                                                                May 29 2015, 8:39 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Paula M. Sauer                                            Gregory F. Zoeller
Danville, Indiana                                         Attorney General of Indiana
                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Shaheen Zamani,                                           May 29, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          32A05-1406-CR-264
        v.                                                Appeal from the Hendricks Superior
                                                          Court

State of Indiana,                                         The Honorable Mark A. Smith,
                                                          Judge
Appellee-Plaintiff.
                                                          Cause No. 32D04-1211-FA-19




Brown, Judge.




Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                   Page 1 of 28
[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.

      We affirm.


                                       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,



      Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015   Page 2 of 28
      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

      Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015    Page 3 of 28
      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.




      Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015   Page 4 of 28
[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.




      Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015   Page 5 of 28
[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


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015      Page 6 of 28
       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.
                                                      *****
               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
               offense. Ind. R. Evid. 401, 404(a); I.C. 35-1-3-5, 35-36-3-1.

       Appellant’s Appendix at 142-143.

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015               Page 7 of 28
[12]   On April 16, 2014, the court held a final pretrial hearing at which it heard

       argument regarding the State’s motion in limine. Defense counsel stated that

       Zamani had indicated to him “that he believes he’s insane,” “[t]his was

       something that [was] first raised . . . April 3rd when we were at New Castle,”

       “[a]t that point, he indicated to me that . . . he hears voices,” and “it was at that

       point that he first raised multiple voices that hadn’t been raised in any of his

       competency evaluations.” Transcript at 252-253. The State responded that

       Zamani’s report of hearing voices was not a new allegation of which defense

       counsel just became aware as it was reflected in the competency reports. The

       court stated that it was taking defense counsel’s request as one for leave to file a

       notice of an insanity defense and that it would take the request under

       advisement. The following day, the court entered a final pre-trial order which

       in part denied Zamani’s request for leave to file a belated notice of insanity

       defense, and an order granting the State’s motion in limine.


[13]   Zamani’s jury trial was held on April 21 through 23, 2014. During closing, the

       prosecutor commented on the items found in Zamani’s overnight bag and

       argued Zamani brought the items to kill Scurlock, “[t]here’s no other

       explanation for it,” that Zamani was the person who attacked Scurlock, and

       that “[t]here’s been no alternative theory.” Transcript at 846, 877. The jury

       found Zamani guilty of aggravated battery, battery, and attempted murder, and

       it found him to be an habitual offender. Following a sentencing hearing, the

       court vacated Zamani’s convictions for aggravated battery and battery,

       sentenced Zamani to thirty-five years in the Department of Correction for


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015     Page 8 of 28
       attempted murder, and enhanced the sentence by thirty years for the habitual

       offender finding, for an aggregate sentence of sixty-five years.


                                                    Discussion

                                                          I.


[14]   The first issue is whether the trial court abused its discretion in denying

       Zamani’s belated request to assert an insanity defense. Ind. Code § 35-36-2-1

       provides:

               When the defendant in a criminal case intends to interpose the defense
               of insanity, he must file a notice of that intent with the trial court no
               later than:
                        (1) twenty (20) days if the defendant is charged with a felony; or
                        (2) ten (10) days if the defendant is charged only with one (1) or
                        more misdemeanors;
               before the omnibus date. However, in the interest of justice and upon
               a showing of good cause, the court may permit the filing to be made at
               any time before commencement of the trial.

[15]   The omnibus date in this case was ultimately set for November 6, 2013. Thus,

       under the statute, Zamani was required to file his notice of an insanity defense

       by October 17, 2013. The court held a final pretrial hearing on April 16, 2014,

       at which it heard argument on the State’s motion in limine, and at the hearing

       Zamani’s counsel verbally indicated that Zamani stated that he believes he is

       insane.


[16]   As Zamani attempted a late filing of the required notice, the trial court had

       discretion whether to accept it. See Ankney v. State, 825 N.E.2d 965, 970 (Ind.

