State v. Brown

385 Wis.2d 211

923 N.W.2d 175 (Table)

2019 WI App 1

STATE of Wisconsin, Plaintiff-Respondent,

v.George L. BROWN, Defendant-Appellant.^†

Appeal No. 2017AP2199-CR

Court of Appeals of Wisconsin.

DATED AND FILED November 15, 2018

PER CURIAM.

¶1 George Brown appeals a judgment of conviction for first-degree reckless injury with a dangerous weapon and circuit court orders denying his postconviction motion for a new trial and his motion for reconsideration.¹ Brown argues that the circuit court erred in instructing the jury and in excluding evidence of the victim’s prior violent acts. Brown also contends that he received ineffective assistance of counsel. We reject these arguments and affirm.

BACKGROUND

¶2 Brown was charged with attempted first-degree intentional homicide and first-degree reckless injury, both with a dangerous weapon, following a physical altercation in which Brown stabbed the victim in the head. The testimony at trial established that Brown invited the victim to a barbecue at Brown’s house. An argument between Brown and the victim escalated into a scuffle in Brown’s garage. Friends intervened to separate the two men. Brown then told the victim to leave, and the victim walked out to his car in the street. However, the argument continued as the victim stood in the street in front of Brown’s house. The victim took off his shirt, as if to fight, and also took off his shoes and threw them at Brown. Brown took off his own shirt, as if to say, "I’m ready too.". Brown also threw the victim’s shoes back at him. Brown then proceeded to throw scrap wood and kindling sticks from the top of the driveway toward the victim, who was standing in the middle of the cul-de-sac.

¶3 At that point, the trial testimony diverged significantly. The victim’s wife testified that after Brown threw pieces of wood at the victim, Brown said, "I’ve got something for you" and then went into his house. Brown came back out carrying a knife and began walking down the driveway toward the victim. The victim backed away and picked up two sticks. The two men faced each other in the cul-de-sac and continued to exchange words. Brown swung his knife at the victim first, and then both men were swinging at each other. As Brown swung the knife, the victim’s wife heard a crack, and the victim spun around and collapsed with a knife in his head.

¶4 According to Brown, however, the victim picked up two of the sticks that Brown had thrown at him and came toward Brown, who was standing at the top of the driveway. Brown was afraid of what the victim was going to do with the sticks, so he picked up a knife from the grill outside the garage. Brown testified that, as the victim approached Brown, the victim raised his arms and "flinched like he was going to hit [Brown]," so Brown went into "combat mode" and swung his knife at the victim. Brown testified that he was not aware that he had stabbed the victim in the head until the victim walked back down the driveway to his car and collapsed in the street.

¶5 The uncontroverted evidence established that the victim was stabbed in the head with a knife with an eight-inch blade. The knife entered the victim’s skull from the left side of his head, crossed through his brain, and became impaled into his skull on "the right back side" of his head. As a result of the stabbing, the victim has numerous cognitive and physical impairments and will likely require lifelong support.

¶6 A jury found Brown guilty of first-degree reckless injury with a dangerous weapon, but acquitted Brown on the charge of attempted first-degree intentional homicide. Brown filed a postconviction motion for a new trial, which the circuit court denied after an evidentiary hearing. Brown then filed a motion for reconsideration, which the circuit court also denied. Brown appeals.

DISCUSSION

¶7 Brown makes three arguments on appeal. First, Brown argues that the circuit court erroneously denied his request for a jury instruction regarding the castle defense doctrine. Second, Brown argues that he received ineffective assistance of counsel due to his attorney’s failure to capitalize on language in a court of appeals decision that might have convinced the jury to acquit him on the first-degree reckless injury charge. See State v. Miller , 2009 WI App 111, ¶ 40, 320 Wis. 2d 724, 772 N.W.2d 188 (stating that a defendant’s actions taken in defense of self or others are "inconsistent with conduct evincing utter disregard" for human life). Third, Brown contends that the circuit court erroneously excluded testimony about three instances in which the victim used or threatened to use a shotgun. We address each argument below.

