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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
STATE OF NORTH CAROLINA v. HENRI NAVOTHLY YOUNG
Filed: 16 October 2007
1. Appeal and Error--items not included in motion to suppress at trial--admission not
challenged on appeal
A murder defendant whose motion to suppress a statement to officers did not include the
earlier recovery of his guns could not challenge the admission of those guns on appeal.
2. Confessions and Incriminating Statements--timing of waiver of rights--question of
Where the dispute in the admission of defendant's statements to officers was the point at
which defendant waived his rights and not whether he was in custody or made the statements
voluntarily, the question is one of fact, not law, and review is limited to whether the findings are
supported by the evidence.
3. Confessions and Incriminating Statements--findings--timing of invocation of rights--
The trial court did not err by denying defendant's motion to suppress his statements to the
police where he contended that the court's findings failed to resolve the issue of whether he
invoked his rights before being interrogated by the police. The findings demonstrated the
sequence of events in which defendant was questioned by the police and found specifically that
defendant was not questioned about this killing until after he waived his rights.
4. Confessions and Incriminating Statements--findings--no interrogation prior to
waiver of rights--supported by evidence
Testimony from detectives supported findings that the police did not interrogate
defendant prior to his waiver of his Miranda rights. The trial court chose to believe the
detectives' rendition of the facts, rather than defendant's assertion that a supplemental report
reflected the order in which he was questioned.
5. Constitutional Law_effective assistance of counsel--not moving to suppress test
Defense counsel was not ineffective in not moving to suppress the results of gun tests
obtained through trickery. The trial court would have denied the motion if made;
defendant voluntarily delivered his guns to police, despite the trickery, and the hope for relief
from criminal charges (assuming that engendering hope is improper) involved unrelated charges.
Moreover, the detectives upheld their agreement.
6. Sentencing--felony murder--arrest of one of two underlying charges
The trial court did not err by not arresting both of the felonies underlying felony murder,
but should have arrested one.
Familiarity with handwriting is not the only way to authenticate a letter and the trial court
here did not err by admitting letters attributed to defendant by a codefendant whom defendant
contended was not familiar with his handwriting.
8. Homicide_first-degree murder--short-form indictment--sufficiency
The short-form indictment for first-degree murder is sufficient to confer jurisdiction.
Appeal by defendant from order entered 19 July 2005 and
judgment entered 26 August 2005 by Judge Henry E. Frye, Jr. in
Superior Court, Guilford County. Heard in the Court of Appeals 28
Attorney General Roy Cooper, by Assistant Attorney General
John G. Barnwell, for the State.
Mark Montgomery, for defendant-appellant.
In reviewing a trial court's denial of a motion to suppress,
we consider whether the trial court's findings of fact are
supported by the evidence and whether the findings of fact support
the conclusions of law.
(See footnote 1)
Here, Defendant argues that the trial
court erred by denying his motion to suppress because the trial
court's findings of fact are incomplete and irrational in light of
the evidence presented. Because the trial court's findings of fact
are supported by competent evidence, we affirm.
At trial, the State presented evidence that tended to show
that on 12 October 2003, Defendant Henri Navothly Young
(Defendant) and his co-defendants Quenalin Baldwin and TittoTyson Sabb broke into the home of Pablo Jesus Velasquez-Mayonquin
with the intent to rob him. Defendant was armed with a gun and co-
defendant Baldwin was armed with an air gun. When the trio arrived
at Mr. Velasquez-Mayonquin's home, Defendant entered through the
unlocked back door and motioned for his fellow co-defendants to
come inside. Defendant went to a bedroom at the end of the hallway
and instructed Mr. Velasquez-Mayonquin and his girlfriend, later
identified as Sonja Carpio, to give him the dinero.
Baldwin testified that he heard gun shots and a woman scream
and saw Mr. Velasquez-Mayonquin fall to the floor. After the
shooting, the trio ran out the back door. Mr. Velasquez-Mayonquin
was transported to the hospital and died about a week after the
shooting. The medical examiner testified that Mr. Velasquez-
Mayonquin died as a result of six gunshot wounds, specifically the
three gunshot wounds to his chest.
