Bishop v. State

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2106
September Term, 2011
WALTER PAUL BISHOP, JR.
v.
STATE OF MARYLAND
Eyler, Deborah S.,
Nazarian,
Moylan, Charles E., Jr.
(Retired, Specially Assigned),
JJ.
Opinion by Nazarian, J.
Filed: August 26, 2014
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 (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 (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
1
We refer to the first as the “Bias Motion,” the second as the “Conflict Motion,” and
the two motions together as the “Motions for Recusal.”
2
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. 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
3
(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 (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 (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
4
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
5
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 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
6
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 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
7
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. 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:
8
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.
***
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.
9
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.
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 (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
10
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. So the suggestion that this Court
wouldn’t have some control over that is preposterous.
As a practical matter, this case won’t get tried until next
year. [The Intern] will be here . . . two days a week as an intern
through [the] early part of December. So even if motions come
in, she won’t have access to them and of course, she would
continue to abide by her obligation to keep silent in terms of her
attorney-client privilege.
So with regard to the motion to recuse this Court because
of some appearance of impropriety, when looking at the
appearance of impropriety, it is a slightly less standard. But
again, as pointed out in Boyd, the Court talked about what that
11
standard is. And it states that—it specifically states “we disagree
with our dissenting colleague’s statement that recusal based on
an appearance of impropriety requires us to judge the situation
from the viewpoint of a reasonable person and not from the truly
legalistic perspective. Like all legal issues, judges determine
appearance of impropriety not by what a straw poll of the only
partly informed man in the street would show, but by examining
the record, facts and the law and then deciding whether a
reasonable person knowing and understanding all the relevant
facts would recuse the judge.”
Knowing what I have just said, I don’t see how any
reasonable person using that definition could conclude that
because [the Intern] was here for all of two days, and while she
will continue to be here, that there is any appearance of
impropriety. So your motion for recusal on that basis is denied.
(Emphasis added.)
The Motion for Reconsideration contained two paragraphs at the end in which Mr.
Bishop argued perfunctorily that the Intern’s presence in the courtroom during the hearing
on the Motions for Recusal and her presence in chambers during counsel’s discussions with
Judge Norman revealed her involvement in the case. The court rejected this argument too,
giving the “full story” that the Intern attended the Recusal Hearing at Mr. Bishop’s counsel’s
request, and that he never discussed the case with her:
I again harken back to your comment a moment ago that the
record should reflect the full story. And I would be remiss if we
didn’t do that with regard to your argument concerning [the
Intern. She] was an intern. As you can see, she is not here. She
has served her internship and left the earlier part of this month.
But you may recall that on . . . August 30th of 2010 we had a
scheduling conference in my chambers when your motions for
recusal I think were first presented. And you may recall that I
certainly agreed to have a hearing on the matter which was held
12
on September 8th of 2010. You may recall, or perhaps you
don’t, that on that day the defense requested that [the Intern] be
present at the hearing because you wanted possibly to call her
as a witness. Now, I note as a matter of fact you never
summonsed her as a witness, but the record should reflect she
was indeed here on that day, made available to you because you
had requested that. Your decision not to call her as a witness is
your decision and I suspect that is because you know what she
would have said and that is that she never discussed this matter
with the Court, the matter of any involvement she had with Mr.
Bishop with this Court, but it was an opportunity for you to call
her and to certainly make your record.
So I find it . . . a tad disingenuous for you now to, in your
motion, to suggest as a part of your affidavit that she was here.
Yes, indeed she was here. She was here at your request and
certainly nothing that took place in open court or our discussion
in chambers concerning scheduling was in any way improper.
So I reiterate, [the Intern] never discussed any matters
concerning Mr. Bishop with this Court or anyone on my staff.
And therefore, a reasonable person could not find that that was
improper.
(Emphasis added.)2
2. Trial and Sentencing
Because the State sought the death penalty from the outset, Mr. Bishop had the
automatic right to remove the case to a jurisdiction other than the county of the crime. Md.
Const. art. 4, § 8; see also Johnson v. State, 303 Md. 487, 508 (1985). He did so on February
3, 2011, and the case was transferred to the Circuit Court for Harford County on February
2
On December 20, 2010, Mr. Bishop petitioned the Court of Appeals for a Writ of
Mandamus “directing Judge Norman to recuse himself.” The Court denied the petition on
January 20, 2011.
13
10, 2011, but remained specially assigned to Judge Norman. The trial proceeded in October
2011, and the jury convicted Mr. Bishop of murder, conspiracy to commit murder, and use
of a handgun in the commission of a crime of violence.
Because the State had sought the death penalty, the jury, rather than the court,
determined Mr. Bishop’s sentence on the murder charge. During deliberations, the jury sent
a note to the court that asked “[W]hat is the difference between . . . life without parole and
life with parole? How many years are served before parole is an option?” After consultation
and agreement by counsel and Mr. Bishop, the court responded by drawing the following
distinction:
In response to your question concerning the difference between
life without parole and life with parole, A, the term life—this is
a term, the term life imprisonment without the possibility of
parole means imprisonment for the natural life of the defendant.
He will not be eligible for parole consideration, nor can be
granted parole at any time during his natural life. Parenthetical,
see Page eight of written instructions.
***
B, a person sentenced to life with the possibility of parole is
eligible for parole after serving 25 years incarceration.
The jury ultimately concluded that the State had proven one aggravating circumstance, that
Mr. Bishop committed the murder “pursuant to an agreement or contract for remuneration
or the promise of remuneration to commit the murder.” Nonetheless, the jury did not impose
the death penalty, but instead sentenced him to life with the possibility of parole. Among the
mitigating factors the jury identified (which did not have to be unanimous, and we can’t tell
14
on review how many jurors signed on to the finding) were (1) “mercy,” and (2) the fact that
Mr. Bishop was “not the sole proximate cause of the victim’s death.”
