A call was placed to 911 by Flippen approximately 50 minutes later. Flippen stated that the child likely had fallen out of her chair and was having trouble breathing.

When EMS arrived they found Britnie gasping for breath and nearly blue from lack of oxygen. She was pronounced dead nearly 30 minutes later.

An autopsy revealed that she died from a fatal blow or blows to the abdomen that cut her pancreas in half against her spine and tore her liver. The injuries she sustained did not indicate a fall, but rather a homicide. It is believed that Flippen started beating his stepdaughter because she would not stop crying. Flippen never publicly admitted to the killing.

Citations:

State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (N.C. 1996) (Direct Appeal I).
State v. Flippen, 349 N.C. 264, 506 S.E.2d 702 (N.C. 1998) (Direct Appeal II).
Flippen v. Polk, 349 F.Supp.2d 978 (M.D.N.C. 2004) (Habeas).

Final Meal:

Popcorn shrimp, hush puppies, french fries and a Coke.

Final Words:

Flippen did not make a final statement. He locked eyes with his parents, smiled and mouthed "I love you."

FLIPPEN, SAMUEL R.

DOC Number: 0130851
DOB: 09/30/1969
RACE: WHITE
SEX: MALE
DATE OF SENTENCING: 5/23/97
DATE OF CONVICTION: 5/20/97
COUNTY OF CONVICTION: FORSYTH COUNTY
FILE#: 94004889
CHARGE: MURDER FIRST DEGREE (PRINCIPAL)
DATE OF CRIME: 02/12/1994

Execution date set for Samuel Flippen

Date: July 11, 2006

RALEIGH - Correction Secretary Theodis Beck has set August 18, 2006, as the execution date for death row inmate Samuel Flippen. The execution is scheduled for 2:00 a.m. at Central Prison in Raleigh. Flippen, 36, was sentenced to death March 7, 1995, in Forsyth County Superior Court for the murder of his two-year old stepdaughter, Britnie Nichol Hutton.

Child killer Flippen is put to death

Parents watch execution: He's at peace

By Erin Gartner - Raleigh News and Observer

Associated Press - Aug 19, 2006

RALEIGH - When the curtains opened, Samuel Flippen smiled at his parents through a thick glass window as he lay on a bed inside the death chamber. He mouthed the words "I love you" three times before closing his eyes. "He's at peace," father Carl Flippen said as he hugged his wife. Minutes later, Flippen's face tightened and his chest convulsed before his body went limp under a blue sheet. He was pronounced dead at 2:11 a.m. Friday.

After spending years on death row for beating his 2-year-old stepdaughter to death, Flippen died as his parents and a dozen other people watched from a small room inside the maximum security prison in Raleigh. He made no final statement, and his parents left without comment.

Tina Gibson, the victim's mother, also witnessed her former husband's execution. She said in a written statement that there was no such thing as closure but she would try to move on.

Hours earlier, a flurry of last-minute court fights ended when state judges and the U.S. Supreme Court rejected arguments to stop the execution. A lawsuit filed by 45 members of his family also failed to stall the case, and Gov. Mike Easley declined to grant clemency. A former prosecutor and attorney general, Easley has granted clemency only twice during his two terms in office. "At some time, I think there will be a day when we'll all agree that the death penalty is not a proper form of punishment," defense attorney Richard Greene said shortly after the execution. "The death of a child is tragic. This tragedy has been compounded by the execution of Sam Flippen."

Flippen was convicted of first-degree murder in the 1994 beating death of Britnie Nichole Hutton. Prosecutors said the toddler had extensive bruising and died after Flippen hit her in the abdomen. Flippen said the child fell from a chair.

In its final refusal early Friday, the U.S. Supreme Court turned away a petition by Flippen's attorneys raising what they said was new evidence in the case. Defense lawyers wanted courts to review whether it was possible that Gibson abused her children. They based their claims on an affidavit from a woman who baby-sat Gibson's son in 1999 and said the boy was severely bruised from a beating he blamed on his mother. Gibson said the allegations were false and aimed at shifting attention away from Flippen. The high court also declined to stay the execution until courts could hear a separate lawsuit challenging lethal injection as cruel and unusual punishment.

Court tells killer: No delay

Denial of request makes Friday execution more likely

By Jim Nesbitt - Raleigh News and Observer

Aug 17, 2006

Death row inmate Samuel Flippen's request that his execution be delayed unless 45 family members can witness the event was denied Wednesday by the state appellate court. A three-judge panel of the N.C. Court of Appeals rejected a petition filed by Flippen's attorneys that argued that Wake County Superior Court Judge J.B. Allen ignored state law that sets no limit on the number of family members who can witness an execution.

On Tuesday, Allen refused to delay Flippen's execution scheduled for 2 a.m. Friday. Flippen, 36, was convicted of first-degree murder by a Forsyth County jury in the 1994 beating death of his 2-year-old stepdaughter, Britnie Nichol Hutton. A second petition for a temporary stay of execution was also denied Wednesday by the 4th U.S. Circuit Court of Appeals, where Flippen's attorneys have challenged the constitutionality of an execution by lethal injection. Flippen's attorneys say they'll file an emergency petition with the U.S. Supreme Court requesting a stay but are uncertain whether to challenge the state appellate court's denial.

The setbacks narrow Flippen's chances of delaying his execution to the nation's highest court and a clemency request before Gov. Mike Easley that asks him commute the inmate's sentence to life in prison. Easley, a former prosecutor and state attorney general, took no action on the request Wednesday, said his press secretary, Sherri Johnson.

Flippen's petition before the state appellate court stems from a civil lawsuit filed in Wake County last week. The inmate's parents, Russell and Rita Flippen of Winston-Salem, joined their son and more than 40 other relatives in asking to witness his execution. That suit cites a state law governing executions that says "any relatives of such person, convict or felon ... may be present if they so desire." Flippen's attorneys say Central Prison Warden Marvin Polk misread that law when he told Flippen in an Aug. 8 letter that it limits inmates to two family members as witnesses.

In his written ruling Tuesday, Allen said Polk was within his authority to limit the number of witnesses to executions. The judge also said he doubted the sincerity of the family members who joined the lawsuit. "It's a stall tactic," said Ben Streett, Britnie Hutton's uncle. Streett said the toddler's mother, Tina Gibson, and other family members will travel to Raleigh for the execution. "This is not about Sammy Flippen, it's about Britnie," he said. "She's the victim, not Flippen."

But Tommy Slate, Flippen's first cousin and one of the family members who joined the lawsuit, said it wasn't a legal gimmick. "Of course, I don't want to see a relative of mine put to death," said Slate, 49, a disabled home builder from Mount Airy. "It was the point of getting to see him one last time."

During Flippen's 1995 trial, Forsyth County prosecutors said he struck his stepdaughter because she was crying. Flippen, married to the child's mother for five months at the time, said Britnie fell from a chair.

