Eyewitnesses recall the day Brandon Ellingson drowned in the Lake of the Ozarks

08/23/2014 4:49 PM

08/24/2014 9:07 AM

Seconds after a state trooper handcuffed and arrested Brandon Ellingson for boating while intoxicated, the officer grabbed a life jacket on his patrol boat.

Missouri Highway Patrol Trooper Anthony Piercy didn’t go for a Type I flotation device, with straps that wrap around the torso and allow for handcuffs. Instead, he pulled out a Type III life vest with arm holes — one that was impossible to secure on a man whose hands were already cuffed behind his back.

In taped interviews conducted by Highway Patrol investigators and obtained by The Star, Ellingson’s friends said they watched from their boat as the trooper tugged down on the already buckled vest, struggling to work it over the 20-year-old’s muscular build.

“He tried to pull (it) over his shoulders … and was having a very hard time doing so,” Ellingson’s friend Myles Goertz told patrol investigators. “… It clearly was not the proper way to wear a life jacket. It was not how the life jacket was designed to be worn.”

With the vest encasing his upper torso and its top buckle touching his chin, Ellingson sent his friends a reassuring wink. Then the trooper “sped away” with him, the friends said.

Minutes later, Ellingson was dead, his body slipping through 80 feet of water to the bottom of the lake.

In the 12 weeks since divers recovered Ellingson’s body near the 3.5-mile marker of the Gravois Arm, no clear picture has emerged on what went wrong that last day of May. Investigators have interviewed witnesses, but authorities have released virtually no information about the case.

For now, the words from the young man’s friends — the closest witnesses to the arrest — provide the fullest account yet of events that preceded Ellingson’s death. The Star, as part of an ongoing investigation, obtained recordings of the friends’ patrol interviews from an Ellingson family attorney.

Their detailed recollections, which were recorded separately in the presence of family attorneys, raise questions about the practices used by the state’s top law enforcement agency and actions by Piercy himself.

Why did the trooper use the Type III vest — which patrol officials confirmed in early June that he did — when, according to sources familiar with patrol protocol, experienced troopers on the lake know to use Type I devices on handcuffed subjects? According to another witness, the life vest came off Ellingson soon after he hit the water.

Was Piercy’s speed — which Ellingson’s friends told investigators was excessive as he took off with Ellingson — a factor in his ending up in the water?

The Star has interviewed law enforcement and boating experts, witnesses to the arrest and to rescue attempts, a member of the man’s family and an attorney for his estate.

But numerous records requests from The Star have been delayed and remain unfulfilled by the patrol. And now that the case is headed to a coroner’s inquest on Sept. 4, patrol officials say more time will pass before anything is released.

“I have been informed by our legal counsel that anything dealing with that incident is closed until it is completely open for dissemination,” Lt. Keverne McCollum, the patrol’s custodian of records, said earlier this month. “… That’s really all I can tell you.”

The patrol’s initial online report stated that Ellingson stood, stepped to the right side of the boat “and fell or jumped overboard.” Sgt. Paul Reinsch, a spokesman in Troop F, which covers the Lake of the Ozarks, first told reporters that Ellingson was seated to the left of the trooper and took steps to the right side of the boat. In subsequent interviews, Reinsch said Ellingson was to the right of Piercy, stood and stepped to the edge.

Soon after that, all questions were directed to patrol headquarters. Little has been shared since.

“Due to the fact that it’s an ongoing investigation, we’re limited on what we can discuss,” said Lt. John Hotz, a patrol spokesman.

Attempts to reach Piercy, 43, were unsuccessful. A dispatcher at Troop F took a message and then called back to say questions should be directed to the Missouri attorney general. Yet a spokeswoman for the agency said they could not comment on an ongoing case.

Those who know Piercy say they feel for the trooper and he is an exceptional officer. Jesse Calvin, former police chief of Laurie, Mo., said Piercy worked for him about two decades ago before he joined the Highway Patrol.

“I just can’t imagine Tony didn’t go by exact procedures,” Calvin said. “That’s just his nature.”

Cuffs go on

Ellingson — who grew up around West Des Moines, Iowa, and had just finished his sophomore year at Arizona State University — had gone to the lake for a weekend with seven high school buddies, ages 19 and 20. They were staying at his father’s lake house and motoring around in his boat.

On Saturday, May 31, their last full day at the lake, they spent the afternoon at Coconuts, a popular restaurant and bar. They played volleyball and ate chicken wings. At least one in the group bought drinks by presenting another person’s state-issued identification card.

Just before 5:30 p.m., they pulled away from the restaurant with Ellingson at the boat’s controls. As he steered away from the dock, one friend hollered, “Cop!”

Piercy, an 18-year veteran of the Missouri Highway Patrol, was trained to work the water in early 2013. When the Missouri Water Patrol merged with the Highway Patrol in 2011, state leaders called the move an effective way to share resources.

