State v. Douglas

CourtSupreme Court of Oregon
Writing for the CourtTANZER; LENT
Citation292 Or. 516,641 P.2d 561
PartiesSTATE of Oregon, Respondent on Review, v. Avis Francis DOUGLAS, Petitioner on Review. CA 18550; SC 27810.
Decision Date10 February 1982

Page 561

641 P.2d 561
292 Or. 516
STATE of Oregon, Respondent on Review,
v.
Avis Francis DOUGLAS, Petitioner on Review.
CA 18550; SC 27810.
Supreme Court of Oregon, In Banc.
Argued and Submitted Sept. 8, 1981.
Decided Feb. 10, 1982.

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 [292 Or. 517] brief were David B. Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen. and William F. Gary, Deputy Sol. Gen., Salem.

[292 Or. 518] TANZER, Justice.

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.

I. District Court Proceedings

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.

Page 562

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 [292 Or. 519] within the limits of the court's order and it is that order of preclusion which is in issue in this appeal.

II. Application of ORS 135.455

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:

"(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, he shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of his purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, he shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.

"(2) As used in this section 'alibi evidence' means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed."

The only respect in which the notice was arguably deficient was that it failed to

" * * * state specifically * * * the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence."

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 [292 Or. 520] 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.

LENT, Justice, specially concurring.

Because I disagree with the majority's holding that defendant did comply with

Page 563

ORS 135.455, I am unable to join in the majority's opinion. ORS 135.455 provides:

"(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, he shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of his purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, he shall not be permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.

"(2) As used in this section 'alibi evidence' means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed."

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 [292 Or. 521] 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

[292 Or. 523] "If she claims, as apparently is the case in this oral communication and the notes in

Page 564

the file indicate that she says she was at work. The requirement is that she provide us the information as to where that is so that the State can investigate that and provide its own witnesses." (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.

Page 565

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 [292 Or. 524] 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...

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14 practice notes
  • State v. Rogers,
    • United States
    • Supreme Court of Oregon
    • May 4, 2000
    ...convention. However, consideration of the historical legal context is illustrative. In his special concurrence in State v. Douglas, 292 Or. 516, 527-38, 641 P.2d 561 (1982), Justice Lent provided a detailed history of the evolution of the right to be heard. He observed that the relevant wor......
  • State v. Lyon
    • United States
    • Supreme Court of Oregon
    • October 13, 1987
    ...statehood it was disputed whether a defendant could be sworn to the truth as well as permitted to address the jury, see State v. Douglas, 292 Or. 516, 534, 641 P.2d 561 (1982), (Lent, J. specially concurring), and knowingly false statements do not invariably forfeit the guarantees of free e......
  • State, ex rel. Russell v. Jones
    • United States
    • Supreme Court of Oregon
    • June 30, 1982
    ..."right to be heard by himself" clause of Article I, section 11, is contained in the concurring opinion of Lent, J., in State v. Douglas, 292 Or. 516, 527-536, 641 P.2d 561 5 This limitation on the right to counsel was described and criticized by Blackstone as follows: "When the jury is swor......
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...to testify. See, e.g., Carter v. State, 424 So.2d 1336 (Ala.Cr.App.1982); Hall v. Oakley, 409 So.2d 93 (Fla.App.1982); State v. Douglas, 292 Or. 516, 538, 641 P.2d 561, 573 n. 32 (1982) (Lent, J., concurring); Campbell v. State, 4 Tenn.Cr.App. 100, 469 S.W.2d 506 (1971); Feist v. State, 631......
  • Request a trial to view additional results
14 cases
  • State v. Rogers,
    • United States
    • Supreme Court of Oregon
    • May 4, 2000
    ...convention. However, consideration of the historical legal context is illustrative. In his special concurrence in State v. Douglas, 292 Or. 516, 527-38, 641 P.2d 561 (1982), Justice Lent provided a detailed history of the evolution of the right to be heard. He observed that the relevant wor......
  • State v. Lyon
    • United States
    • Supreme Court of Oregon
    • October 13, 1987
    ...statehood it was disputed whether a defendant could be sworn to the truth as well as permitted to address the jury, see State v. Douglas, 292 Or. 516, 534, 641 P.2d 561 (1982), (Lent, J. specially concurring), and knowingly false statements do not invariably forfeit the guarantees of free e......
  • State, ex rel. Russell v. Jones
    • United States
    • Supreme Court of Oregon
    • June 30, 1982
    ..."right to be heard by himself" clause of Article I, section 11, is contained in the concurring opinion of Lent, J., in State v. Douglas, 292 Or. 516, 527-536, 641 P.2d 561 5 This limitation on the right to counsel was described and criticized by Blackstone as follows: "When the jury is swor......
  • People v. Curtis, Nos. 82SC414
    • United States
    • Colorado Supreme Court of Colorado
    • April 23, 1984
    ...to testify. See, e.g., Carter v. State, 424 So.2d 1336 (Ala.Cr.App.1982); Hall v. Oakley, 409 So.2d 93 (Fla.App.1982); State v. Douglas, 292 Or. 516, 538, 641 P.2d 561, 573 n. 32 (1982) (Lent, J., concurring); Campbell v. State, 4 Tenn.Cr.App. 100, 469 S.W.2d 506 (1971); Feist v. State, 631......
  • Request a trial to view additional results

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