Lewis v. State

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2564

September Term, 2014

GRANT AGBARA LEWIS

v.

STATE OF MARYLAND

Wright,
Graeff,
Eyler, James R.
(Retired, Specially Assigned),

JJ.

Opinion by Eyler, James R., J.

Filed: July 28, 2016
 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, i.e., whether the State violated 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

1
We take judicial notice of the docket entries from State v. Bennett, found on the
Maryland Judiciary CaseSearch website, pursuant to Maryland Rule 5-201. See Marks v.
Criminal Injuries Comp. Bd., 196 Md. App. 37, 79 n. 17 (2010) (“We take judicial notice
that records of the Maryland Judiciary are made available by the Administrative Office of
the Courts on the Judiciary website”) (citing http://www.mdcourts.gov); see also
http://casesearch.courts.state.md.us/casesearch/
2
This Court granted Appellant’s Motion to Supplement the Record with the pertinent
documents from In re: Request for Summons Under Uniform Act to Secure Witness From
Outside the State, pursuant to 16-9-202, C.R.S., Regarding Witness, Case No.
2014CV30367 (Colo. Dist. Ct. 2014).

2
 when Appellant’s presence would be required.[3] App. A. The Certificate
was then provided to the District Attorney’s 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

3
The State also obtained a Certificate for Attendance of Witness from Colorado
State Clerk’s Exemplification. App. A.

3
agreement, Mr. Bennett agreed to proffer the details of Ms. Bernadzikowski’s murder and

to testify in any further proceedings. After Mr. Bennett implicated 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.

Bernadzikowski. 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. Bernadzikowski without it being detected, including breaking her neck to make

her death look like an accident.

4
 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, appellant 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.

4
Mr. Bennett stated that, after he arrived at BWI Airport, he started walking to
Dundalk because he did not have any other means of transportation. He was stopped by an
MTA police officer while walking on a highway. That stop later became part of the
evidence connecting Bennett to the murder.

5
 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 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

6
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.

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

7
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.”

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

8
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

5
The State Judiciary website reveals that, on or around August 20, 2015, Mr. Cooke
was convicted by a jury of first degree murder and sentenced to life imprisonment. Circuit
Court for Baltimore County Case Number 03K14001589. Mr. Cooke appealed to this
Court. That case is pending, Case Number 1470, September Term 2015.

9
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 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 (1993).

10
 As further explained by this Court:

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.

In re Special Investigation No. 219, 52 Md. App. 17, 22-23, cert. denied, 294 Md. 243

(1982); see also Muhammad v. State, 177 Md. App. 188, 275 (2007) (“The process for

obtaining the attendance of out-of-state witnesses is spelled out in Maryland Code, Courts

11
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 (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 of the court itself. As commonly stated and applied, it
proceeds upon the ground that the due administration of justice requires that
a court shall not permit interference with the progress of a cause pending
before it, by the service of process in other suits, which would prevent, or the
fear of which might tend to discourage, the voluntary attendance of those
whose presence is necessary or convenient to the judicial administration in the
pending litigation. In Stewart v. Ramsay, the court said at page 130, of 242
U.S., 37 S. Ct. 44, 46, quoting from Parker v. Hotchkiss, Fed. Cas. No. 10,-
739: ‘The privilege which is asserted here is the privilege of the court, rather
than of the defendant. It is founded in the necessities of the judicial
administration, which would be often embarrassed, and sometimes

12
 interrupted, if the suitor might be vexed with process while attending upon the
court for the protection of his rights, or the witness while attending to testify.’

Lamb v. Schmitt, 285 U.S. 222, 225 (1932) (some citations omitted).

