Maryland High court declines to reinstate love-affair murder conviction

By Steve Lash BridgeTower Media Newswires BALTIMORE, MD - Maryland's top court has declined to reinstate the murder conviction of a man accused of clubbing his girlfriend's husband to death, saying a mistrial should have been declared when testimony that implicated only the woman was erroneously introduced at the adulterous couple's joint murder trial. The Court of Appeals held Friday that the admission of testimony against his girlfriend biased the jury against Hussain Zadeh, denying him a fair trial. The Court of Appeals also held that police had unconstitutionally seized a cellphone from Zadeh, which should have rendered evidence of his alleged pre-slaying phone call to Larlane Pannell-Brown, his girlfriend and co-defendant, inadmissible at trial. The high court issued its decision in sending Zadeh back for a new trial in the Aug. 4, 2014, killing of Cecil Brown in the backyard of his Takoma Park home. In its ruling, the Court of Appeals affirmed an unreported opinion by the intermediate Court of Special Appeals overturning Zadeh's second-degree murder conviction and 30-year prison sentence. The prosecution's theory was that Zadeh and Pannell-Brown killed Cecil Brown so they could live happily ever after. However, much of the state's testimonial evidence at the joint trial pointed only to Pannell-Brown, the high court stated. For example, Pannell-Brown's daughter-in-law testified that her mother-in-law was hiding money and having an affair with Zadeh; the Browns' mortgage lender testified that Pannell-Brown had asked about a potential insurance policy on the marital home; and a real estate attorney told the jury that Pannell-Brown had entered into a contract to sell the home for $85,000. The Court of Appeals said the prosecution's use of this Pannell-Brown-specific testimony at Zadeh's trial was so harmful to his defense that it could not be remedied by the Montgomery County Circuit Court judge's instruction that the jury not consider it in weighing Zadeh's guilt. "After all the limiting instructions and categorizing of statements â?¦ that the trial judge determined were only admissible against Ms. Pannell-Brown, even the most attentive and intelligent juror would have a difficult time determining what evidence was admissible against which defendant," Judge Michele D. Hotten wrote for the high court. "(T)he prosecution acknowledged it would be an 'insurmountable task' for the attorneys to classify which evidence was admissible against Mr. Zadeh and which evidence was only admissible against Ms. Pannell-Brown," Hotten continued. "While the discretion to grant a mistrial should be exercised with great care, the situation in this case warranted such a remedy." Shirley M. Watts was the only judge on the seven-member high court not to sign on to Hotten's opinion regarding the testimonial evidence. Watts joined only in the judgment. With regard to the cellphone, the high court noted that police had a warrant to search Zadeh's car for evidence of murder, including a potential weapon, "blood, hairs and fibers" and "any electronic equipment which stores data." When investigating officers found Zadeh sitting in the car, they told him to get out and Takoma Park police detective Richard Poole patted him down to ensure he was not armed. During the frisk, Poole said he felt a cellphone and retrieved it from Zadeh. A subsequent examination of the phone disclosed a call between Zadeh and Pannell-Brown shortly before the slaying, which prosecutors cited as evidence of the couple's planning of the crime. The trial judge admitted the cellphone evidence, saying police had retrieved the device legitimately during a permissible search of Zadeh for weapons. A divided Court of Appeals disagreed, saying the search warrant applied only to Zadeh's car and not to his person. While he rightfully searched Zadeh for a weapon, Poole should have realized by touch that the cellphone was neither a weapon nor incriminating contraband and thus was not constitutionally retrievable by him, Hotten wrote for the four-member majority. Hotten added that "there is nothing inherently or even remotely criminal about a cell phone." In dissent, Judge Joseph M. Getty said the cellphone was likely incriminating contraband insofar as police were following up on information that Zadeh and Pannell-Brown had talked by phone on the day of the killing. Getty added that the phone - an electronic device that stores data - was among items listed in the warrant that could be seized. "The facts â?¦ known to law enforcement and sworn out to acquire the search warrant for the Jaguar sufficed to convince a neutral magistrate that probable cause existed to seize electronic equipment which stores data as specified in the warrant," wrote Getty, who was joined in dissent by Judge Robert N. McDonald. "When detective Poole realized that he was touching a cell phone, the incriminating character (for which law enforcement had already demonstrated probable cause to seize) became immediately apparent. Therefore, he properly seized it." Like Zadeh, Pannell-Brown was also convicted of second-degree murder and sentenced to 30 years in prison. Her conviction was affirmed by the Court of Special Appeals last year. She was not a party to the case the Court of Appeals decided. The high court rendered its decision in State of Maryland v. Hussain Ali Zadeh, No. 25, September Term 2019. Published: Wed, Apr 08, 2020