WALTER PAUL BISHOP, JR.
STATE OF MARYLAND
Appeal from the Circuit Court for Worcester County. Mickey J. Norman, Judge.
Argued by: Allison M. Sayers (Stefanie McArdle, Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD for Appellant.
Argued by: Michelle W. Cole (Douglas F. Gansler, Attorney General on the brief) all of Baltimore, MD for Appellee.
Eyler, Deborah S., Nazarian, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ. Opinion by Nazarian, J.
[218 Md.App. 476] Nazarian, J.
Walter Paul Bishop appeals his conviction by a jury, in the Circuit Court for Harford County, after he confessed to the contract murder of William " Ray" Porter on March 1, 2010. Mr. Bishop admitted to police that Mr. Porter's wife, Karla Porter, had solicited him to kill her husband for $9,000. After the jury convicted him on the murder and other charges, it rejected the State's request for the death penalty and sentenced him to life with the possibility of parole. The trial court then imposed additional sentences for conspiracy to commit murder and possession of a handgun in the course of commission of the murder.
Mr. Bishop challenges these decisions on three grounds. First, he argues that the trial judge should have recused himself because thirteen years before, the judge (then a prosecutor) had been the target of a murder-for-hire plot, which in Mr. Bishop's view created an appearance of impropriety that prohibited the judge from presiding over this case. Mr. Bishop claims next that the judge should have recused himself because a legal intern who worked for the judge at the time of trial had previously assisted in Mr. Bishop's defense. Finally, he contends that the trial judge erred when he declined to merge the sentences for murder and conspiracy to commit murder, and when he imposed consecutive sentences for conspiracy and possession of a handgun in commission of the murder. We agree with all three of the circuit court's decisions and affirm the judgments.
We need not recount the specifics of the contract in any detail, because Mr. Bishop confessed at his videotaped interview with police on March 6, 2010 that he agreed to kill Mr. Porter and, regrettably, carried out the agreement. The murder took place at a Hess gas station in Baltimore County, and his case was specially assigned at first to the Honorable Thomas J. Bollinger. Because the State opted to seek the death penalty, and in light of Judge Bollinger's imminent [218 Md.App. 477] retirement, the case was assigned specially to another judge, the Honorable Mickey J. Norman, on July 21, 2010.
1. Motions for Recusal
On August 30, 2010, Mr. Bishop filed two separate motions in which he sought Judge Norman's recusal from the case first, based on personal bias or prejudice and second, based on a conflict of interest. He argued in the Bias Motion that because
Judge Norman had been the target of a murder-for-hire case in the past, see Denicolis v. State, 378 Md. 646, 837 A.2d 944 (2003), he could not preside over Mr. Bishop's case without creating an " unacceptable appearance of impropriety" ; as Mr. Bishop put it, Judge Norman " himself [had] fallen victim to a similar scheme." In the Conflict Motion, Mr. Bishop argued that a legal intern (the " Intern" ) working for Judge Norman at the time of his trial had been involved in Mr. Bishop's case while previously working at the Public Defender's Office, and that this prior knowledge created not just an appearance of impropriety but an " actual conflict of interest."
Although the facts of the underlying offense in this case don't matter for present purposes, the circumstances surrounding the Motions for Recusal matter a great deal. See Jefferson-El v. State, 330 Md. 99, 102, 622 A.2d 737 (1993) (noting that where, in a case such as this one, the " issue involves appearances, it is necessary that we set out in some detail the circumstances under which it arose" ). Judge Norman denied the Motion for Recusal on both grounds, and we start with the more complex of the two.
a. The Bias Motion
Because Denicolis ultimately was reported, we have here (as did Judge Norman) the benefit of its history preserved in the Maryland Reports. In the fall of 2000, Mr. Denicolis pled guilty to several robbery counts in a case prosecuted by Judge [218 Md.App. 478] Norman, who was then an Assistant State's Attorney for Baltimore County. Mr. Denicolis plotted to murder both Judge Norman and the trial judge before whom he had appeared, the Honorable Dana Levitz, but police stopped him before he could carry out his plan. 378 Md. at 650-51. The issue on appeal, which has no relevance here, involved the trial court's treatment of a jury note, and ultimately formed the basis of a reversal. Id. at 658-59. As the Court of Appeals recounted, the prosecutor submitted a victim impact statement prepared by Judge (then-prosecutor) Norman in which he related the impact of being " 'specifically targeted as the object of the defendant's criminal endeavor, singled out because I fulfilled my professional responsibilities as a prosecutor.'" Id. at 654. That victim impact statement formed the basis of Mr. Bishop's Bias Motion.
