by Ann Rule
“Have you reached a verdict?” Judge Alexander asked.
“We have, Your Honor,” jury foreman Robert Wilcoxen said, and handed the findings to bailiff Suzie Dudy. She handed it to Judge Alexander who read it without expression and returned it to Suzie.
Silently and quickly, court security officers Jerry Wells, Trish DeLand, and J. C. Crossland had moved to stand behind Brad, creating a barrier between him and the first row of the gallery where reporters waited, pens poised.
“We find the defendant, Bradly Morris Cunningham,” she read, “guilty of murder. . . .”
Brad sat slouched in his chair, his face turned away from the spectators, but he shook his head very slowly back and forth as if to say, This is all a terrible mistake.
Upham didn’t ask for a poll of the jurors, but Brad wanted it done. One by one they looked at him as they repeated “guilty” until the twelfth “guilty” hung on the air.
“It was over so quickly,” Susan Keegan remembered. “After all those years, it was over. When I walked out of the courtroom, Jim Carr grabbed me and took me over to Scott. Scott had tears in his eyes and I hugged him. I just kept saying to him, ‘You never gave up. You never gave up!’”
While television cameras focused on Cheryl’s family, Jerry Wells and Trish DeLand waited to lead Brad back to jail. Betty Troseth cried too as she told reporters, “Cheryl believed in the justice system and now I know it works.”
For the first time in his life, perhaps, Brad Cunningham had lost and lost big. Jerry Wells observed that he could barely stand, his legs turned to rubber by shock. To no one in particular, Brad asked, “Has anyone ever come back here on appeal?”
Wells looked away, but Trish DeLand said, “Yeah, a woman did—and she got convicted the second time too.”
Jack Kincaid rushed to the phone to tell Sara that she would have her sons with her for Christmas, that, in all likelihood, she would have her sons with her until they grew to be men.
While everyone outside was agonizing about what they were doing, the jurors had taken a quick vote when they first retired to deliberate. That vote was eight for guilty and four undecided. They didn’t vote again until forty-five minutes before they returned with their verdict. At that point, just as everyone waiting was beginning to panic, Wilcoxen counted eleven guilties and tore up the twelfth, his own—he knew he had voted guilty. It had been a long hard afternoon for them, and many of the women had cried because of the tremendous responsibility they felt. For all of Upham’s research into Brad’s checkered financial background, he later learned that the jurors “didn’t give a hoot about all the bankruptcy stuff and they weren’t impressed by the DNA.” None of them had cared for Brad, but they knew they couldn’t render a verdict on whether they liked him or not. What had really made up their minds was the testimony from the silent witness. Cheryl’s last note and her conversation with her mother right before she left the house to go to meet her killer were the two pieces of evidence that the jurors had found totally convincing.
In five hours, it would be Christmas Eve. The snow had all disappeared and the air was cold and smoky with fog. Cheryl’s family headed toward Longview for their eighth Christmas without her but, somehow, it would not be so bad now. Celebrants wandered back to the Copper Stone, still almost stunned that it was over and that it was okay. Scott Upham, Mike McKernan, and Jim Carr had a beer, and Upham enjoyed a good cigar. Mike Shinn and Upham shook hands as Shinn complimented Upham on his remarkably convincing final arguments.
By tomorrow, everyone who had been together daily for months would be scattered, off to their real lives in three states.
On January 6, 1995, the group reassembled for the last time. Brad was to be sentenced that afternoon for the crime of murder. Now that he had been convicted, Upham could present witnesses about prior bad acts he had committed and reveal incidents and behavior that might affect the length of his sentence. Two women from his past, women Brad had not expected, were in the courtroom. Dana Malloy took the witness stand, a glamorous figure with masses of long blond hair, dressed in what looked to be a thousand-dollar outfit.
She was so frightened to be there, less than a dozen feet from Brad, that her voice was barely audible. Even the sound of a reporter’s pen on paper drowned out her words. Brad’s life with Dana had been a secret thing and the jurors had never heard about how he indoctrinated her into the world of topless dancing. Now, with Upham’s gentle urging, she told it all. The nights in Houston, the times the little boys were left alone, and Brad’s bizarre actions and threats, how he had told her that a psychic had predicted she would commit suicide.
