A Gunnison County jury voted 11-1 to acquit Frederick Mueller, but that lone vote is enough to have the murder case against the prominent Texan declared a mistrial.

 

The hung jury means it's now up to the prosecution to determine whether they want to try Mueller again. If so, they have to do it quickly, and they'll likely do it in another jurisdiction. Montrose was discussed as a possible option in court on Saturday, when the verdict was read.

 

It also means that Mueller will likely be home in Texas by Monday. Judge J. Steven Patrick  set bond at $150,000. The only apparent hold-up in setting Mueller free was that turning in his passport was a condition of bond, and his passport was in Texas and couldn't immediately be handed over.

 

A hearing was set for Tuesday, Feb. 19, in Gunnison District Court to determine next steps in the case. 

 

Mueller was accused of killing his wife, Leslie, in May of 2008 in a remote part of Hinsdale County, outside of Lake City. He's contended that she accidentally fell off a small cliff, plunging to her death in shallow Cottonwood Creek.

 

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John Schwappach, orthopedic surgeon, was called by prosecution Feb. 5 to refute testimony of defense witness Dr. Werner Spitz, a forensic pathologist.

Dr. Schwappach told the jury he  has treated thousands of patients who have received injuries as a result of falls from ground level up to the height of two story buildings. He said the most common fall height of the people he has treated have fallen from around 10 to 15 feet. Schwappach explained that a fall from 10 to 15 feet in height is a serious fall and that those people are usually injured in some way.
 
Schwappach said a person falling from a height of 10 feet landing on their feet on a flat hard surface would at the least have bruising to the bottoms of the feet, even with shoes and socks on. In his experience the injuries received in a fall from this height and landing on their feet have been injuries that ranged from fractures of the foot bones, heel bones, bones in the ankle area, lower leg bones, femur bones in the upper legs, pelvic area bones, and compression fractures to the lumbar area of the lower spine.
 
Schwappach explained that a fall where a person travels straight down and lands on their feet on a flat surface is an ideal scenario and very seldom happens in an accidental fall. This scenario usually happens when the fall is a planned fall like jumping from a burning building or a suicide jump. He pointed out when a person falls straight down and lands on their feet they go from a standing position into a squatting position and back up to a standing position when they hit the ground, which helps in the body absorbing the energy of the fall. They will normally not receive hand, wrist and upper body injuries because they are not using the hands to block the fall. This type of fall places the body's absorption of energy in the feet, ankles, legs and lower back/lumbar spinal area and this is where typically injuries occur. He added the higher the height from which a person falls will result in more injuries occurring and increase the severity of those injuries.
 
Schwappach told the jury in most accidental falls other body parts make contact with a surface at the end of the fall and not the feet. So when landing on the head areas, hands and upper torso areas of the body the injuries they receive can be severe in nature. These injuries can include bone fractures, abrasions, lacerations, soft tissue bruising, facial injuries and skull fractures. If the person lands on an uneven surface there is a more probable chance of these types of injuries being incurred. Hand, wrist, lower arm, elbow, upper arm and shoulder area fractures occur during a fall because people instinctively try to break such falls. If the person's face is first to make contact with a hard surface during a fall it is normal to find injuries such as orbital fractures, broken noses, broken jaws, knocked out teeth, lacerations, abrasions, soft tissue bruising and skull fractures. He added he would expect to find some of these injuries to a person that had fallen 10 feet onto a hard granite rock surface. The more uneven the surface is the higher probability of these injuries occurring.
 
Schwappach led the jury through a set of autopsy photos and x-rays of Leslie Mueller's body taken during her autopsy, pointing out the complete lack of any soft tissue bruising, lacerations, abrasions, bone fractures and signs of any ligament damage to her feet, ankles, lower legs, knees, upper thighs, pelvic area, upper torso, shoulder areas, hands, wrists, lower arms, elbows and upper arms. He said the complete lack of injuries to Leslie's body is not consistent with a fall of 10 feet or more onto a hard granite surface.
 
Using the same autopsy photos of Leslie Mueller's face and x-rays of her skull and spinal area at the base of her skull that defense witness Dr. Werner Spitz had used during his testimony to the jury, Schwappach first pointed out to the jury there was no fracture near the base of her skull as Spitz had said there was. He also used a second frontal x-ray of Leslie's skull taken during her autopsy and pointed out there were no deformities to spine at the base of her skull indicating injury. Schwappach told the jury he has viewed tens of thousands of X-rays during his medical career and there are no fractures or bone injuries to Leslie's skull or spinal column in those x-rays that Spitz had told them was there during his testimony.
  
Schwappach told the jury he did not agree with Dr. Spitz that the injuries to Leslie's face and forehead were from a single fall onto a flat surface. He pointed out in the photos the different injuries were on both sides of the face, both sides of the forehead and on the right side of her face. He explained when the head contacts a flat surface the injuries will be in the local plane of where the contact took place. Since the head is oval in shape the flat surface contact can only be to either one side of the head, the front of the head, the top of the head or back of the head. The contact with a flat surface cannot be to more than one of these areas. So if the contact of Leslie's head with the flat surface was to the right side of her head therefore the front, top, back and left side of her head could not come into contact with the flat surface and would not have injuries to them.
  
Schwappach went on to say if Leslie's head made contact with a flat or uneven hard granite surface from a fall of 10 feet or more he would expect to see injuries such as a fractured nose, a broken jaw, knocked out teeth, orbital fractures, soft tissue bruising, abrasions, lacerations and skull fracture. He said the minor injuries to Leslie's head and face area in his opinion were not consistent with a fall from 10 feet or more onto a hard granite rock surface.
  
Schwappach explained to the jury the momentum of Leslie's fall would have propelled her in the same direction after she landed on the rock and it would be impossible for her to stop that momentum and then fall in an entirely different direction. Schwappach gave them an example of when a gymnast ends their routine they want to "stick" the landing that ends the routine. Even for a trained gymnast this is very difficult to do, even on the soft flat cushion surface they land on. This is because their momentum is carrying them past the landing point where they want to "stick." Their momentum is in the same direction going past the landing point as it was before the landing point.
 The defense asked Schwappach if the direction of her fall could have changed if she was twisting in the air during the fall. He replied it would still be impossible to change the direction of her fall to another direction because her momentum would still be the same. He added that if she was twisting while in the air during the fall that would increase the probability of her receiving injuries from the fall.

