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Lewis v. State

Court of Appeals of Maryland

April 24, 2017

GRANT AGBARA LEWIS
v.
STATE OF MARYLAND

          Argued: March 2, 2017

         Circuit Court for Baltimore County Case No. 03-K-14-001586

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          Watts, J.

          The Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings authorizes a Maryland trial court to certify that a person outside Maryland is a material witness in a pending criminal case in Maryland, and directs that such a certification be presented to a judge in another State. See Md. Code Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) ("CJ") § 9-303(a).[1] A provision of the Act, CJ § 9-304(a), provides for exemption[2] from arrest or service of process for such an out-of-State witness as follows:

Exemption of person coming into State to attend and testify. - If a person comes into this State in obedience to a summons directing him [or her] to attend and testify in this State he [or she] shall not while in this State pursuant to such summons be subject to arrest or the service of process, civil or criminal, in connection with matters which arose before his [or her] entrance into this State under the summons.

         This case requires us to determine whether an out-of-State witness who enters Maryland pursuant to a summons, and is then charged with crimes, waives the issue of a violation of CJ § 9-304(a) by failing to raise the issue before trial.

         Here, Grant Agbara Lewis ("Lewis"), Petitioner, a Colorado resident, entered Maryland pursuant to a summons to testify at the murder trial of Alexander Bennett ("Bennett"). On the day that his trial was scheduled to begin, Bennett entered into a guilty plea agreement, pursuant to which he made a proffer inculpating Lewis in the murder of Heidi Bernadzikowski ("Bernadzikowski"). Afterward, Lewis was arrested in Maryland and, in the Circuit Court for Baltimore County ("the circuit court"), the State, Respondent, charged Lewis with crimes that were related to the murder.

         At no point did Lewis assert the issue of a violation of CJ § 9-304(a) in the circuit court. Instead, Lewis raised the issue for the first time on appeal. The Court of Special Appeals held that Lewis waived any issue as to a violation of CJ § 9-304(a). We agree, and hold that an out-of-State witness who enters Maryland to testify at a trial in a criminal case pursuant to a summons under the Maryland Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, and who is arrested and charged with a crime in Maryland, waives the issue of a violation of CJ § 9-304(a) by failing to raise the issue pretrial as required by Maryland Rule 4-252, which governs mandatory pretrial motions and matters that are capable of determination before trial, without trial of the general issue. We decline to exercise our discretion pursuant to Maryland Rule 8-131(a) to review the matter.

         BACKGROUND

         State v. Bennett and Filings in the Colorado Court

         The facts and circumstances giving rise to this unusual case are summarized below. In the circuit court, the State charged Bennett with first-degree murder of Bernadzikowski and other crimes. In State v. Bennett, the State filed an "Application to Secure Attendance of a Person Outside the State as a Witness in a Criminal Action in the State" under CJ § 9-303, seeking to secure the attendance of Lewis, a Colorado resident, as a witness at Bennett's trial. The circuit court issued a "Certificate for Attendance of Witness from Colorado State, " certifying that Lewis was a material witness in State v. Bennett.

         In the District Court of City and County of Denver, Colorado ("the Colorado court"), the District Attorney for the Second Judicial District of Colorado filed a "Motion for Hearing and Appearance of Witness for Witness To Testify in Another State, " advising the Colorado court of the attempt to secure Lewis's presence as a witness in Maryland and noting that, under Colorado law, Lewis had a right to a hearing to determine whether he was a material and necessary witness in State v. Bennett and whether it would cause undue hardship to be compelled to testify at Bennett's trial. In the motion, the District Attorney stated that Lewis would be required to attend Bennett's trial for two days, and possibly afterward if the circuit court so ordered; and the District Attorney requested that the Colorado court issue a summons ordering Lewis to testify at Bennett's trial.

         The Colorado court issued an "Order for Hearing and Appearance of Witness, and for Contingent Summons for Witness to Testify in Another State[.]" In the order, the Colorado court scheduled a hearing, at which Lewis would be required to show cause why he should not be compelled to testify at Bennett's trial; and ordered that the show cause hearing would be vacated if the District Attorney filed an Acceptance of Service and Waiver of Hearing signed by Lewis. The Colorado court found that Lewis was a material and necessary witness in State v. Bennett, and that compelling Lewis to testify at Bennett's trial would not cause undue hardship. The Colorado court ordered Lewis to testify at

         Bennet's trial and stated:

[T]he laws of the [S]tate in which the prosecution is pending, and of any other [S]tate through which [Lewis] may be required to pass by ordinary course of travel, will give to [Lewis] protection from arrest and service of civil and criminal process in connection with matters which arose before entering into that [S]tate under this summons[.]

