GEORGE L. BROWN, Petitioner-Appellant, v. CHERYL EPLETT, Respondent-Appellee.
No. 21-1515
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 10, 2021 — DECIDED SEPTEMBER 7, 2022
Before MANION, ROVNER, and WOOD, Circuit Judges.
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:19-cv-01010-bbc — Barbara B. Crabb, Judge.
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
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 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
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
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
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.
As our summary thus far indicates, there was a conflict in the testimony as to precisely where K.M. was located during
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,
The trial court denied Brown’s request for an instruction on the castle doctrine, reasoning that K.M. was an invitee and thus was not in any way attempting to forcibly enter any part of Brown’s dwelling.7 Instead, the court gave the standard self-defense instruction. Among other points, the prosecutor
The jury acquitted Brown of the attempted homicide charge but convicted him on the reckless-injury charge. The trial court sentenced him to a period of 12 years in prison followed by 10 years of extended supervision. The court denied Brown’s post-conviction motion asserting that it was error not to instruct the jury on the castle doctrine. The court reasoned in part, “In the instant action, the Castle Doctrine does not apply because [K.M.] was initially an invitee to a family barbeque. Additionally, there is not any credible evidence that [K.M.] was ‘unlawfully or forcibly entering’ any portion of Brown’s ‘dwelling’ at the time of the stabbing.” R. 5-2 at 53.
Brown appealed, arguing as relevant here that the refusal to instruct the jury on the castle doctrine was error. The State conceded that the instruction should have been given, as there was “some evidence” to support it, given Brown’s testimony that K.M. had confronted him on the driveway of his home.8 But the State argued that the error was harmless.
The Wisconsin Court of Appeals affirmed. It accepted the State’s concession that the castle-doctrine instruction should have been given, but it agreed with the State that the error was
Brown then petitioned for a writ of habeas corpus in the district court. Judge Crabb denied the petition. She found in the first instance that Brown had fairly presented his due process claim to the state appellate court. But she went on to reason that Brown’s claim of instructional error did not rise to the level of a constitutional violation, in that the error did not implicate the elements of the charged offense, but rather bore only on Brown’s defense. Even if a due process violation had occurred, she added, the error was harmless. Brown v. Jess, 521 F. Supp. 3d 792 (W.D. Wis. 2021).
II.
In this court, Brown renews his argument that the trial judge’s refusal to modify the self-defense instruction to incorporate the material aspects of the castle doctrine rose to the level of a due process violation. As we discuss in greater detail below, Brown contends that the error in instructing the jury as to self-defense effectively modified a key element of the reckless-injury charge, thus violating his due process right that the jury be properly instructed as to each element of the charged offense. We can assume that Brown is correct in this regard. Nonetheless, we conclude that Brown is not entitled to a writ of habeas corpus because any such error was harmless.
We must first consider whether Brown fairly presented his due process claim to the Wisconsin appellate court. Before seeking relief in federal court, a habeas petitioner must first give the State the opportunity to address and correct any alleged violation of his federal rights, which means that he
The instructional error that occurred in this case was, in the first instance, one of state law. Wisconsin has adopted certain principles that govern a standard claim of self-defense, and more recently it has also adopted the castle doctrine, which modifies those principles in cases where an individual is in his dwelling confronting an intruder. Errors of state law in and of themselves are not redressable in habeas corpus, Estelle v. McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (1991); Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004), and this includes state-law instructional errors in non-capital cases, Gilmore v. Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117–18 (1993);
However, “the Due Process Clause [of the Fourteenth Amendment] protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). Thus, instructions that reduce or shift the State’s burden of proof or wholly omit an essential element of the charged offense could give rise to a due process violation. See Waddington v. Sarausad, 555 U.S. 179, 190–91, 129 S. Ct. 823, 831–32 (2009); Cupp v. Naughten, 414 U.S. 141, 146–48, 94 S. Ct. 396, 400–01 (1973); Sanders v. Cotton, 398 F.3d 572, 581–82 (7th Cir. 2005); Cole v. Young, 817 F.2d 412, 423 (7th Cir. 1987).