Judge Norman held a hearing on the Motions for Recusal on September 8, 2010 (the " Recusal Hearing" ). Mr. Bishop contended that the State sought the death penalty against him because he committed the murder under a " contract for remuneration" that, under the death penalty laws in effect at the time, constituted an aggravating factor. See Md. Code (2002) § 2-303(g)(1)(vi) of the Criminal Law Article (" CL" ) (repealed 2013). He argued that Judge Norman's victim impact statement in Denicolis demonstrated that the Judge had " considered himself a victim" in that case, which, Mr. Bishop contended, meant that his " impartiality might reasonably be questioned" in this case, as the Maryland Code of Judicial Conduct uses the term. He claimed that this appearance of impropriety compelled Judge Norman to recuse himself in this complex and protracted death penalty case that was subject to a " heightened standard of reliability." See Miller v. State, 380 Md. 1, 79, 843 A.2d 803 (2004) (" 'In capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability. . . . This especial concern is a natural consequence of the knowledge that execution is the most irremediable and unfathomable of penalties; that death is different.'" (quoting Ford v. [218 Md.App. 479]
Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (Marshall, J., plurality opinion))).
Judge Norman denied the Bias Motion at the Recusal Hearing. He explained that although the case could readily have been reassigned at that point (neither the parties nor the court had yet invested significant time), the court had an obligation to hear cases whenever possible, and he felt he could hear and decide the case fairly notwithstanding his experience in Denicolis :
[U]nder the Maryland Rules of judicial conduct, among other things it talks about [how] a judge shall hear and decide matters assigned to the judge unless recusal is appropriate. It also states that judges must be available to decide matters that come before the court. The dignity of the court, the judge's respect for fulfillment of judicial duties and the proper concern for the burden that may be imposed upon the judge's colleagues require that a judge not use disqualification to avoid cases that present difficult, controversial or unpopular issues.
[Counsel for Mr. Bishop] makes the point, and it is a good point, that we are in the very beginning stages of this case. It is not like there is a request for recusal after we have invested, that is the parties, have invested some time in the matter. And she makes the comment that it would be simple to simply reassign the matter. Well, I see that potentially as violative of that cannon I just read. Because while I agree it would be simple, when I signed up for this job, I knew that there would be times when the Court would be required to make difficult decisions. And I'm not to shy away from them. So I don't think that it is . . . the proper standard by which to measure.
* * *
I listened . . . with somewhat of a chuckle in my own mind as [counsel] compares the allegations in this case to the situation in [ Denicolis ]. She says it was a life changing situation. Well, if it was, why didn't I remember it? Because I had forgotten all about it until you brought it up in [218 Md.App. 480] your motion. And indeed, my recollection of that circumstance is nothing compared to what I understand this case to be about.
* * *
But in terms of a life-changing situation, well, you just couldn't be more wrong. You talk about serious victimization. . . . I have been put in actually dangerous situations in my life. Still here. Never worried me. In many regards, the [ Denicolis ] case, having measured it from my own life experience was somewhat of a joke. Here is a young man who is sitting in the County Detention Center and he is ticked off, and there is no way I ever, ever felt threatened.
So it is not as life-changing as perhaps your limited life experience might lead you to believe. I didn't remember the case until you brought it up in your motion. It has no significance to me. I don't consider myself a victim.
But beyond that, and I do see your point, there is a difference between petty theft and a speeding ticket. But in this situation it is--the circumstance regarding [ Denicolis ] was almost laughable.
But as I started to say, in [ United States v. Jordan, 49 F.3d 152 (5th Cir. 1995)], one of the things--couldn't find anything in Maryland, as I point out. One of the things it talks about is courts
do not insist on recusal where the judge's interest is remote, contingent, indirect or speculative. Your suggestion that for me an inconsequential situation in which I was, quote unquote, an alleged victim is speculative at best. And in terms of its remoteness, it was over ten years ago. As I said, I didn't remember it until you brought it up in your motion.
