source: Caselaw Access Project

author: Mathias, Judge.

license: Public Domain

text:
    Robert Lee LAIRD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 69A05-1707-CR-1709
    Court of Appeals of Indiana.
    FILED June 15, 2018
    Attorney for Appellant: Leanna Weissmann, Lawrenceburg, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Ellen H. Meilaender, Supervising Deputy Attorney General, Andrew Kobe, Deputy Attorney General, Indianapolis, Indiana
   Mathias, Judge.

[1] Robert Lee Laird ("Laird") was convicted in Ripley Circuit Court of Level 4 felony child molesting and sentenced to ten years of incarceration. Laird appeals and presents one issue, which we restate as whether the trial court erred by admitting evidence regarding the search history found on Laird's computer.

[2] We affirm.

Facts and Procedural History

[3] On December 25, 2015, twelve-year-old C.L. went to spend the latter part of Christmas Day with his father, having spent the earlier part of the holiday with his mother. Laird is C.L.'s uncle, the twin brother of C.L.'s father, and was also at C.L.'s father's house that evening. C.L. had received a new iPad as a gift that day and sat on the couch close to his uncle Laird while they both played a game on the iPad. As they sat on the couch, Laird rubbed his pinky finger on C.L.'s penis over his clothing. C.L. initially thought Laird had done this accidentally, but when Laird kept touching him, he knew that it was improper. C.L. told his older sister about the incident but did not tell his father at that time.

[4] Later that evening, Laird invited C.L. to sleep in a twin bed with him. When C.L. lay down with his uncle, Laird put his arms around the boy and slowly moved his hands down until he touched C.L.'s penis over his clothes. C.L. repositioned himself to get away from Laird's hand. Laird then took C.L.'s hand and placed it under his clothes and on his penis. C.L. stated that he needed to get a drink of water and got up and left the bed. But instead of getting a drink, he again told his older sister, who told him that they needed to tell their father about what had happened. C.L. told his father, who then ordered his brother to leave the house. C.L. also sent a text message to his mother, telling her that she needed to contact him. C.L.'s mother eventually came and got her son and took him back to her home. C.L.'s parents called the police to report the incident.

[5] During the course of the investigation, the police interviewed Laird twice. At the first interview, Laird claimed that C.L. was not innocent, stating that the boy had been playing with a toy lightsaber and pretending it was an erect penis. He also stated that C.L. had attempted to embarrass his sister while she was on the phone by eating a banana and being "provocative" with the banana. Tr. Vol. 3. pp. 44-45. Although Laird admitted that he rubbed C.L.'s belly while they were in bed, he denied having ever touched C.L.'s penis or making C.L. touch his penis. During a second interview, Laird again denied having touched C.L. improperly or having C.L. touch him improperly. He did state, however, that if he did touch C.L. inappropriately, it would have been accidental. During the police interview, Laird admitted that he was attracted to younger males, or as he put it, "younger dudes." Tr. Vol. 3, p. 89. He also responded positively when asked if he found "young teens sexually attractive." Id. at 90. But he later backtracked and claimed to be attracted only to "of age teens." Id. at 92.

[6] The police searched Laird's computer. On a password-protected account with Laird's name, the police found an internet search history that included searches for "naked twelve year old boy," "nude twelve year old boy," "young boy giving his first handjob," "young boy giving a handjob," and "boys first handjob fast cum," in addition to other searches for naked young boys' penises, father-son sex acts, and sex acts between men and boys. Appellant's App. Vol. 2, pp. 75-103.

[7] On January 28, 2016, the State charged Laird with one count of Level 4 felony child molesting. Prior to trial, the State filed a notice of intent to introduce evidence under Evidence Rule 404(b) regarding the following: (1) Laird's internet search history from December 12, 2015 showing that Laird searched for the terms "naked twelve year old boy" and "nude twelve year old boy"; (2) Laird's internet search history from December 22, 2015 showing that Laird searched for the terms "young boy giving his first handjob," "young boy giving a handjob," and "boys first handjob fast cum"; (3) Laird's 2016 conviction for dissemination of matter harmful to minors in which the victim was his underage niece; and (4) an incident in 1999 in which a nine-year-old boy alleged that Laird placed touched the child's genitals while in a hotel hot tub.

[8] Laird filed a motion seeking to exclude this evidence. The trial court held a hearing on these evidentiary matters on April 15, 2017. At the conclusion of the hearing, the trial court ruled that only the evidence of the searches on December 22, 2015, which was only three days before the incident with C.L., would be admissible; the court ruled that evidence regarding the other internet searches and prior incidents would be inadmissible.

[9] A jury trial was held on April 18-20, 2017. During the State's opening statement, the prosecuting attorney mentioned Laird's internet searches on December 22, 2015. Laird's counsel objected, and the following exchange between the trial court and defense counsel took place:

[Defense]: Just objecting for the record, that I don't think the evidence is going to show this and that it's inappropriate for Opening Statement, just objecting for the record.
THE COURT: Well, the record will reflect that and I think it's already been ruled upon in preliminary, I haven't heard any reason to be contrary to that ruling.

Tr. Vol. 2, p. 94.

[10] Indiana State Police Detective Sergeant Christopher Cecil testified that he searched Laird's computer and found the search history that included searches for the terms "young boy giving his first handjob," "young boy giving a handjob," and "boy's first handjob fast cum," all on December 22, 2015. Id. at 132-33. Laird made no objection to this testimony. See id.

[11] Immediately prior to the State's closing argument, Laird's counsel informed the trial court, "I just want the record to reflect the continuing objection to the three google search terms that I objected to in [the prosecuting attorney]'s opening statement so that I'm not interrupting in, during his closing argument." Id. at 156. The prosecuting attorney responded, "And I think for the record, Judge, [defense counsel] has objected throughout the preliminary proceedings in regards to the use of those, he objected in opening and I certainly understood his intentions for that objection and they continue throughout the trial." Id.

[12] The jury found Laird guilty as charged. At a sentencing hearing held on June 28, 2017, the trial court sentenced Laird to ten years of incarceration. Laird now appeals.

Discussion and Decision

[13] Laird's sole argument on appeal is that the trial court erred in admitting the evidence regarding the internet search history found on his computer. Decisions regarding the admission of evidence are left to the sound discretion of the trial court. Harrison v. State , 32 N.E.3d 240, 250 (Ind. Ct. App. 2015), trans. denied . On appeal, we review the trial court's decision only for an abuse of that discretion, and the court abuses its discretion only if its decision regarding the admission of evidence is clearly against the logic and effect of the facts and circumstances before it, or if the court has misinterpreted the law. Id.

[14] To preserve a claim of evidentiary error for purposes of appeal, a defendant must make a contemporaneous objection at the time the evidence is introduced. Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010) (citing Jackson v. State , 735 N.E.2d 1146, 1152 (Ind. 2000) ). This is true regardless of whether the appellant filed a pre-trial motion seeking to exclude the evidence in question. Id. "The purpose of this rule is to allow the trial judge to consider the issue in light of any fresh developments and also to correct any errors." Id.

[15] Here, Laird filed a pre-trial motion in limine to exclude reference to his internet search history; he also objected when the prosecutor referenced the internet search evidence in the State's opening statement. However, Laird did not object at the time the evidence was introduced at trial. He therefore failed to preserve the issue for appeal. See id. Our conclusion is not altered by the fact that Laird made a "continuing" objection prior to the State's closing argument. At that point, the evidence in question had already been presented to the jury, and it was too late to make a continuing objection. See id. (concluding that appellant failed to preserve evidentiary issue where his attempt to lodge a continuing objection was made only after the jury was presented with all of the evidence in question).

[16] A claim that has been forfeited by a defendant's failure to make a timely objection can still be reviewed on appeal if the court determines that a fundamental error occurred. Id. However, the fundamental error exception to the contemporaneous-objection requirement applies only " 'when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.' " Id. (quoting Mathews v. State , 849 N.E.2d 578, 587 (Ind. 2006) ). The alleged error must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process. Id. (citing Clark v. State , 915 N.E.2d 126, 131 (Ind. 2009) ). The fundamental error exception is "extremely narrow" and reaches only those errors that are so blatant that the trial judge should have taken action sua sponte . Knapp v. State , 9 N.E.3d 1274, 1281 (Ind. 2014) (citing Brewington v. State , 7 N.E.3d 946, 974 (Ind. 2014). "In sum, fundamental error is a daunting standard that applies 'only in egregious circumstances.' " Id. (quoting Brown v. State , 799 N.E.2d 1064, 1068 (Ind. 2003) ).

