Diallo v. State

• Decision Date: 04 June 2009
• Docket Number: No. 71 Sept.Term, 2008.,71 Sept.Term, 2008.
• Citation: 972 A.2d 917,186 Md. App. 22
• Parties: Abdel Khader DIALLO v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

972 A.2d 917

186 Md. App. 22

Abdel Khader DIALLO v. STATE of Maryland.

No. 71 Sept.Term, 2008.

Court of Special Appeals of Maryland.

June 4, 2009.

Philip J. Sweitzer, Ronald I. Kurland, Baltimore, for appellant.

Mary Ann Ince (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for appellee.

Panel: DAVIS and WOODWARD, JJ., and CHARLES E. MOYLAN, JR., J. (Retired, Specially Assigned).

DAVIS, Judge.

On December 14, 2007, Abdel Khader Diallo, appellant, was tried upon a "not guilty" agreed statement of facts in the Circuit Court for Baltimore County (Norman, J.) and convicted of first-degree assault and use of a handgun in the commission of a crime of violence. On February 8, 2008, the circuit court sentenced appellant to twenty-five years in prison on the first-degree assault charge, with all but fifteen years suspended and, upon release, to be under supervised probation for five years. As for the conviction on the charge of use of a handgun in the commission of a crime of violence, appellant was sentenced to a concurrent mandatory term of five years in prison, without the possibility of parole.

The core issue raised on appeal addresses the propriety of these criminal proceedings and judgments against appellant in light of appellant's claim that he is entitled to diplomatic immunity. Appellant presents four questions for our review, which we have rephrased as follows:¹

I. Did the trial court err by denying appellant's motion to dismiss on the grounds that appellant was not entitled to diplomatic immunity?

II. Did the trial court err by denying appellant's motion to suppress statements made to the police on the grounds that appellant was not entitled to diplomatic immunity?

III. Did the State fail to comply with its disclosure obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny?

IV. Did the trial court err by denying appellant's motion to suppress statements that he made to the police on the grounds that appellant's confession was knowingly and voluntarily made?

For the reasons that follow, we hold that appellant has waived his challenge to the denial of his motion to dismiss. We resolve all remaining questions against appellant and affirm the judgments of the trial court.

FACTUAL BACKGROUND

Appellant's trial proceeded upon a "not guilty" agreed statement of facts, the pertinent portions of which we recount infra.

On October 22, 2006, David Reeves, who had recently left a party in Rosedale, with a friend, approached appellant on the street and asked if he was selling drugs. When told that appellant was not selling drugs, Reeves became angry and aggressive. Another individual, who remained unidentified in the proceedings, subsequently approached appellant, offered appellant a handgun and explained that Reeves was carrying a substantial amount of money. Appellant took the gun and pointed it at Reeves. When Reeves attempted to grab the gun, a struggle ensued, during which the gun was fired, wounding Reeves in the neck. Reeves was subsequently treated at Franklin Square Hospital for his injuries.

On October 23, 2006, Detective Ramon Geigel visited Franklin Square Hospital to conduct an investigation of the incident. He soon learned that another individual, later identified as appellant, arrived at Franklin Square Hospital at the same time as Reeves and was treated for a gunshot wound to his chest. Appellant was later transferred from Franklin Square Hospital to Johns Hopkins Hospital for treatment. On October 31, 2006, Reeves identified appellant out of a photo array as the individual who shot him. Appellant was arrested later that day after being discharged from Johns Hopkins Hospital. At the station-house, appellant was administered his Miranda² rights and signed a waiver of those rights, ultimately confessing orally and in writing to his involvement in the shooting.

Based upon the foregoing facts, the trial court found appellant guilty of first-degree assault and use of a handgun in the commission of a crime of violence. Additional facts shall be discussed throughout our opinion as appropriate.

LEGAL ANALYSIS

Appellant challenges the trial court's denial of (1) his motion to dismiss the charges against him and (2) his motion to suppress statements he made to the police subsequent to his arrest. Appellant's motion to dismiss was premised on the argument that the court lacked jurisdiction over appellant because he was entitled to diplomatic immunity from criminal prosecution based on the position occupied by his father, Mr. Hama Arba Diallo (the Elder Diallo),³ a former Executive Secretary of the Permanent Secretariat of the United Nations Convention to Combat Desertification (UNCCD). Appellant's motion to suppress was based on two arguments. The claim first advanced by appellant is that his arrest, and his subsequent confession to the police, were illegal in light of his claim of diplomatic immunity. The second claim of error is that his confession to the police was involuntary.

