State v. Dumaine, CR-84-0344-AP

CourtSupreme Court of Arizona
Citation162 Ariz. 392,783 P.2d 1184
Docket NumberNo. CR-84-0344-AP,CR-84-0344-AP
PartiesThe STATE of Arizona, Appellee, v. Bruce P. DUMAINE, Appellant.
Decision Date07 November 1989

CAMERON, Justice.


Defendant, Bruce Dumaine, also known as Bruce Menard, was convicted of first degree murder (A.R.S. §§ 13-451, 13-452 and 13-453(A)) and armed robbery (A.R.S. §§ 13-641 and 13-643(A)). He was sentenced to life imprisonment with no possibility of parole for twenty-five years, with a concurrent sentence of five years for the armed robbery. Defendant appeals from both convictions, and seeks review of the trial court's denial of post-conviction relief pursuant to 17 A.R.S. Rules of Crim.Proc., Rule 32. We consolidated defendant's Rule 32 review with his appeal. This court has jurisdiction under Ariz. Const. art. 6, § 5(3), A.R.S. §§ 13-4031 and 13-4033, and 17 A.R.S. Rules of Crim.Proc., Rule 32.

A. Was the state's witness, John Lesson, coerced by the prosecutor and the judge into testifying against the defendant?
B. Was this case so permeated with prosecutorial misconduct that defendant was denied a fair trial?
C. Was it improper for the trial court to fail to instruct the jury on the issues of self-defense, defense of a third person, and manslaughter?
D. Did the trial court properly deny the defendant's petition for rehearing pursuant to Ariz.R.Crim.P. 32, 17 A.R.S.?
A. Trial

The victim, Frank Malloy, the victim's brother-in-law, Michael Brown and the defendant's brother, Tom Menard, worked together at the College Life Insurance Company. Both Brown and Menard were involved in marijuana transactions with the victim. Menard lent the victim money at 50% interest to purchase marijuana. The victim purportedly bought the marijuana in Phoenix or Tucson and sold it at a profit in Illinois.

On or about 26 August 1976, Brown cashed checks which totalled $4,000 and gave the money to the victim for the purpose of purchasing marijuana. Brown testified that the victim added more money and put $6,800 in an envelope and placed it in the glove compartment of his automobile. The victim told Brown that Tom Menard had supplied $1,000 of that money.

On 27 August 1976, at about 11:00 p.m., the victim's wife, Linda Malloy, picked up the telephone and overheard her husband agree to meet Menard that evening. Menard testified that he called the victim because he had lent the victim money and wanted repayment. The victim then left to meet Menard at the O.K. Corral Bar, carrying an envelope in his hand. According to Menard's testimony, he and the defendant, Bruce Dumaine, arrived at the O.K. Corral, but the victim did not appear. The victim's wife reported him missing shortly thereafter.

The victim's automobile was found in the parking lot of the Golden Pins Bowling Alley. On 6 September 1976, the victim's body was discovered in a shallow grave on the northwest side of Tucson. The body had been lying in the desert for seven to ten days and contained four or five bullet wounds.

At trial, Edward Brucker, M.D., a pathologist, testified that one bullet entered the top of the victim's head. A second, and perhaps third bullet entered the neck and the last two bullets entered the small of the back, one on each side, and traveled downward toward the spinal cord. The pathologist testified that to inflict the head wound, the murderer was either in a tree above the victim or the victim was bent over or lying flat on the ground.

Menard and defendant were both suspects in the murder and were initially questioned by Detective Michael Sullivan, the lead investigator on the case. Defendant gave a taped statement denying any involvement in the killing. No arrests were made at that time.

During the latter part of 1976 and early 1977, Toni Noble and John Lesson operated a "modeling studio" in Tucson that was also a front for prostitution. Sharon Feola worked there, and she and Toni Noble eventually met defendant, who moved into the studio for a period of time as a night watchman.

Feola testified that defendant was usually in possession of a shotgun and a couple of handguns. She further testified that defendant often talked about killing somebody.

Noble believed that she could communicate with the dead by "clacking" black and white rocks together. In December 1976, Noble, Feola, and defendant took part in a "clacking session" at the studio. Defendant told Noble that "a guy" was bothering him and requested her to "bring him out" because he wanted to apologize. Noble began "clacking." Noble testified that the room temperature began to change and Feola testified that defendant became very nervous and scared. Noble told defendant a man was present and defendant asked Noble to ask him, the "presence", what he wanted. The "presence" told Noble to ask defendant "why." According to Noble, defendant responded that "he did it for money and he was very sorry about it." Defendant also stated that the victim had held on to him and the more he shot him, the harder he held on, begging for his life.

Some time after the clacking session, defendant told Noble that "the person involved also had a weapon and he [defendant] thought that someone with him had been injured and this is why he started to shoot." On cross-examination, Noble stated:

[B]ut he told me that he thought that his brother had been injured and that that's why the shooting took place, because this other person had a gun and took it out and fired it. The other person had fired it at his brother and the other person was shot and killed.