The court then sentenced Mr. Bishop on the conspiracy and handgun charges.
Immediately beforehand, Mr. Bishop’s counsel renewed the Motion for Recusal, which the
court again denied. Mr. Bishop argued that fundamental fairness required the court to merge
the conspiracy charge into the murder charge and that any additional sentence on the
remaining counts should run concurrently with the jury’s sentence for life with the possibility
of parole because, he contended, any consecutive sentence would undermine the jury’s
decision to afford Mr. Bishop the possibility of parole.
The court considered these arguments carefully against the evidence, but rejected
them:
Let me first say that this Court has the greatest respect for the
jury’s time and effort and dedication in this case. If you examine
their Findings and Sentencing Determination sheet, whether you
agree with it or not, I think it is fairly obvious just from that
evidence, that they took their responsibility very, very seriously.
And you can glean that from some of the considerations in the
mitigators.
***
And I don’t know what went through the jury’s mind, but
clearly they gave a great deal of thought and consideration in
this case and this Court respects their decision.
However, [the] Court is not bound by perhaps some of the
conclusions that we might infer—and it would be all it is,
inferring, their conclusions. A good example, I think, is the issue
of the sole proximate cause. [Mr. Bishop] was the sole
15
proximate cause of Mr. Porter’s death. He counted to ten, went
in, would have us believe that he closed his eyes. Perhaps that
is what the jurors meant by manipulated or manipulative. Clearly
he is a liar. We know that because he started out his confession
by denying anything.
(Emphasis added.) The court then imposed consecutive sentences on the handgun and
conspiracy charges:
(1) use of a handgun in the commission of a crime of violence:
20 years (first five without parole), to run consecutive to the
murder sentence;
(2) conspiracy to commit first degree murder: life imprisonment
to run consecutive to the sentence in (1) above.
Mr. Bishop filed this timely appeal.
II. DISCUSSION
Four things belong to a judge:
to hear courteously, to answer wisely,
to consider soberly, and to decide impartially.
– Socrates 3
Mr. Bishop asks us on appeal to find that the trial judge could not hear and decide his
case impartially because of a past experience that arose in a very different context. He does
so even though he raises no issues on appeal relating to how Judge Norman tried the case or
any decisions Judge Norman made during the trial. Aside from his complaints about the
sentence, which are grounded in a different theory of error, Mr. Bishop has not identified any
3
J.K. Hoyt and Anne L. Ward, The Cyclopaedia of Practical Quotations: English and
Latin 217 (8th ed. 1886).
16
decisions Judge Norman made that suggest any bias on the Judge’s part against Mr. Bishop
or that reflect any inability to try the case fairly and impartially.4 We see neither actual nor
apparent nor potential impropriety from Judge Norman’s experience in Denicolis or his
intern’s prior involvement in Mr. Bishop’s case. Nor did the court impose an illegal sentence
when it declined to merge the conspiracy conviction with the murder conviction. To the
contrary, the court acted within its discretion in directing the sentences for handgun
possession and conspiracy to run consecutively rather than concurrently.
A. Judge Norman’s Experience In Denicolis Did Not Warrant His
Recusal, Nor Did His Intern’s Prior Experience At The Public
Defender’s Office.
We review a trial judge’s decision to recuse (or not) for an abuse of discretion. Surratt
v. Prince George’s County, 320 Md. 439, 465 (1990); In re Turney, 311 Md. 246, 253
(1987).
Where the alleged disqualification does not amount to a
constitutional or legal disqualification, the question is left to the
enlightened conscience, delicacy of feeling, and sense of
fairness possessed by the individual judge. . . . Judges are
selected to be useful public servants, and no judge’s view of the
proprieties in such questions should be carried to such an extent
4
The issues, as worded by Mr. Bishop, are as follows:
1. Whether the trial court committed reversible error in failing to recuse
itself?
2. Whether the trial court’s consecutive sentences for conspiracy to
commit murder and use of a handgun in the commission of a crime of
violence were erroneous under the facts and circumstances of this case?
17
as would result in the serious curtailment of his usefulness as a
public officer.
Ex Parte Bowles, 164 Md. 318, 326 (1933); Boyd v. State, 321 Md. 69, 74-75 (1990)
(quoting same). Moreover, “[t]he person seeking recusal bears a ‘heavy burden to overcome
the presumption of impartiality.’” Karanikas v. Cartwright, 209 Md. App. 571, 579 (quoting
Attorney Grievance Comm’n v. Blum, 373 Md. 275, 297 (2003)), cert. dismissed, 436 Md.
73 (2013).
Judge Norman determined not once, but twice that he was obligated to hear Mr.
Bishop’s case and that neither his involvement in Denicolis nor his intern’s presence in his
office required otherwise. This case does not present a scenario where the defendant has been
caught directly threatening the trial judge in an effort to cause an appearance of impropriety,
a “reward” the courts routinely deny such litigants. See, e.g, Regan v. State Bd. of
Chiropractic Exam’rs, 355 Md. 397, 414 (1999) (“[C]ourts have been most reluctant to find
an appearance of impropriety on the basis of a litigant’s actions.”); In re Extradition of Singh,
123 F.R.D. 140, 149 (D.N.J. 1988) (no recusal based on the receipt of a threat because
recusal “would only encourage litigants to send threats in the hope of forcing recusal and
obtaining a different judge” (footnote omitted)). Instead, we have the unusual scenario where
the defendant claims a specific document—the victim impact statement Judge Norman
submitted in Denicolis—constitutes “direct evidence of the effect the allegedly disqualifying
incident had on the judge.” As Mr. Bishop puts it, “[a] member of the public, aware of the
victim impact statement, could reasonably question whether this incident affected Judge
18
Norman’s ability to be impartial.” The State counters that Mr. Bishop cannot “overcome the
strong presumption of judicial impartiality,” and that the cases Mr. Bishop invokes present
entirely different fact patterns.
