State v. Dial

• Decision Date: 07 May 1996
• Docket Number: No. COA94-1368,COA94-1368
• Citation: 470 S.E.2d 84,122 N.C.App. 298
• Parties: STATE of North Carolina v. Michael Grant DIAL, Appellant.
• Court: North Carolina Court of Appeals

Page 84

470 S.E.2d 84

122 N.C.App. 298

STATE of North Carolina v. Michael Grant DIAL, Appellant.

No. COA94-1368.

Court of Appeals of North Carolina.

May 7, 1996.

Attorney General Michael F. Easley by Assistant Attorney General John J. Aldridge, III, for State.

The Law Firm of Gladden & Rose by John B. Gladden and Randy L. Jones, Kitty Hawk, for defendant-appellant.

JOHN C. MARTIN, Judge.

Defendant appeals from a judgment imposing a sentence of life imprisonment upon his conviction of second degree murder. The procedural and evidentiary history of the case is as follows:

On 12 August 1991, defendant, a Virginia resident, was indicted for first degree murder in connection with the death of Brenda Dozier whose body washed onto the beach of Nags Head, North Carolina on 4 July 1991. Defendant entered a plea of not guilty and moved to dismiss for lack of jurisdiction. At defendant's first trial in Dare County Superior Court, an issue was submitted to the jury of whether North Carolina had jurisdiction, as well as the issue of defendant's guilt or innocence of the offense. On 28 April 1993, the jury returned a special verdict finding that North Carolina had jurisdiction; however, the jury was unable to agree upon the issue of defendant's guilt or innocence. The trial court accepted the jury's special verdict finding jurisdiction and declared a mistrial as to the issue of defendant's guilt or innocence.

Defendant subsequently filed a new motion to dismiss the indictment for lack of jurisdiction and a motion to set aside the special verdict finding jurisdiction. The trial court ruled that the special verdict had determined the issue of jurisdiction and denied the motions. The case was tried a second time in the Dare County Superior Court at the 14 February 1994 criminal session.

At the second trial, the State's evidence tended to show that the victim's head and hands had been amputated from her body. Dr. Lawrence Stanley Harris, a forensic pathologist, determined that the amputation had occurred after death and had been performed with one heavy blade and one smaller, sharper blade. Because of the amputation, the cause of death could not be determined. Dr. Harris testified that the body could have been placed in the ocean as early as 1 July or possibly as late as 3 July.

Defendant and the victim had lived together in an apartment prior to her disappearance. They had a stormy relationship, often engaging in arguments and physical fights. Witnesses testified that defendant had become particularly upset with the victim after she had an abortion.

Around 11:00 p.m. on 1 July 1991, defendant, the victim and her brother, Chris Jackson, left a bar near Norfolk, Va. in defendant's truck. After taking Jackson to his house, defendant and the victim headed to their apartment. Defendant told police that he and the victim had an argument on the way, and he stopped the truck. Defendant claimed that he last saw the victim when she got out and walked away from the truck.

Defendant told police that he went on to the apartment and waited. When the victim did not come home, he called Jackson but was told she did not go to his home. Defendant said that when he left for work at 6:00 a.m. the victim still had not arrived at the apartment, but when he returned around 3:30 p.m. he saw clothes she had worn the night before so he knew she had returned. However, defendant said he did not see or talk to the victim again.

Defendant worked the next few days and resided at his parents' home during this time. Lorraine Rudacil, a friend of defendant, and Charles Dabney, a co-worker of defendant, both testified that defendant had told them he planned to take the victim on a fishing trip to the North Carolina coast during the 4 July holiday.

Defendant was known to keep his truck in immaculate condition, but on 5 July 1991, the day after the victim's body was discovered, defendant drove his truck to an area south of Richmond, Virginia, set fire to the truck, and then hitchhiked back to Virginia Beach. Witnesses including Rudacil, Dabney, John McNeese, another friend of defendant, William Horton, defendant's supervisor, and Douglas Campbell, another co-worker of defendant, testified that defendant told them the victim had bled in the truck from an accidental head wound suffered after an argument between the couple. Rudacil and Horton testified that defendant told them the accident happened the night that the victim disappeared. Campbell testified that defendant said the accident happened a couple of weeks earlier.

