Gila County officials will now have to start a new investigation into the October 1997 robbery of Bank One in Pine.
Gila County Attorney Jerry DeRose confirmed Thursday that all charges have been dropped against former Payson businessman David Cunningham -- the Gila County Sheriff Department's only suspect in the case. The case was dismissed without prejudice, which means if further evidence is revealed, charges can be refiled.
"We just finally convinced them, they've got the wrong guy," said Arthur Lloyd of Payson, Cunningham's defense attorney.
DeRose said his office had no choice but to dismiss the charges.
"They've come up with some pretty good evidence, and he also has a fairly good explanation as to why he had the (marked) money," the county attorney said. "When that happens, my job is not just to prosecute, but if there's evidence to exculpate a person, then I have an obligation to dismiss the case."
DeRose said the case is open for investigation again by his office and the sheriff's department. "There's nothing I'd like better than to find out who did it," he said.
The robbery took place just before 11 a.m. Oct. 22, 1997. A masked man entered the bank and threatened to spray the three employees and one customer with Mace. He then ordered three of the victims into the bank's vault, and ordered the fourth to empty the cash drawers into a manila envelope.
With loot in hand, the robber made his getaway in a two-door sedan heading south out of Pine with nearly $12,000.
Even though a roadblock was set up moments later by Payson police officers, the suspect's vehicle was never spotted.
Weeks of investigating by Gila County investigators led officers to Cunningham's door, after he was seen passing some of the marked money at a local convenience store.
Officers arrested Cunningham at his Swiss Village shop Dec. 15, 1997 -- the day he was closing up his business, Integrative Medical Group. He was charged with one count of armed robbery, four counts of aggravated assault, four counts of kidnapping and one count of money laundering.
Cunningham was released from jail 11 days later, after his bond was dropped from $1 million to $10,000. He then moved to Sedona, where he had months before set up a new naturopathic medical group.
The marked money, Lloyd explained, was "mute" money, old or mutilated bills distinctively marked for return to the federal reserve.
"Six days after the robbery, Cunningham is over at Woody's buying a money order, and he has a bunch of the marked money," Lloyd said Wednesday. "When he was arrested five weeks later, he had two or three marked bills still in his wallet. That's all the prosecution had to go on."
Evidence for the defense
Lloyd contended his investigators were able to prove without a doubt that Cunningham was not the bandit.
Lloyd said Cunningham got the marked money from two customers at a rummage sale he had in front of his Swiss Village business just days after the robbery.
Lloyd said evidence also indicated Cunningham could not have been at the bank at the time of the robbery. His office subpoenaed telephone records from a man in Pinetop, showing that he made a call to Cunningham in Payson just 20 minutes before the bank robbery.
The time frame of the escape and the description of the robber do not point to Cunningham either, Lloyd argued.
Witness accounts describe the robber as having long hair curling up from under his ski mask. He was wearing old blue jeans with holes in the knees, Lloyd said, and in one surveillance video clip, the robber appears to be slightly overweight.
The attorney said surveillance video from the Bank One branch in Payson shows Cunningham cashing a check there less than 90 minutes later, with short hair and dress slacks.
"And, of course, (David) is as skinny as a rail," he said.
Lloyd concludes that in order for Cunningham to be at the Pine branch around 11 a.m., and at the Payson branch 90 minutes later -- without passing the sheriff's deputy en route or the roadblock north of Payson -- he would have had to speed down the Control Road while changing his clothes.
"We sent our investigator out with a video camera down the Control Road," Lloyd said. "It took our guy a little over an hour to make it. He would really have to have been planning it. And if you were going to plan something that carefully, why would you bother taking the marked money?"
But it was the robber's hands that proved to be the defense's best evidence, Lloyd said. In the photos, the robber's fingers look short and stubby, while Cunningham's are long and slender, he said.
"There's just no way those hands could have belonged to my client," he said.
On top of everything else, Lloyd said, Cunningham had an alibi.
"I had a gal who absolutely swore he was with her and her husband from about 10:30 a.m. to about noon, having brunch," he said.
Decision took four months
Lloyd said he presented his evidence to the county attorney's office in the fall of 1998. "The real push finally came when we got the bank surveillance photos from the FBI," he said. "That's when we started pushing for dismissal." After months of crammed court schedules for both prosecutors and the defense attorney, and consideration of the evidence, Lloyd got the dismissal.
The Roundup was unsuccessful in its attempts to reach Cunningham for comment.
Lloyd said he found no fault with the efforts of county officials to prosecute his client.
"I've known Cunningham ever since he moved to town, and I really felt bad about it," Lloyd said, "but I have no fault with what the sheriff's office did, and no fault with what the county attorney's office did. If I would have been in their shoes, I'd have filed the charges, too.
"It just goes to show what can happen if you're in the wrong place at the wrong time."