IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF SPOKANE

) STATE OF WASHINGTON ) No. 13-1-01907-9 ) Plaintiff, ) v. ) DEFENDANT’S RESPONSE TO STATE’S ) SUPPLEMENTAL MOTIONS IN LIMINE GAIL HERBERT GERLACH, ) ) DEFENDANT’S MOTION TO STRIKE STATE’S Defendant. ) SUPPLEMENTAL MOTIONS IN LIMINE OR ) CONTINUE THE CASE FOR ONE WEEK

I. OBJECTION

Defense counsel objects to have the State’s SUPPLEMENTAL MOTIONS IN LIMINE hear as the required notice was not given. Defense counsel cannot. given how close the trial date is, prepare an adequate response to the State’s SUPPLEMENTAL MOTIONS IN LIMINE.

Going forward on a motion that if granted guts the heart of Gail Gerlach’s defense is ineffective assistance of counsel. Defense counsel was by forgoing trial preparation that had been planned for weeks and surviving on very little sleep able to provide a short answer that would be much more thorough if given adequate time to brief the issue.

DEFENDANT’S RESPONSE TO STATE’S Page 1 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 There is no unfair prejudice to the State if the motion is not heard because the State can still voir dire the witness during trial if this Court finds that Use-of-Force Robert Smith is qualified to testify. Additionally, the State can object to questions or testimony it feels are objectionable.

II. FACTS

On September 26, 2013, defense counsel requested to have our experts Robert Smith and Gaylan Warren examine Gail Gerlach’s SUV.1

The assigned deputy prosecutor was present on October 3, 2013, when Mr. Smith and

Mr. Warren examined the SUV involved in this case.

On January 10, 2014, defense counsel filed DEFENDANT’S DISCLOSURE OF LAY

AND EXPERT WITNESSES.2 A copy was given to the Spokane County Prosecutor’s Office.3

The witness list informed the Prosecutor’s Office that the defense would be calling Robert Smith and Gaylan Warren as witnesses.

The State was informed that Mr. Smith would be testifying regarding “response time, use of deadly force, and self-defense.” The State was also given Mr. Smith’s address and telephone number.

On January 23, 2014, the defense experts Gaylan Warren and Robert Smith viewed the physical evidence in this case. The assigned deputy prosecutor was present.

On February 28, 2014, defense counsel filed DEFENDANT’S MOTION ON MOTIONS

IN LIMINE.4 Defense counsel argued that “Allowing untimely motions that exclude evidence without the required notice denies the defendant the right to a fair trial.”5 Defense counsel went on to argue the following:

1 Emails can be provided. 2 See the court file. 3 The defense has a copy of the Defendant’s Disclosure of Lay and Expert Witnesses stamped “Received” by the Prosecutor’s Office. 4 See the court file. 5 Defendant’s Memorandum of Authorities in Support of Defendant’s Order on Motions in Limine, page 1. DEFENDANT’S RESPONSE TO STATE’S Page 2 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 The defendant has a right to a fair trial, fair notice, and fair procedures. He cannot be expected to waste time anticipating what motions might be filed on the day of trial, do last minute research immediately before or during the trial, or seek an eleventh-hour continuance in order to respond to an untimely motion excluding evidence or argument.6

Defense counsel moved that this Court not hear any motions in limine that are not filed at least five days prior to trial (excluding weekends) in accordance with the Rules of Criminal

Procedure.

On March 3, 2014, defense counsel emailed its PROPOSED CRIMINAL TRIAL

MANAGEMENT JOINT REPORT to the deputy prosecutor assigned to the case. Defense counsel again noted that Gaylan Warren and Robert Smith would be testifying as expert witnesses.7

The Pretrial Hearing took place on March 5, 2014 and a CRIMINAL TRIAL

MANAGEMENT REPORT was filed, noting that Gaylan Warren and Robert Smith would be testifying as witnesses.8

On March 20, 2014, the State filed its TRIAL MEMORANDUM with its motions in limine.

The State did not attempt to exclude Robert Smith from testifying.9

On March 23, 2014, defense counsel by email again informed the State that the defense would be calling Robert Smith and Gaylan Warren as expert witnesses. Again, the State was informed that Mr. Smith would be testifying regarding “response time, use of deadly force, and self-defense.” Defense counsel included the Curriculum Vitae (CV) of the experts.

On March 26, 2014, defense counsel filed its RESPONSE TO STATE’S TRIAL

MEMORANDUM AND MOTIONS IN LIMINE arguing that Robert Smith and Gaylan Warren should not be excluded from the “proceedings” as they were expert witnesses who would be

6 Id. 7 Emails available. 8 See court file. 9 See court file. DEFENDANT’S RESPONSE TO STATE’S Page 3 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 assisting defense counsel and, therefore, absolutely necessary to Gail Gerlach’s defense.

