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Ed. 2d 818", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 }, { "cite": "451 S.E.2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "339 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556681 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/339/0172-01" ] }, { "cite": "410 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "58" } ], "opinion_index": 0 }, { "cite": "330 N.C. 161", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512915 ], "year": 1991, "pin_cites": [ { "page": "163" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0161-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "309 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761257 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0674-01" ] }, { "cite": "129 L. Ed. 2d 895", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "512 U.S. 1254", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 39539 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/us/512/1254-01" ] }, { "cite": "433 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "162" }, { "page": "164" } ], "opinion_index": 0 }, { "cite": "334 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530367 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "240" }, { "page": "244" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0208-01" ] }, { "cite": "86 L. Ed. 2d 267", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1985, "opinion_index": 0 }, { "cite": "471 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6387653, 6387846, 6387984, 6387541, 6387381 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/us/471/1120-03", "/us/471/1120-04", "/us/471/1120-05", "/us/471/1120-02", "/us/471/1120-01" ] }, { "cite": "314 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "503" } ], "opinion_index": 0 }, { "cite": "310 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395675 ], "year": 1984, "pin_cites": [ { "page": "648" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0632-01" ] }, { "cite": "130 L. Ed. 2d 1083", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1995, "opinion_index": 0 } ], "analysis": { "cardinality": 2876, "char_count": 136390, "ocr_confidence": 0.772, "pagerank": { "raw": 5.51302660526647e-07, "percentile": 0.9464042112107695 }, "sha256": "1c3250c063f88eddea7655e6302a2def39678bd5848e5cce777411015ea6f516", "simhash": "1:8f6bc926766e9df2", "word_count": 21578 }, "last_updated": "2023-07-14T15:15:14.712587+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Wynn did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. RANDY LYNN ATKINS" ], "opinions": [ { "text": "LAKE, Justice.\nDefendant was indicted on 12 April 1993 for first-degree sexual offense and for the first-degree murder of his eight-month-old son, Lyle James Atkins. On 18 November 1993, defendant entered into a plea agreement in which he agreed to plead guilty to the first-degree murder charge and the State agreed to dismiss the pending sexual offense charge and not to submit any evidence pertaining to this or any other sexual assaults purportedly committed by defendant. Following a capital sentencing proceeding pursuant to N.C.G.S. \u00a7 15A-2000, the jury recommended that defendant be sentenced to death for the murder of his infant son. Judge Saunders sentenced defendant accordingly.\nThe State presented evidence at the sentencing proceeding tending to show that, on 16 March 1993, defendant inflicted fatal injuries to his son, Lyle. Defendant, Lyle, and Lyle\u2019s mother were living together at the time at the Lazywood Mobile Home Park in Buncombe County.\nLyle\u2019s mother, Ms. Colleen Shank, testified that on the morning of 16 March 1993, she asked defendant to watch Lyle while she washed some clothes. Ms. Shank stated that she heard a \u201cbang.\u201d Following the \u201cbang,\u201d Ms. Shank heard Lyle begin to cry, and she rushed to the living room. Ms. Shank testified that she then observed defendant hitting Lyle\u2019s head against the trailer wall a \u201cfew times.\u201d She testified further that she saw defendant \u201cswing him [Lyle] very strong\u201d and that \u201cLyle hit the wall very hard.\u201d Ms. Shank tried to comfort Lyle and attempted to lay the child down to rest. However, Lyle soon began to cry, and Ms. Shank noted that he was turning blue. The mother administered CPR and requested that defendant go to a neighbor\u2019s home to call 911 for emergency assistance.\nDefendant then went to the home of a neighbor and called 911. The 911 operator testified that defendant responded to her questions concerning medical history related to Lyle\u2019s emergency by replying \u201cit [Lyle] may have been sick two or three days, but no other.\u201d Lyle\u2019s mother testified that while waiting for emergency personnel to arrive, defendant told her, \u201cDon\u2019t say anything, because I will hurt you too.\u201d\nFollowing the arrival of emergency medical personnel, Lyle was transported by helicopter to Mission Memorial Hospital in Asheville. Upon admission to the hospital, Lyle was noted to be limp, not moving, and exhibiting a slow heart rate. The admitting physician noted numerous injuries to the small child, including bruising on both sides of his head, an older bruise on his left elbow, bruising on his right wrist and right hand, a deformation of his pelvis, and an improperly healed fracture of his right lower leg.\nA detective from the Woodfin Police Department questioned defendant and Ms. Shank in the waiting room of the hospital. Defendant initially told the officer that Lyle had stopped breathing \u201cbecause of the Ker-O-Sun heater.\u201d Defendant responded to the officer\u2019s further inquiry by adding that \u201ca couple of days ago I was holding him, and he slipped and fell, and he hurt his arm.\u201d The officer subsequently arrested both defendant and Ms. Shank and transported them to the Buncombe County jail. Later that day, while in police custody, defendant issued a written statement in which he admitted the following:\nToday Lyle was crying as I was holding him, and my temper and patience snapped again, as he was crying and crying no matter how soothing and gentle I was. He just kept crying, and I couldn\u2019t handle him any more, and I started hitting him on the side of his head and trying to get him to stop crying, and he wouldn\u2019t. I kept telling him to stop it, and he wouldn\u2019t, and I kept on hitting him with my hand on his head.\nDespite aggressive medical efforts to save Lyle\u2019s life, he died at Asheville\u2019s Mission Memorial Hospital on 18 March 1993. Following Lyle\u2019s death, defendant was indicted for the first-degree murder of his infant son. Defendant entered into a plea agreement dated 18 November 1993, consenting to a guilty plea to first-degree murder. As a condition to the plea, the State agreed to dismiss the first-degree sexual assault charge pending against defendant.\nA capital sentencing proceeding was held in Superior Court, Buncombe County, beginning on 29 November 1993. The State presented evidence in support of one statutory aggravating circumstance: that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(9) (1988) (amended 1994). An experienced pediatric radiologist testified at the sentencing proceeding concerning the extent of injuries suffered by Lyle. The testimony indicated that the eight-month-old infant exhibited the following injuries upon admission to Mission Memorial Hospital on 16 March 1993: healing fracture of the right clavicle, healing bone along the midshaft of the right upper arm, extensive injury of the left upper arm, dislocation of the left elbow, healing bone indicative of a fracture of the right hip, skull fractures and bruising on both the left and right sides, and a compression fracture of the spine. Further testimony indicated that the injuries occurred in at least two episodes of injury to Lyle. The pediatric radiologist estimated that the time of the origin of injuries ranged from four weeks prior to the hospital admission up to within a day of the admission. Several treating physicians also testified at the sentencing proceeding that Lyle exhibited symptoms of \u201cbattered child syndrome.\u201d The State presented expert testimony by Dr. Cynthia Brown, a pediatrician, who defined a \u201cbattered child\u201d as a \u201cchild that presents with multiple purposely inflicted injuries that are of varying ages.\u201d\nDefendant presented evidence of twenty-five potential mitigating circumstances in addition to the statutory \u201ccatchall\u201d mitigating circumstance during the capital sentencing proceeding. The jury rejected all but two of these potential mitigating circumstances, finding only (1) \u201cthe [defendant qualifies as having a learning disability due to his IQ variations,\u201d and (2) \u201cthe [defendant was diagnosed by Dr. Clabe Lynn in April of 1993 as having a personality disorder and adjustment disorder with a mixed disturbance of emotions and conduct.\u201d On 8 December 1993, the jury unanimously recommended that defendant be sentenced to death.\nOn 21 June 1995, defendant filed a motion for appropriate relief, and this Court remanded the motion in order that an evidentiary hearing could be held. At the 11 December 1996 session of Superior Court, Buncombe County, Judge Ronald K. Payne denied defendant\u2019s motion for discovery of all documents in the State\u2019s possession concerning the case, including attorney work-product material. This Court denied review of this order on 15 January 1997. An evidentiary hearing was conducted at the 10 March 1997 session of Superior Court, Buncombe County, Judge Forrest A. Ferrell presiding. By order dated 16 May 1997, defendant\u2019s motion for appropriate relief was denied. Defendant appeals the denial of this motion to this Court, along with his sentence of death for the first-degree murder. We consider both in this review.\nIn his first assignment of error, defendant contends the trial court erred by permitting the State to enter into a plea agreement requiring the court to withhold evidence in support of an aggravating circumstance. Defendant argues that evidence of the first-degree sexual offense was relevant to two statutory aggravating circumstances: (1) \u201c[t]he capital felony was committed while the defendant was engaged ... in the commission of ... a sex offense\u201d; and (2) \u201c[t]he capital felony was especially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(5), (9). Defendant asserts that the plea agreement creates reversible error, as it introduces an impermissible, arbitrary factor into capital sentencing proceedings, in violation of the Eighth Amendment to the United States Constitution and Article I, Section 27 of the North Carolina Constitution. We hold that the plea agreement did not preclude the introduction of aggravating circumstances supported by the evidence, and therefore the trial court did not err by accepting the agreement.\nDefendant is correct to note that this Court has held a district attorney may not exercise his discretion as to when an aggravating circumstance supported by the evidence will or will not be submitted to the jury. See State v. Case, 330 N.C. 161, 163, 410 S.E.2d 57, 58 (1991). The mandatory submission of all statutory aggravating circumstances is necessary to ensure the integrity of the capital sentencing procedure and \u201cto prevent capital sentencing from being irregular, inconsistent and arbitrary.\u201d Id.\nHowever, the principle enunciated by this Court in Case is clearly contingent upon the presence of genuine evidence supporting the statutory aggravating circumstances. Id. In the case sub judice, the plea agreement did not require the trial court to withhold submission of a statutory aggravating circumstance supported by credible evidence. The uncontroverted medical evidence indicated that Lyle endured an extended series of beatings, resulting in broken bones and bruises. Expert testimony further indicated that these injuries occurred during a four-week period prior to Lyle\u2019s death on 18 March 1993. The only evidence indicating a potential sexual assault was the presence of a relaxed rectal sphincter. The evidence relating to this potential sexual offense indicated that the relaxed sphincter was present in January 1993, two months prior to Lyle\u2019s murder. There was no apparent connection between this prior condition and the circumstances leading to or causing Lyle\u2019s death. The total absence of evidence indicating any sexual offense during the four-week period of physical abuse and battery that caused Lyle\u2019s death leads to the inevitable conclusion that the trial court did not err by accepting the plea agreement which excluded evidence detrimental to defendant. We hold that defendant\u2019s initial assignment of error is without merit.\nIn his second assignment of error, defendant asserts the trial court erred by permitting evidence and argument as to whether various medical experts had seen injuries as severe as those exhibited by Lyle. Over defense objections, four medical experts individually testified as to the severity of the victim\u2019s injuries in comparison to other injuries occurring to other children which the experts had treated in their respective medical practices. Dr. Jon Silver, a neurosurgeon, testified that Lyle\u2019s injuries were worse than the injuries sustained by a child he had previously treated who had been run over by a tractor. Dr. Robert Wiggins, a pediatric ophthalmologist, indicated that he had seen only one other patient with retinal hemorrhages as severe as Lyle\u2019s. Dr. David Merten, a pediatric radiologist, testified that, \u201cIn the twenty-two years that I have been doing pediatric radiology and in the nine years that I practiced pediatrics before becoming a pediatric radiologist, I have never seen as extensive bone injuries as this baby had.\u201d Dr. Cynthia Brown, the pediatrician initially responsible for Lyle\u2019s care upon his hospital admission on 16 March 1993, testified that Lyle was \u201cprobably the most severely battered child I\u2019ve ever seen.\u201d\nDefendant contends that the admission of such comparative expert testimony was irrelevant and prejudicial. Defendant asserts that allowing the introduction of such expert testimony potentially opens a Pandora\u2019s box, ultimately leading to battles among experts over the limits of their subjective experiences supporting or denying a description of a particular event as \u201cespecially heinous, atrocious, or cruel.\u201d Defendant suggests the trial court should have limited the evidence and testimony to the issue of whether the injuries to Lyle were caused by a brutality greater than that normally found in other first-degree murder cases, not whether the injuries were worse than other injuries encountered in particular medical experts\u2019 prior experiences. We conclude the admission of such comparative expert testimony was not error, as defendant has misstated the purpose and relevance of the testimony.\nAdmissibility of evidence at a capital sentencing proceeding is not subject to a strict application of the rules of evidence, but depends on the reliability and relevance of the proffered evidence. State v. Rose, 339 N.C. 172, 451 S.E.2d 211 (1994), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995). However, even strict application of the evidentiary rules supports the admission of the testimony offered by Drs. Silver, Wiggins, Merten and Brown. The expert medical testimony in question fully comports with the standards set forth in Rule 702, which provides, \u201cIf scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education[] may testify thereto in the form of an opinion.\u201d N.C.G.S. \u00a7 8C-1, Rule 702(1) (1992). Drs. Silver, Wiggins, Merten and Brown all qualified as expert witnesses based upon the standard set forth in Rule 702. The State submitted only one aggravating circumstance supporting a sentence of death, that the crime was \u201cespecially heinous, atrocious, or cruel.\u201d The State bore the ultimate burden of establishing the presence of the (e)(9) aggravating circumstance by showing that the brutality of Lyle\u2019s death exceeded that normally present in a homicide. See State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979). The trial court appropriately allowed the State to present testimony and evidence attempting to quantify and qualify the extent of injuries sustained and thus the amount or degree of suffering endured by Lyle. Comparisons of the extent of Lyle\u2019s injuries in relation to other injuries previously treated by the respective physicians clearly was evidence of a matter \u201crelevant to sentence,\u201d which the trial court correctly deemed to have \u201cprobative value\u201d in assisting the jury in evaluating the sole aggravating circumstance. N.C.G.S. \u00a7 15A-2000(a)(3). The trial court did not permit the State to usurp the jury\u2019s function by eliciting expert testimony that Lyle\u2019s death met the standard set forth in N.C.G.S. \u00a7 15A-2000(e)(9) as \u201cespecially heinous, atrocious, or cruel.\u201d Rather, the trial court simply allowed comparative expert testimony, within the frame of the experts\u2019 experiences, which provided a measure or benchmark for the jury\u2019s consideration. We hold that the trial court did not commit error by permitting this testimony.