State v. Edgmand , 306 Or. 535 ( 1988 )

LINDE, J.

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. We reverse.

ORS 135.455 provides:

“(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, the defendant shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of the 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, the defendant 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 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 P2d 1380 (1971), rev’d on other grounds, Wardius v. Oregon, 412 US 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 NW2d 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 P2d 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, 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 (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.”

“This, of course, catches the state and the police officers completely by surprise because they had no advance warning that this defense was going to be raised. The defendant will then produce witnesses to attempt to corroborate his alibi; maybe they are ex-convicts or relatives of the defendant. In any event, there is no opportunity for the state to either verify the alibi or to successfully cross examine the alibi witnesses.”

Minutes, Hearings, Senate Judiciary Committee, May 5,1969, p 1, quoted in State v. Douglas, supra, 292 Or at 540 n 38. 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:

“The prosecution must prove each element of the crime beyond a reasonable doubt, including the presence of the defendant where this is necessary to establish her guilt. Thus, the prosecution must be prepared in any event to counter the defendant’s denial that she was present at the scene of the crime. By contrast, a witness corroborating the defendant’s alibi is not a normal subject of pretrial investigation, and the complaint of those urging notice requirements was that

“ ‘the prosecutor in such cases might easily disclose the falsity of the testimony had he the time to investigate both the reliability of the witnesses and the factual details of the evidence, but he is often denied opportunity.’

“Thus, the state’s interest in cases where there is a surprise claim of alibi is not so much in precluding the presentation of the alibi evidence, but in having a reasonable opportunity to investigate this testimony.”

292 Or at 541 (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, 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.

“It is, of course, a commonplace that statutes will not be construed to violate constitutional prohibitions unless no other construction is possible. State v. Harmon, 225 Or 571, 358 P2d 1048 (1961) and cases there cited. Courts do not readily ascribe to legislators an intention to deprive persons of a right that the constitution guarantees. * * * [Legislators as well as courts may be credited with respecting well-understood constitutional rights and not intending every doubtful law to press to whatever extent that a court will not invalidate.”

State v. Smyth, 286 Or 293, 296, 593 P2d 1166 (1979). See also Tharalson v. State Dept. of Rev., 281 Or 9, 13, 573 P2d 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.”) But subsection (2) does not go beyond defining the substance of the statement. It does not address the issue whose testimony is included in the notice requirement. For the reasons already noted, we think that the object of alibi notice statutes was to permit the prosecution to meet the testimony of witnesses who would swear that a defendant was someplace other than the place of the crime, not to deny the defendant’s right to describe her own movements at the time in question. The trial court shohld not have excluded defendant’s statements from its evaluation whether the state had proved her guilty beyond a reasonable doubt.

The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.

1 See State v. Hibbard, 273 NW2d 172, 174-75 (SD 1978); People v. Merritt, 396 Mich 67, 88, 238 NW2d 31, 40-41 (1976); State v. Schlater, 170 NW2d 601, 605 (Iowa 1969); People v. Rakiec, 289 NY 306, 308-09, 45 NE2d 812, 813-14 (1942).