With regard to the Intern, Mr. Bishop claims that her employment in Judge Norman’s
chambers as an intern “allowed for the possibility of personal bias” and created the
appearance of impropriety. The State replies that there was no suggestion that the Intern
relayed any information to Judge Norman regarding Mr. Bishop’s case, and therefore no need
for the judge to recuse himself. We take the issues in order.
1. Judge Norman’s involvement in Denicolis did not
create the appearance of impropriety.
The Maryland Code of Judicial Conduct governs the behavior of trial judges within
and beyond the courts, and directs judges to take or avoid actions that would undermine the
public’s confidence in a proceeding:
Rule 1.2 Promoting Confidence in the Judiciary.
(a) A judge shall act at all times in a manner that promotes
public confidence in the independence, integrity, and
impartiality of the judiciary.
(b) A judge shall avoid conduct that would create in
reasonable minds a perception of impropriety.
Md. Rule 16-813, Maryland Code of Judicial Conduct, Rule 1.2 (2013) (emphasis added).
As the Court of Appeals has explained, “[i]t is because judges occupy a distinguished and
decisive position that they are required to maintain high standards of conduct.” Jefferson-El
19
v. State, 330 Md. 99, 106 (1993) (citations omitted). Rule 1.2(b) lays out the general
“appearance of impropriety” standard that judges must follow.
But Rule 1.2 is not the only relevant rule. Rule 2.7, “Responsibility to Decide,”
affirmatively directs a judge to “hear and decide matters assigned to the judge unless recusal
is appropriate” (emphasis added). The Comment to the Rule explains why:
Although there are times when disqualification is necessary or
appropriate to protect the rights of litigants and preserve public
confidence in the independence, integrity, and impartiality of the
judiciary, judges must be available to decide matters that come
before the courts. The dignity of the court, the judge’s respect
for fulfillment of judicial duties, and a proper concern for the
burdens 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.
Rule 2.7, Comment (emphasis added); see also Turney, 311 Md. at 253 (“Determining
whether recusal is required to avoid the appearance of impropriety may often be a difficult
task. A high level of confidence in one’s ability to be fair and impartial may actually interfere
with the proper assessment of the problem of appearance of impropriety. Moreover, a judge’s
duty to sit where not disqualified is equally as strong as the duty not to sit where
disqualified.”).
In Boyd v. State, 321 Md. 69 (1990), the Court of Appeals established the proper test
in determining whether the judge there had acted with any appearance of impropriety—
suitably, in a case involving the murder of a husband by his wife. Id. at 72-73. The trial judge
there had presided at the bench trial of one of the co-defendants, and was assigned to preside
20
at the trials of the remaining defendants, one of whom sought his recusal because he had
decided the other case. The Court of Appeals held that the circuit court judge had declined
properly to recuse himself based on personal bias or prejudice because the knowledge
acquired by the trial judge in the prior proceedings did not constitute “personal knowledge
or bias” that required disqualification. Id. at 76. The Court then considered whether the trial
judge should have declined to hear the successive trials to avoid the appearance of
impropriety, and held that a judge’s decision to preside or recuse depends on the individual
facts and circumstances of the case(s):
“[T]he test to be applied is an objective one which assumes that
a reasonable person knows and understands all the relevant
facts. We disagree with our dissenting colleague’s statement that
recusal based on an appearance of impropriety . . . ‘requires us
to judge the situation from the viewpoint of the reasonable
person, and not from a purely legalistic perspective.’ Like all
legal issues, judges determine appearance of impropriety—not
by considering what a straw poll of the only partly informed
man-in-the-street would show—but by examining the record
facts and the law, and then deciding whether a reasonable
person knowing and understanding all the relevant facts would
recuse the judge.”
Id. at 86 (citations omitted) (emphasis in original) (quoting In re Drexel Burnham Lambert
Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)).
In Jefferson-El, the Court of Appeals examined whether a trial judge should have
recused himself in a violation of probation proceeding for a defendant at whose trial he had
presided several years earlier. Importantly, the judge had reacted strongly, and negatively,
to the earlier jury’s decision to acquit the defendant:
21
I just hope the ladies and gentlemen, that you had a very
good reason for the verdict that you rendered in this case. You
know, you’re supposed to be protecting the community. I hope
and pray that when you go home tonight and you think about
this situation, and think about what you’ve just done. That you
believe that you’ve protected this community.
On behalf of the court, we extend our thanks to you for
your service. But I can tell you that your verdict is an
abomination, and it has no relationship to reality [or] justice. I
want you, all of you, the ladies on this jury to think about what
you’ve just done.
Jefferson-El, 330 Md. at 102. When the defendant came before the same judge on a probation
violation charge in connection with the earlier case, he asked the trial judge to recuse
himself, and the court denied the motion. Id. at 102-03.
