Passarelli v. State
| Decision Date | 09 January 2023 |
| Docket Number | Court of Appeals Case No. 22A-CR-1116 |
| Citation | 201 N.E.3d 271 |
| Parties | Dustin PASSARELLI, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorneys for Appellant: Benjamin Jaffe, Indianapolis, Indiana, Victoria Bailey Casanova, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Courtney Staton, Deputy Attorney General, Indianapolis, Indiana
[1] Dustin Passarelli brings this interlocutory appeal, claiming that the trial court abused its discretion in determining that the testimony of a psychologist regarding Passarelli's post-traumatic stress disorder
(PTSD) diagnosis should be excluded at trial. Passarelli, who is awaiting trial for murder, argues that the evidence must be admitted because it is relevant to the jury's determination as to whether he acted in self-defense.
[2] Affirmed and remanded.
[3] On February 16, 2019, Passarelli was driving southbound on I-465 when the driver of a "red car flew up behind him" with its lights flashing and horn honking. Appellant's Appendix Vol. II at 35. As both vehicles approached the 38th Street exit, Passarelli heard a "bang" and thought that the other driver, later identified as Mustafa Ayoubi, had either hit his vehicle or had thrown something at it.
[4] Passarelli followed Ayoubi to a nearby apartment complex. Upon entering the parking lot, Ayoubi exited his vehicle and, according to Passarelli, yelled, "why the fu*k are you following me?" Id. Passarelli responded, "you just hit my fu*king car man, what the fu*k?" Id. at 36.
[5] In the meantime, Ayoubi's friends—Usman Ashraf, Niraj Bhatt, and Jarwar Shahzad—had walked out of one of the residential buildings to meet Ayoubi, as they had all made plans to play pool somewhere. Ashraf overheard Ayoubi and Passarelli arguing and saw Ayoubi standing on the passenger side of Passarelli's vehicle. Ashraf heard Passarelli tell Ayoubi to "go back to your fu*king country" and that "Muhammed was a pedophile." Id. at 35. In response, Ayoubi told Passarelli to "shut the fu*k up" and not to say anything bad about "[his] God." Id. at 36. Passarelli also stated that Ayoubi called him a "fu*king Jew" and threatened to kill him. Id.
[6] At some point during the argument, Passarelli threatened to shoot Ayoubi. Ashraf and Bhatt both tried to diffuse the situation by telling Passarelli and Ayoubi to "chill" and "respect." Id. at 35-36. Undeterred, Passarelli told Ayoubi that he would "fu*k his friends" and "fu*k Muhammed." Id.
[7] Ayoubi then walked toward the driver's side of Passarelli's car and said, "you know what—get out of the fu*king car let's take it out right now." Id. Passarelli told Ashraf that he "better take [Ayoubi] inside or something's gonna happen." Id. One of Ayoubi's friends heard Passarelli say, "I'll shoot you." Id. at 36.
[8] 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.1 In response, Passarelli drew his Glock 19 9mm semiautomatic handgun and shot multiple times through his vehicle's window glass, striking Ayoubi in the shoulder and then several times in the back as he was running away. Ashraf, Bhatt, and Shahzad ran behind the apartment building and called 911.
[9] 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. Id. at 37. Officers from the Indianapolis Metropolitan Police Department and Clermont Police Department were dispatched to the scene. Ayoubi was pronounced dead shortly after their arrival.
[10] Upon inspection, Passarelli's vehicle had no "damage whatsoever to the outside." Id. at 37. His car window, however, was shattered from the gunfire. Passarelli's handgun contained nine live rounds and police officers collected seven spent cartridge shells from his vehicle. An autopsy revealed that Ayoubi had been shot once in the shoulder from the front and seven times in the back.
[11] The State charged Passarelli with murder on February 21, 2019. Thereafter, on July 15, 2019, Doctor John Mundt, Ph.D., conducted a psychological evaluation of Passarelli at the Marion County Jail. Dr. Mundt is a licensed clinical psychologist with a "professional focus on the evaluation and treatment of psychological trauma." State's Exhibit 1. He is on staff at the Jesse Brown VA Medical Center in Chicago, where he evaluates and treats veterans for PTSD and other post-traumatic reactions. Dr. Mundt is also an assistant professor in the Department of Psychiatry at the University of Illinois-Chicago.
