{ "id": 4709048, "name": "STATE OF NORTH CAROLINA v. BOBBY GENE WHISENANT", "name_abbreviation": "State v. Whisenant", "decision_date": "1983-07-07", "docket_number": "No. 72A82", "first_page": "791", "last_page": "798", "citations": [ { "type": "official", "cite": "308 N.C. 791" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "131", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "pin_cites": [ { "page": "515", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "cite": "250 S.E. 2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "pin_cites": [ { "page": "231", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566356 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0394-01" ] }, { "cite": "68 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "849-50" }, { "page": "849-50" } ], "opinion_index": 0 }, { "cite": "234 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625810 ], "weight": 2, "year": 1952, "pin_cites": [ { "page": "724" }, { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0716-01" ] }, { "cite": "200 S.E. 2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1973, "pin_cites": [ { "page": "20" }, { "page": "20" } ], "opinion_index": 0 }, { "cite": "284 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560715 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "195" }, { "page": "195-96" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0190-01" ] } ], "analysis": { "cardinality": 670, "char_count": 16052, "ocr_confidence": 0.822, "pagerank": { "raw": 1.0184195838222348e-07, "percentile": 0.5441081700130007 }, "sha256": "8fd77fc3414232f7c4f1c54bcfc58c057c13759c1548dace03c92e7a0c0072fb", "simhash": "1:eb60f9a4c46da9f5", "word_count": 2656 }, "last_updated": "2023-07-14T18:17:55.702489+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY GENE WHISENANT" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant presents on appeal two issues to this Court. First, he contends that certain questions by the prosecutor which \u201cput before the jury irrelevant and prejudicial insinuations that the defendant had committed other serious crimes\u201d denied him a fair trial. For the reasons articulated below we do not agree. Defendant also argues that the trial court committed reversible error by failing to strike one of the prosecutor\u2019s arguments which defendant claims \u201ctravelled outside the record.\u201d We have examined this contention as well and find that the trial court\u2019s exercise of discretion was well within the bounds of good judgment.\nI.\nDefendant was found guilty of the 28 June 1981 murder of George William Leonhardt, Sr., an elderly man who was found dead in the hallway of his large stone house in Morganton. Defendant also was convicted of the murder of Mr. Leonhardt\u2019s live-in housekeeper, Lura Shuping Campbell, a 66-year-old woman who was found dead in the middle bedroom of Mr. Leonhardt\u2019s house. A recitation of the facts in this case is not necessary for an understanding of the issues defendant raises in this appeal.\nII.\nAs noted above, defendant contends that he was denied a fair trial because of the prosecutor\u2019s propounding of a line of questions which put before the jury \u201cinsinuations that the defendant had committed other crimes.\u201d The series of questions about which defendant complains indicated that at one time defendant had stolen a weapon from a service station and given it to the witness. Having examined the context in which this line of questioning was pursued, we hold that it was entirely proper, and thus that defendant is not entitled to a new trial on this issue.\nAs this Court noted in State v. Patterson, 284 N.C. 190, 195, 200 S.E. 2d 16, 20 (1973), \u201cit is a general rule of evidence that in a prosecution for a particular crime the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense.\u201d The application of this rule, however, is tempered by another rule which holds such evidence admissible under certain circumstances. That is, \u201c[a]fter a litigant brings out on cross-examination specific acts of an adverse witness for the purpose of impeachment, the party by whom the witness is called may sustain the character of the witness by eliciting from him evidence explaining those acts, or mitigating their effect\u201d even though such evidence would not be competent otherwise because it tends to show as well the defendant\u2019s involvement in those specific acts. State v. Minton, 234 N.C. 716, 724, 68 S.E. 2d 844, 849-50 (1952). In Minton, defense counsel had elicited from a State\u2019s witness on cross-examination the admission that at one time the witness had tried to strike the defendant with a pipe. This Court held that it was proper for the witness to testify on re-direct examination that he had used the pipe merely to repel an unprovoked assault made on him by the defendant. A similar result was reached in State v. Patterson, supra. After defense counsel elicited on cross-examination the admission from a State\u2019s witness that she disliked the defendant and harbored a feeling of ill will toward him, this Court held in Patterson that it was proper for the State to elicit during its re-direct examination of the witness the reason for the witness\u2019 dislike of the defendant: the witness testified that the defendant had raped her.