State v. Sewell

Adkins, J. It is a fundamental rule of law that the public has a right to every persons' evidence. There are a small number of constitutional, common-law and statutory exceptions to that general rule, but they have been neither "lightly created nor expansively construed, for they are in derogation of the search for truth." Ashford v. State , 147 Md. App. 1 , 63, 807 A.2d 732 (2002) (Moylan, J.) (emphasis removed) (quoting In re Cueto , 554 F.2d 14 , 15 (2d Cir. 1977) ). These exceptions are commonly known as privileges. This case asks us to balance the search for truth against one of the strongest privileges-confidential marital communications.

We weigh the introduction of evidence that tends to implicate child abuse against the protection of the confidential marital communications privilege. In so doing, we resolve the two questions presented: (1) whether this Court should adopt a principle of narrow construction with respect to the marital communications privilege, and (2) whether the trial court properly exercised its discretion by allowing the State to introduce text messages that Kevin Sewell sent to his wife's cell phone. As to the first question, we agree with the State that courts should narrowly construe privileges, including the marital communications privilege. As to the second, we affirm the trial court's decision to admit the text messages, although we diverge from its rationale.

BACKGROUND Factual Overview and Procedural Posture Three-year-old Luke Hill lived with his mother, Victoria Harmon, and her fiancé, Nick Miller, in Keller, Virginia. Luke was a happy, healthy little boy who enjoyed running around, playing outside, and driving his toy Jeep. In late April, Luke went to his pediatrician for a wellness check, and the doctor told his mother that he was "perfectly fine." Approximately one week later, Luke's mother and Nick left Luke in the care of Amanda and Kevin Sewell ("Amanda" and "Kevin," respectively), his aunt and uncle, so that they could enjoy a night out. They arrived at Amanda and Kevin's house in Pocomoke City, Maryland around 3:00 p.m. and visited for a short time, during which Luke and his cousin were running, playing, and wrestling.

When Victoria and Nick departed for Salisbury, Kevin was holding Luke. Kevin played with the boys until around 5:00 p.m. They all ate eggs and bacon for dinner, and afterward, Amanda gave Luke a bath. She testified that during Luke's bath, she noticed, for the first time, that he had "[a] lot" of bruises, including bruising behind his ears, down his neck, on his chest, arms, and legs.

He also had black eyes and a knot on his head. Amanda testified that she called Victoria and told her about the bruises behind his ears and that Luke was not feeling well. Amanda woke up around 5:00 a.m. on Sunday morning, May 3, to get ready for her shift at a nearby restaurant. Luke and his cousin woke shortly thereafter, and Amanda made them breakfast.

