STATE OF NORTH CAROLINA
v.
DANNY DEAN FROGGE
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from
a judgment imposing a sentence of death entered by McHugh, J., on
27 March 1998 in Superior Court, Forsyth County, upon a jury
verdict finding defendant guilty of first-degree murder.
Defendant's motion to bypass the Court of Appeals as to his
appeal of additional judgments was allowed by the Supreme Court
on 31 August 1999. Heard in the Supreme Court 13 September 1999.
Michael F. Easley, Attorney General, by David Roy
Blackwell, Special Deputy Attorney General, for the
State.
David B. Freedman, Dudley A. Witt, and Laurie A.
Schlossberg for defendant-appellant.
WAINWRIGHT, Justice.
Indictments dated 20 March 1995, and superseding
indictments dated 3 July 1995, charged defendant Danny Dean
Frogge with the first-degree murders of his father, Robert Edward
Frogge, and his stepmother, Audrey Yvonne Frogge. He was tried
capitally at the 28 August 1995 Criminal Session of Superior
Court, Forsyth County. The jury found defendant guilty of both
murders on the basis of premeditation and deliberation and under
the felony murder rule. After a capital sentencing proceeding,
the jury recommended and the trial court imposed a sentence of
life imprisonment for the murder of Robert Frogge and a sentenceof death for the murder of Audrey Frogge. On appeal, this Court
found reversible error in the guilt-innocence phase of
defendant's first trial and ordered a new trial. State v.
Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997) (Frogge I).
After the remand, on 20 January 1998, defendant also
was indicted for robbery with a dangerous weapon of his father on
the night the murders took place. Defendant was retried
capitally at the 16 March 1998 Criminal Session of Superior
Court, Forsyth County. The jury again found defendant guilty on
both counts of first-degree murder on the basis of premeditation
and deliberation and under the felony murder rule. In addition,
the jury found defendant guilty of robbery with a dangerous
weapon. As defendant was previously sentenced to life
imprisonment for the murder of his father, the trial court
imposed the same sentence for the conviction on retrial and
imposed a concurrent term of imprisonment for the robbery
conviction. A capital sentencing proceeding was conducted for
the conviction regarding defendant's stepmother, and the jury
again recommended a sentence of death. On 27 March 1998, the
trial court sentenced defendant to death. Defendant appeals as
of right from his conviction for the first-degree murder of his
stepmother. On 31 August 1999, this Court granted defendant's
motion to bypass the Court of Appeals as to his remaining
convictions.
The State's evidence at defendant's second trial tended
to show that defendant stabbed his father and bedridden
stepmother to death. At the time of the murders, defendant livedwith his father and stepmother at their home in Winston-Salem.
Defendant's father did not work, and his stepmother had been
confined to her bed for over two years. Defendant worked part-
time and helped around the house, but paid no rent.
Between 4:00 and 4:30 a.m. on 5 November 1994, the
Winston-Salem Police Department received a 911 call from a person
who identified himself as Danny Frogge. Frogge reported that his
parents were dead. When Winston-Salem police officers arrived at
the scene, they found the bodies of Robert and Audrey Frogge in
their bedroom. Robert Frogge was found on the floor lying on his
left side with bloodstains on his shirt and arms. He had
sustained ten stab wounds. A leather wallet, containing his
driver's license and miscellaneous papers but no money, was found
next to his body. The wallet, which was lying open, had a drop
and a smear of blood inside. Near the wallet, a white,
bloodstained sock was found. An iron bar from a lawnmower was
found under Robert Frogge's body. Audrey Frogge was found in her
hospital-type bed with bloodstains on her chest and arms. She
had sustained eleven stab wounds to her chest. In addition, she
suffered defensive knife wounds to her hand. A hospital-type
rolling table stood beside the bed. Dr. Patrick Lantz, a
forensic pathologist, opined that the angle of the stab wounds
indicated the person stabbing Audrey Frogge either stood at the
edge of the bed beside the table or climbed on the bed itself to
deliver the blows.
Outside the home near the back porch, the officers
found a bloodstained butcher knife. Just beyond the edge of thewoods behind the house, the officers found men's clothing,
including a pair of blue work pants, a pink tee shirt with red
stains, a pair of men's underwear, and a white sock which
contained bloodstains and blood spatter. The white sock appeared
to match the sock found near Robert Frogge's body. The officers
also collected several pairs of white underwear and blue work
pants from defendant's bedroom which appeared similar to those
found in the woods.
