THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, March 22, 1995 TAG: 9503220255
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY LANE DEGREGORY, STAFF WRITER
DATELINE: NAGS HEAD LENGTH: Medium: 100 lines
A Norfolk construction worker convicted of murdering his live-in girlfriend, then chopping off her head and hands, contends he deserves a new trial.
Michael Grant Dial, 39, has been serving a life sentence in North Carolina prisons since a Dare County jury convicted him on March 1, 1994, of second-degree murder.
Dial's court-appointed attorney filed a 56-page brief in the state's First District Court of Appeals earlier this month. The document claims 25 errors were made by the Superior Court judge during Dial's capital trial, and asks the Court of Appeals to dismiss the charges or grant Dial another trial.
``A new trial in which we're allowed to contest jurisdiction of the case is about the best we can hope for,'' said John B. Gladden, a Kitty Hawk attorney who has represented Dial for three years.
``My client really believes that if all the evidence is brought out again, and a new jury hears this case from the beginning, that he would be acquitted,'' Gladden said Tuesday. ``Usually, the defendant doesn't challenge jurisdiction. But this case is pretty rare.
``If it does get to the Court of Appeals, it will certainly set some legal precedents.''
Brenda Gail Dozier, a 22-year-old Norfolk cocktail waitress, lived with Dial for more than a year before she disappeared in Norfolk about 10:30 p.m. 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 the capital crime was committed 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 case again last year. This time, jurors were not asked to determine whether the murder took place in North Carolina - only whether Dial had committed the crime. The panel convicted Dial after a 12-day trial.
``Other than the body, there was no evidence of this murder collected in North Carolina,'' Gladden said. ``Police never found a murder weapon. The coroner never determined a cause of death. The head and hands were cut off after she died. Neither the victim nor the defendant ever were seen in North Carolina. All the evidence anyone has is entirely circumstantial.''
Without any evidence that Dozier was murdered in North Carolina - and since she and Dial were last seen in Virginia - Gladden said his client never should have been tried by a North Carolina jury. The state should have had to prove that the crime occurred within its jurisdiction, Gladden said. Instead, one jury determined jurisdiction - and another determined guilt.
``I couldn't find any case - on federal or state level - in which two different juries decided two separate issues of the same case,'' said Gladden. ``All the essential facts must be found by the jury, not a jury.''
Gladden said Superior Court Judge J. Richard Parker made at least 24 other errors in adjudicating the case.
Other alleged judicial errors which Gladden said should justify a third trial include:
During the first trial, N.C. Medical Examiner Dr. Stanley Harris testified that Dozier died between 9 p.m. July 2 and late July 3. Harris changed his testimony substantially during the second trial, expanding the 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 appeal.
``Trial court's refusal to allow the defendant additional time to prepare for this surprise evidence was prejudicial to his defense. Denial of the motion is grounds for a new trial.''
Throughout the second trial, local newspapers published articles detailing background of Dial's case, outlining terms of a plea bargain and quoting a state's witness who testified that Dial said, ``Something has gone south, and I had to off a couple of people.''
Gladden asked the judge, at the time, to poll unsequestered jurors to determine whether they had read the articles. The judge refused.
``To require the trial court to poll the jurors . . . is a small step which could possibly save the validity and integrity of the trial and avoid the costly correction of an appeal,'' Gladden wrote.
At least three North Carolina Appeals Court judges will read Gladden's and the state's briefs - then, perhaps, request oral arguments. The Appeals Court panel then will decide whether to dismiss the case entirely, deny an appeal, or grant a third Superior Court trial.
Officials in the N.C. Attorney General's Office have until May 1 to respond to Dial's request for an appeal.
Meanwhile, Dial is behind bars at Tillery Correctional Institute in Halifax County. He is playing guitar and working in the prison gymnasium. Since he appeared on television talk show host Jerry Springer's syndicated show after his 1994 trial, Dial has gotten love letters from at least five women in Texas, Massachusetts, Georgia and California.
``They all have fallen in love with him after seeing his case on TV,'' Gladden said of his burly client. ``He is entitled to a fair trial no matter what. He also is entitled to test the authority of this state to even try him.''
KEYWORDS: MURDER by CNB