IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF SPOKANE

STATE OF WASHINGTON
Plaintiff,
v.
GAIL HERBERT GERLACH
WM 10/29/56
Defendant(s). / )
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) / No.13-1-01907-9
PA#13-9-48758-0
RPT# 002-13-0093763
RCW 9A.32.060(1)(A)-F (9.94A.825) (#23751)
STATE’S TRIAL MEMORANDUM
STATE’S TRIAL MEMORANDUM / Page 1
spokanecountyprosecuting attorney
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spokane, wa 99260 (509) 477-3662
  1. CHARGE(S)

The defendant is charged by Information with MANSLAUGHTER IN THE FIRST DEGREE. The charge includes a Firearm Enhancement. The Information will not be amended at trial, though the State will offer a lesser-included charge of MANSLAUGHTER IN THE SECOND DEGREE.

  1. TIME ESTIMATES

This jury trial should last approximately six to seven days.

  1. POTENTIAL STATE WITNESSES

The State expects to call the following witnesses at trial:

1)Richard McKinley

2)Timothy Hutter

3)Austin Clare

4)Anthony Nason

5)KeoniParkin

6)Joseph Bercier

7)Natalie Shrum

8)Glenn Davis

9)Dr. Sally Aiken

10)Spokane Police Officer Ronald Tilley

11)Spokane Police Officer Anthony Meyer

12)Spokane Police Officer Lawrence House

13)Spokane Police Officer Kenneth Applewhaite

14)Spokane Police Officer Tyler Cordis

15)Spokane Police Officer Brian Aitken

16)Spokane Police Officer Kevin Shearer

17)Spokane Police Officer Kristopher Honaker

18)Spokane Police Officer Bradley Moon

19)Spokane Police Sergeant Brad Hallock

20)Spokane Police Detective Ben Estes

21)Spokane Police Detective Brian Cestnik

22)Spokane Police Detective Neil Gallion

  1. FACTS

According to Spokane Police Incident Report Number 13-93763, on March 25, 2013 Brendon Kaluza-Graham stole a truck belonging to the defendant, Gail Gerlach. He took the truck as it was warming up, unattended, in Gerlach’s driveway. As Kaluza-Graham was speeding down the road to make his escape, Gerlach fired a single shot at the vehicle that struck Kaluza-Graham in the back of the head, killing him instantly.

Gerlach’s truck continued down the road, sideswiping a fence approximately two blocks from Gerlach’s house and crashing into a neighbor’s garage, where it came to rest. Gerlach called 911 to report what had happened, indicating to the operator that he had shot the thief.

Officer Tyler Cordis arrived on scene and found Gerlach pacing in his driveway. He asked if Gerlachcould quickly relate what had happened. He also asked Gerlach to show him where the Suburban had been parked before it was taken.

Gerlach showed Officer Cordis the empty spot in his driveway where the truck had been and said he had been warming the vehicle while waiting for his wife to get ready for work. He said he went inside the house to check on his wife's progress and, when the two came out together to leave, Gerlach said he saw the Suburban backing out of the driveway. Gerlach yelled “Stop! Stop,” and began chasing the truck as it begin to drive away from the house going Southbound on Lee.

Gerlach told Ofc. Cordishe reached the edge of the driveway when he saw the driver turn around and raise his arm. Gerlach claimed he saw something that might have been a gun in Kaluza-Graham’s hand and that he was worried he would be shot. Gerlach took out his own gun from a holster on his side and fired a single shot. He then unloaded his weapon, went inside his house and called 911.

Officer Cordis continued talking with Gerlach. Gerlach said his wife had run down the street to where the truck had crashed. Gerlach told Officer Cordis that he had been scared and that he did not know whether he had done the right thing. He wondered aloud whether he should have simply gone back inside the house rather than shoot after the car. Gerlach repeated several times that he hoped the driver was not hurt.

Gerlach demonstrated for Officer Cordis where he had been standing when he shot at the truck. He also showed the officers where his wife had dropped her lunch bag in the driveway. Officers Cordis and Applewhaite collected a live round as well as a spent casing.

Officer Cordis asked Gerlach where the weapon was at that moment and he responded that it was still inside the house. Gerlach added that there were two adults and several children inside as well. Officer Cordis asked if police could collect the weapon and Gerlach agreed, telling Officer Kenneth Applewhaite (who had just arrived) where he could find it. Officer Applewhaite went into the house with Gerlach's permission and retrieved the gun.