Approximately one month after the shooting, Defendant was in
jail on charges unrelated to Mr. Velasquez-Mayonquin's shooting.
Detectives James O'Connor, Kevin Ray, and Mark Kun suspected
Defendant in Mr. Velasquez-Mayonquin's shooting and wanted to get
access to his pistols. On 14 November 2003, Detectives O'Connor,
Kun, and Ray met with Defendant at High Point Jail and questioned
Defendant about the accidental shooting of his girlfriend.
Detective O'Connor indicated that Detective Kun was a federal
officer working to remove guns from the streets. The detectives
agreed not to charge Defendant with the shooting of his girlfriend
or for possession of a firearm by a felon, if Defendant would turn
over his two guns. During the 14 November 2003 conversation,Detectives did not question Defendant about or mention the homicide
of Mr. Velasquez-Mayonquin. Defendant agreed to turn in his
firearms and arranged for his brother to bring his two pistols to
the police station. Ballistic testing was completed on the guns,
and the testing showed that one of Defendant's pistols, State's
Exhibit 19, fired the fatal shots in the homicide of Mr. Velasquez-
On 1 December 2003, Defendant was charged with the murder of
Mr. Velasquez-Mayonquin. Detective O'Connor presented Defendant
with a written Miranda waiver form and at that time, Defendant
questioned the detectives about the various levels of homicide and
the possible penalties. The detectives called Randy Carroll, an
Assistant District Attorney in Guilford County, to answer
Defendant's questions. According to the detectives, Defendant
appeared to be weighing his options, and thereafter, waived his
Miranda rights. At trial, a taped, redacted account of Defendant's
statement to police that he had shot Mr. Velasquez-Mayonquin was
admitted into evidence and played for the jury.
Following a jury trial, Defendant was found guilty of first-
degree murder, first-degree burglary, and attempted robbery with a
dangerous weapon and was sentenced to life imprisonment without
parole. Defendant appeals contending that: (I) the trial court
erred by denying his motion to suppress his statement to police;
(II) he received ineffective assistance of counsel because trial
counsel did not raise a meritorious constitutional claim; (III) the
trial court committed plain error by failing to arrest judgment on
both of the underlying felonies; (IV) the trial court erred byadmitting into evidence letters attributed to Defendant; and (V)
the murder indictment was inadequate to confer jurisdiction on the
 Defendant first contends that the trial court erred by
denying his motion to suppress his statements to police.
Specifically, Defendant asserts that he was interrogated on 1
December 2003, prior to invoking his Miranda
rights and that the
trial court's findings of fact were incomplete because the trial
court failed to resolve the issue of whether he waived his Miranda
rights prior to being interrogated by the police. We disagree.
As a preliminary matter, we note that Defendant's first
argument refers to the trial court's denial of his motion to
suppress his statement made to police on 1 December 2003. However,
Defendant spends a great deal of time discussing the alleged
erroneous admission of Defendant's guns recovered by police on 14
November 2003. Defendant's motion to suppress did not include a
request to suppress the guns. Therefore, Defendant cannot now
challenge the admission of the guns, and his discussion of such is
in violation of the North Carolina Rules of Appellate Procedure.
N.C. R. App. P. 10(a) (providing that the scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record on appeal . . . .). Accordingly,
Defendant's argument regarding the suppression of the guns will not
 The standard of review to determine whether a trial court
properly denied a motion to suppress is whether the trial court'sfindings of fact are supported by the evidence and whether the
findings of fact support the conclusions of law. State v.
, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699 (citing
State v. Wynne
, 329 N.C. 507, 522, 406 S.E.2d 812, 820 (1991)),
disc. review denied
, 357 N.C. 166, 580 S.E.2d 702 (2003). The
trial court's findings of fact are conclusive on appeal if
supported by competent evidence, even if the evidence is
conflicting. State v. Buchanan
, 353 N.C. 332, 336, 543 S.E.2d
823, 826 (2001) (citations omitted).