While talking further with the officers that night,
defendant appeared calm and showed no signs of emotion. In a
statement to Winston-Salem Police Detective Sergeant Dennis
Scales, defendant claimed that on the day of the murders he had
been in and out of the house on numerous occasions taking care of
his stepmother and preparing her supper. After a night of
drinking and crack cocaine use with friends, he returned to the
home at approximately 4:00 a.m. and found his parents murdered.
The State also offered into evidence defendant's
testimony from the sentencing proceeding of his first trial.
This testimony included the following: On the day of the
murders, defendant worked around the house and later met with
Earl Autrey, Audrey Frogge's son-in-law, at approximately 2:00
p.m. The two began drinking. Defendant went back to his
parents' home to prepare supper for his stepmother and later
returned to Autrey's home to continue drinking. Subsequently,
defendant returned to his parents' home. Defendant had consumedalmost an entire pint of liquor and several beers. Defendant's
father awoke from a nap between 8:00 and 8:30 p.m. and began to
argue with defendant about his drinking. Defendant could not
recall what he said to his father; however, his father became so
upset that he took an iron bar from a lawnmower and jabbed and
hit defendant four or five times. Defendant got up, went to the
kitchen, and retrieved a butcher knife. He recalled stabbing his
father three or four times while his father held the iron bar.
Defendant did not remember stabbing his stepmother, but admitted
that he must have done it. He then took approximately twenty-
five or twenty-six dollars from his father's wallet. Defendant
attempted to wash the blood from his hands. He then changed
clothes and threw the soiled clothes in the woods behind the
house. When asked how blood got inside his father's wallet,
defendant stated that he did not know, but admitted it might have
dropped from his hand. Defendant left and went to Kim Dunlap's
house. He and Dunlap then rode with Dunlap's sister to downtown
Winston-Salem. They used the money defendant had taken from his
father's wallet to purchase crack cocaine. After smoking the
crack, defendant and Dunlap returned to defendant's parents' home
in a taxicab around 4:00 or 4:30 a.m. Defendant entered the
house, but returned to the taxicab and said that his parents were
dead. He then called the police.
Defendant elected to testify on his own behalf at his
second trial. His testimony was similar to that given at his
first sentencing proceeding. He testified he served over four
years in prison for a previous second-degree murder convictionand that he saved $8,000 to purchase a mobile home where he
resided for six months after his release. Thereafter he returned
to live with his father and stepmother. Defendant again admitted
killing his father and stepmother and stated that after the
murders, he changed his clothes and washed his hands. His
testimony differed somewhat in that defendant claimed he did not
take the money from his father's wallet until after he had washed
his hands and was preparing to leave the house approximately
thirty minutes after the murders. Defendant again admitted
purchasing crack cocaine with the money he took from his father's
wallet.
In defendant's first assignment of error, he contends
the trial court erred in allowing the State to introduce
defendant's testimony from the sentencing proceeding of the first
trial during the guilt-innocence phase of the second trial on the
ground that it constituted a violation of his Fifth Amendment
privilege against self-incrimination.
Prior to the second trial, the State filed a Notice of
Intent to Use and Motion in Limine to admit defendant's
sentencing proceeding testimony. The trial court, after hearing
testimony on the State's motion, held the prior statements to be
admissible in the guilt-innocence phase of the second trial.
Specifically, the trial court stated that defendant . . . has
failed to show that he was compelled to testify due to the
admission of any unconstitutionally obtained evidence and if
there is not compulsion resting on the defendant's testimony inthe first trial, . . . there is no violation of any Fifth
Amendment rights against self-incrimination.
Defendant contends the introduction of the prior
testimony was error because it was compelled by a constitutional
violation in the first trial. Defendant primarily relies on two
cases: Harrison v. United States, 392 U.S. 219, 20 L. Ed. 2d
1047 (1968), where the United States Supreme Court, using the
fruit of the poisonous tree theory, held that the principle
which prohibits the use of wrongfully obtained confessions also
prohibits the use of any testimony impelled by the confessions
because it violates the Fifth Amendment right against self-
incrimination, and Lilly v. Virginia, 527 U.S. 116, 144 L. Ed. 2d
117 (1999), where the United States Supreme Court held the
defendant's Sixth Amendment Confrontation Clause rights were
violated when the trial court admitted the out-of-court,
inculpatory statements of an unavailable codefendant because the
declarant was not subject to cross-examination. Defendant argues
Harrison and Lilly preclude the State's use of defendant's prior
testimony because it was induced by an unconstitutional
conviction.
