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W.Va. woman guilty of murder in heroin death

October 01, 2004|by CANDICE BOSELY

martinsburg@herald-mail.com

MARTINSBURG, W.VA. - As a clerk announced Thursday afternoon that a jury had found Nicole Kees guilty of first-degree murder, Kees shook her head, covered her face with her hands and began to sob.

Moments later, after members of the jury were dismissed, Kees screamed, "I'm going to spend my life in prison because their son wanted to get high?"

Although the verdict carries an automatic sentence of life in prison, jurors decided to grant mercy, meaning Kees will be eligible for a parole hearing after serving 15 years. Parole is not guaranteed.

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As she was led out of the courtroom and her mother said she loved her, Kees motioned toward Jashua Eugene Frocke's family members, who were sitting across the aisle from Kees' relatives.

"Well, thank that f---ing family," Kees yelled.

Her hands cuffed in front of her, Kees, 21, forcefully opened one of the courtroom's doors, causing a large gash in the drywall when the doorknob banged into it.

Circuit Judge Christopher Wilkes later admonished Kees, telling her that she could be charged with destruction of county property and that from now on she will be fully restrained while in his courtroom.

Jurors deliberated for two hours before finding Kees guilty of first-degree murder under the state's felony murder doctrine.

One of the jurors, a woman, cried quietly as the verdict was read, according to two employees of the prosecutor's office who were sitting in the courtroom as the verdict was read.

The verdict means jurors found that Kees delivered heroin to Frocke on Jan. 12. Frocke, 18, died of a heroin overdose that night after a party at the Krista Lite Motel in Martinsburg. A motel employee found Frocke's body the next morning in room No. 22.

Wilkes is scheduled to formally sentence Kees on Dec. 17, after probation officers complete a pre-sentence investigation.

After the verdict, Frocke's father, Warren Eugene Frocke, said his son enjoyed karate and loved to ride BMX bicycles. He had two stepbrothers and two stepsisters whom he loved very much, Frocke said.

The verdict did not bring closure, he said.

"I thought listening to that verdict would make things different, but it doesn't change anything," Frocke said. "It doesn't bring my son back."

West Virginia's felony murder law means a person can be charged with murder if a death occurs during the commission of a felony. In Kees' case, the underlying felony was delivery of heroin.

Kees bought heroin that day and shared it with Frocke, which Berkeley County Prosecutor Pamela Games-Neely said equals delivery of a controlled substance.

Heroin use in the area is increasing, she said.

"It is a message," she said of the verdict after the trial, "and the message is, you know you're dealing death here.

"This is not a game. This is not a kid's game."

Although Kees did not intend for Frocke to die, drug use carries that possibility, Games-Neely said.

"Is that 20 minutes or half an hour or 15 seconds worth it?" she asked.

Kees' trial began Wednesday morning with jury selection. Games-Neely called nine witnesses to the stand, including three people who were with Frocke and Kees in the motel room, the state's chief medical examiner, motel employees and West Virginia State Police Cpl. R.T. Dyroff, who investigated Frocke's death.

After the state rested its case at 4:35 p.m. Wednesday, jurors were sent home for the day.

On Thursday morning before jurors were called back into the courtroom, Kees' attorney, Craig Manford, said he rested his case.

Manford did not call any witnesses and Kees did not testify.

Reached after the verdict, Manford said he will appeal the case to the West Virginia Supreme Court and also plans to file a motion requesting a new trial.

He thanked the jury for their work.

"Clearly I think they felt they had to follow the law," Manford said, adding that jurors apparently decided to define delivery as one person handing something to another person, rather than a drug deal.

Manford said he hopes to argue to Supreme Court justices that the circumstances in Kees' case do not rise to the level of being murder.

"I really think the law needs to be looked at," he said.

He expressed disappointment that Wilkes did not give jurors the option of finding Kees guilty of delivery of a controlled substance instead of murder.

Jurors had only one choice - to find Kees either guilty or innocent of murder.

"I think they felt constrained by the law," Manford speculated of the jurors. "I don't think they agreed with the law."

He said he was pleased that jurors granted mercy.

During his closing argument to jurors, Manford said that Kees did not deliver the drugs to Frocke, but that both were addicts sharing some heroin that Kees had purchased with Frocke's help.

"How can you deliver something that's already yours?" he said to jurors.

Shaking his head, Manford told jurors that the "whole thing" was a tragedy for everyone involved.

"Don't make it a double tragedy by sending another kid to jail for life," he said.

During her closing argument, Games-Neely said that Frocke's mother and father will never again see or express love for their son, be able to get help for him or hold grandchildren fathered by him.

"You've got to stop drugs any way you can," she told jurors.

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