On that last day of May, the trooper had been spotted outside the restaurant in the main channel over a period of several hours. A frustrated Timothy Vogel, owner of Coconuts, waved Piercy over to the gas dock at one point and asked him why he was “harassing” people. The trooper “was just sitting there all day” and had pulled over at least two other boaters, Vogel said.

“I asked him, ‘Why are you doing this? You are scaring my customers,’” Vogel said. The owner said Piercy told him that he was responding to complaints.

He said he also called Piercy’s commander to complain that day, talked to a 911 dispatcher and left a message for Rep. David Wood, a Versailles Republican. In the message, Wood recounted, Vogel “told me he visited with Piercy, talked to his supervisor and made complaints on other occasions.”

Coconuts employees watched Piercy stop the young Iowan and his friends.

The trooper said he had seen a can fly out of the back of their boat, the friends said. “He asked if we had been drinking,” said Blake Caluzzi, Ellingson’s cousin.

Ellingson told Piercy he wasn’t 21 and that he’d had a couple of drinks, friends told investigators. The trooper took Ellingson onto his patrol boat.

Friends watched as Ellingson sat at the back of the boat as Piercy performed a sobriety eye test. One friend took a photo.

Before long, Piercy asked Ellingson to stand and put his hands behind his back, and the cuffs went on.

Wrong life jacket

Friends told investigators that during the stop, Piercy’s demeanor changed. He grew irritated.

As Piercy administered the eye test on Ellingson, Goertz told investigators he realized his friend might need a personal rights card so he wouldn’t say or do anything to incriminate himself. The boats had drifted apart, so Goertz jumped into the water and flung the card into the patrol boat.

“The officer just started yelling at Myles (Goertz) in the lake,” said friend Brandon Bever.

“The officer was kind of pissed at him,” Nick Buchanan said. “… He was kind of like, ‘What the hell? What are you doing?’”

Ellingson looked a little scared during the stop, according to the friends’ interviews. They knew he was worried about telling his dad about the BWI. The two were extremely close, and the son planned to return home after college, learn under his dad and one day take over his real estate business.

An honors student, Ellingson wasn’t one to cause trouble, college friends said. When others struggled with priorities at school, partying too much and studying too little, Ellingson would take them aside for a talk.

“He reminded me what was important,” said Arizona State student Parker McNamara, a fraternity brother who had planned to leave with Ellingson in June for a 10-week study-abroad cruise in northern Europe. “… Of all of us, he always had the level head.”

Ellingson cooperated as Piercy went about the arrest, the friends said. He didn’t say much, not even when Piercy tried to maneuver the buckled life vest over him.

“He basically just stuffed Brandon’s head through the head hole and just pulled it down, so it was resting on his shoulders,” Bever said.

During interviews with Bever and several other friends, investigators focused on the flotation device.

“Did you see the trooper put the life vest on him?” Cpl. Eric Stacks asked Brody Baumann.

“Yep,” Baumann said. “It was right over his shoulders.”

Stacks went on.

“So, that’s kind of the area of interest …,” he said. “So I want you to be very specific. And I want you to try to be as articulate as you can.”

Stacks asked him to explain everything from where the trooper got the vest and how he put it on Ellingson to how it settled on the young man.

“The vest was already buckled. He (Piercy) places it over his (Ellingson’s) head and you could see his face, but from what I saw it didn’t go down past his belly button,” Baumann told Stacks. “It wasn’t fully on him. … He didn’t tighten it, didn’t loosen it. He didn’t do anything.”

Buchanan told investigators the vest was so high on his friend’s body he couldn’t see Ellingson’s neck.

“The bottom (of the vest) probably didn’t go any lower than his rib cage,” Buchanan said. “… I honestly thought he would eventually put the life jacket on him correctly.”

Before the merger, Missouri Water Patrol officers were taught to handcuff suspects first and then secure a Type I or Type II life jacket with straps that go around the torso, said Gary Haupt, a retired captain who was with the Water Patrol more than three decades. He now teaches courses in boating accident investigation.

“A (Type III) ski vest should not be placed on someone once they’ve been handcuffed,” he said. “They wouldn’t be effective.”

A ski vest put over a handcuffed person probably would not stay on in the water, he said, because the vest is more buoyant than the person wearing it. It could only be secured on an already handcuffed person by using a crotch strap that would keep the vest in place.

Even then, Haupt said, that type of vest wouldn’t turn a suspect’s face up if he went into the water.

“As an officer, you always have to presume there’s a possibility (the handcuffed suspect) is going to end up in the water,” Haupt said. “And we have to make sure they’ll be safe and survive.”

Highway Patrol officials did not respond to requests asking what policies and procedures were in place May 31 regarding life vests. An official said shortly after the drowning that troopers have access to Type I and Type III vests.

The photo taken during Ellingson’s arrest shows a Type I or II jacket hanging inside the boat. Either could be secured on someone already in handcuffs; the difference is that a Type I provides more buoyancy.