\nIn his third assignment of error, defendant asserts the trial court erred by excluding potential mitigating testimony by Department of Social Services worker Audrey Bryant. The testimony concerned an interview the social worker conducted with defendant while he was in police custody. Defendant contends the social worker should have been allowed to testify that defendant was distraught, was suffering from emotional distress and was suicidal. Defendant suggests that this excluded testimony was essential to contradict evidence presented by the State depicting defendant as remorseless.\nThe trial court limited the testimony as follows:\nQ. Was there any indication of a suicide attempt [by defendant] or threat concerning that time?\nA. I was told that there was.\n[Prosecutor]: Objection; move to strike.\n[The] Court: Sustained; disregard, members of the jury.\nQ. When you interviewed Mr. Atkins, was the door open or shut?\nA. It was open.\nQ. And why was that?\n[Prosecutor]: Objection, calls for hearsay.\n[The] Court: Sustained.\nQ. Was there anyone else present within a few feet or so of you during your interview?\nA. There was a deputy outside the door.\nQ. And why was that?\n[Prosecutor]: Objection; calls for hearsay.\n[The] Court: Sustained.\nDefendant did not make an offer of proof developing the witness\u2019s responses to the questioning. Accordingly, defendant has failed to preserve this issue for appellate review according to the standard set forth in N.C.G.S. \u00a7 8C-1, Rule 103(a)(2). We do not agree that the substance of the excluded testimony was necessarily \u201capparent from the context within which questions were asked\u201d and that therefore no offer of proof was necessary to preserve this issue for appeal. Although the initial thrust of the questioning related to suicide, the substance of Ms. Bryant\u2019s full testimony in response is not readily apparent. Ms. Bryant may very well have responded to the inquiries by stating that she did not know why the cell door was open or why an officer was stationed outside the cell. It is speculative for this Court to attempt to presume her testimony.\nAssuming arguendo that this issue had been properly preserved and that the testimony may have indicated a suicide threat and arguably remorse by defendant, the exclusion of this testimony did not amount to prejudicial error. Our review of the record and transcript indicates that the trial court did not restrict defendant\u2019s counsel from inquiring as to Ms. Bryant\u2019s personal observations concerning defendant\u2019s demeanor and emotional state at the time of her interview. Moreover, to the extent the desired result from this testimony was evidence of defendant\u2019s history or an incident of attempting suicide, such evidence was introduced through the testimony of Dr. Joseph Horacek. Defendant also was free to seek testimony from correctional officers to verify a potential or actual suicide threat, rather than trying to introduce this impression by Ms. Bryant\u2019s hearsay testimony. Defendant chose not to pursue these avenues, and we thus hold that the trial court properly exercised its discretion in excluding the testimony, which had no mitigating value.\nIn his fourth assignment of error, defendant contends the trial court erred by denying him the right to confront a witness testifying against him. Specifically, defendant contends the trial court improperly limited his ability to impeach the testimony of the State\u2019s primary witness at the sentencing proceeding, Lyle\u2019s mother, Colleen Shank. The trial court refused to permit defendant\u2019s counsel to inquire of Ms. Shank as to whether she could receive the death penalty for her involvement in Lyle\u2019s death.\nDefendant asserts that this Court\u2019s holding in State v. Prevat6te, 346 N.C. 162, 484 S.E.2d 377 (1997), should mandate an order directing a new capital sentencing proceeding. In Prevatte, this Court ordered a new sentencing hearing following a review of a trial court decision denying the defendant the opportunity to ask a prosecution witness about promises or expectations of preferential treatment in the resolution of pending charges against the witness. We conclude that, in the matter sub judice, the trial court properly restricted the questioning of Colleen Shank and did not thereby deny defendant the opportunity to confront a witness against him.\nThe trial court allowed exactly the type of questioning mandated by Prevatte. A review of the record reveals the following testimony:\nQ. What are you charged with in this case?\nA. Aiding and abetting first-degree murder.\nQ. So you can\u2019t get the death penalty, can you?\n[Prosecutor]: Objection.\nA. I don\u2019t know.\nThe Court: Sustained. It\u2019s a question of law.\nQ. What kind of promises, Ms. Shank, has the State made you in exchange for your testimony?\nA. None.\nDefendant was clearly allowed to inquire into any potential bias of Ms. Shank based upon any arrangement between the witness and the prosecution. The trial court properly sustained an objection to a question that required Ms. Shank to reach a legal conclusion. The trial court specifically allowed inquiry into any potential arrangement, and Ms. Shank responded that no such arrangement existed. It is entirely proper for a trial court, in the exercise of its discretion, to sustain an objection calling for the legal knowledge of a lay witness. State v. Mason, 295 N.C. 584, 248 S.E.2d 241 (1978), cert. denied, 440 U.S. 984, 60 L. Ed. 2d 246 (1979); accord State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). We hold that the trial court committed no error by refusing to allow the questions posed to Ms. Shank concerning her potential punishment.\nIn his fifth assignment of error, defendant contends the trial court committed plain error by failing to instruct the jury not to consider parole in its deliberations, thus violating this Court\u2019s holding in State v. Conner, 241 N.C. 468, 85 S.E.2d 584 (1955). During voir dire, a prospective alternate juror expressed concern about his ability to make a sentencing decision based only upon the facts and the law unless he could be assured that a life sentence included a stipulation that there could be no parole. Based upon this expression, the trial court properly excused the prospective juror for cause. Defendant contends this discussion, which took place in the presence of the other jurors, triggered a duty for the trial court to issue a \u201clife means life\u201d instruction.\nDefendant did not request that the trial court give a \u201clife means life\u201d instruction following the prospective juror\u2019s comments. Defendant\u2019s failure to raise this issue constitutes waiver under Rule 10(b)(2). This Court has applied the plain error analysis only to instructions to the jury and evidentiary matters. We decline to extend application of the plain error doctrine to situations in which the trial court has failed to give an instruction during jury voir dire which has not been requested. Accordingly, we conclude that this assignment of error is without merit.\nIn his sixth assignment of error, defendant contends the trial court erred by permitting the prosecutor to comment on defendant\u2019s post-arrest silence, in violation of his constitutional right to remain silent. The State presented testimony from a Buncombe County police officer who indicated that defendant did not express remorse when informed that Lyle had died. According to the testimony, defendant responded to the news of Lyle\u2019s death by stating, \u201cYou don\u2019t know how they\u2019re treating me in here. You don\u2019t know how bad it is in the jail.\u201d The prosecutor commented on defendant\u2019s callous response to Lyle\u2019s death during his closing argument, noting, \u201cHe didn\u2019t say \u2018I\u2019m sorry.\u2019 He didn\u2019t say, \u2018Bless that baby\u2019s heart.\u2019 He said, \u2018You don\u2019t know how tough it is where I\u2019m staying.\u2019 That was his statement. Now, if he felt remorse, you don\u2019t think there\u2019s [sic] been some mention of that?\u201d\nThis Court has consistently recognized that, as a general rule, \u201c[p]rosecutors are granted wide latitude in the scope of their argument.\u201d State v. Zuniga, 320 N.C. 233, 253, 357 S.E.2d 898, 911, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987). Counsel may properly argue \u201cthe facts in evidence and all reasonable inferences to be drawn therefrom.\u201d State v. Huffstetler, 312 N.C. 92, 112, 322 S.E.2d 110, 123 (1984), cert. denied, 471 U.S. 1009, 85 L. Ed. 2d 169 (1985). A prosecutor may not, however, refer to a defendant\u2019s election to exercise his constitutional right not to testify. Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91 (1976); State v. Reid, 334 N.C. 551, 434 S.E.2d 193 (1993).\nWe do not find that the comments and testimony challenged by defendant impermissibly address defendant\u2019s choice to exercise his right to remain silent or not to testify. The comments were clearly directed toward providing an accurate portrayal of defendant\u2019s emotionless response to Lyle\u2019s death. This evidence was relevant and necessary to adequately support the State\u2019s contention that the jury should assign no mitigating value to the submitted circumstance that \u201c[t]he defendant is remorseful.\u201d The testimony in question and the prosecutor\u2019s closing comments did not focus on defendant\u2019s decision to remain silent. The comments simply drew attention to the relevant evidence of defendant\u2019s conduct and voluntary statements following his receipt of the news of Lyle\u2019s death. Accordingly, we hold that the trial court properly permitted this argument, and this assignment of error is overruled.\nIn his seventh assignment of error, defendant asserts the trial court erred by allowing cross-examination of defendant\u2019s expert witness concerning fees charged by the expert, as well as the expert\u2019s role in two other death-penalty appeals. Defendant further contends the trial court permitted the prosecutor to distort the expert\u2019s testimony by characterizing the witness as a \u201chired gun\u201d attempting to overturn death-penalty sentences on appeal. Defendant also suggests that the mention of Dr. Horacek\u2019s potential role in an appeal in the prosecutor\u2019s closing argument mandates the award of a new sentencing proceeding under State v. Jones, 296 N.C. 495, 251 S.E.2d 425 (1979).\nWith respect first to the expert witness, the State appropriately attempted to illustrate a potential source of witness bias, as revealed by the expert witness\u2019s own curriculum vitae. The subject of compensation of a defendant\u2019s expert witness is clearly an appropriate matter for cross-examination. North Carolina\u2019s Rules of Evidence permit cross-examination of a witness \u201con any matter relevant to any issue in the case, including credibility.\u201d N.C.G.S. \u00a7 8C-1, Rule 611(b) (1992). This Court has additionally stated that the scope of cross-examination is subject to the control of the trial court, and \u201cquestions must be asked in good faith.\u201d State v. Williams, 279 N.C. 663, 675, 185 S.E.2d 174, 181 (1971). Our review of the trial transcript reveals significant discrepancies between the diagnosis made by defendant\u2019s psychiatric expert and the diagnosis reached by the State\u2019s expert. In view of this, it was entirely proper to elicit testimony indicative of potential witness bias. This Court specifically approved of such inquiry in State v. Wilson, 335 N.C. 220, 436 S.E.2d 831 (1993).\nWith respect to mention of the expert\u2019s compensation during the prosecutor\u2019s closing argument, we further conclude that the argument did not violate the scope of permissible prosecutorial conduct. As we held in State v. Allen, 322 N.C. 176, 367 S.E.2d 626 (1988):\n\u201c[C]ounsel must be allowed wide latitude in the argument of hotly contested cases. He may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law, so as to present his side of the case. State v. Monk, 286 N.C. 509, 212 S.E.2d 125 [1975]; State v. Noell, 284 N.C. 670, 202 S.E.2d 750 [(1974), death sentence vacated, 428 U.S. 902, 49 L. Ed. 2d 1205 (1976)]. Whether counsel abuses [t]his privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury.\u201d Allen, 322 N.C. at 195, 367 S.E.2d at 636 (quoting State v. Covington, 290 N.C. 313, 327-28, 226 S.E.2d 629, 640 (1976)).\nWhen viewed in context of the conflicting evidence concerning defendant\u2019s psychological condition at the time he committed his assaults upon Lyle, we determine that it was not a \u201cgross impropriety\u201d to argue the witness\u2019s potential bias related to his compensation and his similar participation in other death-penalty proceedings.\nWith regard to the mention of appellate review, defendant misstates the extent of our holding in Jones. We did not conclude that every mention of appellate review mandates a new sentencing proceeding. Rather, we adopted a \u201crule precluding any argument which suggests to the jurors that they can depend on judicial or executive review to correct an erroneous verdict and thereby lessen the jurors\u2019 responsibility.\u201d Jones, 296 N.C. at 502, 251 S.E.2d at 429. In the case sub judice, the prosecutor\u2019s argument was intended solely to suggest that Dr. Horacek\u2019s involvement in numerous criminal cases indicated bias in favor of defendant. The argument in no way suggested that jurors could or should abdicate their responsibility and rely on appellate review to determine an appropriate sentencing recommendation, as prohibited by this Court in Jones. Accordingly, we hold that defendant\u2019s seventh assignment of error is without merit.\nIn his eighth assignment of error, defendant argues that the trial court erred by failing to intervene ex mero motu to restrict the prosecutor\u2019s closing argument in several respects. Defendant suggests the prosecutor\u2019s closing arguments, when viewed as a whole, violated N.C.G.S. \u00a7 15A-1230, as well as defendant\u2019s rights to due process, fundamental fairness and a nonarbitrary capital sentencing proceeding. It is important to note at the outset that defendant\u2019s counsel did not object to any portion of the closing argument at the sentencing proceeding. When a party fails to object to a closing argument, the appellate court must decide whether the argument was so improper as to require the trial court\u2019s intervention ex mero motu. State v. Craig, 308 N.C. 446, 457, 302 S.E.2d 740, 747, cert. denied, 464 U.S. 908, 78 L. Ed. 2d 247 (1983). This Court has further stated that the trial court is not required to intervene ex mero motu unless the argument strays so far from the bounds of propriety as to impede defendant\u2019s right to a fair trial. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991). A review of the record reveals the prosecutor\u2019s comments during closing arguments were appropriate when viewed in light of the brutality of the crime and the fact that the State was seeking the imposition of the death penalty.\nFirst, defendant suggests the trial court allowed the prosecutor to misstate North Carolina case law to his prejudice. Specifically, defendant argues the prosecutor\u2019s closing argument misled the jury into concluding that our holding in State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987), required a finding of the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance in all cases in which the victim did not die instantly. Our review of the record reveals that, when viewed in context, the prosecutor\u2019s closing arguments created no such impression. The prosecutor appropriately pointed out the four-week ordeal of pain and suffering endured by Lyle prior to his death. Lyle\u2019s torment was adequately supported by competent evidence and testimony. The prosecutor\u2019s reference to Stokes illustrated that a lingering death may be a factor supporting a finding of the (e)(9) statutory aggravating circumstance, that the crime was indeed \u201cespecially heinous, atrocious, or cruel.\u201d\nContinuing his eighth assignment of error, defendant also contends the trial court erred by permitting the prosecutor to characterize mitigating circumstances as, in effect, aggravating circumstances. In this regard, defendant suggests the prosecutor equated an alleged mental illness with a depraved mind, attempting to discredit the credibility of the entire psychiatric profession. We do not read the prosecutor\u2019s comments in that manner. Rather, we discern that the prosecutor suggested to the jury only that the diagnosis of defendant\u2019s expert psychiatrist should not be believed. The prosecutor, in his argument, contended only that this particular defendant was not mentally ill; the prosecutor did not contend that all psychiatrists routinely characterize depravity as a type of mental illness.\nDefendant further contends the trial court erred by allowing the prosecutor to argue law and facts not supported by the evidence. As previously discussed, this Court has held that trial counsel are allowed wide latitude in their arguments to the jury and may argue any fact in evidence and all reasonable inferences drawn from them. Craig, 308 N.C. at 454, 302 S.E.2d at 745. Our careful review of the record as to each specifically challenged assertion does not lead us to conclude that the trial court permitted the argument of any fact which was not either supported by testimony or reasonable inference from testimony or based upon established knowledge. In reviewing the prosecutor\u2019s closing argument, we must consider the context in which the remarks were made and the overall factual circumstances to which they refer. State v. Daniels, 337 N.C. 243, 446 S.E.2d 298 (1994), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995). The prosecutor has a duty to strenuously present the State\u2019s case and to \u201c \u2018use every legitimate means to bring about a just conviction.