author:
Lowe, J.,
      Per Curiam

      Moylan, J.,

text:
    ANNA MAE JONES v. STATE OF MARYLAND
    [No. 269,
    September Term, 1979.]

      Decided December 17, 1979.

    The cause was submitted on briefs to Moylan, Lowe and MacDaniel, JJ.
    Submitted by Richard M. Karceski for appellant.
    Submitted by Stephen II. Sachs, Attorney General, Diane G. Goldsmith, Assistant Attorney General, William A. Swisher, State's Attorney for Baltimore City, and John Prevas, Assistant State's Attorney for Baltimore City, for appellee.
   Lowe, J.,

delivered the opinion of the Court. Moylan, J., filed a concurring opinion at page 430 infra.

There is seldom any difficulty in interpreting the holdings of an appellate court. The enticement of vaticinating beyond that necessary to decide the case before such court is, however, that which causes lawyers to become prophets instead of interpreters of the law. Dictum, like the road to Avernus, is easily traversed but the way back is hard to find.

In Bell v. State, 41 Md. App. 89 (1979), this Court was affirmed in its holding by the Court of Appeals, Bell v. State, 286 Md. 193 (1979), which held, as did we, that when a mistrial caused by extreme prosecutorial negligence is declared upon a defendant’s request, the Double Jeopardy Clause is not offended by a second prosecution. We differed, however, in our unnecessarily expansive language on what cause for mistrial would bar a retrial.

Our hariolation divined from the Supreme Court’s “teachings” was that misconduct of a prosecutor (or judge) intended to force a defendant to move for, or consent to, a mistrial was the sole exception to the general rule that the Double Jeopardy Clause is not offended by a second prosecution when a mistrial is declared upon the request, or with the consent, of a defendant.

Forced to expand, because of our dicta, upon an hypothesis not before them, the Court of Appeals added that the bar to retrial would be raised whether the prosecutorial (or judicial) misconduct was intended to abort the trial or to “[prejudice the defendant’s] prospects for an acquittal if the trial continued to a verdict.” Id. at 204-05. Explaining its broadening of our finer line, the Court pointed out that:

“It is ‘bad faith conduct by judge or prosecutor’ with such intent that prohibits retrials.
The keystone of the test formulated and consistently followed by the Supreme Court is the requirement of ‘intent.’ And intent is implicit in ‘bad faith.’ ” Id. at 205 (footnote omitted).

The courts of general and special appeals both arrived at these divergent results after interpreting the same Supreme Court cases and finding “clear teachings” therein. Apparently the Court of Appeals was influenced by both the deterrent effect a prohibited retrial would have upon an overzealous prosecutor, and the consistency of punishing “bad faith” misconduct (regardless of the specific intent). On the other hand, we were concerned more with the practical consequences of such an expansive interpretation; i.e., a) the societal concern of granting an accused immunity from prosecution, as prosecutorial punishment, notwithstanding guilt or innocence of the accused, b) the consequence to the accused of the diminution of the zealousness with which a trial judge may guard against prosecutorial improprieties by granting a mistrial at defendants’ request when the effect of doing so would be to dismiss the case, and c) the inconsistent consequence of granting retrials after reversals but not after mistrials. See United States v. Tateo, 377 U.S. 463, 466 (1964); see also Tabbs v. State, 43 Md. App. 20 (1979).

Our dicta, which troubled the Court of Appeals and led to its response, now moves forward apace giving rise to one of the problems we sought to avoid. We are called upon by appellaxxt to bar a retrial in the Criminal Court of Baltimore of Anna Mae Jones, whose conviction for drug violations we overturned for prosecutorial misconduct which we found so grievous and prejudicial that it constituted a “denial of due process”. In violation of a pretrial agreement, the prosecution intentionally introduced evidence-of evidence which it had expressly agreed not to introduce.

Before trial, appellant had sought discovery of a notebook containing highly prejudicial writings which was seized at the apartment of a codefendant not then on trial. The notebook appears to have been lost by the State before trial and, therefore, relying upon the State’s agreement that

“ ... we were not going to use the notebook because we didn’t have the notebook”,

appellant withdrew her motion for production. See per curiam opinion, Jones v. State (No. 737, September Term, 1977, filed March 16, 1978) appended, pp. 5-6.

When the case was being tried, appellant scored substantially on cross-examination of an officer testifying as to a search of premises of a codefendant. The officer was forced to admit he found no “narcotics,... cutting materials, lactose, dextrose, [or] any type of materials of that nature” in the search. Seeing its case substantially weakened, the State, on redirect, commenced its rehabilitative inquiry by asking whether the officer found “any evidence of narcotic dealings.”

At a bench conference following a timely objection, the State’s agreement was brought to the court’s attention by appellant’s attorney who strenuously sought to enforce the agreement:

“This is a dangerous area, dangerous thin ice as far as the defense is'concerned with reference to that book. I mean, we would move and think we would be entitled to mistrial if there is any reference to that book, reference to ...
THE COURT: Why would you think so?
MR. SMITH [Defense Counsel]: Because of what we discussed pre-trial. There is some prejudicial material in that and they can’t find it and we can show it was not our defendant’s book.”

We acknowledge that there is but a technical difference when a trial judge recognizes prosecutorial misconduct intended to prejudice accused’s prospects for acquittal by granting a mistrial (e.g., Bell, supra), and when such judge should have either excluded the evidence or granted a mistrial, and is reversed for having permitted the prejudicial evidence improperly elicited to prejudice appellant’s prospect for acquittal.

We have difficulty distinguishing why one retrial should be barred and another permitted when an accused “faced with the ‘Hobson’s choice’ of continuing with the trial or requesting or consenting to a mistrial”, Bell, supra, at 203, decides to continue rather than move to abort. Indeed the distinction is even less when the decision is left to the judge. The cause, as well as the effect, is the same in either case. The cause is the “bad faith conduct” of the prosecutor with the “intent” of “prejudicing [appellant’s] prospects for an acquittal [when] the trial continued to a verdict”, which “intent... implicit in ‘bad faith’ ” is the “keystone of the test formulated and consistently followed ^ by the Supreme Court. . . .” Id. at 205. The effect (or objective), i.e., to avoid “the anxiety, expense, and delay occasioned by multiple prosecutions,’ ” id. at_203 (quoting United States v. Dinitz, 424 U.S. 600, 608 (1976)), is also the same.

Although the Court of Appeals’ reasoning in Bell may be correct, our reasoning and decision in that case was influenced by Mr. Justice Harlan in United States v. Tateo, supra at 465.

“The Fifth Amendment provides that no ‘person [shall] be subject for the same offence to be twice put in jeopardy of life or limb----’ The principle that this provision does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence. In this respect we differ from the practice obtaining in England. The rule in this country was explicitly stated in United States v. Ball, 163 US 662, 671-672, 41 L ed 300, 303, 16 S Ct 1192, a case in which defendants were reindicted after this Court had found the original indictment to be defective. It has been followed in a variety of circumstances; see, e.g., Stroud v United States, 251 US 15, 64 L ed 103, 40 S Ct 50 (after conviction reversed because of confession of error); Bryan v United States, 338 US 552, 94 L ed 335, 70 S Ct 317 (after conviction reversed because of insufficient evidence); Forman v United States, 361 US 416, 4 L ed 2d 412, 80 S Ct 481 (after original conviction reversed for error in instructions to the jury).”

Tateo itself was a case in which a defendant was coerced into entering a guilty plea on the fourth day of trial by a trial judge who observed that if Tateo was found guilty, he would impose inordinate sentences upon him.

Our Bell decision was based on Tateo. We saw then, and see now, very little difference between a trial judge granting a mistrial because there might be a miscarriage of justice due to prosecutorial misconduct and an appellate court granting a new trial because there might have been a miscarriage of justice due to prosecutorial misconduct. It seemed that if Justice Harlan’s concern that appellate courts would less zealously protect

“against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution”, id. at 466,

so then might trial judges look with doubtful zeal at such protections upon a defendant’s motion for mistrial based upon prosecutorial misconduct.

Although we were found to be wrong in assuming the Supreme Court would apply the Tafeo reasoning to avoid a double jeopardy bar of a retrial of a case mistried because of prosecutorial misconduct, we can find no justification for barring a retrial of a case concluded, but reversed because of prosecutorial misconduct. As recently as June 14,1978, the Supreme Court has held that but for evidentiary insufficiency a person can be tried a second time for an offense when his conviction for that offense has been set aside by his appeal. Burks v. United States, 437 U.S. 1 (1978). The Supreme Court, through its Chief Justice, explained its reasoning, even alluding to prosecutorial misconduct as an example of error causing reversal which would not bar a retrial.

“Various rationales have been advanced to support the policy of allowing retrial to correct trial error, but in our view the most reasonable justification is that advanced by Tateo, supra, at 466, 12 L Ed 2d 448, 84 S Ct 1587:
‘It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.’
See Wilson, supra, at 343-344, n 11, 43 L Ed 2d 232, 95 S Ct 1013; Wade v Hunter, 336 US 684, 688-689, 93 L Ed 974, 69 S Ct 834 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U Chi L Rev 365, 370 (1964).” Id. at 15 (emphasis added and footnote omitted).