(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)

 

The prosecution in the Mueller murder trails called as a  rebuttal witness CBI Agent Jack Haynes on Monday afternoon, Feb. 4.

Defense witness Dan File in his testimony told the jury the area reported where Leslie Mueller fell on the rock next to Cottonwood Creek could only be accessed with the aid of a rope. CBI Agent Haynes told the jury he had conducted a test on Aug. 5, 2009 of a group of six to eight people descending down a rock stair step trail just off the left side of the spot Leslie was reported to have fallen off. He said he videoed that test. He explained he did the test because Fred Mueller had told Rosa Perez during the walk-through at the site interview on May 4, 2008 there was no way to get down to where Leslie had fallen next to the creek.

He had instructed the group to take the visible trail to the left of the site down to a set of rock stair steps and take them down to the next level, where the camera had been found just above where Leslie landed on the flat rock just above the "V" in the creek. He told the jury this was also the trail the bloodhound and handler had gone down when they were working area in May 2008. 

A still photo taken from across the creek was shown to the jury of the site showing where Leslie was said to have fallen from, the cliff wall, the rock ledge below, the rock she fell on and the creek running next to it. Haynes pointed out in the photo the location of the rock stair step trail and the route the group in the video would be taking to the ledge below and to the rock Leslie was reported to have landed on. The video of the test was shown to the jury of the group coming down the rock stair step trail. The video showed that none of the people in the group had any difficulties coming down the trail or going back up the trail. The decent down the trail to the creek below took less than a minute to complete.
 
Haynes showed other photos taken during the investigation of the areas along Cottonwood Creek, pointing out access was not difficult to the pools and water falls of the section of the creek Leslie was reported to have floated through. He pointed out game trails that went to these locations and had himself walked these trails with out any difficulty during his investigation there. He also used aerial photos to show the jury the locations the ground photos were taken from and the areas being photographed. Using the aerial photos he pointed out the Cottonwood Creek road with the creek running next to it, the upper campsite, the take-out point where Leslie's body was brought out of the creek below to the waiting vehicle parked nearby that transported her back to the Cataract Trailhead.
 
In two of the still photos taken at the takeout area, Haynes pointed out spray painted circle with an "X" in it and told the jury that was where Sheriff Bruce told him the plaid shirt was found on May 4, 2013. The shirt was on the edge of the road and a clump of trees were a short distance behind that spot and Cottonwood Creek just behind the trees. Haynes told the jury Leslie's body was found in the creek behind the clump of trees.
 
The defense asked Haynes why in the tests the people in the video were not told to run down the trail like Fred Mueller would have been doing after seeing his wife go over the cliff. The defense told Haynes it looked like the people were relaxed when going down the trail and not in a panic like Fred Mueller would have been on May 3, 2008. Haynes replied the test was done only to show there was an easy way to get to the area below the cliff where Leslie was said to have fallen. The defense asked Haynes if there was ice or snow on that trail when he did the test on August 5, 2009. Haynes replied there wasn't. The defense asked Haynes if he found any footprints, scuff marks or trace evidence on or near the trail areas that went to the different pools, waterfalls and other sections of the creek that would have placed Fred or Leslie being on those trails on May 3, 2008. Haynes replied that he had not found any evidence putting them on any of the trails. The defense asked if any photos had been taken of the plaid shirt at the location where it was found and when it was found. Haynes replied no photos were taken when it was found.
 
The prosecutor asked Haynes if there was any snow or ice on the rock stair step trail on May 8, 2008, when he was there and he replied there was no snow or ice on the trail then. He was asked if there was snow or ice on that trail on May 3, 2008 when Leslie fell over the cliff.  Haynes replied he was not there on May 3 and had to rely on the statements of the witnesses that were at the site at that time, who reported there was not any snow or ice on the trail on May 3.   
 

Defense character witness Chris Fischer took the stand in the Mueller murder trail Monday, Feb. 4. Fisher told the jury he was an employee of Mueller Steel, Inc.,  and friend of Frederick and Leslie Mueller. He described the friendship close and of his family taking vacation trips, going camping with the Muellers and their children.

 

Fischer also talked about taking business trips with Fred and how Fred always wanted to get the trips over with so he could get back home to Leslie and the family. His observations during the years of being around the Muellers was that they were close and at no time ever saw any violent behavior or verbal abuse by either Fred or Leslie towards one another. Fred was always calling Leslie, she would call him frequently and visit him at work. He said Fred was very attentive to Leslie.

 

After Leslie's death Fred seemed lost to Fischer and very emotional most of the time. The defense asked him to describe the meeting Fred had with his employees at Mueller Steel, telling them of Leslie's death. Fischer told the jury during the meeting when Fred was explaining what had happened he never mentioned anything about a dog leash being involved in the cause of her accident. Fisher went on to say he has never heard Fred mention a dog leash when talking to anyone or him about the accident.

 

Defense character witness Chico Denis, Leslie Mueller's father, also testified. Denis told the jury he has known Fred for 33 years and approved of Leslie marrying Fred. Fred has been a good husband to his daughter and father to his grandchildren. Chico and his wife, Virginia, live close to San Angelo and have spent a lot of time over the years with Fred, Leslie and their children going on trips, camping and visiting in one another's homes. Denis said he never saw any signs of violent or abusive behavior between Fred and Leslie during all of the years they were together. He knew of no problems in 2008 between Leslie and Fred.

 

He described Fred as being lost, grieving and crying a lot after Leslie's death. Dennis said he and Virginia are still close to Fred and the rest of the family.