So since you have failed to produce any evidence that this Court cannot be fair and impartial, and since you have failed to meet your burden of suggesting or proving that there is any appearance of impropriety, your motion to recuse is denied.
(Emphasis added.) This might have been where matters ended, except that the State (to its credit) voluntarily provided [218 Md.App. 481] Mr. Bishop's counsel a complete copy of Judge Norman's victim impact statement from the Denicolis trial. The whole statement matters, as much for what it did not contain as for what it did (and we discuss that below), so we recount it in its entirety here:
Realizing that the defendant solicited another to murder Judge Levitz and myself has had an impact upon me. Crime victims often express fear of retaliation by a criminal defendant. As a veteran prosecutor I attempt to dispel those fears to give the victim peace of mind. I explain that most victims of robbery, burglary or other similar offense are not the specific target of the defendant's criminal venture, but rather, . . . are targets of opportunity where the motive for the crime was to obtain goods or property. In attempting to dispel my own concerns as a victim, I realized that the defendant's crime has indeed affected me. Unlike the victim of a crime who is merely a target of opportunity, I was specifically targeted as the object of the defendant's criminal endeavor, singled out because I fulfilled my professional responsibilities as a prosecutor.
The Baltimore County police informed me of the solicitation to murder so that I could take whatever measures I deemed necessary for the safety of my family and myself. There was little I could do except to put my family on notice of the defendant's intent and encourage them to be more alert and cognizant of their surroundings. I too developed a heightened sense of awareness, not knowing whether the defendant had solicited others to undertake his mission. I was forced to take the defendant seriously because I know the depth of his violent nature. I offer the court a glimpse of the facts of those crimes not to exacerbate any punishment that the court may impose for his present offenses but as objective proof that my concerns were founded in provable, indeed already proven, facts.
The defendant was convicted of and sentenced for three separate robberies, two of which were armed robberies. I was assigned to prosecute those cases. The crimes took place in January, February and May of 2000. The defendant [218 Md.App. 482] was the oldest and ringleader of his small band of thugs, and the violence visited upon the victims in those cases increased with each crime. The most serious offense took place on May 18th at 4:00 a.m. when the defendant and his accomplices broke into the home of Mr. and Mrs. Greene. Mr. Greene was specifically targeted for robbery. The defendant knew him to be a successful restauranteur and believed he would have on hand, or access to, large sums of cash. During that robbery the defendant used an aluminum baseball bat to kill a small dog. He also struck Mr. Greene several times with the bat. During that attack Mrs. Greene was able to
escape and run to a neighbor's house and call the police. In preparing for trial of the three cases I spoke with each victim who described the terror exacted by their attackers. Mrs. Greene was particularly terrorized because in leaving her home to summons help she was forced to leave behind her husband and her eleven year old stepson, of whose fate she was unsure. I also acquired the police reports of an armed robbery perpetrated by the defendant in Harford County in June 1997. Reverse waiver was granted in that matter and the defendant was adjudicated delinquent. In that case the defendant purchased BB guns, which resembled real handguns. He, along with another juvenile two years younger than he, robbed a young man and woman. The defendant and his accomplice were caught and confessed. A summary of the defendant's confession is attached hereto as exhibit A.
I would have preferred to ignore the solicitation to murder as idle banter of incarcerated felons with nothing better to do. However, knowing the defendant's propensity for violence, it would have been imprudent of me to do so. Consequently, the fact that I had to take his malevolent intent seriously necessitated that, to some degree, I modify how I managed my daily life. In that sense the defendant has robbed me of a certain level of personal security. I don't mean to suggest that the defendant's crime has resulted in paralyzing fear. I live a normal life and I am still capable of doing my job and fulfilling my responsibilities. [218 Md.App. 483] However, the defendant's crimes [have] made me more mindful that, in fulfilling my professional responsibilities, I may subject myself and perhaps even my family, to unwarranted and undeserved future danger. As a result of the defendant's crime, I am not the same person that I was before I became aware of his criminal intent. The defendant has forced me to be more concerned for the safety of my family and myself. I should not have to feel such concern.
