Appendix — Wardius v. Oregon

6

liams, petitioner, versus the State of Florida, U.S. Su-

preme Court, October Term, 1969, decided June 22nd,

1970, and in that case—

THE COURT: What’s the citation?

MR. MEYER: It’s in the Criminal Law Reporter

dated 6-24-70, page 3160, and I have the copy from the

Judges’ library, and I can provide the Court with that.

THE COURT: Three what—?

MR. MEYER: 3160.

THE COURT: All right.

MR. MEYER: And in that case the court took the

Florida Alibi Statute and upheld it in this case, but

they went on to say that Florida had barely—had prac-

tically the same pretrial discovery available to the de-

fendant as under the Federal Rules of Criminal Pro-

cedure, and the case—as I read it—went on to say

that this was a distinguishing situation so that we

would have to—where notice of alibi it wasn’t really

too much to ask of the defendant, considering the fact

that the defendant have [sic] broad discoveries available

to him such as in the Federal courts where we have

prior to trial the pre-trial conference where everything is

furnished and provided practically—well, a summary

of what each witness’s testimony will be and a list of

the witnesses and for that persuasive value it might

have.

Several weeks ago this came up again—this came up

in the Circuit Court here with Judge Perry, and Judge

Perry allowed the alibi testimony in based upon this

case and said that he at that time, based on our statute

and based on this opinion, that he didn’t feel that our

criminal code and our statute should allow a substantive

evidence that the defendant might have to be kept out

due to this, and that is the reason that notice was not

given. I relied somewhat upon that and my own in-

terpretation of this case also.

THE COURT: All right. What is the citation of

the Alibi Statute?

MR. MEYER: I am trying to find it here, Your

Honor. I have to look it up. I can’t find it.

_

7

THE COURT: It probably would be easier to find

it under the Session Laws.

MR. MEYER: Yes. I know it’s in the Digest of

the Session’ Laws, the little pamphlet.

THE COURT: It should be in these codes too.

(To the Bailiff) Would you get me out of my cham-

bers 1969 Session Laws.

MR. MEYER: It appears, Your Honor, that the re-

placement parts are not in these volumes. I think that’s

our problem.

THE COURT: It’s Chapter 2, 93 Oregon Laws of ’69,

provides that if the defendant in a criminal action pro-

poses to rely in any way on alibi cn eee he shall, not

less than 5 days before the trial of thé 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 busi-

ness address of each witness upon whom the defendant

intends to rely for alibi evidence. If the defendant fails

to fail and serve such notice he shall not be permitted to

introduce alibi evidence at the trial of the cause unless

the court for good reason orders otherwise. As used in

this section alibi evidence means evidence that the de-

fendant in a criminal action was at the time of the

commission of the alleged offense at a place other than

the place where such offense was committed.

Now you simply say that is not a constitutional

statute?

MR. MEYER: Yes, based on the U.S. Supreme Court

opinion and that was my reaction, and I raised this in

trial just two weeks ago, State v. Perez, and the State

made the same objection, and the Court took it under con-

sideration and agreed that our criminal code as it’s

matched up against Florida’s and set with this opinion

was such that it would not be constitutional.

THE COURT: Now, it will be the ruling of the

Court that the objections be sustained.

You may want to make any kind of a showing as to

why the Court should, for some good reason, allow you

to offer the evidence.

a ANAL TR at

—=y

MR. MEYER: Yes. I can represent to the Court

that the reason that I did not follow the statute was

because of Judge Perry’s ruling previously, and I would

be willing to so testify.

THE COURT: All right. I take that to mean that

by past statute, not because of any ignorance of what the

State is claiming, at the time and place of the alleged

offense.