In Frogge I, a jailhouse informant's prior inconsistent
statement to the police as to what defendant told him about the
murders was admitted into evidence. We concluded that defendant
was unfairly prejudiced [b]ecause the evidence of this
[inconsistent] statement was hearsay inadmissible for the
purposes of corroboration and because the trial court improperly
admitted the statement under the guise of corroboration. Frogge, 345 N.C. at 618, 481 S.E.2d at 280. Our holding was
guided by case law on N.C.G.S. § 8C-1, Rule 613, an evidentiary
rule. There was no Confrontation Clause violation in Frogge I
because the informant was available for cross-examination. This
issue is not before the Court in this case (Frogge II) because
the informant's testimony was not introduced in the second trial.
Prior statements of a witness which are inconsistent
with his present testimony are not admissible as substantive
evidence because of their hearsay nature. State v. Mack, 282
N.C. 334, 339, 193 S.E.2d 71, 75 (1972) (emphasis added); see
also State v. Bishop, 346 N.C. 365, 387, 488 S.E.2d 769, 780
(1997). On the issue of violations of the Confrontation Clause
because of the admission of hearsay, the United States Supreme
Court has stated, Although we have recognized that hearsay rules
and the Confrontation Clause are generally designed to protect
similar values, we have also been careful not to equate the
Confrontation Clause's prohibitions with the general rule
prohibiting the admission of hearsay statements. Idaho v.
Wright, 497 U.S. 805, 814, 111 L. Ed. 2d 638, 651 (1990).
The cases cited by defendant are distinguishable from
the instant case. In Harrison, wrongfully obtained confessions
were introduced during the first trial; thus, the defendant felt
compelled to testify because of the constitutional violation.
However, in the instant case, the violation in the first trial
was based on the admission of hearsay, not wrongfully obtained
confessions. [I]f defendant's testimony at his first trial was
induced by evidence which was inadmissible under the rules ofevidence, and not because it was unconstitutionally obtained, the
Harrison exception to the general rule permitting the testimony
to be offered at the second trial would not apply. State v.
Hunt, 339 N.C. 622, 638, 457 S.E.2d 276, 285 (1994). In Lilly,
out-of-court, inculpatory statements of an unavailable
codefendant were admitted; thus, the defendant could not confront
the unavailable declarant. However, unlike the situation in
Lilly, the declarant in defendant's first trial testified and was
subject to cross-examination. Thus, there was no constitutional
error in his first trial.
Moreover, there was nothing compelling defendant to
testify during the first sentencing proceeding. [T]he policies
of the privilege against compelled self-incrimination are not
offended when a defendant in a capital case yields to the
pressure to testify on the issue of punishment at the risk of
damaging his case on guilt. McGautha v. California, 402 U.S.
183, 217, 28 L. Ed. 2d 711, 732 (1971).
However, we need not and do not determine whether it
was error to introduce the testimony from the first sentencing
proceeding into evidence during the guilt-innocence phase of the
second trial because, by testifying, defendant waived review of
this issue.
It is well settled that [w]here evidence is admitted
over objection, and the same evidence has been previously
admitted or is later admitted without objection, the benefit of
the objection is lost. State v. Whitley, 311 N.C. 656, 661, 319
S.E.2d 584, 588 (1984). As stated in Hunt, '[a] defendant whochooses to testify waives his privilege against compulsory self-
incrimination with respect to the testimony he gives.' Hunt,
339 N.C. at 638, 457 S.E.2d at 285 (quoting Harrison, 392 U.S. at
222, 20 L. Ed. 2d at 1051); accord State v. Terry, 337 N.C. 615,
624, 447 S.E.2d 720, 725 (1994) (where this Court held defendant
waived his objection to [the admission of his statement to
police] when he testified on direct examination that he had made
this statement, that the statement was not true, and that he made
it because he was afraid of going to jail).
