Petitioners Brief — Wardius v. Oregon

2

ll. STATEMENT OF THE GROUNDS ON

WHICH THE JURISDICTION OF THE

COURT IS INVOKED

The petitioner in this case was convicted of a felony in

the Circuit Court of the State of Oregon for the County

of Lane. The petitioner was not permitted to introduce

evidence of alibi because he had not filed a notice of

intention to rely on alibi evidence as required by ORS

135.875. The contention of petitioner that ORS 135.875

violated his rights as guaranteed by the Fifth, Sixth, and

Fourteenth Amendments to the United States Consti-

tution was rejected on the merits by the Court of Appeals

of the State of Oregon (A. 18), and review was denied by

the Supreme Court of Oregon (A. 21). The jurisdiction of

this Court over this cause is conferred by 28 U.S.C.

§ 1257(3).

The decision of the Supreme Court of Oregon declin-

ing to review this case was rendered on November 16,\

1971. A motion for leave to proceed in forma pauperis

and a petition for writ of certiorari were filed in this

Court on January 21, 1972. Both the motion and

petition were granted on May 30, 1972.

Ill. THE CONSTITUTIONAL AND STATU-

TORY PROVISIONS INVOLVED

This appeal involves the Fifth, Sixth, and Fourteenth

Amendments to the United States Constitution and

Section 135.875 of the Oregon Revised Statutes.

The Fifth Amendment provides:

“No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia,

3

when in actual service in time of War or public

danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb,

nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.”

The Sixth Amendment provides:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and to

be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the Assistance

of Counsel for his defence.”

Section 1 of the Fourteenth Amendment provides:

“All persons born or naturalized in the United

States and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or

property without due process of law; nor deny to

any person within its jurisdiction the equal pro-

tection of the laws.

Oregon Revised Statute Section 135.875 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 prupose to offer such evidence,

4

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.”

IV. THE QUESTIONS PRESENTED

1. Does an alibi statute requiring petitioner to furnish

the state with notice of his intent to rely on alibi

evidence together with the names and addresses of his

prospective witnesses deny the petitioner due process of

law as guaranteed by the Fourteenth Amendment to the

United States Constitution if the statute does not grant

him reciprocal discovery rights against the state?

2. Has the petitioner been denied due process of law

and his right not to incriminate himself if the trial court

refuses to allow him to take the stand and give alibi

testimony in his own defense because of his failure to file

a notice of alibi as required by ORS 135.875?

3. Has petitioner been denied his right to compulsory

process if the trial court refuses to allow petitioner’s

witnesses to give alibi testimony when petitioner failed to

comply with the notice provisions of ORS 135.875?

5

V. STATEMENT OF THE CASE

Petitioner was arrested on June 5, 1970, for the

alleged sale of marijuana to an undercover police officer

(R. 13). Petitioner was subsequently tried before a judge

without a jury (A. 3). Miss Colleen McFadden was called

as a witness for the petitioner. She testified that she and

the petitioner had been at a “drive-in” movie at the time

of the crime petitioner is alleged to have committed. The

prosecuting attorney for the state objected to any such

testimony on the grounds that petitioner had failed to

give notice of alibi testimony under ORS 135.875. The

objection asked that the testimony of Miss Colleen

McFadden be stricken from the consideration of the

court and the objection was sustained (A. 5-7).

Petitioner then took the stand and testified that he was

with Miss McFadden attending a “drive-in” movie at the

time the crime was alleged to have taken place. The

prosecuting attorney for the state again objected to the

alibi testimony of petitioner on the grounds that peti-

tioner had failed to comply with ORS 135.875. The

court sustained the objection and petitioner’s own

testimony was stricken from the record (A. 10-11).

Defense counsel objected to the court’s rulings to

exclude the testimony of Miss FcFadden and petitioner

from the consideration of the court. Petitioner was

convicted of the illegal sale of narcotics (A. 11-12).

