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Sewell v. State

Court of Special Appeals of Maryland

March 5, 2018

KEVIN SEWELL
v.
STATE OF MARYLAND

          Wright, Graeff, Raker, Irma S. Senior Judge, specially assigned, JJ.

          OPINION

          Raker, J.

         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 we 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 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 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]

[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. [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 ...

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