Chimeno v. Pion ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 94-2157





                                  ALBERT J. CHIMENO,



                                Plaintiff, Appellant,



                                          v.



                               DANIEL A. PION, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND



                 [Hon. Francis J. Boyle, Senior U.S. District Judge]
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                                        Before



                               Selya, Boudin and Lynch,

                                   Circuit Judges.
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            Albert J. Chimeno on brief pro se.
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            Marc DeSisto, Kathleen M. Powers and DeSisto Law Offices on  brief
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        for appellees.





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                                   October 24, 1997

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                 Per Curiam.  Upon review  of the parties' briefs and the
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            record  on appeal,  we conclude  that there  was no  abuse of



            discretion in the two evidentiary rulings of which plaintiff-



            appellant complains.



                 In  the  district court  action,  plaintiff accused  two



            Woonsocket, Rhode Island police  officers of using  excessive



            force  and  of  assault  and  battery  during the  course  of



            plaintiff's arrest following an altercation with the officers



            during a stop for traffic violations.  The jury found for the



            defendants.



                 In  this appeal,  plaintiff  challenges two  evidentiary



            rulings  of the trial  court.  Determinations  concerning the



            admissibility as well  as the exclusion of  evidence are left



            to the  sound discretion of  the trial court, and  this court



            will   reverse  only  if   the  district  court   abused  its



            discretion.  See Knowlton v.  Deseret Medical Inc., 930  F.2d
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            116, 124 (1st Cir. 1991).



                 First, plaintiff challenges  the trial court's  decision



            not to admit into the  record a state court decision vacating



            his  convictions for the traffic violations that prompted the



            initial stop.  The district court was within its  discretion,



            because the issue of whether plaintiff actually committed the



            traffic violations for which he was stopped was  not relevant



            to whether the  police officers used  excessive force in  the



            course  of  his  arrest.   Plaintiff  did  not  challenge the







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            legality  of  the  arrest  per  se,  and  in  any  event  the



            subsequent decision to vacate his convictions for the traffic



            violations is only marginally relevant, if at all, to whether



            the police officers  had a sufficient basis  for stopping him



            at the time they did.



                 Second, plaintiff challenges the  trial court's decision



            to admit his "mug shot"  on grounds that it was substantially



            more prejudicial than probative.  See Fed. R. Evid. 403.  The
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            trial court was within its discretion, as the lack of visible



            injuries on plaintiff's  neck in the photograph  was relevant



            in  that  it  tended  to undermine  his  testimony  that  the



            defendants had  choked him during the arrest.   Moreover, the



            risk  of prejudice  from  the photograph  was  minimal.   The



            photographs were  of the  very arrest that  gave rise  to the



            lawsuit, and  thus -- unlike  mug shots for prior  arrests --



            had no tendency  to imply past criminal conduct.   Cf. United
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            States  v. Fosher,  568 F.2d  207 (1st Cir.  1978) (requiring
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            safeguards for the introduction  of prior mug shots  to avoid



            eviscerating  the rule generally forbidding evidence of prior



            criminal acts).



                 The  judgment  of the  district  court in  favor  of the
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            defendants-appellees is summarily affirmed.  Loc. R. 27.1.
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