With respect to subject matter jurisdiction:

Circuit courts of this state . . . derive their jurisdiction from Maryland
Constitution, Art. IV, § 20. They are courts of original general jurisdiction,
see Birchead v. State, 317 Md. 691, 697, 566 A.2d 488, 491 (1989), First
Federated Com. Tr. [v. Commissioner], 272 Md. [329,] 335 [(1974)],
authorized to hear all actions and causes, other than those particularly
prescribed by statute or constitutional provision for other fora. Id. More
particularly, pursuant to Maryland Cts. & Jud. Proc. Code Ann. § 1-501
(1973), 1989 Repl. Vol.), they are

the highest common-law and equity courts of record exercising
original jurisdiction within the State. Each has full
common-law and equity powers and jurisdiction in all civil and
criminal cases within its county, and all the additional powers
and jurisdiction conferred by the Constitution and by law,
except where by law jurisdiction has been limited or conferred
exclusively upon another tribunal.

Powell v. State, 324 Md. 441, 446 (1991); see also In re Nahif A., 123 Md. App. 193, 212

(1998) (“Without reference to the nature of the jurisdiction of the court involved, a prima

facie presumption of jurisdiction arises from the exercise of it. It is presumed that

jurisdiction over the subject matter and parties has been rightfully acquired and exercised”)

(quoting 21 C.J.S. Courts § 74 at 91-92 (1990)), overruled on other grounds by In re

Antoine M., 394 Md. 491 (2006); 7 Maryland Law Encyclopedia, Courts § 9, p. 19-20

(2013) (“A court of general jurisdiction is presumed to have jurisdiction unless someone

13
proves that there is some valid constitutional or legislative enactment that has withdrawn

jurisdiction in a particular case”).

“Lack of subject-matter jurisdiction may be raised at any time.” Harris v. Simmons,

110 Md. App. 95, 113-14 (1996) (citing Gardner v. Board of County Comm’rs of St. Mary’s

County, 320 Md. 63 (1990)); see also Sewell v. United States, 406 F.2d 1289, 1292 (8th Cir.

1969) (observing that lack of subject matter jurisdiction, as opposed to personal jurisdiction,

may be raised at any time) (citing Pon v. United States, 168 F.2d 373, 374 (1st Cir. 1948)).

The circuit court possessed subject matter jurisdiction. Simply put, Ms.

Bernadzikowski’s body was found inside her residence in Dundalk, Maryland. See State v.

Butler, 353 Md. 67, 78 (1999) (recognizing that, for there to be territorial jurisdiction, “the

crime, or essential elements of it, must have occurred within the geographic territory of

Maryland”); see also State v. Cain, 360 Md. 205, 214 (2000) (“It is sometimes stated that

each offense has, for jurisdictional purposes, one key act or omission and that this element

must have taken place in the state where the prosecution is instituted”). Maryland has a

strong interest in prosecuting those responsible for Ms. Bernadzikowski’s murder.

Appellant has not rebutted the presumption that there was proper subject matter jurisdiction

in this case. See In re John F., 169 Md. App. 171, 181 (2006) (“[T]he burden is on the party

challenging subject matter jurisdiction to rebut that presumption”).

Appellant cites Evans v. Evans, 75 Md. App. 364, 372-75 (1988), but that case

supports our conclusion. In Evans, we distinguished between the fundamental jurisdiction

14
of a court to render a judgment and an error of law. The latter is subject to waiver. As the

Court of Appeals recently stated:

In a much later case where one of the parties asserted that a tribunal’s
decision, allegedly in violation of a statute, meant that the tribunal lacked
subject matter jurisdiction, Board of License Comm. v. Corridor, 361 Md.
403, 417-418, 761 A.2d 916, 923 (2000), the Court stated:

“Simply because a statutory provision directs a court . . .
to decide a case in a particular way, if certain circumstances are
shown, does not create an issue going to the court’s . . . subject
matter jurisdiction. There have been numerous cases in this
Court involving the situation where a trial court . . . has
jurisdiction over the subject matter, but where a statute directs
the court . . ., under certain circumstances, to exercise its
jurisdiction in a particular way, . . . and the tribunal erroneously
refuses to do so because an error of statutory interpretation or
an error of fact. In these situations, this Court has regularly
held that the matter did not concern the subject matter
jurisdiction of the trial court . . . .”