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015            Page 9 of 28
       Ct. App. 2005) (“Ankney attempted a late filing of the required notice, and,

       thus, the trial court had discretion whether to accept it.”) (citing Eveler v. State,

       524 N.E.2d 9, 11 (Ind. 1988) (holding that, after the omnibus date, “the trial

       court’s discretion controlled” and “[s]uch discretion is exercisable upon a

       showing of good cause by a defendant who has missed the deadline”)), trans.

       denied.


[17]   The State’s motion in limine requested the court to order that Zamani not

       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.[1]
                  Ind. R. Evid. 401.[2]




       1
           Ind. Code § 35-36-3-1(a) relates to competency and provides:

                  If at any time before the final submission of any criminal case to the court or the jury
                  trying the case, the court has reasonable grounds for believing that the defendant lacks the
                  ability to understand the proceedings and assist in the preparation of a defense, the court
                  shall immediately fix a time for a hearing to determine whether the defendant has that
                  ability.
                  The court shall appoint two (2) or three (3) competent, disinterested:
                           (1) psychiatrists;
                           (2) psychologists endorsed by the Indiana state board of examiners in
                           psychology as health service providers in psychology; or
                           (3) physicians;
                  who have expertise in determining competency.
                  At least one (1) of the individuals appointed under this subsection must be a psychiatrist
                  or psychologist. However, none may be an employee or a contractor of a state institution
                  (as defined in IC 12-7-2-184). The individuals who are appointed shall examine the
                  defendant and testify at the hearing as to whether the defendant can understand the
                  proceedings and assist in the preparation of the defendant’s defense.
       2
           Ind. Evidence Rule 401 relates to evidence that is relevant.


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                              Page 10 of 28
                                                          *****
                  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
                  offense. Ind. R. Evid. 401, 404(a);[3] I.C. 35-1-3-5,[4] 35-36-3-1.

       Appellant’s Appendix at 142-143.


[18]   During the April 16, 2014 final pretrial hearing on the State’s motion in limine,

       the following exchange occurred with respect to paragraph 12 of the motion:

                  Defense Counsel: Your Honor, with respect to uh number 12, the
                  simple fact is that my client was not taking medication on the night in
                  question. Uh, so with respect to 401 and 404(a), it is inherently
                  relevant. Uh Indiana Code [§ 35-1-3-5] was repealed so I don’t even
                  know why that’s cited. It’s bad law. With respect to [Ind. Code § 35-
                  36-3-1], that boils down to the ability to recall so I think that this
                  motion should not be granted. Um he wasn’t on his medications and
                  the truth of the matter is he’s still not on medications that he needs
                  today but it’s inherently relevant to what happened that night.
                                                          *****
                  State: I would disagree that it was inherently relevant um you know,
                  it’s similar to sort of you know (inaudible) intoxication kind of thing.
                  Um the fact of the matter is that the defendant not being on
                  medication, if it rises to the level of criminal culpability then there’s a
                  remedy for that and we haven’t seen that remedy filed in this particular
                  case. So the basis by which they’re trying to get this in is to sort of
                  have some sort of quasi um insanity defense, it doesn’t rise to the level
                  of what’s required by the statute. That’s why it’s not relevant um as to
                  whether or not the defendant was in fact on his medication on the



       3
           Ind. Evidence Rule 404(a) relates to character evidence.
       4
           This statutory provision was repealed by Pub. Law No. 2-1995 § 140.


