author: Kirsch, Judge.

text:
    Andrew C. SMITH and Heather Smith, Appellants-Defendants/Cross-Defendants, v. PROGRESSIVE SOUTHEASTERN INSURANCE CO., Appellee-Plaintiff/Counter-Defendant, and Scottsdale Insurance Company, Appellee-Defendant/Counter-Defendant/Cross-Plaintiff, and The Estate of Don R. Skelton, Rhonda Skelton, and James Skelton, Appellees-Defendants/Cross-Defendants.
    Court of Appeals Case No. 18A-PL-340
    Court of Appeals of Indiana.
    FILED August 31, 2018
    Attorneys for Appellants: Lee C. Christie, Katherine A. Brown-Henry, Cline Farrell Christie & Lee, P.C., Indianapolis, Indiana
    Attorney for Appellee: William W. Drummy, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, Indiana
    MEMORANDUM DECISION

      Neither Progressive Southeastern Insurance Company nor the Estate of Don R. Skelton, Rhonda Skelton, and James Skelton has filed appellate briefs in this matter. However, pursuant to Indiana Appellate Rule 17(A), "[a] party of record in the trial court ... shall be a party on appeal."

   Kirsch, Judge.

[1] This appeal arises out of a declaratory judgment action involving a commercial general liability insurance policy issued by Scottsdale Insurance Company ("Scottsdale"). The issue in the declaratory action that is relevant to the present appeal is whether the Scottsdale policy provided coverage for the claims of Andrew C. Smith and Heather Smith (together, "the Smiths"). The trial court entered an order granting summary judgment in favor of Scottsdale, finding that the Smiths' claims were not covered under the Scottsdale policy. The Smiths appeal the trial court's order, raising the following restated issues for our review:

I. Whether the trial court erred in granting summary judgment in favor of Scottsdale because the Smiths assert that Scottsdale did not carry its burden to prove that there are no material issues of fact as to whether the Scottsdale policy provided coverage to the Smiths; and
II. Whether the Scottsdale policy is void as against public policy because the coverage under the policy is illusory.

[2] We affirm.

Facts and Procedural History

[3] In March 2016, Andrew C. Smith ("Andrew") worked for Don R. Skelton ("Don") in Don's tree trimming business. Smith worked as a groundman, which is someone who "runs the ground" and does "everything from cutting trees to roping limbs to using the pull saw." Appellants' App. Vol. 2 at 187. Andrew had worked for Don for about nine years. When Andrew performed work for Don, Don supplied all of the tools Andrew used; he also purchased a pair of steel-toed boots that Andrew wore for work and gave Andrew two "Skelton shirts." Id. at 96. Andrew worked "all kinds" of hours for Don, but typically worked about thirty hours per week, sometime more in the summer months. Id. at 54. Andrew was not paid a set hourly rate, but usually made around ten dollars an hour with payment being made in cash. Andrew was not paid for overtime, and Don did not do any income tax withholding and never gave Andrew a 1099 tax form. Id. at 56.

[4] On March 21, 2016, Andrew was working for Don and was by himself on a property cutting down trees that had previously been marked in orange. Id. at 190. As he worked, Andrew began cutting a tree that had "rotted on the back side." Id. at 192. There were utility poles in the area, and when Andrew cut the tree, it snapped and hit a utility pole ground wire, knocking the wire to the ground. Id. at 192-93. Andrew called Don and told him what happened. Andrew apologized and told Don that he "had messed up [and] had dropped a ground wire." Id. at 71. Andrew offered to "work off what it [would] cost to fix ... the damages." Id. Although Andrew had never "dropped" a ground wire before, he knew from past experience that it cost around $800 to fix. Id. Don told Andrew to go home and that Don would meet him there, so they could go together to look at the damage. Id. at 71, 195.

[5] Andrew went home, and later Don arrived to pick up Andrew in Don's bucket truck, which had an attached sixty-five-foot boom with a bucket at the end of it that could hold two adult men. Id. at 196-97. Andrew had used the bucket truck a few times, but never to reach an overhead line, only to do tree work. Id. at 79-80. Don and Andrew returned to the property, and Don parked the bucket truck near the broken ground wire. At that time, Andrew dropped the outriggers on the truck to stabilize the truck and make it safe to go up in the bucket. As Andrew did that, Don attached bungee cords with duct tape to the two ends of the broken ground wire. Id. at 199, 201. Andrew was not aware of what Don planned to do with the bungee cords. Id. at 80. Andrew got inside the bucket, and Don handed him one end of the broken ground wire. Don then joined Andrew inside of the bucket, holding the other end of the ground wire. Andrew began raising the bucket into the air, and Don told him to stop the bucket at a certain point. Id. at 200-01. The end of the ground wire that Andrew was holding started to pull away from the bungee cord, so Andrew bent over the bucket to try to grab the ground wire. Id. at 201. At that point, everything went black for Andrew, and he has no memory of what occurred. Id. Andrew sustained serious injuries that caused him to remain in the hospital for a month and then in a rehabilitation facility for another month. Id. at 205.

[6] On September 27, 2016, Progressive Southeastern Insurance Co. ("Progressive") filed a complaint for declaratory judgment, naming the Smiths, Scottsdale, and the Estate of Don R. Skelton, deceased, Rhonda Skelton, and James Skelton (together, "the Skelton Defendants") as defendants in the action. On January 6, 2017, Scottsdale filed its answer with a cross-claim for declaratory judgment against the Smiths and the Skelton Defendants and a counter-claim against Progressive. Scottsdale averred that it issued a commercial general liability policy ("the Policy") to Don and that certain exclusions in the policy precluded coverage for any damages or injuries to Andrew, as well as any claims for defense or indemnity arising out of those damages and injuries. Id. at 23-24.

[7] The Policy was issued by Scottsdale to Don with the policy number "CPS2239452" and the policy period of June 27, 2015, to June 27, 2016. Id. at 130. The Policy describes Don's business as including the following: "TREE TRIMMING, PRUNING AND REMOVAL, EXCLUDING SNOW/ICE REMOVAL." Id. at 130. The Policy provides commercial general liability coverage for Don's business, and subject to the exclusions in the policy, the Policy provides coverage for "Bodily Injury and Property Damage Liability," "Personal and Advertising Injury Liability," and "Medical Payments." Id. at 133, 135, 140, 142.

[8] Under the Policy, "an insured" is defined as: "An individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner." Id. at 143. Don is the named insured on the "Common Policy Declarations" of the Policy. Id. at 130. Section I of the Policy states that it provides coverage for "Coverage A -- Bodily Injury and Property Damage Liability": "We will pay those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies." Id. at 135. "Bodily injury" is defined as "bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time." Id. at 147.

[9] The Policy contains several exclusions to its bodily injury coverage. The exclusion clauses at issue in the present case are the exclusions for "Workers' Compensation and Similar Laws," ("the Workers' Compensation Exclusion") "Aircraft, Auto, or Watercraft," ("the Auto Exclusion") and "Injury to Worker." Id. at 136, 138, 159. The Workers' Compensation Exclusion provides: "This insurance does not apply to ... [a]ny obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law." Id. at 136.

[10] The Auto Exclusion states in pertinent part:

This insurance does not apply to:
....
g. Aircraft, Auto Or Watercraft
"Bodily injury" or "property damage" arising out of the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and "loading or unloading."
This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" involved the ownership, maintenance, use or entrustment to others of any aircraft, "auto" or watercraft that is owned or operated by or rented or loaned to any insured.

Id. at 138. The Policy defines "Auto" as:

a. A land motor vehicle, trailer or semitrailer designed for travel on public roads, including any attached machinery or equipment; or
b. Any other land vehicle that is subject to a compulsory or financial responsibility law or other motor vehicle insurance law where it is licensed or principally garaged.
However, "auto" does not include "mobile equipment."

Id. at 147. The definition of "mobile equipment" states that "self-propelled vehicles with the following types of permanently attached equipment are not 'mobile equipment' but will be considered 'autos': ... [c]herry pickers and similar devices mounted on automobile or truck chassis and used to raise or lower workers." Id. at 149.

[11] The Injury to Worker Exclusion is an endorsement to the Policy that modifies and replaces the exclusion found at paragraph "e. Employer's Liability ." Id. at 136, 159. The Injury to Worker Exclusion provides that the insurance does not apply to:

"Bodily injury" to:
(1) An "employee" of the insured arising out of and in the course of:
(a) Employment by the insured; or
(b) Performing duties related to the conduct of the insured's business; or
(2) The spouse, child, parent, brother or sister of that "employee" as a consequence of Paragraph (1) above.
This exclusion applies:
(1) Whether the insured may be liable as an employer or in any other capacity; and
(2) To any obligation to share damages with or repay someone else who must pay damages because of the injury.

Id. at 159. The Injury to Worker Exclusion further states that:

This insurance does not apply to:
1. "Bodily injury" to:
a. An "employee," "leased worker," "temporary worker" or "volunteer worker" of any insured;
b. Any contractor, subcontractor, sub-subcontractor or anyone hired or retained by or for any Insured; or
c. Any employee or anyone directly or indirectly employed by such contractor, subcontractor or subsubcontractor or anyone for whose acts such contractor, subcontractor or sub-subcontractor may be liable
if such "bodily injury" arises out of and in the course of their employment or retention of such contractor, subcontractor or sub-subcontractor, regardless of whether or not it is caused in part by you.

Id.

[12] The Policy also provides coverage for medical payments in "Coverage C - Medical Payments," stating:

a. We will pay medical expenses as described below for "bodily injury" caused by an accident:
....
(3) Because of your operations; provided that:
(a) The accident takes place in the "coverage territory" and during the policy period;
(b) The expenses are incurred and reported to us within one year of the date of the accident; and
(c) The injured person submits to examination, at our expense, by physicians of our choice as often as we reasonably require.
b. We will make these payments regardless of fault.

Id. at 142. The Policy contains several exclusions to its medical payments coverage. The exclusions to the medical payments coverage include the Workers' Compensation Exclusion, the Auto Exclusion, and the Injury to Worker Exclusion. Id. at 136, 138, 159. Additionally, the Policy states, under the medical payments coverage, that:

We will not pay for expenses for "bodily injury":
a. Any insured
To any insured, except "volunteer workers."
b. Hired Person
To a person hired to do work for or on behalf of any insured or a tenant of any insured.
....
d. Workers' Compensation or Similar Laws
To a person, whether or not an "employee" of any insured, if benefits for "bodily injury" are payable or must be provided under workers' compensation or disability benefits law or a similar law.

