Lewis v. State

JAMES R. EYLER, J. Heidi Bernadzikowski was murdered on April 20, 2000. In 2012, Alexander Charles Bennett was charged with the murder. The State identified Grant Agbara Lewis, appellant, a resident of Colorado, as a material witness. Pursuant to the Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings, Md. Code (1973, 2013 Repl.

Vol.), §§ 9-301-307 of the Courts and Judicial Proceedings Article (the “Uniform Act”), the State obtained an order and summons from a Colorado court requiring appellant to appear and testify at Mr. Bennett’s trial. When appellant appeared in court on the day set for trial, Mr. Bennett pleaded guilty. In his proffer of facts, Mr. Bennett implicated appellant as an accomplice. Appellant was arrested.

In the Circuit Court for Baltimore County, he was charged with murder and conspiracy. A jury convicted him, and the court sentenced him to life imprisonment plus five years. The Uniform Act, discussed more fully below, provides immunity from arrest and service of process for witnesses who come into the State in obedience to a summons. On appeal, appellant argues that the State violated the Uniform Act.

Recognizing that he did not raise the issue in circuit court, he contends that, based on the violation, the circuit court lacked subject matter and personal jurisdiction and that jurisdictional issues can be raised at any time. We hold that the circuit court had both subject matter and personal jurisdiction. Conceptually, therefore, the question becomes whether the court erred in exercising its jurisdiction. The alleged error is one of law and subject to waiver.

Thus, we need not reach the merits, ie., whether the State violated ⁹⁰ the Uniform Act and, if so, the effect of the violation and appropriate remedy. OVERVIEW On May 7, 2012, an indictment was filed in circuit court against Mr. Bennett, charging him with the murder of Ms. Bernadzikowski. See State v. Bennett, No. 03K12002639, Baltimore County Circuit Court. 1 As detailed below, initially the State identified appellant, a resident of Denver, Colorado, as a material witness in Mr. Bennett’s case. The prosecutor took steps to compel appellant to appear and testify at Mr. Bennett’s trial.

Pertinent to the issue raised on appeal, we have reviewed, and the State accepts, the following from appellant’s recitation of facts: 2 The steps that the State took to secure Appellant’s presence are consistent with the typical steps taken to secure the presence of an out-of-state witness. First, the State’s Attorney’s Office obtained from Baltimore County Circuit Court Judge Kathleen Gallogly Cox a Certificate for Attendance of Witness From Colorado State (“Certificate”), certifying that Appellant was a material and necessary witness in Bennett’s prosecution, and the trial dates when Appellant’s presence would be required.[ 3 ] App. A. The Certificate was then provided to the District Attorney’s ⁹¹ Office for the Second Judicial District of Colorado. Id. As a result of the Certificate, In Re: Request for Summons Under Uniform Act to Secure Witness From Outside the State pursuant to § 16-9-202, Regarding Witness, Case No. 2014CV30367 (Colo.Dist.Ct.2014), was docketed in the Colorado court.

App. A. On January 28, 2014, the District Attorney’s Office filed the required motion for a hearing, which gave Appellant the opportunity to be heard as to whether he was a material and necessary witness in Bennett’s case. Id. On January 29, 2014, Chief Judge Michael A. Martinez of the Colorado court, citing the Certificate issued by Judge Cox, issued a summons ordering Appellant to appear as a State’s witness in Bennett’s trial. App. B. The Colorado order and summons included the following language: 4) That the laws of the state in which the prosecution is pending, and of any other state through which the witness may be required to pass by ordinary course of travel, will give to the witness protection from arrest and service of civil and criminal process in connection with matters which arose before entering into that state under this summons; ...

Appellant’s recitation of facts included the following: Judge Martinez’s summons and accompanying order was to become effective upon either the signing and filing of an Acceptance of Service and Waiver of Hearing or the issuance of a summons after a hearing. Id. The summons and order in Appellant’s case became effective on February 7, 2014, after Appellant signed the Acceptance of Service and Waiver of Hearing and it was filed with the court. App. D. Appellant arrived in Maryland some time prior to March 18, 2014, the first day of Mr. Bennett’s trial.

As noted, Mr. Bennett pleaded guilty to first degree murder. He was sentenced to life imprisonment with all but thirty years suspended. As part of the plea agreement, Mr. Bennett agreed to proffer the details of Ms. Bernadzikowski’s murder and to testify in any further proceedings. After Mr. Bennett impli ⁹² cated appellant as an accomplice, the State filed an indictment in circuit court, charging appellant with first degree murder and conspiracy to commit first degree murder.