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015             Page 11 of 28
        night in question. I mean if they, if that’s designed to say that the
        defendant is somehow, should be somehow held blameless for this
        particular offense because he wasn’t on his medication, well that’s not
        the sufficient standard that’s articulated in the insanity statute.
                                               *****
        Defense Counsel: . . . and before we get off twelve, your Honor, with
        respect to insanity, I think that my client uh after all these evaluations,
        what have you, has indicated to me that he believes he’s insane. I
        don’t know that his illness rises to that level. Hence, it has not been
        filed and addressed with this Court. I would like the opportunity to
        file a verdict form of guilty, but mentally ill, because I do believe he is
        mentally ill.
        Court: How can you do (that) without complying with an insanity
        statute? The insanity statute requires me to do that. I mean the
        insanity statute requires a several step procedure that has to be filed
        before I can submit a verdict form to allow the jury to consider guilty
        but mentally ill. It hasn’t been done in this case.
        Defense Counsel: Your honor, my client would like to state to the
        Court that he believes he’s insane. This was something that first raised
        uh April 3rd when we were at New Castle. At that point, he indicated
        to me that uh he hears voices. Is that right, [Zamani]?
        Zamani: Yes, sir, also visual stuff.
        Court: I’ve heard the evidence regarding competence to stand trial.
        That sounds like the road that we’re going down again. My question
        is that if we were gonna file a notice of insanity defense, why didn’t we
        file one April the 4th instead of less than five days before trial or
        however many days we are before trial, a week less, less than a week
        before trial?
        Defense Counsel: Yeah, I would agree with my client that our focus
        was more on the evidence, but also your Honor . . .
        Court: (Interposing) The focus was more on the evidence? I mean
        that’s exactly what insanity is, is about.
        Defense Counsel: Your Honor, it was at that point that he first raised
        multiple voices that hadn’t been raised in any of his competency
        evaluations.



Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015            Page 12 of 28
        Court: Now or at that time of the offense? Insanity’s at the time of the
        offense. We’re talking about competency. Competency deals with
        now, competency to stand trial. Insanity’s a defense at the time of the
        offense. This is the first time that he’s raised it with you . . .
        Defense Counsel: (Interposing) April 3rd.
        Court: (Interposing) The case was filed December of 2011 and we’re
        just now raising it.
        Defense Counsel: April 3rd, 2014.
        Zamani: (inaudible) should never have arised (sic).
        State: I believe that, that’s issue was contained at one of the
        competency evaluations as well.
        Court: What do you mean?
        State: The hearing of voices. I mean to say that, I mean I would
        object to any sort of filing at this particular um state of where we’re at
        in the process of insanity but specifically to whether or not the
        defendant was hearing voices, that was stated in one of the
        competency evaluations a long time ago that the defendant, well now
        he, so I a mean based on that, this is not a new allegation um that the
        defense is trying to posit it that they just became aware of. This is
        something that has been alleged and is even reflected in the
        competency reports.
        Defense Counsel: Due respect, your Honor, but uh I’ve not had the
        ability to consult with my client when he’s been on the same
        medication that Dr. Calloway [sic] uh when she observed him he was
        on. There was something raised I believe in a competency evaluation
        but it was to my recollection, discredited. So you know, I understand I
        keep harping on the competency but the simple truth of the matter is
        I’ve not been able to interact with my client under the same set of
        variables that Dr. Calloway [sic] did when she said he was competent.
        And then that’s the only evaluation that has come out to that he was
        competent, other than the Logansport report where they said they
        restored his competency.

Transcript at 250-255. A short time later, the following exchange occurred

regarding paragraph 7 of the State’s motion in limine:


Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015           Page 13 of 28
           Defense Counsel: . . . I’ve already explained to the Court how I felt
           about the third person part of it but along with number seven, we are
           getting to an issue on the A felony of specific intent. Um and I just
           believe, you know, that I should be allowed to explore and in trying to
           talk to my client about his mindset on the date in question, what was
           going on. With that and I feel somewhat precluded uh with both
           four[5] and seven from being able to do that, I mean particularly in
           seven. I don’t understand how I couldn’t present any argument
           concerning his mental state uh on the date of offense in a case where
           we’re talking about what his specific intent was that night.
                                                    *****
           Court: . . . What is number seven designed to address? . . . I mean is it
           the broader mental health issue or?
           State: It is and that was [Ind. Code § 35-36-3-1] . . . that any claim of
           insanity or mental health on that night or (inaudible) in the past or at
           the time of trial. . . . It’s similar to what we were talking about before
           in that it’s trying . . . to get in sort of sympathetic evidence that doesn’t
           rise to the level of an actual defense. My client’s mentally ill but he
           wasn’t insane. Well that’s not relevant. If he has a mental illness, if
           he’s bipolar where he suffers from depression whether any of those,
           um that’s the only reason why it would be offered at that point would
           be to somehow make him a sympathetic person, which clearly is not
           relevant to whether or not he committed the charges in question.
                                                    *****
           Court: Just in summary, this is what I’m going to be reviewing this
           evening. [Defense counsel], I’m taking your request as leave to file a
           notice of insanity.
           Defense Counsel: My client has asked me to raise that so I will this
           afternoon be working on that.
           Court: Well . . .
           State: (Interposing) We would object to that.
           Court: I understand. I’m gonna make a ruling. I guess my suggestion
           is not to, I’ve taken your request as a request for leave to file the notice



5
    Paragraph 4 of the State’s motion in limine related to evidence of self-defense.


Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                 Page 14 of 28
               of insanity. I would not spend the time filing that until I make the
               ruling on . . . whether or not I’m gonna allow you that leave or not. . .
               .

       Id. at 257-258, 262-263, 269.


[19]   The next day, the court issued a final pre-trial order providing in part:

               Defendant’s request for leave to file a Notice of Insanity defense is
               denied. The case has been pending for approximately 17 months.
               There have been 4 prior competency evaluations by 2 different doctors.
               Notice of an insanity defense was required to be filed 20 days prior to
               the omnibus date. Defendant has not shown good cause for relief
               from the statute. Defendant first made the request for leave to file the
               insanity defense less than 7 days before the start of trial leading into a
               holiday weekend, leaving the Court an inadequate opportunity to
               secure the attendance of medical providers to testify at trial as required
               by statute.

       Appellant’s Appendix at 179.


[20]   Zamani contends that he made a showing of good cause for asserting a belated

       notice of insanity and that an insanity defense is necessary in the interest of

       justice. Specifically, he argues that the trial had not yet begun, that neither the

       court nor the State could have been surprised that Zamani’s mental illness

       would be key to his defense, and that from the outset of the proceedings his

       mental illness was the central issue. In support of his argument, Zamani points

       in part to the competency hearings, the various reports from mental health

       professionals prepared to assess his competency to stand trial, the documents

       his mother submitted to the court, and the letters he sent to the court.




       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015          Page 15 of 28
[21]   In arguing that he showed good cause for filing a belated notice, Zamani states:

       “Unfortunately, it appears that trial counsel was so preoccupied with the issue

       of Zamani’s incompetence, and his ongoing struggle to establish a viable

       working relationship with his client, that counsel’s actual notice of intent to

       raise an insanity defense was not given until the eve of trial.” Appellant’s Brief

       at 20. In arguing that an insanity defense is necessary in the interest of justice,

       Zamani asserts that “[t]he prolonged consideration of Zamani’s competence put

       everyone involved on notice that his sanity might also be at issue,” that “[i]f Dr.

       Callaway and Dr. Parker had been appointed to assess Zamani’s sanity, any

       delay would likely have been brief” and “[t]he State would not have been

       prejudiced,” “[t]he evidence established that with no apparent provocation,

       Zamani suddenly and viciously attacked Scurlock,” and that, “[w]ithout the

       insanity defense, there was no explanation for Zamani’s strange behavior, and

       the jury had no option but to find him guilty.” Id. at 21-22.


[22]   The State maintains that Zamani did not make a showing of good cause under

       the statute and thus the court properly denied his belated notice of insanity,

       noting that any bases for asserting an insanity defense were well known long

       before the period for timely filing a notice. The State argues that Zamani first

       alleged he did not file a timely notice of insanity because he had recently

       developed auditory hallucinations, but this allegation is contrary to the record

       and had been discussed in Dr. Callaway’s January 18, 2013 report and Dr.