In this case, the parties do not dispute whether Defendant was
in custody or whether his statements were voluntary, issues of law
that are reviewed de novo
. See State v. Crudup
, 157 N.C. App. 657,
659, 580 S.E.2d 21, 23 (2003) (noting that whether a person is in
custody is a fully reviewable question of law); State v. Ortez,
N.C. App. 236, 244, 631 S.E.2d 188, 195 (2006) (stating that
conclusions concerning the voluntariness of a defendant's statement
are reviewable de novo
). The parties do dispute the point at which
Defendant waived his Miranda
Since this is not a question
of law, but a question of fact, our review is limited to whether
the findings of fact are supported by competent evidence.
353 N.C. at 336, 543 S.E.2d at 826.
It is well established that Miranda
warnings are required
only when a defendant is subjected to custodial interrogation.
State v. Johnston
, 154 N.C. App. 500, 502, 572 S.E.2d 438, 440
(citing State v. Patterson
, 146 N.C. App. 113, 121, 552
S.E.2d 246, 253 (2001)). The Miranda
decision defines custodial
interrogation as questioning initiated by law enforcement officersafter a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way. Miranda v. Arizona
384 U.S. 436, 444, 16 L. Ed. 2d 694, 706 (1966). Interrogation is
further defined as [a] practice that the police should know is
reasonably likely to evoke an incriminating response from a
suspect. Rhode Island v. Innis
, 446 U.S. 291, 301, 64 L. Ed. 2d
297, 308 (1980).
Defendant provides three arguments to support his
contention that the trial court erred by denying his motion to
suppress his statements made to police on 1 December 2003. First,
Defendant argues that the trial court's findings of fact are
incomplete because the court did not make a finding about whether
Defendant was questioned before the police gave him Miranda
warnings. We disagree. The trial court made the following
findings of fact concerning Defendant's renewed motion to suppress
his statements to police after a voir dire
hearing of Detectives
O'Connor and Ray:
19. Detective James O'Connor advised the
defendant of his Miranda rights, and went over
each of these rights with the defendant.
20. Detective O'Connor indicated that
defendant understood each of those rights.
21. An unsigned form which contained those
Miranda rights was given to the defendant to
review for himself.
22. Defendant at the time did not sign the
waiver or invoke his right to counsel or his
right to remain silent. Defendant indicated
that prior to waiving his rights, he wanted
. . . .
26. Defendant was approximately five to six
feet away from Detective O'Connor when he
contacted Assistant District Attorney Carroll
on his cell phone. Prior to and during this
call, the defendant did not invoke his right
to remain silent.
31. After receiving this information, the
defendant responded that he could receive
life or death. Defendant than said do I live
or die. He then began to say the words life
death repeatedly as he gestured with his
hands as if weighing scales.
32. He subsequently looked directly at the
Detective, and said I want to die, let's
33. At 5:05 p.m., the defendant then executed
the rights waiver form State's Exhibit 55 by
signing and dating it which included waiving
his right to remain silent and his right to
counsel being present.
34. After signing the rights waiver form the
Detectives talked to the defendant about the
evidence against him including the alleged
murder weapon a firearm, and other
information concerning the case.
The trial court's findings of fact demonstrate the sequence in
which Defendant was questioned by police, and as evidenced
specifically by finding of fact number thirty-four, the trial court
found that the police did not question Defendant about Mr.
Velasquez-Mayonquin's homicide until after he waived his Miranda
rights. Accordingly, we find that the trial court's findings of
fact are not incomplete.
 Defendant next argues that to the extent the trial court
found that the police did not interrogate him prior to his waiver
of his Miranda
rights, the evidence does not support such afinding. We disagree.
