Brown v. Eplett

• Decision Date: 07 September 2022
• Docket Number: 21-1515
• Citation: 48 F.4th 543
• Parties: George L. BROWN, Petitioner-Appellant, v. Cheryl EPLETT, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

48 F.4th 543

George L. BROWN, Petitioner-Appellant,
v.
Cheryl EPLETT, Respondent-Appellee.

No. 21-1515

United States Court of Appeals, Seventh Circuit.

Argued November 10, 2021
Decided September 7, 2022

Thomas Brady Aquino, Attorney, Wisconsin State Public Defender, Appellate Division, Madison, WI, for Petitioner-Appellant.

Abigail C.S. Potts, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Manion, Rovner, and Wood, Circuit Judges.

Rovner, Circuit Judge.

A Wisconsin jury convicted George Brown of first-degree reckless injury by use of a dangerous weapon after he stabbed his cousin K.M.¹ in the head during a drunken brawl at Brown's home. See Wis. Stat. § 940.23(1)(a). Brown now seeks relief in habeas corpus, arguing that he was deprived of due process when the trial court erroneously refused to instruct the jury on the castle doctrine as part of his self-defense theory. We affirm the district court's decision denying his habeas petition.

I.

Brown had agreed to host a barbeque at his Madison, Wisconsin home in July 2014 to celebrate the new job for which K.M.'s wife had been hired. K.M. and Brown both became inebriated as they drank throughout the afternoon and evening. As the hour grew late, Brown and K.M. got into an argument that escalated into a physical altercation in the garage. Friends tried to break up the fight, urging K.M. to leave. K.M. struck a friend in the mouth in the process, causing that individual to wash his hands of the matter and go home. K.M.'s wife Rebecca managed to escort K.M. to his car, which was parked on the cul-de-sac in front of Brown's house. But the fight continued: K.M. doffed his undershirt and threw his shoes at Brown and Brown responded in kind, removing his own shirt and throwing pieces of scrap trim lumber at K.M.²

According to K.M.'s wife Rebecca, K.M. was standing in the street when Brown said "I've got something for you" (R. 5-5 at 2), went into his house, came back outside, at which point Rebecca saw a knife in his hand, and walked down the driveway toward K.M. By her account, K.M. backed away and picked up two pieces of wood that Brown had thrown at him. The men continued to argue. Brown took a swing at K.M. with the knife, K.M. swung back with the wood, and ultimately Rebecca heard a crack and saw her husband spin around and drop to the ground with the knife buried in his head.

Brown gave a different account of events when he took the witness stand at trial. He said that while he was standing at the top of his driveway, K.M. picked up the two

48 F.4th 548

pieces of wood (which Brown described as "sticks") and came up the driveway toward him. Fearing what K.M. might do, he picked up a knife from the grill outside of his garage. K.M. approached and raised his hands as if he were about to strike Brown. K.M. stood 6 feet tall, weighed 220 pounds, and at age 39 was nearly 20 years younger than Brown. Brown went into "combat mode" (R. 5-13 at 73) and swung his knife at K.M. He did not realize he had actually stabbed K.M. until K.M. walked back down the driveway to his car and collapsed in the street.

In the moments immediately after he stabbed K.M., Brown did not call 911 to summon aid for K.M., did not voice concern for him, and did not express remorse for what had occurred. Instead, according to multiple witnesses, he made statements to the effect of "that will teach him" (R. 5-11 at 67), "I should have killed your ass" (R. 5-10 at 94, 98), "He ain't dead yet but I'll kill him" (R. 5-11 at 49), and, to the victim's wife, Rebecca, "I got one for you too, bitch" (R. 5-11 at 61; see also R. 5-11 at 31; R. 5-13 at 33). Indeed, according to Rebecca, after making the latter remark, Brown walked down the driveway toward her with what looked like another knife in his hand. Brown would later acknowledge having made such remarks, attributing them to the heat of the moment, when he was still feeling the effects of adrenaline from the confrontation. But in the ensuing days, in multiple recorded telephone calls from jail to Jill Phillips, whom he was then dating, Brown made a series of statements seemingly attributing the stabbing to anger and exasperation with K.M. as opposed to fear for his own safety. For example, he said that on the night of the barbeque, K.M. had "pissed me off" and "ask[ed] for it," despite "know[ing] better." R. 5-13 at 113–15. "Why push my buttons[?]" he asked Phillips. "Why push them when you know I'm going to go. Why take me there when you already know I'm going to go. Shit." R. 5-13 at 115. He also acknowledged to Phillips that he had "fucked up" and "put myself in this position." R. 5-13 at 113, 115.

