State v. Dunlap

• Decision Date: 05 September 1996
• Docket Number: CA-CR,No. 1,1
• Citation: State v. Dunlap, 187 Ariz. 441, 930 P.2d 518 (Ariz. App. 1996)
• Parties: STATE of Arizona, Appellee, v. Max A. DUNLAP, Appellant. 94-0068.
• Court: Arizona Court of Appeals

Page 518

930 P.2d 518

187 Ariz. 441

STATE of Arizona, Appellee, v.Max A. DUNLAP, Appellant.

No. 1 CA-CR 94-0068.

Court of Appeals of Arizona Division 1, Department B.

Sept. 5, 1996.

Review Denied Jan. 14, 1997.

[187 Ariz. 447] Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Warren J. Granville, Carolyn K. Passamonte, Assistant Attorneys General, Phoenix, for Appellee.

Margaret O'Donnell, and McNally & Robinson by Kevin McNally and Gail Robinson, Frankfort, KY, for Appellant.

OPINION

VOSS, Judge.

Max A. Dunlap(defendant) appeals his convictions for first degree murder and conspiracy to commit obstructing a criminal investigation or prosecution, influencing a witness, and receiving a bribe by a witness.We affirm.

PROCEDURAL HISTORY

This case arises out of the car bombing murder of investigative reporter Don Bolles on June 2, 1976.Bolles' admitted murderer was John Harvey Adamson.Adamson claimed that defendant hired him to commit the murder and that former co-defendant, James Robison, assisted him.

In 1977, Adamson entered into a plea agreement with the state in which he pled guilty to second degree murder.The agreement contained a stipulation that Adamson would receive a forty-eight to forty-nine-year sentence with a total incarceration time of twenty years and two months.In exchange, Adamson agreed to and did testify against Dunlap and Robison at their joint trials for first degree murder and conspiracy.Both Dunlap and Robison were convicted and sentenced to death on the murder charge.The Arizona Supreme Court reversed their convictions and remanded for new trials.State v. Dunlap, 125 Ariz. 104, 608 P.2d 41(1980);State v. Robison, 125 Ariz. 107, 608 P.2d 44(1980).

Adamson refused to testify in the retrials of Dunlap and Robison and attempted to exact a more favorable plea agreement.The state refused to negotiate with Adamson, treated Adamson's refusal to testify as a breach of the 1977 plea agreement, and reinstated first degree murder charges against him.Adamson unsuccessfully sought relief from the state's action in the Arizona Supreme Court.Adamson v. Superior Court, 125 Ariz. 579, 611 P.2d 932(1980).

After the Arizona Supreme Court ruled against him, Adamson offered to testify at the retrials of Dunlap and Robison, but the state declined the offer.Adamson unsuccessfully sought habeas corpus relief in federal court from the supreme court ruling.Adamson v. Hill, 667 F.2d 1030(9th Cir.1981), cert. denied, 455 U.S. 992, 102 S.Ct. 1619, 71 L.Ed.2d 853(1982).Adamson was convicted of first degree murder and sentenced to death, and the Arizona Supreme Court affirmed his conviction.State v Adamson, 136 Ariz. 250, 665 P.2d 972, cert. denied, 464 U.S. 865, 104 S.Ct. 204, 78 L.Ed.2d 178(1983).

Adamson spent the next several years in federal court attacking his conviction and death sentence, and eventually succeeded in having his death sentence overturned.See generallyAdamson v. Ricketts, 758 F.2d 441(9th Cir.1985);Adamson v. Ricketts, 789 F.2d 722(9th Cir.1986)(en banc), rev'd, 483 U.S. 1, 107 S.Ct. 2680, 97 L.Ed.2d 1(1987);Adamson v. Ricketts, 865 F.2d 1011(9th Cir.1988)(en banc), cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795(1990);Adamson v. Lewis, 955 F.2d 614(9th Cir.), cert. denied, 505 U.S. 1213, 112 S.Ct. 3015, 120 L.Ed.2d 888(1992).In 1991, during the pendency of the last appeal, the state and Adamson entered into a stipulation and cooperation agreement that essentially reinstated the 1977 plea agreement requiring Adamson to testify against Dunlap and Robison.

In the meantime, the charges against Dunlap were dismissed without prejudice on June 2, 1980.Dunlap unsuccessfully sought an immediate retrial.Dunlap v. Corbin, 532 F.Supp. 183(D.Ariz.1981), aff'd, 673 F.2d 1337(9th Cir.1982).On December 19, 1990, the state filed a criminal complaint against defendant and Robison for first degree murder and conspiracy to commit obstructing a criminal investigation or prosecution, influencing a witness, and receiving a bribe by a witness.On July 2, 1991, the state filed an information against them on the same charges.The cases were later severed.Defendant was convicted by a jury of both charges.He received a life sentence on the murder charge and a two-year concurrent sentence on the conspiracy to obstruct investigation and prosecution charge.