[17] Laird contends that the evidence regarding his internet search history was inadmissible under Indiana Evidence Rule 404(b). This rule provides:

(b) Crimes, Wrongs, or Other Acts.
(1) Prohibited Uses . Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
(B) do so before trial-or during trial if the court, for good cause, excuses lack of pretrial notice.

[18] Evidence Rule 404(b) is designed to prevent the jury from making the "forbidden inference" that prior wrongful conduct suggests present guilt.

Halliburton v. State , 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999) ). Or, as stated in Bassett v. State , 795 N.E.2d 1050, 1053 (Ind. 2003), the purpose behind Evidence Rule 404(b) is to "prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because ... he has a tendency to commit other crimes." (internal quotation omitted). In assessing the admissibility of evidence under Evidence Rule 404(b), the trial court must first determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act, and then balance the probative value of the evidence against its prejudicial effect pursuant to Evidence Rule 403. Halliburton , 1 N.E.3d at 681-82 (citing Wilson v. State , 765 N.E.2d 1265, 1270 (Ind. 2002) ). The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the forbidden inference of demonstrating the defendant's propensity to commit the charged crime. Rogers v. State , 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied .

[19] Here, the State argues that the evidence regarding Laird's internet search history was admissible under Evidence Rule 404(b)(2) to prove his "preparation" or "plan" to molest C.L.

[20] In support of its argument, the State relies on Remy v. State , 17 N.E.3d 396 (Ind. Ct. App. 2014), trans. denied . In that case, the defendant was convicted of several counts of child molesting and one count of performing sexual conduct in the presence of a minor. The conduct of the defendant towards his victim, his girlfriend's eleven-year-old son, reads like a parade of horrors. Included in Remy's depraved behavior was wrapping the boy's nude body in plastic wrap and then performing oral sex on him. During the trial, the State introduced several explicit pornographic images that had been found in the defendant's home. Among these images was one of a man wrapped in plastic wrap engaging in oral sex with another man.

[21] On appeal, Remy argued inter alia that the trial court erred by admitting the explicit pornographic images because they were irrelevant, unduly prejudicial, and inadmissible under Evidence Rule 404(b). The State argued that the images were properly admitted to prove the defendant's plan to commit the charged crimes and that he was "clearly grooming" the victim. Id. at 399. The court cautioned that:

[w]e believe this case presents an example of how a real danger exists that rationales such as "plan" and "grooming" are becoming all-purpose excuses to admit prejudicial evidence in child molestation cases. We must take care to ensure that Rule 404(b)'s exceptions do not swallow the rule.

Remy , 17 N.E.3d at 399-400 (footnote omitted). The Remy court concluded that the admission of the images did implicate Evidence Rule 404(b) because some of the pornographic images appeared to include children and because showing the pornography to the victim might itself constitute the crime of dissemination of materials harmful to a minor. Id. Ultimately, the court held:

Because the danger of unfair prejudice accompanying the admission of these pornographic images substantially outweighs their probative value, we conclude the trial court erred by admitting the vast majority of these images. Given our standard of review, the fact that Remy showed the image involving saran wrap and oral sex to [the victim], and the image's strong parallel to one of the charged acts, we would conclude the trial court did not abuse its discretion by admitting [the image involving plastic wrap and oral sex]. However, the remainder of the challenged images should not have been admitted at trial.

Id. at 401 (emphasis added).

[22] In the present case, the evidence regarding Laird's internet search history is similar to the pornographic image involving plastic wrap in Remy . That is, the evidence of Laird's internet search history is admissible under the "plan" exception in Rule 404(b)(2) because the searches were close in time to when Laird committed the acts against C.L. and because Laird searched the internet for behavior to what he did to C.L.-young boys manipulating men's penises.

[23] We also note that the trial court did not permit the State to introduce other evidence found on Laird's computer and only permitted the State to introduce evidence of Laird's internet search history that was both close in time and very similar to his actions against C.L. Given these facts and circumstances, the trial court did not err in admitting the evidence of Laird's internet search history under the "plan" exception to Evidence Rule 404(b). See Remy 17 N.E.3d at 401. This is true regardless of whether we view Laird's claim under the abuse of discretion standard or the fundamental error standard.

[24] The State also argues that the evidence of Laird's internet search history was admissible under the "intent" exception. The intent exception is available only "when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent." Goldsberry v. State , 821 N.E.2d 447, 455 (Ind. Ct. App. 2005). Laird argues that he denied committing the acts against his nephew and did not place his intent at issue. Although Laird did not assert a contrary intent at trial, he did state in his pretrial statements to the police that, if he touched nephew in an inappropriate manner, it was accidental. This is sufficient to place his intent at issue. See Iqbal v. State , 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (defendant's pre-trial statement to the police that a firearm went accidentally was sufficient to place his intent at issue and therefore permit state to introduce evidence of a prior incident in which defendant threatened defendant), trans. denied . Accordingly, the evidence regarding Laird's internet search history was also admissible under the "intent" exception found in Evidence Rule 404(b)(2).

[25] Lastly, we are of the opinion that any error in the admission of Laird's internet search history was harmless. We will not reverse a conviction due to evidentiary error unless this error affects the substantial rights of the defendant. Teague v. State , 978 N.E.2d 1183, 1189 (Ind. Ct. App. 2012). An error is harmless if there is substantial independent evidence of guilt and we are satisfied that there is no substantial likelihood the challenged evidence contributed to the conviction. Id.

[26] The evidence against Laird consisted mostly of the testimony of the victim. C.L.'s testimony was consistent and unequivocal. He also informed his sister of the touching immediately after they occurred and thereafter told his father, all on the same night that the touching occurred. Moreover, although Laird denied touching C.L. in his pre-trial statements to the police, he admitted to being sexually attracted to younger males. Given the strength of the evidence against Laird, the contested admitted evidence was merely cumulative. Accordingly, we affirm the judgment of the trial court.

[27] Affirmed.

Riley, J., concurs.

May, J., concurs in result with a separate opinion.

May, Judge, concurring in result.

[28] I agree with the majority that the trial court did not err when it admitted evidence of Laird's internet search history from three days before the charged crime. However, I disagree with the majority's holding that Laird waived this issue because defense counsel did not properly object at trial to the admission of the contested evidence. Therefore, I concur in result.

[29] The majority holds Laird failed to preserve this matter for appeal because he did not object when the evidence was admitted. The majority holds that for the objection to preserve error for appeal, the trial court must have ruled "at trial ... when the evidence was offered ." Op. at ¶ 15 n.1. Historically, motions in limine did not preserve issues for appeal, Tyra v. State , 506 N.E.2d 1100, 1102 (Ind. 1987), because a trial court needed to be given the opportunity to rule on the admissibility of evidence in the context of the other evidence and arguments presented during trial. Id. at 1103. Once the trial court had so ruled, parties could request a "continuing objection" to "avoid the futility and waste of time inherent in requiring repetition of the same unsuccessful objection each time evidence of a given character is offered." Hayworth v. State , 904 N.E.2d 684, 692 (Ind. Ct. App. 2009).

[30] However, in 2014, Evidence Rule 103 was edited such that it now provides: "Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Ind. Evid. Rule 103(b). Thus, the modified Rule has eliminated the need for parties to request a continuing objection or to object repeatedly to the same class of evidence after the court has ruled once at trial.

[31] Here, the trial court had ruled on the admissibility prior to trial, denying the admission of much of the evidence the State sought to admit, but admitting evidence of three internet searches conducted on December 22, 2015. At trial, Laird did not wait to object when the State offered the December 22 internet search evidence; rather, he objected during the State's opening argument when the State mentioned the evidence collected from the search:

[State]: ... and the evidence will show that this was planned. Just three days prior, the Defendant's laptop Google search shows that he made three separate searches.
* * * * *
[Defense Counsel]: Just objecting for the record, that I don't think the evidence is going to show this and that it's inappropriate for Opening Statement, just objecting for the record.
The Court: Well, the record will reflect that and I think it's already been ruled upon in preliminary, I haven't heard any reason to be contrary to that ruling.

(Tr. Vol. II at 93-94.)

