
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2157                                  ALBERT J. CHIMENO,                                Plaintiff, Appellant,                                          v.                               DANIEL A. PION, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Albert J. Chimeno on brief pro se.            _________________            Marc DeSisto, Kathleen M. Powers and DeSisto Law Offices on  brief            ____________  __________________     ___________________        for appellees.                                 ____________________                                   October 24, 1997                                 ____________________                 Per Curiam.  Upon review  of the parties' briefs and the                 __________            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                         ___ ________     ____________________            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                                         -2-            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                                              ___            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                                                               ___ ______            States  v. Fosher,  568 F.2d  207 (1st Cir.  1978) (requiring            ______     ______            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                 ________________________________________________________            defendants-appellees is summarily affirmed.  Loc. R. 27.1.            ___________________________________________                                         -3-