Id. at 142.

[13] The "LOGGING AND LUMBERING OPERATIONS EXCLUSION" ("the Logging and Lumbering Exclusion") is an endorsement in the Policy that modifies the insurance provided under the COMMERICAL GENERAL LIABILITY COVERAGE PART and provides:

This insurance does not apply to "damages," "bodily injury," "property damage" or "personal and advertising injury" arising out of "logging and lumbering" operations performed by you or on your behalf.
With respect to this endorsement, the following Definition is added to the policy:
"Logging and lumbering" means all operations associated with the felling of timber and production of lumber, including road building operations, the operation of saw or planning mills, operations incidental to any of these, and the ownership, maintenance or use of vehicles in connection with such operations.

Id. at 161.

[14] On April 19, 2017, Scottsdale filed a motion for summary judgment, a brief in support of summary judgment, and designated evidence. A hearing was held on the motion for summary judgment. At the conclusion of the hearing, the trial court granted summary judgment in favor of Scottsdale, finding that coverage for the Smiths' claims are excluded under the Policy. The Smiths now appeal.

Discussion and Decision

I. Summary Judgment

[15] When reviewing the grant of summary judgment, our standard of review is the same as that of the trial court. FLM, LLC v. Cincinnati Ins. Co. , 973 N.E.2d 1167, 1173 (Ind. Ct. App. 2012) (citing Wilcox Mfg. Grp., Inc. v. Mktg. Servs. of Ind., Inc. , 832 N.E.2d 559, 562 (Ind. Ct. App. 2005) ), trans. denied . We stand in the shoes of the trial court and apply a de novo standard of review. Id. (citing Cox v. N. Ind. Pub. Serv. Co. , 848 N.E.2d 690, 695 (Ind. Ct. App. 2006) ). Our review of a summary judgment motion is limited to those materials designated to the trial court. Ind. Trial Rule 56(H) ; Robson v. Tex. E. Corp. , 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied . Summary judgment is appropriate only where the designated evidence shows there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. T.R. 56(C). For summary judgment purposes, a fact is "material" if it bears on the ultimate resolution of relevant issues. FLM , 973 N.E.2d at 1173. We view the pleadings and designated materials in the light most favorable to the non-moving party. Id. Additionally, all facts and reasonable inferences from those facts are construed in favor of the non-moving party. Id. (citing Troxel Equip. Co. v. Limberlost Bancshares , 833 N.E.2d 36, 40 (Ind. Ct. App. 2005), trans. denied ). The initial burden is on the moving party to demonstrate the absence of any genuine issue of fact as to a determinative issue, at which point the burden shifts to the non-movant to come forward with contrary evidence showing an issue for the trier of fact. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[16] A trial court's grant of summary judgment is clothed with a presumption of validity, and the party who lost in the trial court has the burden of demonstrating that the grant of summary judgment was erroneous. Henderson v. Reid Hosp. and Healthcare Servs. , 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied . We will affirm upon any theory or basis supported by the designated materials. Id. When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having his or her day in court. Id.

[17] The interpretation of an insurance policy is primarily a question of law and, therefore, is a question particularly suited for summary judgment. FLM , 973 N.E.2d at 1174. Where there is an ambiguity, policies are to be construed strictly against the insurer. Id. An insurance contract is ambiguous when it is susceptible to more than one interpretation and reasonably intelligent persons would honestly differ as to its meaning. Id. An ambiguity does not exist, however, merely because the parties favor a different interpretation. Id. Where terms are unambiguous, they should be given their plain and ordinary meaning. Id. A court should construe the language of a contract so as not to render any words, phrases, or terms ineffective or meaningless. Id.

[18] The Smiths argue that the trial court erred in granting summary judgment in favor of Scottsdale and finding that the Smiths' claims were not covered under the Policy. The Smiths contend that there is a genuine issue of material fact as to whether Andrew was in the course of his duties at the time of his injuries, which made it error to find that coverage for his injuries is barred by the Workers' Compensation Exclusion and the Injury to Worker Exclusion. The Smiths assert that, because Andrew's job duties did not include electrical work or repairing ground wires, he was not in the course of his employment when his injuries occurred, and the Workers' Compensation Exclusion and the Injury to Worker Exclusion do not apply. The Smiths also claim that there is a genuine issue of material fact as to whether Andrew's injuries were caused by the use of the bucket truck. The Smiths maintain that merely occupying the bucket at the time of injury does not equate with the use of the bucket truck, and therefore, Scottsdale failed to prove that the Auto Exclusion applied.

[19] The Policy is a commercial general liability policy, under which Scottsdale was required to pay "those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' ... to which this insurance applies" and "medical expenses ... for 'bodily injury' caused by an accident ... because of [the insured's] operations." Appellants' App. Vol. 2 at 135, 142. However, several exclusions exist that, if applicable, preclude coverage if applicable. The Injury to Worker Exclusion precludes coverage for bodily injury to an employee of the insured if the bodily injury arises out of and is in the course of the employee's employment. Id. at 159. The Workers' Compensation Exclusion precludes coverage for "[a]ny obligation of the insured under a workers' compensation, disability benefits or unemployment compensation law or any similar law." Id. at 136. Indiana's Workers' Compensation Act authorizes the payment of compensation to employees for "personal injury or death by accident arising out of and in the course of the employment." Ind. Code § 22-3-2-2(a). Therefore, for the exclusions to be applicable, Andrew's injuries must have arisen out of and been in the course of his employment with Don.

[20] The designated evidence showed that Andrew was employed by Don in Don's tree trimming business and had been for about nine years. The Smiths' argument is that Andrew was not in the course of his employment when he was injured. " 'An injury arises out of employment when a causal nexus exists between the injury sustained and the duties or services performed by the injured employee.' " A Plus Home Health Care Inc. v. Miecznikowski , 983 N.E.2d 140, 142 (Ind. Ct. App. 2012) (quoting Milledge v. The Oaks, 784 N.E.2d 926, 929 (Ind. 2003), superseded on other grounds by I.C. § 23-3-2-2 (2006) ), trans. denied . "The 'nexus is established when a reasonably prudent person considers the injury to be born out of a risk incidental to the employment.' " Id. (quoting Milledge , 784 N.E.2d at 142).

[21] The designated evidence showed that, on the day of Andrew's injuries, Andrew was working for Don and was on a property cutting down trees that had previously been marked in orange. As he worked, Andrew began cutting a tree that had "rotted on the back side" and when Andrew cut the tree, it snapped and hit a utility pole ground wire, knocking the ground wire to the ground. Appellants' App. Vol. 2 at 192-93. Andrew called Don and told him about the broken ground wire. Don told Andrew to go home and that Don would pick him up later, so they could go together to look at the damage. Id. at 71, 195. Don came to pick him up in Don's bucket truck, and they returned to the property.

[22] When they arrived at the worksite, Don parked the bucket truck near the broken ground wire, Andrew dropped the outriggers on the truck to stabilize it, and Don attached bungee cords to the two ends of the broken ground wire. Id. at 199, 201. Andrew believed that they were "hooking them up there" and thought that Don called the light company and they were "just getting them out of the way for making it easier for them [the light company] to fix it." Id. at 80. After Andrew set up the outriggers and Don attached the bungee cords, Andrew got in the bucket, and Don handed him one side of the wire. Don grabbed the other side and got in the bucket with Andrew. After Don climbed into the bucket truck, Andrew raised the bucket up. He raised the bucket slowly, and Don kept telling him, "Come on, come on, a little more, a little more." Id. at 85-86, 200-01. Andrew's wire started to slip through the bungee cord, and he tried to bend over the bucket to grab it to keep it from slipping. Andrew reached over the bucket to touch the wire, and then everything went black. Andrew believed that his movement to grab the wire caused the bucket to move and caused Don to sway to get his balance and that Don touched a live wire while straightening up. Id at 87-88; 202-03.

[23] The designated evidence showed a causal nexus between the injury sustained and the duties or services performed by the injured employee. Evidence was presented that Andrew believed that he and Don were in the bucket to "hook [the wires] up there" to make it easier for the light company to fix. Id. at 80. Andrew was not present at the worksite and in the bucket for any personal reason; he had gone back because Don, his employer, had picked him up to look at the ground wire that Andrew had broken while he was working earlier that day. Andrew did not have any personal reason to hold part of the broken ground wire, operate the bucket truck, or go into the bucket. Further, although Andrew did not have previous experience with repairing broken ground wires, the evidence showed that he was aware that broken ground wires occurred during this type of work and that Don had previously broken wires. Id. at 71-72. Andrew also stated that working around power lines and utility poles was "just another day at the office" and that he always treated wires as if they were live with electricity running through them. Id. at 66, 88. Therefore, a reasonably prudent person could consider Andrew's injury to be born out of a risk incidental to the employment, and a causal nexus between Andrew's injury and the duties or services performed by him existed. Andrew's injuries arose out of his employment with Don, and his injuries occurred in the course of his employment with Don. Thus, the Injury to Workers Exclusion, the Workers' Compensation Exclusion, and the Medical Payments Exclusion are applicable and preclude recovery for the Smiths.

[24] Additionally, the Auto Exclusion precludes coverage for bodily injury arising out of the ownership, maintenance, use or entrustment to others of any auto owned or operated by or rented or loaned to any insured. Id. Both Scottsdale and the Smiths agree that the bucket truck at issue meets the definition of an "auto" under the Policy. Appellants' Br . at 32; Appellants' App. Vol. 2 at 120-21. "Our Supreme Court has interpreted the phrase 'ownership, maintenance, and use' of a vehicle, in the context of an insurance policy, to mean 'being caused by use of' the vehicle." Estate of Curtis by Brade v. GEICO Gen. Ins. Co. , 71 N.E.3d 1157, 1160 (Ind. Ct. App. 2017) (quoting Ind. Lumbermens Mut. Ins. Co. v. Statesmen Ins. Co. , 260 Ind. 32, 34, 291 N.E.2d 897, 899 (1973) ). "Therefore, an accident arises out of the ownership, maintenance, and use of a vehicle only if such ownership, use, or maintenance is the incident's 'efficient and predominating cause.' " Id. The question is whether there is an "active" relationship between the claimant and the vehicle. Argonaut Ins. Co. v. Jones , 953 N.E.2d 608, 619 (Ind. Ct. App. 2011), trans. denied .