         In the Colorado court, the District Attorney Investigator filed a "Certificate of Service, " averring that he had served on Lewis, among other documents, the Motion for Hearing and Appearance of Witness for Witness To Testify in Another State, the Order for Hearing and Appearance of Witness, and for Contingent Summons for Witness to Testify in Another State, the Application to Secure Attendance of a Person Outside the State as a Witness in a Criminal Action in the State, and the Certificate for Attendance of Witness from Colorado State.

         In the Colorado court, Lewis filed an "Acceptance of Service and Waiver of Hearing, " in which he acknowledged service of the above-listed documents, waived his right to a show cause hearing, and agreed to testify at Bennett's trial. On March 18, 2014, the day on which Bennett's trial was scheduled to begin, Bennett pled guilty in exchange for a sentence of life imprisonment with all but thirty years suspended. On the same day, Bennett agreed to testify about his involvement in the murder and made a proffer in which he implicated Lewis as an accomplice to Bernadzikowski's murder. On March 19, 2014, after an investigation, Lewis, who had been in Maryland to testify against Bennett, was arrested. At the time of his arrest, Lewis did not assert the exemption from arrest under CJ § 9-304(a).

         Circuit Court Proceedings in Lewis v. State

         In the circuit court, the State charged Lewis with first-degree murder of Bernadzikowski and conspiracy to commit first-degree murder of Bernadzikowski. The evidence adduced at trial showed that Bennett and Lewis had been childhood friends in Colorado and attended the Denver School of Performing Arts together. In 2000, the two devised a plan to make money that involved placing online advertisements for "cleaning services, " a cover term for contract killings. According to Lewis, the pair planned to defraud potential customers by taking money and not actually performing any murders. By contrast, according to Bennett, there was no intent to deceive; he and Lewis intended to commit murder in exchange for payment.

         Specifically, at trial, as a witness for the State, Bennett testified that Lewis was responsible for designing and placing the online advertisement. In or before Spring 2000, as a result of the internet advertisement, Stephen Cooke ("Cooke"), a man living in Dundalk, Maryland contacted Lewis and requested a contract killing of Bernadzikowski, who was his roommate and girlfriend, for $60, 000.[3] Cooke wanted Bernadzikowski's death to look like an accident so that he would be able to collect the proceeds from an insurance policy on Bernadzikowski's life. Cooke provided his address to Lewis, who gave Bennett a map from Baltimore/Washington International Airport[4] ("BWI") to Cooke's and Bernadzikowski's house. Natalie Ott ("Ott"), one of Bennett's high school classmates, drove him and Lewis to an airport in Colorado. Using a ticket that Lewis had bought, Bennett flew from Colorado to BWI. Because he had no money, Bennett started walking from BWI to Dundalk. While Bennett was walking along a highway, a law enforcement officer stopped him. Bennett told the law enforcement officer that he was stranded, and the officer gave him a ride to Dundalk.

         Bennett stayed in Dundalk for weeks, stealing food and sleeping at a bus stop, in a van, or wherever else he could find a place to sleep. Two or three times a day, Bennett called Lewis via pay phones, asking whether Cooke had e-mailed Lewis, or whether Lewis had any information to share. One day, Cooke e-mailed Lewis to arrange a meeting with Bennett. At the meeting, Cooke told Bennett that, at some point, he would leave a key outside the house so that Bennett could enter the house and kill Bernadzikowski. On another day, Cooke and Bennett met again; Bennett asked for an up-front payment; and Cooke said that he would not have any money until he collected the proceeds from the insurance policy on Bernadzikowski's life.