By Erin Gartner - The Washington Post

Associated Press - Friday, August 18, 2006

RALEIGH, N.C. -- A 36-year-old man was executed early Friday for the beating death of his 2-year-old stepdaughter 12 years ago. Samuel Flippen did not make a final statement. He locked eyes with his parents through the glass of the death chamber, smiled and mouthed "I love you." Flippen died by injection at 2:11 a.m., state Corrections Department spokesman Keith Acree said.

He was convicted of first-degree murder in the 1994 beating death of Britnie Nichole Hutton, who prosecutors said had extensive bruising and died after Flippen hit her in the abdomen. Flippen said she fell from a chair. Gov. Mike Easley denied a clemency request, and the U.S. Supreme Court rejected arguments to stop the execution.

Outside Central Prison, Flippen's family and friends stood on one side of the street while Hutton's relatives stood on the other. The two groups did not exchange words. "We came tonight to make sure that everyone knows Britnie is the victim here. Sammy chose to do what he did," said Ben Streett, the girl's uncle. "He took from our family a precious, precious child."

Local man put to death

Flippen's parents, Britnie's family watch execution

By Dan Galindo - Winston-Salem Journal

Saturday, August 19, 2006

RALEIGH - Samuel Flippen told his parents that he loved them, thanked his lawyers for their work and gave no public statement before being executed yesterday morning for murdering his 2-year-old stepdaughter. Flippen, a former Clemmons resident, was declared dead at 2:11 a.m. He was 36.

Flippen never publicly admitted to the 1994 killing of Britnie Nichol Hutton. Britnie, who had fresh bruises all over, died from a fatal blow or blows that cut her pancreas in half against her spine and tore her liver. Prosecutors said that Flippen beat Britnie because she would not stop crying. He said she had fallen from a chair that was about 18 inches tall.

Flippen's attorneys worked up until late Thursday night, trying to keep him alive. Gov. Mike Easley announced after midnight that he would not grant clemency, after appeals were denied by the U.S. and N.C. supreme courts. "Having carefully reviewed the clemency petition, I conclude that there are no compelling reasons to invalidate the sentence recommended by two juries and affirmed by the courts," Easley said in a statement.

About 100 anti-death penalty protesters were gathered outside Central Prison at midnight Thursday, kept within an area enclosed by metal gates. A row of prison and police officers stood next to them. Four people were arrested for trespassing. Opposite the protesters at the entrance, members of Britnie's family stood with their own signs. They said they wanted to be sure that her death was not overshadowed by court filings and protests. Chris Sealey, an uncle of Britnie's, said that his daughter, Kristin, is a daily reminder of what Britnie's life could have been. Kristin was 4 when Britnie died, and the two had been friends. "My daughter got to go to her first prom. Britnie did not," he said.

Flippen's final hours included a last meal, about 5 p.m. Thursday. He ate popcorn shrimp, hush puppies, french fries and a Coke. Hours later, at 1:52 a.m., the curtain in the death chamber was drawn and Flippen appeared on a gurney, a blue sheet covering everything but his head.

Flippen's close-cropped brown hair, goatee and moustache had gray throughout, a sign of the 12 years he spent behind bars. He was no longer the boyish 24-year-old sentenced to death by a Forsyth County jury in 1995, and then again in 1997 after the N.C. Supreme Court ordered a new sentencing. As Flippen glanced at his parents, Rita and Carl Flippen, he winked at them, smiled and mouthed twice through the glass that he loved them. They responded, "I love you, too." Flippen was animated at first, as he awaited the syringes that would take his life. He would look away, then at his parents, smile and occasionally purse his lips. As the execution approached, he closed his eyes periodically and let his head fall back on the blue pillow. "He's at peace," Carl Flippen whispered to Rita Flippen.

About 2 a.m., Central Prison Warden Marvin Polk entered the witness room and announced that he had spoken to Secretary of Correction Theodis Beck. "If there are no further instructions, the execution will proceed as scheduled," he said. A short while later, the first of five pairs of syringes were pushed. Flippen's head jerked forward and he grimaced. His chest rose, then fell. His head rested on the pillow, his mouth half open and stayed that way. "Is it done?" Carl Flippen asked his wife after about five minutes. She nodded her head. Carl Flippen shook his.

After a few more minutes of looking at her still son, Rita Flippen asked a prison official how much longer it would be. Five to ten minutes, the official said. "But he's gone," Carl Flippen said. Flippen's parents left the witness room early. Britnie's mother, Tina Gibson, appeared calm during the execution. Her sister stroked her arm, and her husband sat at her side.

Afterward, Flippen's family did not want to speak to reporters. They hugged, joined by Flippen's sister, and Jill Wilkes, his former high-school prom date and close friend. Gibson said in a statement that "it is a shame that it all had to come to this," and that Flippen could have kept his temper from destroying his life. "Britnie deserved to live," she said. Flippen's attorneys said that Britnie's death was tragic but that Flippen's execution added to the tragedy.

Fayettesville Online

Associated Press - Friday, August 18, 2006

RALEIGH, N.C. - North Carolina's governor rejected clemency early Friday for a death row inmate who had already run out of legal options. Gov. Mike Easley rejected the clemency request from Samuel Flippen, saying he "found no compelling reasons to invalidate the sentence recommended by two juries and affirmed by the courts." Easley's decision came shortly after the U.S. Supreme Court rejected a second stay request for a stay from Flippen, who was scheduled to die at 2 a.m. Friday for the beating death of his 2-year-old stepdaughter.

In its most recent refusal early Friday, the court refused to stay the execution based on what Flippen's attorneys said was new evidence in the case. On Thursday night, the court declined to stay the execution until the courts could hear a separate lawsuit challenging lethal injection as cruel and unusual punishment. It also declined to review the case based on both issues. In between those two rulings, the 4th U.S. Circuit Court of Appeals also refused to stay the execution.

The execution brought out Flippen's family and friends, who stood on one side of the street outside Central Prison with death penalty opponents, and relatives of the victim, Britnie Nichole Hutton, who stood on the other side. The two groups did not exchange words. "We came tonight to make sure that everyone knows Britnie is the victim here. Sammy chose to do what he did," said Ben Streett, the girl's uncle. "He took from our family a precious, precious child."

Flippen's family and friends were among a group of about 60 people who took turns at a microphone, leading the crowd in prayer or song. "We're just trying to be here for our family members who aren't doing as well as others, just letting them know it's in God's hands now," Robin Dunlap, 39, a cousin, said before the legal appeals ended.

Flippen was convicted of beating his stepdaughter to death 12 years ago, but his attorneys asked a Forsyth County Superior Court judge Thursday to decide whether it was possible the child's mother, Tina Gibson, abused her children. They based their claims on an affidavit from a woman who baby-sat Gibson's son in 1999 and said the boy was severely bruised from a beating he blamed on his mother. "Samuel Flippen maintains that he is actually innocent of the murder for which he was convicted," defense attorneys said in the latest filing with the U.S. Supreme Court. "In light of the newly discovered evidence, the petitioner seeks to show that 'no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'"

State prosecutors filed a response opposing the defense move. "As all the credible evidence has twice shown, Flippen was the one person who inflicted numerous blows to a small and helpless child _ and who then delivered the ultimate blow which severed her pancreas on her backbone," they said.