       Parker’s February 14, 2013 report. The State further notes that Zamani also

       alleged he had shown good cause because he could not tell his attorney his


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015    Page 16 of 28
       version of events until April 3, 2014, but that the record indicates Zamani’s

       version of the incident was known well before trial and was set forth in Dr.

       Parker’s February 14, 2013 report and Dr. Callaway’s March 9, 2013 report.

       The State also asserts that, even assuming Zamani was unable to convey his

       version of events to his attorney, there is no requirement that a defendant’s

       version be known in order to plead insanity. The State further contends that the

       litigation of Zamani’s competency to stand trial highlights that he and his

       attorney were fully aware of his mental state, he “sought to parade the evidence

       of his competency in front of the jury to ask them to speculate about whether he

       was capable of forming the requisite intent,” and that “Zamani only opted for

       attempting to file a belated notice when he realized the trial court would not

       allow him to present this amorphous defense about his mental illness.”

       Appellee’s Brief at 20.


[23]   In his reply brief, Zamani argues that “[t]he primary purpose of the insanity

       statute is to put the State on notice as to the nature of an accused’s intended

       trial defense” and that, “[a]s established by the record in this case, the State was

       on notice well in advance of trial as to Zamani’s psychiatric issues.”

       Appellant’s Reply Brief at 2.


[24]   The record shows that the possible bases upon which Zamani could allege an

       insanity defense, if he and his counsel concluded it was warranted, were known

       to him and his counsel well in advance of the date twenty days before the

       scheduled omnibus date of November 6, 2013. Zamani was charged on

       October 5, 2012, and in her January 18, 2013 competency report, Dr. Callaway

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015    Page 17 of 28
       found that Zamani met criteria for schizophrenia manifested by paranoid

       thoughts and auditory hallucinations, and at the time of the clinical interview,

       he had severe impairment of thought processes and perceptions of reality.

       Further, in his February 14, 2013 report, Dr. Parker found that Zamani

       reported a long history of auditory hallucinations, was experiencing

       hallucinations around the time of the interview, and that Zamani continued to

       show symptoms of ongoing auditory hallucinations. We also note that five

       days before the April 21, 2014 trial date, with regard to Zamani’s claim of

       insanity, his defense counsel stated, “I don’t know that his illness rises to that

       level. Hence, it has not been filed and addressed with this Court. I would like

       the opportunity to file a verdict form of guilty, but mentally ill, because I do

       believe he is mentally ill.” Transcript at 252.


[25]   With respect to evidence regarding any mental illness of which Zamani may

       have suffered at the time of the offense, and in particular evidence related to his

       statement that he had auditory hallucinations, his defense counsel’s statements

       were simply not true when, at the April 16, 2014 hearing, counsel stated that

       “[t]his was something that [was] first raised [on] April 3[, 2014] when we were

       at New Castle,” that “[a]t that point, [Zamani] indicated to me that uh he hears

       voices,” and “it was at that point that [Zamani] first raised multiple voices that

       hadn’t been raised in any of his competency evaluations.” Id. at 252-253.


[26]   And, in addition to the reports discussed above, Dr. Parker’s January 31, 2014

       report stated that Zamani reported ongoing auditory hallucinations, and Dr.

       Callaway’s March 9, 2014 report stated that Zamani described a history of

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015    Page 18 of 28
       hallucinations since age seventeen or eighteen years old, that the voices were

       decreased with his medications but still occurred on a fairly regular basis, at

       times he described difficulty distinguishing between his hallucinations and his

       own thoughts, and that his hallucinations were most bothersome when he was

       alone in his cell.