Defendant appeared nervous and agitated at work on the days after Ms. Dozier's disappearance but before her body was found. Dabney testified about statements defendant had made earlier that he wished the victim were dead. Campbell testified that on 1 July defendant had stated that if he and Ms. Dozier did not get away from each other he was going to "put chains on her and carry her out in one of the tributaries and chain her to the bottom of the ocean." Defendant later asked Campbell not to say anything about his threats to kill Ms. Dozier. Robert Hart, another of defendant's friends, testified that on 4 July, the night the victim's identity became public knowledge, he was outside a club talking with defendant next to defendant's truck. Hart stated that he noticed a gasoline odor coming from the cab of the truck, and when he mentioned it defendant indicated he was in some trouble and that "if he were pulled over he would take out whoever pulled him over--with him." He testified that defendant told him that "something had gone south and that he had to off two people." Hart also stated that a couple of days later defendant told him "basically that he didn't want to see anything happen to me so I should not say anything about what I was told."

Defendant's motion to dismiss the charge of first degree murder at the close of the State's evidence was denied. Defendant offered evidence tending to show he spent the night of 1 July 1991 at the home of his parents, and that he and Ms. Dozier were not seen together thereafter. The clothes Ms. Dozier wore on the night of her disappearance were later found in the laundry at her apartment. Defendant offered alibi evidence for most of the time between the victim's disappearance and the discovery of her body. No evidence of foul play was discovered in the burned truck; there was no direct evidence that defendant entered North Carolina during the time in question; and defendant made no mention of Ms. Dozier in his statements that "something had gone south" and that he had "had to off two people," nor did he indicate when or where the events he was referring to had occurred.

At the close of all the evidence, defendant renewed his motion to dismiss the charge of first degree murder. The motion was denied. The jury convicted defendant of second degree murder.

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In his appellant's brief, defendant has presented arguments in support of the questions raised by twenty-three of the twenty-seven assignments of error contained in the record on appeal. The remaining four assignments of error are deemed abandoned. N.C.App. R. 28(a), 28(b)(5). We have carefully reviewed his arguments and find no prejudicial error in his trial.

By his first two assignments of error, defendant contends the trial court erred by denying his motions made prior to his second trial, (1) to dismiss the indictment for lack of jurisdiction and (2) to set aside the special verdict returned by the jury at the first trial finding that North Carolina had jurisdiction. Defendant does not argue in this Court that the evidence at his first trial was insufficient to support the jury's special verdict as to jurisdiction. Rather, he argues that the special verdict was not binding at his second trial so that the State should have been required to prove, beyond a reasonable doubt, the existence of jurisdiction to the same jury deciding his guilt or innocence at his second trial. We reject his argument.

Where a criminal defendant challenges the theory upon which the State claims jurisdiction to try him, the question is a legal question for the court; however, where the defendant challenges the facts upon which jurisdiction is claimed, the question is one for the jury. State v. Darroch, 305 N.C. 196, 287 S.E.2d 856, cert. denied, 457 U.S. 1138, 102 S.Ct. 2969, 73 L.Ed.2d 1356 (1982). Where the locus of the offense is challenged, the State must prove beyond a reasonable doubt that the crime occurred in North Carolina. State v. Rick, 342 N.C. 91 463 S.E.2d 182 (1995); State v. Batdorf, 293 N.C. 486, 238 S.E.2d 497 (1977). Here, by his motion to dismiss, defendant alleged the State had insufficient evidence to show the murder of Brenda Dozier was committed in North Carolina, a factual challenge to jurisdiction.

The question before us, then, is whether the trial court's acceptance of the jury's special verdict finding that North Carolina has jurisdiction at defendant's first trial, prior to declaring a mistrial by reason of the jury's inability to agree upon the issue of guilt or innocence, precludes defendant from relitigating jurisdiction at his second trial. The question is apparently one of first impression. We believe, however, that it is resolved by application of the settled principles of res judicata and collateral estoppel.

"Res judicata deals with the effect of a former judgment in favor of a party upon a subsequent attempt by the other party to relitigate the same cause of action." King v. Grindstaff, 284 N.C. 348, 355, 200 S.E.2d 799, 804 (1973). "[W]hen a fact has been agreed on, or decided in a court of record, neither of the parties shall be allowed to call it in question, and have it tried over again at any time thereafter, so long as the judgment or decree stands unreversed." Humphrey v. Faison, 247 N.C. 127, 133, 100 S.E.2d 524, 529 (1957) (quoting Armfield v. Moore, 44 N.C. 157, 160)....