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State v. Montague

Decided: March 2, 1970.


For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Jacobs, J.


The defendant was convicted for assault and battery on a police officer (N.J.S. 2A:90-4) and for threatening the life of the police officer by pointing a revolver at him (N.J.S. 2A:113-8). The Appellate Division reversed his convictions (101 N.J. Super. 483 (1968)) and we certified on the State's application. 53 N.J. 353 (1969).

While on duty and in uniform, Police Officer Nance observed a Ford Mustang traveling south on Johnson Avenue in Newark without a valid motor vehicle inspection sticker. After he had stopped the car, its driver Clarence Lollie displayed a driver's license and a registration certificate neither of which was in his name. The other occupants of the car

were the defendant Ulysses G. Montague, his seventeen year old niece Lilliteen Rochelle, and his nephew Cornell Rochelle. Lollie left the car to talk to Nance and while the others remained in the car Cornell began blowing its horn to attract his friend Charles Jones who was passing by. Nance, after telling Cornell that his blowing of the horn was a violation of the law and to stop it, continued his conversation with Lollie. Lilliteen then began blowing the horn in more persistent fashion. Nance told her to stop but she became highly abusive, refused to be calmed, and finally was placed under arrest. When she started to walk away despite Nance's instruction that she stand there, Nance reached for her and she started swinging. Nance tried to handcuff her but Lollie grabbed his arm pulling him back. Nance struck Lollie and was tussling with him when the defendant, who up to that point had remained in the car, joined in.

According to Nance's testimony, Lollie still had hold of him and Lilliteen was still kicking and cursing him when the defendant shouted "hold his arm while I get his gun." The defendant pulled Nance's gun from its holster, pointed it at Nance, told him to "get back" and when Nance told him to give him the gun he again told him to get back and said he would shoot him. At that point Nance lunged for the gun and the defendant struck him with it on the side of his head. Nance ran to his nearby motorcycle radio, summoned aid, and other officers soon arrived. They went after Lollie who was fleeing and apprehended him. Nance with the aid of the officers subdued the defendant.

Mr. James L. Barrett, Jr., assistant to the principal at South Side High School, and Alvin Picker, a teacher at the same institution, observed the event and substantially corroborated Nance. Barrett saw the defendant with the gun in his hand and saw him strike Nance. Picker saw the defendant hit Nance "with what you would call like a tackle." Officers Charles A. Kneipher and Richard Klemm, who were among those who responded to Nance's call for

aid, testified that they saw the defendant pointing the gun in Nance's direction and that they assisted in arresting Lollie and subduing the defendant.

The defendant testified that he heard Nance tell his niece to stop blowing the horn but denied that he knew that Nance had arrested his niece or that she was resisting arrest. He testified that he saw his niece leave the car and heard her tell Nance that he was "a nigger cop in uniform"; Lilliteen and the other occupants of the car, as well as Officer Nance, were Negroes. The defendant's testimony continued as follows: "That is all I could hear but he said don't call me no nigger cop or I'll smack you. My niece said I'll smack you back." The defendant testified further that he saw Nance beating his niece, that when Lollie tried to intervene he was "knocked away", and that when he, the defendant, tried to intervene Nance reached for his gun. The defendant admitted that he took the officer's gun and stated that he refused to return it because he was afraid he "was going to be shot." He also admitted that after the officer had lunged at him he struck him in the head but denied that he had pointed the gun at the officer or had threatened to shoot him.

In addition to the defendant Montague, Lollie, Lilliteen, Cornell and Charles Jones testified for the defense. Lilliteen testified that she blew the horn to attract Jones, that Nance told her not to blow the horn, that Nance called her "a wise bitch" and said he would lock her up, and that she told Charles Jones that "that's what's wrong with the nigger cops today. The ones doing something they don't see and the ones not doing anything they see." At that point, according to Lilliteen, Nance told her he would slap her if she called him a "nigger" again and that she replied "I'll slap you back." Continuing her testimony, Lilliteen stated that Nance then punched her in the eye with his left fist and that thereafter Lollie and the defendant intervened. Both Cornell Rochelle and Clarence Lollie testified along the same lines.

Charles Jones testified on direct examination that he heard Nance tell Lilliteen not to blow the horn, that he heard the officer call her a "wise little bitch" and that he heard her reference to "nigger" officers. He testified that Lilliteen told Nance "You don't have to put handcuffs on me, because I'm not going anywhere" and that he saw Nance hit Lilliteen. On cross-examination he testified that he saw Nance attempt to put handcuffs on Lilliteen and saw her resist by kicking and fighting. He further testified that he had theretofore given a statement to Mr. Colton, counsel for the defendant Montague. At that point the prosecutor called for the production of the statement. Mr. Colton objected but the court overruled him and thereupon he produced the statement which was then shown to the witness. The statement was in Mr. Colton's handwriting and was unsigned. After the witness read it he answered affirmatively to specific inquiries as to whether it was his statement and whether he had talked it over with several friends. In the statement, the witness was quoted as having said that Nance had remarked you are one of those "wise girls" rather than a "wise bitch" which was his earlier testimony on direct examination. The witness was also quoted in the statement as having reported that Lilliteen had said to him "those nigger cops are always starting trouble" whereas on the stand the witness denied hearing Lilliteen make such statement.

After the jury had returned its verdict of guilt against the defendant Montague and he had been sentenced to State Prison, he appealed to the Appellate Division. There the court reversed on the ground that the trial judge had committed prejudicial error in requiring defense counsel to produce a copy of Charles Jones' unsigned statement in counsel's handwriting and in permitting the prosecution to use the statement in cross-examining Jones. The Appellate Division described the statement as defense counsel's notes of his interview with Jones, found no specific court rule authorizing the trial judge's ruling that they be produced

for purposes of the prosecutor's cross-examination, held that while State v. Hunt, 25 N.J. 514 (1954) permitted discovery of the notes of the prosecution's witnesses it was inapplicable to the notes of the defense witnesses taken by defense counsel, and concluded that they constituted work product within the principle against discovery enunciated in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). See 101 N.J. Super. at 487-88. The Appellate Division recognized that Hickman was a civil case but felt that its underlying motivations were "equally applicable to the setting of a criminal case." 101 N.J. Super. at 488.

In Dennis v. United States, 384 U.S. 855, 86 S. Ct. 1840, 16 L. Ed. 2 d 973 (1966), the Supreme Court recently referred to "the growing realization that disclosure, rather than suppression, of relevant materials ordinarily promotes the proper administration of criminal justice," and it also referred to the "expanding body of materials, judicial and otherwise, favoring disclosure in criminal cases analogous to the civil practice." 384 U.S. at 870-71, 86 S. Ct. at 1849, 16 L. Ed. 2 d at 984. In State v. Cook, 43 N.J. 560 (1965), we had occasion to review our own discovery practices in the criminal field, particularly as they related to pretrial applications, and there have been additional developments of significance since that case was handed down. See State v. Tate, 47 N.J. 352 (1966); Report of New Jersey Supreme Court's Special Committee on Discovery in Criminal Cases, 90 N.J.L.J. 209 (1967); R.R. 3:5-11; R. 3:13-3.

In Cook we sustained the defendant's contention that there should be mutual pretrial disclosure of reports of psychiatric examinations of the defendant. In the course of our opinion we noted that since the creation of our new judicial structure, and its implementation with rules embodying modern discovery principles, we had consistently applied our civil practice rules "liberally and with awareness that the interests of truth and ...

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