In Zadeh v. State (No. 11, Sept. Term 2022, Opinion by Hon. Andrea M. Leahy), the Appellate Court of Maryland (ACM) remanded the case – yet again – because the trial court failed to instruct the jury on the voluntariness of Zadeh’s statement to police. Before reaching the merits, the ACM addressed the important question of the time requirement for filing motions to suppress on remand.
Brief Summary of Facts and First Reversal: On August 4, 2014, Takoma Park Police responded to a call reporting that a woman, Larlane Pannell-Brown, was screaming at her house. When the police arrived, they found her husband, face down, bleeding from trauma to his head. However, police were unconvinced by Ms. Pannell-Brown’s screams once they discovered that she was having an affair with Hussain Ali Zadeh, a man 20 years her junior. In the first trial, Zadeh was jointly tried with Pannell-Brown, and both were convicted of second-degree murder and sentenced to 30 years in prison. However, the Supreme Court of Maryland reversed Zadeh’s conviction because he was unfairly prejudiced by non-mutually admissible evidence at the joint trial. State v. Zadeh, 468 Md. 124, 163-64 (2020).
Zadeh’s Second Trial: After the remand, Zadeh moved to suppress cell-site-location-information (“CSLI”) data gathered from his phone by Verizon. However, the trial court denied the motion to suppress the CSLI evidence because it held that Zadeh had failed to file the motion to suppress within the mandatory 30-day period under Rule 4-252(b). The trial judge explained that, notwithstanding the remand for a new trial, the defendant was meant to follow the Rule and the 30-day clock from the “[f]irst appearance of the counsel or first appearance of the defendant before the court, pursuant to Rule 4-213(c)[.]”
In addition, the State played at trial a video of an interview between Zadeh and two police officers. Zadeh made several inculpatory statements, including contradictory and false statements regarding the murder. Zadeh asked the trial judge to instruct the jury on voluntariness, but the trial court refused to do so.
Timeliness of a Motion to Suppress on Remand: The ACM sided with Zadeh, holding that the 30-day mandatory motion filing deadline contained in Rule 4-252(b) does not apply to retrials as it would lead to anomalous results. The whole purpose of the timeliness limitation of filing motions to suppress is the orderly resolution of suppression motions. When considering a suppression motion, a key consideration is prejudice to the State. Zadeh’s motion to suppress the CSLI evidence was filed nearly three months before the scheduled trial date (and ten months before the actual trial). The ACM held that the trial judge did not articulate any prejudice the State would suffer by considering the motion to suppress. The trial court abused its discretion in denying the motion to suppress on the grounds that it was not timely.
To provide further guidelines as to when suppression motions should be filed on remand, the ACM held that the trial court can impose reasonable deadlines in a new scheduling order.
The ACM also looked to precedent to guide its analysis. The court analogized the Hicks rule to Rule 4-252(b)’s application. The Hicks rule does not apply to retrials. The rule provides that “[t]he date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events.” Md. Rule 4-271(a)(1). Rule 4-271 and Rule 4-252(b) carry almost identical language, and therefore, the ACM held that Rule 4-252(b) does not apply to retrials either.
On the merits of the suppression, the ACM held that the warrant was obtained in violation of the Fourth Amendment under Carpenter v. United States, 138 S. Ct. 2206 (2018). The warrant was also void ab initio because a district court judge signed it, instead of a judge of competent jurisdiction (circuit court), and it further lacked probable cause. However, the Leon good faith exception to the exclusionary rule applied. The CSLI evidence was therefore admissible at trial.
Voluntariness: “Some evidence” of involuntariness is required to generate a voluntariness instruction to the jury. The trial court must give the voluntariness instruction where “(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.” Dickey v. State, 404 Md. 187, 197-98 (2008). Additionally, to determine whether the defendant has provided “some evidence,” the trial court judge must look to the totality of the circumstances.
During Zadeh’s interview, the detective stated “he [the detective] would not be here if you would tell me the truth,” and that Zadeh was not under arrest. Additionally, Zadeh told police about his previous interactions with law enforcement, particularly one incident where a police officer broke his nose. Zadeh argued that his statements were involuntary because they were the result of improper threats, promises, or inducements. The ACM concluded that the words of the detective may not have risen to the level of tangible threat or offer of leniency. However, when looking at the totality of the circumstances, the threats in conjunction with Zadeh’s previous interactions with law enforcement as well as the length of questioning, were enough to produce “some evidence” that the statement was not voluntarily given.
The ACM held that “considering the very low bar imposed by the “some evidence” standard, and the principle that it is within the province of the jury to determine whether a defendant’s statement to law enforcement was voluntarily given, irrespective of the court’s preliminary decision, we must conclude that the trial court abused its discretion by failing to give the requested pattern jury instruction.” Because the ACM could not “say that the court’s failure to apprise the jury of its indispensable role in determining the voluntariness of Zadeh’s statements in no way affected the verdict[,]” it reversed and remanded the case for a new trial.
The State will likely file a petition for writ of certiorari to the Supreme Court of Maryland, and Zadeh will likely file a conditional cross-petition on the application of the good faith exception to the deficient CSLI search warrant.