State v. Craft

232 S.E.2d 282 (1977)

STATE of North Carolina
v.
Clarence William CRAFT et al.

No. 7623SC661.

Court of Appeals of North Carolina.

February 16, 1977.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Wilton E. Ragland, Jr., Raleigh, for the State.

Vannoy & Reeves by Wade E. Vannoy, Jr., West Jefferson, for defendant appellant Craft.

Vannoy & Reeves by Jimmy D. Reeves, West Jefferson, for defendant appellant Church.

Allen Worth, Jefferson, for defendant appellant Rutherford.

CLARK, Judge.

Defendants have submitted separate briefs, but have raised the same three questions. The questions are not related to pertinent assignments of error and exceptions as required by North Carolina Rules of Appellate Procedure 28(b)(3).

Defendants first assign error to the consolidation of their trials and rely upon State v. Alford, 289 N.C. 372, 222 S.E.2d 222 (1976). It is well settled that consolidation is in the discretion of the trial judge, and, in the absence of a showing that a joint trial has deprived a defendant of a fair trial, the exercise of the judge's discretion will not be disturbed on appeal. State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968). In Alford a new trial was granted to one codefendant where it was shown that the codefendant who had not taken the stand had given a pretrial statement that appeared to corroborate the other codefendant's alibi. Defendants Craft and Rutherford may not complain with respect to defendant Church since he took the stand and offered testimony which tended to establish alibis on their part. Nor may they complain with respect to each other, since there is nothing to indicate, as there was in Alford, that testimony of the other would corroborate an alibi or otherwise aid in securing a fair trial. Alford does not require severance merely because of the hypothetical possibility that a codefendant may provide exculpatory testimony. Defendant Church may not complain with respect to defendants Craft and Rutherford because there was no showing that their testimony would aid him in his defense. His testimony was that they were unconscious when he went to their trailer, and thus by his own evidence they would have been in no position to corroborate the alibi testimony of his other witnesses.

Defendants next assign error to the denial of their motions to suppress the evidence seized from defendant Craft's house trailer and automobile. The Fourth Amendment generally requires a warrant for a search or seizure, but a party may waive this requirement and consent to the search or seizure. State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973). As a condition to probation, Craft had waived his right to be free from warrantless searches conducted in the presence of his probation officer. This Court has approved a similar condition to probation so long as the search is conducted in an otherwise lawful manner. State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974). We do not think that such a condition is unreasonable or that the consent was not voluntarily given. People v. Mason, 5 Cal. 3d 759, 97 Cal. Rptr. 302, 488 P.2d 630 (1971), cert. denied 405 U.S. 1016, 92 S. Ct. 1289, 31 L. Ed. 2d 478 (1972). Our conception of criminal justice has long progressed beyond the notion that conviction automatically means incarceration. However, it would be absurd to hold unreasonable all those things which are agreed to as a condition of freedom by the convicted criminal, who could otherwise be confined in prison. Although the condition imposed herein is not among those listed in G.S. 15-199, that list is not exclusive. State v. Foust, 13 N.C.App. 382, 185 S.E.2d 718 (1972), overruled on other grounds, State v. Young, 21 N.C.App. 316, 204 S.E.2d 185 (1974) (condition that probationer reimburse State for fees paid to appointed counsel is permissible). Nor does G.S. 15-207, which creates a qualified privilege for "information and data obtained in the discharge of official duty by any probation officer" apply to the present case, since the items seized were not "information and data". Even were they so construed, the denial of the motion to suppress constitutes an order by a judge, as required by G.S. 15-207, that such information be receivable as evidence in court. Since we find no merit to this argument as raised by defendant Craft, we need not decide whether defendants Church and Rutherford have standing to raise it.

Defendants finally assign error to the denial of their motions for nonsuit. Upon motion for nonsuit all the evidence considered must be considered in the light most favorable to the State. 4 Strong, N.C. Index, Criminal Law, § 104 (3d Ed. 1976) and cases cited therein. The State produced evidence of a breaking and entering, of a larceny, and of possession of the stolen property by defendants shortly after the time of the crimes, which circumstances raise a presumption that the possessors were guilty of the crimes. State v. Eppley, 282 N.C. 249, 192 S.E.2d 441 (1972); State v. Black, 14 N.C.App. 373, 188 S.E.2d 634 (1972).

Though the stolen property consisted of widely distributed brand name products, the owner testified that there were identifying features, such as numbers and prices, stamped on the cartons of cigarettes and jars of coffee. The evidence of identification was sufficient. State v. Crawford, 27 N.C.App. 414, 219 S.E.2d 248 (1975). The cigarettes and coffee were found in Craft's trailer and automobile, which were in his possession and control. Defendant Rutherford's fingerprints were found on some of the cigarette cartons. Defendant Church told the arresting officer that he brought the coffee in the trailer. Thus, there was evidence tending to show possession of recently stolen property by each of the three defendants sufficient to invoke the presumption arising from such possession. And this evidence with other facts satisfactorily proved was sufficient to support the verdicts.

No error.

VAUGHN and HEDRICK, JJ., concur.