GABRIEL ROSAS-CALZADA v. COMMONWEALTH OF KENTUCKYAnnotate this Case
February 4, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
APPEALS FROM FAYETTE CIRCUIT COURT
HONORABLE SHEILA R. ISSAC, JUDGE
ACTION NOS. 99-CR-00621-2 AND 99-CR-01192-2
COMMONWEALTH OF KENTUCKY
** ** ** ** **
JOHNSON, KNOPF, AND SCHRODER, JUDGES.
Gabriel Rosas-Calzada has appealed from two
final judgments and sentences of imprisonment of the Fayette
Circuit Court entered on October 28, 2003, following jury
verdicts finding him guilty of trafficking in marijuana over
five pounds,1 possession of drug paraphernalia,2 and bail jumping
KRS 218A.1421(4) (stating that “[t]rafficking in five (5) or more pounds of
marijuana is: (a) For a first offense a Class C felony. (b) For a second or
subsequent offense a Class B felony.”
in the first degree.3
Having concluded that the trial court did
not err by denying Rosas-Calzada’s motion to suppress evidence
and his motion to sever the bail jumping charge for the purposes
of trial, we affirm.
The record reveals that on April 30, 1999, Edward A.
Hart, a narcotics detective for the Lexington Police Department
(LPD), received a telephone call from the United States Drug
Enforcement Agency (DEA) regarding a suspicious package being
shipped by United Parcel Service (UPS).
UPS had opened the
package because it contained a fictitious address and thus was
When UPS discovered what appeared to be 22
pounds of marijuana in the package, it turned the package over
to the DEA.
UPS also reported that an individual, identifying
himself as Ramos, had contacted UPS and by using the package’s
tracking number had inquired about the package.
telephone number Ramos had given to UPS, Det. Hart contacted him
about a date to deliver the package.
LPD tracked the telephone
number to apartment 303, at 2504 Larkin Road in Lexington.
to the lack of officers on duty that day,4 Det. Hart set the
delivery time for the following Monday.
On Monday morning, May 3, 1999, Det. Hart telephoned
the same number and a female answered.
It was the Friday of Kentucky Derby weekend.
Det. Hart, under the
assumed identity of a manager at UPS, stated that he needed to
speak to Ramos.
A male then answered the phone and Det. Hart
told him that he was a manager at UPS and that he would
personally deliver the package since their trucks were so busy
The man told Det. Hart to deliver the package to
apartment 303, 2504 Larkin Road, and Gabriel would sign for the
At approximately 11:00 a.m. on Monday May 3, Det. Hart
drove to the 2504 Larkin Road address, posing as a UPS manager.
As he parked his vehicle, he noticed an adult Hispanic male and
a juvenile Hispanic male sitting in a vehicle parked nearby.
The two Hispanic males watched Det. Hart as he got out of his
vehicle and placed the package on the ground.
The two Hispanic
males then exited the vehicle and entered the apartment
Det. Hart went to apartment 303 and knocked on the
A female answered the door, and Det. Hart told her he was
there to deliver a package from UPS.
Det. Hart then noticed
that the two Hispanic males, who had been sitting inside the
vehicle in the parking lot, were standing inside the apartment.
Rosas-Calzada came to the door and gave Det. Hart his Kentucky
driver’s license for identification.
Det. Hart set the package
on the floor outside of the apartment and handed Rosas-Calzada
the clipboard to sign for the package.
As Rosas-Calzada stepped
out of the apartment to pick up the package, two LPD officers
Det. Hart and the other officers then secured the
apartment by keeping all the occupants in the front room.
Hart requested identification from Rosas-Calzada, the adult
Hispanic male, and the juvenile Hispanic male.
Before he made
any other attempt to communicate with the suspects, Det. Hart
radioed for a Spanish-speaking interpreter to come to the scene.
The interpreter, Officer Jose Batista, arrived approximately 30
minutes later and explained to the suspects, in Spanish, why the
officers were there.
He explained to them their legal rights
and then asked for their consent to search the apartment.
Rosas-Calzada gave consent to search the apartment, and stated,
“[n]othing else is here.”
As a result of the search, the police seized an
additional seven pounds of marijuana, scales, a spoon, and other
items of drug paraphernalia from Rosas-Calzada’s bedroom closet.
Another box similar to the one Det. Hart had delivered that
morning, bearing the same address in McAllen, Texas, was found
in the bedroom closet.
Subsequently, Rosas-Calzada and his
roommate, Javier Rodriguez-Jimenez,5 and the juvenile were taken
into custody and charged with trafficking in marijuana and
possession of drug paraphernalia.