Earlier Thursday, both Superior Court Judge William Z. Wood Jr. and the state Supreme Court denied requests based on that evidence. That state court also denied a separate appeal based on a lawsuit filed by 45 members of Flippen's family who want to attend the execution. Wood said the allegations, which Gibson strongly denied, were irrelevant even if they were true.

Flippen spent most of Thursday visiting with his immediate family members, said Keith Acree, spokesman for the state Corrections Department. He also had his last meal of popcorn shrimp, french fries, hushpuppies and a soda.

Flippen was convicted of first-degree murder in the 1994 beating death of Britnie. Prosecutors said the toddler had extensive bruising and died after Flippen hit her in the abdomen. Flippen said the child fell from a chair. In the sworn statements filed in Forsyth County Superior Court, baby sitter Deborah Shaw of Winston-Salem said she saw extensive bruising on Gibson's son in 1999, but never reported her concerns to authorities. She came forward after seeing media reports about the execution, according to her affidavit.

Shaw said she didn't know Flippen or his family during his trial in 1995. Gibson said the allegations were false and aimed at shifting attention away from Flippen's actions. "I have never abused my children and I will offer up anything I need to, to prove that," Gibson said during a telephone interview Thursday. "It's all about focusing attention on somebody else rather than on what he did."

The affidavit also was given to Easley, who hasn't spoken publicly about the case since he met with prosecutors and defense attorneys during a clemency hearing earlier this month.

Samuel Flippen was convicted of killing his 2-year-old stepdaughter. Flippen was convicted of first-degree murder in the 1994 beating death of Britnie Nichol Hutton. Prosecutors said that the beating was deliberate and brutal. Forsyth County prosecutors said they believed that Flippen started beating his stepdaughter because she was crying after his wife of five months left for work. Flippen dialed 911 about 40 minutes after his wife left to report that the girl was injured. He told paramedics and detectives that he believed she had fallen from a chair. The child later died of what prosecutors said was a blow to her abdomen.

After his trial in 1995, the jury recommended that Flippen be executed. The state Supreme Court overturned that sentence and ordered a second jury to consider Flippen's lack of prior criminal convictions before recommending its sentence. The second jury deliberated for more than six hours before recommending a death sentence in 1997. Forsyth County prosecutors said that they supported the death sentence because Flippen's former wife testified that he had been violent in the past, although Flippen had never been convicted of a crime, and because of the severity of the child's injuries. "He hit her so hard her pancreas was split on her backbone," Tom Keith, the Forsyth County district attorney said. "He's never accepted responsibility."

At a clemency hearing for Flippen on August 3rd, 2006, family members asked for the execution to proceed. "Today, we were making the case for Britnie Nichol Hutton, that she is the victim in this case, not Samuel Flippen. We want justice in this case and the only way we believe that can happen is with the death penalty," said Maggie Streatt, the child's aunt. "It's very hard on us. We're having to live through this all over again. It's like experiencing her death all over again," she said.

Samuel Flippen - NC - August 18
Do Not Execute Samuel Flippen

Samuel Flippen was convicted of the murder of his two-year-old stepdaughter, Britnie Hutton. She was killed on the morning of Feb. 12, 1994. Britnie’s mother Tina Flippen left for work that morning at 9:15 a.m., leaving Samuel and the little girl alone. A call was placed to 911 by Flippen at approximately 10:14 a.m. Flippen stated that the child had fallen out of her high chair and was having trouble breathing. When EMS arrived they found Britnie gasping for breath and nearly blue from lack of oxygen. She was pronounced dead nearly 30 minutes later. Upon autopsy, doctors found that the injuries she sustained did not indicate a fall, but rather a homicidal assault.

Samuel Flippen maintains his innocence and insists that Britnie fell; details of the alleged crime are vague. We must question whether Flippen committed pre-meditated murder, assuming he committed the murder in the first place. Without knowing the exact circumstances of the crime it is impossible to assume that this was a thought-out killing.

Flippen also had no prior criminal history or tendencies of violence. The best piece of aggravation that the prosecution presented was a picture of a hole in a wall that Flippen had punched through during an argument with his wife. The state was not able to show any past incidents of violence and there are no indications that Flippen constitutes a further threat to society. His death sentence is fully unjustified.

Without knowing the exact facts of the crime it is impossible to tell whether Samuel Flippen committed a pre-meditated murder. It also has not been proven that this man is a continuing threat. We must not execute people who have shown no cause to have their life taken away. This alleged crime was heinous but does not fit the parameters of a state execution.

NC Kills Sam Flippen Aug. 18.

Updated August 22, 2006

On Aug. 18, North Carolina executed Samuel “Sammy” Flippen for the 1994 death of his two-year old step-daughter, Britnie Hutton. The death of Britnie was not a premeditated killing that calls for the death penalty. Sammy was 25 years old when he married Britnie’s mother, Tina. On the day of Britnie’s death, Sammy made an emergency call to 911 seeking medical attention for Britnie. Tragically, Britnie later died of serious injuries. Sammy’s 911 call is strong evidence that Sammy never had the intention of harming his step-daughter. In addition, there was no history of Sammy ever injuring Britnie. Indeed, the state recognized that justice did not require that this be viewed as a premeditated death, and offered a plea to second degree murder.

No Justice in Flippen Execution

On Aug. 18, North Carolina plans to execute Samuel “Sammy” Flippen for the 1994 death of his two-year old step-daughter, Britnie Hutton.

The death of Britnie was not a premeditated killing that calls for the death penalty. Sammy was 25 years old when he married Britnie’s mother, Tina. On the day of Britnie’s death, Sammy made an emergency call to 911 seeking medical attention for Britnie.

Tragically, Britnie later died of serious injuries. Sammy’s 911 call is strong evidence that Sammy never had the intention of harming his step-daughter. In addition, there was no history of Sammy ever injuring Britnie. Indeed, the state recognized that justice did not require that this be viewed as a premeditated death, and offered a plea to second degree murder.

Family, friends, community members, and even Britnie’s father believe that although the death penalty may be justified in some cases, Sammy’s sentence should be commuted to life imprisonment because of his character and lack of a violent history. In a system where the death penalty is reserved for the most heinous offenders, Sammy Flippen’s execution would undermine any remaining confidence in the way North Carolina administers the death penalty.

Before being sent to death row, Sammy had never been charged or convicted of any crime. He was devoted to his school and church, and was known as an upstanding and contributing member of his community. Sammy was raised in the Gospel Light Baptist Church and graduated from Gospel Light Christian School in Winston-Salem. He was very active in his church youth group and its community service efforts. After graduating, Sammy worked and remained active in his church. Teachers, classmates, and others consider Sammy to be a respectful man who always tried to do the right thing.