We cannot coalesce Bell, supra, with the Supreme Court’s reasoning or with our result here. We must choose.

Although the language that concerns us in Bell is dicta which does not bind us, it is dicta so strong that we would feel compelled to follow it under apposite facts. The compulsion to adhere notwithstanding, we are neither obliged nor persuaded to expand it. We are, on the other hand, compelled to follow “clear” holdings of the Supreme Court, as we are of the Court of Appeals, and both Courts indicate that evidentiary insufficiency is the only cause of reversal that will bar retrial after conviction. Burks, supra; Mackall v. State, 283 Md. 100 (1978). As indicated in Tateo and emphasized in Burks, the sanction of dismissal of an accused for any defect is “a high price indeed for society to pay....” E.g., Johnson v. State, 282 Md. 314 (1978); State v. Hicks, 285 Md. 310 (1979). When we have a choice, we are not inclined to extract that price unless constitutionally compelled to do so.

Judgments affirmed.

Costs to be paid by the appellant.

APPENDIX:

UNREPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 737

September Term, 1977

ANNA MAE JONES

v.

STATE OF MARYLAND

Gilbert, C.J.,

Liss,

Couch,

JJ.

Per Curiam

Filed: March 16, 1978

Per Curiam

In this appeal, Anna Mae Jones asks that we set aside the judgments of the Criminal Court of Baltimore in which appellant was convicted of four (4) Controlled Dangerous Substances Laws violations and sentenced to a total of forty (40) years imprisonment.

Mrs. Jones fires a virtual shotgun blast at the judgments, consisting of eleven (11) attacks on their validity. The first six (6) issues were heard in a consolidated case. Those contentions were decided adversely to Mrs. Jones in Part II of Poore v. State, 39 Md. App. 44, 384 A.2d 103(1978). We see no reason to repeat what we said in Poore, and we incorporate the holdings therein by reference thereto just as if they were fully set forth infra.

The overall factual pattern from which this appeal, along with its siblings, arose is detailed in Poore, supra. We shall not repeat it. Additional facts that may be pertinent will be alluded to in this opinion.

We focus our attention on the tenth assigned error. Appellant therein asserted:

“It was prejudicial error to permit police officers to testify as to the contents of a missing or destroyed notebook, over objection of the defense, where: (1) the notebook was lost or destroyed while in the State’s custody; (2) it was impossible for the defense to inspect the original notebook; (3) the State, prior to and during the trial, denied that it would elicit testimony about the notebook; (4) the State was permitted to elicit such testimony on redirect examination even though the notebook had not been referred to on either direct or cross-examination; (5) the notebook was never authenticated; (6) the evidence was not admissible under any exception to the hearsay rule; (7) there was no evidence that the notebook belonged to the appellant; (8) the State conceded that the writing in the notebook was not the appellant’s; and (9) the probative value of the testimony was outweighed by its prejudice.” (Emphasis supplied.)

During the course of the trial, the State called Corporal Fred A. Settle of the Maryland State Police as its witness. Settle testified that on March 9, 1976, he executed a search and seizure warrant at 12 Cedar Heights Circle in Baltimore County. The purpose of the search “was to sieze [sic\ any controlled dangerous substance, money, lists, slips and records pertaining to any controlled dangerous substance trafficing [57b] or illegal activity carried on there.” Corporal Settle’s “Inventory/Return” discloses, and his testimony verified, that he seized nine (9) items of jewelry consisting of four (4) women’s and five (5) men’s rings, $36,103 in currency of the United States that was stashed in two (2) principal places, eleven thousand plus dollars in a safe, and $24,000 under a carpet, one (1) address notebook, two (2) telephone statements, a rental agreement and miscellaneous papers. The rental agreement was in the name of Anna Mae Jones, the appellant. Various articles of clothing, both male and female types, were observed in closets of the apartment. Mrs'. Jones established ownership to six (6) of the rings, and they were returned to her. The trooper said that “[t]he others were stolen.” An objection to that response was “sustained.”

On cross-examination, Settle was asked, “Did you find any narcotics on the premises?” He answered, “I did — I did not sieze [s/b] anything I thought was not narcotics.” Patently, dissatisfied with that non-responsive reply, counsel persisted by asking, “What you described is what you siezed [s/c]?” The trooper replied, “Yes.” The defense attorney then asked, “And there were no narcotics in that group?” Settle said, “No, it was not.” After some interrogation concerning the money and the presence of a hospital bed on the premises, the officer was queried as to “any cutting materials, lactose, dextrose, any type of materials of that nature” found in the search. The answer was in the negative as was the response to whether “glassine bags” were found.

The State, on redirect began inquiry into whether Settle found “any evidence of narcotic dealings.” Following a prompt objection, a bench conference ensued. Appellant’s attorney maintained that:

“This is a dangerous area, dangerous thin ice as far as the defense is concerned with reference to that book. I mean, we would move and think we would be entitled to mistrial if there is any reference to that book, reference to ..

The transcript continues:

“THE COURT: Why would you think so?
MR. SMITH [Defense Counsel]: Because of what we discussed pre-trial. There is some prejudicial material in that and they can’t find it and we can show it was not our defendant’s book.
MR. DENHOLM: [Assistant State’s Attorney]:
We never said it was your defendant’s book. I just said it was a book found with some numbers and writing. That’s — and the State was not —- the State had no intention of bringing this out, which it did not on its direct examination but the picture was framed for the jury on cross examination, that question, money was found, but no drugs were found. So, consequently, there was no narcotic violations [sic] found at this premise.
Now, I’m asking, was there any evidence that would indicate narcotic transactions were going on at that premises. No — I don’t know if any was found. I do not know how the fact that a lost book, which indicated names and addresses, I assume, and narcotic transactions would not be relevant in response to those questions that he, the defense asked.”

After ascertaining out of the presence of the jury that the “notebook” was “lost,” the judge allowed Corporal Charles English to relate to the .jury what the notebook contained. Prior thereto, Mr. Denholm acknowledged to the judge that “the State did in fact —- say we were not going to use the notebook because we didn’t have the notebook.”

Corporal English said that “if my memory serves me correct,” the notebook was “[f]ive [inches] by eight [inches]. Something like that.” He further stated, “[o]ne page in particular that we used in the ex parte was — at the top of the page was the word written in clear, legible ink, heroin----The middle part of that page, they had the numbers 75 and right next to it they had the word glassine bags.” At the bottom of the page, “is like a sentence where it was heroin, ten bags a day at ten dollars a bag, four bags.” Later he added, “four bags cost thirty-eight hundred.” There were “no money signs next to that.”

Relying upon his memory, Corporal English declared that another page read, “heroin, 18 glassine bags of white powder, one hundred and eighty dollars.” He was interrupted by the court with a request that he slow down his rate of speech, and then he uttered, “[i]t also read two large glassine bags of white powder, 31 grams ... and it had five hundred dollars next to that.”

The State suggests to us that the objection was not directed toward the questions now posed to us, and that even if they be construed by this Court to be before us properly, the admission of the content of the notebook is harmless error beyond a reasonable doubt under Dorsey v. State, 276 Md. 638 (1976), as cumulative.

Underpinning this controversy is the factual predicate that the appellant’s attorneys filed discovery proceedings in which they sought the production of the notebook. We glean from the record that in consideration of the State’s representation that it was not going to use the notebook or allude to it, the defense withdrew its motion. We so glean because that was the allegation at trial and here. It has not been denied. We are confronted then with an issue of basic fairness that must be considered in the light of Mr. Smith’s cross-examination of Corporal Settle.

Why the State would agree as it did, except that it had a mental reservation to evade its seemingly clear commitment, we are left to guess. The appellant’s attorney argued strenuously before the trial judge that he had built the defense of his client on the strength of the State’s commitment, knowing full well that no narcotics were found in the apartment at 12 Cedar Heights Circle. The allowing of the State to withdraw unilaterally from its promise and to produce the evidence that it had agreed not to use was absolutely devastating to the defense. They were unprepared for such action by the State.

We cannot agree with the trial judge that the cross-examination in some way opened the door to the State’s breach of its agreement not to use or refer to the lost notebook. The defense’s pointing out that no narcotics, cutting agents or glassine bags were found in the premises does not permit the State to show by redirect evidence that other indicia of narcotic trafficking was found in the apartment, by introducing into evidence the very thing they had expressly agreed not to introduce.

We think the State’s overt breach of its commitment constitutes a denial of due process of law. The phrase “due process of law” as Mr. Justice Holmes said in Frank v. Mangum, 237 U.S. 309, 347 (1915), “embraces the fundamental conception of a fair trial____” There is no fair trial when guile is the cornerstone.

It may well be that the Assistant State’s Attorney did not mean to bind the State in the manner that he did, but they were so bound and must abide by the agreement. To hold otherwise would not only deny the appellant the fair trial to which she is entitled, but would make the phrase “due process of law” meaningless as applied to this case.