Noble further testified that defendant never said the name of the victim at the clacking session or any time thereafter. According to Noble, she first heard the victim's name from the police. Also, she stated that Detective Michael Sullivan continually harassed and threatened her in 1976 and 1977 to provide "concrete evidence" against defendant for the killing. Noble testified that Detective Sullivan threatened to jail her for her activities in running a bordello if she would not cooperate in providing evidence.

Feola testified that Detective Sullivan threatened to jail her and have her daughter taken away from her if she refused to provide evidence against defendant. Feola further testified that prior to the "clacking session" defendant bragged about killing someone and that she thought he was joking.

After defendant was arrested, he was placed in a cell with Mark McCloud. McCloud testified that defendant told him that he committed the murder and that the police could not prove it. According to McCloud, defendant said that the victim was an insurance salesman. McCloud also testified that defendant told him that he and his brother Tom Menard cleaned out the victim's office on the night of the murder and began bar hopping. When they ran out of money, Menard remembered that the victim owed him money for drugs. They called the victim and asked him to meet them at a bar. The victim met them and they proceeded to the desert. Defendant then shot the victim with two guns (one a Smith and Wesson) once in each hip and three times in the head. Afterwards, he and his brother broke into the victim's home and stole $6,800 and fifty pounds of marijuana.

On cross-examination, defendant's counsel brought out McCloud's prior record and the fact that he had received a plea bargain from the state in exchange for his testimony. Defendant also brought out the fact that McCloud was facing a long sentence and that a detainer had been placed on him in Idaho. In return for McCloud's testimony, he was offered unsupervised probation and the dropping of the Idaho detainer.

Defendant testified on his own behalf and denied killing Malloy, claiming he was helping his brother move furniture when the murder occurred. He gave a different version of the "clacking session," stating that he was just playing along with Noble and Feola. He also testified that he had discussed the matter with McCloud, but denied confessing to him.

The jury convicted Dumaine of first degree murder and armed robbery. Defendant timely appealed from his conviction.

B. Post Conviction Hearing

While the appeal was pending, the defendant's new counsel filed a petition for post-conviction relief, seeking a new trial based on the state's failure to disclose evidence favorable to the defense. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 15.1, Rules of Crim.Proc., 17 A.R.S. Defendant alleged that the Brady violation was the withholding of Detective Sullivan's mental condition at the time of his investigation, as well as at the time of trial.

At the hearing, testimony was presented concerning Detective Sullivan's career path after January of 1977. Sullivan was a deputy for the Homicide Division of the Pima County Sheriff's office in 1976 and 1977, and for some length of time before then. On 27 February 1977, Sullivan was demoted to patrol officer in the Pima County Sheriff's office. The reasons for his demotion are unclear.

On 28 March 1977, Sullivan was involved in an on-duty shooting in which a University of Arizona employee was killed. He was cleared of any culpability in the shooting but was assigned a desk job. He took a vacation after being evaluated by the Sheriff's department psychologist, Dr. Kevin Gilmartin. In that evaluation, the psychologist concluded that Sullivan was not suffering from any mental disorder. A short time thereafter, Sullivan traveled to Chicago and turned himself in to the Chicago police department claiming he committed a homicide. There was some question in Dr. Gilmartin's mind as to whether he was referring to the homicide in Tucson or some homicide in Chicago. The Chicago police department contacted the Pima County Sheriff's office and Sullivan...

To continue reading

Request your trial
98 cases
  • State v. Henry, CR-88-0123-AP
    • United States
    • Supreme Court of Arizona
    • November 12, 1993
    ...... See State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d 1184, 1195 (1989). . B. Foote's Defense .         Henry also contends that the prosecutor committed ......
  • State v. Roscoe, CR-93-0278-AP
    • United States
    • Supreme Court of Arizona
    • February 1, 1996's remarks require a mistrial, and its decision will not be disturbed absent plain abuse of discretion." State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d 1184, 1195 (1989). Two factors inform this analysis: (1) whether the remarks called improper matters to the jury's attention, and (......
  • State v. Dunlap, 1
    • United States
    • Court of Appeals of Arizona
    • September 5, 1996
    ...if the prosecutor was vouching, the conduct did not unfairly prejudice defendant or deny him the right to a fair trial. State v. Dumaine, 162 Ariz. 392, 403, 783 P.2d 1184, 1195 (1989) (to warrant reversal, prosecutor's comments in closing argument must be so egregious that defendant is den......
  • State v. Doerr, CR-96-0679-AP
    • United States
    • Supreme Court of Arizona
    • November 12, 1998
    ...and (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989). Defendant argues that because Collier had directed the city crime lab, his remarks unfairly bolstered the cre......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT