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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL T. DUNKIN, )
) Court of Appeals No. A-1543
Appellant, ) Trial Court No. 3PA-S85-852CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1167 - October 11, 1991]
Appellee. )
_______________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: Averil Lerman, Preston,
Thorgrimson, Shidler, Gates and Ellis,
Anchorage, for Appellant. Cynthia M. Hora,
Assistant Attorney General, Anchorage, and
Charles E. Cole, Attorney General, Juneau, for
Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Michael T. Dunkin was convicted, following a jury trial,
of murder in the first degree, an unclassified felony with a
maximum sentence of ninety-nine years of imprisonment.
AS 11.41.100(a)(1). Superior Court Judge Beverly W. Cutler
sentenced Dunkin to eighty-five years of imprisonment,
recommending that Dunkin be ineligible for parole until he had
served fifty years of his sentence. Dunkin appeals his conviction
and sentence. We affirm.
Dunkin was convicted of murdering Julius Marshall, a
black male employed as an auto mechanic, by shooting him three
times in the head and neck at close range. At trial, the state's
theory was that Dunkin shot Marshall in an unprovoked attack for
racial reasons.
The killing occurred in Palmer on May 26, 1985. Dunkin,
who was twenty-two years old, drove to Palmer from Anchorage with
his brother James Stevens and Stevens' friend William Skinner to
watch the races. They drove in Dunkin's green jeep. The jeep had
a removable top with the words "Boofer hunter" on it; the top was
not on the jeep at the time.1 They spent the afternoon watching
the races and drinking beer.
After the races, the three men went four-wheeling in the
Knik River area. After about an hour, the jeep got stuck in the
river and stalled. Dunkin got a ride to a store where he called
for a tow truck. The towing business Dunkin contacted was the
Roadrunner Autobody Shop, operated by Julius Marshall.
Dunkin returned to the Knik River and waited for the tow
truck. Some time later, Dunkin saw Marshall's truck on the other
side of the river pulling another truck out of the water. Dunkin
was angry that Marshall was assisting someone else first, and went
to Marshall to complain. When Marshall finished pulling out the
first vehicle, he came across the river to Dunkin's jeep.
It took Marshall approximately half an hour to pull the
jeep out of the river bed. A group of people gathered to watch
Marshall at work. Dunkin talked to one of the spectators, Timothy
Dunahee, about how much he thought the job would cost. Dunkin
told Dunahee he had $150. When Dunahee said he didn't think that
would be enough, Dunkin stated that it didn't matter because he
was "going to waste the old spook." Dunahee heard Dunkin refer to
Marshall as a "boofer," a "nigger" and a "spook." While Dunkin
was talking to Dunahee he had a loaded gun strapped around his
waist.
Marshall got the jeep unstuck, but it still would not
start and it had a flat tire. Dunkin offered to pay Marshall $150
if he would start the jeep; Marshall towed the jeep to his shop on
the Palmer-Wasilla highway.
While Marshall was working on the jeep, Dunkin told him
that his name was "Tom" and that he worked at Spenard Auto Supply.
Neither of these two assertions was true. When Skinner asked
Stevens why Dunkin was lying, Stevens said that Dunkin was going
to beat up Marshall.
Marshall decided to push start the jeep. Dunkin,
Stevens, and Skinner sat in the jeep, while Marshall pushed the
jeep with his tow truck. After the jeep started, Dunkin got out
of the jeep to pay Marshall.
Skinner saw Dunkin standing next to the tow truck and
talking to Marshall. Skinner watched Dunkin pull out the gun and
point it at Marshall; Marshall "crunched back" and then smiled as
if he thought it was a joke. Dunkin smiled and pulled the trigger
three times, firing shots into Marshall's head and neck. Marshall
died as the result of these gunshot wounds.
Dunkin drove off in the jeep. As they drove away,
Dunkin told Skinner not to worry because "[i]t's just a nigger.
It's just a boofer."
One of Marshall's neighbors found his body and contacted
the troopers. Other neighbors told the troopers that they had
heard shots and had seen three people in a green jeep speeding
away from Marshall's shop after the shots were fired.
Trooper Michael Brandenburger stopped Dunkin's jeep on
the Glenn Highway near Fort Richardson. The gun was lying on the
floorboard between the front seats. Dunkin, Stevens, and Skinner
returned to the jeep and were escorted to Palmer by the troopers.
During the drive, Dunkin told Stevens and Skinner to tell the
troopers the following story: they went to the raceway, they did
not go to the river, and Dunkin shot a couple of rounds in a field
after the races.
