U.S. v. Herman, 77-5455

• Decision Date: 21 July 1978
• Docket Number: No. 77-5455,77-5455
• Citation: 576 F.2d 1139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Glen HERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1139

576 F.2d 1139

UNITED STATES of America, Plaintiff-Appellee, v. Glen HERMAN, Defendant-Appellant.

No. 77-5455.

United States Court of Appeals Fifth Circuit.

July 21, 1978.

J. Cheney Mason, Orlando, Fla. (Court-appointed), for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Mark L. Horwitz, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before WISDOM, TJOFLAT, and VANCE, Circuit Judges.

WISDOM, Circuit Judge:

Glen Herman appeals from his convictions for aggravated robbery of the Gotha, Florida, Post Office, and first degree murder of its postmistress, Mrs. Marion Loraine Smith. ¹ Herman alleges that the government's evidence was insufficient to convict him of either crime. He also contends that the government, primarily by bringing an interlocutory appeal, denied him the speedy trial that the Sixth Amendment guarantees. We find no merit in Herman's contentions, and we affirm his convictions.

I.

Thomas Brunson, who pleaded guilty to charges arising out of the slaying and robbery at Gotha, supplied a substantial part of the government's case against Herman at trial. Brunson testified that he saw Herman driving an old model, light-colored Cadillac in Winter Garden, Florida, on July 21, 1975. Brunson joined Herman in the car, and the two traveled to Gotha. Once in Gotha, Brunson and Herman drove around the town. As they first passed the Post Office, Herman said to Brunson "What about this?"

After driving around Gotha for some time, Herman stopped his car beside the Post Office. He asked Brunson to find out how many people were inside. Brunson went in and asked for stamps. He observed a young lady enter, check her postal box, and leave. Before Brunson left the Post Office, Herman entered and bolted over the counter. Then Herman, with a pistol in his hand, walked toward Mrs. Smith, the postmistress, and ordered her to the back of the Post Office, where the safe was. When Herman and Mrs. Smith had been in the back of the building for two or three seconds, Brunson heard a shot and saw Mrs. Smith fall. Brunson then left the Post Office followed by Herman. The two entered Herman's car and drove away, heading for Winter Garden.

Herman soon turned around, however, saying that he had left his pistol at the Post Office. He entered the building and came out after a short time. Herman then drove to Winter Garden and let Brunson out of the Cadillac.

The government's case was not limited to Brunson's testimony. Several witnesses testified that they saw a light-colored Cadillac with two black males in Gotha on the day of the shooting. One witness, Miss Paula Margaret Harrison, saw a black man enter the Post Office, and stand near the mail boxes. Another witness, Mrs. Marion Bush, who lived across the street from the Post Office, testified that she heard a shot on the afternoon of the slaying. She looked out her window and saw two black men leave the Post Office and drive away in a light-colored Cadillac. Mrs. Bush crossed the street to the Post Office and saw Mrs. Smith's body on the floor. Mrs. Bush then returned home and telephoned the Orange County Sheriff's Office.

The Sheriff's men found four fingerprints on the Post Office counter. These fingerprints belonged to Brunson and Herman. The government also showed to the jury plaster cast impressions and photographs of tire prints that matched Herman's tires. These prints came from a clay road near the Post Office where Herman allegedly turned his car around to retrieve his pistol.

The government put on other evidence tending to show that Herman robbed the Post Office. Mrs. June M. Carmichael testified that she bought three postal money orders from Mrs. Smith at about 2:30 on the afternoon of the slaying. Mrs. Carmichael paid for the money orders with a one hundred dollar bill and a ten dollar bill; she spent about twenty minutes transacting business. The sheriff's officers arrived about an hour after Mrs. Carmichael entered the Post Office. The officers found the Post Office safe open near Mrs. Smith's body. At the service counter, they found Mrs. Smith's cash drawer open and empty of currency. A thorough search of the Post Office revealed neither a one hundred dollar bill nor the postal copies of Mrs. Carmichael's three money orders. A coworker's cash drawer, securely locked into the safe, had not been disturbed.

An audit of the Post Office just after the slaying revealed a shortage of $288.70 in value. The shortage had developed at some time during the three weeks before the audit.