In addition to requesting a reversal of the trial court's denial of his motion to dismiss and his motion to suppress, appellant also seeks to vacate his conviction based on what he characterizes as the United States State Department's suppression of evidence in relation to the diplomatic status of his father, which should be imputed, according to appellant, to the State of Maryland, affording appellant relief under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and its progeny.

We address each of appellant's arguments seriatim.

I

Diplomatic Immunity— Motion to Dismiss

A Waiver

Appellant maintains that the trial court erred "when it concluded that [a]ppellant was not immune from its criminal jurisdiction under the Vienna Convention on Diplomatic Relations, the United Nations Convention and other U.S. treaty obligations...." By identifying the "United Nations Convention," we deduce that appellant is referring to the Convention on Privileges and Immunities of the United Nations, Feb. 13, 1946, 21 U.S.T. 1418. We shall hereafter refer to the Convention on Privileges and Immunities of the United Nations as the "United Nations Convention" and the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227, as the "Vienna Convention."

We initially observe that, although appellant generally mentions the United Nations Convention in the title to two subsections of his appellate brief, and includes sections 17 through 21 of the United Nations Convention in the pertinent provisions section of his appellate brief, appellant only discusses and explains the significance of specific articles of the Vienna Convention. In other words, there is no substantive application of any provision of the United Nations Convention anywhere in appellant's brief. See Higginbotham v. Public Service Comm'n of Maryland, 171 Md.App. 254, 268, 909 A.2d 1087 (2006) (observing that we are not required to "to seek out the law in support of a party's appellate contentions") (quoting Anderson v. Litzenberg, 115 Md.App. 549, 578, 694 A.2d 150 (1997)).

We further observe that appellant has failed to present, with any particularity, a basis upon which we might review the trial court's denial of his motion to dismiss. Rather, after (1) mentioning the date on which appellant moved to dismiss the charges, (2) outlining the substance of the State's opposition to appellant's motion and (3) reproducing a portion of the trial court's ruling, appellant sets forth the following legal argument, which we quote in its entirety:

The court erred for reasons which will become clear, infra, which error it almost could not avoid: the Department of State was in possession of exculpatory information tending to undercut the credibility of the information in its September 20, 2007 certification,[⁴] information that also tended to substantially support the [a]ppellant's claim, and evidence it suppressed.

Under Maryland Rule 8-504(a)(5), an appellate brief must contain "argument in support of the party's position." Rule 8-504(a)(4) further requires a party to include a clear and concise statement of the facts material to a determination of the questions presented, with reference to pages of the record or the transcript of testimony contained in the record. In the event that a party fails to comply with this Rule, we retain the authority to "dismiss the appeal or make any other appropriate order with respect to the case." Md. Rule 8-504(c). See also Klauenberg v. State, 355 Md. 528, 552, 735 A.2d 1061 (1999). Appellant's argument on this issue, which we have set forth above, comes quite close to conceding that the trial court could not "avoid" error and, consequently, did not err in denying appellant's motion to dismiss. Moreover, appellant sets forth no authority in support of his argument, pertinent to a trial court's obligations in ruling upon a motion to dismiss. Instead, appellant appears to bootstrap his challenge to the denial of the motion to dismiss to his argument that the prosecution suppressed evidence, in violation of Brady v. Maryland, supra, and its progeny—an argument that we discuss and reject infra.

We also observe that appellant has failed to explain or refer to substantial portions of the record relevant to his argument to the trial court and the basis for the trial court's denial of his motion to dismiss, which we have concluded are critical to determining the merits of appellant's challenge to the trial court's ruling on appeal.

"[A]rguments not presented in a brief or not presented with particularity will not be considered on appeal." Klauenberg, 355 Md. at 552, 735 A.2d 1061. See also Beck v. Mangels, 100 Md.App. 144, 149, 640 A.2d 236 (1994) (explaining that we may decline to consider the merits of a question presented but not supported by substantial argument). We decline to fashion an argument, on appellant's behalf, in support of his challenge to the...