People v. Ray

• Decision Date: 23 September 2004
• Docket Number: No. 03CA0963.,03CA0963.
• Citation: 109 P.3d 996
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Maurice Derrill RAY, Defendant-Appellant.
• Court: Colorado Court of Appeals

109 P.3d 996

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Maurice Derrill RAY, Defendant-Appellant.

No. 03CA0963.

Colorado Court of Appeals, Div. IV.

September 23, 2004.

Certiorari Denied April 11, 2005.¹

Ken Salazar, Attorney General, Matthew D. Grove, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Jonathan D. Reppucci, LLC., Jonathan D. Reppucci, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge LOEB.

Defendant, Maurice Derrill Ray, appeals the judgment of conviction entered on a jury verdict finding him guilty of distribution of a schedule II controlled substance. We affirm.

The facts in this case are largely undisputed. A detective from the Denver Police Department Narcotics Bureau was working undercover as part of a sting operation on the East Colfax corridor. The detective and other Denver police officers were targeting the area of East Colfax and Yosemite, a border between the City and County of Denver and Adams County.

While driving eastbound on Colfax in the City and County of Denver, the detective, who was monitored by fellow officers via audio equipment, observed a man (codefendant), who he suspected was a drug dealer, walking along the sidewalk in Denver. The detective made visual contact with codefendant and yelled "sixty," which is a street term for $60 worth of crack cocaine. Codefendant then motioned for the detective to turn left onto the east side of Yosemite and pull over, which put the detective in Adams County.

Codefendant approached the detective and informed him that he only had "a twenty," that is, $20 worth of cocaine, but that he could get the rest. Codefendant then got into the detective's car and used the detective's phone to call defendant. He asked defendant if he was "up." After receiving an affirmative response, codefendant told the detective to drive to the 1500 block of Beeler Street, also in Adams County, to meet his "guy."

Upon reaching the designated location, codefendant got out of the car and met defendant. Codefendant returned to the car and handed three bags of crack cocaine to the detective, who then gave him three marked $20 bills. The detective watched codefendant walk over to defendant and hand him the bills. The detective then gave an arrest signal to the officers monitoring the activity. Defendant fled, but was soon arrested on Beeler Street, in Adams County. Upon searching him, the officers found $1,140 in cash as well as two of the marked $20 bills. The officers brought defendant to Denver, where he was booked and jailed. Codefendant was also arrested in connection with the drug transaction. Defendant was charged and convicted by a jury of one count of possession of a controlled substance and one count of distribution of a controlled substance.

Prior to trial, defendant filed a motion to dismiss based on improper venue and a motion to suppress based on his extraterritorial arrest in Adams County. The trial court denied both motions, concluding that the venue was proper in Denver pursuant to § 18-1-202(9), C.R.S.2003, and that suppression was not warranted because defendant's extraterritorial arrest was not the result of "willful" conduct on the part of the Denver police.

I. Venue

Defendant contends the trial court erred in denying his motion to dismiss challenging venue in Denver District Court. We disagree.

We first address the parties' respective contentions concerning the applicable standard of review on this issue. Defendant contends that we should apply an abuse of discretion standard. The People contend that the issue is a mixed question of fact and law and that the trial court's findings of fact, which are based on essentially undisputed facts, are entitled to deference and the court's legal conclusion that Denver was an appropriate venue is subject to de novo review. We agree with the People.

A motion for change of venue under § 16-6-102, C.R.S.2003, is committed to the sound discretion of the trial court, and absent a clear abuse of that discretion, its decision will not be disturbed. People v. Coit, 961 P.2d 524, 526 (Colo.App.1997). However, where, as here, the trial court denies a motion to dismiss asserting that original venue in a specific county was improper under § 18-1-202, C.R.S.2003, the court's legal conclusion that the county was an appropriate venue is subject to de novo review. See People v. Matheny, 46 P.3d 453 (Colo.2002)(findings of fact are subject to deference if supported by competent evidence in the record, but conclusions of law are reviewed de novo).

Section 18-1-202 provides in pertinent part:

(1) Except as otherwise provided by law, criminal actions shall be tried in the county where the offense was committed, or in any other county where an act in furtherance of the offense occurred.

....

