United States v. Roy Braswell Sherman, 421 F.2d 198, 4th Cir. (1970)
United States v. Roy Braswell Sherman, 421 F.2d 198, 4th Cir. (1970)
2d 198
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.
3
During the foot chase, the gunman, who discarded the stocking mask, was
observed several times by the pursuing air policeman who got within twentyfive 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.
10
Prior to United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178
(1967), the matter of an extra-judicial identification affected only the weight,
not the admissibility, of identification testimony at the trial. The rationale of
those cases had to do with an accused's entitlement to counsel at a critical stage
of the prosecution. Here, as in the case of Simmons v. United States, supra, the
appellant's contention is that under the circumstances the identification
procedure was allegedly so unduly prejudicial as to fatally taint his conviction.
As stated in Stovall v. Denno, 388 U.S. 293, 308, 87 S.Ct. 1967, 18 L.Ed.2d
1199 (1967), and this Court's opinion in Palmer v. Peyton, 359 F.2d 199 (4th
Cir. 1966), and reiterated in the Simmons case, any such claim must be
evaluated in the light of the totality of surrounding circumstances.
11
The defendant has had a fair and impartial trial. He is entitled to no less, and
the courts can give no more.
13
14
Affirmed.
The evidence discloses that Sherman was advised of his right to counsel, Courtappointed if necessary, to be present before participating in the line-up. He
voluntarily chose to participate without benefit of counsel. (Tr. 450)