Moreover, we are unable to hold that the error was harmless beyond a reasonable doubt. While, in our view, there was ample evidence for the jury to find the appellant guilty as charged, even without the overkill use of the notebook, we are uncertain as to what effect the content of the notebook, with its reference to heroin, had upon the minds of the jury. In any event, we are unprepared to declare the introduction and consideration of that evidence harmless beyond a reasonable doubt.

We reverse the case and remand it for a new trial. In view of our disposition on this issue, we need not decide the remaining questions.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Mayor and City Council of Baltimore.

Moylan, J.,

concurring:

I join the judgment of the Court. I must, however, respectfully demur to the attendant dicta, for I see the majority opinion tilting at windmills. Were the dragon it perceives real, I would enlist at the barricades within the hour. I take issue not with its response to the imagined hazard but with its very perception that the hazard is there.

At the outset, let the entire tempest be viewed in the realistic perspective of the teapot wherein we thunder. My dicta differs with the majority’s dicta in our respective interpretations of the dicta of Judge Orth in Bell v. State, 286 Md. 193 (1979), wherein he interpreted the dicta of the Supreme Court in United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); and United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). Why have all three courts never issued a square holding on the problem of “overreaching”? Because we are dealing with a subtle distinction wrapped in a mere nuance surrounding a metaphysical nicety. Yet the effort is commendable for the dicta involved, at all of these levels, is no mere passing turn of phrase but considered and thoughtful analysis. This is such stuff as doctrine is made of, as opposed to mere case-by-case ad hocery. Indeed, the judgment of comparative jurisprudence has been that the Anglo-American common law has been too prone just to decide cases and not resolute enough at building an internally consistent body of doctrine. I therefore applaud the effort of the majority, with which I disagree, even as I applaud the effort of Judge Orth, with which I wholeheartedly agree. And so, to the disagreement.

Let us begin with the recognition that every appellate reversal of a conviction, properly granted, is predicated upon a finding of error. Most declarations of mistrial, properly granted, are predicated upon a finding of error. In both instances, the error has been prejudicial to the defendant; that is, more than harmless. The behavior by prosecutor or judge, moreover, which is deemed erroneous has been, 99% of the time, advertent and not accidental. There is, therefore, nothing talismanic in talking about “intentional conduct by prosecutor or judge denying a defendant due process of law.” The normal remedy for such error — of a quality eroding the right of a defendant to a fair trial and, thereby, depriving him of constitutional due process of law — is the affording to him of a new trial, hopefully free of error and hopefully reaching a proper verdict upon the merits. The sanction applied to an error-ridden trial is to wipe it out and begin again. The far more extreme sanction, available only in the mistrial-retrial context, of wiping it out and sometimes not beginning again is of an entirely different order and is not aimed at the correction of simply intentional trial conduct which is determined to have been erroneous. The majority and I are both agreed on this. I do not read Judge Orth as retreating from this. The majority apparently does.

One small corner of the crowded double jeopardy field is that dealing with the permissibility of a retrial following the declaration of a mistrial. This concern was not historically a part of double jeopardy law at all but a separate common law tradition, guarding the right of the defendant to stay with a tribunal until a verdict had been rendered. Over the years, this distinct procedural protection was engrafted uncritically upon the constitutional law of double jeopardy. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) (dissenting opinion by Powell, J.). That misbegotten merger is the source of much latter-day confusion.

When a mistrial is declared upon the motion of the State or by the court sua sponte, over the objection or without the consent of the defendant, a retrial will be barred unless there was a manifest necessity for the declaration of the mistrial. A substantial body of laws now exists as to this aspect of the mistrial-retrial problem. A less explored aspect of the problem is that governing the situations where the mistrial has been declared at the request of, or with the consent of, the defendant. Ordinarily, such request or consent would operate as an essential waiver of any subsequent double jeopardy claim. Solely by way of dicta, the Supreme Court has indicated that a limitation upon this foreclosure would be the situation wherein the defendant was left with no real choice in the matter because of “prosecutorial or judicial overreaching.” This dicta has generated the discussion now in issue as to what is precisely the “prosecutorial or judicial overreaching” that will bar a retrial following the declaration of a mistrial at the request of a defendant.

The answer can only be found within the context of the interest being guarded by this distinct body of procedural protection. That interest is not the protection of the defendant from an erroneous conviction. An appellate reversal following conviction or a declaration of mistrial, either followed by a permitted retrial, has traditionally safeguarded defendants from erroneous convictions. The very different interest guarded by this particular common law tradition has been the défendant’s option to stay with a tribunal which may be favorably disposed to his cause and not to have the State deliberately abort a trial which the State senses is going badly. It is not the harmful effect of an error as such but rather the peculiar mens rea with which the error is committed which is of overriding significance in this context.

The sensitivity to this distinction was what led this Court in Tabbs v. State, 43 Md. App. 20, 403 A.2d 796 (1979), and in Bell v. State, 41 Md. App. 89, 395 A.3d 1200 (1979), to lay to rest the ghost of the notion that gross negligence on the part of prosecutor or judge could ever constitute such overreaching. The Court of Appeals expressly affirmed this conclusion in Bell v. State, supra. In his opinion for the Court of Appeals, Judge Orth made it very clear that only intentional conduct can qualify as overreaching. Thus far, everyone seems to be in agreement. The metaphysical nicety has been handled with aplomb.

We move to the. subtle distinction within the metaphysical nicety. What is the quality of intent which makes the commission of error “intentional” within this particular context. It is not the mere intentional doing of the trial action, which action is later ruled to have been erroneous. That is the mere general intent to do the deed. The general intent to do the action, which is later determined to be a foul, is almost always present. Inflammatory jury arguments are intentionally spoken and are not mere Freudian slips of the tongue. Prejudicial questions or the introduction of tainted evidence represent conscious and intended actions. The law of “overreaching,” on the other hand, contemplates a specific intent above and beyond the mere general intent. It involves not the mere intentional striking of a blow which turns out to be a “foul” but rather the intentional and deliberate commission of a “foul”, knowing it to be such. To be guilty of “bad faith,” one must have the specific intent deliberately to commit error and not simply the general intent deliberately to do an action which is determined to be error. This is my reading of the law and it is my reading of what Judge Orth said in Bell. I believe that the majority has failed to perceive that Judge Orth is steadfast in this regard because it has misread the nuance yet to be discussed as an erosion of this position and not a mere nuance upon it. On, therefore, to the nuance upon this subtle distinction!

All are agreed that the ancient evil giving birth to this body of law, and the present evil still being guarded against, is the effort on the part of government to sabotage a trial which is going badly in order to improve its chances for conviction upon some later occasion. In our earlier efforts to articulate this in Bell and Tabbs, we failed to distinguish between the specific intent to sabotage the trial which was going badly and the mere mechanism by which that sabotage was to be accomplished. We spoke of the necessity, for “overreaching” purposes, of the prosecutor or judge deliberately sabotaging the trial with the hope of forcing the defendant to ask for a mistrial. Judge Orth has gone us one better by adding the refinement that the mechanisms of sabotage may be plural. The specific intent must still be to sabotage the trial by committing a deliberate foul. Once having done that, the prosecutor or the judge may be wantonly indifferent to whether 1) the defendant requests and obtains a mistrial or 2) the trial goes forward and the prosecution obtains a victory it could not have obtained but for the deliberate foul. The foul has accomplished its purpose by either means. This is all I perceive the refinement to be. I believe the majority reads it overbroadly to be an erosion of the specific intent to sabotage a doubtful trial.

I also believe that the majority's concern with the analogy between the retrial-following-mistrial situation and the retrial-following-appellate-reversal situation stems from our ill-advised effort to cram two divergent legal traditions into a single Procrustean mold. When a defendant is forced by overreaching to request a mistrial and the mistrial is declared, his right to stay with that tribunal has been infringed. When, upon the other hand, the trial has gone full term, even when a mistrial has been requested and erroneously denied, different considerations obtain. The right to stay with the original tribunal was not infringed, even if under the circumstances it should have been. The appellate review of the conviction looks at the error in terms of its impact upon the ultimate verdict and does not look at the now-moot question of whether the mistrial which was not granted should have been granted. In that context, we are governed by the philosophy of United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964), and the law according to Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

      . And it is correct unless that Court of last resort chooses to reconsider its own decision.

      . No further action was requested or taken.


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    WILLIAM STERLING COLE, JR. v. NANCY B. COLE
    [Nos. 159 and 519,
    September Term, 1979.]

      Decided December 20, 1979.

      The cause was argued before Moore, Melvin and Mason, JJ.

      Theodore G. Bloom, with whom were Goodman, Bloom & Cohen, P.A. on the brief, for appellant.

