KEVIN SEWELL v. STATE OF MARYLAND
Court of Special Appeals, Raker, March 5, 2018,
Evidence – Despite using a third-party service to send them, text messages between spouses are still protected by marital privilege
Facts:
In 2015, a 3-year old child boy named Luke died from “shaken/slam syndrome, with additional blunt trauma to Luke’s chest, abdomen, back, and extremities, and bite marks on his body.”
Luke had been left with his aunt and uncle (Sewell) overnight, but when they returned Luke to his mother his eyes were closed, he was making a “phlegmy kind of sound,” and he was covered in bruises. Luke was transported to the hospital where he died.
Luke’s aunt and uncle were charged with murder, child abuse, and child neglect.
At trial, the State introduced text messages between Luke’s aunt and uncle discussing Luke. The text messages demonstrated a growing frustration with Luke (“he’s acting like a fucking asshole” and “He ignores you like he’s retarded”) and an admission that the uncle bit Luke (“I didn’t even bite him hard, but, apparently, he bruises easy.”)
An expert testified at trial that there are various “triggers” that will cause someone to abuse a child.
In its closing argument, the State repeatedly referred to the text messages and pointed out various “triggers” shown in the text messages. It was argued that these “triggers” were the motive behind the abuse of the child.
Sewell was convicted by a jury in Worcester County of first degree murder, child abuse in the first degree, and neglect of a minor.
Sewell then appealed, arguing that the text messages between he and his wife were privileged and should not have been admitted.
Held: The Court of Special Appeals agreed with Sewell that text messages between a husband and wife are privileged communications and should not have been admitted at trial.
Evidence – Marital Privilege – There are two privileges related to marriage: 1) confidential marital communications are privileged and 2) a spouse cannot generally be compelled to testify
Marital Communications – Confidentiality – A marital communication is “confidential” if either spouse says that it is confidential (explicit) or “if 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” (implicit).
Marital Communications – Confidentiality – It can be assumed that marital communication is intended to remain confidential where “the marital communication amounts to an admission or confession of a crime”
Marital Communications – Confidentiality – Either spouse can prevent the other from testifying about confidential communications
Marital Communications – Third Party – On the other hand, if a communication occurs where there is no reasonable expectation of privacy, it is not “confidential” and thus is not protected
Marital Communication – There is an assumption that marital communications are privileged, so it is up to the State to prove that the communication was not actually confidential
For Example: If a woman knew that her husband could not read without someone helping him, then there is no expectation that a letter she sent him would be confidential. Therefore it would not be protected.
Marital Communications – Even though a cell-phone service is used to send and receive text messages, there is no expectation that the cell-phone company is actually reading the text messages. Therefore, text messages between spouses are presumed to be privileged.
From the Case: “Verizon’s provision of service does not rebut the confidentiality” of Sewell’s text messages to his wife
From the Case: “The State’s argument that any person could have seen the messages is inadequate. Cell phones have mechanisms to lock access to texts. Especially given the inculpatory nature of the conversation between appellant and his wife, it was incumbent upon the State to offer some facts and circumstances to rebut the presumption of confidentiality, which the State failed to do.”