(See footnote 2)
Defendant assigns error to findings of
fact numbers nineteen, twenty, twenty-one, twenty-two, twenty-six,
thirty-one, thirty-two, thirty-three, and thirty-four. In support
of Defendant's contention that the detectives interviewed him
before reading him his Miranda
rights, Defendant relies on a
portion of Detective Ray's supplemental report, which states:
O'Connor and I interviewed him at the time of his arrest at the
police department. We confronted him with evidence including the
fact that we had the murder weapon. Young was advised of his
rights, and he waived them.
However, the findings of fact contested by Defendant are
supported by the testimony of Detectives O'Connor and Ray.
(See footnote 3)
direct examination in the voir dire
hearing, Detective O'Connor
stated that he:
Got [Defendant] something to drink. We sat
down. Detective Ray was the lead
investigator. He . . . advised [Defendant]
what he was charged with, he was being charged
with this murder. And there wasn't much
reaction from him. He just kind of sat there
. . . . [W]e told him, uh, there was
conversation prior to it, just that we'd like
to talk with him about this. That . . . a
murder, this case is like a big puzzle, and
that he's holding some of the pieces of thepuzzle, and that we wanted a complete and
clear picture of this, and would he talk with
us. And . . . he sat there and said, you
know, kind of nodded his head . . . he was
kind of unclear. Detective Ray advised him of
his Miranda rights.
Additionally, Detective Ray testified that he:
read [Defendant] the Miranda rights, asking
him if he understood each one. And after
those rights were read, he had this question.
Then a phone call was made. His questions were
answered. And after he decided that he wanted
to continue and to speak with us, after he had
decided that he didn't want an attorney and he
decided that he didn't want to be silent, he
signed the waiver. And at that time, I
recorded the time on the form.
Furthermore, in response to counsels' questions, both
Detectives repeatedly testified that Defendant was not questioned
prior to receiving his Miranda
warnings. The statements of
Detectives O'Connor and Ray constitute competent evidence
supporting the trial court's findings of fact, even if conflicting
evidence was also presented. See Buchanan
, 353 N.C. at 336, 543
S.E.2d at 826.
Defendant also assigns error to findings of fact numbers
thirteen and fourteen and conclusions of law numbers one through
six. However, Defendant does not set forth any argument to support
his assignments of error; thus, the assignments of error are deemed
abandoned. N.C. R. App. P. 28(a) (providing that [q]uestions
raised by assignments of error in appeals from trial tribunals but
not then presented and discussed in a party's brief are deemed
We must keep in mind that [w]here the trial judge sits as a
jury and where different reasonable
can be drawn fromthe evidence, the determination of which reasonable inferences
shall be drawn is for the trial judge. Sharp v. Sharp
, 116 N.C.
App. 513, 530, 449 S.E.2d 39, 48 (1994) (internal quotations and
citations omitted)(emphasis in original). Indeed, [t]he trial
judge has the authority to believe all, any, or none of the
. Here, the trial court chose to believe the
detectives' rendition of the facts, rather than Defendant's
assertion that the supplemental report reflected the order in which
he was questioned. Accordingly, we hold that there is competent
evidence to support the findings of fact, and in turn, the findings
of fact support the conclusions of law. Therefore, we affirm the
trial court's denial of the motion to suppress.
 Defendant next argues that he was denied effective
assistance of counsel because his trial counsel failed to raise a
meritorious constitutional claim at trial. We disagree.
We follow a two-part test for determining the merits of an
ineffective assistance of counsel claim:
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985)
(quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d674, 693 (1984)).
Our Supreme Court has stated [c]ounsel is given
wide latitude in matters of strategy, and the burden to show that
counsel's performance fell short of the required standard is a
heavy one for defendant to bear. State v. Fletcher, 354 N.C. 455,
482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L.
Ed. 2d 73 (2002). We presume trial counsel's advocacy to be
within the boundaries
of acceptable professional conduct. State
v. Roache, 358 N.C. 243, 280, 595 S.E.2d 381, 406 (2004).