When Brad rose to cross-examine his former mistress, Dana looked at him with apprehension. She had reason to. He immediately set out to characterize her as working for the “Seattle Mafia.”
“I tried to set you and your mother up in your own business space as cosmetologists—didn’t I?” he asked. “I was concerned for your safety?”
She stared back at him. “No.”
Brad reminded her that he had found her and her lover, Nick Ronzini, having sex and he had thrown them out of his apartment.
“You’re twisting everything around,” Dana said.
“And I put your things down the hall—?”
“No. You took everything I owned and put it in the Dumpster,” she said.
In the back of the courtroom, a new spectator, a very tall, slender young woman with black hair and round European-style black sunglasses, leaned forward, listening intently.
Brad insisted that Dana had been told exactly what to say by the Oregon State Police and the D.A.’s office, and she would not agree. Nor would she agree that he had hired the Blue Moon Detective Agency to find her only because he was worried about her and thought something had happened to her. Brad was determined to show that Dana was a prostitute, but Judge Alexander stopped him, saying that her job had nothing to do with her credibility.
“You make over two hundred thousand dollars a year, don’t you?” Brad pushed on.
“I don’t know what you’re talking about,” Dana said.
Finally Dana’s voice rose to a pitch everyone in the courtroom could hear. “Brad, do you really want to get into this?”
Apparently he did not. Dana looked at Brad with an almost unreadable expression. “I thought you were God,” she said quietly. It was obvious she no longer did.
Scott Upham asked Dana about the times Brad had followed John Burke, Cheryl’s old friend and the administrator of her estate. “Did he say he wanted to kill John Burke?”
After a long hesitation, Dana said, “Yes.”
Upham wanted to be sure that Brad stayed in prison as long as possible under the guidelines that were extant for the crime of murder in Oregon in 1986. He had another surprise witness, Ronald O. Marracci, a private investigator whom Brad had hired in the summer of 1994, only months before his trial for murder. He testified that Brad had paid him two thousand dollars at forty dollars an hour, and paid by check.
“What did he want you to do for him?” Upham asked.
Marracci said that Brad had hired him to buy a truck, a camper, a .30-.30 rifle, and some handguns. He said he would need all those things when he was acquitted of murder and got out of jail. He planned to pick up his three sons and travel with them, and, of course, they would need the truck and the weapons. It was Sara’s worst nightmare, although she had not known that Brad was actually making preparations to disappear with the boys.
Upham rose to ask for the stiffest sentence possible. “The pattern started early in his life,” he said. “He has very little regard for other people or rules. He will do anything he has to to get what he wants. . . . He should not ever be allowed to be free. As he sits here, he has no family. He has no friends. He has a character disorder and it can’t be fixed.”
Brad also made a brief statement, “I would not benefit from long-term incarceration,” he said, “because I am a caring person.”
Unfortunately, Judge Al
exander was bound by statute and he could not be sure that Brad would never be free. He could sentence him to life in prison, but the only discretion he had was to raise the mandated ten-year minimum to twenty-five years. He set the minimum at twenty-two years. Brad would not be eligible for parole until 2014, and if he was still alive, he would be sixty-eight at that time.
“That the attack was premeditated and carefully planned, the viciousness of the attack, Mr. Cunningham’s total lack of remorse, and repeated false statements by Mr. Cunningham” were all factors Alexander took into account. The only mitigating factor he found was that Brad had no prior criminal record.
Brad assured the judge that he would appeal his sentence within thirty days.
As the spectators filed out, the tall young woman in the back row moved out into the hall. The mention of Dana’s possessions being thrown into a Dumpster had been all too familiar to her. It was Kait Cunningham, who was now twenty-five. Despite her father’s predictions in Houston that she would never amount to anything, Kait had grown up to be a willowy beauty, a model in Paris. She had come back to witness her father’s downfall and to tell him in person—adult to adult—what she thought of him and his treatment of the frightened little girl she had once been.
As she had with all Brad’s children, Sara had opened up her home and Kait was staying with her. Later, she visited Brad in the visitor’s area of the jail and blasted him with the pent-up emotion of many years.