Britnie’s father thinks about his daughter’s death every day, but he does not believe that justice would be served by executing Sammy. During the trial, he got to know Sammy’s mother and father well. He says he knows how terrible it is to lose a child and does not want Sammy’s parents to suffer in the same way. He has said that North Carolina does not need to execute Sam Flippen for justice to be served.

A mental health evaluation has shown that Sammy poses no risk of violence; indeed, Sammy’s risk of violence is not only less than the inmate population, but is less than that of the general population. This is not surprising given that Sammy has no history of substance abuse, mental health disorders, or criminal convictions. The death of Britnie was a tragic loss, which Sammy continues to mourn. The death, however, was not the type of premeditated murder that calls for the death penalty. This is a case that calls out for clemency.

Defendant, convicted of first-degree murder, was sentenced to death in the Superior Court, Forsyth County, McHugh, J. Defendant appealed as of right. The Supreme Court, Mitchell, C.J., held that: (1) evidence was sufficient to permit inference that defendant premeditated and deliberated killing of two-year old child; (2) defendant failed to establish abuse of discretion in admitting photographs and slides of victim; (3) triage nurse's medical report was not properly authenticated medical record; (4) excusing prospective juror for cause based on juror's views on death penalty was not an abuse of discretion; (5) trial court did not err in denying defendant opportunity to further question prospective jurors excused for cause; (6) physician's testimony that victim died as result of homicidal assault was proper opinion for expert in field of forensic pathology; and (7) Supreme Court was unable to hold that trial court's error in permitting jury in capital sentencing proceeding to fail to find and weigh statutory mitigating circumstance was harmless beyond reasonable doubt. No error in guilt phase; death sentence vacated and remanded.

MITCHELL, Chief Justice.

Defendant was tried capitally upon an indictment charging him with the first-degree murder of Brittany Hutton. The jury returned a verdict finding defendant guilty of first-degree murder on the theory of premeditation and deliberation. Following a separate capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death.

The trial court, as required by law in light of the jury's recommendation, sentenced defendant to death for the first-degree murder. Defendant appeals to this Court as a matter of right from the judgment and sentence of death imposed for first-degree murder. For the reasons set forth in this opinion, we conclude that defendant received a fair trial, free from prejudicial error, but that the trial court committed error at the capital sentencing proceeding. Thus, we remand for a new capital sentencing proceeding.

The State presented evidence at trial tending to show that on 12 February 1994 defendant fatally beat his two-year-old stepdaughter, Brittany Hutton. At approximately 9:15 that morning, Tina Flippen, Brittany's mother and defendant's wife, left for work, leaving Brittany alone with defendant.

At 10:11 a.m., defendant called 911 to report that Brittany had fallen and was having difficulty breathing. Five emergency medical personnel from both the Clemmons Rescue Squad and the Forsyth County EMS responded to defendant's trailer. Several members of the rescue teams testified that when they arrived at the scene, Brittany was pale, her lips were ash gray, her pupils were fixed and dilated, and she was making gasping-type respirations. Despite rescue efforts, Brittany was pronounced dead at the North Carolina Baptist Hospital in Winston-Salem at 10:51 a.m.

Dr. Donald Jason, a forensic pathologist who performed an autopsy on the victim, testified that he observed injuries to Brittany's head, neck, chest, abdomen, back, and extremities. Dr. Jason testified that Brittany died as a result of internal bleeding due to severe tearing of her liver and pancreas. He opined that these injuries could not have been caused by an accident such as a single fall, but rather that the injuries were consistent with one or more very powerful punches or blows to Brittany's abdomen.

Defendant testified that on the morning of Brittany's death, he placed her in a high chair and then went into another room where he could not see her. While there, defendant heard a loud noise, at which time he returned to find that the child had fallen and was having difficulty breathing. Thereafter, defendant called 911 for emergency assistance.

By an assignment of error, defendant argues that the trial court erred in denying his motion to dismiss the charge of first-degree murder. Defendant contends the evidence was insufficient to establish premeditation and deliberation. When a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of defendant being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982).

The evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980). Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. Id.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Skipper, 337 N.C. 1, 26, 446 S.E.2d 252, 265 (1994), cert. denied, 513 U.S. 1134, 115 S.Ct. 953, 130 L.Ed.2d 895 (1995). “Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.” State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). “Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” Id. at 635, 440 S.E.2d at 836.

The State's evidence tended to show that Brittany Hutton, age two years and four months, was brutally beaten, during which time defendant delivered multiple, extensive blows to numerous areas of the child's body. Dr. Jason testified that the victim ultimately died from internal bleeding due to severe tearing of her liver and pancreas.

However, he also enumerated numerous external injuries that Brittany sustained, including six injuries to her head; at least three injuries to her chest; injuries to her pelvis, hip bone, eye, and forehead; and bruises on her arms and right thigh. Dr. Jason opined that based upon the pattern and extent of these injuries, Brittany's injuries could not have been caused by an accidental fall as defendant maintains, but that they were instead caused by multiple blows from a fist.

When viewed in the light most favorable to the State, this forensic evidence alone is sufficient to permit an inference that defendant premeditated and deliberated the killing. The severity and extent of the injuries sustained by the helpless two-year-old child belie defendant's claim that Brittany fell from her high chair, and the trial court did not err in denying defendant's motion to dismiss. (Cf. State v. Greene, 332 N.C. 565, 572-73, 422 S.E.2d 730, 734 (1992); State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 350 (1987)). This assignment of error is overruled.

In another assignment of error, defendant argues that the trial court erred by admitting into evidence an excessive number of photographs and slides that depicted the deceased victim. Specifically, defendant contends that these exhibits should have been excluded because they were repetitious and their probative value was substantially outweighed by the danger of unfair prejudice. See N.C.G.S. § 8C-1, Rule 403 (1992).

What represents an excessive number of photographs and whether the photographic evidence is more probative than prejudicial are matters within the sound discretion of the trial court. State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). Repetitive photographs may be introduced, even if they are gruesome or revolting, as long as they are used for illustrative purposes and are not offered solely to arouse prejudice or passion in the jury. Id. at 284, 372 S.E.2d at 526.

The photographs and slides about which defendant complains were neither repetitious nor unfairly prejudicial. Two of the photographs were introduced during the testimony of Tina Flippen, the victim's mother. The first photograph illustrated Mrs. Flippen's testimony with respect to her observation of the victim's appearance at the hospital. The second photograph depicted an indentation in a wall where defendant had punched his fist following an argument about the way defendant reprimanded the victim, an event about which Mrs. Flippen testified.

Three other photographs depicted external injuries to the deceased's body and were admitted to illustrate the testimony of several paramedics who first responded to assist the victim. Finally, a series of eight autopsy slides, each of which depicted a separate area of the victim's body, was admitted to illustrate Dr. Jason's testimony concerning the nature and extent of the victim's external injuries. We conclude defendant has failed to establish an abuse of discretion in the admission of these photographs and slides.

