Assistant District Attorney Keith Werner told Senior Resident Superior Court Judge Cy A. Grant of Hertford County he will argue in his closing there is an impairment side and a reckless indifference to human life side.
Werner made his comments to Grant outside the presence of the jury, which was released early today.
The state has another witness to call Thursday morning, when the trial resumes at 9:30, Werner told Grant.
Whitmore’s attorney, Tyrell Clemons, did not state to Grant what his intention would be.
He stated in his opening arguments Tuesday Whitmore did not intend to kill Leslie Fishel, 25, but that the December 20, 2014, crash which left her with injuries she would succumb to, was an accident.
In questioning Sergeant Craig Johnson, supervisor of the state Highway Patrol Cary Reconstruction Unit, today, Werner asked him about his response to the Roanoke Rapids crash site at East Tenth Street and Becker Drive the evening of the collision.
Johnson came from his home in Youngsville, which is about 62 miles from Roanoke Rapids. He ran blue lights and siren but said, “I stopped, I yielded for my safety and the safety of others. That’s what we’re required to do — firefighters, EMS, law enforcement.”
Clemons asked Johnson whether he had ever been shot, a reference to his defense of Whitmore and that the Roanoke Rapids man was rushing to the hospital after he was shot in the leg outside a barbershop at Forest Hills Shopping Center.
Johnson replied in the negative and in response to an earlier question from Werner, said Whitmore would be able to see the state Department of Transportation sign designating a 35 mile per hour speed limit on East Tenth Street.
The sergeant said he conducted an initial investigation of what he described as a “hot scene” when he arrived. “I assessed the scene, did a walkthrough and retrieved my camera so I could take photos of the scene.”
Johnson explained the scene and the vehicles which were involved in the crash.
Johnson’s testimony coincides with an initial report taken by the Roanoke Rapids Police Department at the time.
Others involved in the crash were Eboni Burgess of Roanoke Rapids who was driving a 2013 Toyota and Howard Shearin of Roanoke Rapids who was driving a 2014 Toyota.
The narrative says Whitmore was traveling south on Highway 125 — Tenth Street — “at an extremely high rate of speed in the left turn lane.”
Fishel, who had been running errands that evening, had the green light and was proceeding through the intersection east when Whitmore entered the intersection against a red light, striking her vehicle. Whitmore's vehicle flipped on its side and crashed into Burgess's vehicle which was sitting at the red light in lane 2 heading north.
Shearin, according to the report, was coming to the light north in lane 1 and was struck by Whitmore on the driver's side. Fishel was ejected.
Dr. James Fletcher of the department of emergency medicine at Vidant in Greenville said he saw Fishel after she was brought in by helicopter. She had critical injuries and lost vital signs.
The trauma team, Fletcher said, did a heart massage and she recovered vital signs.
Dr. Nathaniel Poulin, a trauma surgeon, said Fishel’s heart was beating but her abdominal cavity was full of blood. “We clamped her aorta to circulate blood to her heart and brain.”
The surgical team, however, found a large tear in her liver and there was nothing the team could do to control the bleeding.
Roanoke Rapids police Investigator Jeff Davis’ testimony supported a search warrant in the case in which the following was found in Whitmore’s vehicle:
A black cellphone
A pack of Cigarillos
A 375 ml bottle of Seagram's Vodka
Another black cell phone
A pack of miscellaneous papers
An empty pack of Cigarillos
A partially smoked blunt
A spent projectile
Davis said when he talked with Whitmore at the hospital his speech was slurred and his eyes were glassy. “His appearance today is normal.”
In response to questioning from Clemons, Davis said he couldn’t answer whether Whitmore, who was treated and released for the gunshot wound, was medicated. “He was talking about being in pain and hurting.”
A grand jury in March of 2015 determined Whitmore caused the death of the Fishel “while engaging in the offense of impaired driving. The impaired driving was the proximate cause of death.”
The indictment also notes Whitmore had a previous impaired driving conviction within seven years of the 2014 offense, that conviction occurring in Virginia Beach in September of 2010.