THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, August 8, 1995 TAG: 9508080282
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY LANE DEGREGORY, STAFF WRITER
DATELINE: NAGS HEAD LENGTH: Long : 106 lines
A Norfolk construction worker convicted of murdering his live-in girlfriend and chopping off her head and hands will be back in court next month.
Michael Grant Dial, 39, has been serving a life sentence in North Carolina prisons since a Dare County jury convicted him of second-degree murder on March 1, 1994.
Last week, the North Carolina Court of Appeals agreed to hear oral arguments in Dial's case. His lawyer and an official from the state attorney general's office each will have 30 minutes before a three-judge panel on Sept. 26 in Raleigh. The appeals court judges will decide within about three months whether Dial should receive a third trial.
``The fact that the court is hearing this case may suggest that there are some findings in the original court proceedings that need to be reviewed,'' Appeals Court Clerk John Cannell said from his Raleigh office Monday. ``Only about one-fourth to one-third of the criminal cases that come before this court are actually heard in oral arguments.''
Attorney John B. Gladden, who has represented Dial for more than three years through two trials, said he was elated.
``I was just relieved that the court recognized how unique this case was, and saw that it was worthy of being argued again,'' Gladden said Monday from his Kitty Hawk office. ``Whatever comes out in the appeals court decision, it will be precedent-setting in terms of North Carolina law. The issues being debated in this case have never been decided before.''
Brenda Gail Dozier, a 22-year-old Norfolk cocktail waitress, had lived with Dial for more than a year before she disappeared on July 1, 1991.
Three days later, tourists visiting the Outer Banks for Independence Day discovered Dozier's nude, decapitated, handless body on the beach near the Nags Head police station. The body had washed ashore from the Atlantic Ocean. Relatives identified Dozier by a rose tattoo above her left breast.
In April 1993, a Dare County jury found that Dozier was murdered in North Carolina. The panel split 6-6, however, over whether Dial was guilty of murder. The Superior Court judge accepted the jury's decision on jurisdiction - then declared a mistrial.
Another jury heard the same case again last year. This time, jurors were not asked to determine whether the murder took place in North Carolina - only whether Dial committed the crime. After a 12-day trial, the panel convicted Dial.
He has been running a recreation room at Tillery Correctional Institute in Halifax County for the past several months. His lawyer said he will be eligible for parole in about seven years.
``Other than the body, there was no evidence presented that this murder happened in North Carolina,'' Gladden said. Police never found a murder weapon, nor Dozier's head or hands. The coroner never determined a cause of death. Neither the victim nor the defendant were seen in North Carolina.
``I'll try to convince the court that Mike Dial had a right to dispute the jurisdiction in the case against him,'' said Gladden. ``Before North Carolina can try this case, the prosecution has to prove it happened here. The same jury that rules on Dial's guilt or innocence should also decide whether they have the authority even to try him.''
According to a 56-page brief Gladden filed in March, the Superior Court judge who ruled during Dial's 1994 trial made 25 errors in adjudicating the case. The most blatant one - and the one that the appeal most likely will focus on - was the jurisdictional issue, Gladden said. North Carolina judicial files do not contain any other criminal cases in which one jury decided jurisdiction and another ruled on guilt or innocence.
Another alleged judicial error that Gladden said should justify a third trial occurred when North Carolina Medical Examiner Dr. Stanley Harris changed his testimony about Dozier's possible time of death. During the first trial, Harris said she died between 9 p.m. July 2 and late July 3. During the second trial, the medical examiner expanded the possible time of death to include July 1 and early July 2.
``This material change in the evidence rendered defendant's alibi questionable because he was then forced to account for his presence for at least 12 additional hours of his time,'' Gladden wrote in the request for an appeal. ``Trial court's refusal to allow the defendant additional time to prepare for this surprise evidence was prejudicial to his defense.''
In a 36-page response to Gladden's request for an appeal, the state argues that Harris' testimony ``was relevant and properly allowed.'' The medical examiner only changed his time frame, prosecutors said, ``following exhaustive and extensive research with other experts in the field.''
``The defendant had a motive to kill Brenda Dozier as evidenced by their constant arguments and fights, and by the defendant's comments that he had to off a couple of people because one of them knew too much,'' said the state's response. ``The defendant was the last person to see Brenda Dozier alive and was the last person in her company.''
After the appeals court panel hears arguments and asks questions from both attorneys, the three judges could decide to:
Uphold the Superior Court's decision and keep Dial behind bars to serve out his sentence.
Uphold the Superior Court's decision and re-sentence Dial.
Reverse some of the Superior Court's decisions on issues within the case, but uphold Dial's conviction and sentence.
Reverse some of the Superior Court's decisions on issues within the case, and re-sentence Dial.
Reverse all or some of the most major rulings the Superior Court made and send the case back to Dare County for a third trial in the same courtroom.
``The best we're hoping for is a new trial,'' Gladden said. ``Mike Dial is happy and excited that the court will consider his case again. Another trial - and a chance to really argue jurisdiction - is what he really wants.'' MEMO: This story and a file photo of Michael Dial appeared in the North
Carolina Edition,p. B1.
KEYWORDS: MURDER APPEAL CONVICTION NORTH CAROLINA by CNB