In a related assignment of error, defendant argues that State's exhibit number eight, an autopsy photograph of the victim's head and neck, was not a fair and accurate representation of the victim's mouth and lips at the time she received treatment from emergency medical personnel. In support of this argument, defendant notes that none of the paramedics who reported to the crime scene testified that they noticed any injuries to the external portions of the victim's mouth or lips.

In fact, one paramedic specifically testified that he did not remember the victim's lips being in the dried and bruised condition as the photograph depicted. Thus, defendant contends State's exhibit number eight was not adequately authenticated. Defendant also argues that he was unduly prejudiced by the introduction of the photograph in that it “plants in the juror's [sic] minds the unsupported contention that the defendant brutally struck the child about her face and head prior to death.”

Assuming arguendo that the trial court erred by admitting State's exhibit number eight on the grounds that it was not properly authenticated, we conclude that defendant was not unfairly prejudiced by its admission. In addition to showing an apparent injury to the victim's outer mouth and lips, the photograph illustrated Dr. Jason's testimony concerning injuries to the victim's forehead and neck.

Further, Dr. Jason testified that the apparent injury to the outer mouth and lips appeared to be a drying of the lips, which is a natural degenerative occurrence after death. In light of the substantial evidence showing multiple blunt-force impact injuries over the victim's entire body, we cannot conclude that a different result might have occurred had the photograph not been admitted. Defendant's assignment of error is therefore overruled.

In his next assignment of error, defendant argues that the trial court erred by denying his request to introduce into evidence defendant's exhibit number two, the triage nurse's medical report. Defendant argues that the nurse's report was relevant and admissible because it constituted a part of the medical records that Dr. Jason reviewed and relied upon to formulate his opinion as to the victim's injuries. The trial court excluded the nurse's report, ruling that “it was not properly authenticated as a medical record. The witness upon whom it was called to be authenticated was not a custodian of the records but otherwise-or otherwise affiliated with the recordkeeping facility.”

We agree with the trial court. Dr. Jason testified that he was unable to state with certainty that he had either read the document or relied upon it in preparing his autopsy report. While he did identify defendant's exhibit number two as a triage nurse's report, he was not the custodian of the report. Further, he was unaware of the circumstances under which the report had been maintained. Thus, the trial court committed no error.

Defendant also argues that the trial court erred in refusing to allow him the opportunity to cross-examine Dr. Jason about the triage nurse's report. However, defendant failed to assign this issue as error; therefore, it is not properly before this Court for review. N.C. R.App. P. 10. Defendant's assignment of error is overruled.

In another assignment of error, defendant argues that the trial court erred in allowing the State's challenge for cause of prospective juror Judith Peebles without allowing him the opportunity to rehabilitate her. In Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1777, 20 L.Ed.2d 776, 784-85 (1968), the Supreme Court held that a prospective juror may not be excused for cause simply because he “voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

However, a juror may be excused for cause if his views on capital punishment would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985). Further, jurors may be properly excused if they are unable to “ ‘state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.’ ” State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 907-08 (1993) (quoting Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149 (1986)) (emphasis omitted).

When questioned by the trial court and the prosecutor, prospective juror Peebles stated that she was opposed to the death penalty and that she did not think she could vote for the death penalty. Peebles' responses indicated with unmistakable clarity that her bias against the death penalty would substantially impair her ability to perform her duties as a juror, and the trial court so ruled. The ruling of the trial court in such situations will not be disturbed absent an abuse of discretion. State v. Wilson, 313 N.C. 516, 526, 330 S.E.2d 450, 458 (1985).

Based on Peebles' responses, we conclude that the trial court did not abuse its discretion in excusing her for cause. Defendant's assignment of error is overruled. Defendant next assigns error to the trial court's refusal to afford him an opportunity to rehabilitate prospective jurors excused for cause pursuant to Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777, 20 L.Ed.2d at 780 We find no error with respect to any of the jurors.

While defendant has referred this Court to specific pages of the transcript to support his argument, he fails to discuss specific allegations or instances in which the trial court denied his request to rehabilitate prospective jurors or otherwise examine the venire. Nevertheless, we have carefully reviewed the relevant portions of the transcript.

Under questioning by the prosecutor and the trial court, the excused jurors clearly and unequivocally stated that they were opposed to the death penalty and that their opposition to the death penalty would cause them to vote against its imposition under any circumstances. It is well established that “[t]he defendant is not allowed to rehabilitate a juror who has expressed unequivocal opposition to the death penalty in response to questions propounded by the prosecutor and the trial court.” State v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990).

We note further that defendant did not request an opportunity to rehabilitate any of the prospective jurors, and only once did defendant take exception to a prospective juror's excusal. In the absence of any such request, and there being no showing that further questioning by defendant would have produced different answers, it was not error for the trial court to deny defendant the opportunity to question the prospective jurors further. This assignment of error is overruled.

By another assignment of error, defendant argues that the trial court erred by overruling his objection to Dr. Jason's testimony that the victim died as a result of a “homicidal assault.” During voir dire outside the presence of the jury, Dr. Jason explained that the term “homicidal assault” is a specific term of art in the field of forensic pathology. He stated he uses the term “homicidal assault” to characterize the victim's death in order to differentiate from death resulting from injuries that were sustained over a length of time, sometimes referred to as battered child syndrome.

After this explanation, the trial court allowed Dr. Jason's testimony. In support of his assignment of error, defendant argues that the characterization of the victim's death by Dr. Jason implied to the jury that the assault necessarily was premeditated and deliberate. Further, defendant argues that the testimony was of no assistance to the jury. See N.C.G.S. § 8C-1, Rule 704 (1992).

Finally, defendant contends that the testimony's probative value was outweighed by its prejudicial effect on the jury. See N.C.G.S. § 8C-1, Rule 403 (1992). Dr. Jason's use of the term “homicidal assault” is not a legal term of art, nor does it correlate to a criminal offense. The testimony related a proper opinion for an expert in the field of forensic pathology, in light of the foundation previously laid by Dr. Jason's voir dire testimony.

Thus, the trial court did not err in allowing Dr. Jason's testimony; the probative value was not obscured by any prejudicial effect. Defendant's assignment of error is overruled. We conclude for the foregoing reasons that defendant's trial was free from prejudicial error. Thus, we now turn to defendant's assignments of error relating to the separate capital sentencing proceeding conducted in this case.

By another assignment of error, defendant contends that the trial court erred by failing to give a mandatory peremptory instruction on N.C.G.S. § 15A-2000(f)(1), that defendant had “no significant history of prior criminal activity.” The State and defendant stipulated that defendant had no significant history of prior criminal activity, yet the jury declined to find the existence of the (f)(1) mitigator.

Defendant argues the trial court erred by failing to instruct the jury that because of the stipulation, it must find the (f)(1) mitigating circumstance to exist and must also give the circumstance mitigating weight in its decision. We agree. The trial court gave the following peremptory instruction during its charge to the jury: First, consider whether the defendant has no significant history of prior criminal activity····

Whether any history of prior criminal activity is significant is for the jury to determine from all of the facts and circumstances found from the evidence. All of the evidence presented in this case, members of the jury, tends to show that the defendant has no significant history of prior criminal activity. Furthermore, the defendant and the State in this case have stipulated that the defendant has no significant history of prior criminal activity.