Brown was convicted of reckless injury. See
Wisconsin’s self-defense privilege permits “[a] person … to threaten or intentionally use force against another for the purpose of preventing what the person reasonably believes to be an unlawful interference with his person or her person by such other person.”
As a general matter, self-defense is regarded as an affirmative defense in Wisconsin law, in that it supplies a defense to the charged crime even where the State has otherwise succeeded in establishing each of the elements of that crime beyond a reasonable doubt. See State v. Austin, 836 N.W.2d 833, 837 (Wis. Ct. App. 2013). With an intentional crime such as murder, for an example, a jury might find that the defendant meant to cause the death of another person but at the same time find that he reasonably used lethal force against that person in defense of his own life. See State v. Watkins, 647 N.W.2d 244, 253 (Wis. 2002); Wis. Crim. Jury Instr. 801 n.1 (2021) (“in cases involving the intentional causing of harm … intent to cause harm and self-defense can exist at the same time”). In this way, self-defense does not negate any element of the charged offense but rather justifies or excuses the defendant’s conduct as a legal matter. See Smith v. United States, 568 U.S. 106, 110, 133 S. Ct. 714, 719 (2013).
However, with respect to an offense like first-degree reckless injury, which is premised on a mens rea of recklessness, a successful assertion of self-defense does serve to negate an element of the crime, rendering self-defense a negative defense rather than an affirmative defense. Austin, 836 N.W.2d at 837–38 & n.6. Because the “criminally reckless conduct” element of reckless injury requires proof that the defendant has created an “unreasonable and substantial risk of death or great bodily harm to another person,”
Once a defendant establishes the existence of a statutory affirmative defense (including self-defense), see n.8, supra, Wisconsin law, independent of federal due process requirements, imposes on the State the burden of disproving the defense beyond a reasonable doubt. Moes v. State, 284 N.W.2d 66, 69–71 (Wis. 1979); State v. Schleusner, 454 N.W.2d 51, 54 (Wis. Ct. App. 1990); see also State v. Kizer, 976 N.W.2d 356, 360 (Wis. 2022); State v. Stoehr, 396 N.W.2d 177, 188 (Wis. 1986). In cases where the defense operates as a negative defense, as it does here, the State of course retains that burden of proof. See Austin, 836 N.W.2d at 837–38; see also State v. Pettit, 492 N.W.2d 633, 640 (Wis. Ct. App. 1992) (where defendant successfully asserts negative defense, “the burden is upon the state to prove beyond a reasonable doubt that defendant’s evidence did not negate an element necessary to convict”). But because the defense in such cases serves to negate one or more elements of the charged crime, an error in describing the State’s burden of proof with respect to a negative defense or in articulating the elements of the defense may well implicate the defendant’s due process rights. See State v. Schultz, 307 N.W.2d 151, 156 (Wis. 1981) (if asserted defense challenges an element of the charged crime, “the state bears the burden of proving this element beyond a reasonable doubt” and in the face of negative defense, “the burden of persuasion cannot be placed upon the defendant without violating his right to due process of law”); State v. McGee, 698 N.W.2d 850, 856 (Wis. Ct. App. 2005) (“It would be a violation of due process to place the burden of persuasion on a defendant who would be asserting a negative defense, that is, a defense that negates a fact that the State must prove.”); Engle v. Isaac, 456 U.S. 107, 121–22, 102 S. Ct. 1558, 1568–69 (1982) (acknowledging that, to the extent self-defense negates one or more elements of the charged offense, such that State must disprove the defense as part of establishing defendant’s guilt on those offense elements, jury instructions that
As we have noted, Brown’s theory is that the trial court’s refusal to give a self-defense instruction incorporating the castle doctrine improperly modified the criminally reckless conduct element of the offense. Recall that the standard self-defense instruction, which the trial court in this case adopted, permits the jury, in assessing the reasonableness of the defendant’s use of force, to consider whether he could have protected himself by retreating. By contrast, the castle doctrine removes the possibility of retreat from the jury’s consideration. The castle doctrine also grants the defendant the benefit of a (rebuttable) presumption that he reasonably believed that his use of force in defending himself was reasonable. And as we have just explained, the jury’s assessment of self-defense will inform its finding as to the second element of the reckless-injury offense—whether the defendant engaged in criminally reckless conduct. See Austin, 836 N.W.2d at 837–38. Brown thus reasons that the failure to instruct the jury consistently with the castle doctrine tainted not only the jury’s consideration of self-defense but also its consideration of a key element of the charged offense. We shall elaborate on this point in a moment; first, we must address the question of fair presentment.