[25] Here, the evidence was that Andrew was injured at a worksite where, earlier in the day, he had broken a ground wire. After breaking the wire, he notified Don, who told him that he would pick him up later that evening to return to the worksite. When they returned to the worksite, Don wrapped bungee cords around each side of the wire and handed one side to Andrew, while holding onto the other end. Both men got into the bucket, and Andrew raised it. While inside of the bucket and in the air, Andrew's end of the wire began to slip, and he reached over the side of the bucket to maintain his hold of the wire. Andrew believed his movement caused the bucket to move and caused Don to touch the live wire. Both Don and Andrew were inside the bucket and using the bucket truck when they were injured, and immediately before their injuries occurred, Andrew was operating the bucket by raising it. Don and Andrew were both inside the bucket holding the different sides of a broken ground wire when Andrew reached over the edge of the bucket, and Don then touched a live wire, causing their injuries. Therefore, at the time that Andrew's injuries occurred, he and Don were using the bucket truck in their attempt to deal with the broken ground wire. Because the use of the bucket truck caused Andrew's injuries, the Auto Exclusion precludes recovery for the Smiths.

[26] We, therefore, conclude that the designated evidence showed that Andrew's injuries arose out of his employment with Don and his injuries occurred in the course of that employment, and coverage under the Policy was excluded under the Injury to Workers Exclusion, the Workers' Compensation Exclusion, and the Medical Payments Exclusion. Additionally, the evidence showed that Andrew's injuries arose out of the use an auto, namely the bucket truck, owned by Don, and coverage under the Policy was excluded under the Auto Exclusion. The trial court did not err in granting summary judgment in favor of Scottsdale.

II. Policy Void

[27] Generally, an insurer has the right to limit its coverage of risks and its liability, and in so doing may impose exceptions, conditions, and exclusions upon its contractual obligations that are not inconsistent with public policy. Balagtas v. Bishop , 910 N.E.2d 789, 795 (Ind. Ct. App. 2009), trans. denied . "[C]ontracting parties may enter into any agreement they desire so long as it is not illegal or contrary to public policy." Valparaiso Tech. Inst., Inc. v. Porter Cnty. Treasurer , 676 N.E.2d 416, 420 (Ind. Ct. App. 1997). "Our courts have refused to enforce private agreements on public policy grounds in cases involving: (1) agreements that contravene a statute; (2) agreements that clearly tend to injure the public in some way; or (3) agreements that are otherwise contrary to the declared public policy of Indiana." Hemingway v. Scott , 66 N.E.3d 998, 1002 (Ind. Ct. App. 2016).

[28] The Smiths argue that the Policy is void as against public policy and unenforceable because the Policy provides no coverage under any circumstances. The Smiths contend that this is because the Logging and Lumbering Exclusion contained in the Policy precludes any coverage because Don's entire business falls within the scope of the exclusion since the tree trimming business includes cutting down trees. The Smiths further assert that the Policy is useless because it excludes coverage from the use of the equipment attached onto Don's automobiles, for any type of worker injuries, and associated with the cutting down of trees, which is the main operation of Don's business and that all of these exclusions combine to exclude coverage for all foreseeable liabilities of Don's business.

[29] The Policy contains the Logging and Lumbering Exclusion, which provides:

This insurance does not apply to "damages," "bodily injury," "property damage" or "personal and advertising injury" arising out of "logging and lumbering" operations performed by you or on your behalf.
With respect to this endorsement, the following Definition is added to the policy:
"Logging and lumbering" means all operations associated with the felling of timber and production of lumber, including road building operations, the operation of saw or planning mills, operations incidental to any of these, and the ownership, maintenance or use of vehicles in connection with such operations.

Id. at 161.

[30] The Policy is designed as a commercial general liability insurance policy, not a policy that provides coverage for employees or workers. Although the Smiths argue that the Logging and Lumbering Exclusion precludes any coverage because Don's business includes the cutting down of trees, we disagree. In the Policy, logging and lumbering is defined as "all operations associated with the felling of timber and production of lumber." Id. The plain language of the Logging and Lumbering Exclusion does not exclude coverage for tree trimming and removal. The Smiths maintain that "logging and lumbering" is equivalent to "cutting down trees (i.e. the felling of timber)." Appellants' Br. at 35-36. However, this is not correct. A tree-trimming and tree removal business does not engage in the production of lumber or the felling of timber. Don did not fell trees to produce lumber. The Logging and Lumbering Exclusion is not applicable to Don's business and did not preclude coverage for his operations. Because coverage for injuries under the commercial general liability of Don's business is not precluded under the Policy, we conclude that the Policy is not void as against public policy.

[31] Affirmed.

Vaidik, C.J., and Riley, J., concur.

      Don was killed as a result of the incident.

      Progressive Southeastern Insurance Co. was Don's commercial auto insurer.

      In their Appellants' Brief, the Smiths argue that Scottsdale made additional designations of evidence in its Reply Brief in Support of Its Motion for Summary Judgment and at the summary judgment hearing and assert that these additional designations were not properly in front of the trial court and should not have been considered by the trial court. The Smiths did not raise this issue of untimely designated evidence to the trial court. It is well-settled that issues not raised before the trial court on a summary judgment motion cannot be argued for the first time on appeal and are therefore waived. Morris v. BioSafe Engineering, Inc. , 9 N.E.3d 195, 201 n.4 (Ind. Ct. App. 2014), trans. denied . Waiver notwithstanding, the additional designations at issue were parts of Andrew's deposition, and Progressive had previously filed Andrew's complete deposition as designated evidence. Appellants' App. Vol. 2 at 45-112. "It is well settled that a party may rely on evidence designated by an opposing party." N. Assurance Co. of Am. v. Thomson Inc. , 996 N.E.2d 785, 794 (Ind. Ct. App. 2013) (citing AutoXchange.com, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 40, 46 (Ind. Ct. App. 2004) ("Once evidence has been designated to the trial court by one party, that evidence is deemed designated and the opposing party need not designate the same evidence.") ), trans. denied . We, therefore, conclude that Scottsdale's designations of additional pages of Andrew's deposition were properly in front of the trial court.

      Although the previous attorney representing Scottsdale in Scottsdale's cross-claim for declaratory judgment, argued that the Logging and Lumbering Exclusion precluded coverage, this argument has not been repeated.


source: Caselaw Access Project

author: CRONE, J.

license: Public Domain

text:
    Adam BARTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-810
    Court of Appeals of Indiana.
    FILED August 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

NAJAM, J., Concurs.

PYLE, J., Concurs.


text:
    Rufus WEHGAR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 18A-CR-154
    Court of Appeals of Indiana.
    Filed August 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   CRONE, J.

Affirmed.

NAJAM, J., Concurs.

PYLE, J., Concurs.


author: PYLE, J.

text:
    Michelle Faye Gonzales HUGHES, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-112
    Court of Appeals of Indiana.
    Filed August 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   PYLE, J.

Affirmed.

VAIDIK, C.J., Concurs.

BARNES, Sr.J., Concurs.


author: RILEY, J.

text:
    Paul Michael WILDRIDGE, Sr. and Cheryl L. Wildridge, Appellants-Plaintiffs, v. FRANCISCAN ALLIANCE, INC., Franciscan St. Francis Health, St. Francis Hospital and Health Centers, Mooresville, Indiana, Appellees-Defendants.
    Court of Appeals Case No. 18A-CT-464
    Court of Appeals of Indiana.
    Filed August 30, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

VAIDIK, C.J., Concurs.

KIRSCH, J., Concurs.


author: BROWN, J.

text:
    James SMALLS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-433
    Court of Appeals of Indiana.
    FILED August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


author: BAILEY, J.

text:
    Jessie LAUDIG, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1712-CR-2857
    Court of Appeals of Indiana.
    Filed August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Reversed.

MATHIAS, J., Concurs.

BRADFORD, J., Concurs.


text:
    James E. SAYLOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 39A05-1712-CR-2921
    Court of Appeals of Indiana.
    Filed August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   RILEY, J.

Affirmed.

VAIDIK, C.J., Concurs.

KIRSCH, J., Concurs.


author: ROBB, J.

text:
    In the Termination of the Parent-Child Relationship of: I.S. (Minor Child) and T.S. (Mother), Appellant-Respondent, v. Indiana Department of Child Services, Appellee-Petitioner and Child Advocates, Inc., Appellee-Guardian Ad Litem
    Court of Appeals Case No. 18A-JT-553
    Court of Appeals of Indiana.
    Filed August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   ROBB, J.

Affirmed.

BAKER, J., Concurs.

MAY, J., Concurs.


text:
    Fred WEISHEIT, Appellant, v. TRIPLE J PLUMBING LLC, Appellee.
    Court of Appeals Case No. 33A01-1709-SC-2098
    Court of Appeals of Indiana.
    FILED August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BROWN, J.

Affirmed.

ALTICE, J., Concurs.

TAVITAS, J., Concurs.


author: KIRSCH, J.

text:
    Demarquis D. RICE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-CR-763
    Court of Appeals of Indiana.
    FILED August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   KIRSCH, J.

Affirmed.

VAIDIK, C.J., Concurs.

RILEY, J., Concurs.


text:
    Mark C. MORR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 57A03-1710-CR-2436
    Court of Appeals of Indiana.
    Filed August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Affirmed in part, reversed in part, and remanded.

MATHIAS, J., Concurs.

BRADFORD, J., Concurs.


text:
    J.W., Appellant-Respondent, v. D.W., Appellee-Petitioner.
    Court of Appeals Case No. 18A-DR-245
    Court of Appeals of Indiana.
    Filed August 31, 2018
    DISPOSITION OF CASE BY UNPUBLISHED MEMORANDUM DECISION
   BAILEY, J.

Affirmed.

MATHIAS, J., Concurs.