      Ronald A. Baradel, with whom were Hartman & Crain on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

In this appeal, the appellant William Sterling Cole, Jr., challenges an order of the Circuit Court for Anne Arundel County that increased the amount of alimony and child support he was required to pay under a prior divorce decree. The order was filed October 28,1978, and, in addition to the ordered increases in alimony and child support, dismissed appellant’s cross-petition for termination of alimony. After the appellant had filed his appeal from the October 28th order (Appeal No. 159), the appellee, Nancy B. Cole, petitioned the trial court to hold the appellant in contempt of court for failing to pay the increased award. The court did so and by order dated March 30,1979, directed the entry of “a monetary decree in favor of Nancy B. Cole against William Sterling Cole, Jr. for $10,125 (the arrearage to 23 March 1979) and costs.” The appellant then filed a timely appeal from that order (Appeal No. 519). The two appeals were consolidated and arguments thereon were heard on the same day.

APPEAL NO. 159

I

The parties were married on June 16, 1954, and had four children. On November 18, 1969, they separated due to “irreconcilable marital difficulties” and on November 24, 1971 entered into a property settlement agreement because they were, in the words of the Agreement, “sincerely and genuinely interested in reaching accord concerning alimony for WIFE, support for the aforesaid children of the parties and the equitable disposition of their jointly and severally owned properties.” The Agreement provided, among other things, for monthly payments to the appellee of $275.00 in alimony and $600.00 for the support of the four children, “being One Hundred Fifty Dollars ($150.00) per month per child.” The Agreement provided that the appellee agreed “to accept the alimony, child support sums and property settlement ... of this Agreement as adequate under the present financial circumstances of the parties.” The Agreement also provided, however, that “the entire matter of alimony and child support shall be subject to the further Order of any Court of competent jurisdiction.”

Two months after the date of the Agreement, the appellee, on January 11, 1972, filed her bill of complaint for divorce in the Circuit Court for Anne Arundel County on the ground of voluntary separation. The appellant, who was at that time a Commander in the U.S. Navy and a non-resident of Maryland, did not contest the proceedings. In her testimony before the Master on May 17, 1972, the appellee stated that she wished to have the Agreement “to the extent that the Court sees fit incorporated in these proceedings” and that “on a minimum basis” “the sums of money provided [in the Agreement] for alimony and child support” were “adequate under the present circumstances.”

The divorce was granted by decree dated July 19,1972. It awarded custody of the four children (William, age 15; John, age 11; Charles, age 7; and Katherine, age 5) to the appellee and, in accordance with the Agreement, provided for alimony of $275.00 per month and child support of $600.00 per month.

On February 23,1977, the appellee petitioned the court for an increase in alimony and child support on the grounds that “since the passage of the [Divorce] Decree ... [she] has been unable to provide support and maintenance for the minor children of the parties and support and maintenance as alimony because of the great increase of prices and costs” and that she and three of the minor children “are in need and suffer from want of support and care.” On April 19,1977, the appellant filed an answer to the modification petition and a cross-petition in which he denied that an increase was needed and further averred that since the divorce the appellee’s income had increased to the point that it was “sufficient to provide adequately for her own needs” and “to enable her to contribute to the support of the three minor children in her custody.” The cross-petition further alleged that appellant “has now remarried and acquired additional obligations which have reduced his financial ability to contribute to the support of the children.” In his cross-petition, the. appellant offered to accept custody of the children if the appellee, “by reason of her extravagance cannot manage on” the amount of child support she was receiving from appellant — which amount he alleged was “more than adequate to provide for their needs.” The cross-petition prayed that appellant’s “obligation for alimony be terminated.”

Testimony of the parties was taken in open court on September 18, 1978. On October 28, 1978, the court filed its order awarding the appellee an increase of monthly alimony from $275.00 to $400.00 and an increase in monthly child support from $150.00 per child to $250.00 “for the three children now living with her.” Both increases were to account from February 28,1977, the date on which appellee filed her petition for modification. As we have stated, the order also dismissed the appellant’s cross-petition.

Both parties seem to agree that substantial changes in their respective circumstances have occurred since the date of their divorce on July 19, 1972. The appellant contends on appeal, as he did below, that the changed circumstances evidenced in the record do not support the chancellor’s order of October 28,1978, either with respect to sujinerease in alimony or with respect to the amount of increased child support. Further, with respect to alimony only, the appellant contends that the chancellor erred in not either terminating, abating, or, at least, suspending it.

It is, of course, well settled in this State that a court of equity may upon a proper petition to do so modify a decree for alimony or child support at any time if there has been shown a material change in circumstances that justify the action. Jackson v. Jackson, 272 Md. 107, 111, 321 A.2d 162 (1974); Stansbury v. Stansbury, 223 Md. 475, 477, 164 A.2d 877 (1960); Winkel v. Winkel, 178 Md. 489, 498-499, 15 A.2d 914 (1940); Slacum v. Slacum, 158 Md. 107, 111, 148 A. 226 (1930); Lott v. Lott, 17 Md. App. 440, 302 A.2d 666 (1973). It is equally well settled that, as with an original award, the decision on the question of modification of the original award is left to the sound discretion of the chancellor and will not be disturbed unless that discretion was arbitrarily used or the judgment clearly wrong. Lott v. Lott, supra.

The changes that have occurred in the circumstances of the parties since the 1972 divorce are essentially not in dispute. Appellant’s gross annual income at the time of the divorce was $19,430.00. In July, 1973, he retired from the Navy and obtained civilian employment. At the time of the modification hearing he had remarried and Ms gross annual income from all sources (Navy retirement pay, salary and investments) had risen to $57,980.00. With Ms increased income has come an admittedly higher standard of living than he enjoyed at the time of the divorce. His listed weekly expenses, including alimony and child support, just about equals his net income. In addition to his income, he listed assets and liabilities reflecting a net worth of $95,594.00, most of which was developed after the divorce.

The appellee’s circumstances also changed. At the time of the divorce, she was unemployed and her only income was $277 per year from interest and dividends. After the divorce, she obtained employment as a travel agent and at the time of the modification hearing was earning a gross annual salary of $9,360.00 (about $7000.00 net after payroll deductions), plus unearned income of $1,764.00 per year from interest and dividends. The principal which yields this income is largely derived from her share of jointly held stock purchased during the marriage and her share of the proceeds from the post-divorce sale of the family home in California. At the time of the hearing, as well as at the time of the divorce, she was living with her children in a four bedroom townhouse in Crofton, Maryland, that she rented from her father for $350.00 per month.

There is no indication in the record that her standard of living had changed since the divorce. In her testimony, appellee showed that to maintain that standard her expenses for herself and the three children averaged $1343.62 per month, or approximately $16,128.00 per year. She allocated these expenses between herself and the three children as approximately $4740.00 for herself and $11,378.00 for the children. To meet those combined needs she was receiving the following yearly amounts:

Alimony - $3,300

Child Support - 5,400 ($150 per month for 3 children)

Salary (net), interest and dividends - 8,764

Total $17,464

We now consider separately appellee’s claim for increased alimony and child support.

Alimony

The inquiry here is whether there has occurred such a material change in circumstances as to justify the chancellor in increasing the alimony set by the original decree in 1972. Stansbury v. Stansbury 223 Md. 475, 164 A.2d 877 (1960). It is clear that the change in the appellee’s financial situation was such that no increase was warranted. Her income has risen from practically zero ($277 per year) to the point where at the time of the modification hearing it amounted to a net income of approximately $8700.00. In addition, she was receiving $3300.00 per year in alimony, or a total annual income of approximately $12,000.00. In view of the lack of any evidence that her actual needs exceeded that figure, the question arises as to whether the increase in the appellant’s income, standing alone, is sufficient to justify the ordered increase. In the circumstances of this case, we hold that it is not.

The appellee relies heavily on the case of Lott v. Lott, 17 Md. App. 440, 302 A.2d 666 (1973). In that case, it was argued that a substantial change in the circumstances of both parties since the original award is a prerequisite to increasing an origina,! award of alimony and child support. We rejected that argument and affirmed an increased award even though the former wife’s needs had not substantially changed since the date of the original award. Speaking for the Court in that case, Judge Carter said:

“It seems clear from the principles enunciated in the above cited cases and text that a substantial increase in the husband’s income alone can, under appropriate circumstances, be legally sufficient to justify an increase in the amount of alimony even though the wife’s needs continue as they existed at the time of the initial award. Whether or not an increase is justified in such a situation, however, is to be determined by an application to the changed conditions of all the relevant principles that are applied in fixing the amount of the original award of alimony.” (Emphasis added). (Footnotes omitted).

The important phrase in the above quotation is “under appropriate circumstances.” In Lott, the husband was a doctor who deserted his wife and child and disappeared with his paramour for approximately nine months. At the time of the desertion the parties enjoyed a rather high standard of living from his then “lucrative practice.” When the husband returned nine months later, his wife obtained a divorce from him on the ground of adultery. At the time of the divorce, he was beginning anew the practice of medicine that he had lost during his absence. The alimony and support awarded the wife in the divorce decree reflected his comparatively low income at the time. Following the divorce, his income substantially increased approximating his income at the time of his desertion. Approximately one year after the divorce his former wife petitioned for an increase in alimony and child support. The chancellor ordered, and this Court affirmed, an increase in direct proportion to the increase in the doctor’s net earnings before taxes since the original decree.