[32] Laird renewed that objection prior to closing argument in anticipation of the State mentioning the evidence again: "I just want the record to reflect the continuing objection to the three google search terms that I objected to in [the State's] opening statement so that I'm not interrupting in, during his closing argument." (Tr. Vol. III at 156.) The State indicated it "certainly understood [Laird's] intentions for that objection and they continue throughout the trial." (Id. )

[33] On appeal, the State acknowledges in its brief that, although Laird did not object when the evidence was admitted,

the prosecutor explicitly stated his understanding that Defendant had intended for his objection to this evidence to continue throughout the trial and there was no difference between the evidence as discussed prior to trial and the evidence as admitted at the trial such that the court might have viewed the issue differently had Defendant explicitly asked the court to revisit its ruling in the context of the trial.

(Appellee's Br. at 9 n.2)

[34] While the best practice would still be to object contemporaneously with the admission of any disputed evidence, Evidence Rule 103 was amended to allow parties to rely on the existence of a continuing objection after a trial court has ruled definitively at trial. This rule does not limit the definition of "at trial" to when the evidence is offered during witnesses' testimony; as a result, because an opening argument occurs "at trial," Laird's objection should be viewed as sufficient. The trial court rejected Laird's objection during opening arguments, and the parties agree the trial court's ruling would not have changed if Laird had reasserted it when the evidence was offered. Under these circumstances, I believe a party has presented adequate objection to preserve an evidentiary issue for appeal.

[35] Nevertheless, as I agree with the final result reached by the majority, I respectfully concur in result.

      For the same reason, we think Evidence Rule 103(b) is inapplicable. This rule provides that "Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal." Here, the court did not rule definitively on the record at trial because Laird failed to make an objection at trial when the evidence was offered . Had he done so, and the trial court overruled his objection, then Evidence Rule 103(b) would have acted to preserve a claim of error even if Laird did not continue to object after the trial court's initial evidentiary ruling. See K.G. v. State , 81 N.E.3d 1078, 1080 (Ind. Ct. App. 2017) (noting that the defendant preserved his claim of evidentiary error by renewing his pre-trial objection at the time the evidence was admitted, giving the trial court the opportunity to definitively rule on the record per Evidence Rule 103(b) ).

      The State does not argue that Laird failed to preserve his claim of evidentiary error. The State acknowledges that Laird did not object at the time the evidence was admitted but argues that the result is the same regardless of whether we view the issue was one of preserved error or fundamental error.


author: Brown, Judge.

text:
    Marcus K. BAXTER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A04-1707-CR-1608
    Court of Appeals of Indiana.
    Filed June 26, 2018
    Attorney for Appellant: Stephen Gerald Gray, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, J.T. Whitehead, Deputy Attorney General, Indianapolis, Indiana
   Brown, Judge.

[1] In this interlocutory appeal, Marcus K. Baxter appeals the trial court's order denying his motion to suppress evidence. Baxter raises two issues which we consolidate as whether the court erred in denying his motion to suppress. We affirm.

Facts and Procedural History

[2] On July 17, 2016, the car wash owner or manager of Mike's Carwash on East Washington Street called 911 and stated that two suspicious males were on the property, they were not using the business's services, they looked to be evading the security cameras to the business, and that he wanted the police to "check them out." Transcript Volume 2 at 36. At about 12:54 p.m., Sergeant Frank Wooten of the Indianapolis Metropolitan Police Department ("IMPD") responded to the dispatch and arrived on the scene, followed next by two State troopers. When he arrived, Sergeant Wooten encountered two Hispanic males that had been on his right and one black male that walked from his left to his right. Sergeant Wooten obtained information from each of the three individuals and ran the information for warrants.

[3] When IMPD Officer Thomas Figura arrived on the scene, Sergeant Wooten and the two State troopers were speaking with the three individuals. When Sergeant Wooten released the three individuals because the warrant checks had come back negative, the two Hispanic males entered an "SUV that had been parked on the east end of the parking lot and they left" and "the black male had walked away." Id. at 11. Sergeant Wooten advised Officer Figura that the black male had come from the vicinity of a black Chevrolet with heavy tinting which had its engine on and was parked in the last spot in the northwest corner of the business. Officer Figura approached the parked Chevrolet from the rear and then from the driver's side, where he could see the side window was open to an extent. Before looking inside, Officer Figura could smell the odor of burnt marijuana coming from the inside of the car. When he ordered Baxter, the occupant he saw in the driver's seat, to exit the car, he received no response. Officer Figura commanded Baxter to open the door. When the door was opened, Officer Figura could see what appeared to be marijuana in plastic baggies and what appeared to be a number of white pills in the location where one would "stick [their] hand in to push the door open on the interior of the vehicle." Id. at 40.

[4] On July 19, 2016, the State charged Baxter with possession of a narcotic drug as a level 6 felony and possession of marijuana as a class A misdemeanor. On January 25, 2017, Baxter filed a motion to suppress evidence which argued that "the stop and or detention of the vehicle in which [he] was a passenger occurred without probable cause or reasonable suspicion" and violated the Fourth Amendment of the United States Constitution and the Indiana Constitution. Appellant's Appendix Volume 2 at 17.

[5] At the suppression hearing, Sergeant Wooten testified the dispatch "put out a run for suspicious persons," he saw three individuals on the car wash's "west end on the north side of the exit" when he arrived, and he pulled into the "west end of the car wash" on the exit side "just past the exit." Transcript Volume 2 at 9-10, 17. He indicated that his vehicle did not block the exit of the car wash, would have been parallel to the vending machines on the building wall shown in a photographic exhibit, and would be "up in front of the exit right there angled in from right to left." Id. at 27. He stated, "[w]hen I first started talking to the Hispanic males, the black male started walking towards us" from the direction of Baxter's car and "I didn't have to call him to me." Id. at 24. He testified he obtained the information of the three individuals, the warrant checks "came back negative," and he "then ... released them at the scene." Id. at 11. When asked what he did after releasing the three individuals, he stated:

I advised Officer Figura where the black male had walked from, the vehicle that was backed in. Officer Figura walked over to that vehicle. And I walked over to the front of that vehicle, probably within three to four feet of the front of that vehicle, and could immediately smell what I believe through my training and experience to be the odor of marijuana coming from that vicinity.

Id. at 11-12. He stated that the vehicle was "backed into the last spot next to the fence" and he could not see inside the vehicle but was able to detect the odor of marijuana because the "window was down a little bit," or approximately "six inches," and "[t]here was a crack." Id. at 12. He testified that the vehicle was "so dark and so tinted" and "we couldn't tell how many were actually in the vehicle at the time." Id. at 13.

[6] During cross-examination, Sergeant Wooten testified that, when he arrived, he was "looking for suspicious people behind the building not knowing how many were there," that the three individuals were not interacting or taking part in illegal activity that he could observe, and that he saw them "on the west end of the north side of the exit" of the car wash. Id. at 17. When Sergeant Wooten was shown a number of photographic exhibits depicting the scene at the car wash, he indicated the "Hispanic males were behind the building" and the "black male was coming from the left side ... which is where the black vehicle was parked backed in" and marked the locations where he "encountered the two Hispanics" and where he "encountered the one black male," the location of Baxter's car, and the location of his vehicle. Id. at 18, 21.

[7] Officer Figura testified that, from the time of his arrival, the encounter with the first three individuals lasted five minutes and answered, "[t]hat is correct," when asked "[y]ou didn't know [Baxter] was even on the scene when you pulled your car up." Id. at 52. When asked "[a]fter releasing [the three individuals], what did you do next," he answered that Sergeant Wooten had indicated one of the individuals who was released "had come from" a "vehicle which was parked in the last spot in the northwest corner" and that he could "hear that the vehicle was running,"

the "engine was running," and it "was in operation." Id. at 37. He indicated that he approached Baxter's car from the rear, that he could not see if there was anybody in the vehicle at that time because the vehicle window tinting was heavy, and that he did not see anything in the vehicle. He testified he could see that the driver's side window was slightly cracked open when he approached, he could "smell the odor of marijuana coming from inside of the vehicle outside towards me" before he looked inside, and his face was "pretty much pressed up against the window" when he smelled the marijuana. Id. at 37, 40. He also indicated that, when he received no response from the occupant that he saw in the driver's seat, he forcibly commanded the individual to exit the vehicle, was "concerned for officer safety," and his gun was taken out of its holster and placed at the side of his right leg. Id. at 39. He stated that, as the door came open and Baxter began to exit the vehicle, he could see in "plain view ... what appeared to be marijuana in plastic baggies and what appeared to be a number of white pills." Id. at 40. After being asked about how close approximately he was to the door handle, Officer Figura stated, "[w]ell, I gave some distance because I didn't know what [Baxter's] intentions were when he exited the vehicle for safety reasons. But I would say between seven to eight feet from that door." Id.

