Schmeckpeper v. Lewis (In re Lewis)

• Decision Date: 25 March 2015
• Docket Number: Adversary Case No. 14–2478,Case No. 14–27565–svk
• Citation: 528 B.R. 885
• Parties: In re Tyson James Lewis, Debtor. Neil Schmeckpeper, et al., Plaintiffs, v. Tyson James Lewis, Defendant.
• Court: U.S. Bankruptcy Court — Eastern District of Wisconsin

528 B.R. 885

In re Tyson James Lewis, Debtor.Neil Schmeckpeper, et al., Plaintiffs

v.Tyson James Lewis, Defendant.

Case No. 14–27565–svk

Adversary Case No. 14–2478

United States Bankruptcy Court, E.D. Wisconsin.

Signed March 25, 2015

Thomas J. Awen, Law Offices of Thomas J. Awen, Milwaukee, WI, for Plaintiff.

James L. Miller, Paula R. Brunner, Miller & Miller Law, LLC, Milwaukee, WI, Jared M. Nusbaum, Law Office of Rollie R. Hanson, S.C., West Allis, WI, for Defendant.

MEMORANDUM DECISION

Susan V. Kelley, Chief U.S. Bankruptcy Judge

This case involves the tragic shooting death of 17–year–old Douglas Schmeckpeper (“Douglas”) by Tyson Lewis (the “Debtor”). The Debtor claimed he did not know the gun was loaded, and the shooting was an accident. He pled guilty to second degree reckless homicide and served fifteen years in prison. In 2001, while the Debtor was incarcerated, Douglas's parents, Neil and Stella Schmeckpeper (the “Plaintiffs”) obtained a wrongful death judgment against him. When the Debtor filed bankruptcy, the Plaintiffs filed a complaint to except the judgment debt from discharge as a willful and malicious injury under 11 U.S.C. § 523(a)(6).

The Court held a trial on March 18, 2015, at which the Debtor and several other witnesses testified.¹ Prior to the trial, the parties stipulated to the authenticity of certain uncertified official documents and public records. (Docket No. 54.) The exhibits that were admitted and discussed at the trial included the Debtor's guilty plea questionnaire (Plaintiffs' Exhibit 1001; Docket No. 28), the transcript of the guilty plea proceedings (Plaintiffs' Exhibit 1002; Docket No. 29), the transcript of the sentencing proceedings (Plaintiffs' Exhibit 1004; Docket No. 31), and the criminal complaint (Plaintiffs' Exhibit 1015; Docket No. 13 at 4–6).² After considering the evidence, the Court issued a preliminary ruling that the Plaintiffs had not met their burden of proof. This memorandum decision memorializes the Court's decision and constitutes the Court's findings of fact and conclusions of law.

Under 11 U.S.C. § 523(a)(6), a debtor's discharge does not include any debt “for willful and malicious injury by the debtor to another entity or to the property of another entity.” The United States Supreme Court defined “willful” in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). Under the Court's definition, the debtor must either desire to cause the consequences of his act, or believe that the consequences are substantially certain to result from it:

The word “willful” in (a)(6) modifies the word “injury,” indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.' Or, Congress might have selected an additional word or words, i.e., “reckless” or “negligent,” to modify “injury.” Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer's mind the category “intentional torts,” as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend “the consequences of an act,” not simply “the act itself.”

Id. at 61–62, 118 S.Ct. 974. In Geiger , the Court emphasized that reckless conduct is not intentional conduct, and does not qualify as “willful” under § 523(a)(6). Id. at 64, 118 S.Ct. 974.

The Seventh Circuit Court of Appeals recently construed the meaning of “willful” in Gerard v. Gerard, 780 F.3d 806 (7th Cir.2015). Quoting its prior decision in First Weber Group, Inc. v. Horsfall, 738 F.3d 767 (7th Cir.2013), the court stated, “[w]illfulness requires a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury .... [i]t can be found either if the debtor's motive was to inflict the injury, or the debtor's act was substantially certain to result in injury.” Gerard, 780 F.3d at 811 (internal quotations and citations omitted). According to the court of appeals, “one must act with the specific intent to cause a certain result in order to prove willfulness.” Id. at 811.