Gerlachlater agreed to go to the Major Crimes Unit of the police department to give a statement. Ofc.Cordistook Gerlach to the station and waited while Gerlach, then Sharon, gave statements to Detective Ben Estes.

Detective Estes collected some background information from Gerlach about his family and household, then advised Gerlach of his Miranda rights. Gerlach signed a written waive of those rights and agreed to speak with Estes.

Gerlach agreed to draw sketches of his home's basic floor plan and an overview of his driveway and the street in front of his home. Gerlach also drew in the Suburban and his wife's car to show how they were parked in the drive. Finally, Gerlach gave a detailed statement to Estes about his actions that morning right up to the moment of the shooting. When he reached that point in the account, however, Gerlach told Detective Estes that he "didn't really want to talk about 'the incident.'" Detective Estes asked Gerlach several other general questions and then began asking again about the shooting. Gerlach said he wanted an attorney and Detective Estes ended the interview.

Dr. Sally Aiken performed on autopsy on Kaluza-Grahams body. She recovered the bullet from Kaluza-Graham’s skull as well as a bullet fragment from the skin on Kaluza-Graham’s neck. Dr. Aiken saw that the bullet—a hollow point round—severed Kaluza-Graham’s spinal cord and opined that he died almost instantly. The bullet entered the back of Kaluza-Graham’s skull just above the hairline and travelled in a line that went nearly straight through his head.

In a search of Kaluza-Graham’s clothing, a baggie containing about 25.5 grams of a crystalline substance was found in his pants pocket. The substance was not tested. A toxicology assay revealed that Kaluza-Graham had methamphetamine in his system at a concentration of 1.9 milligrams per liter.

A search of Gerlach’s car yielded a child car seat with apparent bullet damage as well as a driver’s side head rest with an apparent bullet hole completely bisecting it.

  1. PRETRIAL RULINGS

The Court has heard the State’s motion to admit Gerlach’s statements to police. The court granted the motion in part and denied it in part. The Court’s findings are recorded in a separate order. Briefly stated, Gerlach’s statements to Ofc.Cordis are admissible as are his statements to Det. Estes after being advised of his Miranda rights and up to the point that he said he no longer wished to talk about the incident. The Court denied the State’s motion to reconsider this ruling.

The parties have also stipulated to the admission of several exhibits.

  1. EVIDENTIARY ISSUES/MOTIONS IN LIMINE

The State requests a hearing prior to trial to obtain rulings from the Court on the State’s motions in limine included herein. The State reserves the right to bring further motions where necessary during the course of this trial.

The purpose of a motion in limine is to obtain an advanced ruling of the admissibility or exclusion of evidence prior to trial. Evidentiary Foundations, Third Edition by Edward J. Imwinkelried 1995 page 9. The advance rulings allow counsel to determine strategy decisions for the trial and to prevent “ringing the bell” with jurors hearing any mention of impermissible evidence. Id. The court may either decide to allow or exclude the evidence at the pretrial motion or reserve ruling which prohibits mentioning the evidence to the jury without the court’s consent. Id. at 10. This prohibition can include not only prohibiting the evidence during testimony but also during voir dire and opening statements. Id. The court can then later decide, outside the presence of the jury, if the evidence should be admitted or remain excluded after hearing more evidence during the trial. Id.

  1. To exclude all witnesses from the courtroom, except for an officer designated by the State.

The State moves this Court for an order excluding all witnesses from the courtroom except during their own testimony. However, the State reserves the right to have the assigned detective remain at counsel table during the trial. This motion is based on ER 615.

The defense team has indicated its intent to exercise the spousal privilege to bar the State from calling the defendant’s wife, Sharon Gerlach, as a witness. Gerlach has, however, reserved the right to call Sharon in its own case. Based upon this reservation, the State asks the Court to exclude Mrs. Gerlach from the proceedings as well.

  1. Exclude all references to “God” in the oath to jurors and witnesses.

The First Amendment to the Constitution of the United States forbids the establishment of religion. RCW Chapter 5.28 allows administration of the oath without reference to any god or by simple affirmation.