The type of personal flotation device used and how the Type III vest was placed on Ellingson are critical in understanding what went wrong and why he died, say those close to the case.

“I think it is clear that had the life jacket been secured on Brandon the way it was intended by the manufacturer, Brandon Ellingson would still be alive,” said Des Moines attorney Matt Boles, one of several lawyers representing the young man’s estate and family.

“At no point was it ever properly secured.”

Speeding away

Five of the seven young men on Ellingson’s boat told the investigators that Piercy sped away. (One had his back turned, and another declined to be interviewed.)

Goertz said the trooper “floored” it. Buchanan told Stacks and Sgt. Chris Harris that “the wake he created caused some pretty big waves,” rocking their boat.

Before the trooper left the area, he told the friends they could meet him in 45 minutes at H. Toad’s Bar and Grill, a restaurant along the lake. The patrol has a zone office in the complex around the restaurant.

Piercy, the men told investigators, said Ellingson probably would get a $500 fine and be free to go.

After the trooper left, the friends said they regrouped, putting things back that they had removed while looking for registration papers. One of Ellingson’s friends took over the controls. They estimated they were two or three minutes behind Piercy’s boat, according to the interviews.

The Highway Patrol hasn’t fulfilled a Star request for records showing the speed of Piercy’s boat.

Goertz described it as “a speed that we were unable to even match even if we had taken off at the same time as the officer.”

Man in the water

Days after the drowning, officials said investigators were trying to talk with all witnesses. Not just Ellingson’s friends on his father’s boat, but others who may have seen him enter the water. It isn’t clear anyone did.

Video footage would help the patrol and public understand what happened. Reinsch said early on that not all patrol boats have cameras, but Piercy’s did.

The patrol won’t say if there’s footage from that day or whether the cameras were working. Records requests for video footage were submitted with other requests from The Star.

Investigators have spoken to Jim Bascue, owner of Playin Hooky Water Taxi and Charters, and some of the women in a bachelorette party he was transporting that day. Bascue came up on Piercy’s boat as he was slowing to turn around.

Bascue saw a man in the water, his head surrounded by a life vest. He watched the life vest float away.

“I didn’t know he was handcuffed,” Bascue told The Star. “I didn’t know he came off Piercy’s boat.”

The taxi owner threw out a life ring as the women on his boat yelled for Ellingson to grab it.

Piercy, Bascue said, grabbed a pole and tried to get hold of Ellingson. The young man went under and came back up. Bascue could hear him moaning.

“I saw him go under three times,” Bascue said, before Piercy jumped into the water and grabbed him.

When Piercy pulled Ellingson to the surface, he wasn’t moving or responding, Bascue said. Piercy eventually lost hold of him and he went under. This time he did not resurface.

Bascue helped a shaken Piercy out of the water. He could have drowned, said Bascue, who thinks Piercy did everything he could to try to save Ellingson.

Ellingson’s body was recovered the next day. Piercy was put on paid administrative leave while, authorities said, an internal investigation was conducted.

He returned to work — as a trooper on the road — less than a week later, after completing the patrol’s “post-critical incident” process.

Shortly after the incident, Wood got in touch with Piercy. The state legislator said he’s known the trooper since he was a kid, coaching him in middle school football and basketball. He said he wanted Piercy to know he supported him.

“He is feeling a lot of remorse for the situation, I believe, as anyone would,” Wood said. “I have no doubt that Officer Piercy tried everything he could to save that young boy’s life.”

Policy and procedures likely will be reviewed, Wood said.

“We’d all like to know exactly what happened. I do hope if there are flaws in our procedures, those will be changed as a result.”

Coroner’s inquest

What gnaws at McNamara and other friends of Ellingson is the patrol’s assertion in that initial report and in subsequent interviews that the young man may have entered the water voluntarily, that he may have jumped from the boat.

“He’s just not the person who would do that,” McNamara said. “He was driven, smart, looking forward to the future.”

Another fraternity brother, Mitch Rodgers, said many friends are trying to concentrate on who Ellingson was, not how he died.

“I haven’t been asking too many questions,” Rodgers said. “I’m waiting for more stuff to come out. We’re just kind of waiting to hear what happened.”

The coroner’s inquest on Sept. 4 probably will include details the patrol has yet to share. In a trial-like setting, six jurors will be asked to determine the manner in which Ellingson died. Was there a crime involved? Was there negligence?

The panel will provide an “independent view,” said Morgan County coroner M.B. Jones, who called for the inquest. He has known Piercy for years, he said, and so has Morgan County prosecutor Dustin Dunklee. The trooper has acted in community productions in the Versailles area, and since 2012 he has been a member of the Morgan County R-II school board.

Jones, who has called in a prosecutor from another county to help with the inquest, said Piercy is widely known in the county.

“When it gets all said and done, I don’t want someone coming 10 years from now saying, ‘You just covered it up,’” Jones said. “We’re not going to do that.”

To reach Laura Bauer, call 816-234-4944 or send email to lbauer@kcstar.com.

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