¶1dissenting.
¶2I respectfully dissent for the same reasons previously expressed in my dissent in Thomas v. State, 333 Md. 84, 634 A.2d 1 (1993), and I hope this Court is not starting down the proverbial slippery slope by its second reversal of a sentence as cruel and unusual punishment.
¶3Following a jury trial, Epps was convicted of common law battery and sentenced to twenty years imprisonment for throwing approximately a cup of liquid on a prison guard. The purpose of the attack was obviously to provoke the guard into entering Epps cell and enable Epps to commit a more violent assault. Immediately after the battery, Officer Nelson testified that Epps “was standing inside his cell with his fist clenched beating on the door and he said: ‘That’s right, you white MF’er, I did it. Now go get your boys and come in here and get me.’” Less than two months before this battery, Epps was sentenced in the same court to ten years imprisonment for another attack on a guard with a sharp piece of coat hanger. That prior battery, according to the State’s brief, was initiated by Epps throwing “water” on the correctional officers.
¶4One reason why appellate courts should be reluctant to reverse sentences imposed by trial judges is the unique ability of trial judges to evaluate the facts and the individuals before the court. The majority may be ignoring this principle and engaging in its own unjustified fact finding. The majority opinion, without foundation, characterizes the liquid which struck Officer Nelson as “water.” The liquid was not necessarily colorless or odorless as the majority assumes. Officer Nelson did not testify to any perceptible odor, but he testified that “as far as smelling it or putting my nose in it, I didn’t do that.” When asked if the liquid dripping fi’om his arm, the side of his shirt and his pant’s leg had any color, Officer Nelson replied: “No. I couldn’t tell you. I don’t know.” At sentencing, the State’s Attorney argued:
*133“ECI right now, like some of the other institutions in the state, has a [V.D.] problem. They also have the question of AIDS and these people get substance[s] thrown on them to the point now that the legislature is all fit to pass a law which requires the inmates to take a test that’s requested [by] the correctional officers. I think it has to be stopped.”
¶5Although he denied the battery, Epps acknowledged that he had a squeeze bottle, and that inmates sometimes put water, urine, and other substances in those bottles and squirt it through the cell doors. He also acknowledged that he had a toilet in his segregation unit cell from which the “water” could have come. There was simply no evidence what the liquid was and whether, if water, it also contained mucus, saliva, urine, or other noxious substances. Most people would find being doused with this unknown liquid cast from a prison cell to be repulsive and offensive to say the least. The battery was also apparently retaliatory because Nelson gave Epps a disciplinary ticket the day before, and it was clearly an attempt to provoke Nelson into coming into Epps’s cell so that Epps could perpetrate a more violent attack. A three-judge panel reviewed this sentence pursuant to Maryland Code (1957,1992 RepLVol.), Article 27, §§ 645JA through 645JG, and decided it should not be reduced.
¶6Recognizing that the Court cannot reverse a sentence even though it may be harsh or unreasonable, the majority finds this sentence to be cruel and unusual punishment. The fallacy in this analysis becomes apparent if we imagine the identical sentence being imposed pursuant to a statute. The Eighth Amendment and Maryland’s constitutional prohibitions on cruel and unusual punishment are limitations on both legislative and judicial action. See Ralph v. Warden, Maryland Penitentiary, 438 F.2d 786, 788-89 (4th Cir.1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2846, 2869, 33 L.Ed.2d 766 (1972); Bartholomey v. State, 260 Md. 504, 514-16, 273 A.2d 164, 170 (1971), vacated in part and remanded, 408 U.S. 938, 92 S.Ct. 2870, 33 L.Ed.2d 759 (1972). Judges cannot impose punishments which are cruel and unusual, nor can legislatures mandate *134punishments which violate the constitutional prohibition against cruel and unusual punishment. If the sentence in the instant case is, in fact, cruel and unusual punishment, it would be so whether the twenty-year sentence was required by a statute or imposed by a judge exercising discretion. It would certainly seem reasonable for the legislature to enact a statute providing that any inmate who assaults a correctional officer after having been previously convicted of, and sentenced for, assaulting a correctional officer shall be punished by not less than twenty years incarceration.
¶7*135The sentence was harsh, but it was sustained by a review panel of three experienced trial judges with broader statutory sentence review authority than this Court can exercise. Although the battery did not cause physical injury to Officer Nelson, it was certainly loathsome, and it was obviously done to provoke Officer Nelson into entering Epps’s cell so that a more violent attack would be possible. This was a serious battery and prisoners must be warned that repeated batteries on correctional officers will be dealt with severely. Correctional officers should be protected from all batteries by prisoners whether life threatening, injurious, or merely repulsive. Officer Nelson didn’t know, when he was doused with this substance, and still doesn’t know, if the fluid was “water” from Epps’s toilet and/or whether it contained amounts of mucus, saliva, urine, or other noxious substances.
¶8The majority opinion leaves several very important questions unanswered. Since Epps received a ten-year sentence for battery on a correctional officer less than two months before he committed this battery on a correctional officer, why does this not justify doubling his previous sentence for the same crime? A ten-year sentence was obviously not enough to deter Epps from continuing to assault correctional officers. On resentencing, what is the maximum sentence that the trial judge may now impose for this second attack on a correctional officer?
¶9A twenty-year sentence for an intentional battery on a correctional officer by a recidivist inmate, who was previously sentenced to ten years for a prior battery on a correctional officer, should not be considered cruel and unusual punishment, regardless of how the battery was committed and regardless of the composition of the fluid thrown on the officer.
¶10Judge RODOWSKY has authorized me to state that he joins in the views expressed in this dissenting opinion.
¶11. Such a statute seems plausible, especially in light of the recently enacted statute providing that any inmate who falsely imprisons a correctional employee is punishable by imprisonment not exceeding thirty years and that the sentence imposed under this section may not be suspended. See Maryland Code (1957, 1992 Repl.Vol., 1993 Cum.Supp.), Article 27, § 337A.
¶12. In Maryland, twenty-year sentences have been repeatedly sustained for the common law crime of assault and battery. See, e.g., Roberts v. Warden, 242 Md. 459, 461, 219 A.2d 254, 255, cert. denied, 385 U.S. 876, 87 S.Ct. 156, 17 L.Ed.2d 104 (1966); Adair v. State, 231 Md. 255, 256, 189 A.2d 618, 619 (1963); Walker v. State, 53 Md.App. 171, 195, 452 A.2d 1234, 1246-47 (1982), cert. denied, 296 Md. 63 (1983); Brown v. State, 38 Md.App. 192, 195-96, 379 A.2d 1231, 1233-34 (1977), cert. denied, 282 Md. 730 (1978); Raley v. State, 32 Md.App. 515, 526-28, 363 A.2d 261, 268-70, cert. denied, 278 Md. 731 (1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2921, 53 L.Ed.2d 1060 (1977); Wilkins v. State, 5 Md.App. 8, 22, 245 A.2d 80, 88(1968).