  1. To exclude any references of punishment the defendant may receive as a result of this case.

The jury must not consider or even discuss the penalty or punishment of a crime. State v. Hartwig, 45 Wn.2d 76; 273 P.2d 482 (1954),citingState v. Lunsford, 165 Wn. 199, 300 Pac. 529. The State moves for an order barring the defense team from raising the issue of punishment except as allowed by the Washington Pattern Jury Instructions.

  1. To prohibit the defense from referring to the defendant only by his first name.

It is improper for an attorney to communicate to the jury a personal belief in the veracity of a witness or the testimony. State v. Reed, 102 Wn. 2d 140, 684 P.2d 699 (1984). Calling the defendant by his/her first name implies familiarity that the jury may take as vouching for the defendant’s credibility.

  1. To prohibit defense counsel from expressing a personal opinion of the guilt or innocence of the defendant.

An attorney cannot assert his/her personal opinion “as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.” State v. Reed, 102 Wn.2d 140; 684 P.2d 699 (1984) citing Washington Code of Professional Responsibility, DR 7-106(C)(4).

  1. To exclude evidence of the defendant’s character for truthfulness or good character generally.

Evidence of a defendant’s reputation for truthfulness is usually only admissible when the trait of truthfulness is relevant to the crime charged. State v. Harper, 35 Wn. App. 855, 859, 670 P.2d 296 (1983).

Evidence Rule 404(a)

Evidence of a person’s character or trait of character is not admissible for the purpose of providing action in conformity therewith on a particular occasions, except: Character of the Accused—Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;

Although ER 404(a) permits the accused to introduce evidence of his own good character, the evidence must be pertinent to rebut the nature of the charge. In this case, evidence of the defendant's reputation for morality, decency, truthfulness, and/or law-abiding behavior is of dubious relevance to the charges and should therefore not be allowed at trial. Furthermore, even if relevant, the defendant has not endorsed any witness that can testify to his general reputation in the community. ER 404(a)(2); ER 405(a). Accordingly, the Court should exclude any evidence of the defendant's "good character."

  1. To exclude any reference to prior negotiations between the defense and the State.

Any pleas or offers are not admissible in any civil or criminal proceedings against the person who made the plea or offer. ER 410.

  1. To require the defense to elect a defense.

The defense is required to state the general nature of their defense. CrR 4.7(b)(2)(xiv).

  1. To require the defense to provide copies of any written reports containing the substance of statements made by any witnesses.

Discovery is reciprocal and designed to enhance the search for the truth. CrR 4.7(b)(1); State v. Yates, 111 Wn. 2d 793, 765 P. 2d 291 (1988).

In the interest of reducing possible surprise and gamesmanship, we affirm the exercise of the trial court's discretion in this case; we uphold the trial court's order to the extent it ordered that all recorded or written statements of potential prosecution witnesses which were taken by defense counsel or the defense investigator be provided to the State.

  1. To prohibit defense counsel from eliciting statements made by the defendant from any witnesses that are not offered against the defendant, so that the defendant may not attempt to tell his versions of events through other witnesses.

Any statements not offered by the State against the defendant should be elicited from the defendant on direct from his counsel. SeeState v. Finch, 137 Wn.2d 792, 824, 975 P.2d 967 (1999) cert.denied, 528 U.S. 922 (1999) (an out of court admission by a party offered by that party for the truth of the matter asserted is inadmissible hearsay because it denies the State the right to cross examine and denies the jury a chance to gauge credibility); State v. Ammlung, 31 Wn.App. 696, 703, 644 P.2d 717 (1982) (defendant cannot introduce his own testimony from a hearsay source, thereby insulating his testimony from cross-examination); State v. Huff, 3 Wn.App. 632, 477 P.2d 22 (1970) (defendants may not use the rule to insulate themselves from cross examination); State v. Haga, 8 Wn.App. 481, 507 P.2d 159 (1973) appealafterremand, 13 Wn.App. 630 (1975), cert. denied, 425 U.S. 959 (1976); Karl B. Tegland, Courtroom Handbook on Evidence, page 375, cmt. 1(d) to ER 801(d)(2) (2005) (“If the rule were otherwise, a party could simply tell his or her story out of court, and then present it through the testimony of other witnesses without taking an oath and without facing cross-examination”). Because the statements are not offered against the defendant by a party opponent, they are hearsay. This does not change even if the declarant is testifying.

[A]n out-of-court statement is hearsay when offered to prove the truth of the matter asserted--even if it was made by someone who is now an in-court witness (i.e., even if it was made by someone who is presently under oath, observable by the trier of fact, and subject to cross-examination.