 

Defense character witness Virginia Denis, Leslie Mueller's mother, told the jury Fred spent a lot of time with her after Leslie's death and described him as being like a "lost puppy" at that time. She said she and Leslie were close and believes Leslie would have confided in her if there were any problems between Leslie and Fred. She never saw any signs of Fred and Leslie being violent or abusive toward one another during all the years they were together.

 

Fred was a kind and loving father to their children and a wonderful provider for them and Leslie. She said Fred, as busy as he was, took care of most of the planning and attending their children's activities when they were growing up due to Leslie being so busy with her medical practice and having taken an oath to care for her patients. During the years Virginia has know Fred, she has observed that he does not do well in stressful situations, especially if any of the children get sick. Virginia went on to say Fred would panic and Leslie, who was always in control, would have to settle him down. Leslie could handle stressful situations better probably because of the doctor in her.
Virginia told the jury she was glad Fred remarried after Leslie's death and approved of his marriage to his current wife, Wendy. He had brought Wendy out to Virginia's home to meet her before they married. Virginia believed Fred needed someone to help bring him out of his grief and to go on with his life.

 

The prosecutor questioned Virginia about her statements to an investigator that Fred and Leslie did have arguments and some of them had taken place in public. Virginia replied it was a surprise when she was contacted and interviewed so she did not say very well what she meant to say about the arguments between Fred and Leslie. She said the arguments between the two were usually over minor things, not big things, and they worked them out. The public arguments were over minor issues that were not personal -- like arguing over a Bible verse and what it meant in a church Bible instruction class. Virginia advised Leslie that they should keep their arguments private and not argue in public when they had differences. 

 

Judge Patrick asked Frederick Mueller if he was going to take the stand to testify on his behalf. Mueller replied that after consulting with his attorneys and his family he had made the decision not testify. The defense then rested their case.
The court was recessed until the afternoon, when prosecution rebuttal witnesses would begin testifying.



Defense witness Justin Mitchell's testified in the Mueller murder trail on the morning of Jan. 31. Mitchell told the jury he was living in Lake City on May 3, 2008, working for a kayak company and was a member of the Hinsdale County Search and Rescue Team at that time. Mitchell said he had been kayaking since he was 10 years old, had participated in the Kayaking Olympics, and had been sponsored by four different kayak companies. He said he had kayaked the stretch of Cottonwood Creek where Leslie Mueller drowned 10 to 12 times prior to May 3, 2008.

Mitchell said he was paged on the evening of May 3, 2008, to respond to a drowning incident in Cataract Gulch outside Lake City. He went to the firehouse and responded alone in his fire truck to the Cataract Gulch trailhead. When he arrived at the trailhead he noticed other responders going to the Cottonwood Creek area. Once he saw where they were heading he then believed he knew where the drowning may have taken place. He went to the area where the victim was located and observed EMS personnel performing CPR on the victim, Leslie Mueller. He then helped set up the rope system that would be needed to assist in bringing Leslie up the steep bank of the creek to the area where a vehicle was waiting to transport her.
The defense asked him if he had entered the creek that evening and observed the water level and flow of the creek at that time. Mitchell replied that he had and the defense asked him if he could have kayaked the creek on May 3, 2008. Mitchell replied he could have kayaked the creek that day. Mitchell went on to explain to the jury that kayakers, when kayaking that section of Cottonwood Creek, put in at a waterfalls area not far upstream from where Leslie fell and went into the water. The kayakers then kayak down through a series of waterfalls and pools in that section of the creek and take out where Leslie's body was recovered.
 
The prosecutor asked Mitchell even though he could kayak the creek that day, would he have kayaked the creek then? Mitchell replied that he would not have kayaked that day because from his experience and observations the water level and flow was "minimal." He stated even though a kayak can get down almost anything the ride would have been bumpy and could have caused damage to the equipment, but it could have been done. He was asked when was the best time to kayak the creek and he said once the snowmelt run off begins to recede, causing the water level in the creek to lower and the flow of the creek to slow down. He added that it is too dangerous to kayak the creek at the peak of the snow run-off, with all the boulders and 10-foot waterfalls to navigate due to the volume and speed of the water moving through that area of Cottonwood Creek.

Mitchell was asked if he remembered seeing a plaid clothing garment on or near the road when he was going from the trailhead area to the area where Leslie was brought out of the creek. Mitchell said he remembered seeing a plaid clothing garment but could not remember just where it was at when he saw it.    
   
(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)

Defense character witness Virginia Heare testified in the Mueller murder trail Jan. 30. Heare told the jury she had been friends with Fred and Leslie Mueller since 1991 after meeting them through Heare's husband. He and Leslie were partners in their medical firm. Heare described herself as being Leslie's best friend before her death in May 2008 and they shared their personal feelings with one another. She described how they rode horses together, having family get-togethers, family camping trips and traveling on vacations with Leslie and Fred during all those years.
 
Heare said she was never aware of any problems between Fred and Leslie during the time she has known them. Heare described Leslie and Fred as being opposites but complimenting one another and enjoyed being together. She said Leslie was a horseman and Fred is not but he built her a barn to keep her horse in.

Heare said she had visited Leslie and Fred at their home near Lake City a number of times and they both loved it there. She said she and Leslie would trailer their horses from San Angelo to there. Sometimes on those trips Leslie would go ahead of her, trailering her horse alone. Heare told the jury Leslie loved riding the Cataract Gulch trail near Cottonwood Creek on her horse.
 
Heare described a trail ride in 2007 on the Cataract Gulch trail with Leslie, their friend Mary Stansell and some other women where Stansell's horse was trying to turn around and fell 20 to 30 feet over a cliff edge. Stansell hit a boulder below and the horse ended up being penned. Leslie checked Stansell out and found she was not injured from the fall. Leslie rode her horse back to the trailhead to get help. Later, Fred rescue people and a sheriff's deputy arrived at the scene and the horse was able to be freed. Neither Stansell or her horse were hurt during the incident.
 