(9) When a person in one county solicits, abets, agrees, aids, or attempts to aid another in the planning or commission of an offense in another county, the offense is committed and the offender may be tried for the offense in either county, or in any other county in which the principal offense could be tried.

Defendant argues that venue was not proper in Denver because he did not commit any offense or act in furtherance of the offense in Denver, as required by § 18-1-202(1). We disagree and conclude that, based on the undisputed facts, venue was proper in Denver under § 18-1-202(9).

Here, the record supports the trial court's finding that "This drug transaction began, although it began ever so slightly, it still began in Denver. It continued in Adams County." Codefendant's act of motioning the detective to pull over after the detective yelled "sixty" occurred in Denver. Codefendant knew that he did not have $60 worth of cocaine to sell, and he then called defendant to involve him in the transaction. The trial court properly inferred that defendant and codefendant were acting in concert and that codefendant's act of motioning the detective to pull over aided and abetted defendant's offense of distributing a controlled substance. Accordingly, under § 18-1-202(9), venue would have been proper in either Denver or Adams County.

We likewise reject defendant's argument that he was denied his constitutional rights to due process and a fair trial by a jury in the county in which the offense was alleged to have been committed.

Given our conclusion, we need not consider the People's alternative argument that venue was also proper under § 18-1-202(1).

II. Extraterritorial Arrest

Defendant next contends that the trial court erred in denying his motion to suppress on the grounds that his arrest in Adams County was unlawful because it was made by Denver police outside the boundaries of their jurisdiction. We disagree.

In reviewing a trial court's denial of a motion to suppress, we defer to the court's findings of fact and only reverse where the court's conclusions are unsupported by its evidentiary findings or where it applied an erroneous legal standard. See Petersen v. People, 939 P.2d 824, 828 (Colo.1997). The legal effect of undisputed controlling facts is a question of law and subject to de novo review. People v. King, 16 P.3d 807, 812 (Colo.2001).

A police officer is authorized to make an arrest outside of his or her jurisdiction only in limited circumstances. Section 16-3-106, C.R.S.2003; People v. McKay, 10 P.3d 704, 706 (Colo.App.2000). Here, the People concede that Denver police officers were acting outside of their statutory authority under § 16-3-106 when they arrested defendant in Adams County.

An arrest in violation of § 16-3-106 does not, however, mandate suppression of evidence obtained therefrom unless the statutory violation is either willful or so egregious as to violate the defendant's constitutional rights. See People v. Vigil, 729 P.2d 360, 366-67 (Colo.1986); People v. McKay, supra, 10 P.3d at 707. Further, "the facts with respect to the reasons for and nature of extraterritorial actions of police officers are highly important in determining whether suppression of evidence is required when police officers make arrests outside the boundaries of their jurisdictions." People v. Vigil, supra, 729 P.2d at 367.

A. Willful Disobedience

First, we agree with the trial court that the officers here did not act in willful disobedience of § 16-3-106.

As noted, a finding of willful disobedience of § 16-3-106 is closely tied to the particular facts of a case and the nature and circumstances of the police actions in question. See People v. Vigil, supra. Although Colorado courts have not previously addressed the issue, we agree with the trial court that willfulness is properly analyzed in this case by considering that defendant's extraterritorial arrest was made in the context of an undercover operation.

Further, under the undisputed facts of the undercover operation here, the trial court properly concluded that defendant's extraterritorial arrest in violation of the statute was not willful. See State v. Filipi, 297 N.W.2d 275 (Minn.1980)(extraterritorial arrest not unlawful where police had valid basis for arrest based on undercover drug operation); see also People v. Meyer, 424 Mich. 143, 379 N.W.2d 59 (1985)(noting unique characteristics of undercover drug operations and refusing to dismiss felony complaint sworn by undercover officer who bought drugs outside of his jurisdiction at defendant's invitation).

The record supports the trial court's finding that the detective did not travel to Adams County of his own volition, but rather was directed there by codefendant. Further, the record supports the trial court's findings that, if the detective had not followed codefendant's direction, he might have compromised his cover and the operation and that the fast-moving pace of the events here, particularly in light of the undercover nature of the operation, prevented the detective from calling in assistance from Adams County law enforcement officials until after the drug...