Lewis v. State
| Decision Date | 24 April 2017 |
| Docket Number | No. 61,61 |
| Parties | GRANT AGBARA LEWIS v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
MARYLAND UNIFORM ACT TO SECURE ATTENDANCE OF WITNESSES FROM WITHOUT STATE IN CRIMINAL PROCEEDINGS - MD. CODE ANN., CTS. & JUD. PROC. § 9-304(a) - WAIVER OF ISSUE AS TO VIOLATION - Court of Appeals held that out-of-State witness who enters Maryland to testify at trial in criminal case pursuant to summons under Maryland Uniform Act to Secure Attendance of Witnesses from Without State in Criminal Proceedings, and who is arrested and charged with crime in Maryland, waives issue as to violation of Md. Code Ann., Cts. & Jud. Proc. § 9-304(a) by failing to raise 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 general issue. Court of Appeals declined to exercise discretion pursuant to Maryland Rule 8-131(a) to review matter.
Circuit Court for Baltimore County
Case No. 03-K-14-001586
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
Opinion by 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 exemption2 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, enteredMaryland 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.
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 Attendanceof 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 atBennet'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).
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 Airport4 ("BWI") toCooke'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...
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