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Tu v. Maryland10/25/1994
mand of inaccuracies in the facts at the first trial, unless the appellate court expressly permitted that to be done, is unworkable from the appellate standpoint. It would mean that appellate courts would have to articulate that which is not decided in remanded cases, as well as that which is decided. Third, the rule for which the State contends is more consistent with the decisions of this Court applying or discussing the law of the case doctrine.
Prior to the instant criminal cause, no Maryland appellate court in a reported decision has dealt with the interplay between suppression motions in criminal cases and the mandate rule subset of the law of the case doctrine. In the civil arena, decisions of this Court have recognized in a variety of contexts that the evidence may change in further trial court proceedings that follow an appellate decision. We present a few illustrations.
The litigation in Whitridge v. Parkhurst, 20 Md. 62 (1863), and Frisby v. Parkhurst, 29 Md. 58 (1868), involved an oral family settlement in which a mother and her daughter agreed upon the disposition to be made of inherited property on their deaths. The first appeal affirmed an injunction granted to creditors of the mother. Proof of one of the defenses offered, namely, the existence of the family settlement, rested on the deposition testimony of the family attorney taken in another case. 29 Md. at 60. On the first appeal this Court held that the conversations testified to by the attorney could not prove a binding contract. 20 Md. at 85. Thereafter, in this nineteenth century equity proceeding, the defendants fully deposed the attorney and used the more complete deposition as evidence on the merits. 29 Md. at 63. The final decree, favorable to the creditors, was reversed on the second appeal. This Court said that the attorney "has clearly, distinctly and unequivocally sworn that there was an agreement ...." Id. at 66. This Court said that "the state of facts, thus presented, is very different from the proof upon the former appeal, and it is admitted by the counsel for the [creditors] that the evidence must be the same to make the decision upon the former appeal binding upon this." Id. at 67.
The analogy between the Parkhurst litigation and the matter before us is limited. By its nature, an interlocutory injunction is not intended to be a final adjudication of the merits. See Hunter v. Atchison, Topeka & Sante Fe Ry. Co., 188 F.2d 294 (7th Cir. 1951); Moore P 0.404[4.-7], at II-38.
The caveat proceedings in Smith v. Diggs, 128 Md. 394, 97 A. 712 (1916), and Diggs v. Smith, 130 Md. 101, 99 A. 952 (1917), also illustrate a certain lack of rigidity in applying the law of the case doctrine. Issues had been transferred by an orphans' court to a court of law for decision by a jury. The only issue actually submitted to the jury was fraud in procuring the will. The caveators prevailed before the jury, but, on the first appeal, this Court ruled that the court of law erred in failing to instruct the jury "that there was no legally sufficient evidence from which it could find that the will was procured by fraud." 128 Md. at 400, 97 A. at 715. The mandate read: " Rulings reversed and cause remanded." Id. On remand the court of law conducted an entirely new trial, at which additional evidence was presented by the caveators. The court of law ruled that the caveators' case was legally insufficient. On the second appeal this Court made no comment concerning the procedure followed on remand. With respect to the law of the case doctrine, this Court said that "all that is necessary upon this appeal is to consider to what extent additional testimony adduced at the second trial should operate to modify the conclus
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