State v. Wardius

• Decision Date: 16 November 1971
• Citation: 487 P.2d 1380,6 Or.App. 391
• Parties: STATE of Oregon, Respondent, v. Ronald Dale WARDIUS, Appellant.
• Court: Oregon Court of Appeals

Page 1380

487 P.2d 1380

6 Or.App. 391

STATE of Oregon, Respondent, v. Ronald Dale WARDIUS, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted May 20, 1971.

Decided Aug. 26, 1971.

Rehearing Denied Sept. 17, 1971.

Review Denied Nov. 16, 1971.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

W. Michael Gillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

FORT, Judge.

Defendant was convicted by the court sitting without a jury of the unlawful sale of narcotics. ORS 474.020. On appeal he challenges both the constitutionality and the application here of the alibinotice statute (ORS 135.875), which reads as follows:

'(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.'

At trial the defendant called as his witness one Colleen McFadden. The substance of her testimony was that on the night of the alleged sale the defendant had taken her to a movie. The court sustained a motion to strike that testimony on the ground that defendant had not filed notice of intent to rely upon an alibi as required by ORS 135.875.

Subsequently, the defendant took the stand and testified that on the night of the alleged sale, May 21, 1970, he had taken Colleen McFadden to a drive-in movie. The court again sustained a motion to strike defendant's testimony on the same ground.

The indictment here alleged the date of the crime as 'on or about the 21st day of May, 1970.' Counsel for defendant, in an effort to establish 'good cause' why the notice required under ORS 135.875 was not given, stated the defendant erroneously recalled the state's undercover agent as testifying in a companion case tried about a month earlier that the sale took place on May 22. It was not until a day or two before the trial that defendant's counsel, who had also participated in the earlier trial, checked the transcript in the companion case and learned the witness actually testified May 21 was the date of the crime. No effort was made then to comply with the statute or to seek a postponement of trial based thereon.

The court ruled that good cause for the failure to give the required notice was not shown, and adhered to its ruling striking the alibi evidence of both McFadden and the defendant. We think the court did not abuse its discretion in holding that 'good cause' within the statute was not shown for failure to give the notice required by the statute.

Defendant asserts error in striking the proffered testimony on the ground the statute:

1) Compels him to be a witness against himself;

2) Deprives him of the right to confrontation because it does not guarantee him reciprocal discovery rights;

3) Abridges his right to testify in his own behalf; and

4) Denies him the effective benefit of his right to compulsory process to obtain witnesses in his own behalf.

We will consider these contentions in order.

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 90 S.Ct. 1914, 26 L.Ed.2d 446 (1970), disposes of the first point adversely to the defendant. In that case, the defendant's specific contention was that he was compelled to be a witness against himself contrary to the commands of the Fifth and Fourteenth Amendments. The court held:

'* * * We conclude, however, as has apparently every other court that has considered the issue, that the privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.' 399 U.S. at 83, 90 S.Ct. at 1897.

See also, Annotation, 30 A.L.R.2d 480 (1953). Accord: Rider v. Crouse, 357 F.2d 317 (10th Cir. 1966); State ex rel. Simos v. Burke, 41 Wis.2d 129, 163 N.W.2d 177 (1968); People v. Williams, 11 Mich.App. 62, 160 N.W.2d 599 (1968).

In Williams v. Florida, supra, the court stated:

'We need not linger over the suggestion that the discovery permitted the State against petitioner in this case deprived him of 'due process' or a 'fair trial.' Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant. Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. ¹¹ * * * It is not, however, necessary for us to decide that question. No witness was here called nor evidence offered by the state relating to the question of alibi. Thus, no prejudice is shown, and indeed, the defendant, on this latter score, claims none. Rider v. Crouse, supra.

Thus, we do not find it necessary to decide whether under ORS 135.875 the defendant is entitled to reciprocal discovery rights from the state, as authorized by Florida Rule of Criminal Procedure 1.200, 33 F.S.A. ¹ There has been no denial thereof here. We, too, deem it appropriate, in the language of Williams v. Florida, supra, to 'await a specific context' in which that issue is necessary to a decision.

Defendant next contends that since he is guaranteed the right to take the stand in his own behalf by our constitution (Oregon Constitution, Art I, § 11), he has an absolute right to do so and, in so doing, to testify himself, as well, concerning alibi as well as any other relevant matter.

Defendant confuses the right to testify with the requirement that he first comply with the notice requirement of the statute. It has been consistently held that a defendant urging insanity as a defense can, as in Oregon, be required to give notice thereof in his plea. ORS 135.870. State v. Wallace, 170 Or. 60, 131 P.2d 222 (1942). The legislature, by the enactment of Oregon Laws 1969, ch. 293, p. 500, now ORS 135.875, saw fit only to require a defendant to give at least five day's notice of intent 'to rely in any way on alibi evidence.' The law does not deprive the defendant of his right to take the stand.

The Wisconsin Supreme Court recently considered this claim under a similar statute, and said:

'* * * Assuming the right of a defendant under either or both state and federal constitutions to testify as a witness in his own behalf, it does not follow that such right outlaws any and all procedural requirements of conditions as to notice.

'When any witness takes the stand, he swears or affirms that he will tell the truth, the whole truth and nothing but the truth. What is constitutionally protected is the right of a defendant to testify truthfully in his own behalf. An alibi is not one of several alternative defenses that can be simultaneously asserted. If what the statute terms an alibi is founded in truth and in fact, the defendant was not present to commit the offense charged. If this is the situation, the defendant suffers no prejudice by the requirement of advance notice of intention to establish such fact. If we...