U.S. v. Gullett

Decision Date12 February 1996
Docket NumberNo. 94-5822,94-5822
Citation75 F.3d 941
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Denny R. GULLETT, Defendant-Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. John T. Copenhaver, Jr., District Judge. (CR-94-17)

ARGUED: Rebecca Ann Baitty, Lutz, Webb, Partridge, Bobo & Baitty, Sarasota, Florida, for Appellant. Kelly D. Ambrose, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney, Charleston, West Virginia, for Appellee.

Before MURNAGHAN, NIEMEYER, and HAMILTON, Circuit Judges.

Affirmed by published opinion. Judge HAMILTON wrote the opinion, in which Judge MURNAGHAN and Judge NIEMEYER joined.

OPINION

HAMILTON, Circuit Judge:

On January 31, 1994, a federal grand jury sitting in the Southern District of West Virginia returned a one-count indictment charging the appellant, Denny Ray Gullett, with "maliciously damag[ing] and destroy[ing] and attempt[ing] to damage and destroy, by means of explosive, a building used in interstate commerce and an activity affecting interstate commerce, that is, rental property, ... which resulted in the death of Masil Lee Hensley ... in violation of Title 18, United States Code, Section 844(i)." (J.A. 10). Following a jury trial, Gullett was convicted. The jury found, by way of special interrogatory, that Gullett's conduct was the proximate cause of Masil Lee Hensley's death. On October 6, 1994, Gullett was sentenced to thirty-eight years' imprisonment. Gullett appeals his conviction and sentence. We affirm.

I

In December 1989, Gullett and Masil Hensley purchased, through a series of loans, a machine shop, known as Lee's Machine Shop. The machine shop, which was primarily engaged in the repair of mining equipment, was located near Chapmanville in Logan County, West Virginia. The responsibilities of the machine shop were divided between Gullett and Masil Hensley. Masil Hensley was responsible for the supervision of the actual repair of equipment while Gullett handled the financial aspects of the business, including the collection of accounts receivable and payments to creditors.

In the years following its establishment, the machine shop experienced financial difficulties and fell behind on its obligations to creditors. Eventually, Gullett became dissatisfied with the financial stability of the machine shop and made several unsuccessful attempts to sell the business.

In July 1992, Masil Hensley obtained, through the machine shop, a $150,000 "key man" life insurance policy, payable to the machine shop upon his death. 1 The policy was acquired at Gullett's urging, and although Masil Hensley originally arranged for his wife to be the beneficiary of the policy, Gullett convinced him to change the policy to make the machine shop the beneficiary.

On November 29, 1993, an explosion occurred in the parking lot adjacent to the machine shop. The explosion severely injured Masil Hensley and his nephew, Lonnie Hensley, an employee of the machine shop. In addition, Masil Lee Hensley, the son of Masil Hensley, suffered fatal injuries. The explosion also damaged the machine shop and rental property (a one-story white house) owned by the machine shop and located approximately twelve feet from the point of detonation.

Through its investigation, the government learned that in the early morning hours of November 29, 1993, Gullett telephoned Masil Hensley at his house, located next to the machine shop, and told Masil Hensley that he had asked Lonnie Hensley to come to his house before reporting to work to give him advice on the repair of his truck. Gullett asked Masil Hensley to punch Lonnie Hensley's time card so he would be paid as if he had reported to work at the usual time. Gullett then telephoned Lonnie Hensley and asked him to come to his house.

At approximately 7:45 a.m., Lonnie Hensley arrived at Gullett's house. After Lonnie Hensley examined Gullett's truck, he gave Gullett his opinion on the truck's mechanical problem. As Lonnie Hensley prepared to leave, Gullett told Lonnie Hensley that he had prepared a "gag gift" for Masil Hensley. Gullett then showed Lonnie Hensley a cardboard box with the top and one side removed. Inside the cardboard box, Lonnie Hensley saw a smaller box covered with packing tape. The smaller box had two plastic coated wires that protruded near the bottom of the box.

Although the cardboard box covered with packing tape contained four to six sticks of dynamite, 2 Gullett explained to Lonnie Hensley that the smaller box contained an inflatable doll having the body of Dolly Parton and the head of Ronald Reagan, and that the tape had been partially cut so that as the doll inflated, it could pop out of the box. Gullett further explained to Lonnie Hensley that the two wires, when connected to an automotive battery, would cause the doll to inflate and pop from the box.