\nIn the case at bar, defense counsel cross-examined the State\u2019s witness, Billy Carlos Cook, about his criminal record. In particular, he inquired into Cook\u2019s convictions for breaking and entering and receiving stolen goods, convictions which grew out of events that occurred at a Mobil gas station. During that cross-examination, defense counsel sought to imply that Cook had received favorable penal treatment for the Mobil gas station crimes in return for his testimony against defendant in this case. After Cook\u2019s credibility had been attacked in this manner, the prosecution, on re-direct examination, attempted to show that the property for which Cook was convicted of having unlawfully received was a rifle that defendant himself had given Cook. Thus, the prosecution apparently was attempting to bolster Cook\u2019s credibility when it asked a series of questions designed to show the nature of Cook\u2019s participation in the Mobil gas station incident.\nThe prosecutor\u2019s line of questioning which suggested that defendant had given Cook stolen property, therefore, was entirely proper under this Court\u2019s holding in Minton because after defense counsel had attacked Cook\u2019s credibility by referring to the Mobil gas station incident, a specific act, the prosecution was free to \u201csustain the character of the witness by eliciting from him evidence explaining those acts, or mitigating their effect.\u201d State v. Minton, supra, 234 N.C. at 724, 68 S.E. 2d at 849-50. See also State v. Patterson, supra, 284 N.C. at 195-96, 200 S.E. 2d at 20. Defendant\u2019s assignment of error is, therefore, overruled.\nDefendant also contends that he is entitled to a new trial because during the cross-examination of one of the defense witnesses, the prosecutor asked the witness whether he knew that defendant was a \u201cconvicted felon.\u201d We note, however, that the trial court sustained defendant\u2019s objection to this question. In essence, then, defendant argues that the mere asking of this question alone was sufficiently prejudicial to warrant a new trial. We cannot agree. As this Court stated in State v. Campbell, 296 N.C. 394, 250 S.E. 2d 228 (1979), \u201c[ojrdinarily, the asking of the question alone will not result in prejudice to the defendant.\u201d Id. at 399, 250 S.E. 2d at 231 (citations omitted). Even assuming that the mere asking of this question might be prejudicial in a given case, we hold that in light of the overwhelming evidence of defendant\u2019s guilt in this case, there is no \u201creasonable possibility\u201d that had this question not been asked a different result would have been reached at trial. G.S. 15A-1443(a) (1978). There was abundant circumstantial evidence tying defendant to the scene of the crime and with some of the property that was stolen from Leonhardt\u2019s home. Further, several witnesses testified that defendant had discussed with them his intention to rob the Leonhardt home; at least one of the witnesses testified that defendant asked him if he wanted to take part in the murders and robbery there.\nIII.\nDefendant finally contends that he is entitled to a new trial because the trial court failed to sustain his objection and strike an argument by the prosecutor because he contends the prosecutor\u2019s argument \u201ctravelled outside the record.\u201d We hold, however, that the trial court did not err here.\nThe State introduced evidence at trial that Salem cigarette butts were found in the hallway and on the front porch of Leonhardt\u2019s home; that an empty Salem cigarette pack was found in the trash can in defendant\u2019s master bedroom; and that while defendant was at the Burke County Sheriff\u2019s Department he had smoked several cigarettes, leaving eight Salem cigarettes butts in the ashtray. Saliva and blood samples were taken from defendant. A forensic serologist, SBI Agent W. E. Weis, analyzed blood samples taken from the bodies of the victims and from defendant; Weis also analyzed the cigarette butts sent to him by police investigating this case. In so doing, Weis ascertained that Leonhardt had blood of ABO group \u201c0,\u201d that Campbell had ABO group \u201cB,\u201d and that defendant had ABO group \u201cA.