Rodriguez-Jimenez was the Hispanic adult sitting in the parked vehicle.
On June 7, 1999, a Fayette County grand jury indicted
Rosas-Calzada for trafficking in marijuana over five pounds and
possession of drug paraphernalia.
On October 18, 1999, Rosas-
Calzada filed a motion to suppress all the evidence seized from
his apartment arguing that it was an unconstitutional
After a suppression hearing was held on
November 3, 1999, the trial court denied the motion.6
A jury trial was scheduled on March 14, 2000, but
Rosas-Calzada, who was free on bond, failed to appear.
November 14, 2000, Rosas-Calzada was indicted for bail jumping
in the first degree.7
Rosas-Calzada was arrested on May 1, 2003,
and his trial on the charges in both indictments was scheduled
for September 23, 2003.
On September 15, 2003, Rosas-Calzada filed a motion to
sever the indictments claiming that the bail jumping charge in
the second indictment arose six months after the charges in the
first indictment, and that the two sets of charges were
“completely dissimilar in nature.”
On September 22, 2003, an
order denying Rosas-Calzada’s motion to sever was entered.8
Honorable Lewis G. Paisley presided.
Co-defendant Rodriguez-Jimenez also failed to appear for his trial and was
indicted for bail jumping in the first degree. From every indication in the
record, he has not been apprehended.
Honorable Sheila R. Isaac presided.
At the trial on September 23, 2003, Rosas-Calzada was
found guilty of trafficking in marijuana over five pounds,
possession of drug paraphernalia, and bail jumping in the first
The jury recommended that Rosas-Calzada be sentenced to
six years in prison for trafficking in marijuana, five months in
prison and a $500.00 dollar fine for possession of drug
paraphernalia, and one year in prison for bail jumping.
October 28, 2003, the trial court entered two final judgments
and sentences of imprisonment, accepting the recommendations of
The trial court ordered Rosas-Calzada’s two felony
sentences to run consecutively for a total of seven years’
These appeals followed.9
Rosas-Calzada’s first argument is that the trial court
erred by denying his motion to suppress the evidence seized in
Rosas-Calzada merely argues that since the
police knew of the pending delivery of the marijuana three days
in advance that “[i]t is clear that a warrant could have been
obtained but the decision not to do so was based on it being
Kentucky Derby weekend and the officers decided to make a
controlled delivery of the package the following Monday morning,
relying on the fact they would attempt to obtain consent to
search when they delivered the package to any person in the
apartment willing to sign the receipt for the package.”
By order entered on January 15, 2004, these two appeals were consolidated.
flaw in this argument is that the Commonwealth relied upon the
consent to search exception to the search warrant requirement
and not the exigent circumstances exception.
not even allege that the evidence at the suppression hearing did
not support the trial court’s finding of consent.
Both the Fourth Amendment to the United States
Constitution and Section Ten of the Kentucky Constitution
protect citizens from unreasonable search and seizures conducted
by the state.10
Although a search is considered unreasonable if
it is conducted without a warrant, a search may fall within one
of the recognized exceptions allowing a warrantless search.11
One of these exceptions occurs when the defendant gives his
consent to search.12
It is the Commonwealth’s burden to show
that the defendant voluntarily consented to the search through
the specific circumstances involved in the case.13
Court of Kentucky in Cook v. Commonwealth,14 stated that “[t]he
question of voluntariness is to be determined by an objective
Hazel v. Commonwealth, 833 S.W.2d 831, 833 (Ky. 1992).
Farmer v. Commonwealth, 6 S.W.3d 144, 146 (Ky.App. 1999) (citing Coolidge
v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).
Farmer, 6 S.W.3d at 146 (citing United States v. Watson, 423 U.S. 411, 96
S.Ct. 820, 46 L.Ed.2d 598 (1976)).
Farmer, 6 S.W.3d at 146.
826 S.W.2d 329 (Ky. 1992).
evaluation of police conduct and not by the defendant’s
subjective perception of reality.”15
The appellate court’s standard of review when
addressing a suppression motion is twofold.16
factual findings of the court are conclusive if they are
supported by substantial evidence.
The second prong involves a
de novo review to determine whether the trial court’s decision
was correct as a matter of law” [citations omitted].17
Substantial evidence is evidence of substance and relevant
consequence to induce conviction in the minds of reasonable
At the suppression hearing, both Det. Hart and Officer
Batista testified that Rosas-Calzada was informed of his
Miranda19 rights, in Spanish, and he voluntarily consented to the
search of his apartment.
