                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 98-2066



JOHN DERRICK SMITH,

                                              Plaintiff - Appellant,

          versus


CORPORAL BYRON E. TURNER,

                                              Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CA-
97-1960-DKC)


Submitted:   October 30, 1998           Decided:    November 10, 1998


Before HAMILTON, LUTTIG, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John Derrick Smith, Appellant Pro Se.     Rhonda Lee Weaver, Upper
Marlboro, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     John Smith appeals from a verdict rendered against him in the

District of Maryland. Smith sought damages from Officer Turner

under 42 U.S.C.A. § 1983 (West Supp. 1998) and Maryland common law

for excessive force used in arresting Smith. We have reviewed the

record and find no reversible error. The trial court’s decision to

exclude Officer Turner’s prior act was not an abuse of discretion.

Smith accepted the racial composition of the jury at his trial, and

so this objection is waived. The district court’s instruction on

the definition of malice under state law comports with Maryland law

on malice and qualified immunity. Smith’s challenge to the suffi-

ciency of the evidence is denied as it does not appear that there

was a complete absence of probative facts supporting the jury’s

verdict. Finally, the alleged deficiencies of Smith’s attorney’s

trial performance are not cognizable in this civil appeal.

     Accordingly, we affirm the judgment of the district court.

Smith v. Turner, No. CA-97-1960-DKC (D. Md. July 1, 1998). We dis-

pense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.




                                                          AFFIRMED




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