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.
Affirmed and remanded
Passarelli argues that the trial court abused its discretion in precluding Dr. Mundt from testifying at trial about the PTSD diagnosis and the trauma that he suffered while serving in the Army. Passarelli contends that Dr. Mundt’s testimony is relevant to the jury’s decision as to whether he acted in self-defense.
In support of his claim that the trial court abused its discretion in excluding Dr. Mundt’s anticipated testimony from the trial, Passarelli first directs us to Ind. Code § 35-41-3-2(c)(1) and (2), which provide that a person “is justified in using deadly force and does not have a duty to retreat if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person . . . or the commission of a forcible felony.” And under I.C. § 35-41-3- 2(d)(1) and (2), a person “is justified in using reasonable force, including deadly force, against any other person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s . . . occupied motor vehicle.”
Passarelli maintains that evidence of his “traumatic experiences during his service in the Army and his PTSD diagnosis is relevant to the objective component” of his self-defense claim. Appellant’s Brief at 15 (emphasis added). In other words, Passarelli contends that the jury should consider whether an individual similarly situated who suffers from PTSD—and had been trained to respond to threats with deadly accuracy—would believe that a threat was imminent and that deadly force was necessary to protect himself.
In light of Higginson, Passarelli argues that the same result must attach here even though the effects-of-battery statute does not apply to him. Passarelli points out that the jury will ultimately decide whether his subjective belief was reasonable and, “whether a reasonable person would have believed [that deadly force was necessary] under the circumstances.” Appellant’s Brief at 18. Notwithstanding these assertions, we confined our discussion and holding in Higginson to self-defense cases that are raised under the effects-of-battery statute. Id. We also made it clear that “evidence which is clearly encompassed by the traditional bounds of an insanity defense is still not suitable for a self-defense claim. . . . The use of effects-of-battery evidence in self-defense cases need not run afoul of the well-established ‘principles of Indiana law’ outlined in Marley.” Higginson, 183 N.E.3d at 345.
Indeed, if this type of evidence is available to any defendant who raises a claim of self-defense, the self-defense portion of the effects-of-battery statute would be superfluous and meaningless. Higginson permits defendants who raise a self-defense claim under the effects-of-battery statute to present psychological evidence in support of their claim, and Passarelli has not shown that we have abandoned established precedent and created a new rule in all self-defense cases. As Higginson was narrowly tailored to address only effects-of-battery cases, Passarelli’s reliance on Higginson is misplaced.
We also note that our Supreme Court has rejected a similar argument when a claim of sudden heat was raised. Sudden heat involves “anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary man; it prevents deliberation and premeditation, excludes malice, and renders a person incapable of cool reflection.” Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998). Murder is mitigated to voluntary manslaughter if the defendant can demonstrate that he acted under sudden heat. Brantley v. State, 91 N.E.3d 566, 573-74 (Ind. 2018).
In Wilson, the defendant claimed that he acted under sudden heat when he shot and killed his estranged wife and attempted to kill her new boyfriend. Id. at 469-70. Wilson maintained that seeing his wife with her new boyfriend “enraged him to the level of sudden heat,” and he responded the way he did because he suffered from PTSD. Id. More particularly, Wilson claimed that his PTSD caused him to “react to stressful situations more harshly than other people react to those situations.” Id. at 474. Following his convictions for murder and attempted murder, Wilson appealed and maintained that the trial court erred in refusing to give his tendered instruction on voluntary manslaughter. In rejecting that argument, the court in Wilson determined that the existence of sudden heat is analyzed from the standpoint of an “ordinary man.” Id. It also recognized that an “otherwise normally stressful encounter does not suddenly inflame sudden heat, mitigating murder, simply because a person suffers from a psychological disorder which gives him a ‘hair trigger.’” Id.
Similar to the circumstances in Wilson where the defendant claimed that he acted in sudden heat because his PTSD caused him “to react more harshly than other people,” evidence that Passarelli suffered from PTSD and reacts more harshly to stressful situations than an ordinary person is inadmissible to support his claim of self-defense. That 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.” See Washington, 997 N.E.2d at 342. 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. In short, the standard of what constitutes an “ordinary man” does not change on a case-by-case basis. See id. 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.
Judgment affirmed and remanded for further proceedings consistent with this opinion.
Tavitas, J., concurs.
Brown, J., dissents with opinion.
Brown, J., dissenting.
I respectfully dissent. The charge of murder is a serious allegation. Ind. Code § 35-41-3-2 provides a person “is justified in using reasonable force against any other person to protect the person . . . from what the person reasonably believes to be the imminent use of unlawful force.” The phrase “reasonably believes,” as used in the self-defense statute, “requires both subjective belief that force was necessary to prevent serious bodily injury, and that such actual belief was one that a reasonable person would have under the circumstances.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007). While the effects-of-battery statute at Ind. Code § 35-41-3-11(b), discussed in Higginson v. State, 183 N.E.3d 340 (Ind. Ct. App. 2022), may not apply, there is no question that PTSD can color a person’s perspectives in significant ways. I would favor a determination that Passarelli may elicit testimony from Dr. Mundt as to a person’s reasonable belief that he was under threat of imminent harm given his PTSD, but that Dr. Mundt may not testify as to an ultimate factual determination such as whether Passarelli was reasonable in using justifiable force. See State v. Mizell, 773 So. 2d 618, 620- 621 (Fla. Dist. Ct. App. 2000) (“Defense counsel proposed to offer expert trial testimony from Dr. Harry Krop, a licensed clinical psychologist. Dr. Krop would testify that Mizell has been diagnosed with PTSD, and he would explain what PTSD is and how PTSD affects an individual’s perceptions. . . . We view the PTSD evidence offered in this case as state-of-mind evidence, quite analogous to battered spouse syndrome (BSS) testimony that has in fact been approved many times. BSS testimony has been admitted to support a claim of self-defense. . . . [W]e hold that PTSD evidence is relevant on the question of self-defense.”). See also Thomas L. Hafemeister & Nicole A. Stockey, Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan with Posttraumatic Stress Disorder, 85 IND. L.J. 87, 141 (2010) (“As more psychologically scarred troops return from combat, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with 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 jury should be entrusted to assess Dr. Mundt’s testimony together with the other evidence presented at trial.