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State v. Sewell

Court of Appeals of Maryland

April 2, 2019

STATE OF MARYLAND
v.
KEVIN SEWELL

          Argued: October 4, 2018

          Circuit Court for Worcester County Case No.: 23-K-15-000516

          Barbera, C.J., Greene, [*] Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          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 (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 ...

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