\u2019 \u201d State v. Myers, 299 N.C. 671, 680, 263 S.E.2d 768, 774 (1980) (quoting State v. Monk, 286 N.C. at 515, 212 S.E.2d at 130). We also dismiss defendant\u2019s suggestion that the prosecutor attempted to introduce an additional nonstatutory mitigating circumstance, the age of the victim. These assertions by defendant are without merit.\nContinuing his eighth assignment of error, defendant further argues the trial court erred by allowing the State in closing argument to distort the meaning and application of mitigating circumstances. Specifically, defendant argues the trial court failed to respond to the prosecutor\u2019s misstatement of the law concerning mitigating circumstances by not giving instructions designed to clarify and correct the misstatement. Defendant challenges the prosecutor\u2019s following statement to the jury: \u201cThey\u2019ve told you the aggravating has to do with the death. Well, so do mitigating. It has to have something to do with what happened to that child.\u201d\nDefendant is correct in that this comment in the prosecutor\u2019s argument was not a proper description of North Carolina law. A mitigating circumstance does not have to relate to what happened to the victim but rather may relate to \u201cany aspect of defendant\u2019s character, record or circumstance of the particular offense.\u201d State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981) (citing Lockett v. Ohio, 438 U.S. 586, 57 L. Ed. 2d 973 (1978)). However, as to this comment, we conclude that the trial court did not err by failing to intervene ex mero mo tu, in the absence of defense counsel\u2019s objection. Moreover, the record reveals the trial court adequately corrected any possible harm from the prosecutor\u2019s statement by properly instructing the jury during its charge on what constitutes mitigating circumstances and the weight to be given to them.\nDefendant makes several other contentions of improper statements by the prosecutor during closing argument. However, our careful review finds each statement to be well within the wide discretion accorded by this Court during closing argument, within the context of hotly contested cases, and thus we conclude each contention is without merit. This assignment of error is overruled.\nIn his ninth assignment of error, defendant asserts the trial court erred by failing to submit the statutory mitigating circumstance of defendant\u2019s age at the time of the crime. See N.C.G.S. \u00a7 15A-2000(f)(7). Notwithstanding the fact that defendant was twenty-nine years old at the time of the offense, he argues that there was substantial evidence to support the mitigating circumstance and that the trial court was required to submit the issue to the jury. We conclude that the evidence did not support the circumstance and that the trial court did not err by failing to submit the (f)(7) mitigating circumstance.\nIn support of the (f)(7) mitigating circumstance, defendant elicited the testimony of Dr. Horacek, who stated that defendant suffered from a dissociative identity disorder, as well as an attention deficit disorder. Dr. Horacek further noted that defendant exhibited a \u201clearning disability profile\u201d and reportedly spent long periods of time playing Nintendo. Lyle\u2019s mother, Colleen Shank, confirmed defendant\u2019s interest in Nintendo.\nWhen evaluating the (f)(7) mitigating circumstance, this Court has characterized \u201cage\u201d as a \u201cflexible and relative concept.\u201d State v. Johnson, 317 N.C. 343, 393, 346 S.E.2d 596, 624 (1986). We have also noted that \u201cthe chronological age of a defendant is not the determinative factor under G.S. \u00a7 15A-2000(f)(7).\u201d State v. Oliver, 309 N.C. 326, 372, 307 S.E.2d 304, 332 (1983). However, while defendant has presented evidence that he suffered from conditions or disorders commonly found in adolescents and participated in an activity or activities often enjoyed by some youngsters, our review of the record reveals no evidence that defendant exhibited decisional skills and understanding equivalent to an adolescent. To the contrary, uncontroverted evidence showed defendant had an IQ of 107, was functioning in the average to high-average range of intelligence, and had a relatively good understanding of social nuances. Additional evidence indicated that defendant graduated from high school and joined the Air Force, where a recruiter described him as a \u201cpositive force.\u201d More recently, defendant worked at a cleaners, operating complicated machinery, ultimately leaving that job to assume a better-paying position. Therefore, we hold the trial court had no duty to submit the age statutory mitigating circumstance based on the evidence presented at the sentencing proceeding.\nIn his tenth assignment of error, defendant contends the trial court erred by failing to submit the (f)(1) mitigating circumstance, that \u201cdefendant has no significant history of prior criminal activity.\u201d N.C.G.S. \u00a7 15A-2000(f)(1). Prior to submitting this circumstance, a trial court must \u201cdetermine whether a rational jury could conclude that defendant had no significant history of prior criminal activity.\u201d State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988). If the trial court decides that a rational jury could so conclude from the evidence, the jury is entitled to determine whether the evidence reveals a significant history. Id. A significant history of prior criminal activity for purposes of N.C.G.S. \u00a7 15A-2000(f)(l) is one likely to influence the jury\u2019s sentence recommendation. State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994). Because defendant\u2019s history of prior criminal activity was so excessive, we conclude the trial court did not err in deciding that no rational juror could determine that the circumstance existed. Therefore, we hold that the trial court did not err in failing to submit the (f)(1) mitigating circumstance.\nSubstantial evidence of defendant\u2019s prior criminal activity included references to defendant\u2019s extensive and recent pattern of criminal behavior. Defendant was involved in an illegal sexual relationship with Lyle\u2019s mother and another male. Evidence indicated that defendant abused drugs from an early age. Further, defendant was involved in three alcohol-related fights, which resulted in his being discharged from the Air Force after only three months. Defendant assaulted Lyle\u2019s mother during her pregnancy and threatened further violence if she informed police of his assaults on Lyle. Finally, defendant repeatedly abused his infant son Lyle over the course of Lyle\u2019s brief life, ultimately killing him as a result. Given the extent of this criminal activity, the trial court properly could have determined that no reasonable juror could conclude that defendant\u2019s history of prior criminal activity was insignificant.\nThis case is substantially similar to State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739 (1996), where we upheld the trial court\u2019s nonsubmission of the (f)(1) mitigating circumstance. The defendant in Daughtry was sentenced to death for beating his girlfriend to death with a large stick or log. The evidence of defendant Daughtry\u2019s prior criminal history included numerous beatings of the victim, shooting an acquaintance in the leg, being convicted of driving under the influence, and pleading guilty to a prior assault in which defendant hit a man in the head with a large stick causing serious injuries. There, we stated that \u201c[g]iven the extent of this history, particularly defendant\u2019s prior use of a large stick as a dangerous weapon and his multiple beatings of the victim, the trial court properly could have determined that no reasonable juror could have concluded that defendant\u2019s criminal history was insignificant.\u201d Id. at 522, 459 S.E.2d at 765 (emphasis added). In the case sub judice, defendant\u2019s prior history of criminal activity, like that in Daughtry, is mainly related to assaultive behaviors which were primarily directed toward the ultimate victim of his violence and the ultimate cause of his being convicted of murder. Defendant here had a significant history of violent attacks, including fights in the military and repeated assaults on Colleen Shank even while she was pregnant. He also repeatedly and viciously beat his own son, a completely defenseless infant and the victim of murder in this case. Combined with the evidence of his other prior criminal activities, these assaultive criminal activities make defendant\u2019s case for submission of the (f)(1) mitigating circumstance at least as weak, if not weaker, than the argument which we rejected in Daughtry. Therefore, we hold the trial court did not err by declining to submit the (f)(1) circumstance, and defendant\u2019s assignment of error is overruled.\nDefendant\u2019s eleventh assignment of error asserts the trial court committed plain error by failing to properly instruct the jury concerning eighteen nonstatutory mitigating circumstances uncontroverted by the evidence. Assuming this Court finds the instructions to be without error, defendant contends that comments made by the trial court following the instructions served to invalidate them and caused the jury to improperly consider the mitigating circumstances at issue. We find these contentions to be without merit.\nAt the sentencing charge conference, defendant\u2019s counsel requested a peremptory instruction on the nonstatutory mitigating circumstances established by the evidence. The trial court agreed to issue the following instruction: \u201cThe Court instructs the jury that this factor has been established by the evidence. It is for you, the jury, however, to determine whether or not it has mitigating value.\u201d The trial court gave substantially this same instruction on all the non-statutory mitigating circumstances requested by defendant. Defendant did not object to the jury instructions at the close of the charge.\nDefendant\u2019s failure to object to the instructions requires us to consider this challenge under a plain-error analysis. State v. Neal, 346 N.C. 608, 487 S.E.2d 734 (1997), cert. denied, \u2014 U.S. \u2014, 140 L. Ed. 2d 131 (1998). Defendant, in his brief to this Court, relies on our holding in State v. Lynch, 340 N.C. 435, 459 S.E.2d 679 (1995), cert. denied, 517 U.S. 1143, 134 L. Ed. 2d 558 (1996), for support of his argument that the instructions in the matter sub judice were insufficient. In Lynch, this Court suggested the use of the following peremptory instructions for nonstatutory mitigating circumstances:\nAll the evidence tends to show [named mitigating circumstance]. Accordingly, as to this mitigating circumstance, I charge that if you find the facts to be as all the evidence tends to show, you will answer, \u201cYes,\u201d as to the mitigating circumstance Number [#] on the issue and recommendation form if one or more of you deems it to have mitigating value.\nId. at 476, 459 S.E.2d at 700.\nDefendant\u2019s case was tried two years prior to our decision in Lynch. However, even application of the Lynch standard does not lead us to the conclusion that the instructions here were inadequate. A trial court is not required to give a requested instruction verbatim. State v. Corn, 307 N.C. 79, 296 S.E.2d 261 (1982). The trial court\u2019s instructions conveyed the proper message to the jury \u2014 that the non-statutory mitigating circumstances in question were established as existing circumstances by the evidence but that the jurors could \u201c \u2018reject the nonstatutory mitigating circumstance if they [did] not deem it to have mitigating value.\u2019 \u201d State v. Green, 336 N.C. 142, 174, 443 S.E.2d 14, 32-33 (quoting State v. Gay, 334 N.C. 467, 492, 434 S.E.2d 840, 854 (1993)), cert. denied, 513 U.S. 1046, 130 L. Ed. 2d 547 (1994). We conclude the peremptory instructions challenged by defendant accurately conveyed the applicable law to the jurors.\nFurthermore, we determine that defendant\u2019s argument that the trial court\u2019s concluding instruction negated any potential value of the peremptory instructions lacks merit. Defendant objects to the following instruction:\nThe law requires the presiding judge to be impartial. You\u2019re not to draw any inference from any ruling I may have made or inflection in my voice or expression on my face or anything else I may have said or done during the trial that would lead you to believe that I have an opinion or have intimated one as to whether any part of the evidence should be believed or not, as to whether any aggravating or mitigating circumstance has been proved or not, or as to what your recommendation ought to be. It is your exclusive province and duty to find the true facts of this case and make a recommendation reflecting the truth as you find it.\nWhen viewed in proper context, the trial court\u2019s concluding instruction, which is verbatim from North Carolina\u2019s pattern jury instructions, did not negate the earlier peremptory instructions. The trial court was simply advising the jury, in the customary language, that the law requires the presiding judge to be completely impartial. Accordingly, we hold that the trial court did not err by stressing the impartiality of the court in its closing charge to the jury.\nIn his twelfth assignment of error, defendant contends the trial court erred by permitting the placement of leg irons on defendant during the sentencing proceeding. Defendant argues that the trial court violated the statutory provisions of N.C.G.S. \u00a7 15A-1031, as well as defendant\u2019s right to due process. We hold that the trial court did not commit error in this regard.\nN.C.G.S. \u00a7 15A-1031 provides the following:\nA trial judge may order a defendant or witness subjected to physical restraint in the courtroom when the judge finds the restraint to be reasonably necessary to maintain order, prevent the defendant\u2019s escape, or provide for the safety of persons. If the judge orders a defendant or witness restrained he must:\n(1) Enter in the record out of the presence of the jury and in the presence of the person to be restrained and his counsel, if any, the reasons for his action; and\n(2) Give the restrained person an opportunity to object; and\n(3) Unless the defendant or his attorney objects, instruct the jurors that the restraint is not to be considered in weighing evidence or determining the issue of guilt.\nIf the restrained person controverts the stated reasons for restraint, the judge must conduct a hearing and make findings of fact.\nN.C.G.S. \u00a7 15A-1031 (1997).\nOur review of the record reveals the trial court followed the procedure mandated by N.C.G.S. \u00a7 15A-1031. The trial court conducted a hearing pursuant to the statute, following a report of defendant\u2019s possible escape attempt from his jail cell. Additional evidence indicated, and the trial court noted, that defendant had a propensity towards violence, as illustrated by his guilty plea to the brutal beating of his infant son and expert testimony at defendant\u2019s prior competency hearing reflecting a violent disposition. .\nThe ultimate decision concerning the restraint of a defendant rests within the trial court\u2019s discretion. State v. Tolley, 290 N.C. 349, 226 S.E.2d 353 (1976). The trial court is in the best position to balance the conflicting interests between defendant\u2019s right to a proceeding free of prejudice and the State\u2019s need to maintain control over and prevent disruption of the court proceedings. The trial court\u2019s discretion is not unbridled and must be exercised in a manner that is \u201cnot exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by reason and conscience of the judge to a just result.\u201d Langnes v. Green, 282 U.S. 531, 541, 75 L. Ed. 520, 526 (1931). The circumstances appropriate for the trial court\u2019s consideration include, inter alia: defendant\u2019s temperament and character, his age and physical attributes, his past record, his past escapes or attempted escapes, evidence of a present plan to escape, and threats to harm others or to cause a disturbance. See State v. Tolley, 290 N.C. at 368, 226 S.E.2d at 368.\nThe trial court in the instant case found evidence of numerous factors supporting the physical restraint of defendant. A hearing was conducted to allow argument by all parties concerning the need for restraint. All discussions concerning the need for physical restraint took place outside of the presence of the jury. The trial court ensured that a cloth was draped over defendant\u2019s counsel table to completely conceal the leg restraints from view by the jurors, thus limiting any potential prejudice to defendant. Defendant always entered the courtroom before the jurors and left the courtroom after the jurors so they would not view his leg irons. It is abundantly clear from the record that the trial court did not abuse its discretion in ordering defendant to wear restraints during the proceeding. Rather, it is apparent that the trial court took every conceivable precaution to evaluate the need for restraints and to minimize any potential prejudice to defendant. Accordingly, defendant\u2019s twelfth assignment of error is overruled.