. Moreover, Pasha never asked Mr. Sanchez to explain or

deny any prior inconsistent statement made by Mr. Sanchez at the hearing

regarding where he was sitting when he first saw the individual wearing a white

jumpsuit at the WCC. Accordingly, Pasha’s argument lacks merit.

E. Crime Scene Diagram

Pasha argues that the trial court erred in admitting exhibit 156, a cardboard

diagram of the crime scene cul-de-sac, over his contemporaneous objection that it

was inaccurate. “The admissibility of evidence is within the sound discretion of

the trial court, and the trial court’s determination will not be disturbed on appellate

review absent a clear abuse of that discretion.” Gosciminski v. State, 132 So. 3d

678, 697 (Fla. 2013) (quoting Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005)).

This Court has long recognized that “a diagram . . . verified as a correct

representation of physical objects on the ground about which testimony is offered

is admissible in evidence for the use of witnesses in explaining their evidence and

to enable the jury to better understand the case.” Washington v. State, 98 So. 605,

607 (Fla. 1923).

We find that the trial court did not abuse its discretion in admitting the

diagram over Pasha’s contemporaneous objection because Deputy Chancey

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testified that she had been to the crime scene, verified that the diagram fairly and

accurately depicted the crime scene cul-de-sac, and used the diagram to explain her

testimony. Pasha claims that the trial court should have granted his renewed

objection to the admission of the diagram because, during the subsequent cross-

examination of Detective Service, Service conceded that the diagram was not an

accurate reflection of the distance between objects. However, the trial court did

not abuse its discretion in denying Pasha’s renewed objection because the

objection addressed an issue of fact—the weight that should be given to the

diagram by the jury—rather than the admissibility of the diagram.

Moreover, any error in the admission of a crime scene diagram was harmless

for two reasons. First, the State’s case was not premised on the distances between

objects in the cul-de-sac. Rather, it was based on Pasha’s presence at the murder

scene, the victims’ blood on Pasha’s clothes, the victims’ blood on the murder

weapons, and the bloody murder weapons found in Pasha’s van. Second, the jury

became aware that the diagram was not to scale through the testimony of Detective

Service, aerial photographs of the entire WCC, and individual photographs of the

crime scene and evidence. In other words, the jury could not have been misled by

the fact that the crime scene diagram was not to scale. Given these circumstances,

there is no reasonable possibility that any error in the admission of the crime scene

diagram affected the verdict.

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 F. Proffers

Pasha argues that the trial court erred when it allegedly excluded evidence

and refused to allow Pasha to proffer testimony on twelve occasions. A trial court

commits error by refusing to allow a proffer of excluded evidence. See Wood v.

State, 654 So. 2d 218, 220 (Fla. 1st DCA 1995) (“[A] trial court commits error if it

[excludes evidence and] denies a request to proffer testimony which is reasonably

related to the issues at trial.”). “[R]efusal to permit a proffer [of excluded

evidence] is subject to a harmless error analysis.” Fehringer v. State, 976 So. 2d

1218, 1221 (Fla. 4th DCA 2008). However, a trial court does not abuse its

discretion when it denies a request to proffer testimony after an objection has been

properly sustained on the ground that: (1) the form of a question was improper or

(2) a question has been asked and answered. This is because such a denial does not

relate to excluded evidence.

The record reflects that the trial court did not refuse to allow a proffer, and

Pasha did not make a proffer, in eight of the twelve instances cited by Pasha on

appeal. Accordingly, Pasha’s claims regarding those eight instances lack merit.

The trial court ruled that Pasha could not present a proffer in four of the instances

cited by Pasha on appeal. However, as explained below, the trial court did not

abuse its discretion in denying those four requests to proffer testimony because the

denials did not relate to the exclusion of any evidence.

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 In the first instance, Pasha asked Detective Service a question regarding the

crime scene diagram on cross-examination. Thereafter, the trial court properly

sustained the State’s objection to the form of the question and Pasha sought an

offer of proof. The trial court overruled Pasha’s request for an offer of proof but

explained that Pasha was welcome to rephrase the question. Pasha declined to

rephrase his question and proceeded to a different line of questioning. Although

the trial court denied Pasha’s request for an offer of proof, it did not err because the

denial did not relate to the exclusion of any evidence.

In the second instance, Pasha asked Mr. Sanchez a question on cross-

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

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

examination regarding a “shiny object” that the individual purportedly carried; and

in the fourth instance, Pasha asked Mr. Sanchez a question on cross-examination

regarding where Mr. Sanchez initially saw the individual. In each instance the trial

court properly sustained the State’s objection to the question as asked and

answered, Pasha sought an offer of proof, and the trial court overruled Pasha’s

request for an offer of proof. Although the trial court denied each of Pasha’s

requests for an offer of proof, it did not err because none of the denials related to

the exclusion of any evidence.

G. Cumulative Error

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 Pasha argues that the cumulative effect of these guilt phase evidentiary

errors deprived him of his right to a fair trial. “However, where the individual

claims of error alleged are either procedurally barred or without merit, the claim of

cumulative error also necessarily fails.” Parker v. State, 904 So. 2d 370, 380 (Fla.

2005). As explained in the analysis of the individual issues above, the alleged

errors are either procedurally barred or without merit. Accordingly, we reject

Pasha’s argument of cumulative error.

IX. Prosecutor’s Comments

A. Comments Regarding Post-Miranda Silence During the Guilt Phase

Pasha claims that the prosecutor improperly cross-examined him during the

guilt phase on his post-Miranda silence in violation of the Fifth Amendment.