It is apparent that the justification for the increased award in Lott was the fact that it was needed by the former wife to maintain the standard of living to which she was entitled at the time of the original decree. The original award did not meet that need because of the husband’s temporarily reduced income at the time. Thereafter, his income rose to the point that permitted the need to be met. Thus, the circumstances were “appropriate” for increasing alimony “even though the wife’s needs continue[d] as they existed at the time of the initial award.” Lott v. Lott, supra, at 447.

Lott does not mean that irrespective of the former wife’s needs she is entitled to an increase in alimony so as to keep pace with the former husband’s standard of living. All that was meant in Lott was that when, as there, a husband was directed to pay alimony, based on his income, and which did not meet the needs of the wife, a substantial increase in the former husband’s income, alone, would justify an increase in alimony so as to satisfy the original “needs” of the wife.

In the case now before us, even though the former husband’s income has substantially increased since the divorce, there is nothing in the record to indicate that the initial award was not commensurate with the standard of living to which the appellee was then entitled; nor indeed, is there anything in the record to indicate that the initial award together with her own resources are now inadequate to enable the appellee to maintain that standard. The circumstances of the instant case are therefore not “appropriate,” as they were in Lott, for basing an increased award solely upon an increase in the former husband’s income. A divorced spouse is entitled to alimony only to the extent that “the spouse’s income is insufficient to care for his or her needs.” Md. Code, Art. 16, § 5 (1957, 1973 Repl. Vol., 1977 Cum. Supp.). An important factor in determining “needs” is the station in life of the parties at the time of the divorce or enforced separation. Waters v. Waters, 191 Md. 436, 62 A.2d 250 (1948). The “needs” of the obligee spouse do not ordinarily include the “need” or the right to have his or her standard of living keep pace with that of the other spouse after a final divorce.

Absent “appropriate circumstances,” the rule in other jurisdictions that have considered the precise question (i.e., whether an increase in the obligor spouse’s income, standing alone, will justify an upward modification of an original alimony award) seems to be as expressed by the Court of Appeals of Arizona in Sheeley v. Sheeley, 10 Ariz. App. 318, 458 P.2d 522, 525 (1969):

“We are aware that a change in the financial circumstances of the parties involved are [sic] one of the totality of circumstances which should be considered by the trial court in considering a modification of a divorce decree. An increase in the earning capacity of the husband after the divorce, standing alone, however, is not sufficient. A former wife has no continuing right to share in future accumulations of wealth by her divorced husband.” (Citations omitted). (Emphasis supplied).

See also Arnold v. Arnold, 332 Ill. App. 586, 76 N.E.2d 335 (1947), where one of the issues was whether an increase in the divorced husband’s assets and income entitled the divorced wife to live on a higher scale than at the time of the divorce. The Appellate Court of Illinois held: “The station in life to which defendant had accustomed plaintiff at the time of the entry of the decree and prior thereto is the station in life in which he is bound to maintain her now.” 76 N.E.2d at 340. Although the Illinois Court increased the alimony in that case, it did so only because an increase was necessary to compensate for the inflationary costs of maintaining her standard of living and not merely because of her former husband’s increased income and assets. In the present case, as we have said, there has been no showing that an increase is necessary under the circumstances.

The rationale for the rule is well expressed by the Supreme Court of Oregon in Feves v. Feves, 254 P.2d 694 (1953). After stating the general rule that in a modification proceeding an obligor spouse’s “improved financial status, if any, does not of itself ordinarily warrant an increase [in alimony],” the Court said:

“Divorce terminates the marital status. Thereafter, the parties bear no relation to each other. They are as strangers. But for the statute, no obligation whatever would exist for further support and maintenance of the former wife.[]
It is manifest that this statutory obligation for support and maintenance should not be so interpreted as to continue the rights of the former wife just as though no divorce had been granted. The statute does not contemplate a continuing right in her to share in future accumulations of wealth by her divorced husband, to which she contributes nothing.” Id. at 700.

Based on the principles enunciated in the above cited authorities, we hold that, in the circumstances of the case at bar, the chancellor was clearly wrong in ordering an increase in alimony.

On the other hand, we do not believe that the chancellor was clearly wrong or abused his discretion in refusing to abate or eliminate alimony altogether. The appellant does not argue on appeal that he is unable to pay the amount awarded by the original divorce decree. There is no question that appellee’s living expenses have increased dramatically since the divorce, not only for herself but for her children, the responsibility for whose support and maintenance she must share with the appellant. Although her own income would now appear to compensate for these increased expenses, we do not believe that her demonstrated ability to provide some support for herself requires a holding that under all the circumstances there is no longer a need for the alimony originally awarded her.

II

Nor do we believe that the chancellor was clearly wrong or abused his discretion in increasing the amount of child support from $150.00 per month for each of the three children to $250.00 per month per child. This represents a total annual contribution from the husband for child support of $9000.00. In view of the uncontradicted testimony of the appellee that the cost of caring for the children was $11,378.00 per year and considering the disparity in income of the parties, we see no reason to disturb the increased award for child support. Moreover, the principle that a divorced wife is not entitled to share automatically in future accumulations of wealth by her divorced husband does not apply with equal force to the matter of child support. After a final divorce, the husband-wife relationship ceases to exist. The parent-child relationship, however, is not affected by the divorce. The parties, though no longer man and wife, are still the parents of their children. The children’s station in life should not therefore be fixed forever to their parents’ station in life at the time of the divorce. It follows, therefore, that if thereafter either parent’s income increases to the point where either of them enjoys a higher standard of living than obtained at the time of the divorce, their children should be entitled to have their needs measured by the higher standard.

Ill

The appellee testified that on the morning of the modification hearing her son, John, then aged 16, had joined the U.S. Marines. The hearing took place on September 18, 1978. Before the chancellor decided the case, counsel for appellee informed the chancellor by letter dated October 6, 1978, that appellee “had just received a call from the United States Marine Corps indicating that John was being discharged and would be home in five days.” The letter further stated: “At this time, we have no details concerning the discharge. However, the fact of the discharge obviously will have some bearing on your deliberations in this case, and I wanted you to be aware of it.” A copy of the letter was sent to appellant’s counsel. In his memorandum accompanying the order of October 28,1978, the chancellor stated that in view of this information, “the Court assumes he [John] has returned to live with Mrs. Cole.” The order awarded increased child support for John as well as the other two children living with the appellee. The order, filed on October 28, 1978, directed that the increase be retroactive to February 23,1977, thus covering a period of 20 months of the increased payments prior to November 1978 (when the increased payments would otherwise have become operative).

The appellant argues on appeal that it was error for the chancellor to have awarded child support for John on the basis of “extra-judicial information and assumption.” In his brief, the appellant, “in all candor” concedes that he “has since verified his son’s discharge from the Marine Corps; but he has never been able to determine his son’s current status.” He states further in his brief that “[h]e is informed that John is now employed and, presumably, emancipated.”

We think it was error for the chancellor to base the child support for John upon a matter that was not in evidence. Under the circumstances, however, we think the error was harmless, or, at the least, waived by the appellant so far as these proceedings are concerned. The letter of October 6th from appellee’s counsel to the chancellor must certainly have been regarded by appellant as a request to consider John Cole as an unemancipated child because of his discharge from the Marines and his imminent return to his mother’s home. The appellant, however, took no action to object to the granting of that request. The objections now being raised on appeal were never presented to the chancellor in this proceeding, although there was ample opportunity to do so, both before and after the court order of October 28, 1978. Moreover, in the subsequent contempt proceedings filed against the appellant for his failure to pay the increased awards of alimony and child support, including support for John, the appellant made no objection to the amount of the arrearage claimed to be due for John’s support. The arrearage claimed by the appellee did not include any support payments for John for the months during which the appellee concedes that John was in an emancipated status, but did include the months before and after those two months. Furthermore, in his appeal of the contempt judgment in Appeal No. 519, the appellant does not question the amount of the monetary judgment entered against him. As we shall see, infra, his only claim there is that if the order for increased support is reversed in this appeal (Appeal No. 159) the contempt judgment should also be reversed. Additionally, we note that after the two months hiatus (October and November 1978) the appellant, voluntarily and without apparent objection, resumed paying child support for John in the amount originally ordered by the 1972 divorce decree — action on his part that is completely consistent with appellee’s position that except for the two months hiatus John was not emancipated.

For the foregoing reasons we do not believe that the technical error of the chancellor in “assuming” John to be unemancipated has given the appellant any just cause for complaint in this appeal.

IY

Appellant’s final complaint in this appeal (Appeal No. 159) is that the chancellor abused his discretion in making the increased awards retroactive to the date on which appellee filed her petition for modification. We find no abuse. We are referred to nothing in the record showing that whatever justification existed for the increased awards on the date of the chancellor’s order did not also exist in February, 1977, when the petition was filed.