We agree with the district court that Brown fairly presented this due process claim to the Wisconsin courts. Although his principal brief to the Wisconsin Court of Appeals largely argued that the jury instruction on self-defense was erroneous as a matter of state law, the brief also noted that “[a] failure to properly instruct the jury in such circumstances [when the evidence supports the instruction] … violates the federal due
Still, there are reasons to believe the failure to instruct the jury in accord with Wisconsin’s castle doctrine did implicate his due process rights.10 As we have discussed, with respect to the charged reckless-injury offense, self-defense operates to negate an element of that offense: if the defendant’s use of force to defend himself was reasonable, then his conduct could not have been criminally reckless. To this extent, the absence or disproof of self-defense could be equated with an element of the reckless-injury offense. See Wis. Crim. Jury Instr. 801 n.1 (in recklessness cases, “the absence of the privilege [of self-defense] is identified as a fact the state must prove in addition to the statutorily defined elements of the intentional crime“); Austin, 836 N.W.2d at 838 (where pattern self-defense instruction advised jury that it should consider evidence related to self-defense in deciding whether defendant’s conduct created an unreasonable risk to another but also implied that defendant must satisfy jury that he was acting in self-defense, instruction improperly removed burden of proof from State to show that defendant was engaged in criminally reckless conduct). As Brown sees it, the trial court, by refusing to modify the self-defense instruction in accordance with the castle doctrine, expressly and erroneously allowed the jury to
But we are nonetheless satisfied that any such due process violation was harmless. The Wisconsin Court of Appeals reached the same conclusion on direct review of Brown’s conviction, concluding “beyond a reasonable doubt that a rational jury would have come to the same conclusion absent the [instructional] error.” R. 5-5 at 12 (quoting Seitz, 895 N.W.2d at 808). The state court in so holding applied the prejudice inquiry for constitutional errors articulated by Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), for cases
Brecht directs us to consider whether the error “had substantial or injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)); see also Ayala, 576 U.S. at 267–68, 135 S. Ct. at 2197–98; Fry, 551 U.S. at 121–22, 127 S. Ct. at 2328. And in contrast to Chapman’s prejudice inquiry, as to which the State bears the burden of persuasion, see Brown, 142 S. Ct. at 1523, it is the habeas petitioner who bears the burden of demonstrating that the error had such an effect or influence, see Brecht, 507 U.S. at 637, 113 S Ct. at 1722; Brown, 142 S. Ct. at 1523.
There must be more than a reasonable probability that the error was harmful. The Brecht standard reflects the view that a State is not to be put to the arduous task of retrying a defendant based on mere speculation that the defendant was prejudiced by trial error; the court must find that the defendant was actually prejudiced by the error.
Ayala, 576 U.S. at 268, 135 S. Ct. at 2198 (cleaned up). Ultimately, a court may grant habeas relief only if it is in “grave doubt” as to whether the federal error had a substantial or injurious effect in determining the jury’s verdict. Id. at 267–68, 135 S. Ct. at 2197–98.