The Court of Appeals reversed. The Court reiterated the test set forth in Boyd,
stressing too that our cases mandate recusal where a member of the public might
“‘reasonably question’” the judge’s impartiality. 330 Md. at 108 (emphasis in original)
(quoting Surratt, 320 Md. at 468); see also Surratt, 320 Md. at 466 (holding that trial judge
should have permitted another judge to decide motion for recusal where attorney alleged he’d
made overtures to her and retaliated against her client when he was rebuffed); Turney, 311
Md. at 252-53 (holding that trial judge should have recused himself sua sponte from the trial
of a defendant whose source for a forged driver’s license, it became apparent to the judge
during trial, was his former wife’s stepson). In Jefferson-El, though, the Court of Appeals
held that the trial judge should have recused himself because he had upbraided the jury for
acquitting this defendant in a manner that “left no doubt as to his displeasure.” 330 Md. at
22
109. The Court explained that not only could a reasonable member of the community have
concluded that he could not be impartial, but that the court’s conduct toward the defendant
at the subsequent probation violation hearing reinforced that conclusion. Id. at 109-10. The
Court was careful to point out that it was not finding personal bias, but focusing on the
appearance of impropriety that flowed from the judge’s remarks. Id. at 110.5
In this case, we do not face the “difficult task” referenced in Turney, 311 Md. at 253,
because Mr. Bishop has not identified any facts or circumstances that might have interfered
with Judge Norman’s ability to try his case fairly or impartially. We agree with Mr. Bishop
that the context here is “unusual”—not because it presents a compelling basis for recusal, but
because the backdrop is atypical. First, none of the factors Mr. Bishop cites as
“extraordinary” actually supports recusal. Although it is true that the judge was the intended
victim of a crime, it was not “very similar to the ones with which Mr. Bishop is charged,” as
he claims. Judge Norman was a prosecutor, the victim here a husband. The motives obviously
would have differed, the evidence would have differed, and then-prosecutor Norman had no
personal relationship with the defendant, Mr. Denicolis. Although the victim impact
statement does, as Mr. Bishop contends, reveal “that he actually did suffer fear and anxiety,”
it doesn’t speak in general terms; rather, Judge Norman related specifically the effect that Mr.
5
The Jefferson-El Court pointed out that the trial judge’s comments there also ran
afoul of the then-applicable rule that prohibited judges from “praising or criticizing a jury’s
verdict.” Jefferson-El, 330 Md. at 105 (citing Maryland Rule Canon 3 A(8), then in effect).
That prohibition currently appears in Md. Rule 16-813, Maryland Code of Judicial Conduct,
Rule 2.8(c) (2013) (“A judge shall not commend or criticize jurors for their verdict other than
in a court order or opinion in a proceeding.”).
23
Denicolis’s attempts on his life had on him. Every part of his victim impact statement
stressed a specific concern about becoming Mr. Denicolis’s victim:
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.
***
[K]nowing 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 meant 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.
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.
(Emphasis added.)
24
We agree that Judge Norman’s statement does not suggest that the crime had any
overall impact on his ability to do his job or live his life, and it certainly does not suggest that
his decision-making in a spousal murder-for-hire case would in any way be tainted. And
nothing in the record suggests that Judge Norman in fact was influenced by that prior
experience. We disagree that Judge Norman’s statements at the hearing on the Motion for
Reconsideration are irreconcilable with his victim impact statement, and further disagree that
any “reasonable member of the public” who knew the facts would so conclude.
Second, the fact that this was a death penalty case does not change our analysis. We
are mindful that Mr. Bishop’s life was at stake, at the outset at least, and it may be that a
judge facing a closer question might feel called to recuse on a lesser showing in a death
penalty case than he otherwise might. But the State’s death penalty request does not in and
of itself compel recusal, and Mr. Bishop’s blanket assertion that the violent nature of the
intended plot presents “the danger that this will affect the judge’s ability to be fair and
impartial in similar cases [as] exponentially greater” finds no support in the cases or the
record of this case.
Finally, the two remaining cases Mr. Bishop invokes present situations altogether
different from this one. Both are federal cases in which the courts held that a trial judge’s
recusal was required. In re Nettles, 394 F.3d 1001 (7th Cir. 2005); Nichols v. Alley, 71 F.3d
347 (10th Cir. 1995). Mr. Bishop claims that in these cases, as in this one, the judges were
“in some sense” victims. And although that is true, that fact is not the common thread that
25
ties these cases together. Instead, both turn on the fact that the trial judge would have been
trying a defendant charged with crimes directed at the judge him- or herself. In Nettles, the
defendant had plotted to destroy the federal courthouse, and the United States Court of
Appeals for the Seventh Circuit held that she was entitled to a writ of mandamus recusing
all the judges in that courthouse from presiding because the appearance of impropriety for
the judges housed in that building was too great:
A reasonable observer would think that a judge who works in
the . . . building would want Nettles to be convicted and given
a long sentence, rather than to be set free . . . to make another
attempt to destroy the courthouse or its occupants.
Nettles, 394 F.3d at 1003. Indeed, the entire Seventh Circuit recused itself as well, pointing
out that even as it felt no actual prejudice, “a reasonable observer might conclude that, should
[the defendant] be convicted and sentenced, and appeal, he would no more get a fair shake
in our court than he would in the district court.” Id.The United States Court of Appeals for the Tenth Circuit reached a similar conclusion
in Nichols, in which the defendant was charged in connection with a domestic terrorist attack
that killed 169 people and “inflicted massive damage” to the Alfred P. Murrah Federal
Building in Oklahoma City. 71 F.3d at 349. The chambers of many trial judges were
damaged, including those of the judge assigned at random to preside over the case. Mr.