APPEAL NO. 519

On February 5, 1979, while Appeal No. 159 was pending, the appellee filed in the proceedings a “Petition to Cite Defendant For Contempt of Court and For Monetary Decree” (emphasis added). The petition was based on appellant’s failure to pay the increases in alimony and child support as directed by the order filed on October 28, 1978, from which the appeal had been taken. There was no claim that the amounts awarded by the original divorce decree had not been paid. In his answer to the petition, the appellant conceded that he had not paid the ordered increases and did not dispute the amount of the arrearage. By order filed March 30,1979, the chancellor,

“ADJUDGED, ORDERED, and DECREED: That the Defendant is in contempt of this Court, and will be dealt with accordingly if found in this jurisdiction;
That the Clerk enter a monetary decree in favor of Nancy B. Cole against William Sterling Cole, Jr. for $10,125 (the arrearage to 23 March 1979) and costs.”

In Ms appeal from that order, the appellant, to quote from his brief,

“... does not contend that the appeal from the October 23, 1978 [filed October 28, 1978], decree stayed that decree or divested the lower Court of its power to enforce that decree by contempt citation or award of monetary judgment for arrearages found to be due under that decree. Link v. Link, 35 Md. App. 684, 371 A.2d 1146 (1977).”

In the view we take of the March 30th order, it is separable into two parts. The first paragraph of the order deals with what was clearly a constructive civil contempt proceeding. It was “constructive” because the contempt “was not committed in the presence of the court” (Md. Rule P 1 b). It was “civil” because it was a proceeding “intended to preserve and enforce the rights of private parties to a suit and to compel obedience to” an order “primarily made to benefit such parties,” State v. Roll and Scholl, 267 Md. 714, 728, 298 A.2d 867 (1973). As said in State v. Roll and Scholl, “These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging." (Emphasis supplied). Id. at 728. See also Herd v. State, 37 Md. App. 362, 377 A.2d 574 (1977) and Antonelli v. Antonelli, 44 Md. App. 384 (1979). The contempt order in the present case does not meet that requirement. It must therefore be reversed.

The second part of the March 30th order simply provides for a monetary judgment for the arrearages of alimony and child support in the amount of $10,125.00. Such a judgment is not dependent upon an adjudication of contempt. It could have been obtained independently of any contempt proceeding. Consequently, although we have found the contempt portion of the order to be invalid, it does not follow that the entire monetary judgment must also fall.

As we have affirmed the child support increases awarded by the October 28th order in Appeal No. 159, that portion of the monetary judgment pertaining to child support will be affirmed. That amount is $7,000.00.

With respect to that portion of the monetary judgment based on the unpaid arrearage of the increased alimony award, however, we shall reverse. That amount is $3,125.00. A money judgment based on an erroneous alimony award cannot be allowed to stand — not because the chancellor lacked the power to enter the judgment or that it was improper at the time it was entered, but because the foundation for the judgment has been shown upon a timely appeal to no longer exist.

In Appeal No. 159, that portion of the order filed October28,1978, in the Circuit Court for Anne Arundel County awarding increased alimony is reversed; all other portions of the order are affirmed.

In Appeal No. 519, that portion of the order of March 30, 1979, finding appellant in contempt is reversed; the money judgment entered as part of that order is reduced to $7000.00, plus interest from March 30, 1979, and as reduced the judgment is affirmed.

Costs to be paid by appellant.

      . The petition stated that since the divorce the parties’ oldest son, William, had become “emancipated.”

      . The cross-petition also prayed for custody of the children and to be relieved of certain portions of the Agreement concerning his life insurance program for the benefit of the children. These matters are not at issue in this appeal.

      . In her list of expenses, appellee showed that she received $75.00 per month from her parents. We do not regard this as an item of expense.

      . Exclusive of the $900 per year ($75 per month) from her parents.

      . There may be other circumstances than those that existed in Lott v. Lott under which it may be “appropriate” on equitable principles, to increase an original alimony award based alone on the increased income of an obligor spouse. “A classic example would be the working wife who helps her husband through professional school, or the early years of professional or business growth, only to be displaced as the husband begins to reap the gains from a jointly invested foundation of savings, abstentions, and sacrifices.” Hunter v. Hunter, 198 N.Y.S.2d 1008 (1960).

      . Having determined that the circumstances are not “appropriate” for an increase in alimony, we, of course, do not reach the issue of the amount of an increase. There is, therefore, no occasion to consider, as the appellee urges us to do, the various factors that may be relevant to a determination of the amount of an increase.

      . See Bender v. Bender, 282 Md. 525, 529, 386 A.2d 772 (1978), to the same effect: “Divorce, unknown at common law, is entirely a creature of statute; similarly, the authority for allowing alimony in connection with a divorce stems solely from legislative enactment, through the standards governing its award, i.e. the factors to be taken into consideration in arriving at a proper amount, are judicially created.” (Citations omitted).

      . In urging that no part of the money judgment be disturbed, the appellee cites Rand v. Rand, 40 Md. App. 550, 392 A.2d 1149 (1978). In that case, we held that a party who had made child support payments pursuant to a valid court order had no “right of total recoupment” following a reversal or modification of the order on appeal — that the extent of recoupment was a matter for the trial court to determine in its discretion on the evidence. We see no application of the principles enunciated in Rand to the present case. Here, there is no claim for recoupment or restitution of money already paid, nor does that portion of the judgment being reversed involve child support, nor, as we have held in Appeal No. 159, does it appear that there was any need for the increased alimony.


author: Wilner, J.,

text:
    TONY MITCHELL a/k/a Gregory Howard Carpenter and FARRAKHAN BEY a/k/a Frank James Gainey v. STATE OF MARYLAND
    [No. 223,
    September Term, 1979.]

      Decided December 21, 1979.

    The cause was argued before Gilbert, C. J., and Morton and Wilner, JJ.

      Thomas J. Saunders, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellants.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, Warren F. Sengstack, State’s Attorney for Calvert County, and Stephen L. Clagett, Deputy State’s Attorney for Calvert County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

On March 4, 1977, three men armed with at least one handgun entered the Knotty Pine Bar and Grill, a tavern owned by Viola and Burton Foote. They proceeded then (1) to take currency and cheeks from the tavern cash register and safe, from Viola Foote’s purse, and from Marcus Gantt, a customer who entered the establishment while the robbery was in progress, (2) to shoot and kill John Bishop, an employee of the tavern, (3) to shoot and wound Burton Foote, and (4) to hit Viola Foote on the head with a gun. The three assailants were subsequently identified as Walter West, Tony Mitchell, and Farrakhan Bey.

As a result of this eipsode, a series of multi-count indictments were returned against West, Mitchell, Bey, and one Richard Bresee, who had allegedly conspired with the first three to commit the Knotty Pine robbery but had not actually participated in its commission. The indictments against Mitchell were as follows:

(1) No. 18,118 charged eight crimes involving John Bishop: murder, robbery with a deadly weapon (hereafter “armed robbery”), assault and battery, use of a handgun in the commission of a felony or crime of violence (hereafter “handgun violation”), and four counts of conspiracy.

(2) No. 18,121 charged sixteen crimes involving Burton Foote: armed robbery, larceny, receiving stolen goods, handgun violation, four counts of assault, and eight counts of conspiracy.

(3) No. 18,124 charged the same sixteen crimes as No. 18,121, with respect to Viola Foote.

(4) No. 18,134 charged twelve crimes involving Marcus Gantt: armed robbery, larceny, receiving stolen goods, handgun violation, two counts of assault, and six counts of conspiracy.

The indictments against the other three — West, Bey, and Bresee — were similar to those returned against Mitchell, but are not particularly relevant to this appeal.

On March 6, 1977, a man later identified as Bey coerced Susan Axley at gunpoint to drive him to her home in her car. Bey removed money from her handbag. Upon arriving at the Axley home, Bey forced Thomas Axley, Susan’s husband, to transport him to the water where he took a motorboat belonging to Mrs. Daniel Head.

As a result of this occurrence, Bey was charged under three more indictments — Nos. 18,125,18,126 and 18,137 — for the crimes committed on March 6 against Susan Axley, Thomas Axley, and Mrs. Daniel Head.

Over the objection of all four defendants, trials of Bey, West, Mitchell, and Bresee for the March 4 events and trial of Bey for the crimes committed on March 6 were consolidated and held concurrently before the same jury sitting in the Circuit Court for Prince George’s County.

At the conclusion of the State’s case — well after jeopardy had attached to each of the four defendants — the State nol prossed & number of counts in each indictment. The remaining counts were subsequently submitted to the jury, which returned a verdict on each of them. The result, as to Mitchell, was as follows:

(1) No. 18,118 (Bishop): all counts except murder and the handgun violation were nol prossed; Mitchell was acquitted of murder and convicted of the handgun violation.

(2) No. 18,121 (Burton Foote): all counts except armed robbery, assault with intent to murder, handgun violation, and conspiracy with Bey and West to commit armed robbery were nol prossed; Mitchell was acquitted of assault with intent to murder and convicted of the remaining counts.

