                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 10 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EMMANUEL BRACY,                                  No.   17-55463

              Plaintiff-Appellant,               D.C. No. 2:13-cv-09350-JC

 v.
                                                 MEMORANDUM*
CARL WORRELL, Detective; DONALD
WALTHERS, Detective; RICHARD
GUZMAN, Detective; RANDY RICO,
Detective; CITY OF LOS ANGELES,

              Defendants-Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                 Jacqueline Chooljian, Magistrate Judge, Presiding

                     Argued and Submitted December 3, 2018
                              Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and BASTIAN,** District Judge.

      Appellant Emmanuel Bracy (Bracy) challenges several evidentiary rulings

made during an excessive force case brought under 42 U.S.C. § 1983 against

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stanley Allen Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
members of the Los Angeles Police Department. Bracy specifically contends that

the district court erroneously admitted prejudicial evidence.

      We review for abuse of discretion the admission of evidence under Federal

Rules of Evidence 403, see United States v. Jayavarman, 871 F.3d 1050, 1063 (9th

Cir. 2017), and 702, see United States v. Spangler, 810 F.3d 702, 706 (9th Cir.

2016). “A new trial is only warranted when an erroneous evidentiary ruling

substantially prejudiced a party.” Harper v. City of Los Angeles, 533 F.3d 1010,

1030 (9th Cir. 2008) (citation and internal quotation marks omitted).

      The district court abused its discretion in admitting three still images of

Bracy handling and pointing a gun during a robbery he committed prior to the

confrontation with police. Because Bracy’s counsel admitted in his opening

statement that the gun Bracy used in the robbery was the same gun found behind

the air conditioning vent of his car, the minimal probative value of the photographs

was outweighed by their prejudicial impact. See United States v. Hitt, 981 F.2d

422, 424 (9th Cir. 1992) (“Rightly or wrongly, many people view weapons,

especially guns, with fear and distrust. . . . [P]hotographs of firearms often have a

visceral impact that far exceeds their probative value. . . . ”) (citations omitted).

      The district court further abused its discretion by allowing lay testimony

from Appellees’ police practices expert, Sergeant Harry Markel, that strayed far


                                            2
outside the bounds of that expertise, without any instruction from the court as to

how the jury should evaluate the lay testimony. See United States v. Vera, 770

F.3d 1232, 1243 (9th Cir. 2014) (recognizing that a court must instruct the jury

when a witness combines lay and expert testimony); United States v. Martinez, 657

F.3d 811, 817 (9th Cir. 2011), as amended (concluding that the district court did

not abuse its discretion when it admitted properly identified expert and percipient

testimony by a law enforcement officer).

      Admission of the testimony outside the expertise of the police practices

expert, without instruction from the court, compounded the error in admitting the

still images, resulting in cumulative error. See United States v. Preston, 873 F.3d

829, 835 (9th Cir. 2017) (noting the cumulative effect of multiple errors). This

error was not harmless because the lay testimony addressed blood found on the

vent of Bracy’s vehicle, a fact central to the issue of when Bracy concealed the gun

in the vent. See United States v. Jimenez, 214 F.3d 1095, 1099 (9th Cir. 2000)

(concluding that erroneous admission of evidence was not harmless where the

evidence was probative of a central issue in dispute).

      Because Bracy was substantially prejudiced by the cumulative effect of these

erroneous evidentiary rulings affecting a central issue in the case, he is entitled to a

new trial. See Harper, 533 F.3d at 1030.


                                            3
REVERSED AND REMANDED.




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