State v. Sua, 115 Wn. App. 29, 60 P.3d 1234 (2003).

Should the defendant choose to testify at trial, the court should also prohibit defense counsel from offering the testifying defendant's prior out-of-court statements, both during and after testimony, under ER 801(d)(1)(ii) (prior consistent statement) unless defense counsel can satisfy the requirements of that rule. Under ER 801(d)(1)(ii), prior out-of-court statements are exempt from the hearsay rule if (1) the defendant testifies as a witness, (2) he is impeached by a charge of recent fabrication or improper influence or motive, and (3) the prior consistent statement was made before the defendant had a motive to fabricate. Here, on the facts of this case, even if the defendant testifies and is impeached, he cannot demonstrate that the statements were made at a time when the motive to fabricate was not present..

  1. Because the defendant did not note a hearing under CrR 3.6, no such hearing is necessary.
  1. Motion to Admit 911 call.

The parties have stipulated to the admission of the 911 recording in this case.

  1. ER 609

The State does not intend to offer any evidence against the defendant under ER 609.

  1. Defense should inform the State if it intends to offer criminal conviction evidence under ER 609 against any of the State's witnesses.
  1. Motion to exclude evidence of the victim’s criminal history and drug use.

The defense team has indicated its intent to introduce “the criminal history of the deceased … and his violent behavior in his arrest history of violence [sic] towards police when resisting arrest.” Such testimony is barred under the Rules of Evidence.

Under ER 404(b), evidence of bad acts is inadmissible if it is offered to establish a person’s character or to show he acted in conformity with that character. State v. Muniguia, 107 Wn.App. 328, 334, 26 P.3d 1017 (2001). “In particular, evidence of specific acts of conduct is inadmissible if it is offered to prove the character of the person, and that the person acted in conformity with that character.” State v. Bell, 60 Wn.App. 561, 564, 805 P.2d 815 (1991). This prohibition applies to crime victims. SeeState v. Jones, 19 Wn.App. 850, 578 P.2d 71 (1978 (victim’s character irrelevant in murder prosecution not involving self-defense). A narrow exception to this rule existsfor cases where a defendant claims he acted in self-defense and the victim was the first aggressor or to prove that the defendant reasonably feared the victim. ER 404(a)(2); State v. Fondren, 41 Wn.App. 17, 25, 701 P.2d 810, review denied, 104 Wn.2d 1015 (1985). However, only prior acts known to the defendant are admissible under this exception. State v. Birnel, 89 Wn.App. 459, 469, 949 P.2d 433 (1998); see also State v. Despenza, 38 Wn.App. 645, 649, 689 P.2d 87 (1984) (the legitimacy of a defendant’s self-defense claim must be evaluated “in light of all the facts and circumstances known to him at the time of the shooting.” (emphasis added); State v. Callahan, 87 Wn.App. 925, 934, 943 P.2d 676 (1997) (evidence of victim’s reputation for violence irrelevant where defendant did not know the victim at the time of the offense); State v. Walker, 13 Wn.App.545, 662, 536 P.2d 657 (1975) (victim’s arrest record improper means to prove “reputation” evidence and irrelevant where defendant was unaware of the record at the time of the incident).

A defendant claiming self-defense may introduce reputation evidence to show that the victim was the first aggressor. State v. Cloud, 7Wn.App.211, 217-18, 498 P.2d 907 (1972). This evidence may be admitted even if the defendant was unaware of the victim’s reputation at the time of the incident. Id. at 218. However, such reputation must be established by a witness familiar with that reputation in the community and may not be proved by specific instances of conduct. Id.; State v. Adamo, 120 Wn. 268, 269, 207 P.7 (1922). ER 405(a), (b). Further, such community must be “neutral enough [and] generalized enough to be classed as a community.” State v. Callahan, 87 Wn.App. at 934 (quotingState v. Lord, 117 Wn.2d 829, 874, 822 P.2d 177 (1991)). In regard to proving reputation through prior episodes between the victim and the police, the Washington Court of Appeals has stated “[f]or purposes of reputation testimony, the criminal justice system is neither neutral nor sufficiently generalized to be classified as a community.” State v. Callahan, 87 Wn.App. at 935 (citingState v. Lord, 117 Wn.2d at 874).