Brad asked not to stay in the Washington County jail any longer than necessary. He was anxious to move down to Salem to the Oregon State Penitentiary.
That request was granted.
AFTERWORD
Sara wanted to buy something happy to celebrate the fact that she and her sons would no longer have to be afraid. When she learned of the guilty verdict, she chose a figure of Santa Claus in his workshop, executed to precise scale with toys and ornaments and sugarplums. It was a symbolic purchase that meant they would be together not just for the Christmas of 1994 but forever. And as the months passed, the rift between Sara and Jack Kincaid narrowed and it was obvious that they too would be together when the time was right.
Sara still works in the anesthesiology department at Providence Hospital. On weekends, she usually attends baseball games and other events the boys are involved in. Brent Cunningham lives with her and his brothers and goes to school. When Sara cannot be there, he is with Jess, Michael, and Phillip.
Scott Upham is involved in another convoluted murder case, but he and Mary Ann Upham finally managed to break ground on their new house in May 1995.
Jim Carr was involved in a horrendous accident in February 1995, when a felon speeding from a police chase slammed broadside into the driver’s-side door of his car. He is recovering after emergency surgery.
Mike Shinn is back out on the Columbia River sailboarding. He bought some hilltop property in Hawaii where he plans, one day, to build a house. In the meantime, he has more cases than he can handle and he presents trial seminars with criminal defense attorney Gerry Spence.
Susan McNannay Keegan gave birth to a baby girl, Anna Marie Keegan, in May 1995. She would have loved to share Anna Marie with Cheryl and she had always believed that accidents of birth had hastened her sister’s death. “The thing that killed Cheryl,” she said, “was that she gave Brad three boy children, and she tried to keep them. If she had only had one child—a girl—she’d be here today. If Loni Ann had had two boys, instead of a boy and a girl, she’d be dead now. If Lauren had had a boy instead of Amy, she’d be dead. But Cheryl had three boys. . . .”
Bob McNannay still lives in Longview and he dotes on the only child of his only child.
Marv and Betty Troseth have moved away from Longview. Betty still works as a therapist for the mentally ill.
Loni Ann Cunningham is hoping to move back to the Northwest, now that she no longer has to hide from Brad.
Rosemary Cunningham Kinney died in 1993 in Washington. To the end of her long illness, she hoped that Brad might call her. One cousin says, “I think he did call—but she was already gone.” Kait Cunningham stood at her grandmother’s grave and gave a eulogy, after telling the minister. “You didn’t know my grandmother. How can you speak of her?”
Brad Cunningham found that the Oregon State Penitentiary was not much more to his liking than the Washington County jail. Two long-timers who had been in the jail at the same time he was remembered that he had “snitched them off” about their secret places for hiding cigarettes. A few weeks after he got to the Salem prison, he was eating lunch in the chow hall when a convict walking down the row popped him in the face and broke his nose. He will probably be transferred to an eastern Oregon prison for his own protection.
Brad has appealed his conviction.
In the spring of 1995, the proceeds from Brad’s Houston suit were disbursed. After his legal fees, he had something more than six hundred thousand dollars left. Secured creditors and others in his bankruptcy got all but two hundred thousand. Garvey, Schubert and Barer, Cheryl’s law firm, had spent twice that amount to sue him civilly. “We split what was left with Cheryl’s sons,” Greg Dallaire said. “We’ll hold it in trust for them.” Brad got nothing at all.
The taxpayers of the State of Oregon took a heavy hit from the cost of Brad’s defense. The entrepreneur (now indigent) defendant’s attorneys-cum-“legal advisors” and his private investigator cost the state $261,435. That amount did not include the general costs of his lengthy trial.
Sara Gordon wants her sons to remember the mother they lost. She has asked all of Cheryl’s family to write down their memories of Cheryl, and to send pictures and videos so that Jess, Michael, and Phillip will know what a wonderful woman their mother was and how very much she loved them.