[8] Officer Figura identified State's Exhibits 1, 2, and 3 as photographs taken the day of the incident depicting Baxter's parked car and the driver's interior door handle. During cross-examination, he answered affirmatively when asked if he remembered indicating in his probable cause affidavit that the 911 dispatcher had specified that there "were two suspicious black males ... walking on the property and talking on their cell phones." Id. at 45. He stated that he could not testify as to how many police cars were there and was only certain that his and Sergeant Wooten's patrol cars were present. He testified that, prior to walking over to the car, he "didn't know [Baxter] was there," and that the distance between the front of his vehicle and the rear of Baxter's car was approximately ten feet and agreed that, when he said approximate, "it's plus or minus." Id. at 49, 51. He answered affirmatively when asked about whether he testified previously in his deposition that he parked his car "somewhat behind" Baxter's car, whether he said that he "pulled up behind" Baxter's car, and whether he recalled his testimony that he believed he was "about ten feet from" Baxter's car. Id. at 47-48. Officer Figura was shown Defendant's Exhibit D, a photographic depiction of the car wash and the spot where Baxter's car had been parked, and drew an oval to indicate the location of his police vehicle.

[9] Baxter testified that he was familiar with Defendant's Exhibit D, answered affirmatively when asked if he saw where Officer Figura depicted the general location of where he was parked next to the red fence, and stated "I'd say that I can't really recall. I just know that he [sic] was shorter than the car length. Like if-I couldn't back up if I wanted to." Id. at 55. After being asked if he would have been able to "cut [his] wheel" and have the "truck [sic] of [the] car moved to the left" or would have had to "come straight back before [he] could move," he testified that he would have had to "come straight back" to "get out of this position." Id. at 56. He testified that he would not have been able to come straight back when asked about his "ability to do that based on where Officer Figura had parked his car." Id. Baxter also testified Sergeant Wooten's vehicle protruded beyond the north edge of the building, that he believed that the "protrusion of his building (verbatim) was obstructing anybody who wanted to drive back behind the car wash at the time," and that state trooper vehicles were "on the other side," or north side, of the building and would have blocked anybody that wanted to exit that direction. Id. at 57-58. He testified he had a driver's license since he was eighteen, was familiar with parallel parking, was aware of how to "cut [his] wheel to get out from a parallel parking situation," and stated "[y]es, I could," when asked if "there's approximately ten feet between you and another car, you could maneuver in a parallel parking situation." Id. at 61. The following exchange occurred between the prosecutor and Baxter:

[Baxter:] But I couldn't-he was right up on me. I couldn't-
[Prosecutor:] I understand that.
[Baxter's Counsel:] Wait. Let him answer the question. I didn't hear the answer. Answer the question, please.
[Baxter:] He said-he asked me was there somebody behind me, was I-basically, he's asking me could I just have backed out and exited. I said, No, because there was an officer right here behind me. I couldn't back out.
[Prosecutor:] I understand that there was an officer's vehicle here behind you.
[Baxter:] Uh-huh.
[Prosecutor:] But in this open area, there's an entrance or an exit and there were no law enforcement officers [sic] vehicle blocking that entrance or exit?
[Baxter:] No, not that entrance.

Id. at 61-62. At the end of the hearing, the court asked the prosecutor to characterize the police "tools," or "[i]n other words, their cars," and the prosecutor answered:

Well, the vehicles are-there's three vehicles on the north corner of the lot that have little to do with [Baxter's] car. There is ... Officer Figura's car which is ten feet back behind [Baxter's] car but at the time that he parks the car and for the next few minutes, he has no idea that that car is an issue or that there's anyone inside or that [Baxter] has any reason to be a person of suspicion. So you can't accidentally detain someone that you're not aware of.
So the vehicle's placement, certainly Officer Figura's car, does not raise to the level of detention of Mr. Baxter at that time.

Id. at 67. Later, the court and Baxter's counsel also discussed the placement of the police vehicles, and the following exchange occurred:

[The Court:] ... we're not talking about a Walmart parking lot here. Okay. We're talking about a parking lot that is equipped to handle as many vehicles as they have business to do at any given time. All right.
And I don't want to interject information that isn't into evidence, but I've been to a Crew-a Mike's Carwash. I know how big they are. Okay. They're not big in nature. They have enough parking spaces for only-you know, whatever vehicles that are being serviced at that time.
So if you think the police did the wrong-approached it the wrong way, approached that scene the way wrong, where should they have parked their vehicles when in responding to the dispatch?
[Baxter's Counsel:] I don't have a problem with where the state troopers [sic] cars were parked or where Sergeant Wooten parked his car.
* * * * *
[The Court:] If the police didn't park the right way, then what should they have done with their vehicles?
[Baxter's Counsel:] Well, I do not believe that Officer Figura should have pulled up as close as he did to Mr. Baxter's car-
[The Court:] That's the objection?
[Baxter's Counsel:]-because there's plenty of space there that he could have parked way back.
[The Court:] So that's the objection?
[Baxter's Counsel:] That's the objection.

Id. at 73-74. In its order of final judgment on motion to suppress and certification for interlocutory appeal, the court denied Baxter's motion, finding that "whether the police 'seized' [Baxter] within the meaning of the 4th Amendment and whether there was a reasonable suspicion of criminal activity are appropriate issues to be raised on appeal." Appellant's Appendix Volume 2 at 10.

Discussion

[10] The issue is whether the trial court erred in denying Baxter's motion to suppress. The admission of evidence is entrusted to the trial court's sound discretion. Robinson v. State , 5 N.E.3d 362, 365 (Ind. 2014). "We review a trial court's denial of a defendant's motion to suppress deferentially, construing conflicting evidence in the light most favorable to the ruling, but we will also consider any substantial and uncontested evidence favorable to the defendant." Id. "We defer to the trial court's findings of fact unless they are clearly erroneous, and we will not reweigh the evidence." Id. "When the trial court's denial of a defendant's motion to suppress concerns the constitutionality of a search or seizure, however, it presents a question of law, and we address that question de novo." Id.

[11] Baxter argues that a reasonable person in his position, with his vehicle blocked in and his passenger detained for warrant checks, would not feel free to leave and that the police detained him and his passenger in violation of his rights under the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution.

A. Fourth Amendment

[12] The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV.

[13] There are three levels of police investigation, two of which implicate the Fourth Amendment and one of which does not. Powell v. State , 912 N.E.2d 853, 859 (Ind. Ct. App. 2009) (citing State v. Calmes , 894 N.E.2d 199, 202 (Ind. Ct. App. 2008) (citing Overstreet v. State , 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), reh'g denied , trans. denied ) ). First, the Fourth Amendment requires that an arrest or detention that lasts for more than a short period of time must be justified by probable cause. Id. Second, pursuant to Fourth Amendment jurisprudence, the police may, without a warrant or probable cause, briefly detain an individual for investigatory purposes if, based upon specific and articulable facts, the officer has a reasonable suspicion that criminal activity has or is about to occur. Id. The third level of investigation occurs when a police officer makes a casual and brief inquiry of a citizen, which involves neither an arrest nor a stop. Id. This is a consensual encounter in which the Fourth Amendment is not implicated. Id. "The Fourth Amendment is not triggered unless an encounter between a law enforcement officer and a citizen 'loses its consensual nature.' " Clarke v. State , 868 N.E.2d 1114, 1118 (Ind. 2007) (quoting Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) ).

[14] In other words, "[n]ot every encounter between a police officer and a citizen amounts to a seizure requiring objective justification." Powell , 912 N.E.2d at 859 (citing Overstreet , 724 N.E.2d at 663 ). A person is "seized" only when, by means of physical force or a show of authority, his or her freedom of movement is restrained. Id. (citing State v. Lefevers , 844 N.E.2d 508, 513 (Ind. Ct. App. 2006) (citing United States v. Mendenhall , 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), reh'g denied ), trans. denied ). The test for whether there has been a seizure is two prong: (1) there must be a show of authority, and (2) a submission to that authority or a touching by the seizing officer or a submission by the individual the officer intends to seize. California v. Hodari D. , 499 U.S. 621, 628-629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). "[T]he test for existence of a 'show of authority' is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." Id. at 628, 111 S.Ct. 1547. Factors that might lead a reasonable person to conclude that he or she was not free to leave include: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; (4) the use of language or tone of voice that implies compulsion; and (5) accusation of criminal activity. Clark v. State , 994 N.E.2d 252, 260 (Ind. 2013) (quoting Overstreet , 724 N.E.2d at 664 (citing Mendenhall , 446 U.S. at 554, 100 S.Ct. 1870 ) ). What constitutes a restraint on liberty prompting a person to conclude that he is not free to "leave" will vary depending upon the particular police conduct at issue and the setting in which the conduct occurs. Powell v. State , 912 N.E.2d at 860 (citing Michigan v. Chesternut , 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) ). In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. Id. (citing Mendenhall , 446 U.S. at 555, 100 S.Ct. at 1877 ). It is not the purpose of the Fourth Amendment to eliminate all contact between police and the citizenry. Mendenhall , 446 U.S. at 553, 100 S.Ct. at 1877.

