S.L. 2017-176 makes two important changes to which prior convictions can support a habitual felon charge. The legislation (1) clarifies the status of prior convictions from New Jersey and other states that don’t use the term “felony,” and (2) imposes a new requirement that a prior conviction from another state be for an offense that is “substantially similar” to a North Carolina felony.
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News Roundup
The criminal tribulations of O.J. Simpson once again captured the nation’s attention this week. Simpson was granted parole yesterday after serving nearly nine years in prison in Nevada following his conviction on robbery and related charges arising from a 2007 incident in Las Vegas. Simpson’s parole hearing was broadcast live across the nation and, as evidence that the truth sometimes is stranger than fiction, one member of the parole board wore a Kansas City Chiefs necktie during the proceeding. Keep reading for more news.
The Interstate Corrections Compact
Can a person convicted and sentenced to prison in North Carolina serve the time in another state? Can a person convicted elsewhere serve his or her sentence here?
Summer Confrontation Clause Cases
This past June saw a flurry of Confrontation Clause cases from the appellate division: State v. Miller, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 3, 2017); State v. McKiver, ___ N.C. ___ (June 9, 2017); and State v. Clonts, ___ N.C. App. ___ (June 20, 2017), temp. stay allowed, ___ N.C. ___ (July 9, 2017) (a sprawling 84 page opinion including the dissent). These make for some great summer reading, at least to me. Because the cases touch on various aspects of Confrontation Clause law (and just in case your summer reading interests vary from mine), I wanted to briefly summarize them.
Important Amendments to the “Revenge Porn” Statute
The General Assembly has amended G.S. 14-190.5A, the “revenge porn” statute. The statute now (1) applies to live streams as well as recordings, and (2) is not limited to images captured in the course of a “personal relationship.” However, it still leaves open questions about various types of digitally-generated images.
News Roundup
WRAL reported earlier this week that Wake County District Court Judge Michael Denning determined that pretrial release conditions for thirty-two people arrested during a May protest at the Legislative Building which banned them from the building were too broad and that Denning planned to modify the conditions of release. Yesterday, a follow-up report said Denning ruled that five protestors, including State NAACP President Rev. William Barber, would be banned from the building until their trespassing charges arising from the protest are resolved, while four other protestors may visit the building only if invited and accompanied by a lawmaker. The varying conditions were based on the number of times a person had been charged with trespassing at the Legislative Building. Keep reading for more news.
Revised Sex Offender Flow Chart (July 2017 Edition)
With another legislative session in the books, it’s time for an update to the sex offender registration and monitoring flow chart.
Paper on Terminating Sex Offender Registration
For a recent teaching session, I prepared an outline on terminating sex offender registration. I thought it might be helpful to a broader audience, so I posted it here [I updated the paper on July 24, 2017 to reflect a change made by S.L. 2017-158 regarding the proper venue for a petition by a person on the registry for a federal conviction].
Whether “No” Means “No” in North Carolina
Attention has fallen on North Carolina for a 1979 court decision on withdrawal of consent during sexual intercourse. In State v. Way, 297 N.C. 293 (1979), the state supreme court held under North Carolina’s then-existing rape statutes that if a woman consents to sexual intercourse and in the middle of the act changes her mind, the defendant is not guilty of rape for continuing to engage in intercourse with her. The decision has drawn fierce criticism from the public and in legal circles. The criticism intensified after the General Assembly did not act on a bill introduced this session, Senate Bill 553, which would have permitted withdrawal of consent after intercourse begins consensually. People have asked me whether the apparent holding in Way is still the law in North Carolina. Is it true that a man would not be guilty of rape if he forcibly continued to have sexual intercourse with a woman after she withdrew consent? In my view, that may not be the law in North Carolina.
Convictions for Attempted Armed Robbery Based on Evidence of the Completed Crime
In North Carolina, the general rule is that “an attempt to commit a . . . felony is punishable under the next lower classification as the offense which the offender attempted to commit.” G.S. 14-2.5. However, the armed robbery statute, G.S. 14-87, makes it a class D felony to “take[] or attempt[] to take” property from another while in possession of a dangerous weapon. The specific terms of the statute therefore create an exception to the general rule, and render attempted armed robbery the same offense class as the completed crime. The fact that attempted armed robbery is specifically set out in the armed robbery statute and is the same offense class as armed robbery has created considerable doctrinal trouble. In the past month, the General Assembly has tried to fix the problems and the state supreme court has weighed in on an analogous issue.