On January 4, 1996, Brad Cunningham had a telephonic Prison Term Hearing before the new Oregon State Parole Board—Dianne Middle, Ann Kelley and John Copic—and asked to have his minimum sentenced reduced to 10 to 14 years. He argued that his education would prevent him from repeating a “crime of passion,” if, indeed, he were guilty. Dr. Sara Gordon presented stacks of letters containing thinly veiled threats from Brad, and D.A. Scott Upham stressed the extreme indifference Brad had shown for human life the night of the murder—both for Cheryl and others on the Sunset Highway.
The Parole Board’s decision was swift and unanimous. They cited Brad’s “level of anger,” his high intelligence and “manipulative nature,” and his lack of concern for the effect of his crime upon his children when they not only upheld his minimum sentence, they added to it, denying his current 22-year parole date in advance. He now has no “good time” release date, and no bi-yearly hearings before the Parole Board. In plain words, they gave Brad a “true life sentence.”
There was only silence on Brad’s end of the phone line when he heard that he would stay in prison for the rest of his natural life.
At last the terror was over for good.
ACKNOWLEDGMENTS
The case that is the center of Dead by Sunset didn’t receive much media coverage when it began. Had it not been for a dozen letters and phone calls from people I had never met, I probably never would have looked into it. What I discovered is the stuff of nightmares. Quite frankly, I almost walked away from it. In the end, I stayed. Once I began to peel away the first layers of a bizarre and dangerous personality, I found that I needed the recall and experience of dozens of people to help me reveal the truth. Because in some cases they feared for their lives, it took a great deal of courage for many of them to approach me. It took even more for them to tell me secrets that had been hidden for years. Some of them didn’t want their names mentioned at all, and in other instances I have changed names.
For their trust in me and their willingness to discuss tragic memories, I am grateful, in particular, to Betty and Marv Troseth, Susan McNannay Keegan, Bob McNannay, Jim Karr, Debi and Billy Bowen, Kim and Bill Roberts, and Katannah King.
I could never have written this book if it h
ad not been for Michael Shinn, Diane Bakker, and the late Connie Capato. They literally risked their lives to expose an evil man who still walked free. The professional insight I got from Detective Jim Ayers of the Oregon State Police was invaluable. Even though I never had the chance to meet him, the work of the late Detective Jerry Finch on this murder investigation also helped me a great deal. Thanks too to Oregon State Police Sergeant Greg Baxter, Detective Mike McKernan, Sergeant James Hinkley, Criminalist Julia Hinkley, Dr. Cecilia von Beroldingen, and Portland police officers Rick Olsen and Craig Ward.
Washington County District Attorney Scott Upham and his staff—particularly investigator Jim Carr and Juanita Carey—shared their perceptions and their recall of a very long investigation and a grueling trial. Scott and Jim were especially helpful.
The Washington County Court Security staff, under the command of Sergeant Mel Leutwyler, became friends, and I forgive them for all the times they searched my purse for alleged contraband. Although they were dealing with two major trials, they always kept their sense of humor. Thanks especially to Jerry Wells, J. C. Crossland, Scott Barnes, Larry Watts, and Trish DeLand. I know it wasn’t easy—ever.
And my thanks go to Judge Alan Bonebrake, his judicial assistant Linda Campbell-Peachy, Judge Tim Alexander, his judicial assistant Suzie Dudy, and his court clerk Gwen Lipske. And to Judge Ancer Haggerty.
In a case such as this, people often don’t want to be specifically identified for the part they played, but I still want to thank them: Gwen Elkin, Kay Hicks, April Arwood, Janet Haines, Alice Baldwin, “Duke” Wells, Kari Morando, Betty Pautsche, Mary Hilfer, Michele Hinz, Halle Sadle, Kate Ayers, Jeanne Hermens, Jack Livengood, John Burke, Clyde Gideon, Jr., Sharlene Mastrandrea, Arlene Reynolds, Craig Anderson, Wesley Bishop, Doreen McIness, Kalen Thomas, and Amy Lowin.
In this complicated legal marathon, it helped to have fellow journalists to compare notes with, and we covered for each other when one of us couldn’t be in court: Fiona Ortiz, Margie Ramirez, and Robin Franzen of the Orego nian, Laurie Smith, Bill Wagner, and Greg Ebersole of Longview, Washington’s Daily News, and Eric Apalategui of The Hillsboro Argus.