MR. MEYER: Well, we were, until yesterday, under

the impression there was a motion to suppress—let me»

back up a little. There was a motion to suppress in a

companion case; at that time it was our recollection that

a witness had testified that this had happened on the

22nd. We obtained a transcript of that—vwell, this morn-

ing. But we asked that a tape be read back to us, I

think two days ago—that would have been Monday. On

that day it was said to be—that the transcript read

that it was the 21st. At that time we sought this wit-

ness. We were under a different impression as to what

had taken place. So I did not meet this girl until today

and did not know her name until just before I called her,

and the defendant sought her out and was to bring her in

yesterday so I could see what her testimony would be,

and I did not meet her till today. So that would be one

reason that we thought we had a different day.

THE COURT: The date alleged is the 21st and—

MR. MEYER: Yes, and we thought the witness had

testified the 22nd, which would have been after the crime,

and that was primarily what our defense was at that time.

But I had also thought of calling some alibi witnesses

regarding the 22nd, which was after the crime and after

the date alleged in the indictment because our recogni-

tion of the date Officer Harp testified to before was dif-

ferent. So we had not relied on this witness until—well,

Monday when we saw what that transcript said.

THE COURT: When was the motion to suppress

heard?

MR. MEYER: August 4th, and at that time I was

not—during that motion to suppress we were not con-

cerned with this date; we were concerned with a later

time, and I didn’t take the notes. I asked Harp—the

witness Harp if he had ever seen the defendant before

9

at the motion to suppress: and that’s when the date came

out, and I was not concentrating on that because I was

concentrating on something else during the motion to

suppress, and it was Mr. Wardius’s recollection that it

was the 22nd. He was absolutely sure that’s what he

said, and when we checked the transcript so that we could

confront the witness Harp with the date, unfortunately,

it said the 21st, and so what Mr. Wardius’s recollection

of it was incorrect. So once we realized that then he re-

called that he had dated this girl this evening and I said,

“Go get her”.

THE COURT: All right. What’s the State’s position

now?

MR. HORTON: Well, the State’s position is this, Your

Honor—are you talking about in regard to the showing of

circumstances which would allow the Court for this wit-

ness to testify?

THE COURT: Yes.

MR. HORTON: All right. No. 1, the motion to sup-

press was held over a month ago; counsel was present at

that motion to suppress; there was a Court Reporter pres-

ent; he had an opportunity to examine the recording of

that proceeding to determine the date in question on which

the defendant and the witness confronted each other; the

indictment clearly states the date of the 21st; an error on

his behalf, taking notes, and no further checking on that

until a short time prior to the proceedings today should

not be the type of situation as defined by statute which

would allow the Court to permit such testimony. He did,

by his own testimony to the Court, anticipate calling alibi

witnesses regardless.

There, of course, was no information given the State

prior to day [sic] for those witnesses either. We don’t

feel he has shown sufficiently for the Court’s consideration

a reason why this testimony should be allowed.

THE COURT: All right. Now, Mr. Meyer, no matter

what day you had an impression about, you didn’t give

notice that that day either.

MR. MEYER: That is correct, but for the reason that

it was after the date alleged in the indictment. If it was

after the the [sic] date the indictment alleged it would

10

be a little different type or offense. It’s the 21st in the

indictment and it was our recollection that it was the

22nd, and so we were—my own thinking was that if he

had a date after the occurrence, that we were in a slightly

different position and maybe I misunderstood the law on

that issue.

THE COURT: The indictment was filed on the 22nd

day of May and if he undertook to prove that this occurred

sometime presumably later in the day, after the closing of

the courthouse on the 22nd, that it would be— _

MR. MEYER: The indictment would have been re-

turned prior to the commission of the crime.

THE COURT: The objection—I guess it’s in the form

of a motion to strike?

MR. HORTON: That’s correct.

THE COURT: The motion to strike is allowed.

You want to make an offer of proof?

MR. MEYER: Yes.

THE COURT: All right. You tell me when you are

finished with your offer of proof. You want to call several

witnesses in support of your offer of proof, or is this the

only witness?

MR. MEYER: I think I would like to—well, it won’t

be necessary. I will end my direct examination and de-

pending upon what the State—

THE COURT: All right. You just tell me when you

are finished. Go ahead.

MR. MEYER: No further questions of this witness.