Nichols filed a motion to recuse the trial judge, and the Tenth Circuit agreed on appeal that
recusal was mandated under the federal statute that parallels Maryland’s Rule 1.2. Id. at 350-
51; see 28 U.S.C. § 455(a) (2013). The Tenth Circuit noted how “extremely fact driven” such
26
cases are, Nichols, 71 F.3d at 351, and that they “‘must be judged on [their] unique facts and
circumstances more than by comparison to situations considered in prior jurisprudence.’” Id.(quoting United States v. Jordan, 49 F.3d 152, 157 (5th Cir. 1995)). The court concluded that
the specific circumstances were so extraordinary that a reasonable person could have doubts
about the judge’s impartiality:
Judge Alley’s courtroom and chambers were one block away
from the epicenter of a massive explosion that literally rocked
downtown Oklahoma City, heavily damaged the Murrah
building, killed 169 people, and injured many others. The blast
crushed the courthouse’s glass doors, shattered numerous
windows, ripped plaster from ceilings, dislodged light fixtures,
showered floors with glass, damaged Judge Alley’s courtroom
and chambers, and injured a member of his staff, as well as
other court personnel and their families. Based on these
circumstances, we conclude that a reasonable person could not
help but harbor doubts about the impartiality of Judge Alley.
Because Judge Alley’s “impartiality might reasonably be
questioned” in the instant case, 28 U.S.C. § 455(a) mandates
recusal.
Id. at 352.
The “fact-driven” cases of Nettles and Nichols share nothing with Mr. Bishop’s case.
The trial judges in those cases personally felt the impact from the crimes at issue, whereas
Judge Norman’s comparable experience involved a different defendant and a different
context that had occurred over a decade previously. We find no error in Judge Norman’s
decision to hear and decide the case under these circumstances.
27
2. The Intern’s prior involvement in Mr. Bishop’s case created
no opportunity for personal bias by Judge Norman nor any
appearance of impropriety.
Beyond the appearance of impropriety articulated in Rule 1.2(b), Rule 2.11 provides
specific circumstances in which a judge should disqualify himself, specifically where the
judge suffers from personal bias or has personal knowledge of disputed facts:
Rule 2.11 Disqualification
(a) A judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might
reasonably be questioned, including the following
circumstances:
(1) The judge has a personal bias or prejudice
concerning a party or a party’s lawyer, or
personal knowledge of facts that are in
dispute in the proceeding.
Id. (emphasis added). The Court of Appeals explained in Jefferson-El that “there is a strong
presumption in Maryland and elsewhere that judges are impartial participants in the legal
process, whose duty to preside when qualified is as strong as their duty to refrain from
presiding when not qualified.” 330 Md. at 107 (citations omitted).
The Rule’s “personal bias” prohibition generally comes into play where a judge has
presided over one case involving a defendant and must consider whether he should preside
over a subsequent trial. In Doering v. Fader, 316 Md. 351 (1989), for example, the Court of
Appeals held that the trial judge had improperly recused himself from the sentencing portion
of a capital defendant’s trial. Id. at 357-58. The judge, who had presided over the jury trial,
28
explained that he would not have imposed the death sentence based on the facts of the case.
In explaining the nature of the personal bias, the Court pointed out that there was nothing to
suggest that the trial judge had “received any information other than that which was properly
produced during previous court proceedings in this case.” Id. at 357 (footnote omitted).
Rather, the Court found that the “trial judge misperceived the nature of the extrajudicial facts
he was precluded from considering”—to wit, that “the decision to recuse was [improperly]
based upon [the trial judge’s] belief that he would have to be able to completely put out of
his mind all that he had heard before in this case in order to be competent to sit. In this belief
he was wrong.” Id.The Rule does not state with clarity whether the bias or prejudice must be actually
held by the judge or can be imputed to the judge. But the “appearance of impropriety”
standard described above suggests the former, and the Court of Appeals’s holding in Boyd
does too:
[I]t has been said that “[a] judge is presumed to be impartial,”
United States v. Sidener, 876 F.2d 1334, 1336 (7th Cir. 1989);
that “[a] judge is presumed not to confuse the evidence in one
case with that in another,” Dove v. Peyton, 343 F.2d 210, 214
(4th Cir. 1965); and, that “judges are men [and women] of
discernment, learned and experienced in the law and capable of
evaluating the materiality of evidence,” State v. Babb, 258 Md.
547, 550 (1970). As Blackstone put it, “the law will not suppose
a possibility of bias or favour in a judge, who is already sworn
to administer impartial justice, and whose authority greatly
depends upon that presumption and idea.” 3 W. Blackstone,
Commentaries of Laws of England 361 (1st ed. 1769). Thus,
where an allegation of actual bias or prejudice is made, the
29
burden is upon the defendant to make that showing from the
record. Carey v. State, 43 Md. App. 246, 248-49 (1979).
Boyd v. State, 321 Md. 69, 80-81 (1990) (emphasis added). That burden may be met where
a party is able to demonstrate actual knowledge of facts in dispute. See, e.g., Smith v. State,
64 Md. App. 625, 634 (1985) (holding that recusal was warranted where trial judge “took it
upon himself, through his clerk, to unearth information about a case he was to try”); Ware
v. Warden, 2 Md. App. 728, 730 (1968) (holding that where prosecutor at defendant’s trial
ultimately became a judge, it was inappropriate for him to preside over a post-conviction
proceeding).
Judge Norman did not err in declining to disqualify himself from this case. At the
threshold, he had no personal knowledge of the facts of this case, nor the defense’s strategy.
