Judge - Statements can be used at trial

September 18, 2004|by CANDICE BOSELY

MARTINSBURG, W.Va. - Two statements a woman charged with felony murder gave to police can be used at her trial, even though the state trooper who took them did not use a standard waiver-of-rights form, a judge ruled Friday.

Nicole Kees, 21, of 345 Currency Drive in Bunker Hill, W.Va., was indicted in May on charges of felony murder and delivery of heroin in connection with the heroin overdose death of Jashua Frocke, 18.

Kees' trial is scheduled to begin Sept. 29.

During a pretrial hearing before Circuit Judge Christopher Wilkes, two police officers testified about two statements Kees gave to police earlier this year.


The purpose of the hearing was to determine whether Kees was under the influence of any drugs when she gave the statements and to determine whether she voluntarily waived her right to speak with an attorney before talking to police.

West Virginia State Police Cpl. R.T. Dyroff said he first spoke with Kees either the day of or the day after Frocke's body was found in a room at the Krista Lite motel in Martinsburg on Jan. 13.

He said he wanted to speak to Kees because she called the motel and said she left a coat in the room where Frocke was found and also because Frocke's girlfriend's mother mentioned Kees' name, Dyroff said.

Dyroff said he met Kees at her aunt's home in Bunker Hill, where she was living. Although she initially appeared groggy, Kees smoked a cigarette and then was able to clearly answer and understand questions, Dyroff said.

Dyroff said in such situations, he always takes a card from his uniform shirt pocket to read a person their Miranda rights. He said he did not have Kees sign paperwork indicating she wanted to waive her rights because he did not have a copy of the form in his car.

Dyroff and Sgt. Russell Shackelford, with the Berkeley County Sheriff's Department, spoke to Kees a second time after an arrest warrant was issued on Jan. 21.

When they picked Kees up that day, she seemed nervous but otherwise normal, Shackelford said. While riding in a police car to Martinsburg, Kees asked questions pertaining to the investigation, including whether she was the only person implicated in Frocke's death and whether anyone else was going to be arrested, Shackelford said.

Once they arrived at Berkeley County Magistrate Court, Shackelford left and Dyroff began doing a formal interview, the officers said.

Dyroff said he photocopied the card he carries in his pocket before conducting that interview and had Kees sign the paper.

Attempting to determine whether Kees was under the influence of drugs when she gave the statements, her attorney, Craig Manford, asked whether Kees' eyes were bloodshot or whether her speech was slurred.

Dyroff and Shackelford said Kees did not seem to be impaired.

Neither of Kees' statements was recorded, police said.

Frocke's body was found Jan. 13, facedown on the floor of room No. 22, Dyroff previously has said. Frocke had a lighter in his hand and needles and a burned spoon in his pocket, all of which are associated with heroin use, Dyroff said.

After finding the body, Dyroff began tracking down all of the others who had been in the motel room on the night of Jan. 12. Along with Kees, three others also were with Frocke and all admitted to using heroin, Dyroff said.

When Kees was taken into custody on Jan. 21, she told Dyroff that she had purchased the heroin and had given half to Frocke. She said she did not inject the heroin into Frocke, but that another person in the room did, Dyroff has said.

Nobody else was charged in connection with Frocke's death.

A charge of felony murder means a person died during the commission of a felony. According to the indictment, the underlying felony in Frocke's death was delivery of heroin.

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