\nIn his thirteenth assignment of error, defendant argues the trial court erred by requiring a defense expert to issue a written report and to produce materials beyond those required by the applicable statute. Defendant objects to the trial court\u2019s order which mandated the disclosure of the following:\n[A]ll results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with this case, or copies thereof, within the possession or control of the defendant which the defendant intends to introduce in evidence at the trial or which were prepared by a witness or the agent or employee of a witness whom the defendant intends to call at the trial.\nFurthermore, at the competency hearing, the trial court ordered defendant\u2019s expert witness, Dr. Horacek, to supply \u201call of his notes,\u201d including those from conversations and interviews with defendant. Defendant argues the trial court erred by requiring such extensive discovery, which was later used to cross-examine defendant\u2019s witness. Defendant suggests the discovery order violated not only N.C.G.S. \u00a7 15A-905(b), but also violated defendant\u2019s attorney\u2019s work-product privilege, his right against self-incrimination and his right to counsel. We hold that the discovery order did not result in reversible error.\nN.C.G.S. \u00a7 15A-905 provides the procedures for court-ordered pretrial discovery in criminal cases. The statute addresses mental examinations and tests, in relevant part, as follows:\nIf the court grants any relief sought by the defendant under G.S. 15A-903(e), the court must, upon motion of the State, order the defendant to permit the State to inspect and copy or photograph results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case, or copies thereof, within the possession and control of the defendant which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, when the results or reports relate to his testimony.\nN.C.G.S. \u00a7 15A-905(b) (1997).\nThe issue before this Court regarding defendant\u2019s challenge to the discovery order is not whether defendant intended to introduce specific tests at trial, but whether the expert relied on or gleaned any information from the tests and answers which related to the expert\u2019s testimony. See State v. McCarver, 341 N.C. 364, 462 S.E.2d 25 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). Our review of the record clearly reveals that Dr. Horacek relied on the challenged discovery material at the competency hearing, as well as at the sen-terming proceeding. Accordingly, we conclude the trial court did not err by issuing the discovery order, and we overrule this assignment of error.\nDefendant, in his fourteenth assignment of error, contends the trial court erred by allowing State witnesses to testify to specific prior acts of misconduct by defendant based on hearsay, without adequate notice and unrelated to any aggravating circumstance. Specifically, defendant objects to (1) the testimony of Lyle\u2019s mother, in which she related earlier abuse of Lyle and herself by defendant; and (2) the testimony of Wanda Frady, in which she indicated potential child abuse dating back to the time when Lyle was only three weeks old. We conclude that this assignment of error is without merit.\nAs an initial matter, we note that defendant did not object to the testimony during the sentencing proceeding. Accordingly, this has not been preserved for review. N.C.G.S. \u00a7 15A-1446 (1997); N.C. R. App. P. 10(b). However, assuming arguendo that defendant had preserved this claim for appellate review, this assignment of error nevertheless fails. Formal rules of evidence do not apply at a capital sentencing proceeding. N.C.G.S. \u00a7 8C-1, Rule 1101(b)(3) (1992). The trial court has latitude and discretion to allow any evidence it deems relevant to sentencing. State v. Heatwole, 344 N.C. 1, 473 S.E.2d 310 (1996), cert. denied, - U.S. -, 137 L. Ed. 2d 339 (1997). The evidence in question was clearly related to defendant\u2019s sentencing. Defendant\u2019s treatment of Lyle and Lyle\u2019s mother tended to explain why Lyle\u2019s mother did not seek earlier medical treatment during the four-week period leading up to Lyle\u2019s death. The testimony also revealed important information concerning the parental relationship between defendant and Lyle, supporting the jury\u2019s recognition of the sole submitted aggravating circumstance, that the crime was \u201cespecially heinous, atrocious, or cruel.\u201d\nIn his fifteenth assignment of error, defendant contends the trial court committed reversible error by permitting the State to present evidence and argument concerning defendant\u2019s activities, which included reading horror books and playing Nintendo. Defendant contends that this issue is controlled by the United States Supreme Court\u2019s decision in Dawson v. Delaware, 503 U.S. 159, 117 L. Ed. 2d 309 (1992), where the Court held that evidence of gang membership had no relevance to the issues being decided in the proceeding and that admission of the evidence violated the First Amendment. The Court noted that \u201cthe evidence proved nothing more than [defendant\u2019s] abstract beliefs.\u201d Id. at 167, 117 L. Ed. 2d at 318. For the following reasons, we reject this assignment of error.\nUnlike the evidence in Dawson, the challenged evidence presented at defendant\u2019s sentencing proceeding was directly relevant to issues before the jury. Defendant offered numerous circumstances which he suggested mitigated his culpability for the murder. Among these mitigating circumstances were suggestions that defendant was under the influence of a mental or emotional disturbance and that defendant was remorseful. The State\u2019s evidence and arguments concerning defendant\u2019s interest in horror books were used to impeach defendant\u2019s contention that he suffered a mental or emotional disorder. The prosecutor argued the alleged mental illness was simply a recitation of stories gleaned from the horror books. The evidence concerning Nintendo use was presented to show defendant\u2019s lack of remorse following his various assaults on Lyle. Dawson did not prohibit all evidence related to activities protected by the First Amendment, but merely required the evidence to be relevant to an issue in the capital sentencing proceeding. Contrary to defendant\u2019s argument, we conclude the evidence was not employed for the purpose of inflaming the jury\u2019s moral sensibilities. We hold the trial court did not err when it permitted the testimony in question.\nIn his sixteenth assignment of error, defendant argues the trial court erred by accepting defendant\u2019s guilty plea to first-degree murder. Defendant contends that the trial court lacked sufficient factual basis for the plea, and that the plea was accepted without a knowing and voluntary waiver of defendant\u2019s rights. As to the first part of this contention, defendant maintains the plea proceeding record is devoid of any evidence to support a plea of premeditated and deliberate murder. Defendant calls our attention to N.C.G.S. \u00a7 15A-1022, which provides in pertinent part:\n(c) The judge may not accept a plea of guilty or no contest without first determining that there is a factual basis for the plea. This determination may be based upon information including but not limited to:\n(1) A statement of the facts by the prosecutor.\n(2) A written statement of the defendant.\n(3) An examination of the presentence report.\n(4) Sworn testimony, which may include reliable hearsay.\n(5) A statement of facts by the defense counsel.\nN.C.G.S. \u00a7 15A-1022(c) (1997).\nThe statute clearly does not require the trial court to find evidence from each, any or all of the enumerated sources. The trial court may consider any information properly brought to its attention, and the trial record must reflect the information and evidence relied upon in reaching the decision that an adequate factual basis does exist. State v. Sinclair, 301 N.C. 193, 270 S.E.2d 418 (1980); State v. Dickens, 299 N.C. 76, 261 S.E.2d 183 (1980). In the present case, the trial court relied on the State\u2019s summary of the evidence, as well as medical evidence detailing Lyle\u2019s injuries. Our review of the record leads us to conclude that the evidence provides a sufficient factual basis to support defendant\u2019s plea of guilty to premeditated murder.\nIn defendant\u2019s presence in open court, the State presented an evidentiary recitation showing the following: Lyle was not breathing when medical personnel first responded to his emergency; Lyle ultimately died of a fractured skull, which the doctors said took \u201ctremendous force\u201d; Ms. Shank witnessed defendant attacking Lyle; and Lyle had endured a series of bruises and broken bones occurring over a several-week period. Moreover, at a competency hearing conducted the day prior to the guilty plea, the same trial court heard Dr. Clabe Lynn testify that defendant made a statement admitting that he was \u201cplaying with [Lyle] and the next thing he knew he was hitting him on the top of the head.\u201d We hold that this recitation was sufficient to provide a factual basis for defendant\u2019s plea.\nFurther, it is well settled that premeditation and deliberation can be inferred from circumstances such as the brutality of the killing, the nature and number of the victim\u2019s injuries, and the dealing of lethal blows after the victim has already been incapacitated. State v. Rasor, 319 N.C. 577, 356 S.E.2d 328 (1987). The medical evidence presented by the State tended to show that multiple, brutal injuries had been inflicted upon Lyle by defendant over a sustained period of time. From this, one can readily infer that defendant totally abdicated his parental role, providing Lyle not with support and nurturing, but rather providing continued, deliberate pain and violence which culminated in the child\u2019s death. This evidence provided a sufficient basis from which premeditation and deliberation could be inferred. We therefore perceive no error in the trial court\u2019s acceptance of defendant\u2019s plea of guilty to murder in the first degree.\nTurning to the second part of defendant\u2019s assignment of error concerning the guilty plea, defendant argues the trial court erred by accepting the plea without a sufficient showing that the plea was knowingly and voluntarily entered. A plea of guilty involves the waiver of several fundamental rights, including freedom from self-incrimination and the right to a trial by jury. See State v. Barts, 321 N.C. 170, 174, 362 S.E.2d 235, 237 (1987). It is therefore imperative that guilty pleas represent a voluntary, informed choice. Sinclair, 301 N.C. at 197-98, 270 S.E.2d at 421.\nOur review of the record of defendant\u2019s plea proceeding reveals the plea was knowingly and voluntarily given, as evidenced by the following exchange between the trial court and defendant:\nQ. Mr. Atkins, I\u2019m going to now ask you a series of questions from this Transcript of Plea. If you would please speak up so the Court Reporter over here can make a notation for the record, it would be appreciated. First of all, are you able to hear and understand me?\nA. Yes, sir.\nQ. Do you understand you have the right to remain silent and any statement you make may be used against you?\nA. Yes, sir.\nQ. Are you under the influence of any alcohol, drugs, narcotics, medicines, pills, or any other intoxicants?\nA. No.\nQ. Have you discussed your case fully with your attorneys, and are you satisfied with their services?\nA. Yes, sir.\nQ. Do you understand that you\u2019re pleading guilty to the felony of first-degree premeditated and deliberated murder?\nA. Yes.\nQ. And that there are two parts to a potential capital case, the guilt or innocence phase and the sentencing phase, do you understand that?\nA. Yes, sir.\nQ. Have the charges been explained to you by your lawyer, do you understand the nature of the charges, and do you understand each and every element of the charge?\nA. Yes, sir.\nQ. Do you understand that upon your plea, depending upon the sentencing phase, that the jury could recommend life or death as the verdict?\nA. Yes, sir.\nQ. Do you understand you have the right to plead not guilty, to have a jury trial, and at the trial to confront and cross examine the witnesses against you, and by this plea you\u2019re giving up all of your other Constitutional Rights, as well as your confrontation rights related to a trial by jury?\nA. Yes, sir.\nQ. Do you plead guilty, and are you in fact guilty?\nA. Yeah.\nQ. Other than the plea arrangement, has anybody made any promises or threatened you at all to cause you to enter this plea against your will?\nA. No.\nQ. Are you entering this plea of your own free will, fully understanding what you are doing?\nA. Yes, sir.\nQ. Do you have any questions about what has been said to you or anything else connected with your case?\nA. No.\nQ. You are thirty years of age and completed the twelfth grade?\nA. Yes, sir.\nFollowing this discussion with defendant, the trial court heard the prosecutor present a summary of the facts and evidence against defendant. Following a brief recess, the trial court held that \u201cthere\u2019s a factual basis for the plea, which is freely, voluntarily and understandingly entered; the defendant is satisfied with his attorney, is competent to stand trial, and the pleas are his informed choice and being freely, voluntarily and understandingly made, it is accepted and is ordered recorded.\u201d We agree with the trial court\u2019s decision that the plea was made knowingly and voluntarily, and accordingly we overrule this assignment of error.\nIn his seventeenth assignment of error, defendant contends the trial court committed reversible error by permitting the prosecutor to introduce evidence and testimony indicating that Lyle suffered from \u201cbattered child syndrome\u201d and that such syndrome was a cause of Lyle\u2019s death. Defendant argues that the introduction of such evidence was error as a matter of law and that the evidence was extremely confusing and its probative value substantially outweighed by prejudice to defendant. We disagree.\nThe evidence concerning \u201cbattered child syndrome\u201d was extemely relevant to the jury in reaching an appropriate sentencing decision. Evidence is relevant if it has \u201cany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 401 (1992). Generally, all relevant evidence is admissible. N.C.G.S. \u00a7 8C-1, Rule 402 (1992). This Court has stated that \u201cin a criminal case every circumstance calculated to throw any light upon the supposed crime is admissible and permissible.\u201d State v. Collins, 335 N.C. 729, 735, 440 S.E.2d 559, 562 (1994).\nRelevant evidence may, however, be excluded \u201cif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\u201d N.C.G.S. \u00a7 8C-1, Rule 403 (1992). \u201cWhether to exclude relevant but prejudicial evidence under Rule 403 is a matter left to the sound discretion of the trial court.\u201d State v. Handy, 331 N.C. 515, 532, 419 S.E.2d 545, 554 (1992). We conclude the trial court did not abuse its discretion by permitting a neurologist and a pediatric radiologist to testify that battered child syndrome was the cause of Lyle\u2019s death.\nThis Court has previously approved the admission of expert testimony with respect to battered child syndrome. State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). Evidence demonstrating battered child syndrome \u201c \u2018simply indicates that a child found with [certain injuries] has not suffered those injuries by accidental means.\u2019 \u201d Id. at 570, 247 S.E.2d at 911 (quoting People v. Jackson, 18 Cal. App. 3d 504, 507, 95 Cal. Rptr. 919, 921 (1971)).\nThis Court approved the use of battered child evidence in a capital proceeding in State v. Elliott, 344 N.C. 242, 475 S.E.2d 202 (1996), cert. denied, - U.S. -, 137 L. Ed. 2d 312 (1997). In the present case, the evidence of battered child syndrome was relevant both to the circumstances of the crime and to the sole submitted aggravating circumstance. Concerning the circumstances of the offense, the evidence was relevant to demonstrate premeditation and deliberation. The State presented evidence that Lyle suffered extensive injuries over a four-week period, leading to his ultimate death. This evidence supported the State\u2019s contention that defendant did not simply \u201csnap\u201d and \u201close control\u201d on 16 March 1993. Rather, the evidence indicated that defendant engaged in a deliberate, prolonged process of severely beating and torturing Lyle.\nThe battered child syndrome evidence was also relevant to support the (e)(9) aggravating circumstance that the crime was \u201cespecially heinous, atrocious, or cruel.\u201d The evidence revealed a horrifying picture of a crippled, helpless, eight-month-old infant who slowly died at the hands of his father, the defendant. This evidence was probative and necessary to demonstrate to the jury the presence of the (e)(9) circumstance, that this crime demonstrated a killing which was \u201c \u2018conscienceless, pitiless, or unnecessarily torturous to the victim.\u2019 \u201d State v. Lynch, 340 N.C. 435, 459 S.E.2d 679 (1995), cert. denied, 517 U.S. 1143, 134 L. Ed. 2d 558 (1996) (quoting State v. Brown, 315 N.C. 40, 65, 337 S.E.2d 808, 826-27 (1985), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 733 (1986)). Given the high probative value of the testimony concerning battered child syndrome, we hold the trial court did not err by permitting the introduction of this evidence.