(3) No. 18,124 (Viola Foote): same as No. 18,121 except that the jury convicted on all counts not nol prossed.

(4) No. 18,134 (Gantt): all counts except armed robbery, handgun violation, and conspiracy with Bey and West to commit armed robbery were nol prossed; Mitchell was convicted on remaining counts.

Bey was convicted on all counts against him that were submitted to the jury, and West and Bresee were also convicted of various crimes. It is not necessary to catalog the outcome of all the charges against them.

All four defendants appealed from the judgments entered upon the guilty verdicts. They alleged numerous grounds for reversal, one of which was the prejudicial joinder of Bey’s trial for the March 6 incidents, which did not involve in any way the other three defendants, with the trial of all four for the March 4 events. This Court, in an unreported per curiam Opinion, West, et al. v. State (No. 1148, Sept. Term, 1977, filed July 13, 1978), reversed all guilty verdicts against all defendants on the sole ground of prejudicial joinder and remanded all cases for new trials. We specifically did not reach any of the other issues presented in that appeal, concluding that it was not necessary to do so.

On remand, in response to various motions, the court (1) denied the motions of Mitchell and Bey to dismiss the indictments on grounds of double jeopardy, (2) granted the State’s motion to consolidate the trial of all defendants with respect to charges emanating from the March 4 incident, and (3) did not decide certain motions to suppress evidence. Mitchell and Bey have taken an immediate appeal from the denial of their motions to dismiss. Such a ruling, although interlocutory in nature, is nevertheless immediately appealable. See Stewart v. State, 282 Md. 557 (1978).

The issues raised by appellants are stated as follows:

“I. The acquittal of Appellant Mitchell of murder and assault with intent to murder in indictment #18,118 collaterally estops the State from prosecuting Appellant Mitchell for either the remaining charge in indictment #18,118 or any of the other charges arising out of the March 4 incident.
II. The State is barred from further prosecuting Appellants due to the double jeopardy clause of the fifth amendment.
A. The Court of Special Appeals Failed to address questions concerning the sufficiency of the evidence.
B. The Court of Special Appeals Failed to address questions relating to the overall trial and violations of Appellants’ rights.
C. Retrial of Appellants would otherwise subject them to double jeopardy.
D. The duplicitous conspiracy charges against Appellant Mitchell will subject him to double jeopardy.”
(1) Retrial of Mitchell on Indictment No. 18,118

As noted, Indictment No. 18,118 contained eight counts, each dealing with a crime perpetrated on John Bishop. Six counts were nol pressed; two were submitted to the jury, which acquitted Mitchell of murder and convicted him of the handgun violation.

It is, of course, clear that Mitchell may not be retried either on the murder count, of which he was acquitted, or on the counts that were nolprossedbj the State without his consent; and it does not appear that the State has made any effort to the contrary. The question here is whether he may be retried on the handgun count; and to resolve that question, we must consider the effect of a nol pros, as opposed to a direct acquittal, in terms of the “constitutionalized” doctrine of collateral estoppel.

Conviction of Mitchell on the handgun count in the face of a direct acquittal on all of the underlying felonies or crimes of violence to which that count could relate would clearly have been an inconsistent verdict. When rendered at the same trial, however, such inconsistent verdicts may stand, for, as described by the Court in Ford v. State, 274 Md. 546, 552 (1975):

(1) “Each count of an indictment is regarded as if it were a separate indictment, and the inquiry is whether the evidence is sufficient to support the conviction on that count without regard to the disposition of other counts." (Emphasis supplied), quoting from Williams v. State, 204 Md. 55, 64 (1954); and
(2) “Consistency in the verdict is not necessary...
“That the verdict may have been the result of compromise, or of a mistake on the part of the jury is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” Id., quoting from Dunn v. United States, 284 U.S. 390, 393-394 (1932).

The same rationale does not necessarily apply, however, where the inconsistency would arise from separate and successive trials. Rather than being the possible product of compromise or mistake, an inconsistent verdict rendered after a second trial would involve the relitigation of facts and issues previously decided in the defendant’s favor; and the doctrine of collateral estoppel precludes that from happening.

The United States Supreme Court made clear in Ashe v. Swenson, 397 U.S. 436 (1970), that collateral estoppel applies to criminal cases and is of Constitutional dimension. It is “embodied in the Fifth Amendment guarantee against double jeopardy,” 397 U.S. at 445, and thus binding upon the States through the “due process” clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 (1969); Greene v. Massey, 437 U.S. 19 (1978). This doctrine, so embodied in the broader concept of double jeopardy, was defined by the Court in these terms, 397 U.S. at 443: “It [collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit....” (Emphasis supplied.) See also Simpson v. Florida, 403 U.S. 384 (1971); Harris v. Washington, 404 U.S. 55 (1971). The Court of Appeals said of this doctrine in Powers v. State, 285 Md. 269 (1979), that

“The primary purpose of the doctrine of collateral estoppel ... is to avoid compelling an accused to prove his innocence to two or more juries. More precisely, the doctrine's purpose is to avoid compelling relitigation of a fact material to the question of innocence when it appears substantially certain that a jury has already decided that fact in the accused’s favor.” 285 Md. at 287. (Emphasis supplied)
and
.. If the jury in the second trial were to convict on the related offense, inconsistent verdicts in successive trials would result— an acquittal on one count in the first trial and, in the second trial, a conviction on the related count having a common issue of ultimate fact essential to conviction. Under established collateral estoppel principles, such a result is impermissible.” 285 Md. at 288. (Emphasis supplied)
and
“The very nub of collateral estoppel is to extend res judicata beyond those cases where the prior judgment is a complete bar. The Government is free, within the limits set by the Fifth Amendment,... to charge an acquitted defendant with other crimes claimed to arise from the same or related conduct; but it may not prove the new charge by asserting facts necessarily determined against it on the first trial, no matter how unreasonable the Government may consider that determination to be....” (Citations and footnote omitted) (Emphasis added) 285 Md. at 285, quoting United States v. Kramer, 289 F.2d 909, 916 (2d Cir. 1961).

As both the statute (Md. Ann. Code art. 27, § 36B(d)) and Ford v. State, supra, 274 Md. 546, make clear, in order to convict Mitchell at a retrial of the handgun violation charged in Indictment No. 18,118, it will be necessary to prove beyond a reasonable doubt that he used a handgun in the commission of a felony or crime of violence committed against John Bishop as charged in the other counts in that indictment. Thus, under the principles noted above, had there been in the earlier case a conclusive determination that Mitchell did not commit such a felony or crime of violence, that determination simply could not be relitigated.

The critical question here, however, is whether there has in fact been a prior determination, in Mitchell’s favor, of the facts necessary to support a new conviction on the handgun charge. Does a nol pros, entered at the conclusion of the State’s case, but without benefit of any factual predicate or explanation for it, serve as a determination of ultimate issue of fact in the defendant’s favor so as to trigger the application of collateral estoppel? From the context of the cases in which the doctrine has been applied, and from the language used by the Courts in describing and applying the doctrine, we think not.

Ashe v. Swenson and the other cases in which the Supreme Court has invoked this doctrine have all involved situations where the issues of fact sought; to be retried had previously been adjudicated by means of a verdict rendered by the trier of fact. The defendant had been acquitted by a judge or a jury, and that acquittal necessarily involved the resolution of disputed underlying facts in the defendant’s favor. See, for example, in addition to Ashe, Simpson v. Florida, supra, 403 U.S. 384; Harris v. Washington, supra, 404 U.S. 55; Turner v. Arkansas, 407 U.S. 366, 370 (1972). That was also the case in Powers v. State, supra. We are aware of no instance in which the doctrine has been held triggered by a nol pros.

As the Supreme Court pointed out in Ashe, collateral estoppel is a doctrine that arose in the civil, rather than the criminal, law; and it is therefore not inappropriate to look at how the doctrine has been viewed and applied in civil cases. The touchstone of the doctrine in the civil law is the requirement that the earlier determination — that which forms the basis of the estoppel —- be a judgment on the merits; and in that context, it has generally been held that a judgment for the defendant entered upon a voluntary nonsuit, nolle prosequi, or non prosequitur is not a judgment on the merits and does not bar a subsequent action. See Steele v. Beaty, 2 S.E.2d 854 (N.C. 1939); Bucci v. Detroit Fire & Marine Ins. Co., 167 A. 425 (Pa. Super. 1933); 2 Freeman on Judgments 1584 (§ 753); 50 C.J.S. Judgments § 632.

The reason for this is evident from the very nature of a nonsuit, a voluntary dismissal. It terminates the action prior to a decision on the merits. The case is ended without the adjudication of disputed facts necessary to render a judgment on the merits. This is equally true with a nol pros entered in a criminal case. Although if entered after jeopardy attaches and without the defendant’s consent, it serves as an acquittal and, by virtue of traditional double jeopardy principles bars reprosecution for the same offense, it nevertheless, like its cousin the nonsuit, terminates the cause without an adjudication of disputed facts. The defendant is deemed acquitted and the imputation of guilt is removed (see Greathouse v. State, 5 Md. App. 675, 685-687 (1969)), but there has been no adjudication that he did not commit the offense alleged.