Again, with more detail, the State was informed that Use-of-Force Expert Robert Smith would be testifying as to the following:

“ … response time, use of deadly force, and self-defense.” Within those areas, Mr. Smith will testify as to physiological and psychological effects the chain of events can have on perception of threat, and what effects involvement in a shooting will have on the recall and accuracy of a shooter’s memory immediately after the event, and while under the influence of the event.10

The State also moved in limine to exclude any law enforcement protocol regarding an officer-involved shooting. Defense counsel responded:

The Defense Use-of-Force Expert will testify, among other things, about the effect involvement in a shooting has on an individual, and why law enforcement agencies wait before questioning an officer in order to get more accurate statements.11

On March 26, 2014, the State requested by email that defense counsel, “would authorize

Mr. Smith to email me copies of his training materials on self-defense/use of force/use of deadly force.”12 Defense counsel responded that the materials would have to be reviewed first which could take some time. Robert Smith was contacted, and he emailed to defense counsel reams of training material.13

On March 26, 2014 at approximately 2:00 pm, the State filed a SUPPLEMENTAL

MOTIONS IN LIMINE asking that this Courtto, “exclude testimony from the defense expert witness on “the effect involvement in a shooting has on an individual. This information is not relevant to the issue of self defense (sic) and has the danger of confusing or misleading the jury.”

III. ARGUMENT

10 DEFENDANT’S RESPONSE TO STATE’S TRIAL MEMORANDUM AND MOTIONS IN LIMINE at page 3. 11 Id. at 11. 12 Email available. 13 Id. DEFENDANT’S RESPONSE TO STATE’S Page 4 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 A. THE STATE MISCHARACTERIZES ROBERT’S SMITH’S TESTIMONY. WASHINGTON STATE HAS LONG REALIZED THE UTILITY OF THIS TYPE OF EXPERT TESTIMONY AND ALLOWED ITS ADMISSION. ROBERT SMITH’S TESTIMONY IS RELEVANT AND WILL BE HELPFUL TO THE TRIER OF FACT.

The State challenges the testimony of Use-of-Force Expert Robert Smith as irrelevant and because the State believes it may confuse the jury.14 Strikingly, the State has offered absolutely no facts of any kind and no authority whatsoever for its conclusory declarations.

The admissibility of expert testimony under this rule depends upon whether (1) the witness qualifies as an expert, or (2) the expert testimony would be helpful to the trier of fact.15

Robert Smith’s knowledge, skill, experience and education are summarized in his CV.

The State is not challenging that Mr. Smith is an expert.16 ER 702. Jurors cannot be expected to have had dealings with hundreds of traumatized individuals, studied the effects of shooting- induced trauma, or taught thousands of law enforcement officers (including training the majority of the officers testifying in this case) about the effects of shooting-induced trauma. The information is clearly outside the competency of a layperson police officers would not be extensively train on how to deal with the subject..

Washington State has long allowed defendants to present expert testimony as to the defendant’s perception of the victim.17 As noted above and in the DEFENDANT’S RESPONSE

TO STATE’S TRIAL MEMORANDUM, Use-of-Force Expert Robert Smith will, among other things, be testifying as to physiological and psychological effects the chain of events can have on perception of threat, and what effects involvement in a shooting will have on the recall and accuracy of a shooter’s memory, immediately after the event and while under the influence of the event. Mr. Smith will also offer an opinion as to whether Gail Gerlach’s perception of the

14 State’s SUPPLEMENTAL MOTIONS IN LIMINE at page 1 of 1. 15 ER 702. 16 Robert Smith’s CV is attached. 17 State v. Allery, 101 Wash.2d 591, 597 (1984) (testimony concerning admissible to explain defendant's perception of the threat and the reasonableness of the force employed in self- defense against the threat). See also, State v. Ciskie, 110 Wn.2d 263, 265 (1988). DEFENDANT’S RESPONSE TO STATE’S Page 5 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 threat Brendon Kaluza-Graham posed was affected by the chain-of-events set in motion by

Brendon Kaluza-Graham’s actions in this case. His testimony will help the jury to understand the reasonableness of Mr. Gerlach’s perceptions.

Use-of-Force Expert Robert Smith will also testify as to the effect involvement in a shooting has on an individual, and why, because of the trauma inherent in an officer-involved shooting, law enforcement agencies wait 72 hours before questioning an officer after an officer- involved shooting in order to get more accurate statements. If the Spokane Police Department

(and the majority of law enforcement agencies in the United States) mandate a 72-hour wait to offer a trained law enforcement officer time to reflect, secure representation, and rest, how can the State now argue that the jury should not be told why Gail Gerlach’s statements may have been affected by the shooting?18 Mr. Smith will also testify his opinion as to whether Gail

Gerlach displayed the behavioral and emotional characteristics of a person who had been traumatized.

To summarize this testimony as “the effect involvement in a shooting has on an individual” is unfair. To deny Gail Gerlach the expert testimony that goes to the reasonableness of his perceptions of threat denies him a fair trial. The motion must be denied.

