Gallagher
Gallagher v. City of West Covina
Opinion
Lead Opinion
MEMORANDUM *
Michael Gallagher appeals the denial of his mistrial motion relating to defense counsel’s reference to barred evidence in an opening statement. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.
Initially, we note that referencing barred evidence of threats Gallagher allegedly made to his father and Carmen Kenniston prior to his arrest and relayed to police officers who were sent in response was a genuine mistake on the part of defense counsel, which the district court expressly recognized in characterizing the error as a misunderstanding when denying Gallagher’s post-trial motion for sanctions. We conclude that any impact of this brief attorney comment did not permeate the entire proceedings, was immediately cured by the court’s instruction that lawyer’s statements are not evidence, and did not prejudicially undermine the jury verdict. See Doe v. Glanzer, 232 F.3d 1258, 1270-71 (9th Cir.2000); see also Hemmings v. Tidyman’s, Inc., 285 F.3d 1174 , 1193 (9th Cir.2002); Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir.1991). Moreover, the evidence was not further referenced in the course of the trial.