The knife wounds on K.M.'s body indicated that he was struck a total of three times: once in the upper left shoulder, where he had a wound 3.5 centimeters long, once on the back of his left arm, where he had a 2.5-centimeter wound, and once in the head, in front of his left ear. Brown stabbed K.M. in the head forcefully enough that the knife's 8-inch blade penetrated the skull at his left temple, passed through the brain, and lodged in the skull on the right rear side of his head. K.M. survived the stabbing but was left with numerous cognitive and physical impairments and will require care for the remainder of his life.

Brown was charged with both first-degree attempted homicide and first-degree reckless injury. He pleaded not guilty to the charges and the State's case against him was tried before a jury over the course of four days.

Brown's theory of the case was that he stabbed K.M. in self-defense. The standard Wisconsin jury instruction on self-defense advises the jury that a defendant who invokes the privilege of self-defense must have reasonably believed that the amount of force he used was necessary to terminate an actual or imminent unlawful interference with his person.³ And although the

48 F.4th 549

jury is further advised that an individual protecting himself from another has no duty to retreat, the instruction nonetheless allows the jury to consider the availability and feasibility of retreat when evaluating the reasonableness of the defendant's use of force.⁴ But Brown asked the court to modify the instruction to reflect the castle doctrine, which grants an individual greater latitude in using force to defend himself on the premises of his home and gives a defendant claiming self-defense in that setting a substantial leg up in the jury's assessment of the defense. See State v. Johnson , 397 Wis.2d 633, 961 N.W.2d 18, 26 (2021). Here, a self-defense instruction reflecting the castle doctrine would have directed the jury to presume that the defendant reasonably believed his use of force was necessary to protect himself from imminent death or great bodily harm and would have expressly barred the jury from considering whether the defendant had an opportunity to retreat.⁵

For the castle doctrine to apply, the defendant must employ force against someone who is in the process of unlawfully and forcibly entering—or has so entered—the defendant's dwelling, which the legislature has defined to include the home's driveway. Wis. Stat. § 938.48(1m) ; State v. Chew , 358 Wis.2d 368, 856 N.W.2d 541, 543–44 (Ct. App. 2014). Consequently, it was material whether the final physical altercation between Brown and K.M. that culminated in the stabbing took place in the street or on Brown's driveway. Cf. id. at 545–46 (castle doctrine did not apply where intruders who attacked defendant had already left his apartment and were fleeing across the building's common parking lot, which did not constitute part of his dwelling, by the time he employed deadly force).

As our summary thus far indicates, there was a conflict in the testimony as to precisely where K.M. was located during the final altercation when Brown struck

48 F.4th 550

him with the knife: Brown testified that K.M. had charged up the driveway to where Brown was standing next to the grill at the top of the driveway, whereas K.M.'s wife Rebecca testified that Brown had come down the driveway and confronted K.M. in the street. Apart from these two accounts, there was additional witness testimony addressing this point.

Kelan Phillips ("Kelan"), a 13-year-old boy who lived across the cul-de-sac from Brown's home, told police officers in the immediate aftermath of the incident that he witnessed the altercation from his upstairs bedroom window. According to the officers, Kelan said that he saw K.M. standing in the street, heard Brown yelling at K.M., saw Brown walk toward K.M. and, when Brown reached the street, saw Brown strike K.M. in the head. K.M. had something in his hand and raised his hand as if to strike Brown, but he collapsed before he was able to do so. When he was called to testify at trial, Kelan (then age 14) for the most part professed not to recall what he saw on the night of the incident or what he had told the police. The trial court permitted the officers who had spoken with Kelan to recount what Kelan had told them. Kelan's mother Jill was Brown's girlfriend at the time of the incident. At one point in his testimony, Kelan interjected without prompting that "George is a nice dude, he is nice, he just made a wrong mistake that day." R. 5-12 at 107.

Cynthia Harms, another neighbor who lived across the cul-de-sac from Brown, also testified. On the night of the altercation, she had been asleep but was awakened by the sound of yelling. When she looked out her upstairs bedroom window, she saw shadows and heard scuffling near the driveway, where Brown's red Ford Mustang was parked. (She could not see who was involved in the scuffle.) She went downstairs briefly to retrieve her phone and called the police. When she returned to the window, she saw a man (presumably K.M.) at the foot of the driveway and heard a woman (presumably K.M.'s wife Rebecca) telling him to get into the car. K.M. walked toward his car, which was parked at the curb immediately...