Heare told the jury Leslie had fallen off her horses fairly often and had suffered head injuries from some of those falls. She described one fall she witnessed when Leslie was bucked over the head of her horse landing on the top of her head. Even though Leslie was wearing a helmet she was knocked unconsciousness from that fall, then going in and out of consciousness and had to be taken to the emergency room. She said Fred felt the horse was too dangerous for Leslie to ride and it was given away.
 
Heare said she and Fred have spent more time together since Leslie died. She explained they spend that time talking about Leslie and how much they both miss her. Fred mostly talks about his and Leslie's relationship and how much he misses her. Even when having problems with his kids Fred would ask Heare what she thought Leslie would have done.  
 
The jury asked Heare if Fred and Leslie ever took separate vacations. She replied they did at times, his being business related vacations and her vacations were to their home near Lake City usually by herself.

(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)


Defense witness Jonni Joyce, certified Master Trainer of Canines, Master Dog Handler and Canine Instructor Consultant, testified in the Mueller murder trail Jan. 30. Joyce told the jury she had been in law enforcement for 25 years and was a canine officer during most of those years and later a detective. She currently owns and operates a canine training and canine trainer consulting firm in South Dakota. Joyce said she had reviewed the investigation case file, viewed the video of Deputy Nelson's search with his blood hound dog at the site and had visited the site on Aug. 14, 2012.
 
The video was again played for the jury and Joyce explained what the dog and Nelson were doing during the search. Joyce said Nelson's handling of his dog was excellent and she agreed the information acquired during their search of the area was correct, except at one area the dog stopped at what Nelson referred to as being a scent pool area left by Leslie. She said from her observation the dog was reacting to a "critter scent" at that location. She said the dog followed Leslie's scent to the edge of the cliff where she was reported to have fallen from and the scent ended there, not returning to the road above.
 
Joyce was given a photo taken on May 3, 2008, by Mueller of Leslie kneeling with her border collie, "Gracie," at the site she was reported to have fallen from and asked to tell the jury what she saw in the photo pertaining to "Gracie." Joyce said it was evident "Gracie" was not comfortable, stressed and did not want to be there. Joyce pointed out Leslie was holding "Gracie" in a bear hug and using what is termed as an "ear pinch" to control "Gracie" so she would not move. She also pointed out "Gracie's" foot pushing off on Leslie's leg, which indicated to Joyce "Gracie" was wanting to get away from the location. 

Joyce told the jury that "Gracie." being a 6 month old puppy, near a steep drop off with the sound of the waterfalls behind her, would be very stressed and want to get away from that area. She said dogs do not have depth perception like people do and can be scared when being near steep drop-offs and loud swift running water, especially a puppy. 

Joyce agreed with the prosecutor the photo just captured a moment there at the site where Leslie was reported to have fallen from. Joyce agreed she did not know what had taken place at the site, before or after the photo was taken and did not know what the relationship between "Gracie" and Leslie was.

(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)

Defense witness Dr. Francesco Pia, lifeguard trainer and psychologist, testified in the Mueller murder trail Jan. 30. Dr. Pia told the jury he became a lifeguard in the 1960s working at the New York beaches and later worked 40 years as an American Red Cross lifeguard trainer. His duties were training the lifeguards on how to identify signs a person was drowning and to evaluate how they performed when under stress during a drowning incident. Dr. Pia stated he had studied thousands of drowning incidents during his career. 
 
Dr. Pia explained to the jury there were two types of drowning, passive and struggling. Passive drownings are when someone drowns in a facedown position, not moving and floats on the surface of the water. The other is struggling drownings, where the person is going under the surface of the water and is fighting to get air into their lungs but breathes water into their lungs instead. He stated the majority of drowning victims do sink.

He told the jury from reviewing the investigation reports of Leslie Mueller's death he believed her drowning was a passive drowning incident and her body would have floated on the surface of the water from the location she went into the creek to the location where her body was found.
 
Dr. Pia told the jury people under stress can make decisions and can give responses to questions that do not make sense, even well trained and certified lifeguards. He explained this is known as "Acute Stress Response" that is triggered by an acute stress incident, such as a drowning incident one may witness or be part of. He said the body responds to that life or death stress information by increased heart rate, increased blood pressure and increased breathing rate as adrenaline kicks in. The person begins to process the information he or she is receiving during the incident very rapidly, like seeing snapshots of what is taking place. People will process and react to this information differently due to their personalities and training.
 
Dr. Pia said when people think rationally, as in normal situations, the information they receive is connected. But in stressful situations the information received is like snapshots with gaps between them. The person will then try to fill in those missing gaps of information between the snapshots and that is known as "experiential processing." They will begin attempting to come up with a story that puts everything together that makes sense to them. He said they then move into what is known as "confirmation bias" stage, which is the tendency to look for information that confirms what they have come up with to fill the gaps whether it is true or false. They will disregard any information they receive that disproves what they have come up with to fill the gaps.

The next stage of the process is known as "belief perseverance," where the person will not change their story of what happened during the acute stress incident even after seeing proof their story is wrong.
 
Dr. Pia said this is not intentional, but just how the human mind works during acute stressful incidents and why an eye witness' report of a stressful incident may not be correct in what actually took place during the incident.
 
Dr. Pia was asked by the prosecutor if he had any direct experience with any high mountain swift water drowning incidents. Dr. Pia replied that he did not and that his experiences with drownings were in the Long Island, N.Y. beach areas. 
 
(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)
 

 

Hydrologist Scott Fifer testified for the defense on Jan. 29 and 30. Fifer has 40 years of experience as a hydrologist and is the owner/president of Resources Engineering in Glenwood Springs, Colo., a water rights consulting firm.

 

Fifer said he was contacted by the defense in April 2012 to assist them in defending Frederick Mueller. He was provided CBI reports that included reports of water flow and measurements of Cottonwood Creek by done by State Hydrographer Jerry Thrush.

Fifer told the jury a true measurement of water levels and flow speed cannot be done by measuring marks on rocks and is not the industry standard. He went on to say the industry standard is to set up a stream staff gauge to measure water levels and monitor the flow of a creek or river. First the staff gauge is attached to something permanent so it does not move then other instruments are used to measure the speed of the flow of water in cubic feet per second measurements. Once the water level is recorded then the other instruments are used to measure the speed at that water level and a baseline is established.