In the instant case, defendant objected to the
introduction of his prior testimony from the first sentencing
proceeding in the guilt-innocence phase of the second trial. The
trial court held the evidence admissible, and the prior testimony
was read into evidence at the second trial. However, defendant
then testified on his own behalf. As a result, defendant lost
the benefit of his previous objection and waived review of this
issue. Hunt, 339 N.C. at 638, 457 S.E.2d at 285.
Nevertheless, assuming without deciding there was error
in introducing the prior testimony, defendant was not prejudiced.
'[T]he admission of evidence as to facts which the defendant
admitted in his own testimony, cannot be held prejudicial.'
State v. Wills, 293 N.C. 546, 549, 240 S.E.2d 328, 330 (1977)
(quoting State v. Adams, 245 N.C. 344, 349, 95 S.E.2d 902, 906
(1957)). Moreover, any error was cured when defendant took the
stand and gave testimony similar to the prior testimony read into
evidence.
To hold that a defendant in a criminal
action, once evidence has been erroneouslyadmitted over his objection, may then take
the stand, testify to exactly the same facts
shown by the erroneously admitted evidence,
and from that point embark upon whatever
testimonial excursion he may choose to offer
as justification for his conduct, without
thereby curing the earlier error, gives to
the defendant an advantage not contemplated
by the constitutional provisions forbidding
the State to compel him to testify against
himself.
State v. McDaniel, 274 N.C. 574, 584, 164 S.E.2d 469, 475 (1968)
(emphasis added).
In defendant's second assignment of error, he contends
the trial court erred in failing to dismiss the charge of robbery
with a dangerous weapon because the charge was a result of
vindictive prosecution and the evidence was insufficient as a
matter of law to support a conviction. Additionally, defendant
argues that because there was insufficient evidence of robbery
with a dangerous weapon, the trial court erred in submitting this
at the sentencing proceeding as an aggravating circumstance. See
N.C.G.S. § 15A-2000(e)(5) (1997). We disagree.
We first address defendant's contention that the
indictment was improper because of vindictive prosecution. A
defendant waives objection to the impropriety of an indictment by
not making a motion to dismiss the indictment. See N.C.G.S. §§
15A-952(e), 15A-955(1) (1997); see also State v. Robinson, 327
N.C. 346, 361, 395 S.E.2d 402, 411 (1990); State v. Lynch, 300
N.C. 534, 542, 268 S.E.2d 161, 166 (1980). Under the common law
of this State a motion to quash the indictment could be made as
of right only up to the time the defendant entered his plea.
Thereafter, the motion was addressed to the sound discretion ofthe trial judge. State v. Phillips, 297 N.C. 600, 606, 256
S.E.2d 212, 215 (1979).
In the instant case, defendant made no motion to the
trial court to dismiss the indictment for robbery with a
dangerous weapon. As such, defendant waived his right to object
to any impropriety in the indictment. This argument is without
merit.
We next address defendant's argument that there was
insufficient evidence to support the conviction for robbery with
a dangerous weapon. Defendant made a motion to dismiss the
robbery charge at the close of the State's evidence. The trial
court heard arguments, denied the motion, and concluded the
evidence being taken in the light most favorable to the State at
this time could support a finding that the robbery was part of a
continuous transaction. Defendant renewed his motion at the
close of all the evidence. Again, the trial court denied the
motion, stating the jury can infer that the act of taking
property from the body of the victim was part of the continuous
chain of events.
It is well settled that to withstand a motion to
dismiss, the trial court need determine only whether there is
substantial evidence of each essential element of the crime and
that the defendant is the perpetrator. State v. Call, 349 N.C.
382, 417, 508 S.E.2d 496, 518 (1998). Substantial evidence is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. State v. Smith, 300 N.C. 71,
78-79, 265 S.E.2d 164, 169 (1980). 'Whether evidence presentedconstitutes substantial evidence is a question of law for the
court.' State v. Stager, 329 N.C. 278, 322, 406 S.E.2d 876, 901
(1991) (quoting State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57,
61 (1991)).