Following this explanation, Gullett told Lonnie Hensley how to present the gag gift to Masil Hensley. Gullett told Lonnie Hensley to get Masil Hensley alone inside his house before connecting the wires to an automotive battery. Gullett also told Lonnie Hensley not to tell the other employees at the machine shop about the gag gift or to allow them to see it.

Lonnie Hensley placed the cardboard box in his truck and transported it to the parking lot adjacent to the machine shop. He parked his truck in the parking lot approximately twelve feet from the rental property owned by the machine shop. The machine shop was located approximately sixty feet from the location of Lonnie Hensley's truck, and as noted above, Masil Hensley's house was located adjacent to the machine shop.

Contrary to Gullett's instructions, Lonnie Hensley entered the machine shop and told Masil Lee Hensley about the gag gift that Gullett had concocted for Masil Hensley. Lonnie Hensley and Masil Lee Hensley then approached Masil Hensley and told him what Gullett had sent him. Masil Hensley told them that he did not have time to see the gag gift because he was preparing to leave the machine shop to make an equipment delivery. They, however, followed Masil Hensley out of the machine shop and convinced him to look at the gag gift in the parking lot of the machine shop.

The three men walked to Lonnie Hensley's truck, and the cardboard box was removed and placed on the parking lot. Lonnie Hensley removed the battery from his truck and placed it in the cardboard box next to the smaller box covered with packing tape. He knelt beside the cardboard box to connect the wires to the battery, while Masil Hensley stood approximately five feet away observing the process. Masil Lee Hensley was waving a towel over the package and joking about what was contained in the cardboard box.

At the instant the wires protruding from the smaller box covered with packing tape connected to the battery, the package exploded violently, resulting in injuries to Masil Hensley and Lonnie Hensley, Masil Lee Hensley's death, and damage to the machine shop and the rental property owned by the machine shop and located approximately twelve feet from the point of detonation.

Gullett was charged in a one-count indictment with "maliciously damag[ing] and destroy[ing] and attempt[ing] to damage and destroy, by means of explosive, a building used in interstate commerce and an activity affecting interstate commerce, that is, rental property, ... which resulted in the death of Masil Lee Hensley ... in violation of Title 18, United States Code, Section 844(i)." (J.A. 10). The government's theory at trial was that Gullett intended to kill Masil Hensley through a contained explosion in Masil Hensley's residence so that the machine shop could collect on the $150,000 key man life insurance policy. Testimony at trial established that, had the bomb exploded in Masil Hensley's residence as planned, the explosion would have killed Masil Hensley and Lonnie Hensley and destroyed all evidence of wrongdoing. The jury convicted Gullett and found, by way of special interrogatory, that Gullett's conduct was the proximate cause of Masil Lee Hensley's death. Gullett was sentenced to thirty-eight years' imprisonment and filed a timely notice of appeal.

II
A

Prior to trial, Gullett moved to suppress evidence of certain nonverbal responses (consisting of affirmative and negative nods of the head) he made to federal agents prior to his arrest. Following a suppression hearing, the government informed the district court that this evidence would not be used in its case-in-chief. In light of the government's stated intent, the district court declined to address whether the federal agents obtained Gullett's nonverbal responses in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); instead, the district court ruled that, even if the nonverbal responses were obtained in violation of Miranda, the nonverbal responses were made knowingly and voluntarily, and were trustworthy, and therefore, could be used for impeachment purposes if Gullett took the stand at trial, see Harris v. New York, 401 U.S. 222, 225-26, 91 S.Ct. 643, 645-46, 28 L.Ed.2d 1 (1971) (evidence obtained in violation of Miranda may be used for impeachment purposes at trial); see also Oregon v. Hass, 420 U.S. 714, 722, 95 S.Ct. 1215, 1220-21, 43 L.Ed.2d 570 (1975).

At trial, Gullett testified on direct examination that, on the day of the explosion, he never gave Lonnie Hensley a package or box containing an explosive and that he had no knowledge of any gag gift or inflatable doll. He further denied trying to kill Lonnie Hensley or Masil Hensley and denied knowledge of how to prepare a bomb.

In response to Gullett's trial testimony, the government introduced the testimony of Agent Kemp. Agent Kemp testified that prior to Gullett's arrest Gullett nodded his head in a...

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