Fifer said without Hydrologist Wayne Shields' reports of the water level measurements and flows done on May 9, 20013, there was no baseline for Thrush to start with in August 2009 to calculate correctly what the level and water flow speed would have been on May 3, 2008.
 
Fifer explained to the jury that the "trough" Thrush used to establish the water level and create his flow speed baseline from was part of a "weir" -- and a "weir" is measured differently for flow speed. He described a "weir" as having a pool behind it and the pool depth and pool area effect the flow speed. He said the water level leaving the "weir" can be the same from year to year but the flow speed can be different due to the pool depth and area changing over time due to high water flow periods. During high water periods the small river rock and other debris resting on the bottom of the pool can either be added to or scoured out of the pool. Fifer demonstrated by doing a drawing how a "weir" needs to be measured accurately by placing the staff gauge upstream in the pool 6 to 8 feet from the lip of the "weir" that he referred to as "the critical reach of a weir."

Fifer described Cottonwood Creek to be a "cobble/gravel" water course due to the erosion taking place above and along the water course that adds dirt, debris, rocks and gravel into the water flow during heavy rains and the snow melt period. He said this process of adding material into the water flow and the changes in water flow speeds and water levels changes the water course. This can change the channel direction and move or add larger rocks, thus changing flow speed and water depths along the water course.

Fifer used photos taken on May 3, 2008; May 4, 2008; May 6, 2008; Aug. 4, 2009; Aug. 5, 2009 and in April 2012 to point out changes in the water course that has taken place since May 3, 2008.
 
Fifer said he had set up a water study station on Cottonwood Creek on April 27, 2012, to monitor the flow rates and levels of the creek. During the time he had the station in operation he visited the site 12 times to retrieve data the station had produced. He was able to develop a data curve to compare with historical data, 2008 data, 2009 data and data during 2012 from the a historical gauge station close to the site and the Gateway gauge station 32 miles below Cottonwood Creek that measures water from all of the watershed Cottonwood Creek is part of. Fifer said he also used historical data, 2008 data, 2009 data and 2012 data from the Slumgullion snow report station in helping to develop the data curve. The snow report station records daily snow depths, water content in the snow and temperatures.
 
Using photos and numerous graphs for illustration, Fifer told the jury his study showed there was a pulsating effect of water levels and flow rates on Cottonwood Creek during May 3, 2008. He explained this was due to snow melting during the day -- increasing the water flow and levels -- and freezing at -- night decreasing the flows and levels. Fifer says normally the water levels and flows increase in the evening hours and decrease in the morning hours due to the distance the melted water travels to enter the water course. He pointed out the CBI photos and videos were made during the morning hours between 10 a.m. and 1:30 p.m., when the water levels and flows would have been lower than during the evening hours.
 Fifer told the jury since there were no reports of the water measurements done by Wayne Shields on May 9, 2008, only the measurements of water depths and the creek width done by Justin Casey and his brother on May 4, 2008, could be any help in determining water level and water flow speed on May 3, 2008. Fifer said he found the measurements done by Justin and his brother to be accurate. Fifer's measurements during his water study in April 2012 of the depth of the water of the creeks current at the location where Leslie's body was recovered, and measurement of the width of the creek at that same location, were the same as the Casey brothers' measurements on May 4, 2008.
 
Fifer also said the creek "current vector" test done by Berg at the log Leslie's head was lodged under on Aug. 5, 2009 would have not been the correct "current vector" as on May 3, 2008. He stated since a section of the log had been removed by CBI in May 2008 the "current vector" would have moved about 3 to 4 feet to the left of where it would have been on May 3, 2008. The "current vector" on May 3, 2008 would have gone through the area where Leslie's head was lodged under the log -- not to the left of the log as it did on Aug. 5, 2009.
 
Fifer stated that from his experience and calculations using his water study data, the measurements taken by the Casey brothers on May 4, 2008, the historical data, the 2008 data, 2009 data the 2012 data from the two creek gauges, and data from the snow report station, his professional opinion is the water levels and water flow were substantially higher on May 3, 2008, than they were on Aug. 4 and 5, 2009, during the float test done by CBI and Berg. Fifer said from his calculations he believed the water flow speed on May 3, 2008, was flowing at 20 cubic feet per second -- which was about double water flow speed on Aug. 5, 2009.

Under cross examination, the prosecutor asked Fifer when making his calculation of the Cottonwood Creek water flow and water level on May 3, 2008, did he consider statements that the water level was higher on May 4 than on May 3, made by witnesses that were at the site on May 3 and 4? Fifer replied he had seen the statements but did not consider them because eyeball measurements are not reliable.
 
Fifer was asked if the Cottonwood Creek flow into the Gateway gauging station is only 5 percent of the watershed water that flows through the station daily and measured. He confirmed the Cottonwood Creek area covers only 5 percent of the watershed area that the Gateview gauging station receives water from daily. The prosecutor asked Fifer if it was true Fifer did his water study of Cottonwood Creek during a drought year with low water flow and low water levels and that 2008 was a high snowpack year that produced high water flows and high water levels. Fifer replied that was true.

Fifer was asked if in his report to the defense he had written rocks can be used as a gauge to measure water levels and he replied he had written that in his report. The prosecutor wanted to know if temperatures recorded at the snow report station were factors used in his calculations and Fifer replied they were not used. He went on to explain high mountain snow is melted by solar radiation and air temperature is not a factor in the melting of the snow.
  
Fifer agreed with the prosecutor he could not do the math that would enable him to say positively what the Cottonwood Creek flow speed was on May 3, 2008. He told the prosecutor he could demonstrate how he had calculated what he thinks it was, an estimated flow speed of 20 cubic feet per second.       
  
