Woman on trial in man's heroin death in Martinsburg

September 30, 2004|by CANDICE BOSELY

MARTINSBURG, W.Va. - After setting up an easel in front of a 12-person jury Wednesday morning, defense attorney Craig Manford reached into his jacket pocket, pulled out a set of keys, handed them to his legal assistant and asked his assistant to hold them.

"Was that delivery?" Manford then asked jurors during his opening statement in the felony murder trial of Nicole Kees.

The definition of what constitutes delivery of a controlled substance is a major part of the case against Kees, 21, who is charged with felony murder in connection with the death of Jashua E. Frocke, 18.

Frocke's body was found inside a Martinsburg motel room on Jan. 13.

Kees' trial began Wednesday and is expected to resume today.

Felony murder means a death occurred during the commission of a felony. Berkeley County Prosecutor Pamela Games-Neely argued that the underlying felony in Frocke's death was delivery of heroin.


On Jan. 12, Kees cashed two stolen checks, bought heroin with the money and gave half of the heroin to Frocke, Games-Neely contended.

"When she did that she signed his death warrant," Games-Neely told jurors during her opening statement.

Manford disagreed.

Frocke and Kees were both heroin addicts who were simply sharing drugs, he said.

"Josh is not a third-party observer. He is an active participant in the entire process," Manford said.

He called Frocke's death a tragedy and apologized to members of Frocke's family, who were sitting in the courtroom.

"It's my job to make sure two tragedies don't occur here," Manford said.

Manford argued that when Kees and her boyfriend walked out of room No. 22 at the Krista Lite motel, Frocke was still inside, alive, with Aaron Polkey.

Polkey was the last person to see Frocke alive, Manford said.

"He could've saved him," Manford said, adding that he believes Polkey chose not to call 911 because he was worried he would be implicated in drug activity. "His selfishness overrode human compassion," he said.

Polkey was one of nine witnesses who testified. The day ended when the state rested its case at 4:35 p.m.

The defense will begin its case this morning, when Manford said he will let Circuit Judge Christopher Wilkes know whether Kees will testify.

Polkey, 18, was the first witness called to the stand. He said that on Jan. 12, Frocke and Kees asked him if he wanted to make some money.

He said he was interested and drove them to two banks, where Kees wrote out checks and Frocke endorsed them. He said he later learned the checks were stolen.

Polkey said that over the next several hours the trio went to gas stations, stopped by Kees' house and went to a trailer off W.Va. 51, where Kees bought some heroin.

He testified that he then stopped at a Sheetz store and Kees and Frocke went inside. He said he believes they injected heroin while inside the store because "you could tell they were messed up."

Kees and Frocke later checked into the motel room. Eventually as many as five people gathered in the room and everyone used heroin, Polkey said.

Frocke shot up several times and pulled the comforter and pillow from the room's bed to lie on the floor. After Frocke made a gasping sound, which sounded as if he was having trouble breathing, Kees nudged him with her foot and said he was dead, Polkey testified.

He said he checked Frocke's neck for a pulse and did not find one. Nobody discussed calling 911, he said.

"I was scared. Everybody was scared," he testified.

Polkey, who was granted immunity in exchange for his testimony, said during cross-examination that he previously told police that Frocke had his own heroin, along with what Kees gave him.

Polkey said that once the group was in the motel room, Kees took out the heroin and started to divide it, prompting Frocke to tell her not to cheat him out of his half.

James "J.L." Robinson III, who was Kees' boyfriend at the time, also testified. He was in the room for part of the night, he said.

Robinson said that when he left to take Kees home, Frocke was on the floor and told him goodbye. He said he walked out first to warm up his car and that Kees came out less than five minutes later.

Members of the jury - eight men and four women - were not shown pictures of Frocke's body, although a sketch of the motel room, drawn by Cpl. R.T. Dyroff with the West Virginia State Police, was projected onto a courtroom wall. The sketch showed where Frocke's body was found.

Dyroff, the last witness to testify, said he was dispatched to the motel at around 10:30 a.m.

Frocke's body was facedown on the floor and a piece of heroin was found in one of his pockets. Dyroff said he also found on Frocke a spoon and syringes, which are items used to inject heroin.

Dyroff said he also found a jacket in the room that had syringes hidden in the lining. Kees later said the jacket was hers, Dyroff testified.

When Dyroff arrested Kees on Jan. 21 she said "she wasn't the one who should be arrested," Dyroff testified. "She asked, 'Well, is anybody else going to be arrested?'"

Kees also told police that she bought the heroin for her, Frocke and Polkey to share and said she gave Frocke half a gram, Dyroff said.

Several witnesses testified that Frocke injected the heroin himself.

Dr. James Kaplan, chief medical examiner for the state of West Virginia, testified that Frocke died from a heroin overdose. Dr. James Kraner, the chief toxicologist in Kaplan's office, said that the concentration of the drug in Frocke's body was .62 milligrams per liter.

Kraner said that such an amount tends to cause serious problems or death among users who are not taking morphine regularly to control pain such as that caused by cancer.

Conviction on a charge of felony murder carries a sentence of up to life in prison without parole.

The Herald-Mail Articles