BRADFORD, J., Concurs.


text:
    Timothy E. CICHOCKI & another v. TOWN OF REHOBOTH.
    SJC-12156
    Supreme Judicial Court of Massachusetts.
    November 15, 2018
    Y. Dolly Hwang, pro se.
    Joshua D. Jacobson, Assistant Attorney General, for the Land Court & another.
    Timothy E. Cichocki, pro se, was present but did not argue.
    Jason R. Talerman, for town of Rehoboth, was present but did not argue.
    RESCRIPT
    The petitioners, Timothy E. Cichocki and Y. Dolly Hwang, appeal from a judgment of a single justice of this court denying their petition for relief pursuant to G. L. c. 211, § 3, and for a writ of mandamus pursuant to G. L. c. 249, § 5 (collectively, the "petition"). We affirm.
    In 2007, the petitioners' property was foreclosed on a tax lien; in 2009, on the motion of the town of Rehoboth (town), a judge in the Land Court allowed the town to foreclose on the petitioners' right of redemption. The Appeals Court affirmed the judgment. See Rehoboth v. Hwang, 78 Mass.App.Ct. 1129, 941 N.E.2d 1149 (2011). This court denied the petitioners' application for further appellate review. See 463 Mass. 1111, 977 N.E.2d 561 (2012). The petitioners then sought relief in the Federal courts. They also refused to leave the property, and the town ultimately sought a preliminary injunction to enjoin them from occupying the property. After the petitioners' efforts in the Federal courts were unsuccessful, they filed their petition in the county court, asking the court to vacate the lower court judgments; to order the town to return their house and all of the personal property that was kept therein; and to "[o]rder the Bristol County [district attorney] to resume its investigation" of an "incident" that occurred at their house in June, 2013. The single justice denied the petition without a hearing.
    In their appeal to this court the petitioners continue to argue, as they did in their various other court proceedings, that they have been wronged by the town's actions in foreclosing on their home. They assert that this court has "mandamus jurisdiction" because "adequate or effective remedies were not available elsewhere." That the petitioners are unhappy with the results they received in their other court cases does not mean, however, that those remedies were inadequate. Relief under G. L. c. 211, § 3, is properly denied "where there are adequate and effective routes ... by which the petitioning party may seek relief." Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019, 672 N.E.2d 535 (1996). Similarly, "[r]elief in the nature of mandamus is extraordinary, and is granted in the discretion of the court where no other relief is available." Murray v. Commonwealth, 447 Mass. 1010, 1010, 852 N.E.2d 66 (2006), citing Forte v. Commonwealth, 429 Mass. 1019, 1020, 711 N.E.2d 880 (1999).
    The petitioners have already obtained appellate review of the tax lien foreclosure judgment, and to the extent that there were other trial court judgments with which they were dissatisfied, they could have done the same. Furthermore, any effort by the petitioners to cast their current arguments as "jurisdictional" appears to be nothing more than an attempt to recast already-litigated issues. "Our general superintendence power under G. L. c. 211, § 3, is extraordinary and to be exercised sparingly, not as a substitute for the normal appellate process or merely to provide an additional layer of appellate review after the normal process has run its course." Votta v. Police Dep't of Billerica, 444 Mass. 1001, 1001, 826 N.E.2d 199 (2005).

      Y. Dolly Hwang.

      The petitioners also named the Land Court and the Southeast Division of the Housing Court Department as respondents. The courts are nominal parties only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).

      To the extent that the Land Court judge stayed the tax lien foreclosure pending appeal, that stay expired when the appellate process ended, i.e., when the petitioners' application for further appellate review was denied. Additionally, it appears that the preliminary injunction enjoining the petitioners from occupying their home was based at least in part on a Housing Court judge's determination that the home was unsafe and unfit for habitation.

      It appears that although the petitioners had moved out of their house, they had left personal property behind, and that the "incident" in question involved the town's removal, with notice, of that personal property.

   The single justice did not err or abuse his discretion in denying relief.

Judgment affirmed.


text:
    Mark REZNIK v. Joseph P. MENDES & Others.
    SJC-12505
    Supreme Judicial Court of Massachusetts.
    November 15, 2018
    The case was submitted on briefs.
    Mark Reznik, pro se.
    Michael P. Johnson, Boston, pro se.
    Joseph P. Mendes, Boston, pro se.
    RESCRIPT
    Mark Reznik filed a petition pursuant to G. L. c. 211, § 3, in the county court seeking, among other things, an order requiring the Appeals Court to accept his notice of appeal from its award of appellate attorney's fees against him in the underlying litigation. The single justice denied the petition and the accompanying motions that Reznik had also filed in the county court. We affirm.
    This case originated in the District Court when Reznik filed a civil complaint against Nicholas Urzia and Miranda Equipment & Contracting, Inc. The complaint was eventually dismissed because of, among other things, Reznik's multiple violations of interim court orders. Reznik's appeal to the Appellate Division of the District Court from the dismissal of his case was thereafter dismissed by the Appellate Division for failure to comply with the appellate rules. Reznik then appealed to the Appeals Court. In a memorandum and order pursuant to its rule 1:28, the Appeals Court affirmed the Appellate Division's decision, concluded that Reznik's appeal from that decision was "interposed solely for purposes of harassment, wholly lack[ed] legal or factual basis, and otherwise [was] frivolous," and granted the appellees' request for appellate attorney's fees and double costs pursuant to Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979). Reznik neither petitioned the Appeals Court for a rehearing nor filed an application for further review in this court, as he might have done at that juncture. Instead, he filed a notice of appeal in the Appeals Court, purporting to appeal as a matter of right to this court pursuant to G. L. c. 231, § 6G, from the Appeals Court's award of fees and double costs.
    The Appeals Court struck Reznik's notice of appeal from its award of fees and double costs. The court explained that its order was not predicated on G. L. c. 231, § 6F, and therefore he had no right to appeal pursuant to G. L. c. 231, § 6G. Rather, as the Appeals Court explained to him, its award of fees and double costs was based on Mass. R. A. P. 25, from which there is no appeal to this court as a matter of right. Reznik's options at that point were to petition for rehearing in the Appeals Court, Mass. R. A. P. 27, as amended, 410 Mass. 1602 (1991); apply for further appellate review in this court, Mass. R. A. P. 27.1, as amended, 441 Mass. 1601 (2004); or appeal from the striking of his notice of appeal. See Fronk v. Fowler, 456 Mass. 317, 326-327 & n.20, 923 N.E.2d 503 (2010) (describing different routes for obtaining appellate review of fee awards under G. L. c. 231, § 6F, on one hand, and awards under Mass. R. A. P. 25 and G. L. c. 211A, § 15, on other hand; "Decisions concerning the award of litigation costs follow different appellate paths depending on their origin"); Masterpiece Kitchen & Bath, Inc. v. Gordon, 425 Mass. 325, 330 & n.11, 680 N.E.2d 1150 (1997) ( G. L. c. 231, § 6G, only authorizes appeals "from decisions rendered under G. L. c. 231, § 6F"; "party aggrieved by the award of costs by the Appeals Court under G. L. c. 211A, § 15, and Mass. R. A. P. 25 may seek review in this court by applying for further appellate review"); Avery v. Steele, 414 Mass. 450, 451, 608 N.E.2d 1014 (1993) (granting further appellate review to consider assessment of double costs under Mass. R. A. P. 25 and G. L. c. 211A, § 15 ).
    This is not a case where Reznik had a right to appellate review that was thwarted by a court. Contrast Reznik v. Garaffo, 466 Mass. 1034, 1035, 999 N.E.2d 1089 (2013) ;
    Reznik v. District Court Dep't of the Trial Court, 456 Mass. 1001, 1001, 921 N.E.2d 83 (2010). He was not entitled to appeal to this court as a matter of right. He had an opportunity to seek discretionary review from this court by applying for further appellate review, but failed to avail himself of that opportunity even after the Appeals Court directed him in writing to the correct procedure.
    Because Reznik had no right to appeal pursuant to G. L. c. 231, § 6G, and because he could have applied for further appellate review in this court, the single justice properly declined to exercise this court's extraordinary power of general superintendence under G. L. c. 211, § 3.
    Judgment affirmed.

      Michael P. Johnson and the Massachusetts Appeals Court. The Appeals Court is a nominal party only. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996). The defendants in the underlying litigation, Nicholas Urzia and Miranda Equipment & Contracting, Inc., were not named as parties in the petition, although they should have been. See id.

      To the extent Reznik's petition also sought relief from the Appeals Court's decision on the substantive merits of his appeal, and from a decision of the Appellate Division of the District Court dismissing his initial appeal to that court, the single justice correctly denied relief. The power of general superintendence "is meant for situations where a litigant has no adequate alternative remedy." McMenimen v. Passatempo, 452 Mass. 178, 185, 892 N.E.2d 287 (2008). With respect to the Appellate Division's decision, Reznik could have appealed, and in fact did appeal, to the Appeals Court. With respect to the Appeals Court's decision on the merits, he could have petitioned for a rehearing in the Appeals Court or applied for further appellate review in this court.
      The single justice also correctly denied Reznik's request for discipline of the two attorneys who, in the Appeals Court, requested attorney's fees and costs on behalf of their clients. See Gorbatova v. Semuels, 462 Mass. 1012, 1012, 968 N.E.2d 380 (2012) ("no private right to commence a court action to seek disciplinary action against an attorney"); Matter of a Request for an Investigation of an Attorney, 449 Mass. 1013, 1014, 867 N.E.2d 323 (2007).

      Striking a notice of appeal on the ground that no right to appeal exists, as the Appeals Court did here, does not foreclose one's right to appeal altogether, but it limits the scope of what may be appealed. A party who believes that he or she has a right to appeal from a challenged order may file a second notice of appeal from the order striking the first notice of appeal. It would then be incumbent on the lower court to allow an appeal to proceed on the limited question whether the party had a right to appeal from the challenged order in the first place. See Elles v. Zoning Board of Appeals of Quincy, 450 Mass. 671, 673, 881 N.E.2d 129 (2008), and cases cited. See also Skandha v. Clerk of the Superior Court for Civil Business in Suffolk County, 472 Mass. 1017, 1019, 37 N.E.3d 1095 (2015) ; Reznik v. Garaffo, 466 Mass. 1034, 1035, 999 N.E.2d 1089 (2013) ; Reznik v. District Court Dep't of the Trial Court, 456 Mass. 1001, 1001, 921 N.E.2d 83 (2010). The result we reach here -- that Reznik had no right to appeal pursuant to G. L. c. 231, § 6G, because the Appeals Court's award of fees and double costs was made under Mass. R. A. P. 25 and not under G. L. c. 231, § 6F -- would be the same regardless whether Reznik had filed a second notice of appeal in the Appeals Court, and the case had come before us in that fashion, instead of petitioning a single justice of this court under G. L. c. 211, § 3, as he did.