She departed for work around 6:45 a.m., leaving the children in Kevin's care. Beginning around 9:00 a.m., Amanda and Kevin sent a series of text messages to each other. 1 [AMANDA 9:07:22 a.m.]: Everything ok? [KEVIN 9:14:15]: Ye boo [KEVIN 9:14:28]: He doesn't listen worth shit but were fine [KEVIN 9:14:49]: I think tori told me he [breaks] out from grass [KEVIN 9:15:02]: I wonder if thats why his neck n chest are broke out [AMANDA 9:15:48]: His ear is bruised [KEVIN 9:16:34]: Yeah, it sure [is] [KEVIN 9:16:47]: [Maybe] him and [Son] were rough housing [AMANDA 9:33:14]: He's very [skittish] [KEVIN 9:40:58]: Yeah, he is I've noticed [KEVIN 9:41:00]: Why, tho [KEVIN 9:47:55]: He threw up on our sheets [KEVIN 9:48:24]: [Daughter] was sleeping n he started [screaming] so I [made] him lay down [KEVIN 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] u can in the washer please [KEVIN 10:02:27]: Ok [AMANDA 10:12:49]: Thank u how are u [KEVIN 10:13:07]: Good boo boo [AMANDA 10:32:39]: U going with me to take him[ home] [AMANDA 10:41:48]: ? [AMANDA 11:20:32]: ? [KEVIN 11:44:12]: I thought u were taking him tomorrow [KEVIN 12:05:59 p.m.]: [What] time u getting off? [AMANDA 12:32:19]: Today [AMANDA 12:32:27]: 1:30 [KEVIN 12:35:39]: Ok [KEVIN 12:35:53]: Thats fine because he's acting like a fucking asshole [KEVIN 12:36:20]: He ignores u like hes retarded hes thrown up twice n all he does is whine [KEVIN 12:36:28]: This is the [last] time [KEVIN 12:37:21]: The other thing I have been entertained by is him running around saying butt fuck. He starts clapping n looking for high fives [AMANDA 12:51:54]: Wtf [AMANDA 12:53:25]: U going to do the yard while I'm gone? [AMANDA 12:59:49]: ? [KEVIN 1:13:57]: Idk [maybe] [KEVIN 1:14:10]: This has been a day from hell Hes [finally] asleep on our room [KEVIN 1:14:28]: Please get me a bottle this has been a day from hell [KEVIN 1:25:00]: Please [AMANDA 1:31:43]: Ok [AMANDA 1:32:58]: I'll be off round 2 [KEVIN (unspecified time) ]: Ok [KEVIN 2:18:14]: Is it too late for u to get me a shot too [KEVIN 2:18:23]: If so its fine I can run out [AMANDA 2:19:12]: I'll give u the money I'm [still] at work [KEVIN 2:19:12]: Ok [KEVIN 2:19:16]: I [have] [money] Amanda testified that when she got home from work on the afternoon of May 3, she went into her bedroom to change and saw Luke covered with a blanket, seemingly asleep. She further stated that without waking Luke, she put a diaper on him, changed his shorts, and Kevin put him in her car.

While Amanda was driving Luke home, she and Kevin exchanged the following text messages: [KEVIN 3:16:16]: Hey I love you be careful [KEVIN 3:16:45]: Dont tell them o bit him back lol Blame [Son] [KEVIN 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 so I'll just say they were all ready there. [AMANDA 3:18:42]: I love u too [KEVIN (unspecified time) ]: Im glad we have a day off together [KEVIN 3:19:42]: Well he bit the shit out of me [KEVIN 3:19:51]: How else will he learn not to bitw [KEVIN 3:19:53]: Bite [AMANDA 3:20:22]: Right [AMANDA 3:20:33]: I only get on u cause I know u can do better [KEVIN 3:20:46]: [I'd] be more con[c]erned about all the bruises When Amanda arrived at her sister's home, Victoria found Luke in a booster seat in the backseat hunched over. He was unresponsive, had a large bump on his head, had a bite mark on his arm, and was making a phlegmy sound while barely breathing. It was later discovered that Luke also had several other bruises. Nick took Luke out of the car, and Victoria called 911.

Nick then went to get a neighbor who was an EMT. Initially, Luke was transported by ambulance to Shore Memorial Hospital in Nassawadox, Virginia but, given the grave nature of his condition, he was promptly transported by helicopter to King's Daughters Hospital in Norfolk, Virginia. Luke was taken into surgery immediately upon arrival. He never regained consciousness.

Luke died on Tuesday, May 5, 2015. Kevin Sewell was charged with (1) first-degree murder, (2) first-degree child abuse, (3) second-degree murder, and (4) neglect of a minor. Amanda Sewell was also charged in the death of Luke, but was granted immunity by the State and compelled to testify. Before trial, a hearing was held on defense counsel's motion in limine to exclude the text messages between Kevin and his wife while Luke was in his care.

The basis for the motion was the marital communications privilege. The trial court denied the motion. During the trial, the State moved into evidence screenshots of the text messages containing timestamps. Over defense counsel's continuing objection, the screenshots of the text messages were received in evidence as a State's exhibit.

The text messages were also read into the record in a colloquy between Amanda and the State. At trial, Dr. Suzanne Starling, the medical director of the child abuse program at the Children's Hospital of the King's Daughters, testified that she examined Luke when he arrived at the hospital. She observed that "he was covered in bruises from head to toe." She noted that Luke had multiple injuries, which included a large bruise on his stomach; bruises on both hips; bruises on his legs, arms, and underneath his armpit; several injuries across his chest; and "a very large bruise from his forehead up into his hair." On the left side of his face, he had a small cut underneath his eye, bruising on the front of his cheek, bruising across his jawbone, bruising inside his ear, bruising underneath his chin, and several bruises around his neck. Starling testified that Luke had similar injuries to the right side of his face.