BACKGROUND Although not necessary for resolution of this appeal, as general background information, we shall summarize the evidence at appellant’s trial. On the evening of April 20, 2000, Baltimore County police responded to a 911 call from 2008 Codd Avenue in Dundalk, Maryland. They found Steven Cooke holding the dead body of his girlfriend, Ms. Bernadzi-kowski. Police learned that Mr. Cooke had obtained a $700,000 insurance policy on Ms. Bernadzikowski’s life approximately two months before her death.

Mr. Cooke was the primary beneficiary on the policy. Several witnesses testified that Ms. Bernadzikowski had planned to leave Mr. Cooke. Much of the State’s evidence at trial came from Mr. Bennett. Mr. Bennett set up an online advertisement for “professional and discreet cleaning services.” Mr. Cooke contacted him via email.

Mr. Bennett, appellant, and Mr. Cooke planned a murder-for-hire whereby Mr. Bennett and appellant agreed to murder Ms. Bernadzikowski, in exchange for $60,000 from the proceeds of the life insurance policy. Appellant and Mr. Bennett discussed ways to kill Ms. Bernadzikow-ski without it being detected, including breaking her neck to make her death look like an accident. After reaching agreement with Mr. Cooke, appellant bought Mr. Bennett a plane ticket from Colorado to Baltimore, and Natalie Ott, a friend, drove both of them to the airport the day Mr. Bennett left. Appellant gave Mr. Bennett a map to the home where Mr. Cooke and Ms. Bernadzikowski were living.

After he arrived in the Baltimore area in March 2000, Mr. Bennett began watching the victim, communicating his observations to appellant who was in Colorado. 4 Eventually, appel ⁹³ lant put Mr. Bennett in contact with Mr. Cooke. Messrs. Bennett and Cooke met twice: once at the residence of Mr. Cooke and Ms. Bernadzikowski, and another time at a bus stop. At the residence, Mr. Cooke showed Mr. Bennett around the house and made clear that he wanted the murder to look like an accident for purposes of the potential insurance claim.

Mr. Bennett told Mr. Cooke that he was going to contact appellant to coordinate completion of the crime. Later, at the bus stop, Mr. Bennett told Mr. Cooke that his “boss,” referring to appellant, was getting “angry” and wanted to move forward with the crime so that they could get paid. On the day planned for the murder, Mr. Bennett called appellant. Appellant told Mr. Bennett that Mr. Cooke was going to drop Ms. Bernadzikowski off at their residence in twenty minutes.

Mr. Bennett was to go to the residence, where a key to the door would be waiting, and then call appellant and inform him whether the crime had occurred as planned. Mr. Bennett went to the residence, found the key, gained entry, and waited by the front door. He watched through a window as Mr. Cooke and Ms. Bernadzikowski arrived. While Mr. Cooke remained behind, Ms. Bernadzikowski exited the vehicle and entered the residence.

At that point, Mr. Bennett grabbed her from behind, put his hand over her mouth, and attempted to break her neck. When that did not work, he wrapped his hands around her throat and choked her until she was unconscious. He put her down and went to find a knife. Returning with a knife, and being unsure whether she was dead, Mr. Bennett cut her throat.

During the struggle, Ms. Bernadzikowski scratched Mr. Bennett’s face and lip. After the murder, Mr. Bennett went through the house, trying to create a scene “just to confuse the police.” This included writing the number “1” on the wall in lipstick. Mr. Bennett stayed in the house for about thirty minutes after the ⁹⁴ murder. When asked why, he replied that appellant suggested that, if he did not hear the police after thirty minutes, he would be okay.

After he left the residence, Mr. Bennett disposed of the knife and the key, and then called appellant. Mr. Bennett told appellant the crime did not go entirely as planned, but that it was done. Appellant informed Mr. Bennett that he was monitoring police activity in the area and that “the coasts were clear.” Appellant tried, unsuccessfully, to arrange accommodations for Mr. Bennett in Baltimore using a fake credit card. After sleeping in an alley, Mr. Bennett again called appellant and asked him to call Mr. Bennett’s sister to help Mr. Bennett return to Colorado.

Appellant later contacted Mr. Bennett again and told him it was okay to speak to his sister. Mr. Bennett returned to Colorado. Mr. Bennett and appellant were never paid any of the insurance proceeds. Other witnesses corroborated portions of Mr. Bennett’s testimony.