Nor could the record support a finding that the Intern's knowledge (the testimony does not
reveal the full extent of what she knew, but there is no evidence suggesting it was detailed
or extensive) should be imputed to him. He took pains to explain, both at the Recusal
Hearing and the Reconsideration Hearing, that as soon as he became aware of the Intern’s
involvement in Mr. Bishop’s case (which surfaced on her third day in his chambers), he told
her not to speak to him about it. That ended it. And the way that counsel for Mr. Bishop
approached the Motion for Reconsideration suggests a certain level of gamesmanship (at
least as Judge Norman saw it) that should not have been rewarded by granting the Motion
to Recuse: Mr. Bishop had requested that the Intern attend the Recusal Hearing (apparently
suggesting that it might be necessary to question her about the facts), and then, on the Motion
30
for Reconsideration, argued that her presence at that hearing meant she was inappropriately
playing an “ongoing role” in the case. But the hearing was open to the public, and her
presence in the gallery during a hearing at which Judge Norman presided could not have
imparted or imputed any outside-the-record knowledge to him.
Nor do we see see any basis on this record on which a reasonable person could
question Judge Norman's impartiality. To the contrary, his undisputed instruction to the
Intern that they not discuss the case was designed to prevent such an appearance from
forming, and there is no suggestion (beyond pure speculation) that his instruction was not
followed. Put another way, the fact that Mr. Bishop’s case came before Judge Norman over
the course of this Intern's internship cannot, on its own, give rise to an objectively reasonable
inference of bias or impropriety.
To be blunt, the only way we could find that the Intern’s presence required Judge
Norman to recuse himself would be for us to decide that Judge Norman was lying when he
told the parties that he had had no communications with her about Mr. Bishop’s case. There
is zero evidence to support such a finding, nor has counsel argued that there is. Instead, Mr.
Bishop has raised the abstract possibility of prejudice inuring from the Intern’s presence in
Judge Norman’s chambers. That hypothetical concern cannot overcome the legal
presumption that Judge Norman’s decision was correct or the undisputed record supporting
that decision.
31
B. The Circuit Court Did Not Err By Declining To Merge The
Sentences For Murder And Conspiracy To Commit Murder, Or By
Refusing To Impose A Concurrent Sentence For Handgun
Possession.
Although Mr. Bishop renewed his motion to recuse at the time of sentencing, he did
not appeal the circuit court’s denial of the motion with respect to sentencing in particular, at
least as far as his brief reflects. So we review the question of the propriety of sentencing only
with respect to the grounds he articulates: first, that his sentence for conspiracy must merge
with the murder sentence; and second, that “[u]nder the facts and circumstances of this case,”
the trial court abused its discretion in imposing sentences for conspiracy and use of a
handgun in the commission of a crime of violence consecutive to, rather than concurrent
with, the sentence for murder that the jury imposed. Neither assertion is correct.
1. The conspiracy sentence does not merge with the
murder sentence.
Mr. Bishop claims his sentence is illegal because the trial judge did not merge the
sentence for conspiracy with the jury’s sentence of life with parole. An illegal sentence may
be corrected at any time. See Md. Rule 4-345(a). We “address the legal issue of the
sentencing . . . under a de novo standard of review.” Blickenstaff v. State, 393 Md. 680, 683
(2006). As the Court of Appeals explained in Chaney v. State, 397 Md. 460 (2007), a
defendant may attack the sentence by way of direct appeal, or “collaterally and belatedly”
through the trial court, and then on appeal from that denial. Id. at 466. That said, the scope
of the potential remedy is narrow:
32
[T]his category of “illegal sentence” [is] limited to those
situations in which the illegality inheres in the sentence itself;
i.e., there either has been no conviction warranting any sentence
for the particular offense or the sentence is not a permitted one
for the conviction upon which it was imposed and, for either
reason, is intrinsically and substantively unlawful.
Id. at 466-67 (emphasis added).
Mr. Bishop’s counsel argued at the sentencing hearing that because the jury found that
a murder for hire “necessarily” involved a conspiracy, the trial court’s decision not to merge
the sentences for conspiracy and murder effectively nullified the jury’s decision to impose
a life sentence with the possibility of parole:
If you are going to have a contractor and a contractee, that is
obviously going to include two people. And so the jury has
looked at the conspiracy because that was the basis of the
contract, so to speak, and they have returned a verdict of life,
permitting Mr. Bishop to be eligible for parole in 25 years. [¶]
We are concerned that if they are not required to merge, that at
least in terms of fundamental fairness and the rule of lenity . . .
the sentences must run concurrent, that to impose a consecutive
sentence under the conspiracy charge would be punitive and
would nullify the jury’s verdict.
Mr. Bishop’s counsel relied on Monoker v. State, 321 Md. 214 (1990), to support this
position. The trial court disagreed, and stated that in Monoker, the crimes and the rationale
were different—there, the Court of Appeals merged the sentences because it found
solicitation a “lesser included offense” that merged into conspiracy. Id. at 220. Mr. Bishop
raises Monoker again here, and argues from that case (and others that we distinguish below),
that “[u]nder the unique circumstances of this case, the crimes of conspiracy to commit
33
murder and murder were ‘part and parcel’ of one another and the conspiracy was ‘an integral
component’ of the murder” (quoting Carroll v. State, 428 Md. 679, 695 (2012)). The State
responds that the crime of conspiracy is “separate and distinct” from the crime of murder and
the two do not merge (quoting Grandison v. State, 305 Md. 685, 759 (1986)).
The broader term “merger” (and its grammatical variants) encompasses three different
principles of sentencing. The overarching merger doctrine finds its roots in the double
jeopardy clauses of federal and Maryland common law, Moore v. State, 198 Md. App. 655,
684-85 (2011), and “provides the criminally accused with protection from . . . multiple
punishment stemming from the same offense.” Purnell v. State, 375 Md. 678, 691 (2003)
(footnote omitted). The Court of Appeals has recently reaffirmed that we recognize “three
grounds for merging a defendant’s convictions: (1) the required evidence test; (2) the rule
of lenity; and (3) ‘the principle of fundamental fairness.’” Carroll, 428 Md. at 693-94
(quoting Monoker, 321 Md. at 222-23).