According to Pasha, this issue is preserved because the trial court granted a motion

in limine prior to trial that precluded the State from infringing on Pasha’s right to

remain silent. However, this issue is not preserved for review because the order

granting the motion in limine simply precluded “the State from arguing certain

matters in a penalty phase proceeding, including . . . the accused person’s right to

remain silent.” Regardless, we conclude that the prosecutor’s questions were not

“fairly susceptible of being construed by the jury,” State v. Hoggins, 718 So. 2d

761, 769 (Fla. 1998), as commenting on Pasha’s exercise of his right to remain

silent. The record reflects that Pasha expressly waived his right to remain silent on

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the day of the murders by speaking to the police and waived his right to remain

silent at trial by taking the stand to testify.

B. Comments Regarding Guilt During the Guilt Phase

Pasha argues that the prosecutor improperly asserted personal knowledge of

Pasha’s guilt while cross-examining him. However, this issue is not preserved for

review because Pasha failed to contemporaneously object to any of the

prosecutor’s comments or questions during Pasha’s cross-examination.

Regardless, none of the prosecutor’s questions or comments on cross-examination

were improper because the prosecutor never expressed his personal belief in or

knowledge of Pasha’s guilt. Rather, the prosecutor merely accused Pasha of

committing the murders and asked why he did so.

Pasha also argues that the prosecutor improperly asserted personal

knowledge of Pasha’s guilt in a single comment during closing argument.

However, this issue is not preserved for review because Pasha failed to

contemporaneously object to the prosecutor’s comment. Regardless, we conclude

that the verdict of guilty could have been obtained “without the assistance of the

alleged error.” Walls v. State, 926 So. 2d 1156, 1176 (Fla. 2006) (quoting Brown

v. State, 124 So. 2d 481, 484 (Fla. 1960)).

X. Sufficiency of the Evidence

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 This Court independently reviews the record in death penalty cases to

determine whether sufficient evidence exists to support the conviction. Pham v.

State, 70 So. 3d 485, 501 (Fla. 2011). “In determining the sufficiency of the

evidence, the question is whether, after viewing the evidence in the light most

favorable to the State, a rational trier of fact could have found the existence of the

elements of the crime beyond a reasonable doubt.” Bradley v. State, 787 So. 2d

732, 738 (Fla. 2001).

The evidence in this case showed that at approximately 10 p.m. on August

23, 2002, Canady drove to the WCC in her white Buick to pick up her daughter,

Singleton, from a training class. Aware of Canady’s plan, Pasha drove to the WCC

in his white work van. Upon arriving at the WCC, Pasha put on a white jumpsuit

and white boots. He then walked to Canady’s vehicle, sat in the backseat while

Canady remained in the driver’s seat, and awaited Singleton’s arrival. Pasha was

still sitting in the backseat of Canady’s vehicle when Singleton entered it.

Deputy Stahlschmidt subsequently found the bodies of Canady and

Singleton in the WCC. After obtaining a search warrant, the police discovered a

number of items in Pasha’s van including a white, bloody jumpsuit and white

boots. Inside one of the boots, the police discovered a bloody, broken, 18” to 20”

tire thumper. In the other boot, a bloody butcher knife and latex gloves were

found. The blood on Pasha, the blood on his clothes, and the blood on evidence

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collected from his van matched the blood of one or both victims. The evidence

indicated that the victims’ wounds resulted from the weapons discovered in

Pasha’s vehicle. Pasha was seen covered in blood and carrying a shiny object in

the WCC, the bodies were still warm when Pasha was leaving the WCC, and Pasha

lied about the blood to the police. Accordingly, the circumstantial evidence

presented by the State is sufficient to support the murder convictions in this case.

XI. Ring and Hurst

While Pasha’s appeal was pending before this Court, the United States

Supreme Court issued its decision in Hurst v. Florida in which it held that Florida’s

former capital sentencing scheme violated the Sixth Amendment because it

“required the judge to hold a separate hearing and determine whether sufficient

aggravating circumstances existed to justify imposing the death penalty” even

though “[t]he Sixth Amendment requires a jury, not a judge, to find each fact

necessary to impose a sentence of death.” Hurst v. Florida, 136 S. Ct. at 619. On

remand in Hurst we held that

before the trial judge may consider imposing a sentence of death, the
jury in a capital case must unanimously and expressly find all the
aggravating factors that were proven beyond a reasonable doubt,
unanimously find that the aggravating factors are sufficient to impose
death, unanimously find that the aggravating factors outweigh the
mitigating circumstances, and unanimously recommend a sentence of
death.
Hurst, 202 So. 3d at 57.

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 In light of the nonunanimous jury recommendation to impose the death

sentences, it cannot be said that the failure to require a unanimous verdict as to

each death sentence was harmless. See Franklin v. State, 209 So. 3d 1241, 1248

(Fla. 2016) (“In light of the non-unanimous jury recommendation to impose a

death sentence, we reject the State’s contention that any Ring- or Hurst v. Florida-

related error is harmless.”). We therefore reverse Pasha’s death sentences and

remand for a new penalty phase.

CONCLUSION

For the reasons stated above, we affirm Pasha’s convictions, vacate Pasha’s

death sentences, and remand for a new penalty phase.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.
CANADY, POLSTON, and LAWSON, JJ., concur as to the conviction and dissent
as to the sentence.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

An Appeal from the Circuit Court in and for Hillsborough County,
Kimberly Kay Fernandez, Judge - Case No. 292002CF013748000AHC

Howard L. “Rex” Dimmig, II, Public Defender, and Karen M. Kinney, Assistant
Public Defender, Tenth Judicial Circuit, Bartow, Florida,

for Appellant

Pamela Jo Bondi, Attorney General, Tallahassee, Florida; and Scott A. Browne,
Senior Assistant Attorney General, Tampa, Florida,

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for Appellee

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