The Court of Appeals of the State of Oregon rejected

petitioner’s claims. The Oregon Court refused to decide

whether or not ORS 135.875 denied petitioner due

process of law because it failed to provide petitioner with

reciprocal discovery rights against the state and held the

notice of alibi statute did not deny petitioner the right to

testify in his own defense; his right to compulsory

6

process, nor his privilege against incriminating himself (A.

13).

VI. SUMMARY OF ARGUMENT

Section 135.875 of Oregon Revised Statutes provides

that an accused who intends to rely on alibi as a defense,

must, within five days of trial, file with the district

attorney a written notice of such intent including the

place where the accused claims to have been at the time

of the alleged offense together with his proposed wit-

nesses’ names and addresses. If the accused does not

comply with the provisions of the statute, he is not

permitted to introduce alibi evidence at his trial either

through the testimony of his witnesses or himself.

Although the defendant is forced to make full disclo-

sure of his alibi defense, the State is under no obligation

to make any disclosure whatsoever to defendant. The

lack of reciprocal discovery rights on the part of the

defendant against the State denies defendant due process

of law. .

A defendant in a criminal trial has a constitutional

right to take the stand and give alibi testimony in his own

behalf even though he may have failed to give written

notice of alibi as required by statute. A defendant has a

right to be heard and he has been denied his right to due

process of law if he is prevented by a procedural statute

from giving alibi testimony that has direct probative value

on the vital issue of his guilt or innocence.

Petitioner has been denied his right to remain silent if

filing a notice of alibi pursuant to ORS 135.875 is made a

condition precedent to his giving alibi testimony in his

own behalf.

7

ORS 135.875 denies an accused his right to com-

pulsory process for obtaining witnesses by not allowing a

witness to give alibi testimony on behalf of the defendant

_ if the defendant has failed to comply with the notice

provisions of the statute. This is a direct denial of

defendant’s Sixth Amendment right to present a defense.

VII. ARGUMENT

A.

A NOTICE OF ALIBI STATUTE REQUIRING

PETITIONER TO FURNISH THE STATE WITH

NOTICE OF HIS INTENT TO RELY ON ALIBI

EVIDENCE TOGETHER WITH THE NAMES

AND ADDRESSES OF HIS PROSPECTIVE

WITNESSES DENIES THE PETITIONER DUE

PROCESS OF LAW IF THE STATUTE DOES

NOT GRANT HIM RECIPROCAL DISCOVERY

RIGHTS AGAINST THE STATE

This Court in Williams v. Florida, 299 US 78, 90S Ct

1893, 26 L Ed2d 446 (1970), upheld Florida’s notice of

alibi rule as imposed by Section 1. 200 of Florida’s Rules

of Criminal Procedure (A. 16-17).' However, in deciding

in favor of the constitutionality of Florida’s rule, this

Court relied heavily on that portion of the Florida alibi

statute which provided for liberal discovery by the

petitioner against the State. Pursuant to the Florida rule

not only was the petitioner under an obligation to

disclose the names and addresses of his prospective alibi

witnesses, but the State had a reciprocal duty to disclose

to the petitioner the names and addresses of the witnesses

the State proposed to offer in rebuttal to discredit the

petitioner’s alibi. The penalty imposed for failure to

"See Appendix to Opinion of the Court, 399 US at 104.

is

8

comply with the terms of the statute was the denial of

that party’s right to call witnesses in order to offer alibi

evidence. The penalty, as well as the obligation to give

notice rested equally on the shoulders of the State and

petitioner. Williams v. Florida, supra at 104-105.