(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)
 

•••

 

 San Miguel County Sheriff’s Office Swift Water Rescue and Recovery expert Eric Berg testified during the morning of Jan. 28. Berg said he was contacted on May 7, 2008, by Colorado Bureau of Investigation to help with an investigation into the drowning death of Leslie Mueller on May 3.

 At the time, Berg was given a brief description of the incident and first visited the Cottonwood Creek area on Sept. 9, 2009. He said he used that visit to acquaint himself with the Cottonwood Creek area, the water course and possible hazards that might be a danger to those working in the water course during a planned float test using a mannequin and a live person.

Berg said he was responsible for the logistics planning, safety plans and developed the float test procedures for the tests, conducted on Aug. 5, 2008.Berg explained to the jury the video they would be viewing had been edited, was not in chronological order, included underwater video and would show the tests in geographical order.

 The video would begin with the tests using a mannequin and a live person at the “V” area, near the rock where Leslie Mueller was reported to have landed after her fall from the cliff on May 3, 2008. Then on to the tests conducted with the mannequin at the three different water falls and three different pools Leslie would have traveled through to where she was recovered on Cottonwood Creek.

The video would also include tests done with the mannequin and a live person just upstream from where Leslie’s body was found to where her body was found, Berg said.The jury was told the mannequin used during the float tests was designed for use in water only. Berg said the mannequin is designed so water can be added to simulate a dead body having a negative buoyancy.

The defense asked if the mannequin was thrown off the cliff at any time during the testing and Berg replied that it was only designed for water use and had not been thrown off the cliff. Berg said the mannequin was dressed as close as could be to how Leslie was dressed on May 3, 2008, for the float tests.

He went on to explain that the float tests conducted with the mannequin were done when it had negative buoyancy and also when it had a positive buoyancy to compare how it performed at different buoyancy weights.

Berg told the jury Caroline Mitchell, an associate professor at Western State Colorado University, had volunteered to be the live person that was used in the float tests. He described her as being close to the height, weight, muscle mass of Leslie Mueller. Berg said she was dressed in very similar clothing as Leslie was dressed in on May 3, 2008.

She was also wearing a diving wet suit under the clothing which did make her positive buoyancy weight a little more than Leslie’s positive buoyancy was on May 3, 2008. Weights were added on Mitchell to be able to make her positive and negative buoyancy weights to be the same as Leslie’s was during the different float tests done using Mitchell, said Berg.

There were tests conducted using Mitchell, where her buoyancy weight levels were changed in intervals going from positive buoyancy weight to about six pounds of negative buoyancy weight, he explained.

During Berg’s testimony, he also used a very large aerial photograph of the water course of Cottonwood Creek from where Leslie reportedly fell from the cliff to the location where her body was recovered. The photo was used to describe the water course and use as points of reference when the float test video was being shown to the jury.

Berg referred to the water course as being stair steps of three separate waterfalls going down a steep grade into three separate pools and then spreading out into a wide shallow creek flow to where Leslie’s body was recovered.

Berg pointed out in the photo the “V” in the water course that is near the rock Leslie was reported to have landed on after her fall from the cliff. Just below the “V” Berg pointed out that the creek goes over a water falls he referred to as “falls #1” going down to “pool #1,” which he described as being three feet in depth.
The water then leaves this pool and goes over “falls #2” into “pool #2” which he described as being a larger pool than “pool #1,” shaped like a cereal bowl. Berg said the bottom of the pool changes from 10 feet deep where the falls come into the pool to four feet deep at the downstream end where the pool side is vertical. The creek water flows over a lip there where the water is about three to four inches deep when going over the the lip area.

The creek water then goes over “falls #3” into “pool #3,” which Berg described to be very similar to “pool #2” and having a depth of six to eight feet. The water then leaves “pool #3” where the water course begins widening out and becomes shallower as the water moves downstream to where Leslie’s body was found.

The jury was shown the video of the float tests done on Aug. 5, 2008 and Berg described what was taking place during the tests. The first tests shown on the video at the “V” were with Mitchell, who was tethered with a rope and wearing a helmet for safety purposes. Berg was just below her standing in “falls #1,” he said, to make sure she was not flushed over the falls.

During the tests, Mitchell was placed at different intervals into the water course and was at a positive buoyancy. It was not until most of her body was off the rock Leslie was reported to have fallen on and in the water course that the water finally began to move Mitchell toward “falls #1.” The test with the mannequin at the negative six pounds buoyancy weight had the same results.

The mannequin was allowed to be flushed over the falls and went head first down the falls but settled in a small pool in the falls before it could go the rest of the distance into “pool #1.” While it was stuck in this small pool, the water flow removed the jacket that was on the mannequin. Berg had to pull the mannequin out of the small pool and move it back in the water flow so it could proceed on down to “pool #1.”

The mannequin entered “pool #1” and sunk in the pool. Berg placed the mannequin where it could be flushed over “falls #2” and it got caught in the 16-inch gap that “falls #2” flows through to get to “pool #2.” Berg worked with the mannequin to get it through the gap and it traveled on down to “pool #2,” going into the pool head first and sinking to the bottom of the pool.

Underwater video showed the mannequin resting on the bottom of the pool and the water there moving very little. The mannequin rested there until Berg again moved it to where it could be flushed over “falls #3” into “pool #3,” where again it sunk to the bottom of the pool and was not flushed out of it.

Berg said these tests were done a number of times at different buoyancy weights and the results were the same except for when the mannequin was at the positive buoyancy weigh and floating on the surface of the water it did flush through the three pools.

Berg ended his testimony saying that from all his years of experience and training, in his opinion, it was possible that Leslie Mueller could have been flushed over the first falls just below the “V” near the rock she was reported to have fallen onto — if she was far enough into the water course. In his opinion, Leslie would not have flushed out of “pool #1” or out of “pool #2” or out of “pool #3” once she entered them and her body would not have floated the distance to where it was recovered, Berg said.

