State v. Douglas , 292 Or. 516 ( 1982 )

TANZER, J.

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 P2d 1380, rev den (1971), rev’d in part 412 US 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 dis-positive.

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. 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.

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 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.

1 Justice Lent concurs on the basis of a learned opinion which concludes that the court may never impose a sanction of restriction of a defendant’s testimony. Because of our statutory resolution of the case, we do not reach the constitutional issues which he examines. Nor do we find it necessary to adopt the absolute rule which he proposes. Cf. United States v. Noble, 422 US 225, 95 S Ct 2160, 45 L Ed 2d 141 (1975).