Appeal from the Hendricks Superior Court. The Honorable Mark A. Smith, Judge. Cause No. 32D04-1211-FA-19.
ATTORNEY FOR APPELLANT: Paula M. Sauer, Danville, Indiana.
ATTORNEY FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana, Chandra K. Hein, Deputy Attorney General, Indianapolis, Indiana.
Brown, Judge. Bailey, J., concurs. Robb, J., dissents with separate opinion.
[¶1] Shaheen Zamani appeals his conviction for attempted murder and raises two issues, which we revise and restate as:
I. Whether the trial court abused its discretion in denying his belated request to assert an insanity defense; and
II. Whether the prosecutor committed misconduct during closing argument which resulted in fundamental error.
Facts and Procedural History
[¶2] In November 2010, James Scurlock began dating Margarita Aguirre, who was Zamani's mother, and in January 2011, Aguirre moved into Scurlock's residence in Plainfield, Indiana. Zamani lived in an apartment on the north side of Indianapolis. One day in early October 2012, Zamani arrived at the residence of Scurlock and Aguirre, the three ate dinner and watched television, and Zamani stayed the night. Zamani brought an overnight bag with him which he had previously borrowed from Scurlock.
[¶3] The following day, Zamani and Scurlock drank beer and watched television, and in the evening Zamani, Scurlock, and Aguirre ate dinner and watched the presidential debate on television. Scurlock and Zamani drank beer, and Aguirre drank wine. Scurlock eventually went upstairs to sleep. Scurlock woke up when Aguirre began to yell at him, from the other side of the bed. Zamani went upstairs and tried to claim Aguirre down. After Zamani talked to her, Zamani and Scurlock went downstairs, watched television, and had another beer.
[¶4] At some point, Zamani stood up and walked to the kitchen. When he returned to the living room, he struck Scurlock in the face above the eye, and Scurlock began to bleed. Zamani took a knife from his belt area, placed the knife in the area of Scurlock's left ear, and told Scurlock that " he was here to kill [him]." Transcript at 447. Zamani struck Scurlock a couple more times. Scurlock stood up and went to the kitchen to attempt to stop the bleeding. Zamani asked Scurlock
what he was doing and " told [Scurlock] to get back into the living room, back on the couch," and Scurlock complied. Id. at 448. Zamani continued to hit Scurlock, who went in and out of consciousness and feared for his life.
[¶5] Aguirre came downstairs, and Zamani grabbed her and pushed her onto the couch next to Scurlock. Scurlock attempted to kick Zamani and told Aguirre to run, and she ran outside through the back sliding glass door to a neighbor's house, knocked on their door, and yelled to call the police because her son was attacking Scurlock and that he had a knife. Meanwhile, Scurlock ran up the stairs, and Zamani chased and caught him as he was entering a bedroom. Zamani pushed him down onto the end of the bed and closed and locked the bedroom door. Zamani " reached down towards the end of the bed into a bag or underneath the bed, pulled out some tape and some more knives and told [Scurlock] he was gonna kill [him] again." Id. at 450. Zamani " jump[ed] on top of" him and " had a couple knives in one hand and one knife in the other hand." Id. Scurlock " was just trying to fight him off" and attempted " to grab the two knives in one of [his] hands, tried to break the blades or bend 'em or somethin'." Id. at 450-451.
[¶6] Officers from the Plainfield Police Department responded to the call and heard a person in the house screaming for help. Officers discovered that the front door and the sliding back door were locked, and they kicked in the front door. They entered the house and attempted to enter the bedroom where Zamani and Scurlock were located but discovered the door was locked. They kicked in the bedroom door and observed Zamani holding a knife to Scurlock's throat. Police feared for Scurlock's life, ordered Zamani to drop the knife and release him, and leveled their firearms at Zamani's head. Zamani rolled onto his back and pulled Scurlock on top of him to create " a human shield." Id. at 560, 580. An officer pointed a Taser at Zamani's torso and ordered him to release Scurlock. Zamani initially hesitated and then released him, and he was placed under arrest. When Zamani was moved downstairs, he " appeared to be boasting that [police] were going to shoot him if he wouldn't have picked  Scurlock up in front of his torso." Id. at 587. Scurlock was transported to Methodist Hospital by ambulance, and as a result of the attack he suffered multiple cuts, extensive bruising, and swelling, and received stitches above his eye and ear. The overnight bag was found to contain a pair of jeans, socks, two game controllers, two belts, a necktie, two rolls of packing tape, a rubber mallet, and a pair of scissors.
