Timothy L. Sallee, Jr. v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Dec 30 2016, 7:01 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Derick W. Steele Gregory F. Zoeller
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy L. Sallee, Jr., December 30, 2016
Appellant-Defendant, Court of Appeals Case No.
34A02-1606-CR-1341
v. Appeal from the Howard Superior
Court
State of Indiana, The Honorable G. Thomas Gray,
Appellee-Plaintiff Senior Judge
Trial Court Cause No.
34D01-1409-CM-775
Mathias, Judge.
[1] Timothy L. Sallee, Jr. (“Sallee”) was convicted in Howard Superior Court of
Level 6 felony maintaining a common nuisance, Class A misdemeanor
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possession of a controlled substance, and Class A misdemeanor possession of a
synthetic drug or synthetic drug lookalike substance. Sallee appeals his
convictions and argues that a State’s witness lacked a sufficient independent
basis for her in-court identification of Sallee.
[2] We affirm.
Facts and Procedural History
[3] In September 2014, officers assigned to the Kokomo Police Department’s drug
task force were conducting surveillance of a residence located at 506
Tomahawk Boulevard in Kokomo. During their surveillance, the officers
observed numerous vehicles coming and going from the residence.
[4] On September 23, 2014, Officer Derek Root (“Officer Root”) saw Sallee exit
the residence with his girlfriend, Kelly Byers (“Byers”). On that same day,
Officer Root applied for and received a search warrant for 506 Tomahawk
Boulevard.
[5] During execution of the search warrant, officers discovered a cellophane
wrapper containing eleven pills inside the front pocket of a man’s shirt hanging
in the bedroom closet. Ex. Vol., State’s Exs. 11 & 12. The pills were later
identified as the controlled substance buprenorphine. Tr. p. 65. The officers also
discovered a packet of “spice” in a bedroom drawer. Subsequent testing
revealed that the spice contained the controlled substance AB-FUBINACA. In
addition, the officers found several empty spice or synthetic marijuana packets
and two digital scales.
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[6] Sallee was charged with Level 6 felony maintaining a common nuisance and
two Class A misdemeanors: possession of a controlled substance and possession
of synthetic drug or synthetic lookalike substance. A jury trial was held on April
15, 2016.
[7] At trial, Lisa Thieke (“Thieke”) testified that she had rented 506 Tomahawk
Boulevard to Sallee and Byers. Thieke believed that Sallee’s first name was
possibly Tony. However, she stated that she was certain his last name was
Sallee. The State asked Thieke if the person to whom she rented the property,
whom she referred to as Mr. Sallee, was present in the courtroom. Thieke
responded in the affirmative, and when the State asked Thieke to identify that
person, she pointed to the defendant, Sallee. Tr. p. 29. Sallee did not object to
the in-court identification.
[8] The jury found Sallee guilty as charged. The trial court sentenced Sallee to 913
days for the Level 6 felony maintaining a common nuisance conviction. The
court ordered 548 days executed in the Howard County Jail, and 365 days
suspended to probation. Sallee was sentenced to 365 days for the Class A
misdemeanor convictions, to be served concurrent to each other and to the
Level 6 felony conviction. Sallee now appeals his convictions.
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Discussion and Decision
[9] Sallee frames his claim on appeal as one for insufficient evidence to support his
convictions,1 but the only issue argued and supported by citation to authority is
his assertion that Thieke’s in-court identification was unduly suggestive and
violated his due process rights. See Appellant’s Br. pp. 9-11. Sallee asks this
Court to “reverse his convictions as a result of the first time in-court
identification of the witness.” Id. at 12.
[10] Sallee failed to object to Thieke’s in-court identification. Therefore, he must
establish that the in-court identification constitutes fundamental error. Hoglund
v. State, 962 N.E.2d 1230, 1239 (Ind. 2012) (“Failure to object at trial waives the
issue for review unless fundamental error occurred.”). “The fundamental error
doctrine provides a vehicle for the review of error not properly preserved for
appeal.” Id. “In order to be fundamental, the error must represent a blatant
violation of basic principles rendering the trial unfair to the defendant and
thereby depriving the defendant of fundamental due process.” Id. Harm is
found when error is so prejudicial as to make a fair trial impossible. Id.
[11] It is well settled that “[t]here is a degree of suggestiveness which is inherent in
all in-court identifications; the practical necessity of having the appellant sit at
the defendant’s table with defense counsel naturally sets him apart from
1
Concerning his claim that the evidence was insufficient to support his convictions, Sallee argues only that
“due to the impermissible in-court identification, there was insufficient evidence to link Sallee to the
residence subject to the search by the Kokomo Police Department and as such insufficient evidence to
convict Sallee.” Appellant’s Br. at 11-12.
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everyone else in the courtroom.” Jeter v. State, 888 N.E.2d 1257, 1266 (Ind.
2008). “Whether a particular identification procedure rises to a level of
suggestiveness that constitutes reversible error must be determined from the
context of the case.” Id. “Suggestiveness is proscribed only when it can
reasonably be avoided under the circumstances.” Id. “[A]bsent any
extraordinary effort to single out the defendant at trial, in-court identification is
not unduly suggestive where the witness is firm in his identification.” Id.
[12] Sallee claims that “[t]here was no evidence that Thieke had any independent
knowledge of Sallee prior to the in-court identification.” Appellant’s Br. at 10.
However, Thieke testified that she had rented 506 Tomahawk Boulevard to
Sallee and Byers. Thieke was confused about Sallee’s first name and believed
that it was possibly Tony. However, she stated that she was certain his last
name was Sallee. Thieke stated that the person who rented the Tomahawk
residence was present in the courtroom and identified that person as the
defendant, Timothy Sallee. Tr. p. 29.
[13] Nothing about Thieke’s unequivocal in-court identification of Sallee was
unduly suggestive. Thieke explained how she knew Sallee before identifying
him. The State’s purpose in presenting Thieke’s testimony was to establish that
the defendant was an occupant of 506 Tomahawk Boulevard. The State also
presented Officer Root’s testimony that he saw Sallee at the residence on the
date the search warrant was issued and that 506 Tomahawk was the “known
residence” of Sallee and Byers. Tr. p. 71.
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[14] For all of these reasons, we conclude that Sallee has not established that the
trial court committed error, much less error so prejudicial as to make a fair trial
impossible, in admitting Thieke’s in-court identification of Salle. Therefore, we
affirm his convictions for Level 6 felony maintaining a common nuisance, Class
A misdemeanor possession of a controlled substance, and Class A
misdemeanor possession of a synthetic drug or synthetic drug lookalike
substance.
[15] Affirmed.
Robb, J., and Brown, J., concur.
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