Opinion
No. 11–P–1349.
2013-09-27
WALTHAM POLICE DEPARTMENT v. Bruce D. ARAFE.
By the Court (RAPOZA, C.J., WOLOHOJIAN & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A District Court clerk-magistrate found the defendant responsible for a civil infraction of operating his vehicle in violation of G.L. c. 90, § 16,
and fined him fifty dollars. The defendant appealed to a District Court judge, who conducted an evidentiary hearing and again found him responsible. The defendant then appealed to the appellate division of the district court, which affirmed the finding. Before this court, the defendant argues that (1) the citation should have been dismissed because notice of the infraction was not sufficiently timely to satisfy the requirements of G.L. c. 90, § 2, (2), the citation should have been dismissed because the officer who stopped him did not appear at the District Court hearing, and (3) the fifty dollar fine violates the Eighth Amendment to the United States Constitution. We affirm.
The infraction was based on the defendant making “harsh or objectionable noise” while operating his vehicle in a construction zone.
The defendant's first and second arguments require us to evaluate the District Court judge's findings of fact. Specifically, his first argument depends on the factual question of when the citation was mailed to him. The defendant's contention is that notice was not mailed until six days after the infraction; the plaintiff contends that the citation was put in the mail the same day as the infraction. Similarly, his second argument depends on the factual question of whether the citing officer was Officer Gormley (as the defendant contends) or Officer Fogg (as the plaintiff does). On neither factual question has the defendant provided the required record for our review. Rule 8(b)(1), of the Massachusetts Rules of Appellate Procedure, as amended, 430 Mass. 1603 (1999), provides that “[i]f the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion.” See Connolly v.. Connolly, 400 Mass. 1002, 1003 (1987) (appellant challenging factual findings bears burden of providing record of all evidence before lower court). The defendant has failed, among other things, to provide a transcript of the testimony that was heard and considered by the trial judge.
The defendant's third argument also fails. Assuming (without deciding) that the Eighth Amendment's prohibition of “excessive fines” applies in the context of a civil motor vehicle infraction, we see nothing excessive or grossly disproportional in the Legislature's choice of a fifty dollar fine.
See MacLean v.State Bd. of Retirement, 432 Mass. 339, 346 (2000), quoting from United States v. Bajakajian, 524 U.S. 321, 334 (1998).
See G.L. c. 90, § 16, inserted by St.1971, c. 412 (“Whoever violates the provisions of this paragraph shall be punished by a fine of not more than fifty dollars”).
Decision and order of the appellate division affirmed.