In this case, Defendant argues that his counsel was
ineffective because he failed to make a motion to suppress the
results of the gun tests, which were obtained by the police through
trickery. Defendant cites Bumper v. North Carolina for the
proposition that consent given as a result of fraud or dishonesty
by the police is not consent. 391 U.S. 543, 550, 20 L. Ed. 2d 797,
804 (1968) (When a law enforcement officer claims authority to
search a home under a warrant, he announces in effect that the
occupant has no right to resist the search. The situation is
instinct with coercion -- albeit colorably lawful coercion. Where
there is coercion there cannot be consent.).
However, for the principles from Bumper to apply, there must
be a search. Before the legality of an alleged search may be
questioned, it is necessary to first determine whether there has
actually been a search. A search ordinarily implies, a quest by an
officer of the law, a prying into hidden places for that which is
concealed. State v. Raynor, 27 N.C. App. 538, 540, 219 S.E.2d
657, 659 (1975) (internal quotation omitted). Our Supreme Court
has found that there is no search within the constitutionalprohibition against unreasonable searches and seizures when the
evidence is delivered to a police officer upon request and without
compulsion or coercion. State v. Reams, 277 N.C. 391, 396, 178
S.E.2d 65, 68 (1970), cert. denied, 404 U.S. 840, 30 L. Ed. 2d 74
(1971), overruled on other grounds, 336 N.C. 268, 443 S.E.2d 68
Defendant's argument hinges on whether the detectives' actions
amounted to compulsion or coercion, because despite the trickery,
Defendant voluntarily delivered the guns to the police, negating a
search and a violation of the Fourth Amendment. See Raynor, 27
N.C. App. at 541, 219 S.E.2d at 659. Defendant contends that the
threat of prosecution for possession of a firearm by a felon and
for the accidental shooting of his girlfriend led Defendant to turn
over the guns out of coercion.
Defendant cites State v. Booker for the proposition that
statements that result from the threat or promise of prosecution
are coercive, so the statements and the evidence discovered as a
result must be suppressed. 306 N.C. 302, 293 S.E.2d 78 (1982).
However, Defendant interprets Booker too broadly. In Booker, our
Supreme Court made clear that the inducement to confess whether it
be a promise, a threat, or mere advice must relate to the
prisoner's escape from the criminal charge against him. Id. at
308, 293 S.E.2d at 82 (emphasis in original). Moreover,
[i]mproper inducement engendering hope must promise relief from
the criminal charge to which the confession relates, not to any
merely collateral advantage. Id. Here, the detectives promised Defendant relief from his
criminal charges relating to the accidental shooting and possession
of a firearm by a felon. Assuming arguendo that engendering hope
was improper, both of the charges mentioned by the detectives were
not related to the murder of Mr. Velasquez-Mayonquin, therefore,
the coercive argument fails. In fact, the detectives were careful
not to mention the murder of Mr. Velasquez-Mayonquin in their 14
November 2003 conversation with Defendant. Furthermore, the
detectives upheld their agreement not to pursue criminal charges
against Defendant for the accidental shooting and possession of a
firearm by a felon.
Even if defense counsel had made the motion to suppress the
guns at trial, based on the evidence in the record, the trial court
would have denied Defendant's motion. We do not consider counsel's
actions at trial as
falling below the objective standard of
Accordingly, we find no error.
 Next, Defendant contends that the trial court committed
plain error by failing to arrest both underlying felonies. The
State agrees with Defendant, but only to the extent that one of the
felonies should be arrested. After the jury convicted Defendant of
first-degree murder, first-degree burglary, and attempted robbery
with a dangerous weapon, the trial court entered judgment against
Defendant on first-degree murder and both underlying felonies. Our
law is clear that if the State secures an indictment for the
underlying felony and a defendant is convicted of both the
underlying felony and felony murder, the defendant will only besentenced for the murder. State v. Dudley, 151 N.C. App. 711,
716, 566 S.E.2d 843, 847 (2002), disc. review denied, 356 N.C. 684,
578 S.E.2d 314 (2003). Thus, the underlying felony must be
arrested under the merger rule. Id. Accordingly, we remand this
case for the trial court to arrest judgment on one of the
 Defendant next argues that the trial court erred by
admitting into evidence letters attributed to Defendant. We
Under our Rule of Evidence Rule 901(b)(2), authentication or
identification of handwriting may be established through nonexpert
opinion as to the genuineness of the handwriting, based upon
familiarity not acquired for purposes of the litigation. N.C.
