MEMORANDUM DECISION
Case Summary
[1] Following a jury trial, Chad I. Kaluza was convicted of attempting to murder his wife Erika. On appeal, Kaluza argues that the trial court erred in excluding and admitting certain evidence, in depriving him of an opportunity to present an automatism defense, and in denying his motion for mistrial. We affirm.
Facts and Procedural History
[2] Erika and Kaluza, a veterinarian, met in December 2020 and were married in September 2021. Their relationship was “[t]umultuous.” Tr. Vol. 2 at 205. Kaluza physically abused Erika on multiple occasions. One night, when they were lying in bed, Kaluza had “a big knife” and “was just swinging it at [Erika] and like not poking [her] particularly, but poking at [her].” Id. at 206.
[3] On January 6, 2023, Kaluza and Erika smoked methamphetamine and marijuana “[o]ff and on” all day. Id. at 208. They did not sleep that night. Around 7:00 a.m. on January 7, Kaluza and Erika were lying in bed with his head on her chest. Erika “wrapped [her] arms around his head and kissed ․ the top of his head.” Id. at 209. Kaluza “reached underneath his pillow and picked up a knife and sat on top of [her] and stabbed [her] in the neck.” Id. Erika “fell on the floor, and he sat on top of [her] again and stabbed [her] again in the neck, and then he stabbed [her] four more times” in her neck, chest, and armpit. Id. After he stabbed her, he strangled her until she passed out.
[4] When Erika regained consciousness, she called for Kaluza because she “wanted him to help [her].” Id. at 210. She received no response and walked into the bathroom. She looked in the mirror and “saw blood everywhere, in [her] hair, in [her] hands, all over [her].” Id. at 211. She realized that she had been stabbed, held a pillow on her neck to stop the bleeding, and called 911. Erika was taken to a trauma center and underwent surgery. “Her sternocleidomastoid muscle, which is the main muscle in the neck, was completely transected, or cut in half.” Tr. Vol. 3 at 35. The same stab wound was “within millimeters” of her carotid artery and jugular vein. Id. at 36.
[5] After stabbing and strangling Erika, Kaluza drove her Ford Explorer from Fort Wayne to Indianapolis and abandoned it when it ran out of gas. A warrant was issued for Kaluzas arrest. He was apprehended in Carmel on January 12 and transported to the Allen County Jail. The next day, Erika went to retrieve the Explorer from an impound lot. Inside a door pocket, she “found the knife that [Kaluza] stabbed [her] with[,]” wrapped in a “red stained washcloth[.]” Tr. Vol. 2 at 216, Tr. Vol. 3 at 74. A swab of the knife blade tested presumptively positive for blood. Erikas DNA was found on the blade, and both her DNA and Kaluzas DNA were found on the handle.
[6] On January 11, the State charged Kaluza with level 1 felony attempted murder, level 3 felony aggravated battery, two counts of level 5 felony domestic battery, and level 6 felony strangulation. On March 1, Kaluzas counsel, who did not represent Kaluza at trial, filed a motion requesting a competency evaluation under Indiana Code Section 35-36-3-1 and an evaluation for purposes of a potential insanity defense under Indiana Code Chapter 35-36-2.
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[7] At that time, Indiana Code Section 35-36-3-1 provided in pertinent part,
(a) 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.․ 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 defendants defense.
And Indiana Code Section 35-36-2-2 provided in pertinent part,
(a) At the trial of a criminal case in which the defendant intends to interpose the defense of insanity,[2] evidence may be introduced to prove the defendants sanity or insanity at the time at which the defendant is alleged to have committed the offense charged in the indictment or information.
(b) When notice of an insanity defense is filed in a case in which the defendant is not charged with a homicide offense under IC 35-42-1, the court shall appoint two (2) or three (3) competent disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) of the individuals appointed under this subsection must be a psychiatrist or psychologist. The individuals appointed under this subsection shall examine the defendant and testify at the trial. This testimony shall follow the presentation of the evidence for the prosecution and for the defense, including the testimony of any mental health experts employed by the state or by the defense.