ORS 135.875 has no such reciprocal right of discovery

in favor of the criminal defendant and this omission,

petitioner submits, denies him due process of law and the

right to confront the witnesses the State proposes to call

against him. Williams v, Florida, supra; Pointer v. Texas,

380 US 400, 85 S Ct 1064, 13 L Ed2d 923 (1965).

Under the Oregon statute, the petitioner is required to

submit all his prospective alibi witnesses’ names and

addresses so the State may interview them, obtain their

statements, and then investigate their proposed testimony

hoping to find something to discredit them. Unlike the

Florida rule, if the State is successful in discovering

evidence to rebut the accused’s alibi, it is under no

obligation to disclose one shred of information to the

defendant. It is plain that the obligatory disclosure

requirements of ORS 135.875 are a one-way street

forcing full disclosure on the part of the defendant but .

requiring none on the part of the State. Petitioner

submits that by forcing full disclosure upon the

defendant and permitting none in his behalf, this statute

not only tips the scales of justice against the defendant,

but practically crushes him with them. In speaking of our

criminal system, Mr. Justice White in Williams v. Florida,

supra at 399 US 82, said:

‘* * * The adversary system of trial is hardly an end

to itself; it is not yet a poker game in which players

enjoy an absolute right always to conceal their cards

until played * * *”

-— ;

9

ORS 135.875 not only stacks the deck in favor of the

State, but allows the State to conceal its cards until they

are played, while at the same time forcing petitioner to

reveal his hand. This denies petitioner due process of law

as guaranteed by the Fourteenth Amendment to the

United States Constitution.

The Court in Williams was very careful in limiting its

decision to those alibi statutes that provided for recip-

rocal discovery rights and duties when it said at 399 US

82, Footnote 11:

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

alibi notice provisions is necessarily valid in all

respects; that conclusion must await a specific

context and an inquiry, for example, into whether

the defendant enjoys reciprocal discovery against

the State.”

A criminal defendant’s rights of discovery in Oregon

are already so infinitesimal as to be practically meaning-

less, so that it is patently unfair to allow the State

unfettered rights of discovery to defendant’s prospective

alibi witnesses while denying to defendant reciprocal

discovery rights to the State’s prospective rebuttal wit-

nesses. The only right of discovery a defendant has in

Oregon is the right to view a prior written statement of a

State’s witness for the purpose of cross examination of

that witness at trial, but a defendant does not have the

right to pre-trial discovery generally of the statements of

the State’s witnesses. State v. Foster, 242 Or 1,407 P2d

901 (1965). The defendant also has access to any written

statements of his in the hands of the police? The alibi

information obtained by the State is facilitated by the

2ORS 133.750; ORS 133.755. See also State ex rel Dooley v.

Connal, OrApp ,475 P2d 582 (1970)

10

petitioner and not as a result of any independent

discovery on the part of the State. Hence, no search for

truth as to guilt or innocence, nor adequate due process is

obtained when the petitioner divulges names, addresses

and alibi information and does not have an equal right

and opportunity to investigate the facts and persons

which the State will use in rebuttal. Petitioner submits he

should at least be granted reciprocal discovery privileges

when it pertains to an alibi defense, particularly where, as

in Oregon, the State is not bound to prove the date

alleged in the indictment.’ If the State is not bound by

the date it alleges the crime occurs, it could not possibly

be prejudiced in any way if the defendant were to be

granted reciprocal discovery rights pertaining to their

prospective rebuttal witnesses.

As pointed out by Mr. Chief Justice Burger in his

concurring opinion in Williams, supra, at 399 US 106, a

reciprocal notice of alibi rule would serve an important

function by disposing of cases by means of negotiation

without trial when both parties are made aware of what

evidence each has pertaining to an alibi defense. The

Oregon statute prevents just such a possible accom-

odation agreeable to both the State and the defense

because the State is not required to make such disclosure

to the defendant. Petitioner submits that the failure of

ORS 135.875 to provide for such reciprocal discovery

rights on behalf of a criminal defendant denies him due

process of law.

The Oregon Court of Appeals held petitioner was not

prejudiced by the failure of the statute to provide for

reciprocal discovery because the state did not present

evidence relating to the defense of alibi (A. 16-17). The

logic of the Oregon Court escapes petitioner since the

3 state v. Bowen, OrApp 492 P2d 480(1972)

11

reason no such evidence was introduced by the State was

because the petitioner, in the first instance, was denied

the right to put on any alibi evidence, thus dispensing

with the necessity of the State. to offer such’rebuttal

testimony. It is petitioner’s belief that the reason the

State had no duty to offer rebuttal alibi evidence was

because petitioner was denied his constitutional right of

compulsory Process as well as his right to testify in his

own behalf.” This, petitioner believes, should not prevent

this Court from deciding the constitutionality of ORS

135.875.