When Skinner first spoke to the troopers he told them
the story outlined by Dunkin. Skinner was arrested for first-
degree murder on May 28. The next day Skinner told the troopers
about the shooting. The charges against Skinner were dropped, and
he testified at Dunkin's trial.
While in jail, Dunkin spoke to another inmate, K.B.,
about the murder. On one occasion Dunkin said that he and
Marshall had argued about the bill after Marshall got the jeep
running; Dunkin said he was mad because a "fucking nigger" was
trying to "rip him off." On another occasion Dunkin told K.B.
that Marshall was shot while Dunkin was playing with his gun.
The defense theory at trial was that the shooting was
accidental. At trial, Dunkin testified that he remembered seeing
the gun in his hand, and remembered a "boom," but could not see
himself shooting anybody. Dunkin stated that at the time he was
in Marshall's tow yard, he was "pretty intoxicated."
Dunkin's main contention on appeal is that the trial
court erred in not making an adequate record of the bench
conferences and that his attorney was ineffective in representing
him because the attorney did not object to the incomplete record
of the bench conferences.
Dunkin's trial took place in the superior court in
Palmer in October 1985. Shortly before trial, the court system
installed new electronic tape recording equipment in the
courthouse. This new system did a poor job of picking up the
bench conferences held during the trial. Dunkin points out that
several court rules require the trial court to record its
proceedings. See Alaska Civil Rule 75(a); Alaska Administrative
Rules 21(a), 35(a) and (c). However, the rules also provide
procedures for dealing with gaps in the record. See Alaska
Appellate Rule 210(h) and (k).
We begin our analysis with Drumbarger v. State, 716 P.2d
6, 16 (Alaska App. 1986). In Drumbarger, the defendant claimed
that he had been deprived of his right to a full record of the
court proceedings when the electronic equipment did not adequately
record several bench conferences and other small portions of the
trial. This court denied Drumbarger relief, pointing out that
Drumbarger made "no specific claim of prejudice with respect to
any particular omitted portion" and that Drumbarger "failed to
make any effort to remedy the deficiencies in the record by the
steps prescribed in the appellate rules." In the instant case,
unlike Drumbarger, Dunkin did make an effort to reconstruct the
appellate record. However, the court and counsel were able to
reconstruct only a small portion of the bench conferences. The
transcript of the bench conferences shows that large portions of
the conversations are missing.
In arguing for reversal of his conviction, Dunkin does
not argue that the court erred in admitting or excluding any
particular evidence. Rather, he argues that because neither the
court nor his attorney assured that there was an adequate record
of the bench conferences, he was deprived of his ability to
prepare and bring a meaningful appeal. As an alternative, Dunkin
argues that if this court does not find that the gaps in the
record are per se prejudicial, we should place the burden of proof
on the state to show that Dunkin was not prejudiced by the gaps in
the record.
In arguing that we should find that the gaps in the
record were per se prejudicial, Dunkin cites United States v.
Selva, 559 F.2d 1303 (5th Cir. 1977). In Selva, the court
reporter became ill and was unable to stenographically transcribe
counsels' closing arguments. The court reporter attempted to tape
the arguments, but the tape recorder malfunctioned. Selva
obtained new counsel for his appeal. The Selva court held:
When, as here, a criminal defendant is
represented on appeal by counsel other than
the attorney at trial, the absence of a
substantial and significant portion of the
record, even absent any showing of specific
prejudice or error, is sufficient to mandate
reversal.
Id. at 1306 (footnote omitted). However, the Selva court
emphasized that its holding only applied to "significant
omissions." Id. at 1306 n.5. Dunkin urges us to adopt the Selva
rule.
In the first place, the Selva rule appears to be a
minority rule. See United States v. Antoine, 906 F.2d 1379, 1381
(9th Cir. 1990); United States v. Gallo, 763 F.2d 1504, 1530-31
(6th Cir. 1985); State v. DeLeon, 377 N.W.2d 635, 637 n.2 (Wis.
App. 1985); Cole v. United States, 478 A.2d 277, 287 n.15 (D.C.
App. 1984); State v. Vitale, 460 A.2d 961, 964-65 (Conn. 1983);
State v. Rougemont, 340 N.W.2d 47, 50-51 (N.D. 1983). In the
second place, even if we apply the Selva rule, we do not believe
that Dunkin prevails. Dunkin's appellate counsel has a complete
record of the trial except the bench conferences. She therefore
has a record of what transpired before and after the bench
conferences. She also has a record of what evidence went to the
jury. Under these circumstances, we believe it likely that the
Selva court would conclude that Dunkin was not missing a
"substantial and significant portion of the record." Therefore,
we conclude that Dunkin has not shown grounds for relief under the
Selva standard.