Accordingly as to this mitigating circumstance, I instruct you that if one or more of you finds the facts to be as all the evidence tends to show, you would so indicate by having your foreman write “yes” in the space provided after the mitigation circumstance one on the issues and recommendation form. Second, you must consider whether the defendant has no criminal prior history and whether you deem this to have mitigating value····

All of the evidence tends to show that the defendant has no prior criminal history and accordingly as to this mitigating circumstance I charge that if one or more of you find the facts to be as all of the evidence tends to show and further deems or considers that to have mitigating value, you would so indicate by having your foreman write “yes” in the space provided after mitigating circumstance two on the issues and recommendation form.

The State argues that this requested peremptory instruction complies with this Court's mandate that “in those cases where the evidence is truly uncontradicted, the defendant is, at most, entitled to a peremptory instruction when he requests it.” State v. Johnson, 298 N.C. 47, 76, 257 S.E.2d 597, 618 (1979). The State further contends that the jury simply declined to find the mitigating circumstance, an action within its prerogative. State v. Alston, 341 N.C. 198, 461 S.E.2d 687 (1995) cert. denied, 516 U.S. 1148, 116 S.Ct. 1021, 134 L.Ed.2d 100 (1996).

In Alston, this Court said, “even where all the evidence supports a finding that the mitigating circumstance exists and a peremptory instruction is given, the jury may nonetheless reject the evidence and not find the fact at issue if it does not believe the evidence.” Id. at 256, 461 S.E.2d at 719. We continue to recognize the well-established rule that jurors may reject the existence of an uncontroverted statutory mitigating circumstance even after a peremptory instruction. Id. However, the case at bar is not controlled by that rule.

Unlike Alston where the evidence tended to show the existence of an uncontroverted statutory mitigating circumstance, in the case at bar, the State and defendant stipulated to the existence of the mitigating circumstance contained in N.C.G.S § 15A-2000(f)(1). A stipulation entered into between the parties has the effect of removing a question of fact from the jury's consideration. Neither party need present evidence or show proof of the existence of such facts that are contained within the stipulation.

In other words, “[t]he stipulation is substituted for proof and dispenses with the need for evidence.” State v. Mitchell, 283 N.C. 462, 469, 196 S.E.2d 736 (1973). Because both parties stipulated to the existence of the statutory mitigating circumstance, whether defendant had a significant history of prior criminal activity was not a factual matter for the jury to determine.

Thus, the trial court erred by failing to instruct the jury that the N.C.G.S § 15A-2000(f)(1) mitigating circumstance existed as a matter of law and must be given weight. Once the existence of a statutory mitigating circumstance is established, the “jury may not refuse to give it weight or value” in its decision. State v. Fullwood, 323 N.C. 371, 396, 373 S.E.2d 518, 533 (1988) sentence vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990); see also State v. Kirkley, 308 N.C. 196, 220-21, 302 S.E.2d 144, 157-58 (1983), overruled on other grounds by State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988).

Our legislature has determined as a matter of law that when statutory mitigating circumstances exist, they are deemed as a matter of law to have mitigating value. Fullwood, 323 N.C. at 396, 373 S.E.2d at 533; State v. Wilson, 322 N.C. 117, 144, 367 S.E.2d 589, 605 (1988); see N.C.G.S. § 15A-2000(f) (Supp.1995).

This Court has consistently held that if a statutory mitigating circumstance exists, the jury is not free to refuse to consider the circumstance and must give it some weight in its final sentencing determinations. However, the amount of weight any circumstance may be given is a matter left to the jury. State v. Keel, 337 N.C. 469, 447 S.E.2d 748 (1994), cert. denied, 513 U.S. 1198, 115 S.Ct. 1270, 131 L.Ed.2d 147 (1995); see also State v. Huff, 325 N.C. 1, 381 S.E.2d 635 (1989), sentence vacated on other grounds, 497 U.S. 1021, 110 S.Ct. 3266, 111 L.Ed.2d 777 (1990).

The result of the trial court's erroneous peremptory instruction was to allow the jury to answer “no” to the existence of the statutory (f)(1) mitigator and thus disregard the stipulation. As a matter of well-established law, the trial court's failure to give a mandatory peremptory instruction was therefore error.

Furthermore, we cannot state that had this statutory mitigating circumstance been weighed against the aggravating circumstance, the jury would still have returned a sentence of death. Therefore, we are unable to hold that the trial court's error permitting the jury to fail to find and weigh this mitigating circumstance was “harmless beyond a reasonable doubt.” N.C.G.S. § 15A-1443(b) (1988). Accordingly, we vacate the death sentence in this case and remand it to the Superior Court, Forsyth County, for a new capital sentencing proceeding.

Defendant was convicted following jury trial in the Superior Court, Forsyth County, McHugh, J., of first-degree murder and was sentenced to death in connection with beating death of two-year-old stepdaughter. Defendant appealed as of right. The Supreme Court, 344 N.C. 689, 477 S.E.2d 158, remanded for new capital sentencing proceeding. Pursuant to jury's recommendation, the Superior Court, Forsyth County, Greeson, J., imposed death sentence. Defendant appealed. The Supreme Court, Whichard, J., held that: (1) evidence supported “especially heinous, atrocious, or cruel” aggravating circumstance; (2) jurors could find that nonstatutory mitigating circumstances existed without finding they had mitigating value; (3) videotape of victim was admissible; and (4) alleged showing of remorse did not render death sentence disproportionate. No error.

WHICHARD, Justice.

On 31 October 1994 defendant was indicted for first-degree murder. He was tried capitally in February 1995. The jury found defendant guilty and recommended that he be sentenced to death. The trial court imposed the death sentence. This Court found no error in the guilt-innocence phase of defendant's trial but vacated defendant's death sentence and remanded for a new capital sentencing proceeding. State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (1996) ( Flippen I ).

Defendant's new capital sentencing proceeding was held at the 19 May 1997 Criminal Session of Superior Court, Forsyth County. A jury again recommended a sentence of death for the first-degree murder, and the trial court sentenced defendant accordingly. Defendant appeals from this sentence. We hold that defendant received a fair sentencing proceeding, free from prejudicial error, and that the sentence of death is not disproportionate.

The facts were presented in our earlier opinion, id. at 693-94, 477 S.E.2d at 161, and need not be restated in detail here. During defendant's new capital sentencing proceeding, the State presented evidence that defendant inflicted one or more fatal blows to his two-year-old stepdaughter's stomach. These blows tore the stepdaughter's liver and pancreas and caused internal bleeding. Prior to her death, the victim lived for approximately thirty minutes with these fatal injuries.

During this time defendant called 911 to seek medical attention for his stepdaughter. Defendant told medical personnel that the stepdaughter had fallen from a chair. Consequently, as the victim rode to the hospital in an emergency vehicle, the paramedics initially treated her for a head or C-spine injury.