Ms. Ott knew both the appellant and Mr. Bennett. In the spring of 2000, she drove both men to the airport, and was told that Mr. Bennett was going to Baltimore to “make a lot of money.” Rebecca Love, the mother of two of appellant’s children, testified that appellant told her that he sent Mr. Bennett to kill a woman who lived out-of-state because she owed him money. Ms. Love knew that Mr. Bennett and appellant were “extremely close friends,” and that they “[d]id everything together.” In 2000, DNA testing of samples taken from under the victim’s fingernails did not result in an identification of the murderer. In 2011, DNA testing of additional samples, with improved technology, resulted in the identification of Mr. Bennett.

Detective Gary Childs testified that, in approximately January 2012, after Mr. Bennett’s DNA was found under the victim’s fingernails, he conducted a search with the Maryland State Police and discovered the record of Mr. Bennett’s stop by the MTA Police in March 2000. The investigators then decided to interview Mr. Bennett in Colorado. ⁹⁵ In January 2012, during the course of their interview with Mr. Bennett, appellant’s name surfaced as a possible alibi witness. The police then interviewed appellant, also in Colorado, solely as a witness in connection with Mr. Bennett’s case. Following these interviews, the State’s Attorney charged Mr. Bennett with the murder and took steps to compel appellant to come to Baltimore County to testify as a material witness in the case against Bennett.

As part of his plea agreement with the State, Mr. Bennett agreed to plead guilty and to testify truthfully about his role in the murder of Ms. Bernadzikowski. Mr. Bennett provided details of appellant’s role in the murder. Based on this new information, police determined that appellant was not simply a witness, but a suspect. Detective Childs then reinterviewed appellant, explaining: On all the previous interviews Mr. Lewis was viewed as a potential alibi witness for the Defendant and he was giving us pieces of the information regarding Mr. Bennett.

After the 18th proffer with his attorney present, there were some questions I needed to ask Mr. Lewis that tentatively would put him as a defendant in this case. So I felt that even though he flew here voluntarily, possibility of him not leaving voluntarily and being arrested was pretty good. So because it would be viewed that he may be in custody, in my custody and not allowed to leave, in a custodial interrogation you have to advise the person that you are talking to of their Miranda rights against self-incrimination and his right to an attorney. So knowing the facts that I knew and the previous statements that had been made, it was my belief that Mr. Lewis was involved and that I needed to Mirandize him before I questioned him.

After the State rested, appellant testified on his own behalf as follows. After he and Mr. Bennett watched a movie about assassins-for-hire, Mr. Bennett set up an online advertisement for “professional and discreet cleaning services.” The idea was to gain employment from the ad, get paid, and then leave before actually committing any further crime. Appellant testified that the scheme “was basically a con.” ⁹⁶ After the ad was posted, Mr. Cooke contacted appellant via email. The initial agreement with Mr. Cooke called for a complete payment of $40,000 with $20,000 to be paid as a deposit.

Pursuant to the plan between appellant and Mr. Bennett, Mr. Bennett was to travel to Baltimore, collect the deposit, return to Colorado, and then inform the authorities about Mr. Cooke. Appellant maintained there was never any intent to actually commit murder. Appellant agreed that he purchased a ticket for Mr. Bennett to go to Baltimore. He also confirmed that Mr. Cooke sent him documentation and information about the victim, Ms. Bernadzikowski.

Mr. Bennett then traveled to Baltimore and made contact with Mr. Cooke. Appellant testified that, at some point before the murder, he told Mr. Bennett to come home because the plan was not working. He also stated that Mr. Cooke contacted him before the murder to try and cancel the contract. Nevertheless, Mr. Bennett went ahead with the murder, informing appellant only after he, Mr. Bennett, returned to Colorado.

Appellant testified that he did not believe Mr. Bennett would actually complete the crime. 5 DISCUSSION Appellant contends that the circuit court lacked both subject matter and personal jurisdiction. Recognizing that he did not raise these arguments prior to appeal, he contends they are not subject to waiver. On the merits, appellant contends the State violated the Uniform Act, that his convictions are void and must be vacated, and that he must be permitted to return to Colorado. The State responds that appellant’s claim concerns a defect in the institution of prosecution, not jurisdiction, and that, by failing to raise the issue before trial, it is waived.

