Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, February 13, 1991 TAG: 9102130180
SECTION: CURRENT PAGE: NRV-1 EDITION: NEW RIVER VALLEY
SOURCE: LESLIE TAYLOR STAFF WRITER
DATELINE: ROANOKE LENGTH: Medium
Attorneys for Javier Marcelo Montes voluntarily dismissed their client's suit against Dave Hammond. The suit had alleged Montes' arrest was a result of mistaken identity and a police officer who refused to admit he had made a mistake.
"I think the law was just not in our favor," said Radford lawyer Jimmy Turk, one of Montes' two attorneys. "The law protects police officers who testify before a grand jury and later at a trial. In the way things turned out, [Hammond] just did nothing wrong. We knew we had a very tough row to hoe."
Montes' attorneys decided to drop the suit after they met with Hammond's attorneys Monday evening, before Hammond's attorneys had an opportunity to put on their defense.
"I think it's the only case I've been involved in that the plaintiff decided to dismiss his case with prejudice during the course of a trial," said Joseph A. Matthews Jr., one of two attorneys who represented Hammond. With prejudice means Montes can't file this suit again.
U.S. Judge Robert G. Doumar, a visiting judge from the Eastern District of Virginia who presided, had indicated late Monday he would allow the case to go to the jury after the defense put on its evidence.
Montes, 22, was one of 10 people arrested on drug charges in a 1989 undercover operation. He was indicted by a grand jury on charges of attempting to sell Hammond cocaine. The substance was later found to be a harmless white powder.
A Radford Circuit Court jury acquitted Montes September 1989. He filed the civil lawsuit two months later.
The drug arrest stemmed from a meeting an informant arranged between Hammond and a person named "Jerry" who sold the informant the powder for $525.
Hammond maintained during his criminal trial, and again on Monday, that the person who sold the drugs was Montes - even though testimony from the informant disputed that.
The informant testified Monday that the man who sold the drugs was 6-foot-1, had shoulder-length brown hair and was American. Montes stands about 5-1, has short dark hair and is a native of Bolivia.
A number of witnesses testified that Montes was in his dorm room watching television at the time the drug deal was supposedly going down.
Attorneys implied that Hammond was set up. "I think the informant was a problem," Matthews said.
Turk said there could have been two victims - the officer and Montes.
"We talked about that last night as being a very possible scenario. I'm not sure Officer Hammond didn't do what he thought was proper."
Last year, Hammond's attorneys filed a motion for summary judgment and dismiss the suit. In a surprising move, U.S. Judge Jackson Kiser denied the motion.
Instead, he ruled that inaccuracies in Hammond's story supported allegations that he fabricated a story after the arrest to create probable cause that Montes committed the crime.
"We thought all along that Dave Hammond didn't do anything wrong," Matthews said after the suit was dropped.
"I'm glad it's over with," Hammond said. "I knew once we got the evidence in, that it would come out this way."
Montes, who dropped out of Radford University after he was charged, has re-enrolled and is majoring in business and finance. .
by CNB