These injuries included "bruises all around his hairline, bruises all in front of his ear, and his right ear [was] really significantly bruised inside, and even swollen around the outside, and the bruises extend[ed] all the way down from his jawbone onto his neck." In addition, Luke "had a very large bite mark on his right shoulder," a bite mark on his left shoulder, and a bite mark on his left forearm. The doctor also testified that "the skin from the base of [Luke's] penis to the tip of his penis [had] been removed." Starling opined, with a reasonable degree of medical certainty, that "the bruises were inflicted," meaning "they didn't occur by accident." She determined that "a blow to the abdomen caused [Luke] to have abdomen trauma," and that he sustained abusive head trauma. Starling concluded that the fatal injury did not occur until after breakfast on Sunday, May 3. She explained that Luke "would not be expected to eat normally" due to the severity of his head injury and abdominal trauma, and the "fact that he was able to sit up and eat breakfast demonstrates that he had not received his fatal injury at that time." Starling testified that Luke was "clearly significantly injured at the time that he lost consciousness later in the morning." After Luke's death, Dr. Wendy Gunther performed an autopsy.

At trial, Gunther testified that Luke sustained a minimum of 40 to 50 injuries, and that his brain was still in the process of swelling when she performed the autopsy. Based on her observations, Gunther concluded, to a reasonable degree of medical certainty, that Luke died from "shaken/slam syndrome with many other injuries contributing." She explained that when "a child is shaken, or shaken and slammed, their brain is injured," and when the brain sustains an injury, it swells. Gunther concluded that someone punched or hit Luke on the top of his head causing "direct blunt trauma to his head." She also observed that many of the injuries were "control injuries," which occur "anyplace where a person's hands would naturally fall when grabbing a child to control it," such as the arms, legs, stomach, and hip. Like Starling, Gunther testified that Luke's injuries were recently inflicted, as they did not "look like they[ were] starting to heal." Kevin Sewell was convicted of first-degree murder, first-degree child abuse, and neglect of a minor child.

Sewell timely appealed to the Court of Special Appeals. In a reported decision, Sewell v. State , 236 Md. App. 96 , 114, 180 A.3d 670 (2018), the intermediate appellate court ruled that the text messages between Sewell and his wife were marital communications and, as such, it was incumbent upon the State to rebut that presumption of confidentiality. Concluding that the State failed to do so, it held that the trial court abused its discretion in admitting the text messages, and it remanded the case for a new trial. Id. at 115-16 , 180 A.3d 670 .

We granted the State's petition for a writ of certiorari. DISCUSSION Confidential Marital Communications Privilege Subject to limited exceptions, "[l]itigants and their spouses are competent and compellable to give evidence." See Md. Code (1973, 2013 Repl. Vol.), § 9-101(2) of the Courts and Judicial Proceedings Article ("CJP"). There are two distinct marital privileges: the first, protecting confidential marital communications, and the second, privileging adverse spousal testimony.

Here, the confidential marital communications privilege is at issue. In Maryland, this privilege is codified at CJP § 9-105, "Confidential communications occurring during marriage." This section provides that "[o]ne spouse is not competent to disclose any confidential communication between the spouses occurring during their marriage." Id. The privilege is available in both civil and criminal trials and may be invoked by either spouse. See Joseph F. Murphy, Jr., Maryland Evidence Handbook , § 903(B) at 445-46 (4th ed. 2010).

The State contends that a "conflict" exists among the Court of Special Appeals' decisions and that we should resolve it by holding that the marital communication privilege must be narrowly construed. Regarding the confidential marital communications privilege, the State asserts that, to the extent that it has been construed in the past, this Court has been too "liberal" and untethered the privilege from its original purpose-to preserve and promote marital and family harmony. All testimonial privileges, the State contends, should be disfavored and narrowly construed. Sewell, on the other hand, sees no conflict to resolve.