[15] Baxter argues that he was detained in the absence of any criminal activity afoot. He likens his case to State v. Stickle , 792 N.E.2d 51 (Ind. Ct. App. 2003), trans. denied , and contends that a reasonable suspicion of criminal activity was "completely absent" and the "only thing observed was one black male walking and two Hispanic males off by themselves." Appellant's Brief at 12. He asserts that his unequivocal testimony that he could not back his vehicle out from the parking space was unrebutted by the police officers. He contends that the "totality of the circumstances" consists of "much more than Baxter's vehicle blocked from leaving by Figura's police vehicle," including the "presence of 4 police officers, the fact that the two State Trooper vehicles blocked any egress by way of the driveway behind the car wash," and, finally, the illegal detention of three individuals while warrant checks were performed. Id. at 10-11.

[16] The State responds by arguing that the officers did not stop, detain, or seize Baxter until after specific and articulable facts led them to reach the reasonable suspicion that a crime was occurring, contending that "he was not detained when he claims to have been detained" and that reasonable suspicion existed when "[n]ot one but two different police officers, within a few feet of a running car with a window cracked open, could smell what each perceived as the smell of burnt marijuana." Appellee's Brief at 13, 17. The State contends that the action of approaching a running car with tinted windows and a window cracked open that was parked along a fence-line by Officer Figura and Sergeant Wooten was not a stop until Sergeant Wooten was within three or four feet of the Chevrolet and he could smell what he believed was the overpowering odor of marijuana. The State also asserts that, at that time, the officers had no idea if anyone was even in the vehicle and had only the belief that it had been abandoned by one of the three individuals that had been reported, and that they encountered, at the business.

[17] The record reveals that law enforcement officers responded to a suspicious persons dispatch and, when he arrived at the scene, Sergeant Wooten first started talking to two Hispanic males and a third black male walked toward him from the direction of Baxter's parked and running car. When Sergeant Wooten obtained information from and ran warrant checks on the three individuals, none of the law enforcement officers present had encountered Baxter. After the checks came back negative, the two Hispanic males entered an "SUV that had been parked on the east end of the parking lot and left" and "[t]he black male had walked away." Transcript Volume 2 at 11. Because Sergeant Wooten had advised him that the black male had originally walked from the vicinity of the parked car, Officer Figura approached the parked car.

[18] At the moment when he could smell burnt marijuana, Officer Figura had a particularized and objective basis for suspecting legal wrongdoing. See Clark , 994 N.E.2d at 260. To the extent that Baxter argues that he was not free to leave before that point, we conclude that the action of Officer Figura's "pull[ing] up behind" behind Baxter to assist Sergeant Wooten in the dispatch call did not constitute a seizure under the Fourth Amendment in this instance. Transcript Volume 2 at 47. See Powell, 912 N.E.2d at 859 ("Not every encounter between a police officer and a citizen amounts to a seizure requiring objective justification.") (citing Overstreet , 724 N.E.2d at 663 ). Even had Baxter been unable to initially maneuver around Officer Figura's vehicle, based on the record and under these circumstances, we cannot say that he was the subject of an investigatory detention until after officers had a particularized and objective basis for suspecting legal wrongdoing. The encounter with the three individuals lasted five minutes and occurred on the north side of the building just to the east of the exit, several parking spots east from where Baxter was parked.

During this encounter, there was no display of a weapon, physical touching, the use of language or tone of voice that implied compulsion, or an accusation of criminal activity toward Baxter, and the attention of the officers was focused on the three individuals, and not on Baxter. We conclude a reasonable person in Baxter's position would have felt free to leave the scene. A reasonable person would have felt he could have approached Officer Figura and asked him to move his vehicle if he believed he could not back out of the space.

B. Article 1, Section 11

[19] Article 1, Section 11 of the Indiana Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

[20] Although its text mirrors the federal Fourth Amendment, we interpret Article 1, Section 11 of our Indiana Constitution separately and independently. Robinson , 5 N.E.3d at 368. "When a defendant raises a Section 11 claim, the State must show the police conduct 'was reasonable under the totality of the circumstances.' " Id. (quoting State v. Washington , 898 N.E.2d 1200, 1205-1206 (Ind. 2008), reh'g denied ). "The focus of the exclusionary rule under the Indiana Constitution is the reasonableness of police conduct." Hardister v. State , 849 N.E.2d 563, 573 (Ind. 2006). "We consider three factors when evaluating reasonableness: '1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen's ordinary activities, and 3) the extent of law enforcement needs.' " Robinson , 5 N.E.3d at 368 (quoting Litchfield v. State , 824 N.E.2d 356, 361 (Ind. 2005) ).

[21] Baxter contends that the degree of concern was almost non-existent given that the original 911 caller did not describe criminal activity and the police did not observe any and that the extent of law enforcement needs was minimal in light of the alleged suspicious activity. Baxter also contends that the degree of intrusion was significant because he was blocked in while police conducted the illegal detention to check for warrants, and asserts, again without citation to the record, that one of the three detained individuals was a passenger from his car.

[22] The record reveals that the car wash owner or manager of Mike's Carwash called 911 and stated that suspicious males were on the property, that they were not using the business's services, and that they looked to be evading the security cameras to the business. When Officer Figura parked behind Baxter's car, Sergeant Wooten had already arrived at the scene, encountered three males on the "west end on the north side of the exit" of the car wash building, and the black male had walked over toward the officers from the vicinity of a running, parked car with heavily tinted windows. Transcript Volume 2 at 17. When the warrant checks of the three individuals came back negative, the two Hispanic males entered a SUV and left and the black male walked away. Officer Figura approached Baxter's car from the rear and, before looking inside, he could smell the odor of burnt marijuana coming from the inside of the car. He received no response when he ordered Baxter, the occupant he saw in the driver's seat, to exit the car. We conclude that the record indicates a degree of concern, suspicion, or knowledge that a violation had occurred.

[23] The record also reveals that the degree of intrusion was minor and the extent of law enforcement needs for their own protection was strong. As Officer Figura approached Baxter's running and parked car from the rear, he could not discern how many other occupants were inside because of the heavily tinted windows. Reaching the driver's window which was open to a degree, he forcibly commanded Baxter to exit after he had already smelled burnt marijuana, received no response, and became concerned for his safety. Under these circumstances, we conclude that Baxter's rights against unreasonable search and seizure under Article 1, Section 11 of the Indiana Constitution were not violated and the trial court did not err in denying Baxter's motion to suppress.

Conclusion

[24] For the foregoing reasons, we affirm the denial of Baxter's motion to suppress.

[25] Affirmed.

Najam, J., and May, J., concur.

      We heard oral argument at Jasper High School on May 16, 2018. We thank the school's administration, faculty, and students, and the Dubois County Bar Association, for their gracious hospitality. We also thank counsel for their informative and engaging oral advocacy and subsequent discussion with the students.

      When asked to describe how the incident began, IMPD Sergeant Frank Wooten testified that the "dispatch put out a run for suspicious persons." Transcript Volume 2 at 9. During cross-examination, Sergeant Wooten indicated that the caller told the dispatch that "two Hispanic males" and "a black male" were behind the property and it "looked like they had been avoiding the cameras." Id. at 16. IMPD Officer Thomas Figura testified that the "dispatch radio run was the manager of the business had called 911 and stated that there were two suspicious black males on the property." Id. at 36. During cross-examination, Officer Figura testified that he recalled indicating in his probable cause affidavit that there were "two suspicious black males" and there was nothing "from the dispatcher about Hispanic males," and stated "[t]hat would be inaccurate" when asked if he "heard Sergeant Wooten's testimony and he indicated he thought the dispatch had something in it about Hispanic males as well, but that's not true, is it?" Id. at 45.

