Thursday, December 4, 2003

Ex-officer enters guilty plea

Admits shooting was excessive

By Janice Morse
The Cincinnati Enquirer

[IMAGE] David Mueller (left) in court with one of his attorneys Wednesday.
(Michael Snyder photo)
WILMINGTON - An ex-police officer admitted in court Wednesday what many people had suspected for nearly two years: He used too much force when he fatally shot a domestic-violence suspect.

"I used excessive force when I shot and killed the victim, Robert Cundiff," said David Michael Mueller, 31, of Hamilton, in a written guilty plea to two charges in Clinton County Common Pleas Court.

A former officer in the 1,000-person village of New Vienna in Clinton County, Mueller also admitted he told other police officers to shred his original written statement about the Feb. 4, 2002, incident. He could be sentenced to up to 13 years for voluntary manslaughter - a lesser offense than the murder charge he had faced - and up to five years for evidence tampering. He was the first police officer charged with murder here since 1974, officials said.

Tom Newland, a lifelong friend of Cundiff, said he resented the fact that Cundiff - nicknamed "Bert" - is gone while Mueller remains free on bond to spend the holidays with his wife and three children as he awaits sentencing Jan. 14. "He took an everyday part of my life. ... We're all going every day without that part of our lives," Newland said. In a corridor outside the courtroom, Cundiff's wife, Bobbie Jo, spoke quietly: "He is guilty. ... He is responsible for it. ... We were a happy family."

Meanwhile, neighbors 11 miles away on Rice Drive in New Vienna, where Cundiff was killed, expressed concerns about the ripple effects of the case, including pending charges against four others in the alleged cover-up of Mueller's conduct.

"I just want justice for that family. ... I want justice all around," said Melissa Doyle, 29, whose two children are playmates with a couple of Cundiff's four children. "Those poor kids, they talk about their dad all the time. ... The little girl, she says, 'My daddy got shot by a police officer, and he's dead.'"

Cundiff, 32, was shot in the face after a struggle with Mueller. He had responded to a domestic violence 911 call at Cundiff's home on Rice Drive, about a half-mile from the police station. Mrs. Cundiff told Mueller that her husband had grabbed her by the throat and was threatening to burn down the house with her and the children - then ages 9 months to 8 years - inside, Mueller said in his written plea. Mueller said he found burned coffee filters and smelled smoke, supporting Mrs. Cundiff's claims.

Clinton County Prosecutor William E. Peelle said Mueller did several things correctly before the shooting. Mueller was trying to separate the arguing spouses and had called for backup; he had asked Mrs. Cundiff if she wanted to press charges - and when she said yes, Mueller informed Cundiff he was being placed under arrest and asked him to turn around and put his hands on a wall.

But then, according to Mueller's statement, the situation deteriorated.

When Mueller tried to handcuff Cundiff, he twisted away, causing the cuff to fall to the floor.

Cundiff allegedly rushed at the officer, and Mueller extended his baton and struck Cundiff on the leg; "I then hit the victim on the head with such force that my asp baton bent," Mueller said.

Mueller said he then drew his weapon and fired two quick shots; one struck and killed Cundiff.

Peelle said the situation demonstrates that police officers must be prepared for the unexpected, even on seemingly routine calls; he also encouraged women in domestic-violence situations to get help for themselves and their children.

Defense attorney Michael P. Kelly declined to say why his client fired his weapon.

"Nobody deserves to be shot in the face like that," said Bronson Oppy, 32, who went to Hillsboro High School with Cundiff and was visiting Doyle's Rice Drive home on Wednesday afternoon. "A lot of people here don't like it that the case took this long. ... I don't see how you can not have a straight-up case when you have someone shot in the face like that."

Doyle conceded, "Police officers have to protect themselves, but I think they have other things they can do besides shooting someone in the face."

Doyle said she hopes the facts come out soon regarding the cover-up allegations against Diane Menashe, a Columbus lawyer who formerly represented Mueller; Village Mayor Timothy Bentz, who lost his re-election bid and leaves office at the end of this year; and two other New Vienna police officers, Sgt. Jami Powell and Capt. Terry Hardesty. All face trials in 2004; another ex-officer, Virgil Lanham, already is serving a year's probation after admitting to his role in the document destruction.

"These are the people who are supposed to protect us," Doyle said. "How can you feel safe when they do things wrong and then cover it up?"


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