      Reznik's filings both before the single justice and before the full court were replete with vitriolic, unsubstantiated, and ultimately irrelevant accusations against the attorneys and judges who were involved in this case. We have previously cautioned him against this, and have placed him on notice that the inclusion of such material may lead to sanctions. See Reznik v. Garaffo, 466 Mass. at 1035 n.4, 999 N.E.2d 1089. The respondents did not include a request for sanctions in their briefs before this court, but in the future we will not hesitate to impose sanctions with or without a request. See Avery v. Steele, 414 Mass. 450, 608 N.E.2d 1014 (1993).


text:
    Terry Ann Seldon CALHOUN v. BOYD/SMITH, INC.
    SJC-12123
    Supreme Judicial Court of Massachusetts.
    November 15, 2018
    Terry Ann Seldon Calhoun, pro se.
    Daniel A. Bancroft, Newton, for the respondent.
    RESCRIPT
    The petitioner, Terry Ann Seldon Calhoun, appeals from a judgment of a single justice of this court denying, without a hearing, her petition for extraordinary relief under G. L. c. 211, § 3. Calhoun sought relief from an order of a judge in the Housing Court setting an appeal bond in connection with an appeal from a summary process judgment. We affirm.
    The single justice properly denied relief, as Calhoun had one or more adequate alternative remedies. See Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019, 672 N.E.2d 535 (1996) (relief properly denied under G. L. c. 211, § 3, "where there are [other] adequate and effective routes ... by which the petitioning party may seek relief"). Indeed, she had pursued one such remedy, a request for review of the bond order by a single justice of the Appeals Court pursuant to G. L. c. 239, § 5 (f ). "The proper course for her to have followed, if she wished to further challenge the bond, was to refuse to pay the bond, suffer the dismissal of her summary process appeal, and then appeal to the Appeals Court (on the limited bond issue) from the order of dismissal." Matter of an Appeal Bond (No. 1), 428 Mass. 1013, 1013, 697 N.E.2d 994 (1998). See Wallace v. PNC Bank, N.A., 478 Mass. 1020, 1021, 88 N.E.3d 877 (2018). "To the extent [she] sought review of the underlying summary process proceeding itself or restoration of [her] use and occupancy of the premises, [she] could have posted the appeal bond in a timely manner and prosecuted an appeal from the summary process judgment in the ordinary appellate process." Wallace, supra.

      The petitioner did not allege that she is indigent or seek a waiver of the appeal bond on that ground. See G. L. c. 239, § 5.

      The respondent, Boyd/Smith, Inc., argues in its brief that it is "unable to respond to or anticipate [the petitioner's] arguments" on appeal because the petitioner did not file a brief in accordance with the Massachusetts Rules of Appellate Procedure. Instead, the petitioner filed a motion to treat an accumulation of over ten prior, individual filings as her appellate brief. According to the respondent, the petitioner never served a number of these filings on the respondent. In light of our disposition of this appeal, we need not address these issues.

   Judgment affirmed.


author: LOWY, J.

text:
    COMMONWEALTH v. Christ O. LYS.
    SJC-12476
    Supreme Judicial Court of Massachusetts, Middlesex..
    Argued September 5, 2018. Decided November 19, 2018.
    Patrick N. Long, for the defendant.
    Gabriel Pell, Assistant District Attorney, for the Commonwealth.
    John P. Zanini, Assistant District Attorney, for District Attorney for the Berkshire District & others, amici curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
   LOWY, J.

The defendant pleaded guilty in the District Court to violating multiple controlled substances laws. He was a lawful permanent resident who had emigrated from Haiti, and his plea rendered him deportable. The Federal government detained the defendant and initiated deportation proceedings against him. The defendant then filed a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), arguing that he had received ineffective assistance of counsel. The defendant claimed, inter alia, that he would not have pleaded guilty if his counsel had properly advised him about the plea's immigration consequences. The motion judge, who was also the plea judge, denied the motion after a nonevidentiary hearing. The defendant appealed, and the Appeals Court affirmed. Commonwealth v. Lys, 91 Mass.App.Ct. 718, 726, 80 N.E.3d 347 (2017). We allowed the defendant's application for further appellate review.

In his written decision, the judge found that plea counsel's performance was constitutionally deficient but that the deficient performance did not prejudice the defendant. The Commonwealth now contends that the judge's finding of deficient performance was erroneous. The defendant contends that the judge erroneously found a lack of prejudice. We do not reach the merits of either issue. Rather, we conclude that the judge (1) might have failed to recognize his discretion to credit or discredit the defendant's affidavits as they pertained to plea counsel's allegedly deficient performance, even in the absence of an affidavit from plea counsel; and (2) failed to make factual findings about whether special circumstances relevant to the prejudice inquiry existed. Therefore, we vacate the denial of the motion for a new trial and remand the case to the District Court for proceedings consistent with this opinion.

Background. 1. Plea. According to the prosecutor's summary of the Commonwealth's allegations at the plea hearing and other undisputed record materials, the defendant sold marijuana and cocaine to an undercover police officer on various occasions, often in a school zone; he offered to sell marijuana and cocaine to the same undercover officer multiple times; and he conspired to violate controlled substances laws when he distributed the cocaine.

The defendant faced a twenty-eight-count complaint. He ultimately pleaded guilty to three counts of distributing marijuana, G. L. c. 94C, § 32C (a ) ; two counts of distributing cocaine, G. L. c. 94C, § 32A (a ), as amended through St. 2010, c. 256, § 68; two counts of conspiring to violate controlled substances laws, G. L. c. 274, § 7 ; thirteen counts of attempting to distribute a class D substance, G. L. c. 274, § 6 ; and two counts of attempting to distribute a class B substance, G. L. c. 274, § 6. The judge sentenced the defendant to eighteen months in a house of correction and a term of probation.

As part of the plea, the Commonwealth entered nolle prosequis with respect to four counts of violating a controlled substances law near a school, G. L. c. 94C, § 32J, as amended through St. 2010, c. 256, § 72; and dismissed two counts of possessing cocaine, G. L. c. 94C, § 34, as amended through St. 2008, c. 387, § 5. Each school zone charge would have carried a mandatory minimum sentence of two years in a jail or house of correction, from and after the defendant's sentences on the underlying drug crimes.

2. Motion for new trial. The defendant filed two affidavits in support of his motion for a new trial, both of which stated that plea counsel had not warned him about the plea's immigration consequences. Neither plea counsel nor motion counsel submitted affidavits. The judge observed in his decision that plea counsel did not testify or provide an affidavit and declared that, "[f]aced with this paucity of factual information," "the [c]ourt feels strongly that it must give the [d]efendant's and his [motion] [a]ttorney's [a]ffidavits full credit." Accordingly, the judge found that plea counsel had performed deficiently. But the judge went on to find that this deficient performance did not prejudice the defendant. Without making any factual findings, he concluded that "the court does not find the presence of any special circumstances" suggesting that the defendant would have placed particular emphasis on immigration consequences when deciding whether to plead guilty.

Discussion. A motion for a new trial may be granted "if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b). We examine the granting or denial of a new trial motion "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Lavrinenko, 473 Mass. 42, 47, 38 N.E.3d 278 (2015), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). We extend "substantial deference" to a motion judge who was also the plea judge. Commonwealth v. Sylvain, 473 Mass. 832, 835, 46 N.E.3d 551 (2016), quoting Commonwealth v. Grant, 426 Mass. 667, 672, 689 N.E.2d 1336 (1998), S.C., 440 Mass. 1001, 793 N.E.2d 372 (2003).

1. Performance. "Both art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution guarantee a right to the effective assistance of counsel." Commonwealth v. Lykus, 406 Mass. 135, 138, 546 N.E.2d 159 (1989). To provide effective representation under the Sixth Amendment, counsel must advise his or her clients about a guilty plea's "truly clear" deportation consequences. Padilla v. Kentucky, 559 U.S. 356, 369, 374, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). See Commonwealth v. Sylvain, 466 Mass. 422, 424, 995 N.E.2d 760 (2013) ( Sylvain I ), S.C., 473 Mass. 832, 46 N.E.3d 551 (2016) (applying same rule under art. 12 ). "Here, as in Padilla, the consequences of the defendant's plea were clear." Commonwealth v. Clarke, 460 Mass. 30, 46, 949 N.E.2d 892 (2011). See Commonwealth v. DeJesus, 468 Mass. 174, 180-181, 9 N.E.3d 789 (2014).

The judge found that the performance of the defendant's plea counsel was constitutionally deficient because plea counsel did not explain the plea's immigration consequences to the defendant. We do not review this decision's merits. Instead, we remand because the judge might not have recognized his discretion to credit or discredit the defendant's affidavits, even in the absence of an affidavit from plea counsel. See Commonwealth v. Lydon, 477 Mass. 1013, 1015, 75 N.E.3d 1116 (2017) (remanding when "judge did not recognize his discretionary authority"); Commonwealth v. Harris, 443 Mass. 714, 728, 733, 825 N.E.2d 58 (2005) (remanding when judge "declin[ed] to exercise any discretion").

Under Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001), a judge hearing a motion for a new trial must first decide whether the defendant's motion and affidavits present a "substantial issue." In making this determination, a motion judge need not accept statements in the defendant's affidavits as true, even if the statements are undisputed. Commonwealth v. Vaughn, 471 Mass. 398, 405, 30 N.E.3d 76 (2015). Instead, a motion judge should consider "both the seriousness of the issue itself and the adequacy of the defendant's showing on that issue." Commonwealth v. Denis, 442 Mass. 617, 628, 814 N.E.2d 1080 (2004). Although a defendant's motion and affidavits "need not prove the issue raised," to be adequate "they must at least contain sufficient credible information to cast doubt on the issue." Id. at 629, 814 N.E.2d 1080.

