GERLACH TRIAL DAY 7: Gail Gerlach Takes The Stand; Fate In The H - Spokane, North Idaho News & Weather KHQ.com

GERLACH TRIAL DAY 7: Gail Gerlach Takes The Stand; Fate In The Hands Of The Jury

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Gail Gerlach took the stand on Wednesday in his Manslaughter trial to defend his action on the morning he shot and killed Brendon Kaluza-Graham as he was stealing Gerlach's car Gail Gerlach took the stand on Wednesday in his Manslaughter trial to defend his action on the morning he shot and killed Brendon Kaluza-Graham as he was stealing Gerlach's car
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SPOKANE, Wash. - Day 7 in the Manslaughter trial of Gail Gerlach saw the man everyone was waiting to her from take the stand: Gail Gerlach. 

Before Gerlach took the stand however, prosecutors called Detective Ben Estes as a rebuttal witness. Estes first talked about Sharon Gerlach, who took the stand on Tuesday, and his interview with her following the shooting. Estes said she was talkative and excitable. The prosecution asked about Sharon's testimony and her version of what happened that day. Estes said Sharon described the driver as "turning his hand back towards them," and said the best she could tell is there was some movement in the vehicle. Estes said Sharon never mentioned she was worried for her husband's life or her own life during his interview. Estes acknowledged that he never recorded his interview with Sharon. 

After a short recess, and the defense cross examined Det. Estes, and then called their last witness to the stand: Gail Gerlach.

Gerlach told the court he let his original concealed weapons permit expire due to having young kids in his house, and that he got a new on in 2011. Gerlach said he usually doesn't carry his gun loaded with a round in the chamber. 

The defense then asked Gerlach why he left his car while it was warming up. Gerlach told the court he almost always waits with the car while it is warming up, unless his wife is slow getting ready for work. 

Gerlach was then asked specifically about the morning he shot Brendon Kaluza-Graham. Gerlach said he was in a hurry that morning and forgot about the round in the chamber of his gun. 

Using a picture of the items in the back of his SUV, Gerlach testified that nothing in the back obscured his vision while driving. 

Gerlach says after starting his SUV, he went back inside to wait for his wife, and left his vehicle running and unlocked. Gerlach said he was inside the home for about 1-2 minutes before he went back outside, at which time he saw a man in the driver's seat and yelled, "Stop! Stop!" Gerlach testified he wasn't angry, he was just surprised that someone was stealing his car. Gerlach then said he and Kaluza-Graham made eye contact. 

At that point, Gerlach described being about 7 feet from the back of his SUV and seeing an arm motion, and yelled out "Gun!" and thought, "this is it." Gerlach said he was on the edge of his property when he dropped his hands, lifted his shirt, loaded his gun, aligned it with the driver's seat and fired. He said the whole thing lasted about 1-2 seconds.

After firing and seeing the SUV crash, Gerlach said his thoughts turned to getting help, so he called 911 and told dispatchers he didn't know if he hit the driver, and if so, how injured he was. 

Gerlach said he went inside, unloaded his gun and his wife went outside past him. The defense attorney asked Gerlach why he didn't stop his wife, to which he replied, "are you married?"

Gerlach testified he unloaded his gun inside his house because he did not want to be a threat to police when they arrived. 

When police did arrive, Gerlach said he was "pretty hyped" and "couldn't access information" in his brain after the shooting. Gerlach told officers he wished he could have avoided the tragic and traumatic situation. Gerlach said if he could do it all over again, he would have stayed at home, had his wife call in sick and "had a much better day." 

Wrapping up their questioning, Gerlach told his defense attorney "there was absolutely something in his (Kaluza-Graham's) hand and in that moment he was sure it was a pistol."

The defense then rested. 

Next, prosecutors began their cross-examination of Gerlach, and asked why after the shooting he had the presence of mind to call 911, unload his gun, but let his wife walk down to the crash site? Gerlach told prosecutors "the person in the car wasn't going to hurt anybody based on what I saw." 

The prosecutor asked Gerlach if he was willing to risk the lives of the children at the bus stop that morning as collateral damage, and Gerlach replied, "I didn't miss." Gerlach expressed that he was pretty confident that he could hit his target despite not having shot his gun in more than a year. 

