Judge throws out most of Gerlach’s statements to police in car thief shooting

Much of what Gail Gerlach told police after he shot and killed a fleeing car thief can’t be used against him at trial, a judge ruled Friday.

Gerlach, 57, faces a charge of first-degree manslaughter after he shot and killed Brendon Kaluza-Graham, 25, on March 25. Kaluza-Graham was driving away from Gerlach’s home in east Spokane in Gerlach’s Chevrolet Suburban, which had been parked in Gerlach’s driveway with keys in the ignition. Gerlach has claimed self-defense because he thought Kaluza-Graham was armed.

In a victory for Gerlach’s defense team, Spokane Superior Court Judge Annette Plese ruled Friday that a police officer at the scene did not properly give Gerlach his Miranda rights because he did not tell Gerlach that he had a right to an attorney even if he couldn’t afford one.

She also ruled that after Gerlach was properly informed of his rights by Detective Ben Estes, Estes should have stopped his interview with Gerlach sooner.

Plese’s ruling means prosecutors can’t use any information at trial that Gerlach told police after Officer Kris Honiker informally suggested he get an attorney and before Estes read him his rights in a formal interview. Prosecutors also can’t use what Gerlach told Estes after Gerlach said he didn’t want to talk about the incident.

After the hearing, Spokane County Deputy Prosecutor Deric Martin said he needs to review the ruling and timing of statements Gerlach made to police to determine what statements no longer can be used. He said he will formally request that Plese reconsider her decision.

Among statements that the ruling appears to eliminate from consideration by a jury is when Gerlach told Estes that “20-20 is hindsight.”

Estes testified Friday that Gerlach freely answered questions after he read Gerlach his rights in full and Gerlach signed a document acknowledging that he understood his rights. Later, Gerlach told Estes that he didn’t want to “talk about the incident.” Estes said he interpreted that to mean Gerlach didn’t want to talk about the shooting but was open to answering questions about events before that time. Estes said Gerlach continued to answer other questions. Estes stopped the interview after Gerlach said he wanted an attorney.

At an earlier hearing, Honiker said he suggested to Gerlach at the scene to get an attorney because he didn’t think “it was stacking up well for Mr. Gerlach.” When Gerlach said he couldn’t afford one, Honiker responded that “it would be worth the expense,” according to court documents.

Plese used Honiker’s statement as evidence that Gerlach at that point had become a suspect in a homicide and needed to be read his full Miranda rights.

“At that point the focus of the investigation changes,” Plese said.

Martin, the prosecutor, argued that Gerlach did not have to be read his Miranda rights at the scene because he was not in custody and that it was clear that he would not be detained by police that day.

But Plese said it is clear from Gerlach’s testimony at an October hearing that Gerlach felt that he was unable to leave and couldn’t refuse to answer questions.

“What counts is what did Mr. Gerlach reasonably believe,” Plese said.