A. Is Brown Entitled to a New Trial With the Castle Doctrine Jury Instruction?

¶8 Brown argues that the circuit court erroneously denied his request for a jury instruction that incorporated the castle doctrine, codified at WIS. STAT. § 939.48(1m) (2015-16).² The castle doctrine "generally provides that use of force is presumably justified when a person is defending himself ... against an unlawful and forcible intruder in that person’s home." State v. Chew , 2014 WI App 116, ¶1, 358 Wis. 2d 368, 856 N.W.2d 541. Under the standard jury instruction for self-defense, the jury is permitted to consider the availability and feasibility of retreat when evaluating the reasonableness of the defendant’s use of force. See WIS JI—CRIMINAL 810 (2001).³ In contrast, the castle doctrine modification instructs the jury not to consider whether the defendant had an opportunity to retreat. See WIS JI—CRIMINAL 805A (2013).⁴

¶9 The circuit court agreed to instruct the jury regarding self-defense, but declined to issue the castle doctrine modification on the ground that there was no evidence that the victim was attempting to forcibly enter Brown’s dwelling. After the jury convicted him of first-degree reckless injury, Brown moved for a new trial, arguing (among other things) that the circuit court erred in refusing to instruct the jury on the castle doctrine. The circuit court denied Brown’s motion, on the ground that Brown had not produced sufficient evidence to warrant the instruction. The circuit court further determined that any error in failing to issue the instruction was harmless.

¶10 In its brief to this court, the State concedes that there was some evidence to warrant the castle doctrine instruction. Specifically, the State concedes that Brown’s testimony that the victim reentered Brown’s driveway carrying two sticks is evidence that the victim unlawfully entered Brown’s driveway. For the purposes of the castle doctrine, a driveway falls within the definition of a dwelling. See WIS. STAT. § 939.48(1m)(a)1. (adopting the definition of dwelling in WIS. STAT. § 895.07(1)(h) ) and WIS. STAT. § 895.07(1)(h) (" ‘Dwelling’ includes other existing structures on the immediate residential premises, such as driveways, sidewalks, swimming pools, terraces, patios, fences, porches, garages, and basements.") Thus, the State concedes that the circuit court should have instructed the jury to use WIS JI—CRIMINAL 805A if the jury determined that the victim had unlawfully entered Brown’s driveway at the time of the stabbing.

¶11 We accept the State’s concession that there was evidence to support the regular self-defense instruction, WIS JI—CRIMINAL 810, and the castle doctrine modification instruction, WIS JI—CRIMINAL 805A. Specifically, the circuit court should have instructed the jury to use the regular instruction if the jury found that the victim had not unlawfully entered Brown’s driveway at the time of the stabbing, or, alternatively, that the jury should follow the castle doctrine modification instruction if the jury found that the victim had unlawfully entered Brown’s driveway at the time of the stabbing.

¶12 We therefore proceed to the question of whether the circuit court’s error in not including the castle doctrine instruction was harmless. See State v. Stietz , 2017 WI 58, ¶ 61, 375 Wis. 2d 572, 895 N.W.2d 796 (an error in refusing to instruct the jury on a requested defense instruction is subject to the harmless error rule). An error is harmless "if it is clear beyond a reasonable doubt that a rational jury would have come to the same conclusion absent the error." Id ., ¶ 63.

¶13 The circuit court addressed harmless error and we agree with its conclusion that, beyond reasonable doubt, a rational jury would have found Brown guilty of first-degree reckless injury, even if the jury had been given the option of using the castle doctrine instruction. The circuit court correctly reasoned that, in order to use the castle doctrine instruction, the jury would have to believe Brown’s version of events, in which Brown stabbed the victim after the victim ran up the driveway to attack Brown. And, we agree with the circuit court that no reasonable jury could have believed Brown’s version of events. One eyewitness described Brown as the clear aggressor, brandishing a knife as he advanced down his driveway toward the victim, while the victim backed into the cul-de-sac and tried to use sticks to defend himself. Then, as the two men faced off, Brown was the one who swung first. This version of events was confirmed to police by a neighbor who watched the scene unfold from his upstairs window.⁵

¶14 Brown argues that there was evidence from which the jury could have found that "there was a reasonable probability that [the victim] ran up the driveway to attack Brown." However, the circuit court found Brown’s version of events "to be completely incredible based on the uncontroverted physical evidence and statements made by all of the other witnesses."

¶15 Brown argues that, in reaching this determination, the circuit court improperly weighed the evidence at trial. Brown relies on our supreme court’s decision in Stietz, in which the court determined that a defendant was entitled to a new trial due to the circuit court’s failure to give a self-defense instruction. Id. , ¶¶ 67-70. The court...