The prosecutor asked if Gerlach was frustrated with having his car stolen, and Gerlach explained that he didn't have time to process the situation. The prosecutor replied by asking if he had time to experience fear, to which Gerlach replied, "fear comes fast." 

Gerlach testified that he thought Kaluza-Graham had a gun, but during cross-examination stated what he thought was a gun in that moment, he now thinks was a set of car keys. It was later discovered that Kaluza-Graham was unarmed.

The prosecution rested their case. 

Following a short recess, closing arguments began, with about 30 people in the courtroom, including family members from both sides. 

Prior to the closing arguments, Judge Plese began by instructing the jury on how to apply the law in deciding the case. She reminded them that evidence includes only testimony given and exhibits admitted. Plese told jury members they are the sole judges on the credibility of each witness they heard, and reminded them that lawyers' statements are not evidence. 

In order for the jury to decide on a conviction, there must be proof beyond a reasonable doubt that 1.) Gerlach was engaged in reckless conduct, 2.) Kaluza-Graham died as a result, and 3.) the event happened in Washington. 

Criteria for a conviction of Manslaughter in the second degree changes to 1.) Gerlach's conduct was criminally negligent, 2.) Kaluza-Graham died as a result, and 3.) the even happened in Washington. 

Plese instructed the jury that they will first consider First Degree Manslaughter, and if they find Gerlach is not guilty or can't agree, they will then have to consider Second Degree Manslaughter. 

Plese told jurors that each of them must agree to reach a verdict of guilty or not guilty. 

Following Judge Plese's instructions to the jury, the prosecution began their closing arguments. 

The prosecutor told the jury, "on an emotional level, this case is very complicated. On a factual level, it's easy: Gerlach did not act in fear of his life," saying that someone in fear of his life would have fired more than one shot, implying that Gerlach instead acted out of anger, not fear. 

The prosecutor said the fact that Gerlach didn't stop his wife from walking down to the crash site shows that he didn't believe Kaluza-Graham was a threat. The state then said that Gerlach told 911 dispatchers that he "wasn't sure of anything, panicked, lost his emotions, and fired in anger." 

The state then mentioned Gerlach's actions were reckless and that he could've his others on the street, or he could have hit the driver and in doing so turned the SUV into a "missile." 

The prosecution then addressed the Spokane Police Department's investigation saying that "the Gerlachs weren't bamboozled or railroaded or tricked" by police. 

The prosecution attacked the defense's expert use of force witness saying his testimony was biased and "you don't need expert witness testimony to determine shooting someone from a moving car would be harder than someone standing on the ground."

The prosecution told jurors that had Kaluza-Graham been looking at Gerlach at the time he was shot, he wouldn't have been shot in the back of the head." 

The prosecutor closed by saying "Kaluza-Graham was certainly wrong and he paid for it with his life. But that doesn't mean Gerlach was right. Two people can be wrong." 

The state then rested and a short recess was called. 

After the recess, Richard Lee began closing arguments for the defense. 

Lee began by showing a slideshow to show jurors Gerlach's background and actions the day of the shooting. Lee said Gerlach regrets the loss of life, but believes he was right to use his gun under the circumstances. 

Lee countered the prosecution's claim that Gerlach acted in anger and said Gerlach thought Kaluza-Graham was going to shoot him. Lee said Gerlach didn't say he made a mistake. Lee then said the defense doesn't have to prove anything, they just have to show that the state has not proven its case.

The defense then went through witness by witness on a slideshow to recap all of the testimony and evidence, saying the state is ignoring consistent statements. 

The defense told the jury because a reconstruction of the crime scene was never done, the state can't rule out that Gerlach perceived a threat from Kaluza-Graham. 

Just before 5:00pm, after over an hour of closing arguments from the defense, Judge Plese granted a short break. 

The defense finished their closing arguments, and the case was then given to the jury for deliberation. Court was recessed for the evening and the jury will begin deliberations at 9:00am on Thursday. 

Once the jury of 11 women and 1 man reach a verdict, we will be given a 30 minute notice before they announce their decision. 

We of course will be updating you constantly here on khq.com, our newscasts, on Facebook and in real time on Twitter. Follow Kelsey Watts as she tweets from the courtroom on the handle @GerlachTrial. 

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