The foreman of the jury confirmed the information to Senior Resident Superior Court Judge Cy A. Grant of Hertford County when they were summoned because of a question which they needed answered.
The verdict was not discussed and Grant did not ask the jurors what charge it involved or whether it was a guilty or innocent verdict.
As the jurors are working with three verdict sheets they will continue deliberations Friday to reach a conclusion on Whitmore’s fate in the December 20, 2014 traffic death of 25-year-old Leslie Fishel at the intersection of East Tenth Street and Becker Drive.
The question jurors had dealt with a lesser charge of involuntary manslaughter and the element of impairment.
The judge explained to the jurors impairment only applied to substances such as alcohol, cocaine, marijuana or opiates — not about impairment which could have come with the defendant being shot.
The question came after the jury had been deliberating for about two hours. They continued deliberating until around 5:30.
The first of the three verdict sheets the jurors are working from is tied to the major crime of second-degree murder with the element of impairment as well as the lesser charge of involuntary manslaughter.
The second sheet is tied to the crime of second-degree murder with the element of serious traffic infractions. It also includes the lesser charges of involuntary manslaughter and misdemeanor death by motor vehicle.
The final verdict sheet is tied to the crime of aggravated felony death by motor vehicle.
In his closing arguments, Assistant District Attorney Keith Werner told the jury a second-degree murder charge against Whitmore could be found two different ways — impairment or careless and reckless driving with malice.
“Malice is a state of mind, a bit of mischief, a state of mind that allows you to do bad things,” he said.
Malice describes people “who disrespect, don’t care about the laws of North Carolina. Without laws people get killed and hurt, people minding their own business get their car smashed to an unrecognizable hunk of metal. Some people get hurt, one person is killed. That is malice,” Werner said.
From the time he was shot, Whitmore disregarded the laws of North Carolina, driving 70 miles per hour in a 35 zone, running red lights and driving in the turn lane. One witness, Werner said, thought he was a law enforcement officer at first, but then thought law enforcement officers and other first responders are required by law to slow down.
The state Highway Patrol sergeant who came to reconstruct the crash scene ran his lights and siren when he departed from Youngsville. “He stopped at every red light. The law doesn’t permit law enforcement, EMS and firefighters to run red lights,” the assistant prosecutor said. “Some might not hear the siren or see the blue lights.”
Werner said Whitmore’s defense team noted he put his flashers on. “Leslie couldn’t see the flashers. She’ll never see anything again. All that is malice.”
That Whitmore already had two previous impaired driving convictions is an aggravating factor, Werner said. “Somebody has to stop this person from doing whatever he feels like doing … I’m asking you to find him guilty of both theories to stop him today.”
Whitmore’s attorney, Tyrell Clemons, said, “There’s one word you’ve heard multiple times.”
He said that word is accident.
“December 20 was a sad day, a tragic day. No one wants to minimize what a sad day that was,” he said. “It was an accident. Mr. Whitmore didn’t wake up planning to get shot. It was an accident.”
The defense attorney said Whitmore did “not intend to end her life. It was an accident.”
Clemons said the state wants the jury to believe when a person gets shot the reasonable thing to do is call 911. “If you get shot you’re going to do what you’ve got to do. If you’re in pain you might drive a little faster and find a way to get rid of the pain.”
The state, Clemons said, “Wants you to believe he was super reckless. He put his flashers on to indicate something was going on.”
Clemons said, “I know it’s sad. No parent wants to bury their child. My client did not have malice … this was not malicious.”