Initially, Brown suggests that we should apply Chapman here, such that the burden is on the State to show beyond a reasonable doubt that the instructional error did not influence the verdict; but he is wrong in this assertion. He relies on Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), which applied Chapman in determining whether, in a federal criminal prosecution, a jury instruction that erroneously omitted an element of the offense was harmless. Thus, the Court asked, “Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?” Id. at 18, 119 S. Ct. at 1838. But the Chapman standard for harmlessness
Brown has placed a great deal of emphasis on the notion that the instructional error permitted the jury to consider whether he had the opportunity to retreat into his home. But as Judge Crabb pointed out below, even if the jury had been properly instructed in accordance with the castle doctrine, the jury would still have been free to consider the possibility of retreat unless it accepted Brown’s account that K.M. charged up the driveway at him. 521 F. Supp. 3d at 801–02. Yet, the jury could readily have rejected his version of events and credited the testimony of other witnesses that Brown confronted K.M. in the street. Id. Brown’s counsel has done a respectable job of marshaling every possible argument in favor of his factual case and against the State’s case on this point. But like the district judge, we are not persuaded that a properly instructed jury would have accepted his factual account of the key events culminating in the stabbing.
Multiple witnesses, including Brown himself, agreed that K.M. had been walked to his car on the street after the initial scuffle between the two men. At that point in time, there was no real threat to Brown.
Only Brown testified that K.M. subsequently charged up the driveway. K.M.’s wife, Rebecca, directly contradicted Brown on this point, testifying that Brown walked down the driveway and confronted K.M. in the street. Kelan Phillips likewise told police that Brown walked to where K.M. was
It is true that Cynthia Harms testified she witnessed (heard more than saw) a scuffle next to the Mustang parked in the driveway, at which point she left her upstairs window to retrieve her phone and call 911, and upon returning to the window saw K.M. at the bottom of driveway, where he stepped toward, and then fell in front of, his nearby car. Harms’ testimony was, as the state appellate court characterized it, “ambiguous.” R. 5-5 at 10. Harms testified that at no point in her observations from the window did she see Brown. Brown appears to infer from the fact that Harms saw K.M. standing at the bottom of the driveway and collapsing as he moved toward his car, but did not see Brown himself, that her account supports the notion that the stabbing must have taken place on the driveway and that K.M. walked back to the street after being stabbed. But Harms also denied seeing any fighting
Importantly, the physical evidence at the scene also did not lend support to Brown’s account that K.M. had stormed up the driveway and confronted him there. K.M. was stabbed not once but three times, which one would think would have caused immediate bleeding. (Brown’s own arm wound, sustained in the initial scuffle, resulted in blood droplets and stains found in multiple locations: on the garage floor, on the Cadillac sedan parked in the driveway, and on a bottle of
Moreover, by the account of multiple witnesses, including Harms, Brown made threatening statements even after K.M. had collapsed in the street with the knife in his head, including “He’s not dead yet, but I’ll kill him,” and, to Rebecca, “I’ve got one for you too, bitch.” Brown acknowledged having made such statements in his testimony. These are statements that are inconsistent with the notion that Brown had been in fear for his safety and had struck K.M. in self-defense.
Brown suggests it is implausible that the jury credited the State’s version of the events leading up to the stabbing—Rebecca’s account in particular—given its decision to acquit him on the attempted homicide charge. The Wisconsin Court of Appeals addressed this point and rejected his interpretation of the acquittal: “[T]he more likely explanation is that the jury did not find beyond [a] reasonable doubt that Brown acted with the necessary intent to kill the victim.” R. 5-5 at 11. Brown faults the court’s reasoning in this regard. As he sees it, had the jury credited Rebecca’s account that he was the aggressor, that he went into his house to retrieve a knife, and that he then traversed the length of the driveway and physically accosted K.M. with the knife in the street, then the jury
But we discern nothing irrational about the Wisconsin appellate court’s observation as to the acquittal on the attempted homicide charge. Any attempt to explain why a jury acquitted the defendant on one charge but convicted him on another is a necessarily speculative enterprise. See United States v. Powell, 469 U.S. 57, 66–67, 105 S. Ct. 471, 477–78 (1984); United States v. Askew, 403 F.3d 496, 501 (7th Cir. 2005); United States v. McGee, 189 F.3d 626, 630 (7th Cir. 1999); United States v. Nobles, 69 F.3d 172, 188–89 (7th Cir. 1995). We certainly can assume that the jury, on a favorable view of the State’s witnesses, could have convicted Brown on the attempted homicide charge, but we do not agree with Brown that the decision to acquit him on that charge necessarily or even likely means that the jury credited his own account of events and determined that K.M. was the aggressor and that he charged up at Brown in the driveway, thus compelling Brown to defend himself. As the state court noted, the attempted homicide charge required a significantly more culpable mens rea than the reckless-injury charge: an intent to kill versus an awareness that one’s acts posed a risk of death or grave bodily harm to the victim. When presented with the not altogether uncommon scenario of a late-night, drunken brawl between aggrieved family members, the
Brown has also faulted the state trial judge and appellate court for finding, in light of the evidence we have described, that his account of events was incredible as they assessed whether or not the omission of the castle doctrine was harmless under Chapman. Given that we have engaged in a de novo review of harmlessness under Brecht, any purported faults in the state courts’ own review for harmlessness are really beside the point. That said, Brown is correct that credibility assessments and the weighing of evidence are the province of the factfinder, and insofar as possible, we as a habeas court must avoid supplanting the role of a jury. See Tyson v. Trigg, 50 F.3d 436, 453 n.2 (7th Cir. 1995) (Flaum, J., concurring) (collecting cases).
