N. Attleboro Police Dep't v. Silvestri

By the Court (Vuono, Milkey & Henry, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

After a bench trial, a District Court judge found the defendant responsible for a civil traffic violation and issued a judgment requiring him to pay a fine of one hundred and five dollars. After the defendant appealed, the Appellate Division of the District Court summarily affirmed. Finding no merit in the defendant's further appeal, we affirm the decision and order of the Appellate Division.

Although the defendant has attempted to couch his argument in constitutional terms, the essence of his claim (viewed in its most favorable light) is that the judge's finding that he committed a traffic violation is clearly erroneous. See White v. Hartigan, 464 Mass. 400, 414 (2013) (appellate court must accept a trial judge's findings absent clear error). The defendant has failed to supply a transcript of the trial testimony, and his appeal fails for that reason alone. See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999), and Mass.R.A.P. 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998) (appellant's duty to furnish transcripts of recorded proceedings). See also Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 n.2 (1998) ("An appellate court is free to disregard argument based on transcript not furnished to the court"). Nevertheless, we have listened to the audio recording of the trial that he provided and proceed in our discretion to address the merits.

The factual dispute is a narrow one. It is undisputed that on July 12, 2015, the defendant, who was driving southbound on Route 1 in North Attleboro, made a left-hand turn onto an access road on which his employer was located. At the intersection, the southbound portion of Route 1 has three lanes, two through lanes and the dedicated left-hand turn lane that the defendant used. As the photographs that the defendant himself provided show, the left-hand turn lane has its own traffic signal that is prominently marked by a sign that says "Left Turn Signal." The factual dispute is over whether that light displayed a red arrow at the time the defendant made his turn. The defendant claimed (in testimony that the judge, as fact finder, was not required to credit) that the left-turn signal did not display a red arrow, or any other light. The police eyewitness -- who was at the intersection in the northbound lane -- admitted that he was not in a position to see what the left-hand turn signal facing the defendant displayed. However, he testified that -- based on his intimate knowledge of how that particular intersection is signaled -- the left-hand turn signal would have displayed a red arrow while the northbound through lanes showed green lights (so as to prevent cars from turning across the oncoming traffic). The judge credited that testimony.

The crux of the defendant's appeal is that photographs he submitted from Google Maps provide definitive proof that contradicted the police officer's testimony. Specifically, he claims that the photographs show the left-hand turn signal unilluminated while the southbound through lane lights were green. Passing over a host of evidentiary issues related to the photographs, we note that they simply do not provide the definitive proof that the defendant claims. For example, from the reproduction of the photographs before us, one cannot tell with any confidence whether the red arrow light on the left-hand turn signal was illuminated or not (on whatever date and time the photographs happened to have been taken).

In sum, measured against a preponderance of the evidence standard, there was ample evidence to support the trial judge's finding that the defendant committed a traffic violation. Accordingly, there is no merit to his argument that the judge's finding is clearly erroneous or to his other arguments based on this contention. We therefore affirm the decision and order of the Appellate Division.

So ordered.

By the Court (Vuono, Milkey & Henry, JJ.),

/s/

Clerk Entered: February 1, 2017.