Walter Paul Bishop v. State

• Decision Date: 26 August 2014
• Docket Number: No. 2106,Sept. Term, 2011.,2106
• Parties: Walter Paul BISHOP, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

218 Md.App. 472

98 A.3d 317

Walter Paul BISHOP, Jr.

v.STATE of Maryland.

No. 2106, Sept. Term, 2011.

Court of Special Appeals of Maryland.

Aug. 26, 2014.

Allison M. Sayers (Stefanie McArdle, Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Michelle W. Cole (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

DEBORAH S. EYLER, NAZARIAN, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

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.

I. BACKGROUND

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 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.¹ 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 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, 837 A.2d 944. 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, 837 A.2d 944. 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, 837 A.2d 944. 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. 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 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...