[¶7] On October 5, 2012, the State charged Zamani with Count I, aggravated battery as a class B felony; and Count II, battery committed by means of a deadly weapon as a class C felony. On November 20, 2012, the State further charged Zamani with Count III, attempted murder, a class A felony, and alleged that he was an habitual offender.
[¶8] Meanwhile, on November 15, 2012, Zamani filed a motion for psychiatric examination to determine his competence to stand trial. The court appointed two mental health professionals, Dr. Stephanie Callaway and Dr. George Parker, to examine him. In a report dated January 18, 2013, Dr. Callaway found that Zamani met criteria for schizophrenia manifested by paranoid thoughts and auditory hallucinations, that at the time of the clinical interview his symptoms were causing severe impairment of his thought process and perceptions of reality, and that it was her opinion that Zamani lacked the present ability to understand the proceedings against him or assist in the preparation of his defense.
In a report dated February 14, 2013, Dr. Parker found that Zamani reported a long history of auditory hallucinations and was experiencing hallucinations around the time of the interview, and that he had a diagnostic impression of schizophrenia and alcohol abuse. Dr. Parker stated his opinion that Zamani was not currently capable of understanding the legal proceedings or assisting counsel in his defense. On February 21, 2013, the court found Zamani not competent to stand trial and committed him to the Division of Mental Health and Addiction.
[¶9] In a letter to the trial court dated June 6, 2013, the Superintendent of Logansport State Hospital certified that Zamani had " attained the ability to understand the proceedings and assist in the preparation of his defense." Id. at 73. The court initially set an omnibus date for July 3, 2013, but later rescheduled it for November 6, 2013. In July 2013, Aguirre submitted a letter together with health services documentation regarding Zamani's history of mental illness to the court. Zamani sent letters to the court stating in part that his attorney was sabotaging his case and that he feared for the safety of his family, his mother, and his life and would like some of kind of protective services.
[¶10] At a hearing on January 9, 2014, Zamani's defense counsel requested that Zamani's competence to stand trial be reevaluated, and the court entered an order that Dr. Callaway and Dr. Parker examine his competency. In a report dated January 31, 2014, Dr. Parker stated that his diagnosis of schizophrenia was based in part on Zamani's long history of treatment for psychotic symptoms including hallucinations, that Zamani reported ongoing auditory hallucinations, that he believed the state hospital psychiatrist's report listing a diagnosis of malingering for Zamani was not accurate, and that it was his opinion that Zamani was capable of understanding the legal proceedings but not capable of assisting counsel. In a report dated March 9, 2014, Dr. Callaway found that Zamani demonstrated an advanced understanding of the role of courtroom personnel and the meaning of important legal concepts, he was aware he could not be forced to testify, he provided a coherent and plausible account of the alleged offense, he identified potential witnesses and evidence in his case, and that he had been offered a plea deal but did not want to accept the terms. The report also stated that " [a]t present [his] psychiatric symptoms are fairly well controlled by his medications," that subtle indicators of mental illness included occasional self-reported hallucinations but this did not impair his ability to communicate or participate in the evaluation, and that it was her opinion that Zamani had sufficient comprehension of the court proceedings and the ability to cooperate and assist in preparation of his defense. Appellant's Appendix at 133. Following a competency hearing, the court issued an order on March 26, 2014, finding that Zamani was competent to stand trial, and setting a jury trial for April 21, 2014. The order found that defense counsel was intimately familiar with the case and had been appointed since its inception.
[¶11] On April 9, 2014, the State filed a motion in limine, moving the court to order Zamani, his counsel, and any of his witnesses not to mention the following matters:
7. Any evidence or argument referring to Defendant's mental state at the time of trial, on the date of offense, or in the past. I.C. 35-36-3-1. Ind. R. Evid. 401.
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12. Any evidence or argument presented referencing Defendant's medication regimen and/or whether Defendant
took his medication on the date of the offense, unless the nature of the Defendant's testimony is to elicit the Defendant's ability to fully perceive, remember, and testify regarding the events of the date of the alleged ...