      Baxter does not point to the record and the record does not support that he had a passenger. The record reflects that the black male, who had walked from the "vicinity of [Baxter's car]", "had walked away" when the warrant checks "came back negative." Transcript Volume 2 at 11, 32.

      To the extent Baxter cites State v. Stickle , we note that Stickle is distinguishable from this case because, in Stickle , a state trooper approached and addressed the defendant and his passenger, stating, "Ma'am, sir, we need you to come with us," the defendant complied and walked outside with two state troopers, and the defendant observed that his vehicle was " 'completely blocked in' by two police cars such that it would not have been possible for [the defendant and his companion] to leave in the vehicle." 792 N.E.2d at 54 (internal citations omitted).


author: GAZIANO, J.

text:
    Cynthia WILLIAMS, personal representative, & another v. STEWARD HEALTH CARE SYSTEM, LLC, & another.
    SJC-12451
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued April 5, 2018 Decided August 14, 2018
    Chester L. Tennyson, Jr., Brockton, for the plaintiffs.
    Edward F. Mahoney, Boston, for the defendants.
    John J. Barter, Boston, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      Of the estate of Mary L. Miller.

      Ashley Gomes, individually and on behalf of her minor daughter.

      Steward Carney Hospital, Inc.

   GAZIANO, J.

On February 21, 2012, Mary L. Miller was fatally stabbed in her home by "N," her neighbor and a former patient of Steward Carney Hospital. In this appeal, we consider whether the hospital owed Miller and her family a duty of care and, if so, whether a breach of that duty occurred when one of its physicians released "N" from involuntary psychiatric commitment.

From January 9 through January 30, 2012, "N" had been held involuntarily at the hospital pursuant to several court orders. From January 7 through January 8, 2012, he was a patient in the hospital's emergency room because no psychiatric beds were available. After a January 9, 2012, order for a three-day commitment pursuant to G. L. c. 123, § 12 (a ) and (b ), expired, on January 12, 2012, the hospital's superintendent filed a petition for commitment under G. L. c. 123, §§ 7 and 8. A hearing on the petition was conducted on January 19, 2012, before a Boston Municipal Court judge, and an order of commitment "for a period not to exceed six months or until there is no longer a likelihood of serious harm by reason of mental illness, whichever period is shorter," issued on the same day.

On January 30, 2012, "N"'s treating physician, who had submitted the initial petition for involuntary hospitalization, determined that "N" no longer posed a likelihood of serious harm by reason of mental illness and ordered that he be discharged, pursuant to the terms of the commitment order. Twenty-two days after his release, "N" broke into Miller's apartment and killed her in the presence of her eight year old granddaughter.

The plaintiffs, a representative of Miller's estate and the mother of Miller's granddaughter, commenced an action in the Superior Court raising claims of, among other things, wrongful death; wilful, wanton, and reckless infliction of emotional distress; negligence in violating the terms of an order of civil commitment; and loss of consortium. A Superior Court judge concluded that the hospital did not owe the plaintiffs any duty of care, and allowed the defendants' motion for summary judgment.

We discern no error in the judge's ruling that the hospital did not owe the victim or her family any duty of care at the time of the killing. The order of civil commitment to hold "N," which arose out of the actions of an individual medical professional's clinical judgment, did not impose an independent duty on the hospital for "N"'s treatment, and did not require the hospital to exercise any medical judgment as to the appropriateness of release. Accordingly, while Miller's death was tragic, because the hospital did not owe a duty of care to Miller or to her family at the time of her death, we affirm the judge's decision to grant summary judgment to the hospital.

1. Background. The following facts are drawn from the summary judgment record. We view them in the light most favorable to the nonmoving party, here, the plaintiffs. See Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119, 928 N.E.2d 327 (2010).

"N"'s family took him to Steward Carney Hospital for a psychiatric evaluation on January 7, 2012. The Boston area emergency services program recommended that "N" be admitted for stabilization and medical evaluation. A medical evaluation form dated January 8, 2012, noted that "N" said that he had threatened to kill a family member; the form noted that the family member "N" reported as having threatened to kill was not the same person that the family had reported as the subject of the threat. The family also reported that "N"'s behavior had been "bizarre" and that he had been talking to himself and to a television in his room. The evaluation form stated that "N" had a history of psychiatric illness, including a previous episode in which "N" had been brought to the hospital after police had responded to a report that he was threatening his mother with a knife.

"N" remained in the emergency room until a bed in the hospital's psychiatric unit became available on January 9, 2012. On that date, "N"'s treating physician filed a petition for emergency restraint and hospitalization pursuant to G. L. c. 123, § 12 (a ) and (b ). That statute authorizes a licensed physician to hospitalize a patient for a three-day period if the physician "has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness." G. L. c. 123, § 12 (a ).

At the expiration of the three-day period, the superintendent of the hospital filed a petition for commitment under G. L. c. 123, §§ 7 and 8 ; these statutes allow the superintendent of a psychiatric facility to seek an initial commitment of up to six months, and thereafter an extension of a commitment for up to one year, see G. L. c. 123, § 8 (d ), when the superintendent "determines that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness," see G. L. c. 123, § 7 (a ). Following a hearing, a judge of the Boston Municipal Court found that "N" was "mentally ill and that ... failure to retain ['N'] in a facility would create a likelihood of serious harm, and there is no less restrictive alternative for said person." The judge ordered "N" "be committed to the [hospital] for a period not to exceed six months or until there is no longer a likelihood of serious harm by reason of mental illness, whichever period is shorter."

On January 30, 2012, "N"'s treating physician examined him and determined that he no longer presented a serious risk of harm due to his mental illness. The physician noted that his behavior had improved with medication, he appeared to be at his usual "baseline" level of functioning, and his aggression towards other patients had ceased. Accordingly, under the terms of the order of commitment, "N" was released that day.

On February 21, 2012, "N" broke into the home of Miller, his neighbor, and stabbed her to death. Miller's then eight year old granddaughter was present in the apartment at the time; she was not attacked and was physically unharmed.

2. Prior proceedings. The plaintiffs filed a complaint in the Superior Court, asserting claims of wrongful death due to negligence; wrongful death by gross negligence; wrongful death by wilful, wanton, and reckless conduct; conscious pain and suffering due to wilful, wanton, and reckless conduct; conscious pain and suffering due to gross negligence; and conscious pain and suffering due to negligence; as well as claims brought on behalf of Miller's granddaughter for reckless infliction of emotional distress, and grossly negligent infliction of emotional distress; and claims of the granddaughter's mother for consequential damages for loss of consortium and expenses for mental health care. The claims were alleged separately against each of the defendants. All of the claims were premised on the plaintiffs' assertion that the hospital "violated the January 19, 2012 Order of the Justice of the Municipal Court of the City of Boston ordering that 'N' be committed to the [hospital] 'for a period not to exceed six months or until there is no longer a likelihood of serious harm by reason of mental illness, whichever period is shorter ...,' by releasing ... 'N' eleven days later, at which time there was a likelihood of serious harm to all persons who came in contact with ... 'N', including Mary L. Miller."

The defendants filed a motion for summary judgment, arguing that (1) they owed no legal duty to the plaintiffs; (2) there is no cause of action in negligence for violating a court order; and (3) there was no special relationship that gave rise to a duty to control "N." Following oral argument and supplemental briefing, a Superior Court judge granted the defendants' motion for summary judgment. The judge "decline[d] to apply common law [to the plaintiffs' claims, as they requested,] where there is clear, unambiguous statutory guidance to the contrary," in the form of G. L. c. 123, § 36B. That statute provides that a licensed mental health professional owes no duty "to take reasonable precautions to warn or in any other way protect a potential victim or victims of said professional's patient," except in a narrow set of circumstances not present here. Relying on G. L. c. 123, § 36B, and a decision of the Appeals Court, Shea v. Caritas Carney Hosp., Inc., 79 Mass. App. Ct. 530, 541, 947 N.E.2d 99 (2011), the judge concluded that the hospital owed no duty of care to the plaintiffs. The plaintiffs filed a timely notice of appeal, and we allowed their motion for direct appellate review.

3. Discussion. a. Legal standard. "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012), citing Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). A moving party is entitled to summary judgment where a nonmoving party, who bears the burden of proof, has no reasonable expectation of proving an essential element of the claim. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). "Our review of a motion judge's decision on summary judgment is de novo, because we examine the same record and decide the same questions of law." Kiribati Seafood Co. v. Dechert, LLP, 478 Mass. 111, 116, 83 N.E.3d 798 (2017).

