Split COA affirms that Army vet can’t call psychologist to testify about PTSD in murder case

IL file photo

A U.S. Army combat veteran who was stationed at Fort Hood, Texas, on the day of the 2009 mass shooting cannot call a psychologist to testify about his post-traumatic stress disorder in his murder trial, the Court of Appeals of Indiana has ruled. A dissenting judge, however, pointed to legal scholarship on the use of a PTSD diagnosis in “mental status defense” cases.

A split Court of Appeals affirmed on interlocutory appeal the Marion Superior Court’s decision not to allow a psychologist’s testimony about Dustin Passarelli’s PTSD, finding self-defense claims are analyzed from the standpoint of a “reasonable person,” and what constitutes an “ordinary man” doesn’t change on a case-by-case basis.

In February 2019, Passarelli was driving southbound on Interstate 465 when the driver of a “red car flew up behind him” with its lights flashing and horn honking. Passarelli heard a “bang” and followed the car, driven by Mustafa Ayoubi, off the 38th Street exit in Indianapolis to a nearby apartment complex, thinking his vehicle had been struck.

After stopping, Ayoubi exited his vehicle and approached Passarelli, who was still in his car, and the two got into an argument.

The argument escalated, with both sides claiming the other used anti-Muslim and antisemitic language. At some point, Passarelli threatened to shoot Ayoubi.

As the argument continued to escalate, Ayoubi made a fist with his hand, appearing as if he was about to punch Passarelli’s driver’s side window.

In response, Passarelli drew a 9mm handgun and shot multiple times through his window, striking Ayoubi in the shoulder and then several times in the back as he was running away.

After shooting Ayoubi, Passarelli moved his vehicle, called 911 and administered CPR to Ayoubi. Another resident in the apartment complex ran to the scene and “took over CPR” until the police arrived.

Law enforcement determined there was no “damage whatsoever to the outside” of Passarelli’s vehicle, but the window was shattered from the gunfire.

Ayoubi was pronounced dead shortly after officers arrived. An autopsy revealed he had been shot once in the shoulder from the front and seven times in the back.

The state charged Passarelli with murder on Feb. 21, 2019.

John Mundt, Ph.D., conducted a psychological evaluation of Passarelli at the Marion County Jail four months later.

During the evaluation, Mundt learned that Passarelli had enlisted in the Army in April 2009, trained as a medic, and was stationed at Fort Hood, Texas, when an Army psychiatrist killed 13 soldiers on the base and wounded more than 30 others.

As a trained medic, Passarelli helped provide emergency medical care after the shooting and recalled the event as “terrifying.” Passarelli was then deployed to Iraq, where he experienced a “high level of combat exposure.”

Passarelli was dismissed from the Army in May 2012 with an “other-than-fully-honorable discharge” after fighting with a fellow soldier.

After his discharge, Passarelli was rated by the Department of Veterans Affairs as 70% disabled based on a PTSD diagnosis as well as multiple medical conditions incurred during his service with the Army. He sought mental health treatment through the VA Medical Center, but his treatment history was described as “erratic.”

Mundt concluded, “Passarelli’s description of his behavior at the time of the … (Ayoubi) shooting strongly suggests that he reacted to what he perceived as a severe threat.” He also concluded Passarelli’s military training ensured that he “responded with significant force.”

Passarelli filed witness and exhibit lists in preparation for trial and listed Mundt as an “expert of PTSD.” During a later hearing on the admissibility of Mundt’s testimony, Passarelli’s counsel acknowledged that while a formal notice of self-defense had not been filed with the court, it was nonetheless a “self-defense case.”

The trial court, however, summarily ruled that Mundt’s anticipated testimony was inadmissible, so Passarelli filed a motion to certify the matter for a discretionary interlocutory appeal.

The COA accepted jurisdiction over the interlocutory appeal, and the majority affirmed the trial court.

Relying on Wilson v. State, 697 N.E.2d 466 (Ind. 1998), while also looking at Higginson v. State, 183 N.E.3d 340 (Ind. Ct. App. 2022), the majority concluded that the ”evidence does nothing to show that Passarelli’s actions were objectively reasonable.”

“The objective component of self-defense, as adopted by our courts, is analyzed from the standpoint of an ordinary ‘reasonable person,’” Chief Judge Robert Altice wrote for the majority. “… Thus, the question being presented to the jury is whether an ordinary reasonable person would have responded with deadly force if confronted with the same circumstances that Passarelli confronted.

“The issue is not whether a person just like Passarelli — who also suffers from PTSD caused by military combat — would have responded as Passarelli did,” Altice continued. “In short, the standard of what constitutes an ‘ordinary man’ does not change on a case-by-case basis.

“We therefore conclude that the trial court did not abuse its discretion in determining that Dr. Mundt’s anticipated testimony is inadmissible at trial to support Passarelli’s claim of self-defense,” the majority concluded.

Altice was joined by Judge Elizabeth Tavitas in the majority while Judge Elaine Brown dissented with a separate opinion.

In her dissent, Brown wrote she would favor a determination that Passarelli may elicit testimony from Mundt to a person’s reasonable belief that he was under threat of imminent harm given his PTSD. She added, however, that Mundt “may not testify as to an ultimate factual determination such as to whether Passarelli was reasonable in using justifiable force.”

Quoting a 2010 article from the Indiana Law Journal — “Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder” — Brown wrote, “… (W)ith associated studies confirming the validity of the PTSD diagnosis and the genuine impact of PTSD on the behavior of veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a ‘mental status defense,’ such as insanity, a lack of mens rea, or self-defense. Although considerable obstacles remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to successfully pursue these defenses than Vietnam War veterans were a generation ago, a development that may make these defenses more available for all defendants with a PTSD diagnosis.”

“In my view,” the dissent concluded, “the jury should be entrusted to assess Dr. Mundt’s testimony together with the other evidence presented at trial.”

The case is Dustin Passarelli v. State of Indiana, 22A-CR-1116.

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