Wright, Graeff, Raker, Irma S. Senior Judge, specially
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
"1. Did the trial court err in admitting privileged
2. Should this Honorable Court exercise plain error review
and reverse Appellant's convictions based on the
State's improper opening argument?"
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
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.
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.
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.
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
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
trial on September 20, 2016, the State delivered the first
two-thirds of its opening statement speaking as the victim.
Appellant did not object at any time during the State's
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:
[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
[APPELLANT 9:14:49]: I think Tori told me he breaks out from
[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
[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 ...