"To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage."

Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006). Whether a party owes a duty of care to another is a legal question, "determine[d] 'by reference to existing social values and customs and appropriate social policy.' " Id. at 143, 849 N.E.2d 829, quoting Cremins v. Clancy, 415 Mass. 289, 292, 612 N.E.2d 1183 (1993). The question here is whether the hospital owed a duty of care to third-party victims, either arising out of the court order or through a common-law, special relationship between the hospital and its patient, "N."

b. Statutory duty of care. In their complaint, the plaintiffs argued that the hospital violated the commitment order issued under G. L. c. 123, §§ 7 and 8, by negligently releasing "N" when his treating physician certified that he no longer presented a serious risk of imminent harm due to mental illness; the plaintiffs maintained that the order was directed at the hospital alone, the hospital delegated the duty to a particular physician, and the hospital was responsible for the decision to release "N." At a hearing on the motion for summary judgment, the plaintiffs' attorney asserted that, because the order was directed at the hospital, the case did not raise any question of respondeat superior, as it was the hospital's specific duty to comply with the order and to decide whether "N" should be released.

On appeal, the plaintiffs contend that the order was directed at the hospital, thus creating a duty on its part, and that a hospital may not delegate such a duty to an employee. In support of this argument, the plaintiffs point to the text of the commitment order, which required that "N" "be committed to [the hospital]," as well as to deposition testimony by the superintendent in which he stated that he understood the commitment order to have been directed at the hospital. In addition, they claim that the duty created by the order exists independently of any duty owed by the licensed medical providers who signed the petitions for commitment and the release and, therefore, any duty that might have been imposed on the hospital under the doctrine of respondeat superior.

Therefore, the plaintiffs maintain, "by releasing ... 'N' eleven days [after his commitment under G. L. c. 123, §§ 7 and 8,] at which time there was a likelihood of serious harm to all persons who came in contact with ['N']," the hospital violated a nondelegable duty of care. The clinical determination to release "N," however, was made, and could only have been made, by an individual mental health professional, here, his treating physician. We conclude that any duty involving the release of "N," and any negligence in authorizing his release under the terms of the order of commitment, belonged to this treating clinician, who was required to use professional medical judgment in determining that commitment was required and when it was no longer needed.

"[A] duty finds its source in existing social values and customs" (citation and quotations omitted). Jupin, 447 Mass. at 146, 849 N.E.2d 829. When considering whether to recognize a duty, we consider any acts of the Legislature relevant to the issue in question. See, e.g., id. at 153-154, 849 N.E.2d 829 (relying on "legislative enactments acknowledging that the unauthorized use of firearms is a significant problem and placing requirements on owners of guns for the purpose of preventing their use by persons not competent to use them" in recognizing existence of "a duty of the person in control of the premises to exercise due care with regard to the storage of guns on the premises"). That the duty to make a clinical determination whether release is appropriate falls on an individual medical professional is consistent with the statutory scheme involving involuntary psychiatric commitment, which reflects the Legislature's understanding of the professional role of health care professionals in making clinical judgments.

Here, the initial petition to hold "N" under G. L. c. 123, § 12, was filed by his treating mental health clinician, following her clinical determination that "N" presented a "[s]ubstantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior." See G. L. c. 123, § 12 (a ) ("Any physician who is licensed ... who, after examining a person, has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness may restrain or authorize the restraint of such person and apply for the hospitalization of such person for a [three]-day period ..."). The superintendent of the hospital then filed the petition for "N"'s commitment under G. L. c. 123, §§ 7 and 8. The petition provides: "[the superintendent] has determined that failure to hospitalize ['N'] would create a likelihood of serious harm by reason of mental illness." See G. L. c. 123, § 7 (a ) ("The superintendent of a facility may petition the district court ... for the commitment to said facility [of the patient] ..."). The notice of the hearing on "N"'s commitment states that the "petition for involuntary commitment has been filed by ... Medical Director of the [hospital]." The order of commitment itself specifies that "N" is to be delivered to the superintendent of the hospital.

In deciding whether to impose a duty of care, we also must bear in mind that the statute was written in recognition of psychiatric patients' fundamental right to liberty. See O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) ; Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 785, 889 N.E.2d 929 (2008) (emergency commitment under G. L. c. 123, § 12 [b ], implicates "significant liberty interests"). "The right of an individual to be free from physical restraint is a paradigmatic fundamental right." Matter of E.C., 479 Mass. 113, 119, 92 N.E.3d 724 (2018), quoting Commonwealth v. Knapp, 441 Mass. 157, 164, 804 N.E.2d 885 (2004). See Matter of N.L., 476 Mass. 632, 637, 71 N.E.3d 476 (2017) ("The infringement of a person's liberty interest resulting from involuntary commitment for six months is massive" [quotation omitted] ). Thus, a psychiatric civil commitment should involve the "least burdensome or oppressive controls over the individual that are compatible with the fulfilment of the dual purposes of our statute, namely, protection of the person and others from physical harm and rehabilitation of the person." Commonwealth v. Nassar, 380 Mass. 908, 917-918, 406 N.E.2d 1286 (1980).

The Legislature has determined that the judgment of a qualified mental health professional is necessary in order to restrain an individual's liberty by involuntary psychiatric commitment. In addition, because of the fundamental liberty interests at issue, a court must consider and approve an order of involuntary psychiatric commitment, after a hearing and after making findings; an involuntary commitment is appropriate only where it is established beyond a reasonable doubt that "(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm." G. L. c. 123, § 8 (a ). See Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276, 372 N.E.2d 242 (1978). See generally O'Connor, 422 U.S. at 575, 95 S.Ct. 2486 ("there is still no constitutional basis for confining such persons involuntarily if they are dangerous to no one).

Concordantly, the Legislature has determined that a qualified mental health professional may make a clinical determination to release a psychiatric patient, consistent with "the highest possible standards of professional treatment," without notifying the court that issued the order of commitment, because a clinician is in the best position to determine whether a patient no longer poses a threat of serious harm. See Nassar, 380 Mass. at 912 n.5, 406 N.E.2d 1286, quoting 1970 House Doc. No. 5021, at 2. The Legislature chose not to impose a separate duty on a hospital, and not to delay the release of a patient that the hospital no longer has a legal right to confine. Continuing to hold a patient where a mental health professional has determined that there is no threat of serious harm would result in a violation of the patient's constitutional liberty interest and would be a violation of G. L. c. 123, §§ 7 and 8. Consistent with its view of medical and legal standards, the Legislature left such determinations to qualified mental health professionals.

The same standard of serious harm guides mental health care professionals' responsibility to report; "foreseeability of harm to the plaintiff" is one of the "major" considerations in determining if a mental health professional has a duty to warn a potential victim. See Tarasoff v. Regents of Univ. of Cal., 17 Cal. 3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). General Laws c. 123, § 36B, defines an individual mental health professional's narrow duty to warn in the Commonwealth. In balancing a patient's right to privacy with public safety, the statute strongly favors a patient's right to privacy, as is evident in the narrowness of the duty to warn. See G. L. c. 123, § 36B ; Tarasoff, supra at 440-441, 131 Cal.Rptr. 14, 551 P.2d 334 ("recogniz[ing] the public interest in supporting effective treatment of mental illness and in protecting the rights of patients to privacy," while acknowledging narrow duty to warn specific, identifiable victim about threat). The right to be free from physical restraint is at least as fundamental as a patient's right to privacy. We are reluctant to disrupt the Legislature's careful balancing and to impose a duty on hospitals, which do not make individual clinical judgments, where the Legislative mandate and constitutional protections counsel against doing so.

Nonetheless, a hospital is not necessarily free from all liability arising out of a clinical determination that a patient no longer presents an imminent risk of serious bodily harm due to mental illness. A hospital may be liable under a theory of respondeat superior, arising out of an employment relationship, for the actions of its medical professionals. See Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 323, 780 N.E.2d 447 (2002) (hospital may be vicariously liable for negligent conduct of employee doctor, notwithstanding hospital's "inability to exert direction and control over his clinical decisions"). In this case, however, the plaintiffs' did not raise any claim of vicarious liability; they also did not bring separate claims against the individual medical professionals who provided care to "N" and who ordered his release.