Instead, Sewell characterizes all past case law as broadly interpreting the marital communications privilege and recognizing few, if any, exceptions. Typically, "privilege statutes are interpreted narrowly." Bryant v. State , 393 Md. 196 , 202, 900 A.2d 227 (2006) (citations omitted). See also Murphy, Maryland Evidence Handbook , § 900 at 422 ("It is obvious that evidence excluded on grounds of privilege increases the danger of an incorrect verdict. The privilege laws are therefore given a narrow, strict construction."); 6 Lynn McLain, Maryland Evidence: State and Federal , § 501:1 at 6 (3d ed. 2013) ("[P]rivileges are strictly construed, because they exclude relevant, reliable evidence."); 1 Kenneth S. Brown, McCormick on Evidence , § 74 at 474 (7th ed. 2013) ("Since privileges operate to deny litigants access to every person's evidence, the courts have generally construed them no more broadly than necessary to accomplish their basic purposes.").

We have stated as much in cases involving the psychotherapist-patient privilege, Bryant , 393 Md. at 202 , 900 A.2d 227 ; the attorney-client privilege, E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc. , 351 Md. 396 , 406, 718 A.2d 1129 (1998) ; and the accountant-client privilege, Sears, Roebuck & Co. v. Gussin , 350 Md. 552 , 562, 714 A.2d 188 (1998). We have not explicitly announced a narrow interpretation of CJP § 9-105, but we have interpreted the statute and discerned that the General Assembly intended certain limitations on what communications qualified for the marital privilege: The policy reasons underlying the privilege for confidential communications between husband and wife are (1) that the communications originate in confidence, (2) the confidence is essential to the relation, (3) the relation is a proper object of encouragement by the law, and (4) the injury that would inure to it by the disclosure is probably greater than the benefit that would result in the judicial investigation of truth. Coleman v. State , 281 Md. 538 , 541, 380 A.2d 49 (1977) (citing 8 Wigmore, Evidence , § 2332 (McNaughton rev. 1961) ). See also 1 Brown, McCormick on Evidence , § 80 at 507 (most courts "read into [marital communications privilege statutes] the requirement of confidentiality").

We reinforced the importance of confidentiality in assessing whether a given communication to a spouse was within the privilege: "The essence of the privilege is to protect confidences only, ... and thereby encourage such communications free from fear of compulsory disclosure, thus promoting marital harmony." Id. (citing 8 Wigmore, Evidence , § 2332; and McCormick, Handbook of the Law of Evidence , § 86 (2d ed. 1972) ). To narrowly construe a privilege, however, simply means that courts must not endeavor to overread its applicability and resolve ambiguities in favor of admitting evidence. See Ashford , 147 Md. App. at 70 , 807 A.2d 732 .

In Maryland, any party resisting discovery by asserting a privilege "bears the burden of establishing its existence and applicability" and must "substantiate its non-discovery" by a preponderance of the evidence. Forma-Pack , 351 Md. at 406 , 409 , 718 A.2d 1129 (applying attorney-client privilege). The confidential marital communications privilege requires: (1) a communication; (2) that the couple was married at the time of the communication; and (3) that the communication was intended to be confidential. See CJP § 9-105.

The parties agree that the first two showings have been made, but they disagree about whether the communication was confidential, on two grounds. First, the parties dispute which party bears the burden of establishing that a communication was confidential-i.e., whether marital communications are presumed confidential. Second, they disagree about whether the specific text message communications at issue were, in fact, demonstrated to be confidential. We have recognized that communications between spouses are considered confidential when: (1) "expressly made so"; or (2) "the subject is such that the communicating spouse would probably desire that the matter be kept secret, either because its disclosure would be embarrassing or for some other reason." Coleman , 281 Md. at 542 , 380 A.2d 49 (citation omitted).

The Coleman Court cited, with approval, language from the Court of Appeals of New York indicating that the privilege is "designed to protect and strengthen the marital bond" and, thus, "encompasses only those statements ... induced by the marital relation ...." Id. Sewell contends that this Court presumes marital communications to be confidential, unless presented with evidence to the contrary, citing State v. Enriquez , 327 Md. 365 , 372, 609 A.2d 343 (1992). The State, on the other hand, emphasizes that any presumption of confidentiality is a judicial creation and, thus, encourages the Court to constrain this presumption, to the extent that one exists. The State argues that Maryland is "not so much at the tip of the spear, as at the back of the line" when it comes to a progressive interpretation of the confidential marital communications privilege.