As the victim demonstrated increasing difficulty breathing, the paramedics removed her clothes to try to open her airway; they noticed bruising on the victim's abdomen. The paramedics then no longer believed that the victim suffered from a head or C-spine injury. The victim stopped breathing on her way to the hospital, and her heartbeat steadily decreased and ultimately quit. The paramedics performed infant CPR, and they were still performing it when the emergency vehicle arrived at the hospital, where the victim was pronounced dead.

Defendant offered as mitigating evidence that he was a high-school graduate who regularly attended church, that he maintained regular employment, and that he had a good reputation in the community for being a fine and upstanding citizen. He presented evidence that he genuinely loved his stepdaughter and had a good relationship with her with no history of physical abuse.

The jury found one aggravating circumstance: that defendant's crime was especially heinous, atrocious, or cruel. N.C.G.S. § 15A-2000(e)(9) (1997). The jury also found one mitigating circumstance: that defendant had no significant history of prior criminal activity. N.C.G.S. § 15A-2000(f)(1).

The jury then determined that the mitigating circumstance found was insufficient to outweigh the aggravating circumstance found and that the aggravating circumstance, when considered with the mitigating circumstance, was sufficiently substantial to call for imposition of the death penalty.

Defendant first contends that this Court erred in Flippen I when it found prejudicial error in the trial court's sentencing-phase jury charge and remanded this matter for a new sentencing proceeding under N.C.G.S. § 15A-2000(d)(3). See Flippen I, 344 N.C. at 702, 477 S.E.2d at 166. Defendant argues that this Court was required to overturn the death sentence and impose a sentence of life imprisonment in lieu thereof under N.C.G.S. § 15A-2000(d)(2) because his first jury arbitrarily recommended the death sentence under the influence of passion and prejudice.

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We now turn to our duty to ascertain: (1) whether the evidence supports the aggravating circumstances found by the jury; (2) whether the sentence was entered under the influence of passion, prejudice, or any other arbitrary consideration; and (3) whether the sentence is “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.” N.C.G.S. § 15A-2000(d)(2). The jury found the (e)(9) aggravating circumstance that defendant's murder of his stepdaughter was especially heinous, atrocious, or cruel. N.C.G.S. § 15A-2000(e)(9). The record fully supports the jury's finding of this aggravating circumstance, and we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We therefore turn to our final duty of proportionality review.

One purpose of proportionality review is to “eliminate the possibility that a sentence of death was imposed by the action of an aberrant jury.” Lee, 335 N.C. at 294, 439 S.E.2d at 573. Another is to guard “against the capricious or random imposition of the death penalty.” State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137 (1980). In proportionality review, it is proper to compare the present case with other cases in which this Court has concluded that the death penalty was disproportionate. State v. McCollum, 334 N.C. 208, 240, 433 S.E.2d 144, 162 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994). We have found the death penalty disproportionate in seven cases: State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by Gaines, 345 N.C. at 647, 483 S.E.2d at 396, and Vandiver, 321 N.C. at 570, 364 S.E.2d at 373; State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983); and State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). This case is distinguishable from each of those cases.

Defendant contends that his effort to assist the victim by calling 911 renders his death sentence disproportionate. Although defendant does not direct us to any authority to support this assertion, we recognize that we have considered evidence of a defendant's remorse for his action as important in proportionality review. In Bondurant, 309 N.C. at 694, 309 S.E.2d at 182, we stated that “[w]e deem it important in amelioration of defendant's senseless act that immediately after he shot the victim, he exhibited a concern for [the victim's] life and remorse for his action by directing the driver of the automobile to the hospital.” The defendant in Bondurant exhibited his remorse as he “readily spoke with policemen at the hospital, confessing that he fired the shot which killed [the victim].” Id. at 694, 309 S.E.2d at 183.

Defendant here did not exhibit the kind of conduct we recognized as ameliorating in Bondurant. Defendant failed to direct the medical personnel to the victim's fatal injuries and left those injuries concealed beneath her clothing. Further, defendant misled the medical personnel about the victim's injuries, telling them that the victim fell from a chair.

Thus, although the defendant called 911, he failed to exhibit sufficient remorse to ameliorate his murder of his stepdaughter as did the defendant in Bondurant. The present case is more similar to cases in which we have found the sentence of death proportionate than to those in which we have found it disproportionate. See, e.g., Burr, 341 N.C. at 315, 461 S.E.2d at 631 (concluding that the death penalty was proportionate in a case in which an infant was shaken and beaten to death by the mother's boyfriend).

Background: State prisoner filed petition for writ of habeas corpus, challenging his first-degree murder conviction and death sentence, affirmed at 349 N.C. 264, 506 S.E.2d 702. After his petition was denied, 2004 WL 1348220, petitioner applied for certificate of appealability (COA). Holding: The District Court, Beaty, J., adopted opinion of Sharp, United States Magistrate Judge, which held that reasonable jurists could not debate whether habeas petition should have been resolved in a different manner, or that issues presented were adequate to deserve encouragement to proceed further. Application denied.

SHARP, Magistrate J.

Petitioner Samuel Russell Flippen, a North Carolina death row inmate, filed this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, challenging his 1995 state court conviction for first-degree murder and 1997 sentence of death. The jury in Petitioner's second sentencing hearing, after his first death sentence was vacated on appeal and his case remanded for re-sentencing, again recommended a sentence of death, and the judge imposed that sentence on May 23, 1997.

Petitioner seeks in this action a writ of habeas corpus discharging him from his confinement and restraint, setting aside his conviction, and relieving him of his sentence of death. Petitioner Flippen is represented by attorneys Richard M. Greene and Brian K. Tomlin. Respondent R.C. Lee (the “State”), warden of Central Prison, is represented by the North Carolina Attorney General, with Special Deputy Valerie B. Spalding appearing.

THE STATE COURT PROCEEDINGS

Petitioner Flippen was convicted of first-degree murder at the March 6, 1995 Criminal Session of the Superior Court of Forsyth County, North Carolina and was sentenced to death on March 7, 1995. His conviction was affirmed by the Supreme Court of North Carolina on November 8, 1996, but the court found error in his sentencing hearing because the trial judge failed to instruct the jury that it must give mitigating value to a statutory mitigating circumstance stipulated to by the State and Petitioner. The case was remanded for a new capital sentencing hearing. See State v. Flippen, 344 N.C. 689, 477 S.E.2d 158 (1996)( “Flippen I” ). Petitioner was sentenced to death at his second sentencing hearing. His sentence was affirmed by the Supreme Court of North Carolina on November 6, 1998. See State v. Flippen, 349 N.C. 264, 506 S.E.2d 702 (1998)( “Flippen II” ). On May 24, 1999, the United States Supreme Court denied certiorari review. See Flippen v. North Carolina, 526 U.S. 1135, 119 S.Ct. 1813, 143 L.Ed.2d 1015 (1999).