At the trial, the Debtor testified that he did not intend to shoot, injure or kill Douglas. (Debtor Testimony 12:23:13.) At the time of the shooting the Debtor was 17 years old, and he and Douglas were close friends. He testified that he could not recall where he obtained the gun, but he got it for personal protection. (Id. at 10:06:59.) On January 21, 1999, the day of the shooting, the Debtor and Douglas were in the basement of Douglas's home. The Debtor testified that he removed the gun from his pocket and was “waving it around” and “playing with it.” (Id. at 12:20:02–12:21:30.) The Debtor believed that the gun was unloaded because he had opened the cylinder earlier that day (he could not recall when he had done so), turned the gun upside down and emptied the bullets into his pocket. (Id. at 10:16:23.) The Debtor testified that at one point he pulled back the hammer of the gun, put it to his own head, and pulled the trigger. (Id. at 10:22:50; 12:21:24.)

Although the Debtor did not remember putting his finger on the trigger again (Id. at 10:24:50), while the Debtor was waving the gun around it fired, striking Douglas. (Id. at 10:22:52–10:23:21; 12:21:45.) Douglas died as a result of his injuries. The Debtor stated that he was scared, and he fled the scene after waking Douglas's mother to inform her that he had been shot. At first he blamed someone else for the shooting, but two days later, he voluntarily turned himself in to police with his attorney. (Id. at 10:28:40–10:42:39.) He was charged with second degree reckless homicide while armed with a dangerous weapon. (Docket No. 13 at 4–6). The Debtor testified that on the advice of his attorney, he chose to plead guilty rather than invoking his right to argue that the shooting was an accident. (Debtor Testimony 10:51:54.)

Jose Antonio Sanchez testified for the Plaintiffs, recounting an incident when the Debtor had brandished a gun in public. (Sanchez Testimony 9:58:08.) He explained that he witnessed the Debtor loading a gun at the Debtor's home and, on one occasion, pointing a gun at him and Douglas on the street. Mr. Sanchez also testified that the Debtor informed him that he always kept the gun loaded. (Id. at 10:02:10.) The Debtor testified that he had carried the gun with him in public on occasion, but he denied always keeping the gun loaded or loading the gun in front of Mr. Sanchez. (Debtor Testimony 12:25:00–12:25:16.) The Debtor testified credibly that Mr. Sanchez had never been at the Debtor's home. (Id. at 10:14:00.) He also disputed that he pointed the gun at Mr. Sanchez at any time. (Id. at 12:30:01–12:30:35.)

One of the investigating police officers, Michael Dubis, testified about the investigation into Douglas's death. Officer Dubis provided background information on the type of gun the Debtor used, and he stated that some pressure had to be placed on the trigger in order to discharge the gun. (Dubis Testimony 11:26:33–11:26:53.) Officer Dubis also explained the proper method for unloading bullets from the gun, and he stated that unless the gun is turned completely straight up and down, it is common for one or more bullets to catch on the cylinder release and remain in the gun. (Id. at 11:23:48–11:24:17.)

As part of his testimony, the Plaintiffs offered Officer Dubis's police report into evidence. (Plaintiffs' Exhibit 1006; Docket No. 66 at 69–70.) They attempted to introduce statements made by Jamie Grabowski to Officer Dubis the day after the shooting. Ms. Grabowski told Detective Dubis that the Debtor told her that he had shot Douglas. (Id. ) Ms. Grabowski informed Officer Dubis that the Debtor

[t]old her that it was an accident, that they were playing Russian Roulette. He told her that he had emptied the cartridges out of the cylinder and he had put one cartridge back into the cylinder, spun the cylinder and closed the gun. She stated that he told her that he looked at the cylinder and saw that the cartridge was off to the side, and not underneath the hammer. At that point he put the gun up to his head and pulled the trigger, the gun did not fire. She stated that he then looked at the gun a second time and saw the cartridge was off to the side of the hammer again. He pointed the gun at his friend Douglas and pulled the trigger. This time the gun went off, striking Douglas below the left eye.

(Id. ) The Debtor's attorney objected to the introduction of Ms. Grabowski's account to Officer Dubis, arguing that the statements were inadmissible hearsay. See Fed.R.Evid. 801(c) (“ ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”).

The Plaintiffs called Ms. Grabowski as a witness but she could not confirm the information she had given to Officer Dubis. She testified that she did not recall speaking to the Debtor or the police about the shooting. (Grabowski Testimony, 1:24:00–1:28:51.) Even when shown the police report to refresh her recollection, Ms. Grabowski could not remember these traumatic events. (Id. at 1:31:43.)

Ms. Grabowski's statements to Officer Dubis are classic examples of hearsay. At the trial, the Court analyzed whether one or more hearsay exceptions might apply. First, given Ms. Grabowski's present inability to remember the incident, her statements arguably could be admissible as a past-recorded recollection. See Fed.R.Evid. 803(5). This hearsay exception applies to a record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and

(C) accurately reflects the witness's knowledge.

Id....