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Prosecutors to consider charges in car theft shooting case

By Jeff Humphrey, KXLY4 Reporter , jeffhu@kxly.com
Published On: Apr 02 2013 05:33:14 PM CDT
Updated On: Apr 02 2013 08:08:34 PM CDT
Gail Gerlach
SPOKANE, Wash. -

It's been more than a week now since a Spokane man, Gail Gerlach, killed Brendon Kaluza-Graham as he was attempting to steal his SUV and in the near future prosecutors will try to decide what criminal charges if any Gerlach should face.

Gerlach shot Kaluza-Graham as he drove off in Gerlach's stolen Chevy Suburban. As prosecutors review the Spokane Police Department's investigation into the shooting, the charging decision may be a reflection of a previous case in 2007 involving Allan Turnipseed.

In 2007 Turnipseed shot and killed Josh Smith, who had been terrorizing his neighborhood with his unsafe driving and threats with a crowbar. Like Gerlach, Turnipseed claimed he fired a pistol in self defense but in the end, prosecutors charged him with second degree murder.

"We got a call at 5:28 from a person who said there was some sort of argument going on. A moment or two later they said shots were fired," Spokane Police Officer Tom Lee said in June 2007.

Josh Smith, 24, was shot to death inside his car after speeding through a neighborhood and being confronted by Turnipseed.

"He told the young man to wait for the police and unfortunately the young man then decided to drive his car at my client," defense attorney John Clark said in a March 2008 interview.

Turnipseed said he opened fire to keep from getting run over, however prosecutors argued the moment when Turnipseed could have shot Smith in self defense was over     

"[Smith] had in fact gotten back in his car, had started his car and was driving away when Mr. Turnipseed chased him down and shot him to death," deputy prosecutor Steve Garvin said in March 2008.

However not everyone on Turnipseed's jury felt he had committed murder and he was acquitted. During Turnipseed's second trial the jury was given the option of the alternative charge of first degree manslaughter and he was subsequently convicted.

In late March, Gail Gerlach shot at his SUV, which Brendon Kaluza-Graham was driving away from him. The single shot hit Kaluza-Graham in the back of the head. The SUV crashed into a garage a few blocks away and he was declared dead at the scene by medical personnel.

"It's our understanding that the vehicle owner had the firearm on his person at the time of the car theft," Spokane Police Lieutenant Mark Griffiths said on March 27.

In the car theft shooting, police are not concerned that Gerlach was already armed as his lack of a criminal history qualified Gerlach for a concealed weapons permit. Instead, detectives are focused on whether a threat still existed when Gerlach fired at Kaluza-Graham as he was driving away from him.

"This is a more complicated investigation than some, as far as use of force, whether it was justified so at this point we are still compiling the rest of the investigation and will confer with the prosecutor and move from there as to whether or not submit charges," Griffiths said.

If prosecutors decide to charge Gerlach for shooting Kaluza-Graham they may include the lesser charge of manslaughter and let the jury decide which charge is the most appropriate, a move similar to Turnipseed's second trial.

If Gerlach was convicted of that lesser charge, he'd be looking at about eight years in prison.

Then there's the question of the potential jury pool and how it would vote in a case like this. Many people have taken to social media platforms, such as Facebook, to say that Gerlach has done nothing wrong here and the car thief is responsible for his own death. Some of those people who feel that way could very well be sitting on his jury and traditionally Spokane juries have been sympathetic to the self defense claim.

For example, in the case of former Spokane police officer Jay Olsen, he too thought he was firing at a fleeing car thief and, even though he was intoxicated at the time, a jury acquitted him.

As detectives finish their investigation into the deadly shooting, it leaves prosecutors faced with some tough decisions in Gerlach's case.

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