                           NONPRECEDENTIAL DISPOSITION
                            To be cited only in accordance with
                                     Fed. R. App. P. 32.1



              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                Submitted January 23, 2013*
                                 Decided January 23, 2013

                                          Before

                           FRANK H. EASTERBROOK, Chief Judge

                           ILANA DIAMOND ROVNER, Circuit Judge

                           JOHN DANIEL TINDER, Circuit Judge

No. 12-1934

ANTHONY C. MARTIN,                                   Appeal from the United States District
    Plaintiff-Appellant,                             Court for the Northern District of
                                                     Indiana, Fort Wayne Division.
       v.
                                                     No. 1:09-CV-48-TLS
GEORGE NICKLOW, et al.,
    Defendants-Appellees.                            Theresa L. Springmann,
                                                     Judge.

                                         ORDER

        Anthony Martin alleged that Fort Wayne, Indiana, police officers George Nicklow,
Ben Springer, and John Drummer violated the Fourth Amendment and Indiana tort law by
using excessive force during a traffic stop. The federal claim was tried to a jury, but the
district court thought Martin had abandoned his state-law theories before trial and would
not allow them to be presented. The jury found for the officers, and Martin appeals.


      *
        After examining the briefs and the record, we have concluded that oral argument is
unnecessary. The appeal is thus submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2)(C).
No. 12-1934                                                                              Page 2

        Martin has a history of unsuccessful lawsuits against Fort Wayne officers. In this
litigation he testified that on his way to the mall the defendants pulled him over, ransacked
the vehicle, and pressed his head to the ground without provocation after pulling him from
the car and pinning him to the ground. His former girlfriend, Melinda Robinson, testified
that when she arrived on the scene the police were on top of Martin. The district court
denied Martin’s request to introduce photographs purportedly showing the damage done
to his car by the defendants because Martin had not disclosed those photos before trial.

       No police report documenting the incident was produced during discovery. That is
because, the defendants maintained, Martin’s story about a traffic stop is false. Officer
Nicklow acknowledged having met Martin once, though not during a traffic stop. Nicklow
had served a court order for a DNA sample (in an unrelated rape investigation that was not
disclosed to the jury). According to the officer, Martin had not seemed to recognize him
and had asked for his name. Officer Drummer told a similar story. On one occasion he had
stopped Martin for driving erratically—on a date different from what Martin alleged—and
during that encounter Martin also had asked for his name. While cross-examining
Drummer, Martin wanted to ask about a suspension for falsifying a report; he asserted that
this past misconduct helped explain the absence of a police report documenting a traffic
stop on the day he alleged, but the district court barred this inquiry as unduly prejudicial.

       Martin, who was assisted by counsel at trial but is now pro se, raises a number of
arguments about the admission of evidence. We will not disturb evidentiary rulings unless
the district court abused its discretion. Griffin v. Bell, 694 F.3d 817, 826 (7th Cir. 2012);
Whitehead v. Bond, 680 F.3d 919, 930 (7th Cir. 2012).

       We start with Martin’s complaints about rulings affecting his presentation of
evidence. He objected to being impeached with a 1997 felony conviction for receiving stolen
property. That conviction, says Martin, should have been barred because he was a juvenile
when he committed the crime, see FED. R. EVID. 609(d), and because the conviction was
incurred more than 10 years before trial, see id. 609(b). Although juvenile adjudications are
inadmissible in civil cases, Martin was convicted as an adult. See United States v. Lipscomb,
702 F.2d 1049, 1053 n.10 (D.C. Cir. 1983) (collecting cases); 5 New Wigmore: Impeachment and
Rehabilitation § 3.4.4.7 (2012) (“[W]hen a juvenile is prosecuted as an adult, the protection of
Rule 609(d) does not apply.”). And Rule 609(b) allows for admission of a conviction older
than 10 years if the trial judge concludes that its probative value substantially outweighs its
prejudicial effect. The district court identified the correct standard and concluded that
Martin’s conviction for receiving stolen property was particularly probative of his veracity
but not significantly prejudicial; this ruling was not an abuse of discretion. See United States
No. 12-1934                                                                                Page 3

v. Redditt, 381 F.3d 597, 601 (7th Cir. 2004); Stutzman v. CRST, Inc., 997 F.2d 291, 298–99 (7th
Cir. 1993).1