Tshiwala v. State, 424 Md. 612, 622 (2012).6

Thus, assuming a violation of the Uniform Act, the question is whether the court

should exercise its jurisdiction. If it erred in doing so, it was an error of law and is subject

to waiver. The distinction between lack of jurisdiction and the propriety of exercising it has

long been recognized.

In explaining the rationale for the mandate we issue in this case, it may be
well to recall for the reader that “‘[j]uridically, jurisdiction refers to two quite
distinct concepts: (i) the power of a court to render a valid [final judgment],

6
Appellant also argues that the issue is somehow akin to a violation of statute of
limitations. We note that such claims are an affirmative defense that also must be raised
prior to trial. See Brooks v. State, 85 Md. App. 355, 363-65 (1991).

15
 and (ii) the propriety of granting the relief sought. 1 Pomeroy, Equity
Jurisprudence (5th ed. 1941), Secs. 129-31.’” First Federated Com. Tr. v.
Comm’r, 272 Md. 329, 334, 322 A.2d 539, 543 (1974) (quoting Moore v.
McAllister, 216 Md. 497, 507, 141 A.2d 176, 182 (1958)). Thus, it is only
when a court lacked fundamental jurisdiction to render the judgment it did
that there is an absence of authority in the court so as to render its judgment
a nullity. First Federated Com. Tr. v. Comm’r, supra, 272 Md. at 334, 322
A.2d at 543. Accord, Pulley v. State, 287 Md. 406, 412 A.2d 1244, 1248–51
(1980); Parks v. State, 287 Md. 11, 17–19, 410 A.2d 597, 601-02 (1980);
Block v. State, 286 Md. 266, 270-73, 407 A.2d 320, 322-24 (1979).

Stewart v. State, 287 Md. 524, 526-527 (1980). Because appellant failed to raise the issue,

the circuit court never addressed the question of whether the statute was violated and, if so,

whether it should decline to exercise jurisdiction or invoke some other remedy.

With respect to appellant’s arguments relating to personal jurisdiction, appellant was

served in the State, and thus, the State acquired personal jurisdiction over him. Again, it is

a question of whether it should have been exercised. Regardless, it is settled that “[t]he

defense of lack of personal jurisdiction, unlike subject matter jurisdiction, is waived unless

raised in a mandatory preliminary motion . . .” Burnside v. Wong, 412 Md. 180, 195 (2010)

(citations omitted); see also Casey v. Mayor & City Council of Rockville, 400 Md. 259,

322-23 (2007) (recognizing that personal jurisdiction may be waived). This is because

personal jurisdiction flows from the Due Process Clause, and “recognizes and protects an

individual liberty interest. It represents a restriction on judicial power not as a matter of

sovereignty, but as a matter of individual liberty.” Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694, 702 (1982). Further, “[b]ecause the requirement of

personal jurisdiction represents first of all an individual right, it can, like other such rights,

16
be waived.” Id. at 703.

Appellant argues that, although authorities such as those in the preceding paragraph

establish that personal jurisdiction can be waived in civil cases, it cannot be waived in

criminal cases. Appellant relies on Md. Rule 8-131 which states, in pertinent part: “The

issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule

2-322, over a person may be raised in and decided by the appellate court whether or not

raised in and decided by the trial court.” Appellant argues that the rule refers only to Rule

2-322, a civil rule of procedure, and does not refer to any criminal rules of procedure.

Despite the absence of an express reference to criminal procedure in Rule 8-131,

personal jurisdiction may be waived in criminal cases. For example, in United States v.