FACTS

Adamson was immediately linked to the Bolles murder.On the pretext of providing newsworthy information to Bolles, Adamson arranged to meet Bolles on June 2, 1976, at a hotel in Phoenix to carry out the car bombing.Bolles survived the explosion and uttered the words "John Adamson" and "Adamson sent me" to onlookers.Bolles died on June 13, 1976.

Adamson was the state's key witness at trial.A career criminal, he testified he met defendant in 1974 through attorney Neal Roberts and had four or five business dealings with defendant prior to the Bolles murder.He testified that in March of 1976, Adamson, defendant, and others were present at a meeting in Roberts' office.After the meeting, defendant approached Adamson and asked him how much it would cost to have two individuals killed.

Defendant explained that his long-time friend and benefactor, Kemper Marley, wanted then Attorney GeneralBruce Babbitt and a former employee, Al Lizanetz dead.Marley was a prominent business and political leader who owned a liquor wholesale distributing company.He had been nominated for a vacancy on the state Racing Commission by then Governor Raul Castro.The stated reason Marley wanted these individuals murdered was because Babbitt planned to initiate an investigation into price-fixing in the liquor industry, and Lizanetz had embarrassed Marley over the years by making public accusations against him.

Two weeks later, defendant contacted Adamson and asked him how much it would cost to have Babbitt, Lizanetz, and Don Bolles killed.Defendant said Bolles had given Marley a "bad time" about Marley's nomination to the Racing Commission and "was going to start on something soon."He said Bolles had to go first.Adamson told defendant it would cost $50,000 to kill the three individuals and that he needed $5000 as a down payment.Adamson said defendant gave him $2000 at that meeting.

Adamson had known James Robison for four years and had worked with him on other bombings in connection with insurance scams.Adamson asked Robison to assist him with the three murders and promised to split the money with him.Adamson testified in detail about designing and constructing the explosive device with Robison and their plan to carry out the bombing.

Adamson met with defendant several times prior to the bombing.Defendant told him he would pay Adamson the remainder owed him after the bombing.Adamson told defendanthe previously made arrangements for defendant to leave the money in a package at attorney Tom Foster's office.

According to Adamson, he planted the bomb and went to a local bar while Robison detonated it.After the explosion, Robison called Adamson.When Adamson asked if it was done, Robison said, "[E]yeball to eyeball ... send Mr. Smith to the bank."Adamson testified "Mr. Smith" was a coded expression for "Mr. Dunlap."

Adamson went to Tom Foster's office several times to get the package from defendant.On June 10, 1976, Adamson met defendant there and received an envelope containing almost $6000, mostly in small bills.Adamson was arrested shortly thereafter.

The state also presented evidence to support the conspiracy to obstruct charge.Bette Gleason, Robison's self-described common-law wife, testified that from the spring of 1977 through the fall of 1979, she received $1500 for a new truck and around $500 per month in cash.She obtained the money from Robison's attorney, David Derickson, who in turn received it from defendant's attorney, John Savoy.Savoy was collecting money for defendant's legal defense fund and diverted some of those funds to Bette Gleason.

In addition, the state presented evidence of other gifts and money sent to Robison directly from defendant or indirectly through third parties.The state claimed these gifts were given to keep Robison quiet and because defendant was grateful Robison had not testified against him.The state also claimed defendant burned and shredded documents to cover up his involvement in the murder.

Defendant maintained his innocence and alleged that Adamson framed him.The apparent reason for this frame-up was to avert retaliation by defendant after Adamson defrauded defendant in a business deal.Defendant admitted he delivered money to Tom Foster's office.However, he claimed a stranger came to his house on the morning of June 10, 1976, carrying a brown paper bag containing money.The stranger, who said Neal Roberts wanted a favor from him, told defendant to change the money into smaller bills and deliver it to Tom Foster's office that day.

Defendant advanced an alternative theory for the bombing.According to him, at the time of his death, Bolles was investigating dog track owners, Emprise Corporation, and the Bradley Funk family.Bolles had testified before a congressional committee that was investigating Emprise, the Funks, and their tie to organized crime.Defendant suggested that Adamson, who sometimes worked at the race track, was connected to Bradley Funk and carried out the murder for Emprise and the Funks.

Defendant also claimed the investigation was misdirected and mishandled.Defendant presented evidence of unauthorized purging by the police department of the "76-86" file (the police department file on the Bolles bombing), file 851 (the Emprise file), the Organized Crime Bureau file, and certain surveillance records.In defense of the conspiracy to obstruct charge, defendant claimed he and Robison became acquainted after they were both convicted and sentenced to death, and that he gave gifts and money...