Unpublished Disposition, 855 F.2d 862 (9th Cir. 1985)

MEMORANDUM^** 

Augusto F. Mendiola ("Mendiola") appeals from his conviction and sentencing for aggravated assault in violation of 9 Guam Code Ann. Sec. 19.20. We affirm.

BACKGROUND

On June 21, 1985, the Government of Guam ("government") filed an indictment charging Mendiola, a police officer, with aggravated assault as a third degree felony. The government claimed that Mendiola beat an unresisting suspect, causing serious bodily injury. At a jury trial, the government introduced, over objection, eight photographs of the suspect's injuries suffered as a result of being struck by a billy club or large flashlight. The jury returned a guilty verdict.

At sentencing on November 6, 1985, the prosecutor referred to an unrelated incident in which Mendiola allegedly used excessive force in apprehending a suspect. Mendiola raised no objection. He subsequently received a two and a half year sentence.

On appeal to the U.S. District Court for the Territory of Guam, Appellate Division, Mendiola claimed that the government's reference to the unrelated incident violated a pretrial agreement, and that the prejudicial impact of photographs admitted at trial substantially outweighed their probative value. The appellate division disagreed and affirmed. Mendiola now timely appeals to this court.

DISCUSSION

During the aggravated assault proceeding, Nam Ha Lee filed a civil lawsuit against Mendiola, which concerned the unrelated incident mentioned at sentencing. The government's civil litigation division undertook representation of Mendiola in this matter as he was being sued for actions committed while on duty. To ensure protection of Mendiola's attorney-client privilege, the attorney general executed a memorandum on September 5, 1985, which stated that:

all communications made by ... Mendiola to his attorneys in the Civil Litigation Division of the Attorney General's Office regarding his actions toward Mr. Nam Ha Lee ... are privileged and will not be used against him by any division of the Attorney General's Office, including the Prosecuting Division, for any purposes.

Whether evidence introduced at trial violates the attorney-client privilege presents a mixed question of law and fact that we review de novo. Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). The party asserting the privilege must show "that the privilege applies to the information in question." Id. (citation omitted). The attorney-client privilege is strictly construed. Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981).¹ 

Mendiola maintains that the prosecutor's reference at sentencing to the Nam Ha Lee incident violated the government's promise made in the memorandum. The prosecutor stated that:

[Mendiola] has had complaints lodged against him as a police officer from 1975 until 1984. I personally spoke to the people who work in Internal Affairs and asked them to relate to me "only" those charges that were upheld within Internal and found to be justified. And I have two prior incidents where, in fact, he was found to have used excessive force by the Internal people.... [The second] incident ... involved Lee Nam Ha--and I got all this information only from Internal --that he had abdominal injuries.... But these are the only two [incidents] that I can say that they investigated and they found, in fact, there was no provocation, no reason for it and the same type of behavior. (emphasis added).

This statement asserts no information gleaned from communications between Mendiola and attorneys of the civil litigation division. It refers solely to findings of an independent investigation conducted by the Internal Affairs Division of the Guam Police Department. Mendiola does not argue that these findings were, in fact, derived from confidential communications. Thus, Mendiola's attorney-client privilege, as evinced by the memorandum, was not implicated. See Mercy v. County of Suffolk, 93 F.R.D. 520, 522-23 (E.D.N.Y. 1982).² 

We review for an abuse of discretion a trial court's balancing of the probative value of photographic evidence against its prejudicial harm. A trial court's decision to admit photographs is rarely disturbed. United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986); People of the Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1261 (9th Cir. 1981).

In the present case, photographs of the victim's injuries introduced into evidence depicted scrapes, scratches, bruises, and a scar resulting from a gall bladder operation performed as a result of Mendiola's assault.

The government used these photographs to help establish intent to commit serious bodily harm, an element of the aggravated assault charge, see 9 Guam Code Ann. Sec. 19.20(2), and to refute Mendiola's affirmative defense of justification. See 9 Guam Code Ann. Sec. 7.92 (law enforcement officers may use "reasonable force" in making an arrest or in defending themselves).

Having reviewed the photographs, we conclude that they are not so shocking as to have presented the danger of inflaming the jury's passions. See Rivers v. United States, 270 F.2d 435, 437 (9th Cir. 1959), cert. denied, 362 U.S. 920 (1960). Furthermore, although physicians who treated the victim testified to the extent of his injuries, the introduction of the photographs was not unfairly cumulative. The photographs supplemented the physicians' testimony by allowing the victim to explain the details of what occurred, specifically to indicate the sequence and type of blows he received and their effect. This enabled the jury to assess the amount of force used and its reasonableness.

CONCLUSION

The prosecutor's comments did not violate Mendiola's attorney-client privilege. The prejudicial impact of the photographs admitted into evidence did not substantially outweigh their probative value. Accordingly, the appellate division's judgment is affirmed.