Dunkin v. State

Michael Dunkin (defendant) was indicted for murdering Julius Marshall, a Black male, by shooting Marshall three times in the head and neck at close range. The state (plaintiff) maintained that Dunkin shot Marshall for racial reasons. During voir dire, the prosecutor asked five prospective jurors whether they could give the victim a fair trial if race were an issue in the case. The final time the prosecutor posed the question, he asked whether the juror promised to give Marshall, a Black man, as well as the defendant, a fair trial. The court sustained Dunkin’s objection. Rephrasing the question, the prosecutor asked whether the juror could give the state as well as the defendant a fair trial knowing that Marshall was a Black man. Dunkin did not request a curative instruction. The evidence established that Dunkin and Dunkin’s brother and his friend went to the races and then four-wheeling in Dunkin’s jeep. The jeep had a removable top bearing the words “Boofer hunter.” “Boofer” was a derogatory slang term for a Black person. The jeep got stuck in the river. Marshall operated an auto-repair and towing business. While Marshall was towing Dunkin’s jeep out of the river, Dunkin told a spectator he was going to “waste the old spook.” After Marshall towed the jeep to his shop and got it started, Dunkin pulled out a gun and fired three shots into Marshall’s head and neck. As Dunkin drove away, he told his brother’s friend who had witnessed the shooting not to worry because it was “just a nigger . . . just a boofer.” The prosecutor stated at the end of his closing argument that Marshall had a right that justice be done. Dunkin did not object. Dunkin was convicted and argued on appeal that the prosecutor’s questions during voir dire and the statement in his closing argument were seriously prejudicial and constituted plain error. Dunkin maintained that Marshall was not on trial, the voir dire questions would have inflamed the jurors’ emotions because of evidence that the shooting was racially motivated, and the prosecutor’s closing argument called on the jury to avenge Marshall’s murder.