\u201d Weis also determined that defendant was a \u201csecretor\u201d who left traces of his blood group in other body fluids, such as saliva. Furthermore, Weis testified that the cigarette butts found in Leonhardt\u2019s house and the eight cigarette butts retrieved from the sheriff department\u2019s ashtray were all Salem cigarette butts from which Weis obtained a group \u201cA\u201d secretor reaction, a reaction consistent with defendant\u2019s blood group. Weis also stated that in his opinion the victims could not have smoked the cigarettes found at the crime scene.\nBased on this evidence, one of the prosecutors, Mr. Greene, argued, in essence, that defendant was the perpetrator of the murder of Leonhardt and his housekeeper because defendant was a member of a group of less than one percent of the general population who had the same characteristics as the person who had left the Salem cigarette butts at the murder scene. Mr. Greene\u2019s statistical argument to the jury was as follows:\nAnd what did the serologist say about that? Well, he said that the ABO grouping, and that\u2019s what the defendant, Bobby Gene Whisenant\u2019s blood was, was ABO grouping, and that blood grouping, that thirty percent of the population had an ABO grouping. And then he said that of that thirty percent that eighty percent were secretors. That would be, if you\u2019re going to figure it out, Mr. Vanderblomen, and I\u2019m not saying this I\u2019m just using this as an example, twenty four percent, and how many of those twenty four percent would you say were nonsmokers? Well, it wouldn\u2019t be fifty percent, but assuming that there were fifty percent, that would be twelve percent. And how many of those twelve percent were Salem smokers? And you\u2019re reducing it on down of the hundreds of the types of cigarettes that you have, you\u2019re going to come up with something about six-tenths of one percent.\nMr. VANDERBLOMEN: OBJECTION and motion to stike. There is no evidence of that, Your Honor, EXCEPTION No. 29.\nMr. GREENE CONTINUES: The reasonable and logical deductions from what the serologist testified about secretors, and what the ABO grouping was, and you can take your own collective notice about, smokers and nonsmokers. Say I\u2019m wrong. Say it\u2019s seventy five percent. You know. Then how many of those when you put it down, then, it wouldn\u2019t be but about twenty-five percent. What I\u2019m saying is Mr. Vanderblomen is wanting to say that eighty percent of the population are secretors, and eighty percent of the people put that cigarette out there in the house. And I say that\u2019s ridiculous, and the evidence don\u2019t show that. The credible evidence from this case don\u2019t show that. That he testified that the ABO grouping was only thirty percent of the population, and I say that if you reasonably deduce from that that eighty percent of those and then subtract whatever you say would be the smokers and the nonsmokers, and then reduce that to what that would be, and then say how many of those hundreds of brands of cigarettes would be Salem cigarette smokers? And that would reduce it on down to where it wouldn\u2019t be anything like no eighty percent. It would be closer to less than one percent than it would eighty percent that Mr. Vanderblomen wants you to believe was putting those cigarettes out there \u2014\nMr. Vanderblomen: Objection. He\u2019s testifying outside the evidence. Move to strike.\nThe COURT: Members of the jury, you will be guided by your recollection of the testimony and evidence in the case. Exception No. 30.\nWhen the above portion of the closing arguments is read in context, however, it is clear that the trial court\u2019s handling of the matter was entirely proper. We note that in his closing argument, defense attorney Vanderblomen was the first to raise the issue of statistical percentages. In part, Vanderblomen argued as follows:\nWhat do the cigarette butts show? I don\u2019t know how many of you are type A blood. And there is no evidence as to how many people with type A blood there are. But people who know, 0 is most common, and there is 0 [sic] and B and there is AB. In this case the person who smoked the Salem cigarettes and Mr. Whisenant are Type A secretor [sic]. That means of the A type 80 percent are secretors. What that means is that cigarette butts were most likely smoked by somebody, 80 percent, type A people could have been that person. That\u2019s assuming that the cigarettes were smoked by somebody and then dropped there.