[12] Passarelli's counsel specifically requested that Dr. Mundt assess Passarelli's "psychological and military history" and draw a conclusion as to how Passarelli's background "could have affected his mental and emotional functioning at the time of the offense." State's Exhibit 1. To that end, Dr. Mundt reviewed Passarelli's medical, psychiatric, and prescription-drug records from the Indianapolis VA Medical Center. He also spoke with Passarelli's ex-wife and a former co-worker.
[13] Dr. Mundt learned that Passarelli enlisted in the Army in April 2009. He completed his training as a medic and was stationed at Fort Hood, Texas, on November 5, 2009, when an Army psychiatrist killed thirteen soldiers on the base and wounded more than thirty others. As Passarelli was a trained medic, he helped provide emergency medical care after that shooting and recalled the event as "terrifying." Id.
[14] Thereafter, Passarelli was deployed to Iraq from July 7, 2011, until April 14, 2012, where he experienced a "high level of combat exposure." Id. Passarelli told Dr. Mundt that he was "subjected to enemy fire and attack, including ‘close quarters’ combat situations" in numerous instances. Id. Passarelli reported witnessing deaths and injuries of civilians and fellow soldiers. Passarelli was ultimately dismissed from the Army on May 1, 2012, with an "other-than-fully-honorable discharge" after fighting with a fellow soldier. Id.
[15] Passarelli reported experiencing symptoms of anxiety and PTSD early in his military career that culminated with the onset of "hyperarousal, irritability, and insomnia" while in active combat. Id. After his discharge, Passarelli was rated by the VA as 70% disabled, based on PTSD diagnosis as well as multiple medical conditions incurred during his service with the army. Passarelli sought mental health treatment through the VA Medical Center, but his treatment history was described as "erratic." Id. Rather than attending therapy sessions, Passarelli's treatment had "largely been psychopharmacological in nature." Id. In March 2014, Passarelli was prescribed Paroxetine
, an antidepressant, to treat what was documented as "subsyndromal PTSD." Id.
[16] After meeting with Passarelli and conducting several screens, Dr. Mundt opined that Passarelli's "combat training and on-the-job experiences in the warzone ... have the effect of ensuring that soldiers like Mr. Passarelli will respond to a physical assault against them with a greater degree of force, possibly lethal in nature." Id. He concluded that military veterans like Passarelli will often respond to violence in a way that can be "reflexive, methodical and precise, akin to ‘muscle memory.’ " Id.
[17] As for the shooting of Ayoubi, Dr. Mundt concluded that "Passarelli's description of his behavior at the time of the ... shooting strongly suggests that he reacted to what he perceived as a severe threat," and that Passarelli's military training ensured that he "responded with significant force." Id.
[18] On October 22, 2019, Passarelli filed witness and exhibit lists in preparation for trial and listed Dr. Mundt as an "expert of PTSD." Appellant's Appendix Vol. II at 119. Thereafter, on August 18, 2021, the trial court conducted a hearing as to the admissibility of Dr. Mundt's testimony. During that hearing, 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." Transcript Vol. II at 15. Counsel went on to explain that his intention in calling Dr. Mundt was "extremely limited" and explained that Dr. Mundt's testimony would inform the jury:
regarding PTSD and how in general terms that impacts perception of events. And specifically, regarding the danger someone believes they're in or their – their point of view of determining apparent danger and imminence of a threat. And still, that – that would be – basically he's offering evidence that informs that objective point of view from a – the context of how generally people with this issue could be impacted.... I intend to offer it as a general statement regarding PTSD and how that disorder and that trauma affects, in general, someone's point of view.
Id. (emphasis added).
[19] In response, the State pointed out that Dr. Mundt's testimony regarding PTSD concerned Passarelli's mental capacity at the time of the offense. It therefore maintained that this type of evidence is only admissible in support of an insanity defense—a defense that Passarelli had not raised. Because Passarelli was raising the issue of self-defense rather than insanity, the State asserted that Dr. Mundt's testimony should not be admitted at trial.
[20] After considering the evidence and arguments, the trial court summarily ruled that Dr. Mundt's anticipated testimony was inadmissible. Thereafter, Passarelli filed a motion to certify the matter for a discretionary interlocutory appeal, arguing that certification should be granted because "the admissibility of expert testimony regarding Defendant's past trauma [ ] and the impact on the issue of self-defense" involved a substantial question of law that should be resolved prior to trial. Appellant's Appendix Vol. II at 174-76. The State agreed that...
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