"Generally, the courts have presumed that communications between husband and wife are confidential and privileged, although the circumstances of a given case can negate this presumption." Coleman , 281 Md. at 543 , 380 A.2d 49 (citations omitted). We reasserted this presumption in Enriquez , 327 Md. at 372 , 609 A.2d 343 , stating clearly that "there is a rebuttable presumption that marital communications are confidential and privileged. The presumption is rebutted ... where it is shown that the communication was not intended to be confidential." The State recognizes this history, but asks us to modify our approach to this privilege. It is our practice to avoid unnecessarily "making shipwreck" of well-settled precedent.

See Boyd v. Parker , 43 Md. 182 , 201 (1875). And we think wreckage is not necessary here. Rather we rely on settled law that the presumption of confidentiality can be rebutted by showing that the communication was made with the reasonable expectation that a third party would learn of it. See Gutridge v. State , 236 Md. 514 , 516, 204 A.2d 557 (1964) ("The message sought to be sent to the appellant's wife through another cannot be regarded as confidential.").

We also consider precedent from the Court of Special Appeals allowing rebuttal of the presumption when the party supporting admission could show that the statement was not induced by the marital relation. See Harris v. State , 37 Md. App. 180 , 184, 376 A.2d 1144 (1977). We have never attempted to identify all possible avenues to rebut this presumption, and today we consider a new one. Confidentiality of Text Message Communications The State makes various general and policy-based arguments to support the view that testimonial privileges, including marital communications, should be narrowly construed because "the fundamental objective of a trial is the ascertainment of the truth ... through the introduction of relevant evidence[.]" This theme permeates the State's more specific arguments.

We consider two theories advanced by the State to demonstrate rebuttal of the presumption of confidentiality for marital communications, which we discuss below. 2 Sewell, in response, focuses on the presumption of confidentiality, and asserts that a waiver of the confidential marital communications privilege "will only be found in the clearest of circumstances." (i) Wong-Wing v. State First, the State asks us to extend the Court of Special Appeals' reasoning in Wong-Wing v. State , 156 Md. App. 597 , 610, 847 A.2d 1206 (2004), and conclude that Sewell and his wife had "no reasonable expectation of confidentiality" when they communicated via text message. Sewell, responding, sees Wong-Wing as presenting entirely different circumstances-the relevant communication being a message left on a telephone answering device located in a shared living space-and disagrees that the presumption has been rebutted. Wong-Wing involved a defendant-husband ("Wong-Wing") accused of sexually abusing his then-wife's ("Sherry") daughter. See id. at 602 , 847 A.2d 1206 .

After he was confronted about this sexual abuse, Wong-Wing left multiple messages on an answering machine located in Sherry's home. See id. at 603 , 847 A.2d 1206 . He addressed the messages to his wife, beginning each with the word "Sherry." Id. The messages stated that Wong-Wing did not "want to hear anything that happened before," knew he caused "a lot of pain and grief," was "sorry" for all he caused, and did not "feel like living anymore." Id.

The trial court overruled Wong-Wing's objection and admitted the recording transcripts. See id. at 605 , 847 A.2d 1206 . The Court of Special Appeals agreed with the trial court's decision and held that admission of the messages did not violate CJP § 9-105. Id. at 610 , 847 A.2d 1206 .

The intermediate appellate court observed that Wong-Wing left his messages "on an answering machine in a home that he knew [Sherry] shared with her adolescent daughter and her mother" and that all family members "moved freely between the two living spaces." Id. at 609 , 847 A.2d 1206 . Accordingly, Wong-Wing "ran the risk" that others could have overheard or retrieved the message and had no reasonable expectation of confidentiality. Id. at 610 , 847 A.2d 1206 . Thus, the State demonstrated that the circumstances surrounding Wong-Wing's communication destroyed his expectation of confidentiality-knowing that multiple individuals had access to the answering machine, he chose to leave his message there anyway.