If a motion judge finds that the motion and affidavits do not present a substantial issue, then "[t]he judge may rule on a motion for a new trial without an evidentiary hearing." Id. at 628, 814 N.E.2d 1080. If a motion judge finds that they do present a substantial issue, then the judge must hold an evidentiary hearing. Vaughn, 471 Mass. at 404, 30 N.E.3d 76, quoting Commonwealth v. Chatman, 466 Mass. 327, 334, 995 N.E.2d 32 (2013), S.C., 473 Mass. 840, 46 N.E.3d 1010 (2016) ("Only when the motion and affidavits raise a 'substantial issue' is an evidentiary hearing required"). Commonwealth v. Stewart, 383 Mass. 253, 257, 418 N.E.2d 1219 (1981) (stating that if defendant's newly discovered evidence raises substantial issue, then "he is entitled to an evidentiary hearing"). Here, the defendant claimed in his affidavits that his plea counsel did not explain to him the plea's immigration consequences. "A claim of ineffective assistance of counsel ... readily qualifies as a serious issue." Denis, 442 Mass. at 629, 814 N.E.2d 1080. The judge, therefore, needed to consider only the adequacy of the defendant's assertions when deciding whether the defendant had raised a substantial issue. It is unclear whether he did so. After stating that plea counsel did not provide an affidavit or testify, the judge concluded that he "fe[lt] strongly that [he] must give the [d]efendant's and his [motion] [a]ttorney's [a]ffidavits full credit."

A motion judge may consider the absence of an affidavit from allegedly ineffective counsel in the adequacy analysis. But this failure need not create an inference that the defendant's affidavit must be credited, as the judge here suggested. Indeed, a motion judge in some circumstances may infer that the absence of an affidavit from prior counsel makes the statements in the defendant's affidavit less likely to be true. See Vaughn, 471 Mass. at 405, 30 N.E.3d 76, quoting Commonwealth v. Goodreau, 442 Mass. 341, 354, 813 N.E.2d 465 (2004) ("the judge may take into account the suspicious failure to provide pertinent information from an expected and available source"). But see Commonwealth v. Martinez, 86 Mass.App.Ct. 545, 551, 18 N.E.3d 694 (2014) (lack of affidavit from trial counsel does not, "by itself, defeat[ ] a claim of ineffective assistance of counsel" when "successor counsel filed affidavits attesting to plea counsel's lack of cooperation").

Because the judge might have failed to recognize his discretion to credit or discredit the defendant's affidavits in the absence of an affidavit from plea counsel, we remand "with instructions to provide findings relating to the issue of [plea counsel's deficient performance] and, if necessary, to hold an additional evidentiary hearing ... for that purpose." Sylvain I, 466 Mass. at 439, 995 N.E.2d 760. We emphasize that the judge on remand should "provide some reasons for accepting or rejecting a particular affidavit ... to assist the appellate court in understanding whether the judge acted within his or her discretion." Vaughn, 471 Mass. at 405, 30 N.E.3d 76.

2. Prejudice. To show prejudice when seeking to withdraw a guilty plea on the ground of ineffective assistance, a defendant must provide sufficient "credible facts" to demonstrate a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice. Lavrinenko, 473 Mass. at 55, 38 N.E.3d 278. See Clarke, 460 Mass. at 47, 949 N.E.2d 892, quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "At a minimum, this means that the defendant must aver that to be the case." Clarke, supra, citing Hill, supra at 60, 106 S.Ct. 366. The defendant here stated in his affidavits that he would have pursued other options, including going to trial, had he known about his plea's immigration consequences. Therefore, he satisfied this baseline requirement for raising an issue of prejudice.

After establishing that a defendant has satisfied this baseline requirement, a judge should proceed in two steps. The first step is to determine whether the defendant has shown "that a decision to reject the plea bargain would have been rational under the circumstances." Clarke, 460 Mass. at 47, 949 N.E.2d 892, quoting Padilla, 559 U.S. at 372, 130 S.Ct. 1473. To prove rationality, the defendant bears the "substantial burden" of showing at least one of the following: (1) an available, substantial ground of defense that the defendant would have pursued if given proper advice about the plea's dire immigration consequences; (2) a reasonable probability that the defendant could have negotiated a plea bargain that did not include those dire immigration consequences; or (3) special circumstances supporting the conclusion that the defendant "placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, supra at 47-48, 949 N.E.2d 892.

If the defendant fails to establish any of these three Clarke factors, then the ineffective assistance of counsel claim must fail for lack of prejudice. See Commonwealth v. Lastowski, 478 Mass. 572, 577-579, 88 N.E.3d 263 (2018) ; Clarke, 460 Mass. at 47-49, 949 N.E.2d 892. If the defendant does establish at least one of the Clarke factors, then the judge must move to the second step and evaluate whether, under the totality of the circumstances, there is a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice. See Lavrinenko, 473 Mass. at 55, 59, 38 N.E.3d 278.

The judge here found that the defendant did not establish any of the Clarke factors. Although the defendant argued before the Appeals Court that the judge ruled improperly with regard to all three factors, before this court he focuses only on special circumstances. Therefore, we address only that issue. See Mass. R. A. P. 27.1 (f), as amended, 441 Mass. 1601 (2004) ("If a new brief is filed [after further appellate review is granted], it will be considered in lieu of the Appeals Court brief"). See also Commonwealth v. Maguire, 476 Mass. 156, 156-157, 65 N.E.3d 1160 (2017).

The judge found a lack of special circumstances without making any factual findings, stating only that "the court [did] not find the presence of any special circumstances" "despite the impassioned advocacy ... regarding [the defendant's] history of abuse at the hands of his father and lack of family in his home [c]ountry." As the Appeals Court observed, it is impossible to discern from this statement whether the judge disbelieved the defendant's affidavits as they pertained to the special circumstances analysis or whether he decided that the defendant did not aver any facts that, even if believed, would qualify as special circumstances. Lys, 91 Mass.App.Ct. at 725, 80 N.E.3d 347. Therefore, as with the deficiency finding, we remand "with instructions to provide findings relating to the issue of [special circumstances] and, if necessary, to hold an additional evidentiary hearing ... for that purpose." Sylvain I, 466 Mass. at 439, 995 N.E.2d 760.

We also provide guidance for the judge on remand with regard to the special circumstances analysis. In evaluating whether the defendant has established the existence of special circumstances, a judge must consider collectively all of the factors supporting the conclusion that the defendant "placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, 460 Mass. at 47-48, 949 N.E.2d 892. In DeJesus, 468 Mass. at 183-184, 9 N.E.3d 789, for example, the court found that special circumstances existed based on the confluence of three factors: the defendant "had been in the country since he was eleven years old, his family was in Boston, and he had maintained steady employment in the Boston area." See Commonwealth v. Cano, 87 Mass.App.Ct. 238, 247-248, 28 N.E.3d 491 (2015) (finding that defendant raised substantial issue concerning "special circumstances" because he "ha[d] not lived in Colombia since he moved to the United States in 1979, at age twelve"; was "largely dependent on his family members in the United States for many of the basic requirements of daily life"; and "depend[ed] to a significant extent on governmental benefits to meet his financial needs"); Martinez, 86 Mass.App.Ct. at 552-553, 18 N.E.3d 694 (remanding for consideration of prejudice where defendant was "a United States resident since early childhood, employed with a family, including a common-law wife and three children who were all United States citizens").

Similarly, in Lee v. United States, --- U.S. ----, 137 S.Ct. 1958, 1968-1969, 198 L.Ed.2d 476 (2017), the United States Supreme Court considered a confluence of factors in reversing the denial of the defendant's motion to vacate his guilty plea. Although the Supreme Court did not use our parlance of "special circumstances," it noted that the defendant had not visited his birth country since moving to the United States at the age of thirteen, "had lived in the United States for nearly three decades, had established two businesses in Tennessee, and was the only family member in the United States who could care for his elderly parents." Id. at 1962, 1968. Cf. United States v. Gonzales, 884 F.3d 457, 461-463 (2d Cir. 2018) (per curiam) (vacating defendant's guilty plea due to court's "failure to inform [defendant] of the immigration consequences of his plea" where defendant came to United States as child, lived in New York City near his children and their mothers for most of his life, had family in New York City area, and had siblings serving in United States military); United States v. Ruiz, 548 Fed.Appx. 410, 411-412 (9th Cir. 2013) (finding that "proper legal advice of which [defendant] was deprived could have at least plausibly motivated a reasonable person in her position not to have pled guilty" where defendant "ha[d] longstanding ties to the United States, having arrived here at the age of seven, having lived here for [thirty] years and having two U.S.-born children").

Here, the relevant factors as alleged during the motion hearing and in the defendant's affidavits are that the defendant moved to the United States from Haiti at the age of seven and has not since returned; that the defendant has friends, family, and a girlfriend in the United States; that the defendant has been unable to locate any family members in Haiti since the earthquake that devastated Haiti in January 2010; that the defendant is not proficient in the language of Creole or French; and that the defendant was diagnosed with a learning disability when he was young.

A further relevant circumstance not discussed at the motion hearing is that at the time of the defendant's plea, Haitian nationals in the United States were granted temporary protected status (TPS) because of the earthquake. See 75 Fed. Reg. 3476 (2010) (designating Haiti for TPS); 76 Fed. Reg. 29,000 (2011) (extending Haiti's TPS through January 22, 2013). The court may take judicial notice of this designation by the Secretary of Homeland Security because notice of the designation was published in the Federal Register. See Ralston v. Commissioner of Agric., 334 Mass. 51, 53, 133 N.E.2d 589 (1956) ("The contents of the Federal Register are the subject of judicial notice by this court"). See also 44 U.S.C. § 1507 (2012) ("The contents of the Federal Register shall be judicially noticed ..."). Cf. Mass. G. Evid. § 202(b) (2018) ("A court may take judicial notice of the contents of Federal regulations ... not brought to its attention ...").

If the judge were to find that all of these alleged factors existed at the time of the defendant's plea, then it would be an abuse of discretion to find that these factors, considered collectively, failed to constitute special circumstances. A finding of special circumstances requires only a finding that the defendant "placed, or would have placed, particular emphasis on immigration consequences in deciding whether to plead guilty." Clarke, 460 Mass. at 47-48, 949 N.E.2d 892. It is hard to imagine any reasonable person who would not, in light of this confluence of factors, place "particular emphasis on immigration consequences in deciding whether to plead guilty." Id.