Nonetheless, Brecht requires that we make a probabilistic assessment in determining whether the instructional error had a substantial and injurious effect or influence in determining the jury’s verdict: we must ask ourselves “whether a properly instructed jury would have arrived at the same verdict, absent the error.” Armfield v. Nicklaus, 985 F.3d 536, 543–44 (7th Cir.) (quoting Czech, 904 F.3d at 577), cert. denied, 142 S. Ct. 190 (2021). And as the district court pointed out, that requires us to consider, inter alia, the overall strength of the State’s case against the totality of the evidence. 521 F. Supp. 3d at 801 (citing Czech, 904 F.3d at 577). In doing so, we may necessarily touch upon questions of witness credibility and the plausibility of the parties’ respective theories of the case. See Toney v. Peters, 48 F.3d 993, 998 (7th Cir. 1995) (collecting cases).
For all of the reasons we have set out, we harbor no grave doubt as to whether a properly instructed jury still would have convicted Brown. The State had a strong case against Brown which established not only that the final physical confrontation between him and K.M. took place in the street, off of Brown’s property, but also, as the district court noted, that Brown was the aggressor. 521 F. Supp. 3d at 802. No testimony other than Brown’s supported his version of events, the physical evidence did not corroborate his averment that the stabbing took place in his driveway, and, as the district court emphasized, Brown’s own words in the aftermath of the stabbing suggested that he had stabbed K.M. in anger rather than in fear for his life. Id. at
III.
For the foregoing reasons, we AFFIRM the judgment.
Notes
R. 5-14 at 21–22.The law of self-defense allows a defendant to threaten or intentionally use force against another only if the defendant believed there was an actual or imminent unlawful interference with the defendant’s person and the defendant believed that the amount of force the defendant used or threatened to use was necessary to prevent or terminate the interference and that the defendant’s beliefs were reasonable.
The defendant may intentionally use force which is intended or likely to cause death or great bodily harm only if the defendant reasonably believed that the force used was necessary to prevent imminent death or great bodily harm to himself.
A belief may be reasonable even though mistaken. In determining whether the defendant’s beliefs were reasonable, the standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.
The reasonableness of the defendant’s beliefs must be determined from the standpoint of the defendant at the time of the defendant’s acts and not from the viewpoint of the jury now.
R. 5-14 at 22.There is no duty to retreat. However, in determining whether the defendant reasonably believed the amount of force used was necessary to prevent or terminate the interference, you may consider whether the defendant had the opportunity to retreat with safety, whether such retreat was feasible, and whether the defendant knew of the opportunity to retreat.
Wis. Crim. Jury Instr. 810 n.1; R. 5-5 at 5. Additionally, consistent with statutory provision on the castle doctrine, the jury would have been instructed to “presume that the [defendant] reasonably believed that the force was necessary to prevent imminent death or great bodily harm to himself … .”There is no duty to retreat. You must not consider evidence relating to whether the defendant had an opportunity to flee or retreat in deciding whether the state has proved that the defendant did not act lawfully in self-defense.