GENERAL ASSEMBLY OF NORTH CAROLINA

EXTRA SESSION 1994

H	1 

HOUSE BILL 123

Short Title:  Deny Bail on Child Sex Charge.	(Public)
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Sponsors: Representatives McAllister; Bowman, Cummings, Decker, H. Hunter, McLawhorn, Spears, and Wainwright.
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Referred to:  Judiciary II.
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February 14, 1994

A BILL TO BE ENTITLED
AN ACT TO PROVIDE THAT BAIL MAY BE DENIED A DEFENDANT CHARGED WITH COMMITTING CERTAIN SEX OFFENSES AGAINST A MINOR IF THE COURT DETERMINES THAT NO CONDITION OF BAIL CAN REASONABLY ASSURE THE SAFETY OF ANY OTHER PERSON AND THE COMMUNITY.
The General Assembly of North Carolina enacts:
Section 1.  Article 26 of Chapter 15A of the General Statutes is amended by adding the following new sections to read:
"§ 15A-534.4.  Sex offenses committed against minors; bail and pretrial release.
(a)	A judicial officer may determine in his or her discretion whether a defendant charged with a sex offense listed below in this subsection and committed against a minor may be released before trial. If, at the initial appearance of the defendant, the judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other person and the community, the judicial officer shall order the detention of the defendant before trial.  There is a rebuttable presumption that no condition or combination of conditions will reasonably assure the safety of any other person and the community if the judicial officer finds that there is probable cause to believe that the defendant committed any of the following offenses:
(1)	G.S. 14-318.4. (Felony child abuse).
(2)	G.S. 14-27.2. (First degree rape).
(3)	G.S. 14-27.3. (Second degree rape).
(4)	G.S. 14-27.4. (First degree sexual offense).
(5)	G.S. 14-27.5. (Second degree sexual offense).
(6)	G.S. 14-27.7. (Sexual act by a custodian).
(7)	G.S. 14-177. (Crime against nature).
(8)	G.S. 14-178. (Incest between certain near relatives).
(9)	G.S. 14-179. (Incest between uncle and niece and nephew and aunt).
(10)	G.S. 14-190.5. (Preparation of obscene photographs, slides, and motion pictures).
(11)	G.S. 14-190.6. (Employing or permitting minor  to assist in a violation of the obscenity laws).
(12)	G.S. 14-190.7. (Dissemination of obscene material to minors under age 16).
(13)	G.S. 14-190.8. (Dissemination of obscene material to minors under age 13).
(14)	G.S. 14-190.14. (Displaying material harmful to minor).
(15)	G.S. 14-190.15. (Disseminating harmful material to
	minors; exhibiting harmful performances to minors).
(16)	G.S. 14-190.16. (First degree sexual exploitation).
(17)	G.S. 14-190.17. (Second degree sexual exploitation).
(18)	G.S. 14-190.18. (Promoting the prostitution of a minor).
(19)	G.S. 14-202.1. (Taking indecent liberties with a minor).
(b)	In determining whether a defendant may be released before trial, the judicial officer shall, on the basis of available information, consider the factors set out in G.S. 15A-534(c).  The judicial officer shall record in writing the judicial officer's findings of fact, state the reasons for the detention, and direct that the defendant be afforded reasonable opportunity for private consultation with counsel.  The judicial officer may, by subsequent order, permit the temporary release of the defendant in the custody of a law enforcement officer to the extent that the judicial officer determines the release to be necessary for preparation of the defendant's defense or for another compelling reason.
(c)	The judicial officer shall hold a hearing as provided by this Chapter to determine whether any condition or combination of conditions set forth in G.S. 15A-534 will reasonably assure the appearance of the person as required and the safety of any other person and the community upon motion of the district attorney in a case that involves a sexual offense committed against a minor.  The hearing shall be held immediately upon the defendant's first appearance before the judicial officer unless the defendant or the district attorney seeks a continuance.  Except for good cause, a continuance on motion of the defendant may not exceed five days, and a continuance on motion of the district attorney may not exceed three days.  During a continuance, the defendant shall be detained.  At the hearing, the defendant has the right to be represented by counsel, and, if financially unable to obtain adequate representation, to have counsel appointed.  The defendant shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.  The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.  The facts the judicial officer uses to support a finding that no condition or combination of conditions will reasonably assure the safety of any other person and the community shall be supported by clear and convincing evidence.  The defendant may be detained pending completion of the hearing.  The hearing may be reopened, before or after a determination by the judicial officer, at any time before trial if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing on the issue whether there are conditions of release that will reasonably assure the appearance of the defendant as required and the safety of any other person and the community."
Sec. 2.  G.S. 15A-533(b) reads as rewritten:
"(b)	Except as provided in G.S. 15A-534.4, a defendant charged with a noncapital offense must have conditions of pretrial release determined, in accordance with G.S. 15A-534."
Sec. 3.  G.S. 15A-534 reads as rewritten:
"§ 15A-534.  Procedure for determining conditions of pretrial release.
(a)	In determining conditions of pretrial release a judicial official must impose one of the following conditions, unless a defendant is charged with an offense listed in G.S. 15A-534.4(a):
(1)	Release the defendant on his written promise to appear.
(2)	Release the defendant upon his execution of an unsecured appearance bond in an amount specified by the judicial official.
(3)	Place the defendant in the custody of a designated person or organization agreeing to supervise him.
(4)	Require the execution of an appearance bond in a specified amount secured by a cash deposit of the full amount of the bond, by a mortgage pursuant to G.S. 58-74-5, or by at least one solvent surety.
If condition (3) is imposed, however, the defendant may elect to execute an appearance bond under subdivision (4).  The judicial official may also place restrictions on the travel, associations, conduct, or place of abode of the defendant as conditions of pretrial release.
(b)	Except as provided in G.S. 15A-534.4, the judicial official in granting pretrial release must impose condition (1), (2), or (3) in subsection (a) above unless he determines that such release will not reasonably assure the appearance of the defendant as required; will pose a danger of injury to any person; or is likely to result in destruction of evidence, subornation of perjury, or intimidation of potential witnesses.  Upon making the determination, the judicial official must then impose condition (4) in subsection (a) above instead of condition (1), (2), or (3), and must record the reasons for so doing in writing to the extent provided in the policies or requirements issued by the senior resident superior court judge pursuant to G.S. 15A-535(a).
(c)	In determining which conditions of release to impose, the judicial official must, on the basis of available information, take into account the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the defendant's family ties, employment, financial resources, character, and mental condition; whether the defendant is intoxicated to such a degree that he would be endangered by being released without supervision; the length of his residence in the community; his record of convictions; his history of flight to avoid prosecution or failure to appear at court proceedings; and any other evidence relevant to the issue of pretrial release.
(d)	The judicial official authorizing pretrial release under this section must issue an appropriate order containing a statement of the conditions imposed, if any; inform the defendant in writing of the penalties applicable to violations of the conditions of his release; and advise him that his arrest will be ordered immediately upon any violation.  The order of release must be filed with the clerk and a copy given the defendant.
(e)	A magistrate or a clerk may modify his pretrial release order at any time prior to the first appearance before the district court judge.  At or after such first appearance, except when the conditions of pretrial release have been reviewed by the superior court pursuant to G.S. 15A-539, a district court judge may modify a pretrial release order of the magistrate or clerk or any pretrial release order entered by him at any time prior to:
(1)	In a misdemeanor case tried in the district court, the noting of an appeal; and
(2)	In a case in the original trial jurisdiction of the superior court, the binding of the defendant over to superior court after the holding, or waiver, of a probable-cause hearing.
After a case is before the superior court, a superior court judge may modify the pretrial release order of a magistrate, clerk, or district court judge, or any such order entered by him, at any time prior to the time set out in G.S. 15A-536(a).
(f)	For good cause shown any judge may at any time revoke an order of pretrial release.  Upon application of any defendant whose order of pretrial release has been revoked, the judge must set new conditions of pretrial release in accordance with this Article.
(g)	In imposing conditions of pretrial release and in modifying and revoking orders of release under this section, the judicial official must take into account all evidence available to him which he considers reliable and is not strictly bound by the rules of evidence applicable to criminal trials.
(h)	A bail bond posted pursuant to this section is effective and binding upon the obligor throughout all stages of the proceeding in the trial division of the General Court of Justice until the entry of judgment in the district court from which no appeal is taken or the entry of judgment in the superior court.  The obligation of an obligor, however, is terminated at an earlier time if:
(1)	A judge authorized to do so releases the obligor from his bond; or
(2)	The principal is surrendered by a surety in accordance with G.S. 15A-540; or
(3)	The proceeding is terminated by voluntary dismissal by the State before forfeiture is ordered under G.S. 15A-544(b); or
(4)	Prayer for judgment has been continued indefinitely in the district court."
Sec. 4.  This act becomes effective January 1, 1995, and applies to persons charged on or after that date.