The State also argues that appellant’s position fails on the ⁹⁷ merits, and even if it had merit, he should not be released from custody. The Court of Appeals has noted the history of the Uniform Act as follows: ... [The] Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings ... was promulgated over half a century ago and has been adopted in substance in each state, the District of Columbia, the Virgin Islands, and Puerto Rico. See Uniform Act to Secure Attendance of Witnesses, 11 U.L.A. 1 (1974, 1993 pocket part). Jurisdictions have adopted variations to the Uniform Act, but the gist and goals of the model law remain intact. “The essence of the Uniform Act is to create a community of jurisdictions which will honor the request of fellow members for the appearance of witnesses at criminal proceedings under the conditions specified in the Act.” People v. Superior Court, 224 Cal.App.3d 1405 , 274 Cal.Rptr. 586, 589 (1990). “The purpose of the Uniform Act ... is to secure at trial the attendance ... of a material witness residing in another state.” State v. Duncan, 648 S.W.2d 892, 893 (Mo.App.1983).

See also State v. Lesco, 194 Kan. 555 , 400 P.2d 695, 699 (1965), cert. denied, 382 U.S. 1015 , 86 S.Ct. 628 , 15 L.Ed.2d 529 (1966) (“The Uniform Act was intended as a matter of comity between states to enable states to obtain material witnesses for criminal prosecutions.”). Long ago, shortly after the Uniform Act was promulgated, it was recognized that “[o]bviously the object of [a uniform statute for the attendance of witnesses enacted by New Jersey] is to promote the enforcement of the criminal laws and the administration of justice in criminal proceedings in the several states.” People of State of New York v. Parker, 16 N.J.Misc. 471, 1 A.2d 54, 55 (Cir.Ct.1936). Maryland’s version of the Uniform Act was originally adopted in 1937 and is now codified as § 9-301 through § 9-306 of the Courts and Judicial Proceedings Article (1973, 1989 Repl. Vol.).

State v. Breeden, 333 Md. 212, 222-23 , 634 A.2d 464 (1993). As further explained by this Court: ⁹⁸ The Uniform Act provides what is essentially a two-stage process for obtaining the compulsory attendance of an out-of-State witness in criminal prosecutions and grand jury investigations. The first stage originates in the requesting State (Maryland). A person desiring the attendance of an out-of-State witness may approach the appropriate court in his State and, if he is able to convince that court that such be the case, obtain from it a formal certificate under seal that the individual whose presence is sought “is a material witness in a prosecution pending in [the court] or in a grand jury investigation which has commenced or is about to commence .... ” The certificate, if it is issued, must also specify “the number of days the witness will be required.” Md. Code, Courts art. § 9-303(a).

The second stage is to present the certificate “to a judge of a court of record in the county in which the witness is found.” Id. That judge, upon such presentation, schedules a hearing on the matter. At that hearing, which the witness is directed to attend, the judge considers and determines whether the certificate presented to him has merit — whether the witness is material and necessary to a prosecution or grand jury investigation, whether it would cause any undue hardship on the witness to attend as requested, and whether the witness will be afforded the immunity from arrest and civil process required by the Act. If the judge finds that these statutory prerequisites are satisfied, he “shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify ... at a time and place specified in the summons.” Md. Code, Courts art., § 9-302(b); Va.Code, § 19.2-274.

If, after being tendered the appropriate traveling expenses and witness fee, the witness “fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this [i.e., the sending] State.” Md. Code, Courts art., § 9-302(d); Va.Code, § 19.2-276. ⁹⁹ In re Special Investigation No. 219, 52 Md.App. 17, 22-23 , 445 A.2d 1081 , cert. denied, 294 Md. 243 (1982); see also Muhammad v. State, 177 Md.App. 188, 275 , 934 A.2d 1059 (2007) (“The process for obtaining the attendance of out-of-state witnesses is spelled out in Maryland Code, Courts and Judicial Proceedings Article, § 9-303(a), the Maryland Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings”), cert. denied, 403 Md. 614 , 943 A.2d 1245 (2008). Section 9-304 of the Uniform Act provides immunity from arrest and service of process, as follows: If a person comes into this State in obedience to a summons directing him to attend and testify in this State he 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 entrance into this State under the summons. Courts and Jud. Proc. § 9-304(a); see also Courts and Jud.

Proc. § 6-305(a) (“A nonresident person who is within the State for the purpose of testifying in or prosecuting or defending an action may not be served with process”). Generally, the reason witnesses are sometimes granted immunity is explained in the following: The general rule that witnesses, suitors, and their attorneys, while in attendance in connection with the conduct of one suit, are immune from service of process in another, is founded, not upon the convenience of the individuals, but