It was his opinion that she would have had more injuries and a lot of her clothing would have been missing if she had traveled the distance from where she fell to where her body was discovered.   
(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)  

Andrea Zaferes, an expert in aquatic accidents and fatalities, took the stand on Jan. 24. Zaferes said she was contacted by the Colorado Bureau of Investigation (CBI) and they requested her help with the investigation of the drowning death of Leslie Mueller on May 3, 2008, in Cottonwood Creek located in Hinsdale County.

Zaferes is a diving instructor and an aquatic death investigations instructor for firemen, police and the military. She is also an author of several books on investigating aquatic deaths and accidents. Zaferes stated she had acted as consultant in aiding CBI in the investigation and in setting up the float tests in early August 2009, using a mannequin and a live body at the scene on Cottonwood Creek where Leslie was reported to have fallen off a cliff.

Zaferes said CBI sent her their entire case file including audio interviews, autopsy photos and reports, toxicology reports, photos and videos taken at the scene and crime scene. She also viewed the edited and unedited video made of the float tests in early August 2009, she said. She later visited the scene to get a a first hand observation of the area, the creek and the cliff

Leslie was reported to have fallen from on May 3, 2008. Zaferes stated she had no trouble getting around in the area to access any of the locations she wanted to look at.   Zaferes said the area was more dramatic than she thought it would be from her previous viewing of the photographs and videos provided by CBI. She said seeing the site first hand is different than just viewing photos and videos of it and puts things into a better perspective in conducting the investigation. Zaferes said what struck her the most when she visited the site was the distance from the cliff Leslie was reported to have fallen from to where she was reported to have hit the rock below and entered the water.

Zaferes explained to the jury how aquatic death investigations are very different from other death investigations because of the water environment being involved. Bodies are usually moved to dry areas to be checked for evidence and photographed. Also, in most cases, at the time of the incident everyone involved is focused more on possibly saving the victim’s life and the investigation happens later — after water conditions have changed and evidence either moved or washed away, she explained.  Zaferes described buoyancy to the jury as being positive, neutral and negative. She explained that when a person is in the water, their buoyancy is closer to the positive range as long as they have air in their lungs and goes to the negative range when they take water into their lungs replacing the air.

Also, that negative range can increase if the water is frigid, aerated and if the person has clothing on that becomes saturated with water.

She said frigid water is at a temperature of 40 degrees or less and aerated water is created when the water is moving like over rocks =, rapids and falls. She said when a person drowns and there is very little or no air in their lungs, their body sinks — except in rare cases of infants and obese people having little muscle mass. Also, a person who drowns and has clothing on that is water proof and zipped up, may not sink, she said.

Zaferes explained the process a person goes through when they are drowning. She said once the person’s head goes under the water, they tend to try and hold their breath, which creates a high level of carbon dioxide in the blood stream. When that happens ,the body cries out for air and the person has to take a breath to get the needed air. Since they are under water instead of taking air into the lungs, they take water into the lungs, resulting in suffocation and death.

She explained that if the person is in frigid water, they will hyperventilate and instead of taking 10 to 12 breaths a minute (which is normal), they will take 60 or more breaths per minute speeding up the drowning process.

The hyperventilation causes muscle cramping which results in the person losing the use of their extremities and that adds to their negative buoyant weight. Zaferes said a person usually drowns within six minutes and that period of time can be shorter if the victim gasps in water when they first enter the water and are unable to hold their breath.

Zaferes told the jury that when a person dies from drowning, their body sinks due to the negative buoyant weight of the body that has increased during the drowning process. They sink to the bottom of the body of water in a vertical position with the arms down and the head down if the depth of the water permits. The process of their sinking begins at the point that their body starts becoming negatively buoyant during the drowning process. 

Zaferes explained that a drowning victim’s body going over a water fall and into a pool below the fall will enter the pool head first. The force of the water and the body’s negative buoyancy will result in the body coming to rest on the bottom of the pool, she said. The negative buoyancy weight of the body, the weight of the water covering the body and the water hydraulics will keep the body in that location until decomposition begins to take place inside the body, she explained.

The decomposition process begins in the abdominal cavity, resulting in the build up of gases that result in the body going from negative buoyancy and moving towards positive buoyancy, she said. As the body becomes more buoyant, it will begin to rise from the bottom of the pool and eventually to the surface. The colder the water, the longer the time will be before the body surfaces because of the frigid water temperature keeping the body preserved and delaying decomposition.   

Zaferes said once the body is buoyant enough, the water flow can lift it and began moving it. Once the current is moving the body down the waterway, heavier body parts typically contact rocks, trees and other debris that are in the bottom of the waterway resulting in what she referred to as “travel abrasions.”

Zaferes also told the jury that if the current of a river or creek has the force to move a body that has negative buoyancy, it will also have the force that will remove clothing and will result in injuries to the body from it forcefully hitting rocks and trees as it is carried downstream by the force of the current. Zaferes said jackets that are open will typically come off the body and abrasions and cuts to hands, knees and facial areas are common.                       

Zaferes went on to explain to the jury, using a large paper pad and marker, how buoyancy comes into play when a body is in water and how the buoyancy weight of Leslie Mueller was calculated to make sure the mannequin buoyancy weight for the float tests done by

CBI was adjusted to be in the range of what Leslie’s buoyancy weight was on May 3, 2008.

She said since Leslie was a fit person with muscle mass, a person her weight would have a negative buoyancy weight of about ten pounds. The weight in the mannequin was set at a conservative negative buoyancy weight of six pounds, which would give the mannequin a little more buoyancy in the water than Leslie Mueller had on May 3, 2008.

Zaferes talked to the jury about “water cushioning” and the effect it might have for a person who has fallen or jumped from a bridge or cliff and entered the water. She said the effect of “water cushioning” would not have been a factor in Leslie’s reported fall. She explained the depth of the water where Leslie would have landed was about three feet deep. Leslie’s body would have hit the rocks below the water due to the height she would have fallen from, Zaferes surmised.

Prosecutors showed Zaferes a still photo from the reenactment video using a mannequin to represent Leslie Mueller’s body wedged under the fallen log in the position she was found.