         A day or two after Cooke's and Bennett's second meeting, Bennett telephoned Lewis, who said that Cooke had e-mailed him, stating that he would drop off Bernadzikowski in about twenty minutes and that a key was outside of the house. Bennett went to Cooke's and Bernadzikowski's house, found the key, entered the house, and waited. Within three or four minutes, through the window, Bennett saw Cooke drive up outside the house, and saw Bernadzikowski get out of the car. Bennett waited behind the front door. Bernadzikowski entered the house, and Bennett put his hand over her mouth and unsuccessfully tried to break her neck. Then, Bennett put his hand around Bernadzikowski's throat and started choking her. Bernadzikowski struggled and scratched Bennett's face, but she eventually became unconscious. To make sure that Bernadzikowski was dead, Bennett cut her throat with a knife.

         To make it seem as though a burglary had occurred, Bennett went upstairs and ransacked the bedroom. To confuse law enforcement officers, Bennett used Bernadzikowski's lipstick to write "Number 1" on the wall. Bennett waited approximately thirty to thirty-five minutes, left the house, and threw the key and knife into a dumpster. Bennett telephoned Lewis and informed him that he had killed Bernadzikowski. Lewis told Bennett that he was using a satellite to ensure that no law enforcement officers were in the area. After returning to Colorado, Bennett told Lewis about the killing in more detail. According to Bennett, Cooke never paid him, and Bennett and Lewis had never discussed simply stealing money from Cooke without killing Bernadzikowski.

         As a witness for the State, Sergeant Alan Meyer ("Sergeant Meyer") of the Baltimore County Police Department testified that, on April 20, 2000, Sergeant Meyer responded to 2008 Codd Avenue in Dundalk to investigate Bernadzikowski's death. An investigation revealed that Bernadzikowski's boyfriend, Cooke, had taken out a $700, 000 insurance policy on Bernadzikowski's life, and that she was preparing to end their relationship. At the time of the initial investigation, DNA tests conducted on Bernadzikowski's fingernail clippings revealed DNA belonging to Bernadzikowski and an unknown individual.

         Years later, in September 2011, after advances in DNA technology, DNA testing of Bernadzikowski's fingernails revealed that the DNA profile of the previously unknown individual matched Bennett, causing him to become a suspect. Additionally, Sergeant Meyer learned that, on March 30, 2000, a Maryland State Trooper had stopped Bennett while he was walking toward I-895. Sergeant Meyer traveled to Colorado, interviewed Bennett, and obtained Lewis's name from Bennett. Sergeant Meyer believed Lewis to be a witness and interviewed him in Colorado on four separate occasions. On January 19, 2012, Bennett was arrested.

         As a witness for the State, Ott, Bennett's high school classmate, testified that Bennett and Lewis were best friends. In Spring 2000, Ott drove Bennett and Lewis to Denver International Airport. On the way, Bennett said that he and Lewis were two of the biggest members of organized crime in Colorado; that Bennett was going to Baltimore to do a job; and that he and Lewis were going to make a lot of money.

         As a witness for the State, Rebecca Love ("Love"), the mother of Lewis's two children, testified that, in Spring 2000, while she and Lewis were in her apartment, Lewis told her that an out-of-State woman owed him money and had "reneged[, ]" and that he had sent Bennett to kill her while he watched on his computer via satellite. Love ran out of her apartment and cried. Lewis followed Love and told her that he had made up the planned killing to impress her.

         As a witness on his own behalf, Lewis testified that he and Bennett developed a "silly scam" in which they would accept money for contract killings without following through. Lewis acknowledged that he created an online advertisement for "professional and discreet cleaning services, " and that in response to the online advertisement, Cooke offered to pay $20, 000 up front, and another $20, 000 upon completion, for a contract killing of Bernadzikowski. Cooke e-mailed Lewis to provide his and Bernadzikowski's address, and Bennett flew to Baltimore, where he was supposed to collect the up-front payment from Cooke. Once Bennett was in Baltimore, over time, Lewis heard from Bennett and Cooke that Cooke wanted to lower the amount that he would pay up front, and eventually that Cooke wanted to cancel the contract killing. Lewis also heard from Bennett that he accosted and threatened Cooke, who then agreed to proceed with the contract killing. After Bennett returned to Colorado, he told Lewis that he had entered Cooke's and Bernadzikowski's house, where he planned to extort money from Cooke. According to Lewis, Bennett said that, after Bernadzikowski entered the house instead, Bennett panicked and killed her. Lewis testified that he was "horrified at what had transpired[, ]" that he had never intended to carry out a murder, and that he had never believed that Bennett would do so. Lewis denied having told anyone else about his and Bennett's scam.