(c) When notice of an insanity defense is filed in a case in which the defendant is charged with a homicide offense under IC 35-42-1, the court shall appoint two (2) or three (3) competent disinterested:
(1) psychiatrists;
(2) psychologists endorsed by the state psychology board as health service providers in psychology; or
(3) physicians;
who have expertise in determining insanity. At least one (1) individual appointed under this subsection must be a psychiatrist and at least one (1) individual appointed under this subsection must be a psychologist. The individuals appointed under this subsection shall examine the defendant and testify at the trial. This testimony must follow the presentation of the evidence for the prosecution and for the defense, including the testimony of any mental health experts employed by the state or by the defense.
(Emphases added.)
[8] Specifically, Kaluzas counsel asked the court “to appoint two competent, psychiatrists, psychologists or physicians to examine [Kaluza] and report on his competence to stand trial, his sanity at the time of the alleged act, and for all other relief as the Court may see appropriate under the circumstances.” Def.’s Motion for Psychiatric Evaluation to Determine Competency to Stand Trial and Evaluation for Insanity Defense at 2. On March 2, the trial court issued an order granting Kaluzas motion and indicating that it would “appoint two (2) competent, disinterested psychologists to examine [Kaluza] and report to the court.” Appellants App. Vol. 2 at 12. Psychologist Dr. David Lombard submitted his report in April, and psychologist Dr. Stephen Ross submitted his report in May. In an order dated May 31, the trial court noted that counsel had stipulated to the reports and that the psychologists would testify consistently therewith. The court found Kaluza competent to stand trial and subpoenaed the psychologists to testify regarding his sanity at trial, which was held from October 31 through November 2, 2023.
[9] In his opening statement, Kaluzas trial counsel told the jury,
At the end of all this, youll hear from two doctors who specialize in mental health issues. Youll find out that Chad had no memory of that day at all. He had no idea he had attacked his wife, the violent nature of it. It was likely he was suffering from a psychosis, a schizoaffective disorder, that caused him to get violent, and that caused him to forget. When you hear the evidence, it wont make sense of a sane person.․ At the end of all this, you will see that he suffers from mental illnesses, that he was not in his right state of mind, and that he was in fact insane at the time of this incident.
Tr. Vol. 2 at 198-99.
[10] During the States case-in-chief, Erika and various medical, law enforcement, and scientific witnesses testified to the foregoing facts regarding Kaluzas stabbing and strangulation of Erika and his subsequent flight from Fort Wayne to Indianapolis. The State also called as a witness Sedrick Grandberry, who had been incarcerated with Kaluza in the Allen County Jail and was currently in the Indiana State Prison in Michigan City. Grandberry acknowledged that in exchange for his testimony, his level 2 felony conviction for dealing in cocaine would be reduced to a level 3 felony and his ten-year executed sentence would be reduced to five years. According to Grandberry, Kaluza told him that he stabbed Erika in the neck and was aiming for “[h]er jugular vein.” Tr. Vol. 3 at 112. Kaluza also told Grandberry that if he had a gun, “[h]ed shoot her. Hed kill her, actually.” Id.
[11] Kaluza did not testify. After the parties rested, and before the trial court called the psychologists to testify about their sanity evaluations, Kaluzas counsel moved for a mistrial on the basis that neither Dr. Lombard nor Dr. Ross was a psychiatrist and Indiana Code Section 35-36-2-2 requires the appointment of a psychiatrist when the defendant is charged with a homicide offense. The trial court denied the motion, concluding that attempted murder is not a homicide offense for purposes of the statute and that Kaluza had waived the issue “given all the procedural background of this case[.]” Id. at 124.
[12] Dr. Lombard opined that Kaluza had post-traumatic stress disorder and bipolar disorder “at the time of the event” and stated that he could not form an opinion regarding sanity because Kaluza “had no memory of the alleged assault” on Erika. Id. at 131-32. Dr. Ross opined that Kaluza had a “schizoaffective disorder” at the time of the assault and stated that he could not say “with any degree of medical certainty” that Kaluza was insane because Kaluza claimed to have “little memory of the events leading up to [his] arrest[.]” Id. at 154, 161-62.
[13] The State recalled Erika to the stand, and she testified that Kaluza “just knows how to make people think hes crazy.” Id. at 180. The State also recalled Grandberry, who testified, “[Kaluza] basically told me that his mental situation of what he had going on was really like an act of - basically it was a put on. It wasnt real.” Id. at 182.
