Sewell v. State

Panel: Wright, Graeff, Irma S. Raker (Senior Judge, specially assigned), JJ. Opinion by Raker, J. ⁹⁹ Appellant Kevin Sewell appeals from the judgments of convictions in the Circuit Court for Worcester County for the offenses of first degree murder, child abuse in the first degree, and neglect of a minor. He presents the following questions for our review: "1. Did the trial court err in admitting privileged marital communications? 2.

Should this Honorable Court exercise plain error review and reverse Appellant's convictions based on the State's improper opening argument?" We shall hold that the trial court erred in admitting into evidence communications between appellant and his wife which were privileged marital communications. Because ⁶⁷³ we ¹⁰⁰ reverse on this issue, we do not address appellant's second issue. 1 I. The Grand Jury for Worcester County returned an indictment charging appellant with the offenses of first degree murder, child abuse in the first degree, second degree murder, and neglect of a minor child. He proceeded to trial before a jury and on September 23, 2015, the jury found appellant guilty of first degree murder, child abuse in the first degree, and neglect of a minor child. The court imposed a term of life imprisonment without the possibility of parole for murder; thirty years' imprisonment, to be served concurrently with the life term, for child abuse; and a term of five years' imprisonment to be served consecutive to the life term for neglect.

The following facts emerged at trial. The victim in this case was Luke Hill, a child born on March 28, 2012. Luke died on May 5, 2015, and according to Dr. Wendy Gunther, the cause of his death was shaken/slam syndrome, with additional blunt trauma to Luke's chest, abdomen, back, and extremities, and bite marks on his body. Appellant was Luke's uncle.

He is married to Amanda Sewell, the sister of the victim's mother, Victoria Harmon. Ms. Harmon testified that Amanda and appellant would babysit Luke occasionally, and that she drove Luke to their house on ¹⁰¹ May 2, 2015, leaving him there overnight. When Amanda returned Luke to Ms. Harmon on May 3, his eyes were closed, he was making a "phlegmy kind of sound," and he was covered in bruises. Ms. Harmon called 911 immediately.

Luke was transported to the hospital where he died on May 5. Several witnesses testified that Luke had no injuries before he arrived at appellant's home. Robert Nottingham, a firefighter, testified that on May 3, he had just returned from work when Nick Miller (Ms. Harmon's fiancé) asked him to look at Luke. From his training, he realized that Luke needed an ambulance immediately.

The State charged appellant and Amanda with crimes related to Luke's death. The State compelled Amanda to testify against appellant, granting her use immunity for her testimony. On December 14, 2015, appellant filed a pre-trial motion to exclude from evidence text messages sent by him to his wife, arguing that the messages should be excluded as violative of the marital privilege. On January 13, 2016, the court held a hearing on appellant's motion.

The court denied the motion in an order on January 20, without specifying its reasoning. At trial on September 20, 2016, the State delivered the first two-thirds of its opening statement 2 speaking as the victim. Appellant ⁶⁷⁴ did not object at any time during the State's opening statement. During trial, the State introduced photographs of Amanda's phone screen, displaying the text messages she and appellant exchanged on May 3, with timestamps added to almost every text message.

Appellant renewed his objection to the text message evidence, which the court overruled. Next, the prosecutor and Amanda read the texts, with the prosecutor reading appellant's texts and Amanda reading her own. They read the texts to the jury as follows: 3 ¹⁰² [AMANDA 9:07:22 a.m.]: Everything okay? [APPELLANT 9:14:15]: Ye boo. [APPELLANT 9:14:28]: He doesn't listen worth shit, but we're fine. [APPELLANT 9:14:49]: I think Tori told me he breaks out from grass. [APPELLANT 9:15:02]: I wonder if that's why his neck and chest are broke out. [AMANDA 9:15:48]: His ear is bruised. [APPELLANT 9:16:34]: Yeah, it sure it [sic]. [APPELLANT 9:16:47]: Maybe him and Landon were roughhousing. [AMANDA 9:33:14]: He's very skittish. [APPELLANT 9:40:58]: Yeah, he is. I've noticed. [APPELLANT 9:41:00]: Why, though? [APPELLANT 9:47:55]: He threw up on our sheets. [APPELLANT 9:48:24]: Phoebe was sleeping, and he started screaming, so I made him lay down. [APPELLANT 9:48:32]: Then he threw up on our bed. [AMANDA 9:53:43]: Nice. [AMANDA 9:54:23]: Strip the bed and put what you can in the washer, please. [APPELLANT 10:02:27]: Okay. [AMANDA 10:12:49]: Thank you.