Rosas-Calzada told the officers that
he was a resident of the apartment and even showed them which
Id. at 331 (citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93
L.Ed.2d 473 (1986)).
Stewart v. Commonwealth, 44 S.W.3d 376 (Ky.App. 2000).
Id. at 380. See also Ornelas v. United States, 517 U.S. 690, 699, 116
S.Ct. 1657, 134 L.Ed. 911 (1996) (stating that the “determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal
[but] . . . a reviewing court should take care both to review findings of
historical fact only for clear error and to give due weight to inferences
drawn from those facts. . .”).
Owens-Corning Fiberglas Corp. v. Golightly, 976 S.W.2d 409, 414 (Ky. 1998)
(citing Kentucky State Racing Commission v. Fuller, 481 S.W.2d 298, 308 (Ky.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
bedroom belonged to him.
Clearly, this evidence was sufficient
to support the trial court’s factual finding of consent and
Rosas-Calzada has not argued otherwise.
Rosas-Calzada also claims the trial court erred when
it denied his motion to sever the indictments for trial.
Calzada argues that the charge of bail jumping arose six months
after the charges of trafficking and possession and that the
charges are not otherwise sufficiently similar in nature to
warrant joining them for the purpose of trial.
RCr 9.12, consolidation of offenses for trial, states:
The court may order two (2) or more
indictments, informations, complaints
or uniform citations to be tried
together if the offenses, and the
defendants . . . could have been
joined in a single indictment,
information, complaint or uniform
citation. The procedure shall be the
same as if the prosecution were under
a single indictment, information,
complaint or uniform citation.
RCr 6.18, joinder of offenses, states:
Two (2) or more offenses may be charged
in the same complaint or two (2) or more
offenses whether felonies or misdemeanors,
or both, may be charged in the same
indictment or information in a separate
count for each offense, if the offenses
are of the same or similar character or
are based on the same acts or transactions
connected together or constituting parts
of a common scheme or plan.
The trial court is afforded broad discretion in
determining whether charges should be joined for a single trial.
The decision to join separate offenses for a single trial shall
not be overturned by the reviewing court without a showing of
prejudice to the defendant and a clear abuse of discretion by
the trial court.20
In the context of a criminal proceeding,
“‘prejudice’” is a relative term meaning that which is
“unnecessarily or unreasonably hurtful.”21
Rosas-Calzada claims he was prejudiced in the eyes of
the jury because the jury would draw the conclusion that since
he jumped bail, he must be guilty of the drug charges.
determining whether a defendant will be prejudiced, it is
important to look at the extent to which evidence of one offense
would be admissible in a trial of the other offense.22
evidence is “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable that it would be without
Our Supreme Court has held that evidence
regarding flight is admissible in a trial because it is relevant
Sherley v. Commonwealth, 889 S.W.2d 794, 800 (Ky. 1994) (citing Rearick v.
Commonwealth, 858 S.W.2d 185, 187 (Ky. 1993)).
Romans v. Commonwealth, 547 S.W.2d 128, 131 (Ky. 1977).
Rearick, 858 S.W.2d at 187 (citing Spencer v. Commonwealth, 554 S.W.2d 355,
358 (Ky. 1977)); Marcum v. Commonwealth, 390 S.W.2d 884, 886 (Ky. 1965)
(citing Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964)).
Kentucky Rules of Evidence (KRE) 401.
to the defendant’s guilt, i.e., a guilty person has the tendency
to act like a guilty person.24
Despite motive, evidence
concerning flight is admissible to establish a presumption of
The trial court is not required to sever the offenses
where, as here, the evidence of one offense would have been
admissible in a trial of the other offense had there been
For the foregoing reasons, the final judgments and
sentences of the Fayette Circuit Court are affirmed.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Gregory D. Stumbo
Wm. Robert Long, Jr.
Assistant Attorney General
Rodriguez v. Commonwealth, 107 S.W.3d 215, 219 (Ky. 2003).
Damron v. Commonwealth, 313 S.W.2d 854, 856 (Ky. 1958) (citing Smith v.
Commonwealth, 242 Ky. 399, 46 S.W.2d 513 (1932); and Allen v. Commonwealth,
302 Ky. 546, 195 S.W.2d 96 (1946)).
Hayes v. Commonwealth, 698 S.W.2d 827, 829 (Ky. 1985) (citing Marcum, 390
S.W.2d at 884).