We also conclude that Dunkin has not made any showing
that he was prejudiced when his counsel failed to object to the
court's failure to make a complete record of the bench conference.
See Risher v. State, 523 P.2d 421, 425 (Alaska 1974) (in order to
establish ineffective assistance of counsel, defendant must show
by a preponderance of the evidence that trial counsel failed to
perform at least as well as a lawyer with ordinary training and
skill in the criminal law and must create a reasonable doubt
whether counsel's conduct contributed to the conviction).
Dunkin next suggests that certain statements which the
prosecutor made to the jury constituted plain error. During jury
voir dire, the prosecutor asked five prospective jurors whether,
if race were an issue in the case, the juror could give the
victim, Marshall, a fair trial. The final time the prosecutor
asked this question, he stated, "Do you promise me that you would
give Julius Marshall, a black man, a fair trial, as well as the
defendant, a fair trial?" At this point, defense counsel asked to
approach the bench; Judge Cutler sustained the defense objection
to this question. Following this conference, the prosecutor
rephrased the question to "Do you feel that you can give the state
as well as the defendant a fair trial in this case knowing that
Julius Marshall is a black man?" Dunkin did not ask the court to
take any further action. Later in the trial, at the end of his
closing argument, the prosecutor stated that "Julius Marshall has
a right that justice be done." Dunkin did not object to this
statement.
On appeal, Dunkin contends that the prosecutor's
admonitions to give Marshall a fair trial were seriously
prejudicial. He contends the statement the prosecutor made in
closing argument was a call to the jury to avenge the death of
Marshall.
Dunkin did not request a curative instruction during
voir dire, nor did he object to the prosecutor's statement during
closing argument. Therefore, in reviewing these issues this court
must apply the plain error standard of review. Alaska Criminal
Rule 47(b). In order to establish plain error, Dunkin must prove
that the error is:
(1) so obvious that it must have been apparent
to a competent judge and a competent lawyer
even without an objection and (2) so
substantially prejudicial that failing to
correct it on appeal would perpetuate a
miscarriage of justice.
Potts v. State, 712 P.2d 385, 390 (Alaska App. 1985).
Dunkin points out that Marshall was not on trial and
argues that the statements which the prosecutor made would tend to
inflame the jurors' emotions because of the evidence that this was
a racially motivated killing. However, the state could properly
inquire of the jurors whether they would be racially prejudiced
against Marshall. The trial court promptly responded to Dunkin's
objections, and Dunkin never requested that the trial judge take
further action. We do not believe there was sufficient danger of
prejudice from the prosecutor's questions and statements that the
trial court was required to take further action on its own without
objection. We do not find plain error.
Dunkin next argues that Judge Cutler erred in
recommending that the parole board not parole Dunkin until he had
served fifty years of imprisonment. Dunkin points to the language
of Spencer v. State, 642 P.2d 1371, 1377 (Alaska App. 1982), where
we stated:
Where an extended parole eligibility term is
imposed, the court must specifically address
the issue and set out with particularity
its reasons for concluding that the parole
eligibility term prescribed by statute would
be insufficient to protect the public and
insure the defendant's reformation.
However, in Spencer we were referring to a situation where the
court has legally restricted the parole board from acting. AS
12.55.115. Judge Cutler merely made a recommendation; she did not
legally restrict Dunkin's parole. The written judgment
specifically provides that Dunkin is eligible for parole after
serving the mandatory minimum period of time required by statute.
Judge Cutler's recommendation is not binding on the parole board.
See Shagloak v. State, 582 P.2d 1034, 1038 (Alaska 1978). As we
pointed out in Lawrence v. State, 764 P.2d 318, 321-22 (Alaska
App. 1988), "[p]arole authorities should be better situated to
judge [the defendant's] prospects for parole because they will
have the opportunity to evaluate [the defendant's potential for
parole] at a future time, after he has had an opportunity to
respond to the effects of rehabilitation programs." Judge
Cutler's recommendation does not prevent the parole board from
exercising its best judgment at that future time.
In making the recommendation, Judge Cutler emphasized
the seriousness of Dunkin's offense, which she found was a
premeditated racial killing. She fully considered Dunkin's prior
favorable record, but considered his prospects for rehabilitation
to be guarded because of the serious nature of the offense and
Dunkin's failure to accept full responsibility for the crime.
Judge Cutler also emphasized the need to deter similar offenses.
We believe that the reasons Judge Cutler gave are sufficient to
justify her recommendation. We conclude that the sentence was not
clearly mistaken.
The conviction and sentence are AFFIRMED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. "Boofer" is a derogatory term for a black person.