[14] In closing argument, Kaluzas counsel stated,
It is hard to disagree with the fact that [Kaluza] was mentally ill at the time of the incident. He suffered from bipolar disorder, he suffered from schizoaffective disorder, he was highly depressed. So, the last thing we must consider is whether he was insane at the time of the incident, whether he was unable to appreciate the wrongfulness of the conduct as the result of that mental disease or defect, and he was unable to appreciate the wrongfulness of the conduct. Dr. Ross said that he may have been suffering from a psychotic episode. Its possible. He couldnt say certainly because, as you heard [Kaluza] say, as you heard the doctors say, he has no memory of the incident, an affect that could happen from an individual undergoing a psychosis, which he did up in Michigan 18 months prior to the incident.․ None of this was rational. It was irrational. It was behavior of somebody who had lost their ability to connect with the world and understand what they were doing was wrong.
Id. at 198-99.
[15] The jury was instructed on the insanity defense with respect to each charged crime. See, e.g., Appellants App. Vol. 2 at 112 (“If the State did prove each of these elements beyond a reasonable doubt, and the defendant also proved by a preponderance of the evidence that at the time of such conduct, as the result of a mental disease or defect, he was unable to appreciate the wrongfulness of the conduct, then you must find the defendant not responsible by reason of insanity.”). The jury found Kaluza guilty as charged. The trial court entered judgment of conviction for attempted murder and sentenced him to thirty-six years. Kaluza now appeals. Additional facts will be provided below.
Discussion and Decision
Section 1 – Kaluza has waived any claim of error regarding the exclusion of certain testimony on hearsay grounds.
[16] On cross examination, Kaluzas counsel asked Erika the following questions:
What did [Kaluza] say when he started stabbing you?
[Kaluza] once told you that he rode across the country holding onto the axle of a semitruck?
What caused [Kaluza] to be paranoid?
Tr. Vol. 2 at 221, 223, 226. The State objected to each question on hearsay grounds, and the trial court sustained the objections. Counsel also asked Erika if she was aware that Kaluza kept knives beside the bed. She replied, “Yeah, he told me that they were –” Id. 224. The State interposed another hearsay objection, which the trial court sustained.
[17] On appeal, Kaluza argues that the trial courts rulings were erroneous. We agree with the State that Kaluza has waived review of this claim. Indiana Evidence Rule 103(a) provides, “A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and ․(2) If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” “[A] defendants offer of proof must include what the substance of the evidence would be, as well as an explanation for its admissibility.” Angulo v. State, 191 N.E.3d 958, 969 (Ind. Ct. App. 2022), trans. denied. “Failure to make an offer of proof results in waiver of the claim.” Id. Here, Kaluza did not inform the court of the substance of the excluded evidence, and the substance was not apparent from the context. Therefore, this claim is waived.
Section 2 – Kaluza has failed to establish that fundamental error resulted from the admission of the psychologists’ testimony about the success rate of the insanity defense.
[18] During the sanity portion of the trial, the State asked Dr. Lombard, “[W]hat percentage of people who are charged with felony offenses that are being examined for insanity are actually found to be forensically insane?” Tr. Vol. 3 at 137. Dr. Lombard replied, “The research thats been done looking on the whole population, is less than 1%.” Id. The State asked the same question of Dr. Ross. He replied,
Well in my situation and I think in the studies Ive read, between – people think youd get off like 25% of these folks get off, and thats not the case. Usually one prevails in an insanity defense about 1 to 5 percent of the time. One number that stands out is 1%. So, people think you walk away all the time, but you dont, really. If you do the report right, or the evaluation right, you can know when someone really has a problem, but its a low number. It really is.
Id. at 161. Kaluza did not object to any of the above.
[19] On appeal, Kaluza argues that the psychologists’ testimony was irrelevant, but he concedes that “[t]he general rule is that the failure to object to the admission of ․ evidence results in the waiver or forfeiture of the issue on appeal[.]” Appellants Br. at 18. He goes on to say,
[I]f the admission of the evidence is so damaging as to deny the defendant the fundamental right to a fair trial, the Court will review the issue. Herron v State, 801 N.E.2d 761, 765 (Ind. Ct. App. 2004). Defendant argues that the irrelevant evidence in this case, when considered along with his other claims of error, prejudiced the jury against giving serious consideration to his claim of a lack of memory of committing the crimes so as to deprive him of a fair trial.
Id.
