In re Herring, Bankruptcy No. 94-00545-BGC-7. Adv. P. No. 94-00062.

CourtU.S. Bankruptcy Court — Northern District of Alabama
Writing for the CourtBENJAMIN COHEN
Citation193 BR 344
Decision Date30 June 1995
Docket NumberBankruptcy No. 94-00545-BGC-7. Adv. P. No. 94-00062.
PartiesIn re Robert H. HERRING, Debtor. Benny Joe MONTGOMERY, Plaintiff, v. Robert H. HERRING, Defendant.

193 B.R. 344 (1995)

In re Robert H. HERRING, Debtor.
Benny Joe MONTGOMERY, Plaintiff,
Robert H. HERRING, Defendant.

Bankruptcy No. 94-00545-BGC-7. Adv. P. No. 94-00062.

United States Bankruptcy Court, N.D. Alabama, Southern Division.

June 30, 1995.

193 BR 345

Richard Jones, Birmingham, Alabama, for Defendant-Debtor.

Dennis Jacobs, Birmingham, Alabama, for Plaintiff.


BENJAMIN COHEN, Bankruptcy Judge.

This matter came before the Court for trial on the Complaint to Determine Dischargeability filed by Benny Joe Montgomery. Appearing were Mr. Dennis W. Jacobs, the attorney for the plaintiff; Mr. Richard L. Jones, the attorney for the defendant; Mr. Robert Herring and Mr. Benny Montgomery. The matter was submitted on the testimony offered, the exhibits admitted into evidence,

193 BR 346
the record in the case and the arguments of counsel


On October 28, 1988, the debtor, Mr. Robert Herring deliberately shot the complainant, Mr. Benny Montgomery, with a pistol. Mr. Montgomery contends that the shooting was willful and malicious, that the debt owed to him by Mr. Herring is a result of the shooting and that the debt is consequently nondischargeable in bankruptcy. Mr. Herring contends that he shot Mr. Montgomery in self defense.

The shooting occurred in a house occupied by Ms. Kim Jones and her minor daughter, and by Ms. Peggy Jones, who is Kim Jones's mother. The only one of the three occupants in the home at the time of the shooting was Ms. Kim Jones ("Ms. Jones"). The house was owned by Ms. Peggy Jones ("Ms. P. Jones").

Ms. Jones was married to Mr. Herring for about three years, but was divorced from him several months before the shooting. Following her divorce, Ms. Jones began seeing Mr. Montgomery on a social basis. Mr. Herring and Mr. Montgomery were acquainted with one another and had, in fact, been good friends, until Mr. Montgomery began dating Ms. Jones.

In connection with the shooting of Mr. Montgomery, Mr. Herring was indicted for burglary in the first degree and assault in the first degree. After a jury was struck and the prosecution began the presentation of its case on June 20, 1989, Mr. Herring pled guilty to the assault charge. Upon his plea of guilty, Mr. Herring was convicted of assault in the first degree. The burglary charge was dismissed. Mr. Herring received a sentence of ten years and was ordered to pay restitution to Mr. Montgomery for his medical expenses. Mr. Herring made successful application for probation and was not required to spend any time in the penitentiary. Mr. Herring testified that he paid all restitution as ordered by the state court.

Within approximately three months following the shooting, Ms. Jones and Mr. Herring began living together again. Soon after the two resumed cohabitation, Ms. Jones became pregnant and remained so during Mr. Herring's criminal trial.

A. Mr. Montgomery's Testimony

According to Mr. Montgomery's testimony, Mr. Herring had threatened Mr. Montgomery's life on several occasions since Mr. Montgomery had begun dating Ms. Jones, saying things to Mr. Montgomery like "You're a walking dead man." Mr. Montgomery talked with Ms. Jones on the telephone the morning of the shooting and Ms. Jones told Mr. Montgomery that Mr. Herring had come to her house, beaten on her door and left. Mr. Montgomery told Ms. Jones that he was coming to take her to work and then left his residence for that purpose. Approximately one-half of the way from his residence to Ms. Jones's house, Mr. Montgomery passed Mr. Herring driving in the opposite direction. Mr. Montgomery continued to Ms. Jones's house and upon arriving there parked in the driveway, which is at one end of the house, and then entered the house through the front door. Ms. Jones met Mr. Montgomery at the front door. She then proceeded to her bedroom to get ready for work while Mr. Montgomery went into another bedroom to watch television and wait for her. After about ten minutes, Mr. Montgomery heard Ms. Jones "holler Robbie is here," referring to Mr. Herring. Mr. Montgomery went into Ms. Jones's bedroom and then began walking up the hallway which leads between the bedrooms in the direction of the living room and kitchen. Mr. Montgomery knew that Mr. Herring was in the habit of carrying a pistol. Mr. Montgomery was, at that moment, unarmed.