       Martin also contends that the district court erred by excluding the photographs of
his damaged car. He had mentioned those photographs when the defendants deposed him,
but he did not produce them during discovery or even identify them as exhibits in the
pretrial order. In fact, Martin already had called two witnesses before disclosing the photos,
despite an express warning from the court that any exhibit not given the opposing party
before the final pretrial conference would be excluded except if used only to impeach or to
refresh a witness’s recollection. Martin did not have a satisfactory explanation for his tardy
disclosure, and it is no excuse that he was unrepresented until after discovery had closed
and the pretrial order had been prepared. See Downs v. Westphal, 78 F.3d 1252, 1257 (7th Cir.
1996) (“[B]eing a pro se litigant does not give a party unbridled license to disregard clearly
communicated court orders.”). Thus, the district court acted within its discretion in
excluding the photographs. See Kempner Mobile Elec., Inc. v. Sw. Bell Mobile Sys., 428 F.3d
706, 713 (7th Cir. 2005) (recognizing that trial judges have discretion to enforce boundaries
of pretrial order); Hotaling v. Chubb Sovereign Life Ins. Co., 241 F.3d 572, 578 (7th Cir. 2001)
(same).

       Finally, Martin argues that the district court should have stopped the defendants
from eliciting during his cross-examination that 10 months before the alleged use of force
he had been diagnosed with paranoid schizophrenia and post-traumatic stress disorder. He
also contends that the court should have prevented cross-examination of Robinson about
testimony she gave in another of his lawsuits alleging that police officers had beat him
during a traffic stop. The defendants correctly counter, however, that Martin’s lawyer
remained silent at trial and thus failed to preserve for appellate review any objection to
these inquiries. See Naeem v. McKesson Drug Co., 444 F.3d 593, 610 (7th Cir. 2006). We have
discretion to examine the admission of evidence even when no objection was lodged, FED.
R. EVID. 103(e), but we will not correct an unpreserved error except in exceptional


       1
        Martin further contends that the district court should not have allowed his
impeachment with evidence of convictions for false informing and possession of a firearm
by a felon. But Martin has not obtained a transcript of the hearing during which the court
overruled his objection, see FED. R. APP. P. 10(b), despite the district court ’s approval of
payment, see 28 U.S.C. § 753(f), and our own reminders of the need for transcripts. Because
we cannot discern the reasons for the court’s ruling, Martin has waived this argument.
See Morisch v. United States, 653 F.3d 522, 529 (7th Cir. 2011); RK Co. v. See, 622 F.3d 846, 853
(7th Cir. 2010); Woods v. Thieret, 5 F.3d 244, 245 (7th Cir. 1993) (enforcing rule against pro se
appellant).
No. 12-1934                                                                              Page 4

circumstances and only if it affects substantial rights and will cause a miscarriage of justice,
Wallace v. McGlothan, 606 F.3d 410, 421 (7th Cir. 2010); Estate of Moreland v. Dieter, 395 F.3d
747, 756 (7th Cir. 2005). Martin makes no effort to establish these elements, so we decline to
review the challenged evidence. See Jackson v. Parker, 627 F.3d 634, 640 (7th Cir. 2010); Moore
ex rel. Estate of Grady v. Tuelja, 546 F.3d 423, 430 (7th Cir. 2008).

        We turn now to Martin’s arguments about evidentiary rulings during the
defendants’ presentation. His first contention, as we read his brief, is frivolous. Martin says
that the district court should have barred Officers Nicklow and Drummer from testifying
about their encounters with him; this evidence, Martin insists, was irrelevant or else
inadmissible character evidence. See FED. R. EVID. 401, 404. The defense theory, however,
was that Martin and his former girlfriend had fabricated the traffic stop and use of force,
and the disputed testimony explains not only how Martin got the officers’ names but also
why he might hold a grudge and want to falsely accuse them of violating his rights.
Moreover, Nicklow did not mention the DNA sample until after Martin asserted during his
rebuttal case that the officer had described their second—not their only—encounter. Martin
testified that this other contact had occurred outside the police station after he was arrested
but “released, no charges.” The court then permitted Nicklow in surrebuttal to expand on
his explanation for encountering Martin. As the court recognized, Nicklow was entitled to
address the inference Martin’s testimony raised that he was being harassed with baseless
arrests. See Manuel v. City of Chicago, 335 F.3d 592, 597 (7th Cir. 2003); Young v. James Green
Mgmt., Inc., 327 F.3d 616, 627 (7th Cir. 2003).

