Opinion
No. 15–P–1557.
10-24-2016
MANSFIELD POLICE DEPARTMENT v. Mark D. SILVESTRI.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mark Silvestri appeals from a decision and order of the Appellate Division of the District Court, affirming a decision of a District Court judge, who found Silvestri responsible for a marked lanes violation, G.L. c. 89, § 4A. We affirm.
Accepting for the purposes of this appeal Silvestri's representations that his wife was not permitted to testify at his clerk-magistrate hearing on September 29, 2014, any error with respect to that hearing is of no consequence. Silvestri appealed the magistrate's decision to a justice of the District Court, who heard the case de novo. See G.L. c. 90C, § 3(A)(4), as appearing in St.1991, c. 138, § 161 (permitting appeals of clerk-magistrates' decisions to “a justice, who shall hear the case de novo”). Because the judge's hearing on December 9, 2014, was a brand new hearing, any error in the prior hearing had no effect.
In support of this claim, Silvestri has appended to his brief the affidavit of Samantha Silvestri dated December 21, 2015. This affidavit is not part of the trial court record and is not properly before us. See Mass.R.A.P. 8, as amended, 430 Mass. 1601 (1999) (content of record on appeal).
After the December 9 hearing, at which a police officer and Silvestri testified, the judge took the matter under advisement and issued a written decision later that day. Silvestri points out that G.L. c. 90C, § 3(A)(4), as appearing in St.1991, c. 138, § 161, specifically provides, “At the conclusion of the hearing, the magistrate or justice shall announce a finding of responsible or not responsible.” However, we do not read this language as requiring the judge to immediately decide the case and announce his or her decision from the bench. A judge may take a case under advisement for a reasonable amount of time to deliberate upon the matter, perform any necessary legal research, and issue a decision. In addition, some delay in issuing a decision may be necessary to maintain an orderly courtroom.
In response to Silvestri's complaint of a “pre hearing ‘pow wow’ between the Clerk's Office and the Judge of the day,” we further observe that a judge is permitted to, and indeed must, confer with the clerk of the court concerning court business.
Moreover, Silvestri has not shown any prejudice from the judge's taking the case under advisement; therefore, he is not entitled to relief. See, e.g., Commonwealth v. Pariseau, 466 Mass. 805, 812–813 (2014) (judge's failure to issue decision within thirty days of bench trial in sexually dangerous person proceeding, in violation of Supreme Judicial Court's rule, did not entitle defendant to new trial “where the delay in issuance of the decision did not affect his procedural rights, the fairness of his trial, or the trial judge's decision or findings of fact”).
Finally, we discern no error of law in the judge's determination that the police officer witness presented sufficient credible testimony to find Silvestri responsible for the marked lanes violation by a preponderance of the evidence. See G.L. c. 90C, § 3(A)(4) (“The magistrate or justice shall enter a finding of responsible if it was shown by a preponderance of the credible evidence that the violator committed the infraction alleged”); Police Dept. of Salem v. Sullivan, 460 Mass. 637, 639 (2011). Silvestri argues that his testimony was credible and that the officer's testimony was not, and that the judge committed error of law and violated his equal protection rights by crediting the officer's testimony over his. We disagree.
“[T]he credibility of a party or other witness who appeared at trial is quintessentially the domain of the trial judge, in which the judge's assessment is close to immune from reversal on appeal except on the most compelling of showings.” Johnston v. Johnston, 38 Mass.App.Ct. 531, 536 (1995). Although we had no obligation to do so, we have listened to the recording of the hearing before the judge. Nothing that occurred at the hearing is compelling enough to permit this court to overrule the judge's credibility determinations or to conclude that the judge committed error in finding Silvestri responsible.
See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999), 8(b)(3)(ii), as amended, 428 Mass. 1601 (1998) (appellant's duty to furnish transcripts of recorded proceedings). “An appellate court is free to disregard argument based on transcript not furnished to the court.” Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 639 n .2 (1998).
Silvestri alleges in his brief that throughout his interactions with the District Court staff in this matter he was “lied to,” “mistreated,” and subject to “impoliteness and abrasiveness.” Although the record on appeal does not include any competent evidence to support these allegations (nor any evidence showing how Silvestri conducted himself with the District Court staff), we do not approve of or condone such conduct. However, we discern no error, due process violations, or any trace of impoliteness in the judge's conduct of the December 9, 2014, hearing.