How are you? [APPELLANT 10:13:07]: Good boo boo. [AMANDA 10:32:39]: You going with me to take him home? [AMANDA 10:41:48]: ? [AMANDA 11:20:32]: ? [APPELLANT 11:44:12]: I thought you were taking him tomorrow. [APPELLANT 12:05:59 p.m.]: What time you getting off? [AMANDA 12:32:19]: Today. ¹⁰³ [AMANDA 12:32:27]: 1:30. [APPELLANT 12:35:39]: Okay. [APPELLANT 12:35:53]: That's fine because he's acting like a fucking asshole. [APPELLANT 12:36:20]: He ignores you like he's retarded. He's thrown up twice and all he does is whine. [APPELLANT 12:36:28]: This is the last time. [APPELLANT 12:37:21]: The other thing I have been entertained by is him running around saying butt fuck. He starts clapping and looking for high fives. [AMANDA 12:51:54]: WTF. [AMANDA 12:53:25]: You going to do the yardwork while I'm gone? [AMANDA 12:59:49]: ? [APPELLANT 1:13:57]: I don't know, maybe. [APPELLANT 1:14:10]: This has been a day from hell. He's finally asleep on our room. ⁶⁷⁵ [APPELLANT 1:14:28]: Please get me a bottle.

This has been a day from hell. [APPELLANT 1:25:00]: Please. [AMANDA 1:31:43]: Okay. [AMANDA 1:32:58]: I'll be off around 2. [APPELLANT (unspecified time) ]: Okay. [APPELLANT 2:18:14]: Is it too late for you to get me a shot, too? [APPELLANT 2:18:23]: If so, it's fine. I can run out. [AMANDA 2:19:12]: I'll give you the money. I'm still at work. [APPELLANT 2:19:12]: Okay. [APPELLANT 2:19:16]: I have money. [Counsel establishes that Amanda was driving Luke home by 3:16 p.m., at which time appellant sent the following texts.] [APPELLANT 3:16:16]: Hey, I love you. Be careful. ¹⁰⁴ [APPELLANT 3:16:45]: Don't tell them o [sic] bit him back.

LOL. Blame Landon. [APPELLANT 3:17:01]: I didn't even bite him hard, but, apparently, he bruises easy. [AMANDA 3:18:33]: I told her he had bruises. I'll just say they were all ready [sic] there. [AMANDA 3:18:42]: I love you, too. [APPELLANT (unspecified time) ]: I'm glad we have a day off together. [APPELLANT 3:19:42]: Well, he bit the shit out of me. [APPELLANT 3:19:51]: How else will he learn not to bitw? [APPELLANT 3:19:53]: Bite. [AMANDA 3:20:22]: Right. [AMANDA 3:20:33]: I only get on you because I know you can do better. [APPELLANT 3:20:46]: I'd be more concerned about all the bruises. On cross-examination, Amanda testified that she had called her sister the night prior because Luke was not well, and told her that Luke had a knot on his head, bruises like black eyes, and additional bruises behind his ears and on his arms, legs, and chest.

Her sister did not check on Luke, nor did she come and get him. After several other neighbors and the firefighter Mr. Nottingham testified, the Warden of the Worcester County jail and Jason Hill, an inmate there, testified that appellant told Hill that he struck Luke and Hill reported it to the Warden. Appellant called no witnesses. Fifteen percent of the prosecutor's closing argument 4 consisted of reviewing the text messages between appellant and Amanda as follows: ¹⁰⁵ "[THE STATE]: Cell phones can be a blessing and a curse.

Sometimes probably when you're driving in the car and you're thinking, you know, I would really just like some quiet time, and the phone is ringing, you think of them as a curse. Sometimes they are a blessing, though, like when you need to call 911. For [appellant] they were a curse on May 3rd of 2015 because you were able to, we were all able to, see in great detail what occurred during the morning into the afternoon hours of Sunday, May 3rd. These cell phone text messages give you all a window into 607 Oxford Street just as surely as that window lets you look outside.

The timestamps will tell you when things were said and correlate to what was going on at that time. ⁶⁷⁶ So at that 9:07 Amanda says, everything okay? The Defendant says, ye boo. He doesn't listen worth shit, but we're fine, at 9:14 in the morning. He then says, I think Tori told me he breaks out from grass.

I wonder if that's why his neck and chest are broke out. He's now planning? Amanda mentions that he's very skittish, and [appellant] says, yes, I've noticed. He then confirmed what we already know through the observations and testimony of Amanda, that he threw up on our sheets.

Significant because of the injuries. This is at 9:47:55. We know now why. Phoebe was sleeping, and he started screaming, so I made him lay down.

I made him lay down. Do you remember Doctor Starling's testimony regarding triggers? What makes people do this type of thing? Children that don't listen.

Children who are being potty trained. Children who might wake up another sibling in the house. He then says at 9:48, he then threw up on our bed. Amanda's response, nice.

And then she says, strip the bed and put what you can in the washer, please. And he responds, okay, at 10:02. ¹⁰⁶ At 10:32:39 Amanda says, you going with me to take him home? What's also occurring between 10:30 and 10:45? Christopher Payne is outside in his yard hearing a blood-curdling scream.

Question mark number one and question mark number two, these take place, I submit, because [appellant] hasn't responded to her question, which is, are you going to take-are you coming with me to take him home? He responds one hour and twelve minutes later. And when you look at the text messages, you look at the timestamps and how quickly he responds during the course of the day, except for right now. One hour and twelve minutes to respond, you going home-you going with me to take him home?

