Uncategorized Archives – Page 285 of 298 – North Carolina Criminal Law

Do Officers Need More than a Warrant to Search a Computer?

October 11, 2017August 4, 2009 Jeff Welty

The Ninth Circuit recently decided United States v. Payton, a computer search case that quietly adopts some pretty radical ideas. Based on the lack of comments on my previous computer search posts — here and here –most of you aren’t keenly interested in the application of the Fourth Amendment to emerging technologies, but Payton strikes … Read more

Scheduling of Controlled Substances

August 3, 2009 Jeff Welty

Several months ago, an attorney contacted me to ask whether a particular drug was on one of controlled substance schedules, and if so, which one. I did the obvious: I looked at the schedules set forth in G.S. 90-89 et seq. I couldn’t find the drug, so I concluded that it was not a controlled substance. When … Read more

News Roundup

July 31, 2009 Jeff Welty

Several recent news stories that may be of interest: 1. Governor Perdue just signed S 920, which makes substantial changes to the probation laws. For example, it requires all probationers to submit to warrantless searches by probation officers, and to a lesser degree, by law enforcement officers. It also clarifies the tolling provisions of the … Read more

Legislative “Fix” for State v. Byrd

October 12, 2017July 30, 2009 Jeff Welty

Remember State v. Byrd, the case that held that ex parte domestic violence TROs aren’t “protective orders” under Chapter 50B? I blogged about it here, and I highlighted a more detailed summary by John Rubin here. Byrd always seemed like a likely candidate for a legislative “fix,” and in fact, the General Assembly passed, and … Read more

Satellite-Based Monitoring and State v. Kilby

October 11, 2017July 29, 2009 Jamie Markham

by School of Government faculty member Jamie Markham There are two categories of sex offenders subject to satellite-based monitoring: those subject to lifetime monitoring, and those subject to monitoring for a period of time specified by the court. For an offender to fall within the latter category (called “conditional” monitoring by DCC), the court must … Read more

The Gates Case and North Carolina Law

July 28, 2009 Jeff Welty

I am reluctant to dip my toes into the waters of controversy swirling around the arrest of Harvard Professor Henry Louis Gates, but it provides a useful framework for discussing North Carolina’s disorderly conduct laws, so I’m going to do so anyway. First, let me provide the disclaimer that I’m not taking sides. The best … Read more

Retroactivity of Melendez-Diaz (Again)

October 18, 2017July 27, 2009 Jessica Smith

In my last post on this topic, I addressed the “new rule” prong of Teague retroactivity analysis as it applies to Melendez-Diaz. I ended that post by noting that another aspect of retroactivity analysis that has been raised regarding Melendez-Diaz is whether the Teague test applies in North Carolina motion for appropriate relief proceedings in … Read more

What’s Blakely got to do with it? Sentencing in Impaired Driving Cases after Melendez-Diaz

October 11, 2017July 24, 2009 Shea Denning

Jeff Welty blogged here and Jessica Smith published a paper here about the implications of the Supreme Court’s holding in Melendez-Diaz that forensic laboratory reports are testimonial, rendering the affiants witnesses who are subject to the defendant’s right of confrontation under the Sixth Amendment. I’ve been pondering the impact of the court’s holding on the … Read more

Sex Offender Q and A

October 11, 2017July 23, 2009 Jamie Markham

by School of Government faculty member Jamie Markham

Last month I taught a session for the superior court judges on sex offender registration and monitoring. The handout I used included a set of exercises that we didn’t have time to get through in the session, so I promised the judges I would distribute answers. But why should they get to have all the fun? The exercises follow, with answers after the jump. My sex offender registration and monitoring flow chart is available here if you need it. Page Two, Side Two of form AOC-CR-603 might also come in handy. Finally, for those interested in additional reading, the full handout I used in the session is available here and a related handout from another session is available here.

1. Which of the following offenders are subject to sex offender registration?

a. A defendant is convicted of sexual battery on January 15, 2008, based on acts that occurred on October 5, 2005.

b. A defendant is convicted of crime against nature on November 12, 2008, based on acts that occurred on July 1, 2008.

c. A defendant released from prison on July 1, 1996 after serving a 15-month sentence for an April 1995 conviction for taking indecent liberties with children.

2. A defendant pleads guilty to assault on a female based on acts involving his 12-year-old step-daughter. He pushed her after she refused his sexual advances. He is sentenced to 36 months of probation.

a. Is this a reportable conviction?

b. Is the defendant subject to any special conditions of probation?

3. A person subject to the 30-year sex offender registration requirement was arrested and charged with failure to register when he didn’t respond to a semiannual verification form as required in G.S. 14-208.11. Can this offender successfully petition to terminate his registration requirement after 10 years under G.S. 14-208.12A?

4. In 2009, a defendant is convicted of first-degree rape based on an offense that occurred July 1, 2000. The victim was a 25-year-old woman.

a. Is this a reportable conviction? If so, how long must this offender register?

b. Is the offender subject to satellite-based monitoring? If so, for how long?

c. Suppose the victim was a 16-year-old girl. Does this change your answer to (b)?

5. A 19-year-old defendant pleads guilty to taking indecent liberties with a 13-year-old girl. The offense, which involved consensual oral sex, took place January 12, 2009.

a. Is the offender subject to satellite-based monitoring? If so, for how long?

b. Suppose the victim was 11. Does this change your answer to (a)?

6. A defendant was convicted for taking indecent liberties in 1989. He was later convicted again for taking indecent liberties in 2005, given an active sentence, and released from prison in 2008. Is he subject to lifetime registration and lifetime satellite based monitoring as a recidivist?

7. In 2009, a defendant is convicted of felony indecent exposure under G.S. 14-190.9(a1). The victim was a 10-year-old girl. At sentencing you determine that the offender is not a recidivist, aggravated offender, or sexually violent predator. You do, however, find that the defendant committed an act involving the sexual abuse of a minor, so you order DOC to complete a risk assessment.

a. Do you wait for DOC to complete the risk assessment before sentencing the defendant? (G.S. 14-208.40A(d) says DOC shall have 30 to 60 days to complete the assessment and report the results.)

b. Suppose the assessment comes back MODERATE. What are your options?

c. Suppose the assessment comes back HIGH. What are your options?

Again, the answers are after the jump.

Time Limits on Trials

December 31, 2015July 22, 2009 Jeff Welty

I’m a little like a broadcaster for a small-market sports team, in that I’m a relentless “homer,” always impressed with the efforts of the School of Government faculty. With that disclaimer in mind, my colleague Michael Crowell has just published a terrific paper, available for free here, about courts’ authority to impose time limits on … Read more