The prosecution asked her to comment on what she observed in the photo. Zaferes told the jury the still photo clearly showed there was not enough force in the current of the creek to move a negative buoyant body the distance from where Leslie was reported to have fallen off the cliff to that location and to wedge her head under the log.

She explained that if the current was strong enough to move Leslie’s body that distance, then the current would have moved Leslie’s arms out from the side of her body so that they pointed downstream, not up against the side of her body. She said if part of the body gets wedged somewhere and the body is no longer moving downstream, the current will continue to move the rest of the body. She described this being like a boat anchored on one end, while the other end continues to drift.

Zaferes concluded her testimony by telling the jury Leslie’s fall from the cliff and the distance she traveled before hitting the rock on her head and shoulders, as her husband described, resulting in Leslie only having one minor bump to her head and a small minor abrasion to her head was not reasonable. Leslie sliding into the creek and her body being carried by the creek current in a negative buoyant state over water falls, through pools and rocks the distance to where it was found was not reasonable to her either, she said. That Leslie’s body was carried that distance over water falls and rocks by the current and there were not any injuries to her body, her clothing still intact and not torn was not reasonable to her, Zaferes added.

And finally, she said Leslie’s negative buoyant body not being deposited in any of the pools near where she was reported to have gone into, was not reasonable to her. 

(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.)  

 

 

Hydrographer describes basis for re-enactment

Published Jan. 28
Bill Folowell
Special to the Times

Jerry Thrush, a hydrographer with the Colorado Division of Water Resources, was called to the stand during the afternoon of Jan. 23. Thrush said he was contacted by CBI to conduct a flow study of the Cottonwood Creek in the area where Leslie Mueller was reported to have fallen off a cliff to the area where her body was found. Thrush explained to the jury the difference between a hydrographer and a hydrologist. A hydrogapher measures water flows, depths and levels where as a hydrologist works on the larger issues of water behavior and basin capacity, Thrush explained.

He said a hydrogapher has a little more experience in measuring water than a hydrologist. Thrush went on to explain the instruments and other different means he usesto measure water.

Thrush said he did flow studies of Cottonwood Creek for the Colorado Bureau of Investigation (CBI) in late July 2009 and early August 2009. He said CBI needed to know if water level and flow of Cottonwood Creek on dates they were planning to conduct float tests using a mannequin during July 2009 and August 2009 were similar to what they would have been May 3, 2008, when Leslie Mueller was reported to have fallen from a cliff and died.

Thrush said he used a method in early August 2009 where he compared the water flow level on a feature landmark in the creek that would not change over time. Using a photo taken by Frederick Mueller on May 3, 2008 of Leslie Mueller at the cliff where she was reported to have fallen from, Thrush was able to locate a feature landmark he described as being a “trough.”

Thrush said the trough was formed out of base rock granite. He explained the features in the trough area as being like a gauge that can be used for measurement.

He said this is an accepted method he has used for 22 years.

Thrush explained that he compared the water levels on different rock features of the trough rock on the day of the CBI float test to the water levels shown in the photo taken by Mueller on May 3, 2008. Thrush said he was very confident from seeing, analyzing and comparing the water levels on the trough rock on May 3, 2008 and in August 2009 that the water level and speed of the water were very similar on those two days. He went on to say the water level and speed was just a bit more in August 2009 than on May 3, 2008.

The defense questioned Thrush about not having a baseline to go from, since he did not have reports completed by hydrologist Wayne Shields on May 9, 2008 to assist in making his calculations of water speed, depth and level in early August 2009. Thrush explained that once he had calculated the water level to be similar in early August 2009 to the water level in May 3, 2008, he then used his instruments to measure the water speed to create his own baseline. If the water depths were similar in early August 2009 and May 3, 2008, then the water speeds would also be similar on those two dates, he explained.

(Bill Folowell is a retired investigator with the Gunnison County Sheriff's Office.) 

 

 

CBI lab agents recount testing of evidence

Published Jan. 28
Bill Folowell
Special to the Times

Colorado Bureau of Investigation (CBI) Lab Agent Shari Murphy was called to the stand by prosecutors during the afternoon of Jan. 22. Murphy testified that she had received and examined evidence that had been recovered in the scuff area where a pair of broken glasses were found — near the area where Leslie Mueller was reported to have fallen off a cliff into Cottonwood Creek.

Murphy said she received three items of evidence and a controlled sample of hair from “Gracie,” Leslie’s border collie dog. Murphy tested the three items of evidence and they all came back to be canine hair, she said.

Murphy said she did not run a test to find out if the canine hair matched the sample of Gracie’s hair. She explained there are no tests that would show hair from one canine as being matched to a specific canine, as can be done matching human hair to a specific human.

CBI Lab Agent Cynthia Kramer testified that she had received evidence recovered at the scuff area where a pair of broken glasses were found. Kramer said she received clothing items, an Arrowhead water bottle, a pair of broken glasses with a substance smudge on the front of the left lens, and a tube of blood from Frederick Mueller, a tube of blood from Leslie Mueller, DNA swabs taken from Frederick Mueller and an approximately four-foot long section of a log.

Kramer said she ran DNA tests on the smudge on the glasses lens and on the ear pieces and temple area of the glasses. The DNA testing of the ear pieces and temple area of the glasses was done to be able to determine who the owner of the glasses was.

She was only able to come up with partial DNA results on the smudge and the ear pieces and temple areas of the glasses.

The partial DNA showed the smudge came from a human female and the DNA on the ear pieces and temple area came back to a human male. The partial DNA results were not enough to match them to a specific person.
  Kramer found blood stains on the shoulder areas of the sweater submitted that matched Leslie Mueller’s blood. She did not find any DNA on any of the other items she received, but did recover trace fiber evidence from some of the clothing items submitted.

Human hair, animal hair and trace fiber evidence was recovered from the log submitted but she was unable to find any DNA.
The human hair did not have the hair root material needed to test for DNA. She said the human hair was light in color and four to five inches long.

Jefferson County Sheriff’s Office K9 Deputy Allen Nelson also testified Jan. 22. Nelson te