After getting the statement in full, Mr. Bishop filed a Motion for Reconsideration. Judge Norman heard argument again and denied the motion, and explained in detail why he had no actual bias based on his experience, and why there was no appearance of impropriety based on his examination of his victim impact statement:
In reviewing my own victim impact statement and, again, I think it bears repeating for the record, I had forgotten about this case. I have been involved in the criminal justice system for the better part of my life. I was a police officer for 12 years. I was a prosecutor for 20 years. And I have had lots and lots of cases. It is not actually the first time I have been threatened. You can't let that affect you.
I think in reviewing the victim impact [statement] . . . I was simply relating that, about the heightened sense of security that I had to take at the time, in the same way when someone goes--let's say they--they are in what is called a " high crime area" and they get out of their automobile to go up to the bank machine to get some money. In a high crime area people are going to be a little more cautious, a little more concerned, a little more thoughtful about what they are doing. That is what I meant to convey.
The Denicolis case did not thereafter affect my ability as a prosecutor for that period of time that I was a prosecutor to do my job fairly and impartially, and the circumstances there will not affect my ability to perform my duty and responsibility as a judge fairly and impartially.
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[218 Md.App. 484]
The situation here is that back in 2001 myself and Judge Levitz were thought to be victims in a solicitation to commit murder. Your argument is that your client is charged with a similar offense and therefore this Court could not be fair and impartial or at least, at the very least there is an appearance of impropriety. But I think when one would--looks at the totality of the circumstances, the reasonable person would not conclude that there is an appearance of impropriety. The fact that this Court has been able to do its job as a prosecutor following Denicolis and perform responsibly since being appointed to the bench is a clear indication of that.
b. The Conflict Motion
In denying the Conflict Motion, the court explained that the Intern's role in Judge Norman's chambers had been limited, and that Mr. Bishop had not demonstrated (and could not) that her presence imputed special knowledge of the case to Judge Norman that might affect his ability to be impartial:
We should identify who she is for the record. [The Intern] is an intern, which is distinct and different from my law clerk, . . . [who] started in August, will work through next August. [The latter] is a paid law clerk. [The former] is an intern.
I often, as many judges do, accept interns. . . . She is here to learn the process. She is not a paid law clerk. She started, her very first day was August 25th. Her second day was August 27th and her third day was August 30th when these motions were brought to my attention when I met with the lawyers in chambers for the purposes of scheduling. I think that those time frames are important.
As counsel knows, the presumption--to start with, there is a strong presumption in Maryland that judges are impartial participants in the legal process and the duty of a judge is to preside over cases and the duty to preside is as strong as their duty to refrain from presiding when not qualified or when recusal is pertinent.
[218 Md.App. 485] There is--along with that presumption, the party requesting recusal must prove that the trial judge has a personal bias or prejudice concerning the Defendant or personal knowledge or disputed events of the facts concerning the proceedings, and that can be found in Boyd [ v. State, 321 Md. 69, 581 A.2d 1 (1990).] And indeed . . . [Mr. Bishop] cannot bear that burden. It is impossible for him to bear that burden. And the reason is quite simple: As he points out, [the Intern] was a part of a defense team. As such, certainly the Office of the Public Defender would have explained to her that she sits in the same position as a defense attorney in terms of confidentiality. The reason why you couldn't meet that burden is because she has not said one word to me about this case other than the fact that she worked on it. And that came up, so the record is clear, on August 27th at a luncheon where [the Intern], along with the rest of my staff, was invited in honor of my outgoing law clerk . . . and we were talking about the schedule for Monday, August 30th that various things we had. And the fact that the Bishop hearing or actually pre trial conference was coming up was the first time that [the Intern] even related to me that she had worked on the case.
At that juncture, at that lunch I said to her, she is not to have any discussion with me about that and certainly she understands that because, as I'm sure the Public Defenders explained to her,
she is in an attorney/client privilege situation. The suggestion that if she, if the Court keeps this case, that during the course of the proceedings she may come across motions and feel compelled . . . to violate the attorney-client privilege is preposterous.
First of all, in a death penalty case, . . . there is heightened scrutiny at all levels, including the appellate level. Mindful of that, . . . as a trial judge I control the motions in that case. I make sure that the court clerks properly enter the rulings on each motion so that when and if there is an appeal, that record is clean and clear. ...