United States v. Sherman

• Decision Date: 30 January 1970
• Docket Number: No. 13451.,13451.
• Citation: 421 F.2d 198
• Parties: UNITED STATES of America, Appellee, v. Roy Braswell SHERMAN, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

421 F.2d 198 (1970)

UNITED STATES of America, Appellee, v. Roy Braswell SHERMAN, Appellant.

No. 13451.

United States Court of Appeals Fourth Circuit.

Argued December 4, 1969.

Decided January 30, 1970.

Certiorari Denied May 18, 1970.

Harry E. Atkinson, Newport News, Va. (court-appointed counsel), for appellant.

Roger T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before WINTER and BUTZNER, Circuit Judges, and MERHIGE, District Judge.

Certiorari Denied May 18, 1970. See 90 S.Ct. 1717.

PER CURIAM:

Sherman, convicted of placing another's life in jeopardy in the course of a robbery in violation of 18 U.S.C. § 2114, and assault with intent to commit murder in violation of 18 U.S.C. § 113(a), contends that the evidence was insufficient to sustain the jury's verdict of guilty; that the trial court erred in admitting, over his objection, evidence of a line-up identification and a photograph of same, which he argues was staged in such a manner as to be violative of his constitutional rights to due process. We find the evidence ample to sustain the conviction and perceive no error by the trial court in the admission of evidence.

At approximately noon on December 30, 1968, at Langley Air Force Base, Virginia, having just emerged from the bank building, transporting two bags of one-dollar bills and coins amounting to over $1,400 for use at the base commissary, two military personnel entered a government vehicle. Before driving off they were accosted by a lone gunman, clad in an air force parka, fatigue trousers, and wearing a woman's nylon stocking over his face. The gunman fired a shot, opened a door of the truck in which the military men were seated, and demanded "the money." When one of the men bent to get a bag of money from the floor, the gunman shot him, ordered the other soldier to turn over his weapon, shot him, grabbed one of the money bags, and ran, pursued by an off-duty air policeman who had emerged from the bank about the time of the shooting.

During the foot chase, the gunman, who discarded the stocking mask, was observed several times by the pursuing air policeman who got within twenty-five yards of him before the man entered a large hangar and was lost from view.

During the course of the chase, a Sgt. Buckholtz, who had heard the gunshots and seen the profile of the gunman, joined in.

The defendant was seen by another witness in a passageway of the hangar that the robber had entered and was apprehended outside the building. A search of the building revealed a stocking mask, an air force parka, gloves, a small gun, and the bag of money taken in the robbery. Hair found in the mask revealed that it compared with the defendant's hair in sixteen individual characteristics.

At the time of his arrest, defendant was wearing a mustache and goatee and wore his hair long in what he described as an Afro cut. At the trial he appeared clean shaven and was wearing his hair short. Shortly after his arrest, Sherman was advised of his rights and appeared in a line-up consisting of six Negro airmen, where he was identified by at least three witnesses as the man who fled from the scene of the robbery.¹

At the trial one witness, Buckholtz, identified him as the man he saw running from the scene.

In considering the sufficiency of the evidence we do not determine whether it convinces us of guilt beyond a reasonable doubt, but only that the evidence would permit the triers of fact to find the defendant guilty beyond a reasonable doubt. United States v. Ragland, 306 F.2d 732 (4th Cir. 1962) cert. den. 371 U.S. 949, 83 S.Ct. 504, 9 L.Ed. 2d 498. The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Where the evidence construed most favorably for the government is such that the jury might find the defendant guilty beyond a reasonable doubt, then the evidence is sufficient to sustain a finding of guilt. Bell v. United States, 185 F.2d 302, 310 (4th Cir. 1950); United States v. Ragland, supra; United States v. Levinson, 405 F.2d 971, 985 (6th Cir. 1968); United States v. Hammond, 419 F.2d 166 (4th Cir. 1969). Applying the aforementioned principles to the evidence that was before the jury, we conclude that there was ample and sufficient evidence to support the conviction.

The evidence of the line-up identification of which Sherman complains was properly admitted in the course of the trial. The line-up consisted of six Negro males, all dressed in a similar manner; that is, air force fatigue uniforms. Admittedly, one of the factors...