People v. Carr

• Docket Number: 358663
• Decision Date: 21 December 2023
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSHUA WAYNE CARR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

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PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
JOSHUA WAYNE CARR, Defendant-Appellant.

No. 358663

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Alpena Circuit Court LC No. 21-009926-FH

Before: GLEICHER, C.J., and SWARTZLE and YATES, JJ.

PER CURIAM.

Defendant transported methamphetamine from Waterford, Michigan, to Alpena, Michigan, to sell it in the area. Following a jury trial, defendant was convicted of possession of methamphetamine with intent to deliver, MCL 333.7401(2)(b)(i); MCL 333.7214(c)(ii), and was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 6 to 20 years' imprisonment. Defendant appeals his conviction as of right and argues that the prosecutor intentionally misrepresented a witness's plea agreement, the trial court erred by admitting a judgment of sentence as evidence of his prior conviction under MRE 404(b), his trial counsel provided ineffective assistance on several grounds, and the trial court's imposition of court costs under MCL 769.1k(1)(b)(iii) should be vacated because MCL 769.1k(1)(b)(iii) is unconstitutional. Discerning no error warranting reversal, we affirm.

I. BACKGROUND

On January 4, 2021, defendant, Nikolas Niezgoda, Erin Bissonette, Chad Kamen, and Mary DeCoster traveled together in DeCoster's van from Alpena to Waterford. Niezgoda testified that defendant had asked him to front the cost of the trip because he was unable to pay for the trip at that time, but defendant stated that he would pay him back with methamphetamine and money from selling methamphetamine that he obtained in Waterford. The group checked in at a hotel after they had arrived in Waterford. A man only known as "B" met the group in the lobby and gave defendant some money, who then gave the money to Niezgoda to pay for the room. The group then went upstairs to their room to get situated, and Niezgoda and Bissonette-Niezgoda's fiance-helped DeCoster wash her laundry. When they returned to the room, defendant and

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Kamen were using methamphetamine in the bathroom, and Niezgoda saw approximately four or five grams of methamphetamine on a scale. Defendant offered the methamphetamine to Bissonette, who took the methamphetamine and ran out of the room. Defendant and Kamen continued to use methamphetamine throughout the remainder of the day.

After checking out of the hotel the following afternoon, the group stopped at a Walmart in Waterford upon defendant's request so that he could pick up $500 that was sent to him as a wire transfer to a bank located inside of the store. DeCoster testified that she picked up the money for defendant because she was the only person who had an ID, and defendant immediately grabbed the money out of DeCoster's hands after she had collected it. The group subsequently returned to the hotel to drop defendant off. Niezgoda testified that defendant had decided to stay in Waterford while everybody else returned to Alpena because defendant intended to purchase more methamphetamine and return to Alpena the following day to sell it in the area. Defendant instructed Niezgoda to pick him and the additional methamphetamine up from Waterford the following day, but he stated that he would return to Alpena by bus if Niezgoda was unable to do so. Defendant then gave Niezgoda and Bissonette an additional seven grams of methamphetamine and instructed them to sell it for him while he was in Waterford, and he stated that he would sell the remaining methamphetamine upon his return the following day.

Niezgoda and Bissonette returned to Alpena on January 5, 2021, with approximately 12 or 13 grams of methamphetamine, and the two immediately began exchanging and selling the methamphetamine at a known drug house. Shortly after the two left the house in another person's car, Niezgoda was pulled over for driving without a license. Police officers searched Niezgoda and discovered approximately half of a gram of fentanyl in his pocket. The officers arrested Niezgoda and took him to the Michigan State Police (MSP) Post in Alpena, where Niezgoda was interviewed by Detective Brian McClelland of the MSP Huron Undercover Narcotics Team (HUNT). As a result of his arrest, Niezgoda was unable to pick defendant up in Waterford, and defendant was forced to return to Alpena by bus.

Shortly after DeCoster had dropped off Bissonette and Niezgoda, Trooper Justin Clark of the MSP pulled DeCoster over for a broken taillight and an improper plate. Trooper Clark testified that when he approached DeCoster's van, he noticed that Kamen was sitting in the backseat and making "furtive gestures." Trooper Clark became suspicious after seeing Kamen's behavior and after DeCoster had reported that the two were coming from a known drug house. Trooper Clark searched DeCoster's van and discovered methamphetamine and fentanyl in Kamen's coat pocket, and he subsequently arrested Kamen.