\nFurthermore, while defendant is technically correct in his assertion that battered child syndrome cannot be a cause of death, his argument is of no avail. According to the expert witnesses who testified at trial, battered child syndrome is nothing more than a profile of indicative symptoms, which, when noticed by a medical professional either in isolation or in combination, lead to the conclusion that a child is being battered or has been battered in the past. Such symptoms might include such things as distinctive burns, extensive bruising, head and abdominal injuries, bones broken in patterns which correlate with those of known cases of abuse, and retinal hemorrhaging (indicating violent shaking or beating of the child\u2019s head). Since battered child syndrome is merely a diagnostic profile, it cannot therefore be a technical cause of death.\nThe distinction drawn here, however, is largely semantic and does not justify a new sentencing proceeding in the instant case. When examined closely, it is apparent that neither the witnesses in their testimonies nor the prosecutor in his closing argument were claiming that the \u201csyndrome\u201d itself was the cause of death. What they were asserting was that the cumulative effect of injuries suffered by Lyle as a result of his horrific battering, which also qualified him for the diagnosis of battered child syndrome, was the cause of death. Thus, we find no error in the trial court\u2019s admission of such evidence and argument. This assignment of error is overruled.\nIn his eighteenth assignment of error, defendant contends the trial court denied defendant\u2019s constitutional right to be present at all stages of his capital trial. Defendant argues the trial court conducted three separate off-the-record bench conferences involving only counsel. Defendant contends this Court\u2019s holding in State v. Meyer, 345 N.C. 619, 481 S.E.2d 649 (1997), mandates the award of anew capital sentencing proceeding. Our review of the record and applicable precedent leads us to hold that the off-the-record bench conferences did not violate defendant\u2019s constitutional right to be present at all stages of his trial.\nDefendant correctly states that, in a capital trial, a defendant must be present at every stage of the proceeding. N.C. Const. art. I, \u00a7 23. This constitutional mandate serves to safeguard both defendant\u2019s and society\u2019s interests in reliability in the imposition of capital punishment. State v. Huff, 325 N.C. 1, 30, 381 S.E.2d 635, 651 (1989), sentence vacated on other grounds, 497 U.S. 1021, 111 L. Ed. 2d 777 (1990). This constitutional protection imposes upon the trial court the affirmative duty to ensure defendant\u2019s presence at every stage of a capital trial. Additionally, defendant\u2019s right to be present at every stage of his capital trial is not waivable. State v. Artis, 325 N.C. 278, 297, 384 S.E.2d 470, 480 (1989), sentence vacated on other grounds, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990); State v. Huff, 325 N.C. at 31, 381 S.E.2d at 652.\nHowever, defendant\u2019s reliance on State v. Meyer is misplaced. In Meyer, this Court disapproved of unrecorded, in-chambers discussions between the trial court and attorneys, noting that \u201cthe nature and content of the discussion cannot otherwise be gleaned from the record.\u201d Meyer, 345 N.C. at 623, 481 S.E.2d at 652. The Court further determined that \u201cthe State has failed to meet its burden of showing the error was harmless beyond a reasonable doubt. Accordingly, we are required to order a new sentencing proceeding.\u201d Id.\nIn contrast, our review of the record in the case sub judice indicates the three off-the-record conferences were conducted not in chambers, but in the courtroom with defendant present and able to physically observe the context of the discussion and free to inquire of his attorneys as to the nature of the discussions. Additionally, the off-the-record bench conferences were all reconstructed for the record following each conference. The record reveals the three conferences concerned the following: a request by defense counsel to lodge a Batson challenge, a discussion of a scheduling problem with a State witness, and scheduling for the final week of defendant\u2019s sentencing proceeding. Assuming arguendo the trial court did err by conducting the conferences off the record, the reconstruction permits the State to clearly show beyond a reasonable doubt that any error was harmless. See State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, 513 U.S. 891, 130 L. Ed. 2d 162 (1994). Based upon the aforementioned reasons, we reject this assignment of error.\nIn his nineteenth assignment of error, defendant contends the trial court erred by failing to properly determine questions of juror competency, purportedly violating defendant\u2019s rights pursuant to N.C.G.S. \u00a7\u00a7 9-3 and 15A-1211. Defendant alleges the trial court failed to determine the statutory qualifications of the jurors and singled out a single juror for questioning about citizenship. Our review of the record leads us to conclude that the trial court complied with the statutory mandates in the selection of the jurors.\nThe trial court \u201cmust decide all challenges to the panel and all questions concerning the competency of jurors.\u201d N.C.G.S. \u00a7 15A-1211(b) (1997). In the case sub judice, the record reflects that defendant never challenged the jury panel selection process in any manner. The applicable statute specifically states that while a defendant may make a challenge to the jury panel, the challenge:\n(1) May be made only on the ground that the jurors were not selected or drawn according to law.\n(2) Must be in writing.\n(3) Must specify the facts constituting the ground of challenge.\n(4) Must be made and decided before any juror is examined.\nN.C.G.S. \u00a7 15A-1211(c).\nIn light of the fact that defendant failed to follow the procedures clearly set out for jury panel challenges and further failed, in any manner, to alert the trial court to the alleged improprieties, we hold that this assignment of error is not properly before this Court for review. N.C.G.S. \u00a7 15A-1446; see State v. Workman, 344 N.C. 482, 476 S.E.2d 301 (1996).\nIn his twentieth assignment of error, defendant argues that the trial court erred by refusing to allow defense counsel to attempt to rehabilitate jurors who expressed opposition to the death penalty. Defendant argues that this Court\u2019s decision in State v. Brogden, 334 N.C. 39, 430 S.E.2d 905 (1993), supports a right of rehabilitation of prospective jurors who express uncertainty about their ability to impose the death penalty according to the laws of North Carolina. We disagree with defendant\u2019s analysis of purported \u201cuncertainty.\u201d In his brief, defendant draws this Court\u2019s attention to the following voir dire of prospective juror Barbara Robison by the trial court:\nQ. Could you make a decision in this matter based only on the evidence and the law and not on anything else?\nA. I\u2019m not in favor of the death penalty.\nQ. Are you indicating then that as a matter of conscience and regardless of what the facts and circumstances were that you could not render a verdict based upon the evidence and the law?\nA. Probably not.\nQ. If you were selected to serve as a juror and the State proved the three things it\u2019s required to prove, it would be your duty as a juror, if you were going to give the State a fair trial, to recommend the death penalty. Do you understand that?\nA. Yes.\nQ. Could you do that duty if you were convinced that they proved everything they were required to prove notwithstanding your reservations?\nA. I don\u2019t know if I could do it.\nQ. Is that a no or you\u2019re not sure?\nA. I\u2019m not sure, but I don\u2019t think I could do it.\nQ. Then are your views concerning the death penalty such that you would be prevented or substantially impaired from performing your duties as a juror in accordance with the instructions and your oath?\nA. If I made a decision like that, I think I would probably regret it.\nQ. Okay. Are you indicating that your views concerning the death penalty then would impair you from making a decision recommending it even if the State proved each and every one of the things they were required to prove so that it would be your duty to make that recommendation?\nA. Yes, sir.\nThe Court: Tender for cause?\n[The Prosecutor]: Yes, sir.\nThe Court: The court will excuse you, ma\u2019am, for cause \u2014 you may step downstairs, ma\u2019am \u2014 concluding that as a matter of conscience regardless of the facts and circumstances, she couldn\u2019t render a verdict with respect to the charge in accordance with the law and that her views concerning the death penalty would prevent or impair her from performing her duties in accordance with the instructions and her oath.\nOur review of the record clearly reveals that, while prospective juror Robison initially struggled with her convictions, she ultimately responded in a manner which unequivocally indicated that she would be unable to follow the law and recommend a death sentence if appropriate. Therefore, it was entirely proper for the trial court to exercise its discretion in permitting the State\u2019s challenge for cause.\nThe record further indicates that all other prospective jurors excused for this cause likewise expressed opinions and answers supporting the trial court\u2019s decisions. The trial court is best situated to make such determinations, as it hears the jurors\u2019 answers and observes the jurors\u2019 demeanor. \u201cThe 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. The reasoning behind this rule is clear. It prevents harassment of the prospective jurors based on their personal views toward the death penalty.\u201d State v. Cummings, 326 N.C. 298, 307, 389 S.E.2d 66, 71 (1990). We will not disturb the trial court\u2019s ruling on a challenge for cause absent a showing of an abuse of that discretion. See State v. Brogden, 334 N.C. at 43, 430 S.E.2d at 908. We hold the trial court in the case sub judice did not abuse its discretion when denying defendant\u2019s request to attempt to rehabilitate various prospective jurors. This assignment of error is overruled.\nIn his twenty-first assignment of error, defendant asserts the trial court erred by failing to excuse prospective juror Denise Sales for cause on the ground that she had formed fixed opinions prior to the sentencing proceeding. The record reveals Ms. Sales clearly indicated to the trial court that she had strong personal feelings about child abuse. However, Ms. Sales never unequivocally stated she would be unable to follow the law and fulfill her duties as a juror. She stated, \u201cI can be fair, but a baby being involved I\u2019d be more harsh about it. That\u2019s all I can tell you.\u201d Following this expression, defense counsel never challenged prospective juror Sales for cause. Counsel chose instead to make a peremptory challenge excusing her from jury selection. This claim has not been preserved for appellate review according to the requirements of N.C.G.S. \u00a7 15A-1214(h). See State v. Hartman, 344 N.C. 445, 476 S.E.2d 328 (1996), cert. denied, - U.S. -, 137 L. Ed. 2d 708 (1997). In the absence of a proper challenge for cause during the trial court proceeding, it is impossible for us to attempt to evaluate this assignment of error.\nIn his twenty-second assignment of error, defendant assigns as error the trial court\u2019s denial of individual voir dire during jury selection. Defendant contends that excessive pretrial publicity caused prospective jurors to be exposed to misleading and prejudicial statements during the jury selection process. Defendant argues the trial court abused its discretion by denying defense counsel\u2019s motion for individual voir dire.\nThe North Carolina General Assembly has provided guidance concerning individual voir dire and the sequestering of jurors during the selection process. The applicable statute provides: \u201cIn capital cases the trial judge for good cause shown may direct that jurors be selected one at a time, in which case each juror must first be passed by the State. These jurors may be sequestered before and after selection.\u201d N.C.G.S. \u00a7 15A-1214Q) (1997). A trial court\u2019s ruling on whether to grant sequestration and individual voir dire of prospective jurors will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Reese, 319 N.C. 110, 353 S.E.2d 352 (1987), overruled on other grounds by State v. Barnes, 345 N.C. 184, 481 S.E.2d 44, cert. denied, -U.S. -, 139 L. Ed. 2d 134 (1997), and cert. denied, -U.S. -, 140 L. Ed. 2d 473 (1998). While it is true that many prospective jurors indicated that they had read about or heard about the present case prior to trial, our review of the record does not reveal the selection of any juror who indicated that he or she would have difficulty setting aside any pretrial impressions if selected for service. Conversely, the record reveals that challenges for cause were appropriately granted whenever any prospective juror stated that he or she could not set aside any preconceived notions. Moreover, the trial court advised the defense, when issuing the order denying defendant\u2019s motion for individual voir dire, \u201c[The] motion is denied at this time. It does not preclude reassertion, depending upon the circumstances, as the voir dire is carried out.\u201d Defendant\u2019s counsel never renewed the motion for individual voir dire as jury selection proceeded. Defendant has failed to demonstrate any abuse of discretion in the trial court\u2019s order denying individual voir dire. This assignment of error is overruled.\nIn his twenty-third assignment of error, defendant argues the trial court erred by permitting the prosecutor to cross-examine a defense expert witness concerning testimony presented at a previous competency hearing. Defendant attempts to support this position with reference to N.C.G.S. \u00a7 15A-959(c), which provides in pertinent part:\n(c) Upon motion of the defendant and with the consent of the State the court may conduct a hearing prior to the trial with regard to the defense of insanity at the time of the offense. If the court determines that the defendant has a valid defense of insanity with regard to any criminal charge, it may dismiss that charge, with prejudice, upon making a finding to that effect. The court\u2019s denial of relief under this subsection is without prejudice to the defendant\u2019s right to rely on the defense at trial. If the motion is denied, no reference to the hearing may be made at the trial, and recorded testimony or evidence taken at the hearing is not admissible as evidence at the trial.\nN.C.G.S. \u00a7 15A-959(c) (1997).\nWe determine the trial court did not err by permitting the cross-examination. N.C.G.S. \u00a7 15A-959(c) prohibits subsequent use of testimony introduced at hearings concerning pleas of insanity. The testimony used to cross-examine defendant\u2019s expert was presented at a competency hearing, not at an insanity hearing. Contrary to the suggestion in defendant\u2019s brief, N.C.G.S. \u00a7 15A-959(c), by its plain language, does not refer or apply to competency hearings.\nAdditionally, we note that our review of the record reveals that defendant himself, through his expert witness, first introduced evidence referring to the testimony of a Dorothea Dix psychiatrist initially presented at the previous competency hearing. The defense expert testified that he was provided with a copy of the Dorothea Dix evaluation and \u201crelied on the report and things contained therein.\u201d During direct examination, the defense expert also took pains to explain why his evaluation differed from that provided by the Dorothea Dix psychiatrist. Defendant cannot now be heard to complain about evidence which he initiated and introduced into the proceeding. Accordingly, we find this assignment of error meritless.\nDefendant, in his twenty-fourth assignment of error, contends the trial court erred by permitting the State to make substantive use of defendant\u2019s Dorothea Dix competency evaluation at the sentencing proceeding. Defendant suggests the introduction and use of such evidence violated his Fifth and Sixth Amendment rights, relying on the United States Supreme Court\u2019s holding in Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359 (1981). We disagree and hold that the trial court\u2019s admission of the report did not violate defendant\u2019s constitutional rights.\nThe United States Supreme Court, in Estelle, determined that under the facts present in that case, the petitioner\u2019s challenge to the introduction of a psychiatric evaluation must be upheld. However, the Court emphasized the limited scope of that holding, stating that the decision turned on the \u201cdistinct circumstances\u201d of that case. Id. at 466, 68 L. Ed. 2d at 371. The distinguishing characteristics of the Estelle controversy included the following: the trial court had ordered, ex mero motu, the psychiatric examination; the petitioner had not asserted an insanity defense; and the petitioner never offered any psychiatric evidence at trial. In stark contrast, in the case sub judice, the competency hearing was performed at defendant\u2019s request; defendant presented a defense strategy alleging, inter alia, a learning disorder, an adjustment disorder, and disturbances of emotion and conduct; and defendant introduced expert testimony concerning his mental status. The instant case is clearly distinguishable from Estelle. As the Supreme Court noted in Buchanan v. Kentucky, 483 U.S. 402, 97 L. Ed. 2d 336 (1987), the use of state-conducted psychiatric evaluations for the limited purpose of rebuttal of a defendant\u2019s psychiatric testimony does not constitute a Fifth Amendment violation. Id. at 423, 97 L. Ed. 2d at 355. Additionally, the Court noted that no Sixth Amendment violation occurs when such evaluations are used at a trial in which a defendant asserts a defense including \u201cmental status,\u201d as defense counsel are certainly on notice that following the use of such a \u201cmental status\u201d defense, the use of psychological evidence by the prosecutor is expected. Id. at 423, 97 L. Ed. 2d at 356. Defendant initially introduced expert testimony concerning his mental status. Defendant\u2019s expert witness admitted that he relied upon the very report to which defendant now objects as a basis for his expert opinions at the sentencing hearing. The State was clearly entitled to use this same evidence to rebut defendant\u2019s assertions. We hold that this assignment of error is without merit.