        Also without merit is Martin’s contention that he should have been able to cross-
examine Officer Drummer about his disciplinary suspension. The district court
appropriately concluded that the probative value of this evidence was minimal compared
to its potential for prejudice. See FED. R. EVID. 403. The suspension arose from discrepancies
between two reports about the extent of damage to his police vehicle resulting from a car
chase, not from a failure to write a report when one was required. Moreover, the court
noted, a review board later had exonerated Drummer even though, because of a procedural
glitch, the suspension still showed in his employment file. The court reasoned that
admitting the evidence would only invite needless debate about its significance and
distract the jury from the central question whether the defendants had detained and
injured Martin. We agree with that assessment. See Suarez v. Town of Ogden Dunes, Ind., 581
F.3d 591, 598–99 (7th Cir. 2009).

        On the other hand, Martin’s remaining argument about the defendants’ evidence
does have some merit. The defendants never disputed that Martin had suffered physical
injuries requiring medical attention on the day of the alleged car stop. Martin introduced
No. 12-1934                                                                              Page 5

hospital records to establish the extent of those injuries, and buried in one document is a
note by a physician’s assistant saying that the police department had been contacted to
verify Martin’s story but responded that no report existed of a traffic stop or altercation
involving him that day. Martin had intended to redact this hearsay statement before
introducing the records, but when the defendants objected, the district court required that
Martin offer the documents unredacted or not at all. The physician’s assistant never
testified, but the defendants, over objection, elicited her written statement through cross-
examination of Martin.

       We agree with Martin that the physician’s assistant’s statement is hearsay that
should have been excluded. The defendants convinced the district court, and argue here,
that the statement was not offered to prove the absence of a police report documenting the
alleged incident, and thus was not hearsay. See FED. R. EVID. 801(c). The defendants insist
that the note shows only that hospital staff tried to verify Martin’s account of his injuries,
but the answer from the police department implies far more. No limiting instruction was
given, see FED. R. EVID. 105, and we cannot see how the jury could have missed the
inference that the police department lacked a record of the incident because in fact Martin
did not have a run-in with the police. Indeed, that was the inference defense counsel
encouraged the jury to draw during closing arguments. And as far as we can tell, the note
from the physician’s assistant provided the clearest evidence that a police report does not
exist.

       The district court mistakenly believed that the note in the medical record was made
“for purposes of medical diagnosis or treatment” and so qualified as excepted hearsay
under Federal Rule of Evidence 803(4). That exception applies only to statements made by
the patient. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996); Field v.
Trigg Cnty. Hosp., Inc., 386 F.3d 729, 736 (6th Cir. 2004). In addition, the challenged
statement was not authenticated. Martin stipulated that the hospital’s records were
admissible without need for a custodian, but that stipulation did not authenticate the
embedded factual assertion that no report responsive to the hospital’s inquiry could be
found in the police department’s records. See FED. R. EVID. 803(7). Both levels of hearsay
had to qualify for an exception for the statement to be admissible. See FED. R. EVID. 805.

        Still, we conclude that the error was harmless. This trial came down to the
credibility of the witnesses, and since the defendants insisted that Martin’s story of a traffic
stop was a lie, the absence of a police report could not have surprised the jury. The defense
theory would have been foolhardy if the officers had written a police report about an
incident they said never happened. Martin’s case turned on convincing the jury that he was
the victim of excessive force, and, if anything, the note in the medical records was helpful
No. 12-1934                                                                             Page 6

to him because it foreclosed the defendants from arguing that his claim of being beaten
during a traffic stop is a recent fabrication.

        In addition to his appellate claims about the admission of evidence, Martin also
asserts two other errors. The first concerns jury selection. Martin’s attorney wanted to
exercise a peremptory strike after she already had said the panel was acceptable. Before
jury selection began, however, the district court had made clear that no “back strikes”
would be permitted, and that if the lawyers approved “a prospective juror to stay on the
panel, then that juror remains seated.” Trial judges have broad discretion in establishing
the procedures for jury selection, Griffin, 694 F.3d at 821, and we see no basis to conclude
that the judge abused her discretion by enforcing her own clearly stated rule. See United
States v. Harbin, 250 F.3d 532, 539 (7th Cir. 2001).

       Finally, Martin asserts that the district court wrongly found that he had abandoned
before trial his state-law claims of negligence and retaliation. But Martin devotes just one
sentence of his opening brief to this subject, which is not enough to present us with a
developed argument for review. See FED. R. APP. P. 28(a)(9); Cole v. CIR, 637 F.3d 767, 773
(7th Cir. 2011); Anderson v. Hardman, 241 F.3d 544, 545–46 (7th Cir. 2001).

       Accordingly, the judgment of the district court is AFFIRMED.