The essential elements of the offense of robbery with a
dangerous weapon are: (1) an unlawful taking or an attempt to
take personal property from the person or in the presence of
another, (2) by use or threatened use of a firearm or other
dangerous weapon, (3) whereby the life of a person is endangered
or threatened. Call, 349 N.C. at 417, 508 S.E.2d at 518; see
also N.C.G.S. § 14-87(a) (1993); State v. Small, 328 N.C. 175,
400 S.E.2d 413 (1991). [T]he defendant's use or threatened use
of a dangerous weapon must precede or be concomitant with the
taking, or be so joined with it in a continuous transaction by
time and circumstances as to be inseparable. State v. Hope, 317
N.C. 302, 306, 345 S.E.2d 361, 364 (1986); see also State v.
Fields, 315 N.C. 191, 201-02, 337 S.E.2d 518, 525 (1985).
The trial court examines the evidence in the light most
favorable to the State, giving the State the benefit of all
reasonable inferences. Call, 349 N.C. at 417, 508 S.E.2d at 518.
Circumstantial evidence may withstand a motion to dismiss and
support a conviction even when the evidence does not rule out
every hypothesis of innocence. State v. Stone, 323 N.C. 447,
452, 373 S.E.2d 430, 433 (1988); see also State v. Thomas, 350
N.C. 315, 343, 514 S.E.2d 486, 503, cert. denied, ___ U.S. ___,
145 L. Ed. 2d 388 (1999). In the instant case, the State's evidence tended to
show the wallet was found lying open in front of the victim's
body. The wallet contained a driver's license and other papers,
but no money. Inside the wallet were a drop and a smear of
blood. During defendant's testimony at the sentencing phase of
his first trial, he admitted that the blood inside the wallet
could have come from his hand. While testifying at the second
trial, defendant admitted he removed about twenty-five or twenty-
six dollars from the wallet and he changed his clothes and
cleaned up before leaving. However, on cross-examination at the
second trial, defendant could not explain the presence of blood
inside the wallet if he did not take the money until after
cleaning up and disposing of the murder weapon and bloody
clothes. This evidence supports a reasonable inference that the
blood was dropped in the wallet when defendant removed the money
from the wallet immediately after the murder.
Thus, the jury could reasonably infer there was one
continuous transaction with the element of use or threatened use
of a dangerous weapon so joined in time and circumstances with
the taking as to be inseparable. Hope, 317 N.C. at 306, 345
S.E.2d at 364. Applying the foregoing principles, we conclude
the State introduced sufficient evidence to permit a rational
trier of fact to find beyond a reasonable doubt defendant
committed the offense of robbery with a dangerous weapon.
Finally, we address defendant's argument that there was
insufficient evidence for the trial court to submit robbery witha dangerous weapon as an aggravating circumstance at the
sentencing proceeding. See N.C.G.S. § 15A-2000(e)(5).
The trial court, in determining the sufficiency of the
evidence to support the existence of an aggravating circumstance,
must consider the evidence in the light most favorable to the
State. State v. Leary, 344 N.C. 109, 119, 472 S.E.2d 753, 759
(1996); State v. Quick, 329 N.C. 1, 31, 405 S.E.2d 179, 197
(1991). The State is entitled to every reasonable inference to
be drawn from the evidence, contradictions and discrepancies are
for the jury to resolve, and all evidence admitted that is
favorable to the State is to be considered. Leary, 344 N.C. at
119, 472 S.E.2d at 759.
If a defendant is convicted of first-degree murder
based on both premeditation and deliberation and the felony
murder rule, the underlying felony may be submitted as an
aggravating circumstance under N.C.G.S. § 15A-2000(e)(5). See
Thomas, 350 N.C. at 344, 514 S.E.2d at 504; State v. McNeill, 346
N.C. 233, 241, 485 S.E.2d 284, 289 (1997), cert. denied, 522 U.S.
1053, 139 L. Ed. 2d 647 (1998); State v. Davis, 340 N.C. 1, 455
S.E.2d 627, cert. denied, 516 U.S. 846, 133 L. Ed. 2d 83 (1995).
In the instant case, the jury found defendant guilty of
first-degree murder based on both premeditation and deliberation
and the felony murder rule for both victims. As discussed
previously, the evidence of robbery with a dangerous weapon was
sufficient. As a result, the trial court did not err in
submitting the (e)(5) aggravating circumstance. See Thomas, 350N.C. at 344, 514 S.E.2d at 504. Thus, defendant's argument is
without merit.
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