\nDefendant also raises additional assignments of error associated with the trial court\u2019s rulings on his motion for appropriate relief, on remand from this Court. Defendant first contends the trial court erred and violated N.C.G.S. \u00a7 15A-1415(f) by excluding portions of the State\u2019s attorney work-product materials from his discovery request. Defendant suggests that N.C.G.S. \u00a7 15A-1415(f) fails to exclude work-product materials from post-conviction discovery in capital cases, and as such, the trial court committed error by reviewing certain work-product materials in camera and by ultimately withholding the material from discovery. We hold the trial court did not err in reviewing the requested material in camera for two reasons: (1) the expedited post-conviction discovery provided by N.C.G.S. \u00a7 15A-1415(f) applies only to cases following completion of direct appeal, and defendant had not reached such a stage when he made his motion; and (2) despite the fact that we are not required to review defendant\u2019s discovery request, the trial court nevertheless complied with the requirements of N.C.G.S. \u00a7 15A-1415(f) when evaluating defendant\u2019s request.\nOn 21 June 1996, the North Carolina General Assembly ratified \u201cAn Act to Expedite the Postconviction Process in North Carolina.\u201d Ch. 719, 1995 N.C. Sess. Laws 389, 397. Among other things, the Act amended N.C.G.S. \u00a7 15A-1415 to add this new subsection:\n(f) In the case of a defendant who has been convicted of a capital offense and sentenced to death, the defendant\u2019s prior trial or appellate counsel shall make available to the capital defendant\u2019s counsel their complete files relating to the case of the defendant. The State, to the extent allowed by law, shall make available to the capital defendant\u2019s counsel the complete files of all law enforcement and prosecutorial agencies involved in the investigation of the crimes committed or the prosecution of the defendant. If the State has a reasonable belief that allowing inspection of any portion of the files by counsel for the capital defendant would not be in the interest of justice, the State may submit for inspection by the court those portions of the files so identified. If upon examination of the files, the court finds that the files could not assist the capital defendant in investigating, preparing, or presenting a motion for appropriate relief, the court in its discretion may allow the State to withhold that portion of the files.\nN.C.G.S. \u00a7 15A-1415(f) (1997).\nAs recently noted by this Court, N.C.G.S. \u00a7 15A-1415(f) applies only to the post-conviction process and only to defendants who have been convicted of a capital crime and sentenced to death. State v. Bates, 348 N.C. 29, 497 S.E.2d 276 (1998). Defendant\u2019s allegation of error does not come under the provisions of N.C.G.S. \u00a7 15A-1415(f), as defendant had not exhausted his direct appeal opportunities at the time of his discovery request. Accordingly, the trial court was not obligated to utilize the more liberal discovery provisions of N.C.G.S. \u00a7 15A-1415(f), and it did not abuse its discretion when reviewing the documents in camera.\nDefendant correctly notes that the apparent legislative intent of N.C.G.S. \u00a7 15A-1415(f) is to \u201cexpedite the post-conviction process in capital cases while ensuring thorough and complete review.\u201d Bates, 348 N.C. at 37, 497 S.E.2d at 280-81. It is apparent the statute fits into a broader statutory scheme designed to provide full disclosure to counsel for capital defendants so that \u201cthey may raise all potential claims in a single motion for appropriate relief.\u201d Id. As again noted in defendant\u2019s brief, a \u201cthorough review of the conviction avoids piecemeal and delayed presentation of claims.\u201d However, defendant is asking this Court to sanction exactly such piecemeal analysis.\nDefendant had not completed appellate review when the trial court made its discovery order. Both cases relied on by defendant involved discovery motions made following completion of direct appellate review. See State v. McHone, 348 N.C. 254, 499 S.E.2d 761 (1998); State v. Bates, 348 N.C. 29, 497 S.E.2d 276. Accordingly, we conclude the trial court was not bound by N.C.G.S. \u00a7 15A-1415(f) and therefore did not err when making the decision to review the requested materials in camera.\nMoreover, assuming arguendo that N.C.G.S. \u00a7 15A-1415(f) did apply to defendant\u2019s discovery request, the trial court fully complied with and satisfied the statutory mandate by conducting an in camera review of the work-product materials. This Court has held that N.C.G.S. \u00a7 15A-1415(f) \u201cdoes not provide an express or implied protection for work product of the prosecutor or law enforcement agencies.\u201d Bates, 348 N.C. at 37, 497 S.E.2d at 281. However, N.C.G.S. \u00a7 15A-1415(f) does not mandate disclosure of all materials relating to a capital conviction which may be in the possession of the State pursuant to a motion for appropriate relief. The statute specifically, by clear and unequivocal language, allows the State, upon \u201creasonable belief that allowing inspection of any portion of the files by counsel for the capital defendant would not be in the interest of justice,\u201d to initially submit the documents not to a defendant, but to the trial court for inspection of such portion. The statute authorizes a trial court to deny access to such portions of the files, providing that when the \u201ccourt finds that the files could not assist the capital defendant in investigating, preparing, or presenting a motion for appropriate relief, the court in its discretion may allow the State to withhold that portion of the files.\u201d N.C.G.S. \u00a7 15A-1415(f).\nIn the matter sub judice, the State challenged the release of what it deemed to be sensitive documents. The trial court appropriately reviewed the documents in camera, ultimately concluding that the documents would not assist defendant. Accordingly, we conclude the trial court acted pursuant to this statute and did not abuse its discretion in reviewing and denying access to the work-product documents.\nIn his final assignment of error, defendant alleges that the trial court\u2019s dismissal of his motion for appropriate relief resulted in denial of his statutory and constitutional rights during the capital trial. Specifically, defendant contends the following: (1) that because of his hearing impairment and poor conditions inside the Buncombe County courthouse, he was unable to hear and fully participate in all of the proceedings against him; (2) that due to physical restraints, defendant was unable to see significant portions of the evidence against him when witnesses utilized exhibits outside the witness stand; (3) that the trial court failed to accommodate his hearing impairment, denying defendant his constitutional right to be present at all stages of his capital trial; (4) that defendant\u2019s trial counsel\u2019s failure to investigate his hearing loss and take appropriate measures to protect his rights denied defendant his constitutional right to effective assistance of counsel; and (5) that defendant\u2019s capital sentencing proceeding violated the Americans with Disabilities Act of 1990, as well as North Carolina law. Our review of the record leads us to conclude the trial court did not err by denying defendant\u2019s motion for appropriate relief, as defendant failed to meet his burden of \u201cproving by a preponderance of the evidence every fact essential to support the motion.\u201d N.C.G.S. \u00a7 15A-1420(c)(5) (1997).\nThis Court has held that the decisions of a trial court concerning a motion for appropriate relief are binding on defendant if they were supported by evidence, \u201ceven though the evidence is conflicting, . . . and notwithstanding defendant\u2019s testimony at the hearing to the contrary.\u201d State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). The evidence and testimony presented at the hearing on defendant\u2019s motion for appropriate relief amply support the trial court\u2019s decision denying the motion. All parties present at the motion hearing agreed that the acoustics inside the Buncombe County courthouse were less than ideal. However, the acoustics and audiometer measurements of the courthouse were not the real issue concerning the court at the motion hearing. The real issue concerned defendant\u2019s actual ability to hear, understand and participate in the capital proceedings.\nBoth the State and defendant proffered evidence evaluating defendant\u2019s hearing abilities. Again, all parties agree that defendant suffered some degree of hearing impairment. There was, however, a marked difference of opinion between the parties concerning defendant\u2019s ability to hear and understand the proceedings. William Auman, defendant\u2019s trial counsel, testified at the hearing that defendant consistently \u201cresponded] or react[ed] in a way throughout the trial that led you to believe that he could hear what was going on during his trial.\u201d Mr. Auman\u2019s co-counsel, Curtiss Graham, likewise testified that throughout the competency hearing and sentencing proceeding defendant never indicated that he could \u201cnot hear the witnesses against him or the instructions of the Court or anything that any of the lawyers were saying.\u201d Defendant himself indicated during his plea colloquy with the trial court that he was able to hear and understand the court. This evidence, combined with other testimony at the hearing on the motion for appropriate relief, amply supports the trial court\u2019s decision denying defendant\u2019s motion in this regard.\nWe also conclude the trial court did not err when dismissing defendant\u2019s ineffective assistance of counsel claim. The United States Supreme Court has held that in order to prevail on an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). Our statutorily enacted test for prejudice mirrors the Strickland test. N.C.G.S. \u00a7 15A-1443(a) (1988); State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985). To satisfy this test, a defendant must initially show that counsel\u2019s performance was so deficient that counsel was not \u201cfunctioning as the \u2018counsel\u2019 guaranteed the defendant by the Sixth Amendment.\u201d Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693. A defendant must then show that counsel\u2019s deficient performance deprived him of a fair trial. Id. Application of this standard to the case before this Court establishes that defendant was not denied effective assistance of counsel. Nothing in our review of the record and transcript suggests that defendant\u2019s trial counsel failed to deliver an appropriate level of \u201ccounsel\u201d or representation. Importantly, defendant presented no evidence at the hearing which indicated that he informed trial counsel that he was unable to hear and understand any part of the evidence or proceedings against him. This contention is meritless.\nFinally, defendant argues the trial court\u2019s failure to adequately address his hearing impairment violated the Americans with Disabilities Act, 42 U.S.C. \u00a7\u00a7 12101-213 (1997). Defendant\u2019s claim is based primarily on section 12132 of the Act, which provides that \u201cno qualified individual with a disability shall, by reason of such disability, ... be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.\u201d A regulation promulgated under the Act elaborates this particular provision by requiring public entities to \u201cfurnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.\u201d 28 C.F.R. \u00a7 35.160(b)(1) (1998). Since defendant failed to produce any evidence that he was unable to hear or participate in the instant proceedings because of his alleged hearing impairment, we hold the trial court did not violate the provisions of the Americans with Disability Act during defendant\u2019s sentencing proceeding.\nAs previously discussed, the trial court was presented with conflicting evidence as to the extent of defendant\u2019s hearing impairment. From this evidence, the trial court made numerous findings of fact, including the following:\n29. At times during the trial, counsel for the defendant met with the defendant on evenings and weekends. Discussions regarding what had occurred in court were had. The defendant never indicated to his counsel that he wasn\u2019t hearing or understanding what was going on in the trial.\n39. In open court during the arraignment and the court\u2019s inquiry from the Transcript of Plea, the defendant was able to hear and understand and respond to the questions put to him by the presiding judge.\n65. The defendant\u2019s hearing condition was not such that he could not reasonably hear and understand the proceedings.\nOur review of the record clearly indicates that the above findings of fact are amply supported by competent evidence. Assuming arguendo the Americans with Disabilities Act applies to defendant\u2019s situation, it is apparent the trial court complied with the provisions of the Act by providing defendant an opportunity to participate in the proceedings. The evidence does not indicate that defendant was d\u00e9nied participation based upon his hearing impairment. This assignment of error is without merit.\nPRESERVATION ISSUES\nDefendant raises ten issues which he concedes have been decided against his position by this Court: (1) the trial court erred by excusing prospective jurors for cause based on their feelings about capital punishment; (2) the trial court erred by limiting the questioning of jurors opposed to a life sentence, violating defendant\u2019s rights pursuant to Article I, Section 19 of the North Carolina Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; (3) the trial court erred by issuing North Carolina pattern jury instructions imposing a \u201cduty\u201d upon the jury to return a recommendation of death if it finds the mitigating circumstances were insufficient to outweigh the aggravating circumstances and the aggravating circumstances were sufficiently substantial to call for the death penalty; (4) the trial court erred by instructing the jury in a manner requiring the jurors to consider only the mitigating circumstances they individually found and not to consider mitigating circumstances found by other jurors; (5) the trial court erred by failing to instruct the jury that the State had the burden of proving the nonexistence of each mitigating circumstance beyond a reasonable doubt and by placing the burden on defendant to prove each mitigating circumstance by a preponderance of the evidence; (6) the trial court\u2019s use of the term \u201cmay\u201d in sentencing Issues Three and Four made consideration of proven mitigating circumstances discretionary with the sentencing jurors; (7) the trial court erred by instructing the jury that mitigating circumstances must outweigh aggravating circumstances; (8) the trial court erred by submitting to the jury the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance within the context of instructions that \u201cfailed adequately to limit the application of this inherently vague and overly broad circumstance\u201d; (9) the trial court erred by instructing the jurors that they could reject nonstatutory mitigating evidence on the basis that it had no mitigating value; and (10) the death penalty is discriminatory and arbitrary on its face and as applied to this case. We have fully considered defendant\u2019s arguments relating to these assignments of error and find no compelling reason to depart from our prior holdings on these issues. Therefore, we overrule each of these assignments of error.\nPROPORTIONALITY REVIEW\nHaving concluded that defendant\u2019s plea and capital sentencing proceeding were free of prejudicial error, we are required by statute to review the record and determine (1) whether the evidence supports the aggravating circumstance found by the jury; (2) whether passion, prejudice or \u201cany other arbitrary factor\u201d influenced the imposition of the death sentence in this case; and (3) whether the sentence \u201cis excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\u201d N.C.G.S. \u00a7 15A-2000(d)(2). After thoroughly reviewing the record, transcript and briefs in the present case, we conclude that the record fully supports the aggravating circumstance found by the jury. Further, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice or any other arbitrary factor. We therefore turn to our final statutory duty of proportionality review.