[27]   With respect to the statements of Zamani’s defense counsel that he had not had

       the ability to consult with Zamani while he was on medication and the

       suggestion that Zamani could not or did not communicate his version of events

       to his defense counsel, the record shows that Zamani’s version of the events of

       the October 2012 altercation was set forth to an extent in the reports prepared

       by Dr. Parker and Dr. Callaway. Dr. Parker’s February 14, 2013 report stated

       in part that Zamani said that he estimated he drank alcohol once or twice a

       month prior to his arrest, that he was last intoxicated on the day of his arrest,

       and that he believed alcohol “definitely played a role” in the incident.

       Appellant’s Appendix at 65. The report also stated that, when Zamani was

       asked why he had been arrested, he replied “‘cause me and this guy were

       fighting.” Id. at 67. Dr. Parker’s January 31, 2014 report indicated that, when

       Zamani was asked about the outcome of the proceedings against him, he

       replied “I’ll probably get found guilty of something, but definitely not attempted

       murder. I didn’t try to kill no one. I was defending a woman that was in

       distress.” Id. at 126. Dr. Callaway’s March 9, 2014 report stated that Zamani

       “provided a coherent and plausible account of the alleged offense,” that he

       “identified potential witnesses and evidence in his case,” that he “indicated he


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015     Page 19 of 28
       had been offered a plea deal but he did not want to accept the terms,” that,

       “[a]ccording to [Zamani], he had read the depositions and he had written out

       his defense strategies including questions for witnesses,” and that he “then

       asked multiple questions regarding the legal process and how [sic] pros and

       cons of a bench trial versus a jury trial.” Id. at 132.


[28]   To the extent Zamani points to the various reports prepared to assess his

       competency to stand trial and the documents submitted by his mother, the

       documents and other evidence related to his history of mental illness gave him

       and his defense counsel adequate time to prepare and file a notice of intent to

       assert an insanity defense if it were desired and merited.


[29]   Based upon the record, we cannot say the trial court abused its discretion in

       determining that Zamani did not demonstrate good cause as to why his late

       notice should be accepted and thus in denying his belated, verbal motion to

       assert an insanity defense.6 See Ankney, 825 N.E.2d at 970 (holding that the

       defendant did not demonstrate and our review of the record did not reveal that

       the defendant made a showing of good cause as to why his late notice should be

       accepted, and as such the trial court did not abuse its discretion when it denied

       the defendant’s belated, oral motion to assert an insanity defense) (citing Eveler,




       6
        Because we find the court did not abuse its discretion in finding that Zamani did not demonstrate good
       cause as to why his late notice should be accepted, we need not address whether the court abused its
       discretion in denying Zamani’s request for leave to file a late notice based on “the interest of justice.” See
       Ind. Code § 35-36-2-1 (“However, in the interest of justice and upon a showing of good cause, the court may
       permit the filing to be made at any time before commencement of the trial.”) (emphasis added).

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                           Page 20 of 28
       524 N.E.2d at 11 (holding the trial court did not abuse its discretion in denying

       the defendant’s belated motion to assert an insanity defense where the

       defendant did not make showing of good cause as required by statute)); see also

       Dudley v. State, 480 N.E.2d 881, 895 (Ind. 1985) (holding that, since trial had

       begun and the defendant failed to offer evidence rising to the level of good

       cause showing why the defense was not previously raised, the trial court

       properly denied the appellant’s motion for psychiatric examination, and noting

       the trial court had observed that the information learned by the defendant’s

       counsel was previously available and could not be considered newly

       discovered). Zamani has not demonstrated he is entitled to reversal of his

       conviction or a new trial on this basis.7


                                                             II.


[30]   The next issue is whether the prosecutor committed misconduct during closing

       argument which resulted in fundamental error. Zamani asserts that certain

       statements by the prosecutor could reasonably have been interpreted by the jury

       as an invitation to draw an adverse inference from Zamani’s failure to testify

       and that his Fifth Amendment privilege against self-incrimination was violated.


[31]   In reviewing a properly preserved claim of prosecutorial misconduct, we

       determine: (1) whether the prosecutor engaged in misconduct, and if so, (2)




       7
         While the issue of whether trial counsel rendered ineffective assistance may be raised in a subsequent post-
       conviction proceeding, that is not the issue before us today. Our review is for an abuse of discretion in the
       trial court’s ruling on Zamani’s belated request.

