State v. Douglas
| Decision Date | 10 February 1982 |
| Citation | 292 Or. 516,641 P.2d 561 |
| Parties | STATE of Oregon, Respondent on Review, v. Avis Francis DOUGLAS, Petitioner on Review. CA 18550; SC 27810. |
| Court | Oregon Supreme Court |
Joyce J. Cresswell, Oregon City, argued the cause and filed the brief for petitioner.
Rudolph S. Westerband, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were David B. Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem.
Defendant appeals her conviction of theft. She assigns as error a trial court order precluding her own testimony of alibi due to her noncompliance with statutory requirements for such evidence. The Court of Appeals upheld the trial court ruling, citing State v. Wardius, 6 Or.App. 391, 487 P.2d 1380, rev den (1971), rev'd in part 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). We accepted her petition for review by which she contended that the sanction was impermissible under the Oregon and the federal constitutions. We find, however, that the statute is dispositive.
The charge of theft was based upon evidence that defendant obtained a tank of gasoline and drove away without paying for it. The intended defense was alibi. Immediately prior to trial, the prosecutor moved to exclude all evidence of alibi because the defendant had failed to file and serve a notice of intent to present an alibi defense as required under ORS 135.455. Defense counsel represented that she had prepared a notice in proper form and caused it to be delivered. Although the prosecutor never received it, he accepted that representation. The notice is not in the record but, because of the statements of counsel, we accept as fact that a notice in proper form was delivered to the district attorney as required by the statute. The notice indicated that the defendant and one other witness would testify that defendant was at her place of employment at the time of crime. Defense counsel stated that the person listed on the notice was not a witness after all and she did not intend to call that person. She then stated that there was another witness whom she intended to call to support the same alibi.
The trial court ordered that the defendant could not call its intended witness. Defense counsel acceded to the correctness of that ruling and it is not in issue. The trial court also ordered that the defendant was precluded from testifying as to her alibi. Under the ruling, she testified that she did not commit the crime and was not at the place of the crime, but she was not allowed to testify affirmatively that she was elsewhere. Defendant testified within the limits of the court's order and it is that order of preclusion which is in issue in this appeal.
It is elementary that we will not reach constitutional issues to decide a case which can be decided on statutory grounds. Therefore we first examine the controlling statute, ORS 135.455, which provides:
ORS 135.455 does not impose upon a defendant who intends to offer alibi evidence a general obligation to disclose to the state all evidence as to the truth of the alibi. It requires only that the defendant identify those persons upon whom she intends to rely as witnesses at trial. If other witnesses exist, but the defendant does not intend to rely upon them, the defendant is under no statutory duty to inform the state of their identity or location.
In this case, defendant appeared for trial having given notice identifying herself and another witness to her alibi. She did not call the other person. She belatedly expressed her desire to call an unlisted witness, but the court did not allow her to do so. Thus, the other two potential witnesses are immaterial. The situation boils down to this: defendant complied with ORS 135.455 by giving notice that she intended to rely on her own testimony, but she was barred from giving it. There was no statutory basis for imposition of a sanction precluding defendant from giving her own testimony regarding alibi for which she had given notice. Therefore, the sanction was erroneously imposed and the case must be reversed and remanded for a new trial absent the sanction. 1
Reversed and remanded for a new trial.
Because I disagree with the majority's holding that defendant did comply with ORS 135.455, I am unable to join in the majority's opinion. ORS 135.455 provides:
Defendant failed in two important particulars to comply with the statute: (1) She never filed any written notice of her purpose to offer alibi evidence, and the majority concedes that she did not. (2) From what record we have as to the contents of the notice which the prosecutor offered to stipulate was served on his office, the notice failed to "state specifically the place where" she claimed to have been at the time of the commission of the theft. The majority correctly points out that the prosecutor knew that she would claim that she was at work, but nowhere is there anything in the record to show that the prosecutor was advised as to the name or location of her place of work. The prosecutor claimed that it was that very information which was necessary to afford a basis for investigation of her defense of alibi. I quote the prosecutor's words: 1
(Emphasis added)
I agree with the majority that we do not reach constitutional issues when we can dispose of a case on statutory grounds, but the record does not permit disposition on that basis in this case. Accordingly, we should reach and deal with one of defendant's claims of constitutional error.
The proper issue is whether preclusion of a defendant's own alibi testimony for failure to give the statutorily required notice of an alibi defense is a permissible sanction in light of defendant's "right * * * to be heard by himself" guaranteed by Article I, section 11 of the Oregon Constitution. I would hold that sanction to be constitutionally impermissible.
Defendant, petitioner before our court, was convicted on a charge of second-degree theft. She challenges a trial court ruling which barred her from testifying concerning an asserted alibi defense. The trial court ruled that she could not present this alibi defense because she had not complied with the notice provisions of ORS 135.455.
In the Court of Appeals and this court, petitioner attacked the preclusion sanction imposed under ORS 135.455 with several arguments based on the constitutions of the United States and of Oregon. I find that Article I, section 11, of the Oregon Constitution (hereinafter Section 11) resolves this case. Section 11 provides in pertinent part: "In all criminal prosecutions, the accused shall have the right * * * to be heard by himself * * *." Though I draw on materials from other areas of constitutional criminal procedure, I confine this decision to the question whether the preclusion sanction under ORS 135.455 is consistent with this provision of our state constitution.
Thus, I specifically do not address any question as to the validity of the preclusion sanction when applied to witnesses other than the defendant; 2 I do not address the question of the alibi notice requirement as a possible violation of the Oregon constitutional right against self-incrimination; 3 and I do not address the possible conflict between ORS 135.455 and the compulsory process and confrontation provisions of either the United States Constitution or the Oregon Constitution. 4
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