When this aspect of a nol pros is considered in light of the language used by the Supreme Court in Ashe and by the Court of Appeals in Powers, it becomes apparent that such a premature termination does not suffice to trigger the “constitutionalized” doctrine of collateral estoppel. An “issue of ultimate fact” has.not “once been determined.” Ashe, 397 U.S. at 443. Retrial on the handgun charge does not involve the assertion by the State of “facts necessarily determined against it on the first trial....” Powers, 285 Md. at 283. See also Sealfon v. United States, supra, 332 U.S. 575; Brown v. Ohio, 432 U.S. 161, 165 (1977); Sanabria v. United States, 437 U.S. 54 (1978); especially footnote 31, p. 73; United States v. Nash, 447 F.2d 1382 (4th Cir. 1971).

Accordingly, the court did not err in denying Mitchell’s motion to dismiss Count 4 of Indictment No. 18,118.

(2) Retrial of Mitchell on Other Remaining Charges

At Mitchell’s “express direction” but without relevant authority, it is contended that Mitchell’s acquittal on the murder count in No. 18,118 also requires dismissal of the remaining charges under the other indictments. This contention is patently without merit. As noted, the other indictments charged entirely separate offenses against other persons. The fact that the jury may not have been convinced beyond a reasonable doubt that Mitchell murdered Bishop would have no effect on the issue of whether he robbed or assaulted the Footes or Gantt, or conspired to do so. Neither collateral estoppel nor more general principles of double jeopardy would serve to preclude retrial on those open counts.

(3) Failure to Decide Certain Issues Presented In the Earlier Appeal

In the earlier per curiam Opinion of this Court, we said: “On appeal the appellants present fifteen questions for our review. Our decision to reverse the case on the first question [improper joinder] renders it unnecessary to discuss the balance of the issues presented. Upon retrial those questions may not arise.” Four of the fifteen issues involved, directly or indirectly, the sufficiency of the evidence in support of some of the convictions; the others dealt with alleged errors in the admission of evidence, instructions to the jury, sentencing, or the trial court’s failure to merge certain of the convictions.

In this appeal, Mitchell and Bey contend that our failure to reach those remaining issues will somehow place them in double jeopardy if they are retried. To the extent that the alleged errors dealt with matters other than evidentiary insufficiency, we may dispose of this contention summarily. Any errors pertaining to sentencing have obviously been cured and pose no double jeopardy problem. With respect to any alleged errors in trial procedure, there is no prejudice; had be considered those issues and decided them in appellants’ favor, the effect would still have been a remand for retrial. Burks v. United States, supra.

The claims of evidentiary insufficiency involve different and more substantial considerations. It has long been the common, and preferred, practice of appellate courts to decide only those issues that are necessary to render a proper judgment or mandate. Where multiple claims are presented but a decision upon one (or less than all) will suffice to decide the appeal, appellate courts have rather consistently declined to address the other, non-essential, issues. This practice is justified by principles of judicial efficiency as well as the equally long established practice of declining to decide issues that, in a practical sense, become moot.

Until Burks v. United States, supra, there was no reason to except from this practice issues dealing with evidentiary sufficiency. Under Gray v. State, 254 Md. 385, 393 (1969), cert. den. 397 U.S. 944, “the practice of remanding for a new trial after reversal for insufficiency of the evidence rather than remanding for entry of a judgment of acquittal, [was] permissible----” Thus, where reversal of a criminal conviction was required on some other ground, there was no reason to pore over the record to determine the sufficiency question. As a retrial was ordinarily ordered, and would have been ordered even if the sufficiency question had been decided in the accused’s favor, that question became moot and no prejudice resulted to the defendant from not deciding it.

Under Burks and Green v. Massey, supra, 437 U.S. 19, however, that situation no longer prevails. See Mackall v. State, 283 Md. 100, 114 (1978). The Supreme Court has made clear that “the Double Jeopardy Clause precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict....” Greene, 437 U.S. at 24. Thus, at least since Burks, when an appellant in a criminal case raises the sufficiency issue on appeal, he has a definite and Constitutionally based interest in having it determined. Because of Burks, the sufficiency issue can no longer become moot, notwithstanding the existence of other grounds for reversal. Unless the appellant has in some way waived his right to appellate review on that issue, it must be decided, for it is upon that decision that the question of a retrial will hinge.

Burks was decided a month prior to our per curiam decision in appellants’ earlier appeal. Thus, despite their failure to press for a decision on the sufficiency issues following the filing of the panel’s Opinion, to the extent that such a decision is germane to the issue of double jeopardy presently before us, they are entitled at this point to have those issues resolved.

Appellants raise in this appeal four issues dealing with the sufficiency of evidence introduced in their prior trial, which they contend should have been decided in the earlier appeal. These are stated as follows:

1. Did the variance between the charges that the appellant carried named persons with the intent to conceal them and the proof offered which related only to the intent of causing them to be carried warrant a dismissal of the charges of kidnapping?
2. Was the evidence sufficient to establish beyond a reasonable doubt that force or fraud was used to carry Thomas Axley?
3. Was the evidence sufficient to establish beyond a reasonable doubt that appellant Bey’s acquisition of clothes and money belonging to Thomas Axley constituted a robbery?
4. Was the evidence sufficient to sustain appellants’ conviction of the robbery of Marcus Gantt?

Of these four questions, the first three concern the kidnapping and related charges brought against appellant Bey with respect to the March 6 incident. But those charges have been severed, and the record does not indicate any imminent retrial as to them. All that is properly before us in this interlocutory appeal is the denial of appellant’s motions to dismiss the indictments arising from the March 4 incidents. Accordingly, it is only the fourth question that is relevant to the double jeopardy question at issue here; the other three are premature.

Before us in this appeal is the record made at the earlier trial, from which the relevant sufficiency question arose. Also before us — in part by references and incorporations in appellants’ brief — are the briefs filed in the earlier appeal in which that question was presented and discussed. It is therefore not only necessary, but also appropriate, that we consider and decide it at this juncture.

The standard to be applied in judging the issue of evidentiary sufficiency is that expressed in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979) — whether there was enough evidence for a rational factfinder to have found proof of guilt beyond a reasonable doubt. There is no need for us to recount all of the evidence adduced against these appellants with respect to the robbery of Marcus Gantt. It will suffice that, having read the relevant portions of the record at the trial, in light of the briefs filed in the prior appeal, we believe without any question or doubt that there was sufficient evidence, under the Jackson standard, to sustain the convictions complained of. The testimony of Mr. Gantt alone, if believed, sufficed to establish that he was robbed by appellants of $50. For that reason, retrial on the counts to which that sufficiency argument was raised is not precluded.

(4) Other Issues

Appellants attempt to bring under the umbrella of double jeopardy, and thus to have resolved at this juncture, a number of matters that have nothing to do with double jeopardy. These include alleged errors in the court’s instructions to the jury at the earlier trial, the correctness of the court’s refusal to suppress certain evidence in advance of a retrial, and the court’s consolidation, for retrial, of all charges emanating from the March 4 Knotty Pine robberies. Those issues are not properly before us at this point, arid we shall therefore decline to consider them.

Denial of motion to dismiss affirmed; case remanded to Circuit Court for Prince George's County for retrial in accordance with this opinion; appellants to pay the costs.

      . The handgun count (Count 4) in No. 18,118, unlike the other counts in that indictment, did not specifically refer to Bishop as the victim; however, when considered in the context of the four indictments returned against Mitchell, and the manner in which they were tried, submitted to the jury, and disposed of, it is clear that that count must be so confined. Each of the four multi-count indictments dealt with a different victim — Bishop (18,118), Burton Foote (18,121), Viola Foote (18,124), and Gantt (18,134). Each included a separate but identical handgun charge, all four of which were submitted to the jury under instructions by the court that related to a particular victim (Transcript, pp. 1063,1064). The jury convicted Mitchell on all four handgun counts and sentences were imposed on each of them. In light of this, it would be grossly misleading and á clear violation of double jeopardy principles to consider Count 4 of No. 18,118 as involving anything other than a felony or crime of violence committed against Bishop.
      It is also important to note that the evidence produced against Mitchell with respect to Bishop did not suggest, much less establish, any felony or crime of violence other than those charged in the other counts of No. 18,118. To the extent that the State may wish, upon a retrial, to show such additional offense, it would clearly be precluded from doing so by Burks v. United States, 437 U.S. 1 (1978).

      . The State’s reliance upon Burks v. United States, supra, for the proposition that retrial after appellate reversal is precluded only^ where the reversal is for evidentiary sufficiency is misplaced. Burks did not involve the application of collateral estoppel, ana we do not read that case as sub silentio overruling the principles clearly enunciated in Ashe v. Swenson, supra, and Sealfon v. United States, 332 U.S. 575 (1948).

      . In this appeal, appellants have submitted their case on their brief, which does raise ana discuss the issue at hand.