Okay, now, can this witness’s testimony that she has

previously given be taken as the offer of proof?

THE COURT: All right, if that’s what you want.

MR MEYER: Yes.

THE COURT: All right. The offer of proof is re-

jected. You can call your next witness. Tha’s |[sic] all,

Ma’am.

(Tr 29-39)

“ee & & #

[MR. MEYER] Q Where were you on May 2\st,

at 9:05 in the evening?

[MR. WARDIUS] A I was at the Eugene Drive-

In.

11

Q And who was there with you?

A Colleen McFadden.

MR. HORTON: I am going to object, Your Honor,

and ask that both these statements and answers be strick-

en from the record.

THE COURT: Do you wish to be heard?

MR. MEYER: Well, if I were to follow the—of course,

I have my same opinion as prior regarding the alibi

statute.

THE COURT: Yes.

MR. MEYER: But in this situation I would be re-

quired to give the State five days’ notice that the de-

fendant was going to testify and I don’t think I am re-

quired to do that. The situation as to whether or not the

defendant will testify, of course, is entirely up to us

and I may not give the State any indication as to what

my defense would be as pertaining to defendant’s testi-

mony.

THE COURT: I think the statute does contemplate

all of the evidence offered by the defendant by its lan-

guage. It covers the evidence that is now being offered,

and it will be the order of the Court that the motion to

strike—that was the form of your—

MR. HORTON: That’s correct.

THE COURT: —will be allowed.

MR. MEYER: And what was stricken? The last two

questions about the drive-in?

THE COURT: Yes.

Q (By Mr. Meyer) Did you ever—that all.

(Tr 40-42)

* * * *

VERDICT OF THE COURT—Filed September 16, 1970

[Caption Omitted in Printing]

This matter having come on before the court, and it

appearing that the defendant, Ronald Dale Wardius, at

the commencement of the trial, duly waived the trial of

this matter to the jury and left the trial thereof to the

court, and the court having heard the testimony and

examined the exhibits, is of the opinion and finds that the

defendant, Ronald Dale Wardius, is guilty of the crime

Ree ee ee a

eens

[SOS INA TED EPL LS GMOS

—+

12

of “ILLEGAL SALE OF NARCOTICS” as charged in

the Indictment.

Dated this 16th day of September, 1970.

/s/ EDWARD LEAVY

Circuit Judge

SENTENCE—Filed November 23, 1970

[Caption Omitted in Printing]

Now at this time this cause came on to be heard, the

State of Oregon appearing by John B. Leahy, District

Attorney for Lane County, Oregon, and the defendant,

Ronald Dale Wardius, appearing in person and being

represented by his attorney, John Meyer, said defendant

having been duly tried and convicted of the crime of

“ILLEGAL SALE OF NARCOTICS” before the court

in the above entitled court and cause, and this being the

time fixed for imposing sentence herein, and the court

being fully advised,

IT IS HEREBY ORDERED AND ADJUDGED that

said defendant, Ronald Dale Wardius, be and he hereby

ig sentenced to imprisonment for a term not to exceed

eighteen (18) months and he is hereby committed to the

legal and physical custody of the Corrections Division

of the State of Oregon,

IT IS FURTHER ORDERED that the Sheriff of Lane

County, Oregon deliver said defendant to the custody of

the Warden of the Oregon State Penitentiary.

IT IS FURTHER ORDERED that the State have and

recover judgment against the defendant for its costs and

disbursements incurred herein, to be taxed, to be paid

in the first instance to Lane County, Oregon.

Dated this 23rd day of November, 1970.

/s3/ EDWARD LEAVY

Circuit Judge

13

NOTICE OF APPEAL—Filed November 23, 1970

(Caption Omitted in Printing]

COMES NOW Defendant, Ronald Dale Wardius, by

and through his attorney, John G. Meyer, and does here-

by give notice to the State of Oregon, Plaintiff, and John

B. Leahy, District Attorney for Lane County, Oregon,

attorney for Plaintiff, that Defendant, Ronald Dale War-

dius, does hereby appeal to the Court of Appeals of the

State of Oregon from that certain judgment of conviction

entered herein on the 23rd day of November, 1970. De-

fendant does appeal from the whole of said judgment of

conviction.