In addition, a hospital owes third parties a duty of reasonable care in hiring, training, and supervising the medical professionals who care for its patients. See Roe No. 1 v. Children's Hosp. Med. Ctr., 469 Mass. 710, 714, 16 N.E.3d 1044 (2014) ("there is little doubt that [defendant hospital] had a duty to supervise and monitor [third party's] conduct while he was employed as a physician"); id. ("an employer whose employees have contact with members of the public in the course of conducting the employer's business has a duty to exercise reasonable care in selecting and supervising its employees"). See Tucson Med. Ctr., Inc. v. Misevch, 113 Ariz. 34, 36, 545 P.2d 958 (1976) ("Hospitals have been given and have accepted the duty of supervising the competence of the doctors on their staffs"); Johnson v. Misericordia Community Hosp., 99 Wis. 2d 708, 744, 301 N.W.2d 156 (1981) ("a hospital owes a duty to its patients to exercise reasonable care in the selection of its medical staff and in granting specialized privileges")." As with potential liability under a theory of respondeat superior, however, the plaintiffs did not allege negligent hiring, training, or supervision in their complaint.

c. Duty arising from a special relationship. The plaintiffs maintain that the hospital owed them a duty of care because of the special relationship between the hospital and "N." The Restatement (Third) of Torts provides that "[c]ustodians of those who pose risks to others have long owed a duty of reasonable care to prevent the person in custody from harming others." Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41(f) (2012). The Restatement continues, "well-established custodial relationships include hospitals for the mentally ill." Id. Such a relationship is a qualifying "[c]ustodial relationship[ ]" because it "exist[s], in significant part, for the protection of others from risks posed by the person in custody." Id. Cf. Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 495, 458 N.E.2d 308 (1983) (noting that commitment under G. L. c. 123, §§ 7 and 8, "is for public safety purposes").

A special relationship arises out of the level of control exercised by the custodian. Compare Bradley Ctr., Inc. v. Wessner, 161 Ga. App. 576, 581-582, 287 S.E.2d 716, aff'd, 250 Ga. 199, 296 S.E.2d 693 (1982) (mental health facility owed duty of care to third parties arising out of its special relationship with patient because facility had sufficient control over patient who could not leave premises during his commitment without being issued leave pass), with Davenport v. Community Corrections of the Pikes Peak Region, Inc., 962 P.2d 963, 968 (Colo. 1998), cert. denied, 526 U.S. 1068, 119 S.Ct. 1462, 143 L.Ed.2d 547 (1999) (private correction facility did not have duty to control its residents, where many residents had full-time employment, provided their own transportation, and "readily obtain[ed]" passes to be off premises). We agree that "N"'s involuntary commitment under G. L. c. 123, §§ 7 and 8, arising out of the order, created a special relationship under the common law. Contrast Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 42-43, 907 N.E.2d 213 (2009) (in absence of "statutory responsibilities," hospital had no duty to control voluntary outpatient).

The defendants argue that G. L. c. 123, § 36B, abrogated any common-law duty that the hospital owed to the plaintiffs, including a duty to control. The defendants' argument is unavailing. The statute specifically addresses mental health care professionals and the limitations on their duty as professionals to protect third parties. Such statutory immunity would run to hospitals under a claim based on a theory of respondeat superior for alleged negligence by an employee; the statute does not, however, absolve a hospital of its institutional responsibilities, including a duty to control a lawfully admitted patient. See Riley v. Davison Constr. Co., 381 Mass. 432, 438, 409 N.E.2d 1279 (1980) ("A statute is not to be interpreted as effecting a material change in or a repeal of the common law unless the intent to do so is clearly expressed" [citation omitted] ); A. Scalia & B.A. Garner, Reading Law: The Interpretation of Legal Texts § 52, at 318-319 (2012) ("statutes will not be interpreted as changing the common law unless they effect the change with clarity").

As did the Superior Court judge, the defendants rely on Shea, 79 Mass. App. Ct. at 541, 947 N.E.2d 99, in support of their claim that the hospital may not be directly liable for the clinical judgments of its mental health professional. In that case, the Appeals Court rejected the plaintiff's argument that a mental health professional owed a common-law duty to a third-party victim of a former patient. The court held that G. L. c. 123, § 36B, does not show "the intention to permit additional liability based on common law." Shea, supra. The court did not consider whether the hospital in that case might have had an independent duty to control; rather, the court held that the statute "clearly abrogated any common-law duty owed by a mental health professional to a patient," id. at 540, 947 N.E.2d 99, and that "[a]ny liability of the corporate defendants would be based on the theory of respondeat superior." Id. at 531, 947 N.E.2d 99 n.3. We agree that the language of G. L. c. 123, § 36B, that a mental health professional has no duty to "warn or in any other way protect a potential victim" would prevent the imposition of a duty to control on a mental health professional and, accordingly, on a hospital under a theory of respondeat superior. See G. L. c. 123, § 36B. As discussed, however, the statute does not address the independent, common-law duty of a hospital to control a patient who has been civilly committed, and the legislative history does not suggest an intent to displace a duty owed by an institution.

Nonetheless, the hospital's duty to control is more narrow than the plaintiffs contend. The hospital had a duty to hold "N" while he was lawfully "committed to the [hospital] for a period not to exceed six months." "The [hospital's] duty of care is limited to the period of actual custody." Restatement (Third) of Torts, supra at § 41(f). The hospital's duty to control "N" ceased when his treating physician reached the clinical judgment that "N" no longer presented a likelihood of serious harm by reason of mental illness, and released "N." Under the terms of the commitment order, "N"'s commitment to the hospital was no longer authorized once the clinical determination was made. The hospital's act of releasing him was not merely proper, it was required by the terms of the order.

The plaintiffs argue that the treating physician's clinical judgment about the risk "N" posed was inaccurate and incorrect, that "N" should not have been released, and that the hospital retained control over him. As discussed supra, however, the hospital had no role in the clinical determination that "N" was in a suitable condition to be released. As the duty to hold "N" followed directly from the order of commitment, when his treating mental health professional determined that he no longer presented a likelihood of serious harm and ordered his release, the hospital no longer had actual control of "N" or the authority to hold him. In the absence of this special relationship, the hospital had no duty to hold, or otherwise to control, "N" three weeks later when he attacked the victim in her home.

Order allowing motion for summary judgment affirmed.

      The defendant Steward Health Care System, LLC, argued that, as the parent company of the defendant Steward Carney Hospital, Inc., it had no liability for any actions by Steward Carney Hospital. The parties agreed to stay that argument pending a decision on the motion for summary judgment, which could make the matter moot. For convenience in this appeal, we refer to both defendants as "Steward Carney Hospital" or "hospital."

      We note that, had a claim been made against any of the individual mental health care professionals involved in "N"'s care, the immunity provisions of G. L. c. 123, § 36B (1), would have been applicable to them, and the professionals involved almost certainly would have had individual immunity. Although we need not decide whether an exception applied in this case, in order for the statutory exception to the immunity provisions of G. L. c. 123, § 36B (1), to apply, a patient must make a specific threat about a specific person, and must have an apparent ability and intent to carry out that threat. Here, there is no indication in the record that the defendant ever threatened Miller or her family.

      Some courts in other jurisdictions have determined that, in limited circumstances, hospitals may be directly liable for care provided in their emergency rooms, and that hospitals have a duty to provide adequate emergency care. At least three States have recognized a hospital's "nondelegable duty" to provide adequate emergency medical care. See Simmons v. Tuomey Regional Med. Ctr., 341 S.C. 32, 44-46, 533 S.E.2d 312 (2000) (observing that "Alaska, Florida, and New York courts have applied the nondelegable duty doctrine to care provided by a hospital's emergency room physicians," noting that some States have explicitly rejected it, and that still others have not addressed it and instead have relied on claims of vicarious liability). We are not aware of any court that has recognized a nondelegable duty on the part of a hospital to provide inpatient mental health care, or of any State that has extended such a nondelegable duty of care to liability to third parties who are injured as a result of the care provided. See Simmons, supra at 44-45, 533 S.E.2d 312, and cases cited.

      By contrast, where a release was as a result of clerical error, or where a patient escaped, the fact that a patient is no longer in the hospital's custody does not necessarily end the duty to control. See Jean W. v. Commonwealth, 414 Mass. 496, 514 & n.16, 610 N.E.2d 305 (1993) (Liacos, C.J., concurring) (Department of Corrections and parole board may owe duty to injured third parties arising from special relationship with prisoner who was released in error).