Gen. Stat. § 8C-1, Rule 901(b)(2)(2005). However, Rule 901 also
provides that authentication or identification may be established
through distinctive characteristics and the like, i.e., through
appearance, contents, substance, internal patterns, or other
distinctive characteristics, taken in conjunction with
circumstances. N.C. Gen. Stat. § 8C-1, Rule 901(b)(4).
Here, Defendant's co-defendant Baldwin testified that he
received three letters from Defendant. Defendant asserts that
Baldwin was not familiar with Defendant's handwriting and was not
sure if Defendant could write; therefore, the State failed to
authenticate the letters. However, familiarity with one's
handwriting is not the only method to authenticate a letter.
In this case, Baldwin testified that Defendant told him onseveral occasions that he would write to him.
(See footnote 4)
explained that one of letters was addressed From Navothly to Q,
which was how Baldwin and Defendant referred to each other.
the letters also had the return address Henri Young, 507 East
Green Drive. In addition to these distinctions, the content of
the letters indicated that Defendant wrote the letters because they
contained intimate knowledge of the crime. Although such evidence
may be circumstantial, we have held:
A writing may be authenticated by the
production of sufficient evidence from which
the jury could find that the writing was
either written or authorized by the person who
the writing indicates was responsible for its
contents. Once evidence from which the jury
could find that the writing is genuine has
been introduced, the writing becomes
admissible. Upon the admission of the writing
into evidence, it is solely for the jury to
determine the credibility of the evidence both
with regard to the authenticity of the writing
and the credibility of the writing itself.
Milner Hotels, Inc. v. Mecklenburg Hotel, Inc.
, 42 N.C. App. 179,
180-81, 256 S.E.2d 310, 311 (1979); see also State v. Davis
N.C. 13, 28, 164 S.E. 737, 745 (That the authorship and
genuineness of letters, typewritten or other, may be proved by
circumstantial evidence, is fully established by the decisions.),
, 287 U.S. 649, 77 L. Ed. 561 (1932).
Accordingly, based on the evidence presented by the State, the
trial court did not err in admitting State's exhibits 70, 71, and
72 into evidence.
 In his final argument, Defendant contends that the short-
form murder indictment was inadequate to confer jurisdiction on the
trial court. This argument is without merit.
Our Supreme Court 'has consistently held that indictments for
murder based on the short-form indictment statute are in compliance
with both the North Carolina and United States Constitutions[,]'
and 'the short-form indictment is sufficient to charge first-degree
murder on the basis of any of the theories, including premeditation
and deliberation . . . .' State v. Stroud, 147 N.C. App. 549,
556-57, 557 S.E.2d 544, 549, cert. denied, 356 N.C. 623, 575 S.E.2d
758 (2002). Accordingly, we find no error.
Affirmed in part, remanded in part for resentencing.
Judges HUNTER and BRYANT concur.
State v. Cockerham
, 155 N.C. App. 729, 736, 574 S.E.2d 694,
(citation omitted), disc. review denied
, 357 N.C. 166, 580
S.E.2d 702 (2003).
Because we find no error in the trial court's findings of
fact, we do not reach Defendant's third contention that if the
police questioned Defendant prior to giving Miranda
warnings, it is
immaterial that they also questioned him after giving Miranda
We note that the trial court's findings of fact state that
Detective James O'Connor advised the defendant of his Miranda
rights, but both detectives testified that Detective Ray advised
Defendant of his Miranda
rights. Defendant did not dispute which
detective advised him of his Miranda
rights, and a mistake in the
detective's name ultimately does not change our analysis.
Defendant spoke with Baldwin when they were in a holding
cell together and when they were both in another county in the same
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