We agree with the Court of Special Appeals that evidence about Sherry's living arrangements rebutted the presumption of confidentiality. For Wong-Wing to trust that these messages would be confidential simply was not reasonable. The State would have us extend this rationale to encompass text messages generally, including the ones at issue here. It focuses on the Wong-Wing court's reasoning that "[e]ven if there were any ambiguity, 'the disfavor with which the law looks on testimonial privileges dictates that we resolve an ambiguity against the privilege, rather than in its favor.' " Praising the Wong-Wing rationale, the State asserts: "The merit of the approach taken in Wong-Wing is that it imposes a reasonable and pragmatic limitation on an otherwise boundless presumption of entitlement to a policy-based privilege that itself was never intended to be boundless." It further advances that "[i]f a spouse chooses to communicate in a manner that assumes a practical risk that someone other than the intended recipient could retrieve the message, there is no logical basis for 'presuming' that the person intended for the communication to be confidential[.]" We are not in lock-step with the State's view of text messages.

We agree, rather, with Sewell that the circumstances in Wong-Wing differ from those in this case. We see a substantial difference between traditional answering machines (prevalent before cell phones) and the text messaging capabilities of modern cell phones. Because cell phones are so small, they are highly portable, and can be easily carried in a pocket or purse. Conceivable scenarios exist wherein a party could reasonably believe a text message to be confidential, just as scenarios exist wherein this assumption would not be reasonable.

Thus, it would be unwise to presume that text messages themselves can never be confidential. Again, it was the State's responsibility to make a demonstration one way or the other. (ii) Confidentiality of Matters the Spouse is Mandated to Report In the alternative, the State focuses on the nature of the crime-arguing that "every federal circuit court to have ever considered the issue has interpreted an exception to the corresponding federal privilege in cases of, inter alia , child abuse," and citing cases from multiple federal jurisdictions. It emphasizes that "child abuse occurs most often in the home at the hands of a parent or parent-substitute.

Testimony regarding confidential marital communications may constitute critical evidence in such cases." United States v. Breton , 740 F.3d 1 , 11 (1st Cir. 2014). It continues, "Several states, and the District of Columbia, recognize a similar exception by court rule or statute." Maryland, the State asserts, has also legislatively recognized an exception concerning child abuse, citing Maryland Code (1987, 2012 Repl. Vol.), § 5-705(a)(1) of the Family Law Article ("FL"). This requires that "notwithstanding any other provision of law, including a law on privileged communications" any person in Maryland "who has reason to believe that a child has been subjected to abuse or neglect shall notify the local [Department of Social Services] or the appropriate law enforcement agency." 3 Id.

(emphasis added). The State sees the Family Law Article as "reflect[ing] a legislative determination that preserving marital harmony, though a legitimate value in its own right, is not predominant over society's interest in identifying and prosecuting the abuse of children in Maryland." It submits that Sewell had no reasonable expectation of confidentiality when he communicated something his wife had a statutory duty to disclose. Sewell, although not specifically addressing FL § 5-705 in his brief, generally responds that the marital communications privilege applies, even when made in furtherance of a crime, citing State v. Mazzone , 336 Md. 379 , 648 A.2d 978 (1994). During oral arguments, Sewell seemed to suggest that, were the General Assembly intending that marital communications regarding child abuse or neglect be exempted from the marital privilege, it would have done so in the Courts and Judicial Proceedings Article, not the Family Law Article.

There are few matters our State takes more seriously than child abuse. Thus, we examine carefully the impact of FL § 5-705 on the marital communications privilege, especially in light of the General Assembly's explicitly broad statement of application-"notwithstanding any other provision of law." Mandatory reporting for suspected child abuse has existed for some time, but it was previously only a requirement for health practitioners, police officers, educators, and human service workers. See id. § 5-704(a). In 1987, the General Assembly expanded this child protective statute by adding § 5-705-imposing a child abuse reporting obligation on the general public.

See 1987 Md. Laws ch. 635 at 2948. The original statute applied, notwithstanding "any law on privileged communications ...." Id. But in its first amendment thereto, the General Assembly specifically exempted knowledge gained through the