DATED this 23rd day of November, 1970.

/8/ JOHN G. MEYER

Attorney at Law

* * * *

IN THE COURT OF APPEALS

OF THE STATE OF OREGON

Department 2

STATE OF OREGON, RESPONDENT

v.

RONALD DALE WARDIUS, APPELLANT

OPINION—Filed August 26, 1971

Fort, J.

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 alibi-notice statute (ORS 185.875),

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

— ae > A ee 3 va a SM Ye

~ is et os

oS oe

aS PENIS = . $k DANY DES RRA POS RE A ESS

a

14

and serve upon the district attorney a written no-

tice of his purpose to offer such evidence, which no-

tice 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 evi-

dence. 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 no-

tice of intent to rely upon an alibi as required by ORS

135.875.

Subsequently, the defendant took the stand and testi-

fied 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 testi-

mony 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 [sic] the sale took place on May 22.

It was not until a day or two before the trial that de-

fendant’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

_

15

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 testi-

mony 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 com-

pulsory process to obtain witnesses in his own behalf.

We will consider these contentions in order.

Williams v. Florida, 399 US 78, 90 S Ct 1893, 90 S Ct

1914, 26 L Ed2d 446 (1970), disposes of the first point

adversely to the defendant. In that case, the defend-

ant’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 vio-

lated by a requirement that the defendant give no-

tice of an alibi defense and disclose his alibi wit-

nesses.” 399 US at 83.

See also, Annotation, 30 ALR2d 480 (1953). Accord:

Rider v. Crouse, 357 F2d 317 (10th Cir 1966); State ex

rel Simons v. Burke, 41 Wis 2d 129, 163 NW2d 177

(1968) ; People v. Williams, 11 Mich App 62, 160 NW2d

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

— mrohs7 CS

SEEPS LODE AOL VEGI LADLE OEE ET

——

16

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, dat-

ing at least from 1927, are now in existence in a

substantial number of States." * * *

“11% *# *

“We do not, of course, decide that each of these

alibi-notice provisions is necessarily valid in all re-

spects; that conclusion must await a specific context

and an inquiry, for example, into whether the de-

fendant enjoys reciprocal discovery against the

State.” (Emphasis supplied.) 399 US at 81-82.