This is not to say that the judge must find prejudice if he or she finds that the above-listed factors existed at the time of the defendant's plea. The existence of special circumstances does not automatically result in prejudice. Rather, "[t]he prejudice determination rests on the totality of the circumstances, in which special circumstances regarding immigration consequences should be given substantial weight." Lavrinenko, 473 Mass. at 59, 38 N.E.3d 278. See Lee, 137 S.Ct. at 1966, 1968.

We do not provide an exhaustive list of the particular factors that the judge should consider on remand if he or she reaches this totality of the circumstances analysis. We emphasize that the judge may consider any factor that bears on the ultimate question of prejudice: whether there is a reasonable probability that a reasonable person in the defendant's circumstances would have gone to trial if given constitutionally effective advice. In answering this question, the judge should remember that, for some defendants, "even a small chance of acquittal may be sufficient to show that it was reasonably probable that a person in the position of the defendant would have rejected the plea and insisted on going to trial." Lavrinenko, 473 Mass. at 63, 38 N.E.3d 278. This is because "[t]he decision whether to plead guilty ... involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant's perspective, similarly dire, even the smallest chance of success at trial may look attractive" (citation omitted). Lee, 137 S.Ct. at 1966.

We reaffirm the Lavrinenko case's nonexhaustive list of potential factors: the defendant's assessment of success at trial; the risks of going to trial rather than pleading guilty, including "the risk that a conviction [at trial] would result in a sentence at or close to the 'maximum allowable sentence' " or "the risk that a conviction at trial would result in a mandatory minimum sentence substantially more severe than the sentence offered through a guilty plea to a lesser charge"; whether conviction at trial would result in a house of correction sentence or a lengthy State prison sentence; and the defendant's deportability on acquittal.

Lavrinenko, 473 Mass. at 59 n.20, 38 N.E.3d 278, quoting Commonwealth v. Roberts, 472 Mass. 355, 365, 34 N.E.3d 716 (2015). We also observe that the Clarke factors discussed supra are relevant to the totality analysis. See Clarke, 460 Mass. at 47-48, 949 N.E.2d 892. But we emphasize that, "[u]ltimately, a defendant's decision to tender a guilty plea is a unique, individualized decision, and the relevant factors and their relative weight will differ from one case to the next." Lavrinenko, supra, quoting Roberts, supra at 365-366, 34 N.E.3d 716.

Conclusion. For the foregoing reasons, the order denying the defendant's motion for a new trial is vacated and the matter is remanded to the District Court for proceedings consistent with this opinion.

So ordered.

      The defendant was deportable under 8 U.S.C. § 1227(a)(2)(B)(i) (2012) (making aliens convicted of most controlled substances laws deportable) and 8 U.S.C. § 1227(a)(2)(A)(iii) (2012) (making aliens convicted of "aggravated felony" deportable). See Commonwealth v. Clarke, 460 Mass. 30, 32 n.2, 46, 949 N.E.2d 892 (2011). His aggravated felony conviction also precluded him from applying to the United States Attorney General for relief. See 8 U.S.C. § 1229b(a)(3) (2012).

      Although the Commonwealth contests the judge's finding of deficiency before this court, it did not contest that finding before the Appeals Court. The defendant argues that we should, therefore, not consider the issue. We disagree. Although the Appeals Court accepted the judge's deficiency finding "for purposes of [its] analysis," the court critiqued the judge's reasoning. Commonwealth v. Lys, 91 Mass.App.Ct. 718, 721, 80 N.E.3d 347 (2017). Because the deficiency finding "was considered in the Appeals Court, we will address the matter" (citation omitted). Commonwealth v. Sepheus, 468 Mass. 160, 171, 9 N.E.3d 800 (2014).

      We acknowledge the amicus brief submitted by several district attorneys.

      At the nonevidentiary motion hearing, motion counsel provided unsworn testimony that she had asked plea counsel to testify or aver as to whether he had discussed the plea's immigration consequences with the defendant. According to motion counsel, plea counsel refused her request.

      There is no affidavit from the defendant's motion attorney in the record. The term "Attorney's Affidavit[ ]" in the judge's decision likely refers to the defendant's supplemental affidavit.

      The defendant here brings a claim for ineffective assistance under only the Sixth Amendment to the United States Constitution. Because we find that remand is necessary under either the Sixth Amendment or art. 12 of the Massachusetts Declaration of Rights, we once again "leave open the question of what differences, if any, exist between the two standards." Commonwealth v. Fuller, 394 Mass. 251, 256 n.3, 475 N.E.2d 381 (1985).

      The defendant contends that the judge recognized his discretion to credit or discredit the defendant's affidavits and nonetheless credited them. But the decision's plain language makes it equally plausible that the judge felt legally compelled to fully credit the defendant's affidavits absent testimony from plea counsel.

      In Lee v. United States, --- U.S. ----, 137 S.Ct. 1958, 1966-1967, 198 L.Ed.2d 476 (2017), the United States Supreme Court found prejudice based on the "dire" immigration consequences of a guilty plea, where the defendant said, inter alia, that "he ... would have rejected any plea leading to deportation -- even if it shaved off prison time -- in favor of throwing a 'Hail Mary' at trial." In football, a "Hail Mary" is a long pass into the end zone with little time remaining. The chance of success is meager, but not zero. Doug Flutie did, after all, complete such a pass to secure a victory for Boston College in 1984.

      We recognize that the parties have briefed the applicability of various special circumstances and totality factors to the defendant in this case. We also recognize that the Commonwealth has moved to (1) supplement the record with information relevant to the defendant's deportability on acquittal and (2) strike a portion of the defendant's brief relevant to the defendant's lack of ties with Haiti. Although we do not reach these issues, they may be addressed on remand.


author: RUBIN, J.

text:
    COMMONWEALTH v. Stanley JEANNIS.
    No. 17-P-10.
    Appeals Court of Massachusetts, Suffolk..
    Argued January 11, 2018 Decided August 31, 2018
    Jane Larmon White, Boston, for the defendant.
    Ian MacLean, Assistant District Attorney, for the Commonwealth.
    Present: Rubin, Sacks, & Wendlandt, JJ.
   RUBIN, J.

The defendant was convicted of possession of a class A substance (heroin) and possession of a class B substance (cocaine), and he now appeals. The issue he raises involves application of the rule announced in Rodriques v. Furtado, 410 Mass. 878, 888, 575 N.E.2d 1124 (1991) ( Furtado ), allowing the manual search of a body cavity only with a warrant "issued by the authority of a judge, on a strong showing of particularized need supported by a high degree of probable cause," to a circumstance where police seek to remove an item partially protruding from an arrestee's rectum.

Background. After a hearing on the defendant's motion to suppress, the motion judge found the following facts. At the police station after his arrest, the defendant complained that he did not feel well because he had swallowed "fifties." Lieutenant David Callahan of the Revere police department, to whom he complained, understood "fifties" to refer to fifty dollar bags of heroin or cocaine. Callahan did not believe him because the defendant was not exhibiting signs of a drug overdose, and Callahan thought that the defendant was feigning illness. Nevertheless, Callahan followed protocol and summoned medical assistance.

The defendant sat on a bench during the booking process. Callahan saw that he sat oddly, leaning to one side. The defendant told Callahan that he might throw up, so Callahan brought him into a nearby cell that had a sink and toilet.

Callahan noticed that the defendant had an unusual gait as he walked to the cell, and that he was not walking "normally." The defendant moved slowly, was rigid and tense, and was "clenching his buttocks area." Callahan believed that he might have something secreted in that area, which could be a potential safety risk.

Callahan asked Officer Joseph Singer to accompany the defendant and Callahan to the eight foot by eight foot cell. Callahan ordered the defendant to remove his clothing. Reluctantly, the defendant removed his shirt, pants, and socks. He became argumentative when asked to remove his underpants.

Callahan noticed that the defendant, while wearing only underwear, continued to clench his buttocks and attempted to shield his backside from Callahan's and Singer's view. Singer concluded that the defendant was taking a fighting stance. Callahan became concerned that the defendant might be hiding a weapon. Callahan had Singer handcuff one arm of the defendant while holding the defendant's other arm.

The defendant pulled down his waistband and said words to the effect of, "[S]ee I don't have anything." Officer Singer, however, saw a plastic bag protruding from the defendant's buttocks. Singer ordered the defendant to remove the bag or have Singer remove it. The defendant agreed to remove it himself and then pulled down his underwear. Singer put his hand on top of the defendant's hand as the defendant "removed the bag." The bag contained fifteen individually wrapped bags of cocaine and thirteen individually wrapped bags of heroin.

Analysis. Our cases have distinguished among three related types of searches relevant to this appeal: strip searches, visual body cavity searches, and manual body cavity searches. "A strip search generally refers to an inspection of a naked individual, without any scrutiny of his body cavities. A visual body cavity search extends to a visual inspection of the anal and genital areas." Commonwealth v. Thomas, 429 Mass. 403, 407 n.4, 708 N.E.2d 669 (1999). A manual body cavity search "involves some degree of touching and probing of body cavities." Id. at 408, 708 N.E.2d 669. We have said that "[i]t is difficult to imagine a more intrusive, humiliating, and demeaning search than" a manual body cavity search. Furtado, 410 Mass. at 888, 575 N.E.2d 1124. Indeed, "strip or visual body cavity searches, by their very nature, are humiliating, demeaning, and terrifying experiences that, without question, constitute a substantial intrusion on one's personal privacy rights protected under the Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights]," Commonwealth v. Vick, 90 Mass. App. Ct. 622, 628, 62 N.E.3d 105 (2016), quoting from Commonwealth v. Morales, 462 Mass. 334, 339-340, 968 N.E.2d 403 (2012), and "[m]anual body cavity searches constitute an even greater intrusion on a person's privacy rights," ibid. Consequently, the Supreme Judicial Court has held that in Massachusetts, even when the police undertake a search incident to a lawful arrest -- in which circumstance case law holds that a strip search may be conducted without a warrant only when the police have "probable cause to believe that the defendant had concealed [drugs] on his person or his clothing that would not otherwise be discovered by the usual search incident to arrest," Commonwealth v. Prophete, 443 Mass. 548, 554, 823 N.E.2d 343 (2005) -- "a judicially authorized warrant based on 'a strong showing of particularized need supported by a high degree of probable cause' is required for a manual body cavity search." Vick, 90 Mass. App. Ct. at 629, 62 N.E.3d 105, quoting from Furtado, 410 Mass. at 888, 575 N.E.2d 1124. Accord Furtado, 410 Mass. at 888, 575 N.E.2d 1124 (warrant to search plaintiff's vagina, issued by assistant clerk-magistrate and presumptively based upon probable cause, not adequate).

