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.
News Roundup
A New York City police officer was ambushed and killed in the Bronx on the Fourth of July by a man who reportedly had made threats towards police on Facebook. Officer Miosotis Familia, a mother of three, was on duty in a mobile command post Tuesday night when she was shot at close range by Alexander Bonds. Bonds, whose girlfriend had alerted police to his erratic behavior earlier in the evening, subsequently was shot and killed by officers responding to the incident. A report from the New York Times says that Officer Familia was the first female NYPD officer to be killed in the line of duty since the September 11 terrorist attacks. Keep reading for more news.
Anticipatory Bonds for Probation Violations
“Arrest on first positive drug screen. $50,000 secured bond.”
“Hold without bond for any probation violation.”
May a judge sentencing a defendant to probation include instructions such as these in the judgment suspending sentence?
Murder Charges and the Opioid Epidemic
Jeff wrote on Monday about efforts by North Carolina government officials to combat the opioid epidemic.The initiatives he highlighted, such as addiction treatment and needle exchange programs, primarily attack the problem from a public health perspective. Jeff noted the contrast between this approach and the criminal-drug-law enforcement response to the spread of crack cocaine in the 1990s.
That’s not to say, however, that the criminal justice system isn’t responding to the current crisis. In counties across the State, including New Hanover, Onslow, Pender, Pitt, Union, and Wake, prosecutors are pursuing second-degree murder charges against defendants who are alleged to have provided the opioids leading to victims’ deaths.
This post explores the basis for murder charges based on the unlawful distribution of drugs and what the State must prove at trial to establish a defendant’s guilt.