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                            Page 21 of 28
       whether the misconduct, under all of the circumstances, placed the defendant in

       a position of grave peril to which he should not have been subjected. Cooper v.

       State, 854 N.E.2d 831, 835 (Ind. 2006). Whether a prosecutor’s argument

       constitutes misconduct is measured by reference to case law and the Rules of

       Professional Conduct. Id. The gravity of peril is measured by the probable

       persuasive effect of the misconduct on the jury’s decision rather than the degree

       of impropriety of the conduct. Id.


[32]   When an improper argument is alleged to have been made, the correct

       procedure is to request the trial court to admonish the jury. Id. If the party is

       not satisfied with the admonishment, then he should move for mistrial. Id.

       Failure to request an admonishment or to move for mistrial results in waiver.

       Id. Here, Zamani did not object to the statements of the prosecutor during

       closing argument. Thus, he has waived the issue.


[33]   Where, as here, a claim of prosecutorial misconduct has not been properly

       preserved, our standard of review is different from that of a properly preserved

       claim. Id. More specifically, the defendant must establish not only the grounds

       for the misconduct, but also the additional grounds for fundamental error. Id.

       Fundamental error is an extremely narrow exception that allows a defendant to

       avoid waiver of an issue. Id. It is error that makes “a fair trial impossible or

       constitute[s] clearly blatant violations of basic and elementary principles of due

       process . . . present[ing] an undeniable and substantial potential for harm.” Id.




       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015   Page 22 of 28
[34]   Zamani argues that the prosecutor impermissibly commented on his failure to

       testify and points to the following portions of the prosecutor’s statements:

               The idea that I talked to you about was why is it that you bring in your
               overnight bag a mallet, clear packing tape, gloves, necktie? He wasn’t
               going to a ball, he didn’t have a job interview. What were the gloves
               for? What was the mallet for? What was the packing tape for? Did
               the packing tape just stay in the bag the entire time? No. During the
               attack and in the photographs, we see that the packing tape is out in
               the room on the floor. He was attempting to use it. He brought these,
               these items, the mallet and the packing tape to kill Jim Scurlock.
               There’s no other explanation for it. There’s no evidence before you
               that would suggest otherwise, none.

       Transcript at 846. Later, in rebuttal argument, the prosecutor argued: “Even

       [Aguirre’s] own version is that the injuries that were sustained to Jim Scurlock

       were a result of the attack by the defendant upon him. He’s the one that injured

       Jim Scurlock and brutally attacked him. There’s been no alternative theory.”

       Id. at 876-877.


[35]   Zamani argues that a reasonable jury could have interpreted these statements as

       a suggestion to infer guilt from Zamani’s silence and that this is especially so

       because the court did not instruct the jury that Zamani was under no duty or

       obligation to testify and that his failure to testify was not to be considered in

       determining guilt. The State maintains that it is clear the prosecutor’s

       comments were a response to Zamani’s theory of defense, that the comments

       were in response to Zamani’s assertion that he was merely reacting to

       Scurlock’s alleged assault of Zamani’s mother, and that Zamani was not merely




       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015        Page 23 of 28
       reacting to a tense situation but rather brought items with him to the house for

       the purpose of killing Scurlock.


[36]   The Fifth Amendment to the United States Constitution provides that no

       person “shall be compelled in any criminal case to be a witness against

       himself.” “In determining whether a prosecutor’s comments are error,

       fundamental or otherwise, we look to see if the comments in their totality are

       addressed to the evidence rather than the defendant’s failure to testify.” Carter

       v. State, 686 N.E.2d 1254, 1262 (Ind. 1997). If so, there are no grounds for

       reversal. Id. Arguments that focus on the uncontradicted nature of the State’s

       case do not violate the defendant’s right to remain silent. Id. (citing Isaacs v.

