Pannell-Brown v. State

LARLANE PANNELL-BROWN AND HUSSAIN ALI ZADEH v. STATE OF MARYLAND

No. 1065

No. 1329

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

February 26, 2019

Circuit Court for Montgomery County

Case Nos. 127706C & 127707C

UNREPORTED

Meredith, Graeff, Nazarian, JJ.

Opinion by Nazarian, J.

* This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Larlane Pannell-Brown and Hussain Ali Zadeh were tried together, before a jury in the Circuit Court for Montgomery County, for the love-triangle murder of Cecil Brown, Ms. Pannell-Brown's husband, and both were convicted. On appeal, Ms. Pannell-Brown raises several issues relating to jury selection and challenges one evidentiary decision. Mr. Zadeh argues that his trial should have been severed from Ms. Pannell-Brown's, that the court should have suppressed a cell phone found in a search of his car, that the court should have admitted prior bad acts evidence about the victim's son, and that the court unfairly restricted his counsel's closing arguments. We affirm Ms. Pannell-Brown's conviction, but because we hold that Mr. Zadeh should have been tried separately and that the cell phone should have been suppressed, we reverse his conviction and remand for further proceedings. We also address his other contentions for guidance on remand.

BACKGROUND

On the afternoon of August 4, 2014, Ms. Pannell-Brown found her husband, Cecil Brown, dead and lying face-down on the ground in their backyard in Takoma Park with blood all around his head. The State contended that Ms. Pannell-Brown and Mr. Zadeh conspired to kill Mr. Brown, although no physical evidence linked either to the killing. The State indicted them and sought to try them together.

A. The Motion to Sever

Before trial, Mr. Zadeh moved to sever his trial¹ from Ms. Pannell-Brown's. Heargued that "a joint trial poses an unacceptable risk of prejudice arising from evidence that is admissible against [Ms. Pannell-Brown], but not admissible against, or even relevant to, [Mr. Zadeh]." The court held a hearing, and Mr. Zadeh identified three categories of evidence that were not mutually admissible and that, if admitted, would prejudice him:

[MR. ZADEH'S COUNSEL]: The first category is testimonial hearsay, the second category is nontestimonial hearsay, and the third category is other material that is irrelevant, both irrelevant and unfairly prejudicial [to Mr. Zadeh], and thus inadmissible under rules 402 and 403.

With respect to the testimonial hearsay, as I mentioned, the police conducted three taped and one untaped statement with Ms. Pannell-Brown. . . . If these statements are admitted at a joint trial and if Ms. Pannell-Brown stands on her right not to testify, my client [Mr. Zadeh] will be unable to cross-examine her about this extensive -- these extensive statements to the police that conflicts with the principals [sic] articulated in Crawford [v. United States, 212 U.S. 183 (1909)]. Further, insofar as those statements are inculpatory or implicate [Mr. Zadeh], they would also be in violation of Bruton [v. United States, 391 U.S. 123 (1968)]. And we think that the presence of such extensive testimonial hearsay here alone is enough to warrant severance.

But turning to the second category of inadmissible and prejudicial evidence, nontestimonial hearsay, and I'll briefly highlight two examples of statements by Ms. Pannell-Brown that the State intends to introduce for the purposes of the implied assertions that they contain.

The first is an August 4^th text message from Ms. Pannell-Brown to Mr. Zadeh, which reads: Hey, they checked my phone. I told them that I know you though [sic] Isaiah and that you need help to get your wife over here.

Clearly, the State doesn't rely on the statement for its express content. It doesn't advance their case. The reason for the State to rely on the statement is for the implied assertion from Ms. -- the purported implied assertion from Ms. Pannell-Brown to Mr. Zadeh that they need to get their stories together, that heneeds to be aware of what she's telling the police in order to hide their, you know, supposed guilt.

The second piece of nontestimonial hearsay we highlight is an August 3^rd text message from Ms. Pannell-Brown to her son and/or daughter-in-law that reads: I love you all no matter what.

Again, it's hard to imagine the State relying on that for its express content, I think it's clear that the point from their perspective is the implied assertion that I love you no matter what, notwithstanding that, you know, the bad acts that I've committed or I'm in the process of committing. So because these statements' only relevance is by virtue by their implied assertions, they're hearsay under Stoddard and its progeny and thus inadmissible against Mr. Zadeh and provide another reason for severance.