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 HIS OWN BEHALF.

1. The petitioner may not constitutionally be

denied the opportunity to offer evidence by his

own testimony, tending to establish his inno-

cence as-a penalty for non-compliance with

Oregon’s notice requirement.

Petitioner believes that a defendant in a criminal case

has no more fundamental constitutional right than the

right to offer evidence—and testify, if he so desires—on

the issues relevant to his case. This right the State may

not abridge, nor, as in Oregon, wholly deny for merely

failing to comply with a procedural requirement whose

benefits are, in petitioner’s opinion, dubious at best.

“ These points are discussed in Argument A, infra.

12

The right of an accused to be heard in his own behalf is

a fundamental principle of modern jurisprudence, and

this Court has held that, at a minimum, due process

requires a defendant in a criminal case “be present with

counsel, have an opportunity to be heard, be confronted

with witnesses against him, have the right to cross-

examine and to offer evidence of his own.” Specht v.

Patterson, 386 US 605, 87 S Ct 1209, 18 L Ed2d 326

(1967); Cf. Ferguson v. Georgia, Mr. ‘Justice Clark

concurring, 365 US 570, at 601, 81'S Ct 756, 5L Ed2d

783, at 801 (1961).

Petitioner was called to the stand to testify in his own

defense as to his whereabouts at the time of the crime he

was alleged to have committed. The State’s prosecutor

objected to any such testimony as to alibi, since

petitioner had failed to comply with the statutory alibi

notice requirements set forth in ORS 135.875. The

objection was sustained and petitioner was denied the |

right to testify in his own defense (A. 11).

This Court in Washington v. Texas, 388 US 14, 18, 87

S Ct 1920, 18 L Ed2d 1019, 1023 (1967), speaking

through former Mr. Chief Justice Warren, cited Jn re

Oliver, 333 US 257, 68 S Ct 499, 92 L Ed 682 (1948), in

describing

“# * * (W]hat it regarded as the most basic ingredi-

ents of due process of law. It observed that: ‘A

person’s right to reasonable notice of a charge

against him, and an opportunity to be heard in his

own defense—a right to his day in court—are basic in

our system of jurisprudence; and these rights

include, as a minimum, a right to examine the

witnesses against him, to offer testimony, and to be

represented by counsel,’ 333 US, at 273, 92 L Ed at

694.” ’

—_t—_ ————————s

13

It has been and should continue to be a fundamental

right in this nation to take the witness stand and be given

an unalienable right to testify in one’s own defense when

accused of a criminal act. In the contempt case of Hovey

vy. Elliott, 167 US 409, 42 L Ed 214 (1897), this Court

examined the history of the right of the defendant to be

given an opportunity to be heard in his own defense as a

requirement of due process of law and cited Windsor v.

McVeigh, 93 US 277, 278, 23 L Ed 914 (1876), to the

effect that:

f/f» “The principle stated in this terse language lies at

- the foundation of all well ordered systems of

jurisprudence. Whenever one is assailed in his person

or his property, there he may defend, for the

liability and the right are inseparable. This is a

principle of natural justice, recognized as such by

the common intelligence and conscience of all

nations. A sentence of a court pronounced aginst a

party without hearing him, or giving him an

opportunity to be heard, is not a judicial deter-

mination of his rights, and is not entitled to respect

in any other tribunal,” 167 US 409, at page 414

(Emphasis added).

In Galpin v. Page, 85 US 350, 368-9, 21 L Ed 959, 963

(1874), it was stated:

“* * * It is a rule as old as the law, and never more

to be respected than now, that no one shall be

personally bound until he has had his day in

court, by which is meant, until he has been

duly cited to appear, and has been. afforded an

opportunity to be heard.”

