Nov. 17, 2022 – A state court’s denial of a motion to amend the standard jury instruction regarding self-defense did not entitle a defendant to habeas corpus relief, the U.S. Court of Appeals for the Seventh Circuit has ruled.

In Brown v. Eplett, No. 21-1515 (Sept. 7, 2022), the Seventh Circuit Court of Appeals held that the failure to amend the standard jury instruction was harmless error.

Barbecue Gone Bad

In July 2014, George Brown hosted a barbecue at his home in Madison.

During the barbecue, Brown and K.M. both drank to the point of inebriation. Late in the evening, Brown and K.M. argued, then began to fight inside the garage.

K.M.’s wife, Rebecca, took K.M. to his car, which was parked on the cul-de-sac in front of Brown’s house. K.M. took off his shirt and threw his shoes at Brown. Brown then took his own shirt off and threw pieces of scrap lumber at K.M.

Conflicting Testimony

At Brown’s trial in Dane County Circuit Court, Rebecca and Brown offered different versions of what happened next.

Rebecca testified that while K.M. was standing in the street, Brown said “I’ve got something for you,” then went into his house. When Brown came back out, Rebecca testified, he had a knife in his hand.

Brown walked down the driveway toward K.M. while K.M. backed up. The men continued to argue, then Brown swung at K.M. with the knife. K.M. swung a piece of wood at Brown.

Rebecca heard a crack. She saw her husband spin, then fall to the ground with a knife buried in his skull.

‘Combat Mode’

According to Brown, K.M. picked up two pieces of wood and came up the driveway toward him. Brown was afraid of K.M., who stood six feet tall, weighed 220 pounds, and was 20 years younger than he.

Brown grabbed a knife from the grill, which was located next to the garage. Brown testified that he “went into combat mode” and swung the knife at K.M.

Brain Damage

K.M. suffered three stab wounds, including one in his head.

The force of Brown’s stab to K.M.’s head drove the eight-inch blade through K.M.’s temple, through his brain, and into his right rear skull.

K.M. survived but has multiple cognitive and physical impairments as a result of the stabbing. He’ll need medical care for the rest of his life.

Request to Modify Jury Instruction

The Dane County District Attorney charged Brown with first-degree attempted homicide and first-degree reckless injury.

Brown claimed that he stabbed K.M. in self-defense. He asked the Dane County Circuit Court to modify the standard jury instruction on self-defense.

That instruction specifies that a defendant has no duty to retreat but allows the jury to take into account the feasibility of retreat in determining whether the defendant’s use of force was reasonable.

Specifically, Brown asked the court to modify the instruction to reflect the castle doctrine. The castle doctrine allows a person more latitude in using force in self-defense if the person is on the premises of his or her own home.

In Brown’s case, application of the doctrine would have prohibited the jury from considering whether he had an opportunity to retreat.

The circuit court denied Brown’s request to modify the jury instruction. The jury acquitted Brown of first-degree attempted homicide but convicted him of first-degree reckless injury.

Appeals to State, Federal Courts

Brown appealed. The Wisconsin Court of Appeals affirmed his conviction; the Wisconsin Supreme Court denied Brown’s petition for review.

Brown then petitioned for a writ of habeas corpus in the U.S. District Court for the Western District of Wisconsin.

He argued that the trial court’s denial of his request to modify the jury instruction amounted to a violation of his due process rights under the Fourteenth Amendment.

The district court denied Brown’s petition. Brown appealed.

Standard for Habeas Relief

Writing for a three-judge panel, Judge Ilana Rovner explained that under a federal statute, Brown was entitled to habeas relief only if the Wisconsin Court of Appeals’ decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the U.S. Supreme Court.

Brown argued that by denying his motion to modify the jury instruction, the trial court wrongly modified the criminally reckless element of the offense of which he was convicted.

Rovner noted that the U.S. Supreme Court has ruled that a jury instruction that reduces or shifts the state’s burden of proof or eliminates an essential element of a charged offense can give rise to a due process violation.

Judge Rovner reasoned that the trial court’s failure to modify the jury instruction to reflect the castle doctrine affected Brown’s due process rights: if Brown’s use of force was reasonable, his conduct could not legally have been criminally reckless.

“Put concretely, the instruction as given permitted the jury to convict Brown on a ground that the castle doctrine foreclosed—that he could have retreated from the confrontation with K.M. but did not—and thus that his use of force in self-defense was not reasonable but rather amounted to criminally reckless conduct,” Rovner wrote.

Harmless Error

However, Rovner concluded, as did the Wisconsin Court of Appeals, that the trial court’s error was harmless.

Under U.S. Supreme Court precedent, Judge Rovner explained, Brown must show that the trial court’s error had a “substantial and injurious effect or influence” on the jury’s decision.

Brown failed to meet that standard, Rovner reasoned, because the castle doctrine would not apply to Brown’s use of force if it occurred beyond the curtilage of his home, and only Brown placed K.M. in the driveway when he was stabbed.

Judge Rovner pointed out that both Rebecca and one of Brown’s neighbors testified that K.M. was in the street when Brown stabbed him. Additionally, Rovner noted that physical evidence undermined Brown’s testimony.

“Not so much as a drop of K.M.’s blood was found in the driveway,” Judge Rovner wrote. “Instead, there was a large pool of blood in the street in front of the driveway, with a streamlet of blood running from that pool along the gutter.”

Given the strength of the state’s case, Rovner wrote, “Brown has not shown that he was actually prejudiced by the trial court’s error in instructing the jury.”