We can eliminate the first of these quickly. “The required evidence test focuses on the
elements of each crime in an effort to determine whether all the elements of one crime are
necessarily in evidence to support a finding of the other, such that the first is subsumed as
a lesser included offense of the second.” Monoker v. State, 321 Md. at 220 (1990). After
Grandison, 305 Md. at 759, though, the required evidence test does not merge sentences for
conspiracy to commit murder and murder, nor does Mr. Bishop claim it does. He seems to
suggest (but doesn’t actually come out and say it) that the rule of lenity should apply to merge
34
them instead.
The rule of lenity provides that a defendant should not be punished for two crimes,
at least one of which has been created by statute, by means of two sentences if the defendant
can show that the Legislature intended that the offenses be punished by one. If there is
uncertainty as to the legislative intent, we apply the rule of lenity to “give the defendant the
benefit of the doubt,” Monoker, 321 Md. at 222, and merge the sentences. See also Khalifa
v. State, 382 Md. 400, 435-37 (2004) (declining to merge convictions for abduction of a child
and detention of a child, as statutorily discrete offenses, and likewise declining to merge
detention and conspiracy convictions, seeing no “statutory ambiguity” that would compel
merger). Here, Mr. Bishop was indicted for first-degree murder pursuant to CL § 2-201 and
§ 2-208, for conspiracy under common law, and for handgun possession under CL § 4-204.
Nonetheless, Mr. Bishop doesn’t seriously contend that the rule of lenity applies: he raises
no specific argument that it does and cites to no statutes or legislative history that suggests
it might, and we see no basis on which to conclude that the General Assembly might have
intended the handgun charge to merge.
This leaves us with the principle of fundamental fairness. We recently held in Dionas
v. State, 199 Md. App. 483 (2011), rev’d on other grounds, 436 Md. 97 (2013), that the
fundamental fairness doctrine did not merge sentences for conspiracy to commit first-degree
murder and second-degree murder. Id. at 530. Notably, we did not base that decision on any
distinction between the nature of the conspiracy relating to first-degree murder and the
35
underlying conviction for second-degree murder. Rather, we relied on the Court of Appeals’s
decision in Alston v. State, 414 Md. 92 (2010), which characterized a conspiracy to commit
a crime as entirely separate from the underlying substantive crime:
“[O]nce the agreement to murder has been made, the crime is
complete without any further action. . . . Conspiracy to murder
requires an agreement, while murder, regardless of whether one
is convicted as an accessory or a principal, requires the
completed crime. Thus it is apparent that the conspiracy to
murder is a separate and distinct crime from the substantive
crime itself.”
Alston, 414 Md. at 114 (quoting Grandison, 305 Md. at 759); see also Kelly v. State, 195 Md.
App. 403, 442 (2010) (“[C]onspiracy is not ‘part and parcel’ of or ‘incidental to’ the
substantive offense; it is a separate offense. Principles of fairness do not prevent separate
sentences for these separate offenses.”).
In Carroll, the Court’s research revealed only two cases as of 2012 in which
“Maryland courts have required merger based solely on the principle of fundamental
fairness”—Monoker and Marquardt v. State, 164 Md. App. 95 (2005), and we have found
none that have done so after Carroll. See Carroll, 428 Md. at 695 n.6. In Monoker, the Court
reasoned that the sentences for solicitation and conspiracy should merge “because the
solicitation was part and parcel of the ultimate conspiracy and thereby an integral component
of it, [and] it would be fundamentally unfair to Monoker for us to require him to suffer twice,
once for the greater crime and once for a lesser included offense of that crime.” 321 Md. at
223-24 (emphasis added). And in Marquardt, we permitted merging sentences for malicious
36
destruction of property and fourth-degree burglary because “the malicious destruction of the
property was clearly incidental to the breaking and entering.” 164 Md. App. at 152. But see
Claggett v. State, 108 Md. App. 32, 53-54 (1996) (permitting merger based not only on
fundamental fairness but also on the rule of lenity, where General Assembly would not have
wanted to permit two separate sentences for the “singular striking of one victim,” and
allowing merger of convictions for a statutory assault conviction and a common-law battery
conviction both based on the same act).
Mr. Bishop does not suggest that his murder conviction might justify invoking the rule
of lenity in combination with a fundamental fairness argument, as the Court did in Claggett.
Id. And the obvious flaw in Mr. Bishop’s fundamental fairness argument is that these two
crimes are separate and distinct. Even if the murder plot had not succeeded, Mr. Bishop
could still have been convicted for conspiracy to commit murder—a charge to which he
opened himself as soon as he agreed with Ms. Porter to murder her husband, and regardless
of whether the plan worked. That it did can hardly allow him to work his way out of the
sentence for conspiracy as well.
2. Judge Norman did not improperly undermine the role of the
jury by imposing consecutive sentences.
We review the trial court’s sentencing decision overall for abuse of discretion, since
that decision is, by its nature, fact-based. “A judge should fashion a sentence based upon the
facts and circumstances of the crime committed and the background of the defendant,
including his or her reputation, prior offenses, health, habits, mental and moral propensities,
37
and social background,” Poe v. State, 341 Md. 523, 532 (1996) (citations omitted), and the
trial judge is given “broad latitude to best accomplish the objectives of
sentencing—punishment, deterrence and rehabilitation,” State v. Dopkowski, 325 Md. 671,
679 (1992) (citations omitted). Appellate courts review sentences for only three forms of
error:
“(1) whether the sentence constitutes cruel and unusual
punishment or violates other constitutional requirements; (2)
whether the sentencing judge was motivated by ill-will,
prejudice or other impermissible considerations; and (3)
whether the sentence is within statutory limits.”