\nOne purpose of proportionality review \u201cis to eliminate the possibility that a person will be sentenced to die by the action of an aberrant jury.\u201d State v. Holden, 321 N.C. 125, 164-65, 362 S.E.2d 513, 537 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988). Another is to guard \u201cagainst the capricious or random imposition of the death penalty.\u201d State v. Barfield, 298 N.C. 306, 354, 259 S.E.2d 510, 544 (1979), cert. denied, 448 U.S. 907, 65 L. Ed. 2d 1137 (1980). We defined the pool of cases for proportionality review in State v. Williams, 308 N.C. 47, 79-80, 301 S.E.2d 335, 355, cert. denied, 464 U.S. 865, 78 L. Ed. 2d 177 (1983), and State v. Bacon, 337 N.C. 66, 106-07, 446 S.E.2d 542, 563-64 (1994), cert. denied, 513 U.S. 1159, 130 L. Ed. 2d 1083 (1995), and we compare the instant case to others in the pool that \u201care roughly similar with regard to the crime and the defendant.\u201d State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 86 L. Ed. 2d 267 (1985). Whether the death penalty is disproportionate \u201cultimately rest[s] upon the \u2018experienced judgments\u2019 of the members of this Court.\u201d State v. Green, 336 N.C. at 198, 443 S.E.2d at 47.\nIn the case sub judice, defendant entered into a plea agreement, pleading guilty to the first-degree murder of his infant son, Lyle Atkins. At sentencing, the trial court submitted the sole aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d N.C.G.S. \u00a7 15A-2000(e)(9). The jury unanimously found the existence of this aggravating circumstance. The jury at sentencing did not find either of the two statutory mitigating circumstances submitted for its consideration: (1) that the capital felony was committed while defendant was under the influence of a mental or emotional disturbance, or (2) that the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired. See N.C.G.S. \u00a7 15A-2000(f)(2), (6). The jury also did not find the existence of any other statutory or nonstatutory mitigating circumstance not specifically submitted pursuant to the \u201ccatchall\u201d provision mandated by N.C.G.S. \u00a7 15A-2000(f)(9). The jury did, however, find the existence of two of the twenty-three nonstatutory mitigating circumstances submitted for its consideration: (1) that defendant qualifies as having a learning disability due to his IQ variations, and (2) that defendant was diagnosed by Dr. Clabe Lynn in April of 1993 as having a personality disorder and adjustment disorder with mixed disturbance of emotions and conduct.\nThis case has several distinguishing characteristics: the victim was a helpless, defenseless infant; the victim\u2019s brutal murder was found to be especially heinous, atrocious, or cruel in that the victim suffered great physical pain before his death; and finally, the victim endured a protracted series of severe beatings inflicted by his father, resulting in multiple fractures. These characteristics collectively distinguish this case from those in which we have held the death penalty disproportionate. \u25a0\nIn our proportionality review, it is appropriate to compare the present case to those 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, 129 L. Ed. 2d 895 (1994). Of the cases in which this Court has found the death penalty disproportionate, only two involved the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653; State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983). Neither Stokes nor Bondurant is similar to this case.\nIn Stokes, the defendant and a group of coconspirators robbed the victim\u2019s place of business. This Court vacated the sentence of death because defendant Stokes was only a teenager, and it did not appear that he was more deserving of death than an older accomplice, who received only a life sentence. In the present case, defendant alone, a twenty-nine-year-old adult, was responsible for Lyle\u2019s death. In Stokes, the defendant was convicted under a theory of felony murder, and there was virtually no evidence of premeditation and deliberation. In the present case, the series of senseless beatings amply supports an inference of premeditation and deliberation. Finally, in Stokes, the victim was killed during a robbery, at his place of business. In this case, the victim was killed in his home, at the hands of his father. A murder in one\u2019s home \u201cshocks the conscience, not only because a life was senselessly taken, but because it was taken [at] an especially private place, one [where] a person has a right to feel secure.\u201d State v. Brown, 320 N.C. 179, 231, 358 S.E.2d 1, 34, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987). The violation of the right to security in one\u2019s own home is even more shocking when the victim is a small infant, totally dependent upon others for care.\nIn Bondurant, the victim was shot while riding with the defendant in a car. Bondurant is distinguishable because the defendant immediately exhibited remorse and concern for the victim\u2019s life by directing the driver to go to the hospital. The defendant also went into the hospital to secure medical help for the victim. In the present case, by contrast, defendant attempted to conceal his assaults upon Lyle, forbidding Lyle\u2019s mother from seeking medical care for him during the four-week ordeal leading up to Lyle\u2019s death. It was only after defendant inflicted injuries rendering Lyle totally unresponsive that the victim\u2019s mother demanded medical care. While it is true that defendant did call 911 following a demand from Lyle\u2019s mother, he continued to conceal the cause of Lyle\u2019s injuries from emergency medical personnel.\nFor the foregoing reasons, we conclude that each case where the jury has found the \u201cespecially heinous, attrocious, or cruel\u201d aggravating circumstance and this Court has found a sentence of death disproportionate is distinguishable from the case sub judice.\nIt is also proper for this Court to \u201ccompare this case with the cases in which we have found the death penalty to be proportionate.\u201d McCollum, 334 N.C. at 244, 433 S.E.2d at 164. Although this Court reviews all of the cases in the pool when engaging in our duty of proportionality review, we have repeatedly stated that \u201cwe will not undertake to discuss or cite all of those cases each time we carry out that duty.\u201d Id. It suffices to say here that we conclude the present case is more similar to certain cases in which we have found the sentence of death proportionate than to those in which we have found the sentence of death disproportionate or to those in which juries have consistently returned recommendations of life imprisonment.\nOf particular note is the similarity of this crime to the crime in State v. Elliott, 344 N.C. 242, 475 S.E.2d 202, resulting in the imposition of the death penalty. In Elliott, as in the case sub judice, an individual entrusted with providing care for a young child betrayed that trust and inflicted fatal injuries upon the child. While both cases involve \u201cboyfriends\u201d of the victim\u2019s mother, the instant case is even more heinous, as defendant was not only a \u201cboyfriend,\u201d but also the victim\u2019s father. Both defendants engaged in violent assaults upon the helpless victims, and both defendants attempted to conceal the victims\u2019 injuries rather than seeking emergency medical care.\nFinally, we noted in State v. Daniels, 337 N.C. 243, 446 S.E.2d 298, that similarity of cases is not the last word on the subject of proportionality. Similarity \u201cmerely serves as an initial point of inquiry.\u201d Id. at 287, 446 S.E.2d at 325; see also State v. Green, 336 N.C. at 198, 443 S.E.2d at 46-47. The issue of whether the death penalty is proportionate in a particular case ultimately rests \u201con the experienced judgment of the members of this Court, not simply on a mere numerical comparison of aggravators, mitigators, and other circumstances.\u201d Daniels, 337 N.C. at 287, 446 S.E.2d at 325.\nBased on the nature of this crime, and particularly the distinguishing features noted above, we cannot conclude as a matter of law that the sentence of death was excessive or disproportionate. We hold that defendant received a fair capital sentencing proceeding, free of prejudicial error.\nNO ERROR.\nJustice Wynn did not participate in the consideration or decision of this case.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Michael F. Easley, Attorney General, by G. Patrick Murphy, Special Deputy Attorney General, for the State.", "Center for Death Penalty Litigation, by Kenneth J. Rose, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RANDY LYNN ATKINS\nNo. 9A94\n(Filed 9 October 1998)\n1. Criminal Law \u00a7 1359 (NCI4th Rev.)\u2014 first-degree murder \u2014 plea agreement \u2014 dismissal of sexual offense charge\u2014 aggravating circumstance not precluded\nThe trial court\u2019s acceptance of a plea agreement in which defendant agreed to plead guilty to first-degree murder of his eight-month-old son and the State agreed to dismiss a pending sexual offense charge and not to submit any evidence pertaining to a sexual offense did not improperly permit the State to preclude the submission of a statutory aggravating circumstance supported by the evidence where there was no evidence indicating any sexual offense during the four-week period of physical abuse and battery that caused the child\u2019s death.\n2. Criminal Law \u00a7 1340 (NCI4th Rev.)\u2014 capital sentencing\u2014 medical experts \u2014 injury comparisons \u2014 heinous, atrocious, or cruel aggravating circumstance\nTestimony by four medical experts in a capital sentencing proceeding as to the severity of the child victim\u2019s injuries in comparison to injuries suffered by other children whom the experts had treated in their respective medical practices was properly admitted to establish the \u201cespecially heinous, atrocious, or cruel\u201d aggravating circumstance by showing that the brutality of the child\u2019s death exceeded that normally present in a homicide. The trial court simply allowed comparative expert testimony, within the framework of the experts\u2019 experiences, which provided a measure or benchmark for the jury\u2019s consideration.\n3. Evidence and Witnesses \u00a7 694 (NCI4th); Criminal Law \u00a7 1340 (NCI4th Rev.)\u2014 capital sentencing \u2014 remorse by defendant \u2014 questions excluded \u2014 no offer of proof of testimony \u2014 absence of prejudice\nDefendant failed to preserve for appellate review the issue of whether the trial court erred by excluding in a capital sentencing proceeding testimony by a DSS worker which defendant contended would have shown remorse and a suicide threat by defendant where defendant did not make an offer of proof developing the witness\u2019s responses to the excluded questions. Assuming that the issue was properly preserved, the exclusion of this testimony did not amount to prejudicial error where the excluded testimony was hearsay; the trial court did not restrict defendant from inquiring as to the witness\u2019s personal observations concerning defendant\u2019s demeanor and emotional state at the time she interviewed him; to the extent that the desired result from this testimony was evidence of defendant\u2019s history or an incident of attempting suicide, such evidence was introduced through the testimony of an expert witness; and defendant was free to seek testimony from correctional officers to verify a potential or actual suicide threat rather than trying to introduce this impression by the witness\u2019s hearsay testimony. N.C.G.S. \u00a7 8C-1, Rule 103(a)(2).\n4. Constitutional Law \u00a7 346 (NCI4th); Evidence and Witnesses \u00a7 2956 (NCI4th)\u2014 capital sentencing \u2014 whether witness could receive death penalty \u2014 legal conclusion\u2014 proper exclusion\nThe trial court did not deny defendant the right to confront a witness against him in a capital sentencing proceeding by refusing to permit a witness who had been charged with aiding and abetting first-degree murder in this case to answer a question as to whether she could receive the death penalty since defendant was allowed to inquire into any potential bias of the witness based upon any arrangement between the witness and the prosecution, and it was proper for the trial court to sustain an objection to a question that required the witness to reach a legal conclusion.\n5. Criminal Law \u00a7 1348 (NCI4th Rev.); Jury \u00a7 116 (NCI4th)\u2014 capital sentencing \u2014 voir dire \u2014 comments about parole\u2014 court\u2019s failure to instruct \u2014 plain error rule inapplicable\nThe plain error rule did not apply to the trial court\u2019s failure to instruct the jury in a capital sentencing proceeding that \u201clife means life\u201d when a prospective alternate juror expressed concern about his ability to make a sentencing decision unless he could be assured that a life sentence included a stipulation that there could be no parole, the juror was excused for cause, and defendant did not request that the trial court give such an instruction and thus waived this issue under Rule 10(b)(2). The plain error doctrine will not be extended to situations in which the trial court has failed to give an instruction during jury voir dire which has not been requested.\n6. Criminal Law \u00a7 432 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 lack of remorse \u2014 not comment on post-arrest silence\nIn a capital sentencing proceeding for the first-degree murder of defendant\u2019s eight-month-old son, the prosecutor did not impermissibly comment on defendant\u2019s post-arrest silence in violation of defendant\u2019s constitutional right to remain silent by statements that drew attention to a police officer\u2019s testimony that defendant did not express remorse when informed that his son had died but stated, \u201cYou don\u2019t know how bad it is in the jail\u201d; rather, the statements were directed to the State\u2019s contention that the jury should assign no mitigating value to the submitted mitigating circumstance that \u201cdefendant is remorseful.\u201d\n7. Evidence and Witnesses \u00a7\u00a7 2954, 2970 (NCI4th)\u2014 capital sentencing \u2014 bias of witness \u2014 compensation\u2014other death penalty cases\nThe prosecution was properly permitted to cross-examine defendant\u2019s psychiatric expert in a capital sentencing proceeding concerning fees charged by the expert and his role in two other death penalty proceedings for the purpose of showing bias where there were significant discrepancies between the diagnosis made by defendant\u2019s expert and that made by the State\u2019s expert.\n8. Criminal Law \u00a7 447 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 bias of expert \u2014 compensation and participation in death penalty cases\nThere was no gross impropriety in the prosecutor\u2019s argument in a capital sentencing proceeding concerning the potential bias of defendant\u2019s psychiatric expert based upon his compensation and his participation in two other death penalty proceedings when viewed in context of the conflicting evidence about defendant\u2019s psychological condition at the time of his assaults on the child victim.\n9. Criminal Law \u00a7 462 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 expert\u2019s participation in appeals\u2014 bias \u2014 no impropriety\nThe prosecutor\u2019s argument in a capital sentencing proceeding about defendant\u2019s psychiatric expert\u2019s participation in other death penalty appeals was intended solely to suggest that the expert\u2019s involvement in numerous criminal cases indicated a bias in favor of defendant and did not impermissibly suggest that jurors should abdicate their responsibility and rely on appellate review to determine an appropriate sentencing recommendation.\n10. Criminal Law \u00a7 458 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 heinous, atrocious, or cruel aggravating circumstance \u2014 lingering death\nThe prosecutor\u2019s closing argument in a capital sentencing proceeding did not mislead the jury into concluding that a decision of the N.C. Supreme Court required a finding of the (e)(9) especially heinous, atrocious, or cruel aggravating circumstance in all cases in which the victim did not die instantly; rather, the prosecutor\u2019s reference to the decision merely illustrated that a lingering death may be a factor supporting a finding of the (e)(9) aggravating circumstance. N.C.G.S. \u00a7 15A-2000(e)(9).\n11. Criminal Law \u00a7 447 (NCI4th Rev.)\u2014 capital sentencing\u2014 prosecutor\u2019s argument \u2014 diagnosis of defendant\u2019s expert\nThe prosecutor\u2019s closing argument in a capital sentencing proceeding suggested to the jury only that the diagnosis of defendant\u2019s expert psychiatrist should not be believed and did not improperly contend that all psychiatrists routinely characterize depravity as a type of mental illness.\n12. Criminal Law \u00a7 458 (NCI4th Rev.)\u2014 capital sentencing\u2014 mitigating circumstance \u2014 prosecutor\u2019s argument \u2014 misstatement of law \u2014 intervention not required\nThe trial court did not err by failing to intervene ex mero mo tu when the prosecutor misstated the law by arguing that a mitigating circumstance \u201chas to have something to do with the death of that child.\u201d Moreover, the trial court adequately corrected any possible harm from the prosecutor\u2019s misstatement by properly instructing the jury during its charge on what constitutes mitigating circumstances and the weight to be given to them.\n13. Criminal Law \u00a7 1390 (NCI4th Rev.)