***

Turning to the third category of evidence, I mentioned briefly that the police seized materials from Mrs. Brown and her residence. These included handwritten notes, internet histories from -- internet search histories from computers and cell phones, and those include, among other things, to take some inflammatory examples, a recipe for how to make cyanide - it's undated and was found mixed up in a bunch of papers in the Brown house - and also internet searches about things like Tasers and how to cause sudden cardiac arrest.

In its brief, the State concedes that these materials were not used to murder Mr. Brown. More importantly, there's no indication that Mr. Zadeh knew about these materials, let alone approved of them, or that they were created during the life of any conspiracy. So we think they're irrelevant under 402, and even if they were relevant in some marginal sense, we think that their prejudicial character vastly outweighs any relevance and thus are inadmissible under 403, and so that's another reason to sever.

(Emphasis added).

The State argued that all three categories were mutually admissible:

There is [sic] no grounds to grant [Mr. Zadeh's] motion to sever in this case, and in fact, the biggest reason, I guess, presented to the [c]ourt for severance is that Mr. Zadeh would like a separate trial. And of course he would.

***

And the State's main argument in his case is that the categories of evidence that [Mr. Zadeh] refers to are not categories of inadmissible evidence as to their client. The State does believe -- and I will describe to the [c]ourt in brief the reasons why we believe all this evidence is mutually admissible.

***

If we have this trial twice, the exact same evidence is going to be introduced twice. It is not going to be a different case to each codefendant, because the evidence is mutually admissible as to both codefendants.

The trial court found the evidence mutually admissible and denied Mr. Zadeh's motion to sever "because there was no indication that there would be a Bruton, 391 U.S. 123,² issue, or issues regarding non-mutually admissible evidence":

If there's not a Bruton problem, and of course we'll make sure there's not a Bruton problem, there's really no reason to sever the trials because as long as the evidence is mutually admissible and as long as there's no Bruton problem, then clearly it's in everyone's interest, other than maybe the defendants who don't want it -- but it's in everybody else's interests to have one trial, apparently a trial of this length, to have an efficient use of resources. And I quite frankly think it's better to have one trial so one jury can assess all of the evidence and fairly sort of look at the evidence vis-à-vis both defendant[s].

Because if you think about it, if you have two trials, not only do you have to bring everybody back twice, but you have two different juries assessing the cases, and you may end up with kind of perverse results just because you have two different juries hearing two different defendants. So I think it's actually in the interest of society to have one trial with one jury hearing the same evidence against both defendants. So the bottom line is, the motion to sever is denied.

Mr. Zadeh later moved for reconsideration based on the then-recent Court of Appeals decision in State v. Hines, 450 Md. 352 (2016). The court denied the motion, finding that (1) no non-mutually admissible evidence would be introduced at trial; (2) admitting Ms. Pannell-Brown's statements to the police would not result in unfair prejudice to Mr. Zadeh; and (3) a limiting instruction and redaction would cure any prejudice.

B. The Trial

Because the other issues on appeal flow primarily from the trial itself, we recount the evidence and testimony as the parties presented it.

David Kapp, a home improvement consultant, was in the kitchen of Janet Barry, Ms. Pannell-Brown's next-door neighbor, at around 12:15 p.m. when he heard screaming and banging at the back door. He called to Ms. Barry, who said, "oh my gosh, that's my neighbor." Mr. Kapp opened the sliding door as Ms. Pannell-Brown approached; she was screaming, yelling, and flailing, and she pulled him toward her home. Mr. Kapp, Ms. Barry, and other neighbors followed and saw Mr. Brown's body "on the ground, not moving, in horrible condition, and wallet contents on the ground." Mr. Kapp called 911 and waited.

Ms. Barry was at home with Mr. Kapp when he told her that somebody was banging on her back door. When Mr. Kapp opened the door, Ms. Barry went toward the door andsaw Ms. Pannell-Brown standing on her deck. Ms. Pannell-Brown "grabbed [her] arm and said, Cecil, it's Cecil," and dragged her toward the Browns' backyard. When they got there, they saw Mr. Brown lying on the ground. Ms. Barry told Mr. Kapp to call 911, and he did. She testified that Cecil Pannell, Ms. Pannell-Brown's son (also known as "Beanie"),³ arrived shortly after the authorities and appeared to be visibly upset.

Miranda Morris, a neighbor and...