[20] “To show fundamental error, a defendant must demonstrate error that caused actual and substantial disadvantage, infecting and tainting the entire proceeding.” Henriquez v. State, 973 N.E.2d 1154, 1156 (Ind. Ct. App. 2012), trans. denied. “In other words, the error must so prejudice the rights of the defendant as to make a fair trial impossible.” Id. “Simply asserting that error occurred and was harmful is insufficient to establish fundamental error.” Hollingsworth v. State, 987 N.E.2d 1096, 1099 (Ind. Ct. App. 2013), trans. denied. That is essentially what Kaluza has done here. Moreover, Erikas and Grandberrys testimony and Kaluzas flight to Indianapolis with the attempted murder weapon gave the jury ample grounds to reject Kaluzas claimed lack of memory about the offense. See Grimes v. State, 450 N.E.2d 512, 521 (Ind. 1983) (“Any testimony tending to show an accuseds attempt to conceal implicating evidence ․ may be considered by the trier of fact as relevant since revealing a consciousness of guilt.”). In sum, Kaluza has failed to establish fundamental error.
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Section 3 – The trial court did not deprive Kaluza of an opportunity to present an automatism defense.
[21] Next, Kaluza claims that the trial court deprived him of an opportunity to present an automatism defense. This claim is based on two false premises: (1) that Kaluza raised an automatism defense, which he did not;
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and (2) that he was deprived of “the assistance of expert advice and expert testimony that effectively addressed this specific defense[,]” which he did not ask for, either from Drs. Lombard and Ross or from an independent expert. Appellants Br. at 18. Accordingly, this claim is meritless.
Section 4 – Kaluza has waived his claim of error regarding the trial courts denial of his motion for mistrial.
[22] Finally, Kaluza argues that the trial court erred in denying his motion for mistrial. We agree with the State that Kaluza has waived this claim as well because he did not argue that one of the court-appointed sanity experts must be a psychiatrist pursuant to Indiana Code Section 35-36-2-2 until “after both parties had presented their cases-in-chief and the court was calling the doctors to testify on the issue of sanity.” Appellees Br. at 28. “[A] party may not sit idly by, permit the court to act in a claimed erroneous manner, and then attempt to take advantage of the alleged error at a later time. A timely objection must be lodged so that the alleged error may be promptly corrected by the trial court.” Robles v. State, 705 N.E.2d 183, 187 (Ind. Ct. App. 1998) (citation omitted). Kaluza failed to lodge a timely objection here, so his claim is waived.
[23] Moreover, Kaluza invited any error by asking the trial court “to appoint two competent, disinterested psychiatrists, psychologists or physicians” to examine him and report on his competence and sanity. Def.’s Motion for Psychiatric Evaluation to Determine Competency to Stand Trial and Evaluation for Insanity Defense at 2 (emphasis added). “[I]nvited error is not reversible error.” In re J.C., 142 N.E.3d 427, 431 (Ind. 2020). Based on the foregoing, we affirm Kaluzas conviction for attempted murder.
[24] Affirmed.
FOOTNOTES
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. Kaluza failed to include a copy of this motion in his appellants appendix in contravention of Indiana Appellate Rule 50(B)(1)(a), so we retrieved it from the Odyssey case management system. Kaluza also failed to include a copy of the chronological case summary in contravention of the same rule.
2
. Pursuant to Indiana Code Section 35-36-1-1, “insanity” refers to the following defense:(a) A person is not responsible for having engaged in prohibited conduct if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.(b) As used in this section, “mental disease or defect” means a severely abnormal mental condition that grossly and demonstrably impairs a persons perception, but the term does not include an abnormality manifested only by repeated unlawful or antisocial conduct.Ind. Code § 35-41-3-6.
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. We note that the United States Supreme Court recently held that testimony similar to the psychologists’ in this case was admissible under Federal Rule of Evidence 704(b) without addressing its apparent lack of relevance. See Diaz v. United States, 144 S. Ct. 1727, 1735 (2024) (“An experts conclusion that ‘most people’ in a group have a particular mental state is not an opinion about ‘the defendant’ and thus does not violate Rule 704(b).”).
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. The State points out that Kaluza never pled or argued or requested jury instructions on an automatism defense.
Memorandum Decision by Judge Crone
Judges Bradford and Tavitas concur.
Bradford, J., and Tavitas, J., concur.