18 Interestingly, the Spokane Police Department appears to have recently discussed this policy with news agencies. http://www.krem.com/news/Protocol-for-Spokane-authorities-after-officer- involved-shootings-252770911.html DEFENDANT’S RESPONSE TO STATE’S Page 6 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 B. THE STATE ARGUES THAT THE DEFENSE EXPERT CANNOT TESTIFY BECAUSE OF “THE DANGER OF INVADING THE PROVINCE OF THE JURY.” ER 704 STATES THAT “TESTIMONY IN THE FORM OF AN OPINION OR INFERENCES OTHERWISE ADMISSABLE IS NOT OBJECTIONABLE BECAUSE IT EMBRACES AN ULTIMATE ISSUE TO BE DECIDED BY THE TRIAL OF FACT.” NEVERTHELESS, THE STATE OBJECTS.

“The State also moves to exclude any expert testimony on the issue of self-defense and when it is appropriate” because, “any expert testimony on this issue would be supernumerary given the instructions and has the danger of invading the province of the jury.” 19 The State’s motion to prohibit the testimony of Use-of-Force Expert Robert Smith conflicts with the plain wording of ER 704 and must be denied.

C. THE STATE’S MOTION IS UNTIMELY AND SHOULD NOT BE HEARD. ALLOWING ELEVENTH-HOUR MOTIONS TO EXCLUDE EVIDENCE, FORCING DEFENSE COUNSEL TO DEVOTE THE REMAINING FOUR DAYS BEFORE TRIAL TO RESPOND TO A MOTION, IS AN ABUSE. ABUSE SHOULD NOT BE REWARDED.

The State had ample notice of the nature of Use-of-Force Expert Robert Smith’s testimony on January 10, 2014, when the Defense filed the DEFENDANT’S DISCLOSURE OF

LAY AND EXPERT WITNESSES explaining the nature of Mr. Smith’s testimony. On March 3,

2014, The State was again reminded that Mr. Smith would be testifying when the Defense emailed its PROPOSED CRIMINAL TRIAL MANAGEMENT JOINT REPORT. On March 5,

2014, the JOINT CRIMINAL TRIAL MANAGEMENT REPORT was filed yet again reminding the

State Mr. Smith would be testifying. On March 23, 2014, in order to forestall any delays on the day of trial, defense counsel, for the fourth time, reminded the State that Mr. Smith would be testifying as an expert and again restated the nature of his testimony. Despite having absolutely no obligation whatsoever to do so, defense counsel also attached a copy of Mr. Smith’s CV.

19 State’s SUPPLEMENTAL MOTIONS IN LIMINE, page 1 of 1. DEFENDANT’S RESPONSE TO STATE’S Page 7 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 On March 26, 2014, defense counsel submitted its RESPONSE TO STATE’S

TRIAL MEMORANDUM, again stating that Mr. Smith would be testifying as an expert and the nature of his testimony. The fifth time appears to have been the charm.

On March 27, 2014, the deputy prosecutor assigned to this case called Mr. Smith and requested materials regarding his training and filed his SUPPLIMENTAL MOTIONS IN LIMINE.

The motion is untimely. Defense counsel was aware that this is sometimes typical and had filed its MOTION ON MOTIONS IN LIMINE, anticipating something exactly like this, explaining that untimely motions do not have to be heard. This motion should not be heard.

Despite not having challenged Mr. Smith’s qualifications, the State can still voir dire Mr.

Smith if it feels that he does not have the proper expertise. The State can object to questions that it feels are inappropriate or in violations of the Rules of Evidence.

Alternatively, this Court could continue the trial for a week to give defense counsel adequate time to fully respond to the State’s SUPPLEMENTAL MOTIONS IN LIMINE.

IV. CONCLUSION

Defense counsel has had to spend the better part of an entire day with four days left until trial responding to the State’s new, untimely motion. Defense counsel must now wade through reams of training materials before they are forwarded to the State. The State should not be rewarded for its inexcusable neglect.

DEFENDANT’S RESPONSE TO STATE’S Page 8 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986 If the State argues that it was not aware of the nature of Mr. Smith’s testimony despite being given notice, this Court should ask the State the following:

 Why didn’t you ask for the CV of Mr. Smith or contact Mr. Smith, or ask defense counsel after you were given notice on January 10th?  Why didn’t you ask for the CV of Mr. Smith or contact Mr. Smith, or ask defense counsel after you were given notice on January 23rd?  Why didn’t you ask for the CV of Mr. Smith or contact Mr. Smith, or ask defense counsel after you were given notice on March 3rd?  Why didn’t you ask for the CV of Mr. Smith or contact Mr. Smith, or ask defense counsel after you were given notice on March 5th?

DATED this 28th day of March 2014.

David Stevens, Attorney for Gail Gerlach WSBA# 29839

ATTORNEY’S CERTIFICATE OF SERVICE

Pursuant to CrR 8.4 and CR 5(2)(A), I certify that I caused a copy of this document to be personally served to the Prosecuting Attorney’s office on this 286th day of March, 2014. (GR 13)

Signed by: ______. Richard F. Lee, WSBA # 32329

DEFENDANT’S RESPONSE TO STATE’S Page 9 SUPPLEMENTAL MOTIONS IN LIMINE Richard F. Lee, Attorney at Law P.O. Box 7550 Spokane, WA 99207 (509) 536-0986