Sewell v. State, 180 A.3d 670

Luke Hill, a 3-year-old, died of shaken/slam syndrome and blunt trauma after being left overnight on May 2–3, 2015, at Kevin Sewell and his wife Amanda’s home. Appellant Sewell was convicted of first-degree murder, first-degree child abuse, and neglect; sentenced to life without parole plus additional terms.
Amanda Sewell (wife) was granted use immunity and testified for the State. Her phone screenshots of text-message exchanges with Kevin from May 3 were admitted and read at trial.
The texts included statements by Kevin that the State emphasized as showing anger/triggers (e.g., “this is the last time,” insults toward the child, and references to biting and bruising). The prosecutor relied heavily on the texts in opening, closing, and rebuttal to argue motive and consciousness of guilt.
Kevin moved pretrial to exclude the texts as privileged marital communications; the trial court denied the motion and later overruled renewals of the objection at trial.
On appeal Kevin argued (1) the trial court erred by admitting privileged spousal communications (the texts), and (2) the State’s opening (speaking in the victim’s voice) warranted plain-error review. The Court of Special Appeals reversed and remanded for a new trial on the marital-privilege ground and did not reach the plain-error argument.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Sewell)	Held
Admissibility of spousal text messages under marital-communications privilege	Texts are not confidential because they passed through a cell carrier, could be seen by third parties, and testimonial privileges are disfavored so ambiguities resolve against privilege	Texts between spouses are presumptively confidential; State offered no facts to rebut that presumption and thus admission violated the marital-communications privilege	Reversed: texts were privileged marital communications; State failed to rebut presumption of confidentiality; admission was not harmless beyond a reasonable doubt.
Prosecutor’s opening statement in victim’s voice (plain-error claim)	Opening confined to evidence and not an impermissible “golden rule” appeal; no plain-error standard should apply because no contemporaneous objection	Characterized the opening as an improper first-person/golden-rule appeal that prejudiced the jury	Not decided: court reversed on privilege issue and declined to reach the plain-error issue.

State v. Mazzone, 336 Md. 379 (discusses harmless-error standard for erroneously admitted privileged communications)
Ashford v. State, 147 Md. App. 1 (disfavored nature of testimonial privileges; resolve ambiguities against privilege)
Trammel v. United States, 445 U.S. 40 (distinguishes marital-communications privilege from testimonial-spouse privilege)
Coleman v. State, 281 Md. 538 (presumption that marital communications are confidential; circumstances that rebut presumption)
Pereira v. United States, 347 U.S. 1 (presence of third party negates confidentiality)
United States v. Warshak, 631 F.3d 266 (electronic communications can carry a reasonable expectation of privacy)