       State, 673 N.E.2d 757, 764 (Ind. 1996)).


[37]   Zamani’s defense was that he did not plan the assault, he was not acting with

       specific intent to kill, and that he was reacting to a situation. The prosecutor

       commented on the various items in Zamani’s overnight bag and argued that

       Zamani brought the items to his mother’s house to use to kill Scurlock. The

       arguments of the prosecutor addressed the defense’s theory of the case, and

       attempted to focus on the State’s evidence and lack of evidence contradicting

       the State’s theory of the case. Based upon the record, we conclude that the

       prosecutor’s comments in their totality were addressed to the evidence rather

       than Zamani’s failure to testify. See Callahan v. State, 527 N.E.2d 1133, 1137

       (Ind. 1988) (noting that a remark about the lack of an explanation by the

       defense concerning otherwise incriminating evidence against the accused is

       proper so long as the prosecutor focuses on the absence of evidence to

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015     Page 24 of 28
       contradict the State’s evidence and not the accused’s failure to testify); Hancock

       v. State, 737 N.E.2d 791, 798 (Ind. Ct. App. 2000) (holding the prosecutor’s

       statements were not an inappropriate comment on the defendant’s failure to

       testify but rather a comment on the defendant’s failure to present convincing

       evidence to support his defense).


[38]   But even if we assumed misconduct, we are not persuaded that the comments

       during the prosecutor’s argument created “an undeniable and substantial

       potential for harm.” Cooper, 854 N.E.2d at 835. The challenged comments

       were brief in relation to the closing argument as a whole. The evidence related

       to Zamani’s assault of Scurlock in the downstairs living room and upstairs

       bedroom, the contents of his overnight bag, and his statements to Scurlock that

       he was going to kill him. Further, the jury was instructed that Zamani was “not

       required to present any evidence to prove his innocence or prove or explain

       anything.” Transcript at 830. The jury was also instructed that “statements by

       the attorneys are not evidence.” Id. at 834. Given the evidence presented at the

       trial and the jury instructions, we conclude that any prejudicial impact caused

       by the prosecutor’s statements was minimal and that the prosecutor’s

       statements do not constitute fundamental error. Zamani is not entitled to a new

       trial on this basis.


                                                    Conclusion

[39]   For the foregoing reasons, we affirm Zamani’s conviction for attempted

       murder.


       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015   Page 25 of 28
[40]   Affirmed.


       Bailey, J., concurs.


       Robb, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015   Page 26 of 28
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Shaheen Zamani,                                            Court of Appeals Case No.
                                                                  32A05-1406-CR-264
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Robb, Judge, dissenting.

[41]   I acknowledge that Zamani did not timely file a notice of intent to assert an

       insanity defense by the terms of Indiana Code section 35-36-2-1. But Zamani’s

       mental health was clearly an issue from the outset of this prosecution and the

       trial had not yet started when he made his request. Well after the omnibus

       date, one of the two court-appointed mental health professionals submitted a

       report opining that Zamani was not capable of understanding the legal

       proceedings or assisting his counsel, substantiating his alleged mental state.

       The assertion of an insanity defense could not have come as a shock to the



       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                 Page 27 of 28
       State, and would not have prejudiced it, as no additional witnesses would have

       needed to be procured.


[42]   Because I believe Zamani showed good cause for allowing the filing of a notice

       of intent to assert an insanity defense and that such filing would be in the

       interest of justice,8 I would hold that the trial court abused its discretion in

       denying the notice to assert an insanity defense and remand for a new trial.




       8
         Not only would such allowing the insanity defense to be raised at trial allow the jury to evaluate all the
       relevant evidence, disallowing it only because it was filed late invites an ineffective assistance of trial counsel
       claim in a post-conviction relief proceeding.

       Court of Appeals of Indiana | Opinion 32A05-1406-CR-264 | May 29, 2015                                Page 28 of 28
