State v. Edgmand
Decision Date | 20 September 1988 |
Citation | 761 P.2d 505,306 Or. 535 |
Parties | STATE of Oregon, Respondent on Review, v. Brenda Irene EDGMAND, Petitioner on Review. TC CF 87-102; CA A44344; SC S35081. |
Court | Oregon Supreme Court |
J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.
Leslie Westphal, Asst. Atty. Gen., Salem, argued the cause for respondent on review.
On trial for unlawful delivery and unlawful possession of a controlled substance, defendant sought to testify in her own defense that she was at Crabbies Tavern at the time when the state's witness bought methamphetamine at the house where she lived. The state objected on grounds that defendant's testimony would constitute "alibi evidence" requiring prior notice to the district attorney, which defendant had not given. ORS 135.455. The trial court sustained the objection and, expressly disregarding her testimony about where she was at the time of the crime, found defendant guilty. The court subsequently denied defendant's motion for a new trial, which asserted that "defendant was deprived of her constitutional right to give her own testimony that she was elsewhere, and, therefore, was not the person who was guilty of the charged offense." The Court of Appeals affirmed defendant's conviction without an opinion. 90 Or.App. 193, 751 P.2d 1129. We reverse.
ORS 135.455 provides:
Defendant asserts that the statute is unconstitutional if it is applied to restrict what a defendant who has not given prior notice may say in her own defense.
In the Court of Appeals, the state contended that defendant had not preserved a claim that the statute is unconstitutional. The state's reliance on the statute at trial of course, is uncontested, and if application of the statute was unconstitutional, the error is evident. ORAP 7.19(5). The state observes that the trial court should have the opportunity to correct its own errors. While the motion quoted above is not a proper subject of a separate assignment of error, it did draw the claim to the court's attention if the court wished to correct its ruling. There is no need or occasion to wait for a post-conviction proceeding.
The trial court doubtless thought itself bound by a prior decision of the Court of Appeals that sustained the exclusion of a defendant's own testimony under similar circumstances. State v. Wardius, 6 Or.App. 391, 487 P.2d 1380 (1971), rev'd on other grounds, Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973). There the state relied on a Wisconsin opinion to the effect that requiring a defendant to give advance notice of his testimony does not interfere with his right to testify in his own defense. State ex rel Simos v. Burke, 41 Wis.2d 129, 138, 163 N.W.2d 177, 181 (1968). The notice requirement does not interfere if a defendant gave the notice, but it certainly interferes with his right to testify if he did not give notice, or departs from it. The issue here is exclusion of defendant's testimony, not the validity of the notice requirement. It is not clear whether, under the state's view, failure to give an "alibi notice" would preclude any and all testimony by defendant contradicting her presence at the scene of the crime. Perhaps she could testify: "I was not there." But that would be all, leaving the factfinder to wonder why she did not say where she was. On the state's theory, could a defendant testify, without prior notice to the prosecutor, that she was in her bed if the crime occurred elsewhere in her apartment, but not if it occurred in the hall outside the apartment door? Could she even testify that she was sleeping in her bed upstairs at the time when the alleged unlawful delivery occurred downstairs in the same house?
This restriction of defendant's right to testify would pose a serious constitutional problem, if we had to reach it. We faced a similar claim in State v. Douglas, 292 Or. 516, 641 P.2d 561 (1982). The trial court had held defendant's notice inadequate and ordered that she could not testify that she was at work at the time when she allegedly failed to pay for gasoline at a service station. We reversed the conviction and remanded the case. Justice Tanzer's majority opinion observed that "we will not reach constitutional issues to decide a case which can be decided on statutory grounds," id. at 519, 641 P.2d 561, and the court decided that defendant's notice in fact was adequate. In a concurring opinion, Justice Lent extensively reviewed the evolution and status of the defendant's "right * * * to be heard by himself" under Article I, section 11, of the Oregon Constitution, concluding that it is inconsistent with this constitutional guarantee to preclude a defendant's testimony as a sanction for failure to give an alibi notice. 292 Or. at 543, 641 P.2d 561 (Lent, J., concurring).
Like Douglas, this case need not be decided on constitutional grounds. That issue can wait until the legislature unambiguously enacts a law restricting a defendant's right to testify. ORS 135.455 was designed to prevent the unanticipated appearance of surprise alibi witnesses for the defendant and to give the state the opportunity to meet their testimony. Judge Van Hoomissen, as the District Attorney for Multnomah County at the time when the alibi notice requirement was considered by the Senate Judiciary Committee, testified that it was not uncommon, after the prosecution closed its case, for a defendant to claim that "on the day of the crime he was in Wichita."
Minutes, Hearings, Senate Judiciary Committee, May 5, 1969, p 1, quoted in State v Douglas, supra, 292 Or. at 540 n. 38, 641 P.2d 561. But, as Justice Lent's opinion in Douglas pointed out, there are fundamental differences between the state's needs in meeting the defendant's own denials and alibi testimony of unexpected witnesses:
292 Or. at 541, 641 P.2d 561 (footnote omitted).
Courts have differed on the statutory as well as on the constitutional issues. Some have interpreted statutes requiring notice of alibi evidence to cover only alibis furnished by witnesses other than the defendant. 1 Although the concurring opinion in Douglas was skeptical of this approach to Oregon's law, noting that the several state statutes could be distinguished, see 292 Or. at 541 n. 40, 641 P.2d 561, we think that it is most consonant with the often-stated rule to give statutes a constitutional interpretation unless the lawmakers unmistakably have adopted the questionable policy. That is very doubtful in this instance.
State v. Smyth, 286 Or. 293, 296, 593 P.2d 1166 (1979). See also Tharalson v. State Dept. of Rev., 281 Or. 9, 13, 573 P.2d 298 (1978), and cases there cited.
Certainly the substance of defendant's testimony that she was at Crabbies Tavern met the literal definition of "alibi evidence" in subsection (2) of ORS 135.455. (So, literally, would answering a question whether she was at the place of the crime by testifying "no, I was someplace else.") B...
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