         A jury found Lewis guilty of first-degree murder of Bernadzikowski and conspiracy to commit first-degree murder of Bernadzikowski. The circuit court sentenced Lewis to life imprisonment for first-degree murder, and five concurrent years of imprisonment for conspiracy to commit first-degree murder. Lewis noted an appeal.

         Lewis did not allege, pretrial or during trial, that his arrest violated the Maryland Uniform Act to Secure the Attendance of Witnesses from Without State in Criminal Proceedings.

         Subsequent Procedural History

         On appeal, for the first time, Lewis raised the exemption from arrest under CJ § 9-

          304(a). Specifically, before the Court of Special Appeals, Lewis contended that the State's prosecution of him violated CJ § 9-304(a), and argued that, accordingly, the circuit court lacked subject-matter jurisdiction and improperly exercised personal jurisdiction over Lewis.

         The Court of Special Appeals disagreed and affirmed the convictions, holding that the circuit court had subject matter jurisdiction and properly exercised personal jurisdiction. See Lewis v. State, 229 Md.App. 86, 101, 143 A.3d 177, 186-87 (2016). Specifically, the Court of Special Appeals concluded that the circuit court had subject matter jurisdiction because Bernadzikowski's body had been found in a residence in Dundalk, Maryland. See id. at 101, 143 A.3d at 186. The Court of Special Appeals held that an alleged violation of CJ § 9-304(a) does not result in a lack of subject matter jurisdiction, and that the alleged violation is subject to Maryland Rule 4-252, and is waived if not raised in a timely manner. See id. at 107-08, 143 A.3d at 190. The Court of Special Appeals held that the circuit court had personal jurisdiction over Lewis because "[Lewis] was served in the State, and thus, the State acquired personal jurisdiction over him." Id. at 103, 143 A.3d at 188. The Court concluded that Lewis's challenge to the exercise of personal jurisdiction was waived. See id. at 103, 108, 143 A.3d at 188, 190. The Court of Special Appeals determined that the issue was whether, in light of the alleged violation of CJ § 9-304(a), personal jurisdiction should have been exercised. See id. at 103, 143 A.3d at 188. The Court of Special Appeals concluded that "it is settled that the defense of lack of personal jurisdiction, unlike subject matter jurisdiction, is waived unless raised in a mandatory preliminary motion[.]" Id. at 103, 143 A.3d at 188 (citation, brackets, and internal quotation marks omitted).

         Lewis filed a petition for a writ of certiorari, which this Court granted. See Lewis v. State, 450 Md. 420, 149 A.3d 547 (2016).

         DISCUSSION

         The Parties' Contentions

         Lewis contends that the circuit court improperly exercised personal jurisdiction over him in violation of CJ § 9-304(a), which provides that a person who comes into the State on an out-of-State summons shall not be subject to arrest or the service of process in matters that arose before his or her entrance into the State.[5] Lewis argues that, as such, his convictions should be vacated and he should be allowed to return to Colorado, at which point Maryland may elect to initiate extradition proceedings against him. Lewis acknowledges that a court's ability to exercise personal jurisdiction over a criminal defendant is not generally affected by the manner in which a defendant is brought into court. Lewis asserts, however, that the Doctrine of Specialty-which provides that a court cannot exercise personal jurisdiction over a person who is extradited to the United States for an offense that is not specified in the demand for surrender of the person-is an exception to the general rule, and applies in this case. Lewis maintains that, like the Doctrine of Specialty in extradition matters, CJ § 9-304(a) prevents the circuit court from exercising personal jurisdiction over him for any matter other than the purpose for which he was brought to Maryland.

         Lewis concedes that he did not preserve the issue as to the alleged violation of CJ § 9-304(a) for appellate review, but asks us to exercise our discretion under Maryland Rule 8-131(a) to review the unpreserved issue because of this case's "extraordinary circumstances." Lewis contends that both the prosecutor and circuit court were or should have been aware that his prosecution violated CJ § 9-304(a), and that the circuit court and the State had a substantial opportunity to correct the error. Lewis argues that the purpose of fairness in judicial proceedings would be ...


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