I thought you were taking him tomorrow. He inquires what time she's getting off. She responds, we're taking him today, and I get off about 1:30. And he says, at 12:35, that's fine because he's acting like a fucking asshole. [Appellant] says, he ignores you like he's retarded.

He's thrown up twice, and all he does is whine. Triggers? The Defendant, [appellant], says, at 12:36:28, this is the last time. At 1:14 in the afternoon [appellant] sends a text message to Amanda that says, this has been a day from hell.

He's finally asleep on our room. And a few seconds later he says, please get me a bottle. This has been a day from hell. And follows up 11 minutes later with a please.

At 3:16:16 in the afternoon, Sunday, May 3rd, 2015, [appellant] sends a message to Amanda that says, hey, I love you. Be careful. We know from Amanda's testimony that she was in the Chrysler Pacifica at this time taking Luke back to his home. ¹⁰⁷ Luke is unconscious. His eyes are kind of open, and he's snoring.

And [appellant], the Defendant, at 3:16:45 says, don't tell them I bit him back. LOL. Blame Landon. And then says, I didn't even bite him hard, but, apparently, he bruises easy.

And Amanda, going along with it, says, I told her he had bruises, so I'll just say they were already there. ⁶⁷⁷ Amanda tells [appellant] at 3:20:33, I only get on you because I know you can do better." Appellant's closing argument, among other arguments, said appellant had no motive to kill Luke: "There was certainly no motive here to kill. There's no reason. Even if you're dealing with a troublesome and whiny child, he's going home in two hours." The State's rebuttal closing argument addressed the motive question as follows: "[THE STATE]: [Defense counsel] mentions the lack of motive. The motive is and are the triggers were talked about.

Those triggers are in the text messages. And you can always tell the strength or weakness of a case by what the attorney doesn't talk about. What did [defense counsel] not talk about? He didn't talk about, essentially, the confession of [appellant] in the text messages.

He called Luke Hill an asshole. He tried to conspire with his wife to cover up his assaultive behavior. You can't get around that. That's why [defense counsel] didn't discuss it." The prosecutor used one of the text messages to frame the conclusion of his rebuttal closing argument as follows: "[THE STATE]: [Appellant] told his wife at 12:36 on [May 3], this is the last time.

I am confident that when you take the constellation of symptoms, when you take the constellation of injuries, and combine that with what you know is impossible, then you will return a verdict, and that verdict will tell [appellant] that this is the last time." ¹⁰⁸ As indicated supra, the jury returned guilty verdicts on all counts, the court imposed the life sentence, to be served without benefit of parole, and this timely appeal followed.

II

Before this Court, appellant argues that the trial court erred in admitting privileged marital communications, i.e. , the text messages between appellant and his wife. He argues that communications between spouses are presumed to be confidential, and that a waiver of the privilege will be found only in the clearest of circumstances. This presumption of confidentiality, he argues, may be rebutted only "by a showing that the communication was not intended to be confidential, or was made to, or in the presence of a third party." State v. Mazzone , 336 Md. 379 , 384, 648 A.2d 978 , 980 (1994) (internal citations omitted). He maintains that in this case, the State presented no facts to rebut the presumption that the text messages were privileged.

Appellant asks us to recognize as plain error the opening statement of the State where the prosecutor spoke to the jury in the voice of three year old Luke Hill. He considers it a "golden rule" argument in which "a prosecutor improperly appeals to the passions of the jury, and asks jurors to place themselves in the shoes of the victim." The State argues that the trial court exercised its discretion properly in admitting into evidence text messages sent by appellant to his wife's telephone. The State appears to present three grounds to support the admission of the text messages. First, appellant did not meet his burden of establishing the element of "confidentiality" and, therefore, he failed to demonstrate his entitlement to the "narrowly construed" marital privilege.

Because testimonial privileges are not designed or intended to facilitate the fact-finding process or to safeguard its integrity, they are a disfavored departure from the norm, and should be strictly construed. Moreover, according to the State, any ambiguity or close call with respect to whether a privilege ⁶⁷⁸ applies should be resolved against the privilege. ¹⁰⁹ Factually, appellant sent texts to his wife's cellphone while she worked at a restaurant. By sending information over the phone, over which he had no control, he ran the risk that someone besides Amanda would retrieve the message. Concluding, the State asserts that appellant failed to show he had a reasonable expectation of confidentiality in the text messages. 5 Second, in the event appellant is arguing that the admission of the text through appellant's wife violated the testimonial spousal privilege, testimonial spousal privilege does not apply where charges involve the abuse of a child under the age of 18.

See Md. Code, Courts and Judicial Proceedings Article, § 9-106(a)(1). Third, the State maintains that by communicating via text messaging, appellant implicated a third party, i.e. , his service provider, Verizon. The State quotes from Verizon's privacy agreement, which contains a statement that information may be shared pursuant to "subpoenas, court orders or search warrants and as otherwise authorized by law." The State asserts also that even if the admission of the text