Jackson v. State, 364 Md. 192, 200 (2001) (emphasis in original)(quoting Gary v. State, 341
Md. 513, 516 (1996)).
Mr. Bishop argues that the trial court erred when it imposed sentences consecutive to
his murder sentence for the handgun possession and conspiracy convictions. He contends that
“under the facts and circumstances of this case,” Judge Norman abused his discretion
because the consecutive sentences undermined the jury’s determination that he should be
eligible for parole, and because they had the appearance of “ill-will”—or, as Mr. Bishop
keeps suggesting, vindictiveness.6 The State claims preliminarily that this issue was not
properly preserved and that, if it was, Judge Norman did not have to merge the sentences. It
6
Curiously, Mr. Bishop doesn’t clarify what event or events purportedly caused this
alleged vindictiveness on Judge Norman’s part. We can’t tell from the brief whether he is
suggesting (most obliquely) that Judge Norman’s involvement in Denicolis somehow gives
rise to an inference that he bears some ill-will toward anyone who undertakes a contract
killing, an argument that is both far-fetched and unsupported in this record. We see no other
basis for the argument, but address it nonetheless.
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also claims that Mr. Bishop has failed to show any “impermissible considerations” that Judge
Norman ostensibly took into account, or any manner in which he acted vindictively when
imposing the sentences.
We are willing to give Mr. Bishop the benefit of the doubt on the State’s waiver
argument and proceed to consider his claim; even though he did not specifically raise the
merger claim regarding his handgun conviction, he re-raised his Motion for Recusal at
sentencing, which could arguably be construed as raising generalized claims of “the
appearance of vindictiveness.” But he points to no comments by the trial court, errors in law,
or other behavior that might suggest any such vindictiveness on the part of Judge Norman,
and we agree with the State that this case presented no “facts and circumstances” that
mandated a different outcome.
First, we disagree that Judge Norman’s decision to impose consecutive sentences for
these two convictions “undermined” the jury’s decision to leave open the possibility that Mr.
Bishop might be eligible for parole in twenty-five years. Contrary to Mr. Bishop’s
suggestion, Judge Norman did not set out somehow to trick the jury into thinking Mr. Bishop
would be parole-eligible in twenty-five years or promise that a decision to impose life with
parole would guarantee him a parole opportunity. The jury deliberations reflect that it did not
reach a unanimous decision regarding whether to impose a sentence of life without the
possibility of parole. Judge Norman said nothing to suggest that that sentence was incorrect
or that he disagreed with it—at most, he didn’t “pretend to understand” some part of it, and
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stated, “I don’t know what went through the jury’s mind, but clearly they gave a great deal
of thought and consideration in this case and this Court respects their decision.”
The jury’s responsibility ended once it sentenced Mr. Bishop for murder. When he
committed the other crimes—conspiring to murder Mr. Porter and possessing a handgun in
the course of doing so—he exposed himself to punishment for those crimes too, punishments
the court would impose. The fact that the jury was tasked with sentencing on the only crime
for which he could have received the death penalty does not relieve him of punishment for
those crimes or estop the court to run punishment for those crimes concurrent to the murder
sentence.
The “‘virtually boundless discretion’” vested in the trial court with regard to
sentencing, Dopkowski, 324 Md. at 679 (quoting Logan v. State, 289 Md. 460, 480 (1981)),
does not allow the court to impose restrictions on parole, Reiger v. State, 170 Md. App. 693,
706 (2006), which seems to be what Mr. Bishop claims happened here. But in Reiger, we
actually permitted the trial court to account for the timing of parole in calculating a sentence.
Mr. Bishop keeps returning to the fact that Judge Norman told the jury that he would be
parole-eligible in twenty-five years, but again, that statement related only to the sentence for
the crime the jury was considering, and did not relate to the not-yet-imposed sentences on the
remaining charges.
Finally, although we recognize that a judge should not be “motivated by ill-will,
prejudice or other impermissible considerations” at sentencing, Jackson, 364 Md. at 199, that
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principle does not affect our analysis here. We explained the breadth of the trial court’s
discretion in Reiger:
The sentencing court has “virtually boundless discretion” in
imposing a sentence. See State v. Dopkowski, 325 Md. 671, 679
(1992). Consequently, “[a] trial judge may impose any sentence
not in violation of constitutional requirements or statutory limits,
so long as it is not motivated by ill-will, prejudice or other
impermissible considerations.” Douglas v. State, 130 Md. App.
666, 677-78 (2000). The “extremely limited” grounds upon
which criminal sentences may be appealed include “whether the
sentencing judge was motivated by . . . impermissible
considerations.” See Jackson v. State, 364 Md. 192, 200 (2001);
Teasley v. State, 298 Md. 364, 370 (1984).
170 Md. App. at 697-98. But a finding that impermissible considerations came into play must
have some grounding in facts, and Mr. Bishop raises the specter of ill-will without pointing
to any conduct by the judge that might support it. See Curry v. State, 60 Md. App. 171, 184
(1984) (holding that trial judge came close to crossing the line into an “appearance of
vindictiveness” when she explicitly found that the defendants had “gotten a great deal of
leniency and benefit from their retrial,” as she imposed the maximum sentence, but affirming
sentence nonetheless). Accordingly, we find no abuse of discretion in the court’s sentencing
decisions.
JUDGMENTS OF THE CIRCUIT COURT
FOR HARFORD COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
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