\u2014 capital sentencing\u2014 age mitigating circumstance \u2014 submission not required\nThe trial court was not required to submit the age statutory mitigating circumstance to the jury in this capital sentencing proceeding where defendant was twenty-nine years old at the time he killed his eight-month-old son, and defendant presented evidence that he suffered from conditions or disorders commonly found in adolescents and participated in an activity (playing Nintendo) often enjoyed by youngsters, but the uncontroverted evidence also showed that defendant was functioning in the average to high-average range of intelligence with an IQ of 107, had a relatively good understanding of social nuances, graduated from high school and joined the Air Force, and worked at a cleaners operating complicated machinery.\n14. Criminal Law \u00a7 1382 (NCI4th Rev.)\u2014 capital sentencing\u2014 mitigating circumstances \u2014 no significant criminal history \u2014 submission not required\nThe trial court did not err by failing to submit to the jury in a capital sentencing proceeding for the murder of defendant\u2019s eight-month-old son the (f)(1) mitigating circumstance of no significant history of prior criminal activity where the evidence showed that defendant was involved in an illegal sexual relationship with his son\u2019s'mother and another male; defendant had a history of violent attacks, including fights in the military and repeated assaults on his son\u2019s mother even while she was pregnant; and defendant repeatedly and viciously beat his own infant son, which ultimately resulted in the son\u2019s death. N.C.G.S. \u00a7 15A-200(f)(l).\n15. Criminal Law \u00a7 690 (NCI4th Rev.)\u2014 capital sentencing\u2014 mitigating circumstances \u2014 peremptory instructions \u2014 no plain error\nThe trial court\u2019s peremptory instruction on nonstatutory mitigating circumstances that \u201cthis factor has been established by the evidence. It is for you ... to determine whether or not it has mitigating value\u201d was not plain error since the instruction accurately conveyed the applicable law to the jurors.\n16. Criminal Law \u00a7 690 (NCI4th Rev.)\u2014 capital sentencing\u2014 mitigating circumstances \u2014 peremptory instructions\u2014 instruction on impartiality of court\nThe trial court\u2019s concluding instruction in a capital sentencing proceeding on the impartiality of the court did not negate the potential value of the court\u2019s peremptory instructions on non-statutory mitigating circumstances.\n17. Criminal Law \u00a7 358 (NCI4th Rev.)\u2014 capital sentencing\u2014 leg restraints on defendant \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in ordering defendant to wear leg restraints during a capital sentencing proceeding where the court conducted a hearing pursuant to N.C.G.S. \u00a7 15A-1031 following a report of a possible escape attempt by defendant from his jail cell; the trial court found evidence of numerous factors supporting the physical restraint of defendant; and the court limited any potential prejudice to defendant by having a cloth draped over the counsel table to conceal the leg restraints from the jury\u2019s view and by having defendant enter and leave the courtroom while the jury was not in the courtroom.\n18. Criminal Law \u00a7 115 (NCI4th Rev.)\u2014 discovery \u2014 written report and notes of defendant\u2019s expert\nThe trial court did not err by issuing a discovery order requiring defendant\u2019s psychiatric expert to disclose a written report and by ordering the expert, during defendant\u2019s competency hearing, to supply to the prosecution \u201call of his notes,\u201d including those from conversations and interviews with defendant, where the expert relied on the discovery materials in testifying at defendant\u2019s competency hearing and at defendant\u2019s capital sentencing proceeding. N.C.G.S. \u00a7 15A-905(b).\n19. Criminal Law \u00a7 1338 (NCI4th Rev.)\u2014 capital sentencing\u2014 murder of child \u2014 prior abuse of child and child\u2019s mother\u2014 admissibility\nIn a capital sentencing proceeding for the murder of defendant\u2019s eight-month-old son, the trial court properly admitted testimony by the child\u2019s mother about earlier abuse of the child and herself by defendant, and testimony by another witness indicating abuse by defendant of the child dating back to the time the child was three weeks old, since the testimony about abuse of the mother tended to explain why the child\u2019s mother did not seek earlier medical treatment for the child during the four-week period leading up to the child\u2019s death, and testimony about abuse of the child supported the submitted aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d\n20. Criminal Law \u00a7 1340 (NCI4th Rev.)\u2014 capital sentencing\u2014 defendant\u2019s reading horror books and playing Nintendo\u2014 relevancy\nThe trial court did not err by permitting the State to present evidence concerning defendant\u2019s reading of horror books and his playing of Nintendo in a capital sentencing proceeding for the murder of his eight-month-old son where the prosecutor contended that defendant\u2019s alleged mental or emotional disorder was simply a recitation of stories gleaned from horror books, and the evidence about Nintendo was presented to show defendant\u2019s lack of remorse following his various assaults on his son.\n21. Criminal Law \u00a7 152 (NCI4th Rev.)\u2014 guilty plea \u2014 first-degree murder \u2014 premeditation and deliberation \u2014 factual basis \u2014 voluntariness\nA sufficient factual basis for the trial court\u2019s acceptance of defendant\u2019s plea of guilty of a premeditated and deliberate murder of his eight-month-old son was presented by the State\u2019s summary of the evidence and medical evidence tending to show that multiple, brutal injuries had been inflicted by defendant upon his son over a sustained period of time. Furthermore, the record shows that defendant\u2019s guilty plea was knowingly and voluntarily entered.\n22. Evidence and Witnesses \u00a7 2266 (NCI4th)\u2014 capital sentencing \u2014 battered child syndrome \u2014 evidence admissible\u2014 cause of death\nIn a capital sentencing proceeding for the murder of defendant\u2019s eight-month-old son, testimony by a neurologist and a pediatric radiologist that the child suffered from battered child syndrome was admissible to show premeditation and deliberation and to support the (e)(9) aggravating circumstance that the murder was \u201cespecially heinous, atrocious, or cruel.\u201d Although battered child syndrome is merely a diagnostic profile and cannot be a technical cause of death, testimony that battered child syndrome was the cause of the child\u2019s death did not justify a new sentencing proceeding where it is apparent that neither the witnesses nor the prosecutor in closing argument claimed that the syndrome itself was the cause of death; rather, they asserted that the cumulative effect of injuries suffered by the child as a result of battering by defendant, which also qualified him for the diagnosis of battered child syndrome, was the cause of death.\n23. Constitutional Law \u00a7 345 (NCI4th)\u2014 capital sentencing\u2014 off-the-record bench conferences \u2014 defendant\u2019s right to presence not violated\nDefendant\u2019s constitutional right to be present at all stages of his capital trial was not violated by three off-the-record bench conferences involving only counsel during his capital sentencing proceeding where the conferences were conducted in the courtroom with defendant present and able to observe the context of the discussions and free to inquire of his attorneys as to the nature of the discussions, and the conferences were all reconstructed for the record following each conference. Assuming arguendo that the trial court erred by conducting the conferences off the record, the reconstruction shows beyond a reasonable doubt that any error was harmless. N.C. Const, art. I, \u00a7 23.\n24. Jury \u00a7 30 (NCI4th)\u2014 challenge to panel \u2014 statutory procedures not followed \u2014 question not before appellate court\nAn assignment of error that the trial court failed to properly determine the statutory qualifications of jurors was not before the appellate court where defendant failed to follow the procedures set out in N.C.G.S. \u00a7 15A-1211(c) for jury panel challenge and further failed to alert the trial court to the alleged improprieties. N.C.G.S. \u00a7 15A-1446.\n25. Jury \u00a7 226 (NCI4th)\u2014 capital sentencing \u2014 jury selection\u2014 death penalty views \u2014 challenge for cause \u2014 rehabilitation not allowed\nThe trial court did not abuse its discretion by denying defendant\u2019s request to attempt to rehabilitate prospective jurors in this capital sentencing proceeding when they were challenged for cause for their death penalty views where the record shows that all of the jurors ultimately responded to questions by the prosecutor and the trial court in a manner which unequivocally indicated that they would be unable to follow the law and recommend a death sentence if appropriate.\n26. Jury \u00a7 187 (NCI4th)\u2014 excusal for cause \u2014 waiver of appellate review\nDefendant\u2019s claim that the trial court erred by failing to excuse a prospective juror for cause in a capital sentencing proceeding on the ground that she had formed fixed opinions prior to the hearing was not preserved for appellate review where defendant never challenged the prospective juror for cause but exercised a peremptory challenge excusing her. N.C.G.S. \u00a7 15A-1214(h).\n27. Jury \u00a7 111 (NCI4th)\u2014 capital sentencing \u2014 pretrial publicity \u2014 individual voir dire denied\nThe trial court did not abuse its discretion by denying defendant\u2019s motion for individual voir dire during jury selection in a capital sentencing proceeding on the ground that pretrial publicity exposed jurors to misleading and prejudicial statements where no juror was selected who indicated that he or she would have difficulty setting aside any pretrial impressions if selected for service; challenges for cause were appropriately granted when any prospective juror stated that he or she could not set aside any preconceived notions; and although the trial court informed defense counsel that reassertion of the motion was not precluded as the voir dire was carried out, the motion for individual voir dire was not renewed as jury selection proceeded. N.C.G.S. \u00a7 15A-1214Q).\n28. Criminal Law \u00a7\u00a7 20, 1335 (NCI4th Rev.)\u2014 capital sentencing \u2014 expert witness \u2014 testimony at competency hearing\u2014 cross-examination\nThe trial court did not err by permitting the prosecutor to cross-examine a defense expert witness in a capital sentencing proceeding concerning testimony presented at a previous competency hearing since (1) N.C.G.S. \u00a7 15A-959(c), by its plain language, prohibits the subsequent use of testimony introduced at hearings for pleas of insanity and does not apply to competency hearings, and (2) defendant himself, through his expert witness, first introduced evidence referring to the testimony of a Dorothea Dix psychiatrist initially presented at the competency hearing.\n29. Constitutional Law \u00a7\u00a7 266, 352 (NCI4th); Criminal Law \u00a7 1335 (NCI4th Rev.)\u2014 capital sentencing \u2014 substantive use of competency evaluation \u2014 no constitutional violation\nDefendant\u2019s constitutional rights against self-incrimination and to counsel were not violated when the State made substantive use of defendant\u2019s Dorothea Dix competency evaluation at his capital sentencing proceeding where the competency evaluation was performed at defendant\u2019s request; defendant presented a defense strategy at the sentencing hearing alleging a learning dis-. order, an adjustment disorder, and disturbances of emotion and conduct; defendant first introduced expert testimony concerning his mental status; and defendant\u2019s expert witness admitted that he relied upon the Dorothea Dix report as a basis for his expert opinions at the sentencing hearing. The use of state-conducted psychiatric evaluations to rebut defendant\u2019s psychiatric testimony when defendant asserts a mental status defense does not violate either the Fifth or the Six Amendment to the United States Constitution.\n30. Criminal Law \u00a7 112 (NCI4th Rev.)\u2014 capital case \u2014 post-conviction discovery \u2014 State\u2019s attorney work product\u2014 exclusion by trial court\nThe trial court did not violate N.C.G.S. \u00a7 15A-1415(f) by excluding portions of the State\u2019s attorney work-product materials from defendant\u2019s post-conviction discovery in a capital case since the expedited post-conviction discovery provided by \u00a7 1415(f) applies only to cases following completion of direct appeal, and defendant had not completed appellate review when the trial court made its discovery order. Assuming arguendo that \u00a7 1415(f) did apply to defendant\u2019s discovery request, the trial court complied with the statute by reviewing certain work-product materials in camera and by ultimately withholding the materials from discovery where the State challenged the release of what it deemed to be sensitive documents, and the trial court, after reviewing the documents in camera, concluded that the documents would not assist defendant.\n31. Constitutional Law \u00a7 344.1 (NCI4th)\u2014 hearing impairment \u2014 no denial of presence at capital trial\nDefendant\u2019s right to be present at all stages of his capital trial was not violated by the trial court\u2019s denial of defendant\u2019s motion for appropriate relief made on the ground that the trial court failed to accommodate a hearing impairment which rendered defendant unable to hear and fully participate in his competency and capital sentencing proceedings where all parties agreed that defendant suffered some degree of hearing impairment, but defendant\u2019s trial counsel testified that defendant consistently responded or reacted in his hearings in a way which indicated that he could hear what was going on; defendant\u2019s co-counsel testified that defendant never indicated throughout his competency and sentencing hearings that he could not hear the witnesses, the attorneys, or the instructions of the court; and defendant indicated during his plea colloquy with the trial court that he was able to hear and understand the court.\n32. Constitutional Law \u00a7 313 (NCI4th)\u2014 failure to investigate hearing impairment \u2014 not ineffective assistance of counsel\nDefendant was not denied the effective assistance of counsel by the alleged failure of his attorney to investigate his hearing impairment and to take measures to protect his rights where nothing in the record suggests that defendant\u2019s trial counsel failed to deliver an appropriate level of representation, and defendant presented no evidence that he informed trial counsel that he was unable to hear and understand any part of the evidence or proceedings against him.\n33. Handicapped, Disabled, or Aged Persons \u00a7 15 (NCI4th)\u2014 capital sentencing \u2014 hearing impairment \u2014 no violation of Americans with Disabilities Act\nThe trial court did not violate the Americans with Disabilities Act during defendant\u2019s capital sentencing proceeding by failing to accommodate defendant\u2019s hearing impairment where defendant failed to produce evidence that he was unable to hear or participate in the sentencing proceeding because of his purported hearing impairment, and the evidence supported findings by the trial court to the effect that defendant\u2019s hearing condition did not prevent him from reasonably hearing and understanding what occurred in the sentencing proceeding. Assuming arguendo that the Americans with Disabilities Act applied to defendant\u2019s situation, the evidence did not indicate that defendant was denied participation in the sentencing proceeding because of his hearing impairment.\n34. Criminal Law \u00a7 1402 (NCI4th Rev.)\u2014 murder of infant son \u2014 death penalty not disproportionate\nA sentence of death imposed upon defendant for the first-degree murder of his eight-month-old son was not excessive or disproportionate where defendant entered a plea of guilty to first-degree murder pursuant to a plea agreement; the infant victim endured a protracted series of severe beatings inflicted by defendant which resulted in multiple fractures; the jury found the existence of the especially heinous, atrocious, or cruel aggravating circumstance; defendant, a twenty-nine-year-old adult, was alone responsible for the child\u2019s death; the victim was killed in his home; and defendant attempted to conceal his assaults upon his child, forbidding the child\u2019s mother from seeking medical care for him during the four-week ordeal leading up to his death.\nJustice Wynn did not participate in the consideration or decision of this case.\nAppeal as of right by defendant pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing a sentence of death entered by Saunders, J., at the 29 November 1993 Criminal Session of Superior Court, Buncombe County. Additionally, defendant appeals from an order denying his motion for appropriate relief entered by Ferrell, J., on 16 May 1997. Heard in the Supreme Court 27 May 1998.\nMichael F. Easley, Attorney General, by G. Patrick Murphy, Special Deputy Attorney General, for the State.\nCenter for Death Penalty Litigation, by Kenneth J. Rose, for defendant-appellant." }, "file_name": "0062-01", "first_page_order": 100, "last_page_order": 156 }