On February 14, 2000, Petitioner filed a Motion for Appropriate Relief (“MAR”) in the Superior Court of Forsyth County. The State responded in opposition. On December 21, 2000, Judge William Z. Wood, Jr. entered an Order denying (1) the claims presented in the MAR, (2) Petitioner's motion for discovery, (3) Petitioner's motion for funds to hire a private investigator, and (4) Petitioner's motion for funds to hire a mitigation assistant. See Respondent's Answer, Ex. T, Memorandum Opinion and Final Order, Dec. 21, 2000 (“MAR Order”). Petitioner filed a petition for Writ of Certiorari with the Supreme Court of North Carolina, but that court denied certiorari review. On July 11, 2001, Petitioner filed his Petition for Writ of Habeas Corpus with this Court. Respondent timely filed an Answer. The parties have briefed their positions, and the Petition is now ready for a ruling. See Rule 8(a), Rules Governing § 2254 Cases.

THE CLAIMS OF THE HABEAS CORPUS PETITION

Petitioner Flippen presents the following claims in his habeas petition. I. Petitioner was denied effective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights during trial and on appeal.

A. Ineffective assistance of counsel at guilt phase. 1. Petitioner received ineffective assistance from defense counsel in that defense counsel conceded Petitioner's guilt during closing arguments without Petitioner's consent. 2. Petitioner received ineffective assistance from defense counsel in that defense counsel failed to use medical experts to assist: i) in reviewing and evaluating the autopsy report; ii) in preparing for cross-examination of State's medical witness; and iii) in evaluating the State's case for purposes of assisting petitioner to make informed decisions concerning acceptance of any pleas offered by the State. 3. Petitioner received ineffective assistance from defense counsel in that defense counsel failed to properly advise Petitioner on plea offer from State of second-degree murder. 4. Petitioner received ineffective assistance from defense counsel in that defense counsel failed to object to prosecutor's “death qualifying” of prospective jurors through use of peremptory challenges, failed to attempt to rehabilitate scrupled jurors excused for cause for their death penalty views. 5. Petitioner received ineffective assistance from defense counsel in that defense counsel failed to object to prosecutor's improper jury argument.

B. Ineffective assistance of counsel at resentencing phase. 1. Petitioner received ineffective assistance from defense counsel in that defense counsel failed to use medical experts to assist: i) in reviewing and evaluating the autopsy report; ii) in preparing for cross-examination of State's medical witness; iii) in presenting evidence for Petitioner; and iv) in challenging the sufficiency of the evidence to support an “especially heinous, atrocious or cruel” aggravating factor. 2. Petitioner received ineffective assistance from defense counsel in that defense counsel failed to object to prosecutor's “death qualifying” of prospective jurors through use of peremptory challenges and failed to attempt to rehabilitate scrupled jurors excused for cause for their death penalty views. 3. Petitioner received ineffective assistance from defense counsel when defense counsel conceded Petitioner's guilt during closing arguments without Petitioner's consent. 4. Petitioner received ineffective assistance from defense counsel when defense counsel failed to object to State's improper argument. 5. Petitioner received ineffective assistance from defense counsel when defense counsel failed to adequately prepare for the sentencing hearing. C. Ineffective assistance of appellate counsel.

II. The trial court deprived Petitioner of his due process rights to be present at every stage of his capital proceedings by failing to make a true, accurate and complete record of all proceedings and failing to ensure Petitioner was present at all critical stages of his trial.

III. The North Carolina two-step mitigation instruction violated Petitioner's Eighth and Fourteenth Amendment rights.

IV. The North Carolina Supreme Court's method of proportionality review violated Petitioner's due process rights. A. The North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision in that it has created a new statutory aggravating circumstance by affirming the submission and finding of the especially heinous, atrocious, and cruel aggravating circumstance in virtually all cases in which the homicide victim is a child. B. The North Carolina Supreme Court violated Petitioner's federal constitutional rights in making its proportionality decision in that it affirmed the submission and finding of the especially heinous, atrocious, and cruel aggravating circumstance despite evidence indicating that, aside from the fact that the case at bar involved the homicide of a child, the case is not similar to those in the most accurate proportionality pool.

V. The Flippen II trial court committed prejudicial error and violated the double jeopardy clause by failing to give a mandatory peremptory instruction on the statutory mitigating circumstance that Petitioner had no significant history of prior criminal activity when the State had stipulated in Flippen I that Petitioner had no significant history of prior criminal activity.

The State contends in its Answer and accompanying Motion to Procedurally Default Flippen's Habeas Claims that Petitioner's claims I.A.4, I.A.5, and II were procedurally defaulted before the state courts. The MAR court held these three claims to be procedurally defaulted pursuant to N.C. Gen.Stat. § 15A-1419(a)(3) because Petitioner could have raised these claims on direct appeal to the North Carolina Supreme Court but did not do so. The State also contends that claims I.B.2, I.B.3, I.B.5, and I.C. are unexhausted, but the State waives the exhaustion requirement.

THE EVIDENCE PRESENTED AT TRIAL

The Supreme Court of North Carolina summarized the evidence presented at Petitioner's trial in 1995 as follows: The State presented evidence at trial tending to show that on 12 February 1994 defendant fatally beat his two-year-old stepdaughter, Brittany Hutton. At approximately 9:15 that morning, Tina Flippen, Brittany's mother and defendant's wife, left for work, leaving Brittany alone with defendant. At 10:11 a.m., defendant called 911 to report that Brittany had fallen and was having difficulty breathing.

Five emergency medical personnel from both the Clemmons Rescue Squad and the Forsyth County EMS responded to defendant's trailer. Several members of the rescue teams testified that when they arrived at the scene, Brittany was pale, her lips were ash gray, her pupils were fixed and dilated, and she was making gasping-type respirations. Despite rescue efforts, Brittany was pronounced dead at the North Carolina Baptist Hospital in Winston-Salem at 10:51 a.m.

Dr. Donald Jason, a forensic pathologist who performed an autopsy on the victim, testified that he observed injuries to Brittany's head, neck, chest, abdomen, back, and extremities. Dr. Jason testified that Brittany died as a result of internal bleeding due to severe tearing of her liver and pancreas. He opined that these injuries could not have been caused by an accident such as a single fall, but rather that the injuries were consistent with one or more very powerful punches or blows to Brittany's abdomen.

Defendant testified that on the morning of Brittany's death, he placed her in a high chair and then went into another room where he could not see her. While there, defendant heard a loud noise, at which time he returned to find that the child had fallen and was having difficulty breathing. Thereafter, defendant called 911 for emergency assistance. Flippen, 344 N.C. at 693-94, 477 S.E.2d 158. Petitioner was represented at trial by retained counsel, Fred G. Crumpler, Jr. and David B. Freedman. The State was represented by Eric Saunders and Ina Weinman.

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CONCLUSION

For the reasons set forth above, IT IS RECOMMENDED that the habeas corpus petition of Samuel Russell Flippen be denied and dismissed. The undersigned has not called for oral argument, finding that the written record, the arguments of counsel, and the legal precedents applicable to this case are clear, and oral argument would not be helpful to the court.