\nThus, it appears that the prosecutor only made his statistical argument to the jury after defense counsel had raised the issue. Further, a close reading of the prosecutor\u2019s argument shows that the prosecutor made it clear to the jury that he was \u201cassuming\u201d some of the percentages and that he was using another percentage \u201cas an example\u201d in his statistical analysis of the evidence. In short, the record indicates the prosecutor, in addressing the defense attorney\u2019s statistical argument, was using assumed percentages merely as a way of demonstrating that it was more likely than not that defendant was the perpetrator of the murders. Mr. Greene stated, in part, that \u201c[i]t would be closer to less than one percent than it would eighty percent that Mr. Vanderblomen wants you to believe was putting those cigarettes out there \u2014 \u201d.\nAs this Court has stated many times, \u201cargument of counsel must be left largely to the control and discretion of the presiding judge and [that] counsel must be allowed wide latitude in the argument of hotly contested cases.\u201d State v. Monk, 286 N.C. 509, 515, 212 S.E. 2d 125, 131 (1975) (citations omitted). We hold, therefore, that when the prosecutor\u2019s statistical argument is read in context, it is clear that the trial court\u2019s exercise of discretion in not striking the prosecutor\u2019s argument but instead warning the members of the jury to be guided by their recollections of the testimony and the evidence in the case was well within the bounds of sound judgment.\nIn sum, therefore, we hold that defendant received a trial free of prejudicial error.\nNo error.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General by Assistant Attorney General Thomas F. Moffitt, for the State.", "Adam Stein, Appellate Defender, by Malcolm R. Hunter, Assistant Appellate Defender, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY GENE WHISENANT\nNo. 72A82\n(Filed 7 July 1983)\n1. Criminal Law \u00a7 86.5\u2014 questions insinuating other crimes by defendant \u2014 proper\u2014explaining witness\u2019s acts\nA prosecutor\u2019s line of questioning which suggested that defendant had given a witness stolen property was proper where defense counsel had attacked the witness's credibility by referring to a gas station incident, a specific act, and the prosecution was free to \u201csustain the character of the witness by eliciting from him evidence explaining those acts, or mitigating their effect.\u201d\n2. Criminal Law \u00a7 169.2\u2014 objections sustained \u2014 mere asking of question not prejudicial\nWhere the trial court properly sustained defendant\u2019s objection to a question asked of a witness as to whether he knew that defendant was a \u201cconvicted felon,\u201d the mere asking of this question was not sufficiently prejudicial since there was no \u201creasonable possibility\u201d that had this question not been asked a different result would have been reached at trial. G.S. 15A-1443(a).\n3. Criminal Law \u00a7 102.6\u2014 argument to jury concerning statistical percentages \u2014 proper\nIn a prosecution for first degree murder, the trial court did not err in failing to sustain defendant\u2019s objection to a prosecutor\u2019s argument concerning the percentage of people with an A blood type who secrete and who smoke Salem cigarettes since (1) the prosecutor made his statistical argument to the jury after defense counsel had raised the issue, (2) the prosecutor made it clear to the jury that he was \u201cassuming\u201d some of the percentages and that he was using another percentage \u201cas an example,\u201d and (3) he was using assumed percentages merely as a way of demonstrating that it was more likely than not that defendant was the perpetrator of the murders.\nDEFENDANT\u2019S trial began during the 30 November 1981 Session of Superior Court, BURKE County, before Judge Forrest A. Ferrell A jury convicted defendant of the first-degree murder of George William Leonhardt, Sr., and the second-degree murder of Lura Shuping Campbell. Judge Ferrell imposed consecutive life sentences upon the defendant for the two convictions after the jury was unable to agree on the recommendation for punishment. Under N.C.G.S. \u00a7 7A-27(a) (1981), defendant appeals to this Court as a matter of right.\nRufus L. Edmisten, Attorney General by Assistant Attorney General Thomas F. Moffitt, for the State.\nAdam Stein, Appellate Defender, by Malcolm R. Hunter, Assistant Appellate Defender, for defendant-appellant." }, "file_name": "0791-01", "first_page_order": 827, "last_page_order": 834 }