Frogge v. Branker

286 F. App'x 51
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 15, 2008
Docket07-19
StatusUnpublished

This text of 286 F. App'x 51 (Frogge v. Branker) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frogge v. Branker, 286 F. App'x 51 (4th Cir. 2008).

Opinions

[52]*52PER CURIAM:

Danny Dean Frogge appeals the district court’s denial of his federal habeas corpus petition, by which he seeks to have his North Carolina death sentence vacated. Frogge contends that he is entitled to such relief on the ground that his trial counsel was constitutionally ineffective by failing to develop and present, for sentencing purposes, mitigating evidence of his permanent organic brain damage. As explained below, we are constrained to affirm.

I.

A.

It is undisputed that, on the night of November 4, 1994, Frogge stabbed and killed his father, Robert Edward Frogge, and his invalid stepmother, Audrey Yvonne Frogge. In 1995, Frogge was tried and found guilty in the Superior Court of For-syth County, North Carolina, on two counts of first-degree murder. The jury then considered whether Frogge should receive the death penalty for each of the murders. On the jury’s recommendation, Frogge was sentenced to life imprisonment for the killing of his father, and to death for the murder of his stepmother. The Supreme Court of North Carolina thereafter granted him a new trial on the ground that inadmissible hearsay had been introduced during the guilt phase of the 1995 trial. See State v. Frogge, 345 N.C. 614, 481 S.E.2d 278 (1997).

At Frogge’s second trial in 1998, he was found guilty on two counts of first-degree murder, as well as an additional count of robbery -with a dangerous weapon. Frogge was sentenced to life imprisonment for the killing of his father, a concurrent prison term for the robbery, and, on the jury’s recommendation, received a death sentence for the murder of his stepmother. At this trial, the jury had considered the death penalty only with respect to his stepmother’s murder. Frogge appealed his death sentence and the robbery conviction, and the state supreme court affirmed. See State v. Frogge, 351 N.C. 576, 528 S.E.2d 893 (2000). The state supreme court summarized the facts of the case as follows:

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 lived with 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 pa[53]*53thologist, 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 the woods 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 consumed almost 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 conviction and that he saved $8,000 to [54]*54purchase 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.

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Bowie v. Branker
512 F.3d 112 (Fourth Circuit, 2008)
State v. Frogge
528 S.E.2d 893 (Supreme Court of North Carolina, 2000)
State v. Frogge
607 S.E.2d 627 (Supreme Court of North Carolina, 2005)
State v. Frogge
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Frogge v. North Carolina
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286 F. App'x 51, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frogge-v-branker-ca4-2008.