Court tells killer: No delay

Denial of request makes Friday execution more likely

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.

After finding Flippen guilty, the jury recommended a death sentence. The state Supreme Court overturned that sentence and ordered a second jury to consider Flippen's lack of previous criminal convictions. In 1997, the second jury also recommended a death sentence.