It is not however, necessary for us to decide that ques-

tion. 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." There has been no

1 Florida Rule of Criminal Procedure 1.200 provides:

“Upon the written demand of the prosecuting attorney,

specifying as particularly as is known to such prosecuting

attorney, the place, date and time of the commission of the

crime charged, a defendant in a criminal case who intends to

offer evidence of an alibi in his defense shall, not less than ten

days before trial or such other time as the court may direct,

file and serve upon such prosecuting attorney 4 notice in writ-

ing of his intention to claim such alibi, which notice shall con-

tain specific information as to the place at which the defendant

claims to have been at the time of the alleged offense and, as

particularly as is known to defendant or his attorney, the names

and addresses of the witnesses by whom he proposes to estab-

lish such alibi. Not less than five days after receipt of de-

fendant’s witness list, or such other times as the court may di-

_

————

bh

denial thereof here. We, too, deem it appropriate, in the

language of Williams v. Florida, supra, to “await a spe-

cific 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 require-

ment that he first comply with the notice requirement

of the statute. It has been consistently held that a de-

fendant 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, 181 P2d 222

(1942). The legislature, by the enactment of Oregon

Laws 1969, Ch 2938, p 500, now ORS 135.875, saw fit only

rect, the prosecuting attorney shall file and serve upon the

defendant the names and addresses (as particularly as are

known to the prosecuting attorney) of the witnesses the State

proses to offer in rebuttal to discredit the defendant’s alibi at

the trial of the cause. Both the defendant and the prosecuting

attorney shall be under a continuing duty to promptly disclose

the names and addresses of additional witnesses which come

to the attention of either party subsequent to filing their

respective witness lists as provided in this rule. If a defendant

fails to file and serve a copy of such notice as herein required,

the court may exclude evidence offered by such defendant for

the purpose of proving an alibi, except the testimony of the

defendant himself. If such notice is given by a defendant, the

| court may exclude the testimony of any witness offered by the

| defendant for the purpose of proving an alibi if the name and

address of such witness as particularly as is known to defendant

or his attorney is not stated in such notice. If the prosecuting

attorney fails to file and serve a copy on the defendant of a

list of witnesses as herein provided, the court may exclude

evidence offered by the state in rebuttal to the defendant’s alibi

evidence. If such notice is given by the prosecuting attorney,

the court may exclude the testimony of any witness offered by

the prosecuting attorney for the purpose of rebutting the de-

fense of alibi if the name and address of such witness as

particularly as is known to the prosecuting attorney is not

stated in-such notice. For good cause shown the court may

waive the requirements of this rule.” Williams v. Florida, supra

899 US at 104, 105.

ery

“18

to require a defendant to give at least five days’ 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 tes-

tify as a witness in his own behalf, it does not follow

that such right outlaws any and all procedural re-

quirements 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 in the right of a defendant to testify truth-

fully in his own behalf. An alibi is not one of sev-

eral alternative defenses that can be simultaneously

asserted. If what the statute terms an alibi is

founded in truth and 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 are discussing the right

of a defendant to defer until the moment of his tes-

tifying the election between alternative and incon-

sistent alibis, we have left the concept of the trial

as a search for truth far behind. Where this situa-

tion was presented to this court, we rejected the

claimed right of a defendant to abandon the alibi of

which he had given notice and substitute a new and

different one at the time of trial. Where there is

even a pretrial chance of alibi, this court has per-

mitted cross-examination and introduction of the

initial alibi notice as bearing upon an issue raised

by the choice and change of mind of the defendant.

These decisions, and the statute on which they are

based, do not limit in any way the right of a defend-

ant to testify truthfully in his own behalf. The con-

dition of prior notice as to alibi testimony, like the

test as to materiality and relevancy, does not invade

the right of a defendant to testify in his defense.”

19

State ex rel Simos v. Burke, supra, 41 Wis 2d at

136-38,

This assignment is without merit.

His final contention is that ORS 135.875 abridges his

right to compulsory process to obtain witnesses in his own

behalf. There was no such denial here. In Simos the

Wisconsin court pointed out that the challenged statute

does not disqualify any person as a prospective witness,

nor does it purport to ban alibi evidence. It requires

only the giving of reasonable notice of intention to do so

and identification of prospective witnesses to be called in

connection therewith.

In State ex rel Simos v. Burke, supra, the court well

summarized:

“From the standpoint of the constitutional rights

of this defendant, we find no constitutional right in-

fringed or invaded. From the standpoint of the pub-

lic policy as determined by the legislature, we find a

legitimate public interest served by the statute. From

the standpoint of the reasonableness of the procedural

requirement involved, we would conclude that estab-

lishing an earlier time than the trial itself for notice

. Of alibi avoids mid-trial state motions for adjourn-

ment on the ground of surprise to permit investiga-

tion of alibi claims. The interest of the prosecution,

defense and public are served by such facilitating of

orderly, uninterrupted trials for the seeking of the

truth and the protection of the rights of all con-

cerned.” 41 Wis 2d at 139-140.

We agree. The judgment is affirmed.

ip OEMS EEE RE LOE DIET EY IM.