Herman was arrested on July 31, 1975, ten days after the crime. He was indicted August 4, 1975, and re-indicted August 27. Herman entered a guilty plea on November 10, but moved to withdraw the plea on November 24, and obtained court approval to withdraw it on December 8, 1975. The district judge then set trial for January 12, 1976.

On January 7, 1976, the district court completed its consideration of Herman's suppression motion. It granted the motion in part. The government sought a continuance of the trial date from January 12 until January 22, 1976, so that it could consider appealing the suppression order. Herman opposed the continuance, but sought a delay until February if any continuance were granted. The district court accordingly set February 17, 1976, as the new trial date.

Meanwhile, on January 29, 1976, the government appealed the district court's suppression order to this Court. The order was appealable under 18 U.S.C. § 3731, which allows the government to take interlocutory appeals of suppression orders in certain circumstances. The trial court stayed proceedings pending that appeal. This Court affirmed in an opinion on January 3, 1977. United States v. Herman, 5 Cir. 1977, 544 F.2d 791. The government sought rehearing and considered petitioning the United States Supreme Court for certiorari. The government abandoned plans to seek Supreme Court review, however, and this Court issued its mandate on May 9, 1977. Herman's trial began June 20, 1977, twenty-two months and 20 days after his arrest.

On September 16, 1976, Herman, who was incarcerated from the time of his arrest, wrote the district court asking to be tried. He alleged pro se that he was being denied a speedy trial. At a hearing, however, Herman's attorney stated that he did not desire to argue that motion and that the delay was beneficial to the defense. The attorney later changed his mind and on March 3, 1977, sought dismissal of the case on the ground that the government had denied Herman a speedy trial.

II.

We consider first Herman's contentions that the evidence produced at trial was insufficient to convict him of robbery and of first degree murder. The evidence is clearly sufficient to show that Herman killed Mrs. Smith: Brunson saw him direct Mrs. Smith to the back of the Post Office with a gun in his hand; Brunson heard a shot and saw Mrs. Smith fall.

Herman's contention that there was insufficient evidence to convict him of robbery cannot be disposed of as patently without merit. And if the robbery count cannot stand, neither can the first-degree murder conviction. The degree of the murder conviction arises from the felony-murder rule. ² 18 U.S.C. § 1111(a).

In determining the sufficiency of the evidence, we must view the record in the light most favorable to the government. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The government's case against Herman is circumstantial. The circumstantial nature of the government's case does not affect our task in reviewing the sufficiency of the evidence: "our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused's innocence". United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied 1971, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. See also United States v. Prince, 5 Cir. 1975, 515 F.2d 564. Despite Herman's assertion, we find that there was sufficient evidence for the jury to find him guilty of robbery and thus of first-degree murder.

The jury could infer that Mrs. Smith, the sole postal employee on duty, would not operate the Post Office with a cash drawer devoid of currency. Mrs. Carmichael's testimony that she gave Mrs. Smith $110 in cash within the hour of the slaying supports the inference that the drawer had not been empty of cash when Herman entered. The jury could thus infer that someone had taken the drawer's contents, including the three postal money order receipts from Mrs. Carmichael's purchase and whatever currency had been in the drawer. The post-slaying audit, which showed that $288.70 in value had disappeared during the preceding three weeks, further supports the inference that someone had taken the drawer's cash.

Herman's actions in Gotha justify and even require the inference that he was the person who took the currency. His driving around the town and asking "What about this?" as he passed the Post Office would seem innocent activity absent the later slaying. But, in context, the jury could construe this activity as the selection of a place to commit robbery. Herman's action in sending Brunson into the Post Office to count heads seems explainable only as part of a criminal plan. Finally, of course, Herman's access to the cash drawer and his slaying of Mrs. Smith support the inference that he committed robbery. Given all this evidence, the jury could conclude beyond a reasonable doubt that Herman robbed the Gotha Post Office.

We must discuss one further assertion of the defense. Eighteen U.S.C. § 1111 specifies that a slaying is murder in the first degree if committed "in the perpetration of" certain crimes, including robbery. Herman says that even if he committed robbery and murder, the murder did not necessarily occur during the robbery. He argues that he could have bolted the counter and shot...