Based on information regarding defendant's alleged involvement in methamphetamine trafficking provided by Kamen and Niezgoda, the HUNT team obtained a search warrant for "cellular telephone pings" to use the real-time GPS location data of defendant's cell phone to locate defendant. The HUNT team determined that defendant was returning to Alpena on the evening of January 6, 2021, on an Indian Trails bus traveling on US-23 North. After setting up to conduct surveillance, several members of the HUNT team saw the bus pull into the Walmart parking lot, and Detective Joshua Henderson of the HUNT team reported that defendant had gotten off the bus and into a white Ford Escape. Trooper James Everidge of the MSP then stopped the Ford Escape before it left the parking lot, and he noticed defendant making "furtive" movements in the backseat of the car as he approached the car. Trooper Everidge immediately approached defendant in the

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backseat while Detective McClelland and another officer approached the driver and the front passenger, and all three occupants were removed from the car and detained.

Detective Michael Oliver of the HUNT team testified that he searched defendant and discovered a small, black digital scale in defendant's left coat pocket, which had "a white substance" on it that the detective believed was methamphetamine. Members of the HUNT team also located two cell phones during a search of the Ford Escape, one of which was found on defendant's person and the other of which was found on the backseat of the car near where defendant had been sitting. Neither of the other occupants of the car indicated that the cell phones belonged to them. Detective Oliver testified that it was common for individuals trafficking drugs to carry more than one cell phone to keep from being located by law enforcement. While Detectives Trevor Bullock and McClelland of the HUNT team were standing near the Ford Escape, they noticed a plastic "corner-tie baggy" of crystallized methamphetamine on the floor where defendant had been sitting. Detective Bullock discovered additional methamphetamine inside of a children's book that was placed inside of the pouch on the back of the driver's seat as well as in the bottom of the pouch. In total, the HUNT team had recovered approximately 10 grams of methamphetamine. Defendant was subsequently arrested and charged with possession of methamphetamine with intent to deliver.

During pretrial, the prosecution filed notice of its intent to introduce evidence of other wrongful acts under MRE 404(b), to which defendant objected. The other-acts evidence that the prosecution planned to admit were defendant's prior criminal convictions from 2008, 2011, and 2018, for possession and delivery of various controlled substances as proof of defendant's intent to distribute the methamphetamine. After reviewing the parties' written submissions and hearing oral arguments, the trial court found that neither the 2008 nor the 2018 judgments of sentence were admissible under MRE 404(b), but it found that the 2011 judgment was admissible because defendant's 2011 conviction of delivery of a controlled substance was legally relevant to and probative of defendant's intent to deliver the methamphetamine when he possessed it and the prejudicial effect of the evidence did not substantially outweigh its probative value.

At the start of trial, defendant renewed his objection to the admission of the 2011 judgment of sentence under MRE 404(b) and argued, as he did previously, that the judgment was unduly prejudicial. Defendant also argued that the judgment violated his constitutional right to confront and cross-examine witnesses at trial. The trial court held that the judgment was admissible for the same reasons as it had previously stated, and it concluded that defendant's confrontation rights would not be violated because the information provided by the judgment was not testimonial in nature. At the conclusion of Trooper Clark's direct examination, the trial court admitted as evidence a redacted certified copy of the 2011 judgment of sentence. The judgment reflected that defendant had pleaded guilty to delivery of less than 50 grams of a controlled substance, but the judgment did not specify what controlled substance was involved. Trooper Clark stated that he was not familiar with the underlying facts of defendant's 2011 conviction.

Niezgoda, who testified at defendant's trial as part of a plea agreement, was the prosecution's principal witness at trial. The prosecutor stated at the start of her opening statement that Niezgoda was incarcerated in the county jail and that he "was given a deal of sorts in order to testify" against defendant. Niezgoda testified that he was incarcerated at the Alpena county jail because he "got caught with fentanyl" and had pleaded guilty to conspiracy to deliver fentanyl,

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possession with intent to deliver fentanyl, and fourth-offense habitual offender. Niezgoda stated that he knew that his charges "carried up to life" but that, in...