Rosenberg, 195 F.2d 583 (2d Cir. 1952), cert. denied, 344 U.S. 838 (1952), the prosecution

of various individuals for espionage against the United States, Morton Sobell, one of the co-

defendants, argued that he was illegally abducted by Mexican police and brought across the

border to be tried along with the Rosenbergs on the underlying charges. Rosenberg, 195

F.2d at 602. Sobell argued this amounted to kidnapping and deprived the court of personal

jurisdiction. Id. The Second Circuit declined to consider the question, concluding that the

issue, one challenging a defect in the institution of the prosecution, had been waived. Id.

at 602-03. The Court held that “[p]ersonal jurisdiction can be waived in a criminal as well

as a civil case.” Id. at 603. See Ford v. United States, 273 U.S. 593, 606 (1927) (“A plea

to the jurisdiction must precede that plea of not guilty. Such a plea was not filed. The effect

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of the failure to file it was to waive the question of the jurisdiction of the persons of

defendants”); see also United States v. Hill, 210 F.3d 881, 884 (8th Cir. 2000) (observing

that personal jurisdiction in a criminal case may be waived by appearing without objection);

Glynn v. EDO Corp., 641 F.Supp.2d 476, 487-88 (D. Md. 2009) (recognizing that the

Fourth Circuit has held that personal jurisdiction may be waived) (citing Bethlehem Steel

Corp. v. Devers, 389 F.2d 44, 46 (4th Cir. 1968)). As explained by another appellate court:

Jurisdiction over the subject matter, of course, could not be conferred by
consent or waiver, but no reason appears why an accused could not subject
himself to the court’s personal jurisdiction. The procedural safeguards
spelling out the method whereby a court obtains jurisdiction over the person
of an accused are all designed for his protection. If he elects not to avail
himself of the established procedural rights there appears to be none who
should be heard to complain.

People v. Eaton, 459 N.W.2d 86, 88 (Mich. Ct. App. 1990) (citation omitted), aff’d, 479

N.W.2d 639 (Mich. 1992). See also United States v. Anderson, 472 F.3d 662, 666 (9th Cir.

2006) (“[T]he means used to bring a criminal defendant before a court do not deprive that

court of personal jurisdiction over the defendant”) (citing United States v. Alvarez-Machain,

504 U.S. 655, 661-62 (1992) (in turn citing and quoting Ker v. Illinois, 119 U.S. 436 (1886);

Frisbie v. Collins, 342 U.S. 519 (1952)).

Not only may personal jurisdiction be waived, but a claim of limited immunity from

arrest or service of process may be waived by failure to file timely a proper challenge. See

Zeller v. Cumberland Truck Sales, 253 S.E.2d 111, 112 (S.C. 1979) (“The exemption or

immunity from service of process, afforded under Section 19-9-110, is a personal privilege

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or exemption and may be waived by the person otherwise entitled thereto”) (citations

omitted); see also 22 C.J.S., Criminal Procedure and Rights of Accused § 49 at 327 (2016)

(“Since exemption from arrest is merely a personal privilege, it may be waived, and a party

who goes to trial without claiming a privilege from arrest by plea or motion waives any such

privilege.”) (footnotes omitted); see generally, Ex parte Emmett, 7 P.2d 1096, 1100 (Cal.

Ct. App. 1932) (stating, in a case where a state assemblyman claimed exemption from arrest,

that “it appears to be very well settled, whether in civil or criminal cases, the exemption

being a personal privilege, unless it is claimed by plea or motion, it is waived, and, when one

goes to trial upon the plea of not guilty of the offense charged, no question of exemption

enters into the cause”); People v. Rickelman, 240 N.E.2d 708, 709 (Ill. App. Ct. 1968)

(stating, in a case where an attorney claimed a privilege from a charge of speeding while on

his way to court, pursuant to a relevant statute, that “[t]he claim of privilege from arrest is

waived by the failure of the defendant to insist upon it at the first opportunity”).

The Supreme Court has addressed waiver under the federal counterpart to our state

rule:

The waiver provisions of Rule 12(b)(2) are operative only with respect
to claims of defects in the institution of criminal proceedings. If its time limits
are followed, inquiry into an alleged defect may be concluded and, if
necessary, cured before the court, the witnesses, and the parties have gone to
the burden and expense of a trial. If defendants were allowed to flout its time
limitations, on the other hand, there would be little incentive to comply with
its terms when a successful attack might simply result in a new indictment
prior to trial. Strong tactical considerations would militate in favor of
delaying the raising of the claim in hopes of an acquittal, with the thought that
if those hopes did not materialize, the claim could be used to upset an

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 otherwise valid conviction at a time when reprosecution might well be
difficult.