The defendant argues that this was not merely a search, but a seizure, of the plastic bag from a body cavity, his rectum, and, applying the principles concerning manual body cavity searches articulated in Furtado, that seizures from a body cavity may be made only on the authority of a warrant issued by a judge and supported by a high degree of probable cause. We agree.

The Commonwealth's primary argument in response to the defendant's contention is factual. It argues that all that occurred here was a permissible strip search, because, as a matter of fact, the plastic bag was seized not from the defendant's rectum, but from what it refers to as his "intergluteal cleft." Our cases indicate that items hidden between the buttocks are not within a "body cavity," and that if a strip search reveals items there that easily fall out, it has not necessarily crossed the line to a manual body cavity search. See Vick, 90 Mass. App. Ct. at 629, 633, 62 N.E.3d 105 (observation of protruding bag of drugs that "was in the 'cleft' of the defendant's buttocks, and not lodged in his rectum," but which fell out with "mere[ ] 'flick[ing]' or 'brush[ing],' " involved nothing more intrusive than strip search).

The motion judge, however, did not find that the plastic bag was merely held between the defendant's buttocks, nor could he have on the evidence before him. The Commonwealth sought to defend this as a strip search, and in order to make its case, it had the burden to provide evidence from which the judge could find that no portion of the bag was within the defendant's rectum. See Commonwealth v. Taylor, 10 Mass. App. Ct. 452, 454, 409 N.E.2d 212 (1980) ("The burden of justifying the intrusion of a search is on the Commonwealth"). The Commonwealth's witnesses, however, provided no testimony indicating that the bag was simply lodged between the defendant's buttocks, entirely outside his rectum. Contrast Vick, 90 Mass. App. Ct. at 629 n.12, 62 N.E.3d 105 (officer agreed that no "portion of th[e] item [was] within [the defendant's] rectum or within any sort of orifice of his body" and that he "[did not] have to use force to get the bag out of any sort of body cavity"). Nor is there any testimony, as there was in Vick, indicating that the plastic bag was outside the defendant's rectum such that it easily fell or popped out when the defendant and the officer touched it. Rather, Officer Singer testified only that the defendant "spread one cheek and we reached in and retrieved [the bag] from inside his butt," rather than from between his buttocks, and that "he helped me with the cuffs on to take the drugs out of his butt." The Commonwealth thus did not present sufficient evidence to support a finding of the fact it asserts: that the protruding plastic bag was not partially within the defendant's rectum. That the judge did not find that the plastic bag was merely held between the defendant's buttocks is confirmed by his conclusion, in the "analysis" section of his memorandum of decision, that the reason this was not a cavity search is that the defendant himself removed the bag (a point we discuss later). The judge wrote: "The strip search did not cross over to a cavity search. Singer ordered [the defendant] to remove the bag that he could see protruding from his buttocks or in the alternative have Singer remove it. [The defendant] agreed to, and did, remove it himself." This analysis of why there was no "cross over" would have been unnecessary had the judge concluded that the bag was merely lodged between the defendant's buttocks.

The Commonwealth argues next that this could not have been a manual body cavity search because the police did not "manipulate[e] the defendant's body" or "touch[ ] or prob[e] ... [the defendant's] body cavities." Vick, 90 Mass. App. Ct. at 625, 62 N.E.3d 105. But this misses the defendant's point that, regardless of the scope of any search, there was a seizure from his body cavity. The Commonwealth does not address this at all.

The Commonwealth also argues that, as the motion judge concluded, there cannot have been a body cavity search because the defendant removed the bag himself. Even assuming the removal of the bag by the defendant and the police officer together could be characterized as removal by the defendant himself, and applying the Commonwealth's search argument to what the defendant actually contends is a seizure, the question before us is not the manner of the seizure, but the propriety of the seizure itself. The officer ordered the defendant to remove the bag, threatening that otherwise he would do so himself. The Commonwealth provides no reason why it makes any difference whose hand removed the bag, nor any citation to relevant authority. When a defendant gives something to a police officer after being ordered to do so, the police are nonetheless responsible for the seizure. See, e.g., Commonwealth v. Torres, 424 Mass. 153, 156, 674 N.E.2d 638 (1997) (trooper seized defendant's wallet when trooper "had [the defendant] turn around and motioned for [the defendant's] wallet by pointing to his rear pants pocket and opening and closing his hand," and defendant "produced his wallet for the trooper").

Turning finally, then, to the propriety of the police action here, we agree with the defendant's characterization of it as a seizure from within a body cavity, in this case, the defendant's rectum. The removal of an item from within a body cavity from which it is protruding is no less serious an invasion of one's body than a search of that cavity for evidence in the first place. The Commonwealth does not argue otherwise. The principles articulated in Furtado to address manual body cavity searches are equally applicable in the circumstance of a seizure from within a body cavity. And indeed, many other jurisdictions have concluded that an item partially protruding from an arrestee's rectum cannot be seized without a warrant in the absence of exigent circumstances, applying the same test to such seizures as they do to manual body cavity searches. See, e.g., United States v. Fowlkes, 804 F.3d 954, 961-962 (9th Cir. 2015) ;

State v. Barnes, 215 Ariz. 279, 281-282, 159 P.3d 589 (Ct. App. 2007) ; People v. Hall, 10 N.Y.3d 303, 311, 856 N.Y.S.2d 540, 886 N.E.2d 162 (2008) ; Hughes v. Commonwealth, 31 Va. App. 447, 459, 524 S.E.2d 155 (2000). See also Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (police "intrusions into an individual's body" in search of evidence presumptively require warrant in absence of exigent circumstances). In this Commonwealth, manual body cavity searches require a judicially authorized warrant based on a particularized need supported by heightened probable cause, and we conclude that the same requirements apply with respect to a seizure of an item from within a body cavity.

The Commonwealth argues lastly that if a judicial warrant were required, there were exigent circumstances excusing its failure to obtain one, specifically a safety risk to the officers and the defendant from any hidden weapon. However, even assuming the officers could still have had an objectively reasonable belief that the completely naked defendant was hiding a weapon -- after seeing only a plastic bag that did not fall out easily when touched, protruding from between his partially spread buttocks -- the defendant was handcuffed in a jail cell and, were that not adequate, could have been restrained in a reasonable manner to ensure safety pending the application to a judge for a warrant.

The defendant also argues that the seizure could be undertaken only by trained medical personnel, at one point urging that only a medical doctor may properly execute a warrant for a seizure from a body cavity. Searches and seizures involving body cavities, like all searches and seizures by government officials, must be performed in a reasonable manner. Given that risk of medical harm is one of the reasons behind the heightened requirements prefatory to a search of or seizure from a body cavity, "the potential harm to a detainee's health and dignity should be taken into account in assessing the reasonableness of the intrusion." Morales, 462 Mass. at 343, 968 N.E.2d 403. Cf. Schmerber, 384 U.S. at 771-772, 86 S.Ct. 1826 (in case concerning blood draw, reserving "the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment"). Given our conclusion that the bag should not have been removed without a judicial warrant, however, we need not resolve in this case the question of what method would be reasonable for lawfully extracting something from an individual's body cavity.

While there was heightened probable cause to believe that the bag protruding from the defendant's rectum contained contraband, it was seized without a judicial warrant in circumstances that do not justify failure to obtain one. Consequently, the motion to suppress should have been allowed. The judgments are reversed, the verdicts are set aside, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

      Of course, even with probable cause, strip searches, like all searches, must be undertaken in a reasonable manner. Morales, 462 Mass. at 342, 968 N.E.2d 403.

      The parties disagree whether we may consider a certain medical record of the defendant from Cataldo Ambulance Service, Inc., which transported the defendant to the hospital following the search. It states: "PER REVERE [POLICE DEPARTMENT] [PATIENT] HAS BEEN ARRESTED, HAD BEEN FOUND TO HAVE BAGS OF TIGHTLY WRAPPED CRACK COCAINE AND HEROIN (SEPARATELY) HIDDEN IN HIS RECTUM." (There is perhaps a second relevant record, because in closing argument on the motion to suppress defense counsel purported to quote a record, stating, "[I]t says, 'the police state that they took multiple packs of cocaine from his rectum.' " We have before us, however, no such record.)
      The judge made no reference to medical records in his memorandum of decision. At the close of the hearing, defense counsel said, "[T]here [are] medical records.... [T]hey are not physically in this room. I asked for them to be brought down, but I am fine with arguing while we are waiting." There was no objection. The judge said, "[G]o ahead," and defense counsel began closing argument, purporting to quote from the medical records as described above. The records were not referred to again and the transcript does not indicate that they were admitted. We do have a "list of exhibits" from the hearing on the motion to suppress, and it lists "medical records" as exhibit 15.
      The Commonwealth does not argue that the records were not before the judge. It says only that they are ambiguous, that they are hearsay, and that the "judge did not accept the record as fact." The defendant argues that the medical records are not ambiguous, that the police department statement within the medical records is within the hearsay exception for statements made for purposes of medical diagnosis and treatment, and that we are in as good a position as the motion judge to assess the document.
      Because we need not and do not rely on the medical records in reaching our conclusion about the judge's findings, we also need not and do not resolve the questions about the statement's admissibility, its meaning, or its weight.

      The Commonwealth argues that the motion judge's conclusion that "[t]he strip search did not cross over to a cavity search" means that the bag was not in the defendant's rectum. However, as the context of the language quoted in the text reveals, contrary to the Commonwealth's argument, it is not a finding of fact that the bag was simply between the defendant's buttocks, but a conclusion of law that, because the defendant removed the bag himself, Officer Singer performed no cavity search.

      Although the motion judge also did not address it, the defendant raised this argument below.