When Mr. Montgomery arrived at the doorway between the living room and kitchen, he met Mr. Herring. The back door which leads into the kitchen from the yard was open. Mr. Herring was in the doorway between the living room and kitchen with a pistol in his right hand. The pistol was pointed straight up. Mr. Montgomery, with his left hand, grabbed Mr. Herring's hand that held the gun "trying to hold it off of me", and, with his right hand, Mr. Montgomery grabbed a metal swing set brace from the utility room in the kitchen for the purpose

193 BR 347
of defending himself. Mr. Montgomery could not recall if anything was said at that time

Mr. Herring loosed his right hand from Mr. Montgomery's grasp and hit Mr. Montgomery on the top of the head with the gun. Mr. Montgomery dropped the swing set brace but continued to scuffle with Mr. Herring. At some point during the melee, Mr. Montgomery picked up a bar stool from the kitchen, also to defend himself. Mr. Montgomery does not recall when he picked up the bar stool, or whether or not he ever actually hit Mr. Herring with either the swing set brace or the bar stool. He believes that he picked up the bar stool after he had been shot the first time. Ultimately, Mr. Herring broke free and shot Mr. Montgomery with the pistol. Mr. Herring fired the pistol several times from a distance of only a few feet. Mr. Montgomery was struck once in the stomach and once in the chest. Mr. Montgomery, after he had been shot the second time, noticed that he was covered in blood, ran back down the hall into the bathroom, where he obtained some towels to staunch the flow of blood and called for help on the bathroom telephone. When Mr. Montgomery came out of the bathroom, no one else was in the house. An ambulance carried Mr. Montgomery to the hospital where surgeons removed his ruptured spleen and repaired a bullet hole in his stomach.

B. Mr. Herring's Testimony

As might be expected, Mr. Herring's testimony presented a different version of the events surrounding the shooting. Mr. Herring testified that during the two month period preceding the shooting, he was seeing Ms. Jones once a week and maintaining a "physical relationship" with her on those occasions. Mr. Herring was not aware that Ms. Jones was dating Mr. Montgomery, but knew that Ms. Jones and Mr. Montgomery were "friends." He had no conversations with Mr. Montgomery during that period of time, either in person or by telephone, and did not threaten Mr. Montgomery's life.

According to his testimony, Mr. Herring went to Ms. Jones's house around 6:30 a.m. on the day of the shooting. He stayed there with Ms. Jones for about three hours. During that time, Ms. Jones received several phone calls including one from her brother and others from people who were not identified to him. Mr. Herring left Ms. Jones's house somewhere around 9:00-9:30 a.m. After driving for some distance in the direction of his house twenty miles away, Mr. Herring realized that he had left his house keys in Ms. Jones's house. His house keys were on a ring separate from the keys to the car he was driving, which was his brother's car. Mr. Herring returned to Ms. Jones's house. He did not see Mr. Montgomery or know that Mr. Montgomery would be at Ms. Jones's house. After about ten or fifteen minutes he arrived at Ms. Jones's house. As he drove up the road along the side of the house, which offers a view of the rear of the house, he saw Ms. Jones through the sliding glass back door. Mr. Herring saw Mr. Montgomery's truck parked on the side of the driveway. He went straight to the back door, the purpose of which was to try to get Ms. Jones's attention so that she could retrieve and return his keys without the necessity of entering the house. Ms. Jones was no longer in the kitchen but the back door was open by a couple of inches. Mr. Herring entered the kitchen and called "Hey Kim." He then proceeded through the kitchen into the living room. There he saw Mr. Montgomery advancing toward him in the hallway to his left. When Mr. Herring turned toward Mr. Montgomery, Mr. Montgomery struck him with the swing set brace. Mr. Montgomery did not say anything before he struck Mr. Herring. Mr. Herring blocked the blow with his left arm to prevent the brace from hitting him in the head. Mr. Montgomery swung the brace again and hit Mr. Herring in the chest. Mr. Montgomery struck Mr. Herring three or four times with the brace. Several photographs were introduced into evidence showing a large bruise under the bottom of Mr. Herring's left arm above the elbow.

As the fight began, Ms. Jones was standing behind Mr. Montgomery in the hallway, and screamed, "Yall quit or I'm calling the police." Mr. Herring told Ms. Jones to "Call," and did not see Ms. Jones again until the struggle was over.

193 BR 348

Mr. Herring had a pistol in his back pocket. The pistol was loaded and there was a round in the chamber. The safety was on. While Mr. Montgomery was hitting him with the brace, Mr. Herring reached into his back right pocket, retrieved his pistol, and hit Mr. Montgomery in the head with it. Mr. Montgomery dropped the brace and knocked Mr. Herring back into the wall next to the kitchen door. Mr. Montgomery grabbed Mr. Herring's arm and slung him across a table into the wall between the hallway and the front door. Mr. Montgomery ran into the kitchen and came back into the living room with a bar stool. Holding the stool by the padded end, Mr. Montgomery raised it above his head and brought it down to strike Mr. Herring on the head and left shoulder. Mr. Herring grabbed the rungs of the bar stool with his...

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