Davis v. United States, 411 U.S. 233, 241 (1973). See United States v. Isaac Marquez, 594

F.3d 855, 858 (11th Cir. 2010), cert. denied, 560 U.S. 947 (2010) (“[a] challenge to personal

jurisdiction is a claim of defect in instituting the prosecution, and such a challenge is to be

raised pursuant to Federal Rule of Criminal Procedure 12.”); see also United States v.

Anderson, 472 F.3d 662, 668 (9th Cir. 2006) (“A motion to dismiss based on lack of

personal jurisdiction is one that must be made prior to trial to avoid its waiver”); United

States v. Grote, 632 F.2d 387, 388-89 (5th Cir. 1980) (holding that a failure to object to

personal jurisdiction in a criminal case, based on issuance of a faulty arrest warrant,

constitutes a waiver under Fed.R.Crim.P. 12), cert. denied, 454 U.S. 819 (1981); 1A Wright

& Leipold, Federal Practice & Procedure: Criminal 4th § 193, at 180 (2016 Supp.)

(“[J]urisdiction over the person . . . is untimely unless filed before the pretrial motions

deadline”).

Md. Rule 4-252 is similar to the federal rule. See Kohr v. State, 40 Md. App. 92, 98

(observing that the predecessor rule to Maryland Rule 4-252 is parallel to Federal Rule of

Criminal Procedure 12), cert. denied, 283 Md. 735 (1978). Md. Rule 4-252 requires

challenges to a defect in the institution of prosecution to be raised in a timely fashion, prior

to trial:

(a) Mandatory Motions. In the circuit court, the following matters
shall be raised by motion in conformity with this Rule and if not so raised are
waived unless the court, for good cause shown, orders otherwise:

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 (1) A defect in the institution of the prosecution;

(2) A defect in the charging document other than its failure to show
jurisdiction in the court or its failure to charge an offense;

(3) An unlawful search, seizure, interception of wire or oral
communication, or pretrial identification;

(4) An unlawfully obtained admission, statement, or confession; and

(5) A request for joint or separate trial of defendants or offenses.

(b) Time for Filing Mandatory Motions. A motion under section (a)
of this Rule shall be filed within 30 days after the earlier of the appearance of
counsel or the first appearance of the defendant before the court pursuant to
Rule 4-213(c), except when discovery discloses the basis for a motion, the
motion may be filed within five days after the discovery is furnished.

Under this rule, “a motion alleging a ‘defect’ in the charging document ‘other than

its failure to show jurisdiction in the court or its failure to charge an offense’ must be filed

within a designated time period prior to trial or the defect is waived.” Williams v. State, 302

Md. 787, 792 (1985).

We conclude that an alleged violation of Section 9-304 (a) of the Uniform Act does

not result in a lack of subject matter jurisdiction. The alleged violation is an error of law and

subject to Md. Rule 4-252. An alleged lack of personal jurisdiction is also subject to the

Rule. Appellant did not raise the question in a timely manner, and it is waived.

Appellant’s reliance on Wright v. State, 500 P.2d 582 (Okla. Crim. App. 1972), and

State ex rel. Forte v. Ferris, 255 N.W.2d 594 (Wis. 1977), is unavailing. Unlike this case,

the issue was properly raised in both of those cases, as the defendants there alleged

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violations of the Uniform Act, applicable in those states. See Wright, 500 P.2d at 586

(observing that the defendant claimed that his rights under the Uniform Act were being

violated in the trial court because he was not returned to Texas before being charged in

Oklahoma); State ex rel. Forte v. Ferris, 255 N.W.2d at 596 (defendant petitioned for a writ

of habeas corpus after he had been charged in Wisconsin for first degree murder while he

was detained on a summons from Illinois under the Uniform Act).

In sum, we hold that appellant’s jurisdictional arguments, based on an alleged

violation of the Uniform Act, were not properly preserved for appellate review.

JUDGMENTS BY THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

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