"ae ae -

20

LETTER OF COURT OF APPEALS

Filed September 17, 1971

[Caption Omitted in Printing]

J. Marvin Kuhn

Deputy Public Defender

Labor & Industries Building

Salem 97310

Re: State v. Ronald Dale Wardius

Dear Mr. Kuhn:

I am directed to inform you that the court has today

denied appellant’s petition for rehearing in the above

appeal. -

Very truly yours,

/s/ JOSEPH A. GUIMOND

Deputy

JAG:bn

ec: John W. Osburn

Solicitor General

State Office Building

Salem 97310

21

LETTER OF SUPREME CouRT—Filed November 16, 1971

[Caption Omitted in Printing]

Mr. J. Marvin Kuhn

Deputy Public Defender

Labor & Industries Building

Salem, Oregon

In Re: State of Oregon v. Wardius

Dear Mr. Kuhn:

I am directed to inform you that the Court has today

denied petition for review in the above case.

Very truly yours,

/s/ JOSEPH A. GUIMOND

JAG:br

ec: Lee Johnson

Attorney General

John W. Osburn

Solicitor General

State Office Building

Salem, Oregon

PIR EAVES ES

RR EP eS SE

22

SUPREME COURT OF THE UNITED STATES

No. 71-6042, October Term, 1971

RONALD DALE WARDIUS, PETITIONER

Vv.

OREGON

On petition for writ of Certiorari to the Court of Ap-

peals of the State of Oregon.

The motion for leave to proceed in forma pauperis

and the petition for a writ of certiorari are granted.

May 30, 1972

SX &. 8. GOVERNMENT PRINTING OFFICE; 1972 469171 847

i FOLLO

eee .

RNC NMRA EOL ID

ORS 9 RP Arie.

ING FOLDOUTS/EXHIBITS ARE TOO LARGE TO FILM

Ser ror 8.

Koy j } oo)

JUL 25 iSi2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-6042

RONALD DALE WARDIUS,

Petitioner,

Vv.

STATE OF OREGON,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF OREGON «s

ha

BRIEF FOR PETITIONER SS

—S)

an ao"

J. MARVIN KUHN

Deputy Public Defender

110 Labor & Industries Building

Salem, Oregon 97310

OC e THIEL PRESS e (202) 393 0625

Washington

(i)

TABLE OF CONTENTS

1. OPINIONS BELOW ccc wicccvewaeiecedeesens 1

II. STATEMENT OF THE GROUNDS ON WHICH

THE JURISDICTION OF THE COURT IS INVOKED. 2

III. THE CONSTITUTIONAL AND STATU-

TORY PROVISIONS INVOLVED. .............--

IV. THE QUESTIONS PRESENTED ..............

V. STATEMENT OF THECASE .................

VI. SUMMARY OF ARGUMENT .................

; ARGUMENT .............--00-eeeeeeeee

A. A notice of alibi statute requiring petitioner

f to furnish the State with notice of his intent

to rely on alibi evidence together with the

name and addresses of his prospective wit-

£ nesses denies the petitioner due process of

law if the statute does not grant him recip-

rocal discovery rights against the State ........ 7

B. Petitioner has been denied his right to

testify in his own defense and his right to

remain silent if he must file a notice of alibi

as required by ORS 135.875 if that notice is

made a condition precedent to his giving alibi

testimony in hisown behalf ............... 11

1. The petitioner may not constitutionally

be denied the opportunity to offer evi-

dence by his own testimony, tending to

establish his innocence as a penalty for

non-compliance with Oregon’s notice re-

P| | ae a ae ee er 11

“YD WA & WN

AAS SNS EDP ach 5 NAR RTI I le

ek Ag. RNAS Ra PY

Hylidae

2. A notice statute requiring a defendant to

submit in writing a notice of intention to

rely on alibi witnesses to the District

Attorney and requiring him to provide

(it)

the District Attorney with the names and

addresses of his prospective witnesses

compels the defendant to be a witness

against himself in violation of the Fifth

and Fourteenth Amendments of the

United States Constitution ...........----: 19

C. The petitioner may not constitutionally be

denied the opportunity to offer witnesses in

his defense as a sanction imposed for non-

compliance with a notice requirement ........- 21

VIII. CONCLUSION. .....- eee eee eee errs 25

TABLE OF AUTHORITIES

Cases:

Barber v. Page, 390 US 719, 88 S Ct 1318, 20 L Ed2d

77 1 .:) 14

Brooks v. Tennessee, 40 USLW 4603 (U.S. June 7, 1972). . 14, 24

Douglas v. Alabama, 380 US 415, 85 § Ct 1074, 13

L Ed2d 934(1965) .......- ba bg ROS EAE EES 14

Ferguson v. Georgia, 365 US 570, 81 S Ct 756,5 L

Ed2d 783 (1961) «1... eee eee reer eee ee eeeee 12

Galpin v. Page, 85 US 350, 21 L Ed 959 (1874) .......-.- 13

Hovey v. Elliott, 167 US 409,42 L Ed2d 214 (1897) ...... 13

In re Oliver, 333 US 257, 68 S Ct 499, 92 L Ed

yt) 12

Malloy v. Hogan, 378 US 1, 84S Ct 1489, 12 LEd2d

653 (1964) ce ree eee eee ere te eees 19, 20

People v. Rakiec et al, 289 NY 306, 45 NE2d 812 (1942)... 16, 17

Pointer v. Texas, 380 US 400, 85 S Ct 1064, 13 L

Ed2d 923 (1965)... eee eee eee errr teees 8, 14

Specht v. Patterson, 386 US 605,87 SCt 1209, 18 L

Ed2d 326 (1967)... - eee e rere eee c re eeecee 12

(iti)

Spevack v. Klein, 385 US 511, 87 S Ct'625, 17 L

oe ey i) a ee i ee 20

State v. Bowen, OrApp ,492 P2d 480(1972)..... 10

State v. Foster, 242 Or 1,407 P2d 901 (1965) .......... 9

State v. Gann, 254 Or 549, 463 P2d 570(1969) ......... 22

State v. Post, 255 lowa 573, 123 NW2d 11 (1963) ....... 17

State v. Stump, 254 Iowa 1181, 119 NW2d 210 (1963) ..... 17

State ex rel Dooley v. Connall, Or App ;

ogy Ab ee a a rr 9

State ex rel Gladden v. Lonergan, 201 Or 163, 269

i) | ae eae 21, 22

Ungar v. Sarafite, 376 US 575, 84 S Ct 841, 11 L

oe er ar rae rrr 14

Washington v. Texas, 388 US 14, 87S Ct 1920, 18 L

Pt i) are aa ree passim

Williams v. Florida, 399 US 78, 90 S Ct 1893, 26 L

eT a ee ee eee passim

Windsor v. McVeigh, 93 US 277, 23 L Ed 914 (1876) ...... 13

Constitutional Provisions:

Constitution of the United States

Fifth Amendment ...............2000005 2,3, 19, 21

Sixth Amendment ..:.....cccccccccvves 2, 3, 13, 21

Fourteenth Amendment ................000% passim

Constitution of Oregon

po ge 8 ee nee ae aera 16, 17

Statutes: °

Florida Rules of Criminal Procedure

ee | | a a ee a hare area 7

Iowa Code

Section 777.18. 2... 0... ce eee eee eee ee ee eee 18

New York Code of Criminal Procedure

eS re ene een ee ae ne a 16

“an i OE ee eee ee ee eee 17

(iv)

Oregon Revised Statutes —

Section 133.750 ...t....ceerereeeecees 9

Section 133.755 ......2eeeeeeceerreeeeee 9

Section 135.875 .....cceecccrrececcreeres passim

Section 139.310 .......--eeeeeererrerres 16, 17

United States Code

2

Title 28, section 1257(3) ...------+eeeeee

IN THE

Supreme Court of the United States

OCTOBER TERM, 1972

No. 71-6042

RONALD DALE WARDIUS,

Petitioner,

STATE OF OREGON,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF OREGON

BRIEF FOR PETITIONER

I. OPINION BELOW

The decision of the Court of Appeals of the State of

Oregon in this case is reported at 93 Or Adv Sh 147, 487

P2d 1380 (1971), and appears in the printed appendix at

page 18. There was no opinion in this case in the

Supreme Court of Oregon. (See A.21).