State v. Carr
| Decision Date | 04 May 2021 |
| Docket Number | Appeal No. 2020AP360-CR |
| Citation | 962 N.W.2d 268 (Table),2021 WI App 41 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Robert CARR, Jr. Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
¶1 Robert Carr, Jr. appeals a judgment of conviction and an order of the trial court denying his motion for postconviction relief. He argues that he presents newly discovered evidence and claims of ineffective assistance of counsel that require an evidentiary hearing or a new trial. We reject Carr's arguments, and accordingly, we affirm.
¶2 Carr was arrested based on allegations that on July 14, 2016, and July 29, 2016, Carr and his son, Nacarrente L. Carr1 sold heroin to a confidential informant (CI). On August 2, 2016, the police executed a lawfully obtained "knock and announce" search warrant for the property where Carr and Nacarrente both resided. In the search, the police recovered cocaine, heroin residue, drug paraphernalia, and a Remington .45 caliber semi-automatic handgun. Carr was charged with two counts of manufacture or delivery of heroin between three and ten grams as a party to a crime, and one count of possession of a firearm by a felon.
¶3 The case proceeded to trial in April 2018. At trial, the State called an investigator in the Oak Creek Police Department assigned as the task force officer for the Drug Enforcement Administration (DEA) operations targeting state and federal drug offenses. The task force involved officers from multiple jurisdictions. The investigator testified about his investigation into Carr in 2016. The task force identified and surveilled Carr's current address on South 6th Street and his prior address on South 19th Street. The investigator explained he could identify Nacarrente and Carr's voices on the calls recorded by the task force because of his contact with the men before and after their arrests.
¶4 The investigator testified that on July 14, 2016, the task force "had scheduled a meeting with a [CI] in order to plan a controlled purchase from Robert Carr." The CI made contact with Carr in a recorded call. The investigator stated that the "initial phone call" was answered by Nacarrente. In the call, the CI made The CI asked to speak with Nacarrente's "daddy" on the phone call, the CI then spoke to Carr, they negotiated the price for the heroin, and Carr "directs [the CI] to his old place [on South 19th Street] as far as the buy location." The State played voice recordings from the phone call setting up the controlled buy on July 14, 2016; on the witness stand, the investigator identified the voices of Nacarrente and Carr.
¶5 The investigator testified about the logistics of the controlled buy after the CI set up the location and time. Before the CI went to the controlled buy, the investigator and another task force officer searched the CI's vehicle and searched the CI's person to make sure there were no other drugs, weapons, or money involved. The investigator gave the CI $250 in prerecorded bills. The DEA team maintained constant surveillance of the CI from the time he was searched and given the money until he went to the buy and then met up with the DEA task force again.
¶6 The investigator continued in his testimony, stating that he had surveillance on Carr's residence on South 6th Street and surveillance on the buy location; he and another officer "followed the informant down to the area down on 19th Street" on July 14, 2016. During the controlled buy, the investigator watched from a distance and identified by sight Nacarrente as the person driving a Chrysler 200, who then entered and exited the CI's vehicle.
¶7 The investigator testified that a similar controlled buy was arranged on July 29, 2016. The CI and Carr arranged that the sale would take place on South 20th Street and Layton Avenue. The investigator explained that after the CI was prepared for the controlled buy, he parked at the arranged location. Over the radio, the investigator was informed by an officer watching Carr's house on South 6th Street that two men left the house in a maroon Blazer.2 Then the investigator and another officer parked near the arranged buy location and saw "Robert Carr and Nacarrente Carr pull their vehicle into the parking lot." The investigator watched the CI's car to make sure he did not exit the vehicle and that no other person interacted with his vehicle until the Carrs arrived. The investigator reviewed surveillance photographs of the Blazer taken that day and identified Nacarrente in the passenger seat.
¶8 The State played audio clips from the recording device worn by the CI, which included a phone call arranging the July 29 buy and the recordings from the controlled buy itself. The investigator identified Carr's voice on the phone. Although trial counsel raised concerns about which voices were identified, the trial court ruled that it was the jury's role to decide whose voices were heard.
¶9 A sergeant in the Wauwatosa Police Department testified about assisting the investigation and surveillance of Carr on July 14, 2016, and July 29, 2016. On July 14, 2016, the sergeant surveilled Carr's former residence on South 19th Street, and then met with the CI and took custody of the heroin purchased in the controlled buy.
¶10 An officer with the Oak Creek Police Department testified about the surveillance he did during the July 29th controlled buy. The officer watched two males leave the house on South 6th Street, get into a maroon Blazer, and drive off; the officer stopped following them at about South 20th Street and Layton Avenue. The officer took photographs of the two men in the Blazer; three photographs were received into evidence.
¶11 Nacarrente testified for the State in Carr's trial. He testified that on July 14, 2016, his father set up by phone the location for a drug deal. He testified that he and his father both dealt heroin during the summer of 2016. Although he was residing in a house on South 6th Street, in Milwaukee, his father arranged a heroin deal on July 14, 2016, near a house in which they used to live on South 19th Street. By the terms of the deal, Nacarrente "was sent to [the CI] to serve him 2 grams for [$]250, but it ended up for another bag -- it was [$]255." And after the sale, Nacarrente "got back into the Chrysler 200 and sped off through the alley."
¶12 Nacarrente further testified that the second controlled buy was on July 29, 2016. He and his father spoke to the CI, but his father set the price and the location of the deal. The second deal occurred in a store parking lot near South 20th Street and West Layton Avenue. He and Carr drove together to the arranged location and met the CI, who was waiting there for them. He explained that Carr drove the vehicle during that sale. Nacarrente also testified that the Remington firearm found in the house on South 6th Street during the search after he and his father were arrested belonged to Carr and had been purchased by Carr and his girlfriend.
¶13 On the witness stand, Nacarrente reviewed photographic evidence from the State and identified Carr "outside the house on 6th Street" and "pulling into the buy location" on July 29. The State again played recordings of phone calls from these drug sales. Nacarrente identified the voices of the CI and Carr, as well as his own voice on a recording of a July 29, 2016 phone call. He also identified his own voice and the CI's voice on a recording of a July 14, 2016 phone call.
¶14 Nacarrente testified that he also had been charged for the same conduct and agreed to testify pursuant to an agreement with the State.
¶15 On cross-examination, trial counsel asked of Nacarrente: "[a]nd while there's no promises that have been made, you are expecting that you would receive some consideration when your cases resolve; correct?" Nacarrente replied, "Yes." On redirect, the State questioned Nacarrente again, this time about his reluctance to testify:
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