Recent decisions of this Court specllically applying the

various Sixth Amendment protections to State criminal

proceedings add emphasis to the constitutional stature of

the right to offer defensive evidence. They establish that

14

the accused cannot be denied the opportunity to cross-

examine the witnesses against him,*° nor may he be

denied the right to compulsory process for obtaining

witnesses in his own behalf. Washington v. Texas, supra.

Similarly the defendant’s right to effectively defend

against the charges against him, and to offer evidence of

his innocence may not be indirectly infringed by an

unreasonable denial of a continuance. Ungar v. Sarafite,

376 US 575, 589, 84 S Ct 841, 11 L Ed2d 921 (1964).

More recently this Court held that a Tennessee statute

requiring a defendant in a criminal trial to testify first or

not at all violated not only the defendant’s Fifth

Amendment guarantee against self incrimination, but also

denied him due process of law because it denied him “the

guiding hand of counsel” in the timing of this critical

element [the defendant’s right to testify] of his defense.

Brooks v. Tennessee, 40 USLW 4603 (U. S. June 7,

1972). The Court tacitly recognized that the right of a

defendant to testify in his own behalf is constitutional in

scope by saying in Brooks:

“* * * While nothing we say here otherwise curtails

in any way the ordinary power of a trial judge to set

the order of proof, the accused and his counsel may

not be restricted in deciding whether, and when in

the course of presenting his defense, the accused

should take the stand.”

Petitioner believes the Oregon notice of alibi statute

similarly abridges his right to testify in his own defense

by making notice of alibi a condition to this right. This is

as great an infringement of petitioner’s right to due

process as the statute condemned in Brooks v. Tennessee,

supra. —

5 Pointer v. Texas, supra; Douglas v. Alabama, 380 US 415,85 S

Ct 1074, 13 L Ed2d 934 (1965); Barber v. Page, 390 US 719 88S

Ct 1318, 20 L Ed2d 255 (1968).

15

It is petitioner’s belief that ORS 135.875 unconsti-

tutionally abridges petitioner of his right to testify in his

own behalf as guaranteed by the Fourteenth Amendment

to the United States Constitution.

In upholding the Florida notice of alibi rule in Williams

v. Florida, 399 US 78, 90 S Ct-1893, 26 L Ed2d 446

(1970), this Court noted the statute had an exception

which provided the defendant in a criminal action may

testify as to alibi evidence without first complying with

the statute, saying at 399 US 80:

“***The threatened sanctidén~for failure to

comply is the exclusion at trial of the defendant’s

alibi evidence—except for his own testi-

mony —* * a

The Oregon statute provides for no exception and the

Oregon Courts excluded the testimony of petitioner on

the basis of a purely procedural statute. This right should

not be hampered by a procedural statute that permits

material evidence to be withheld from the consideration

by the judge or jury. The statute did deprive petitioner

from giving alibi testimony in his own behalf unless he

first complied with the notice provisions of the statute

and it is precisely this artificial condition precedent

defendant believes is unconstitutional. The right of the

defendant to testify in his own behalf is also recognized

16

in ORS 139.310° and Article I, Section 11 of the Oregon

Constitution”

The New York Code of Criminal Procedure, Section

295-1, is an alibi statute requiring the defendant, on the

State’s request, to furnish a bill of particulars setting

forth the names and addresses of his prosepctive alibi

witnesses, and in the event he fails to do so, the trial

court may exclude such alibi testimony.

In interpreting the New York alibi statute, the New

York Court of Appeals held the statute applicable to

defendant’s prospective witnesses only. and did not

prevent the defendant himself from testifying as to his

whereabouts at the time of the alleged crime. People v.

Rakiec et al, 289 NY 306, 45 NE2d 812 (1942). The

court reasoned the purpose of the statute was to enable

the state to learn something about defendant’s prospec-

tive witnesses, but that was not necessary regarding the

6} 39 310 Defendant as witness. In the trial of or examination

upon any indictment, complaint, information or other proceeding

before any court, magistrate, jury or other tribunal against a person

accused or charged with the commission of a crime, the person so

i or accused shall, at his own request, but not otherwise, be

behalf, gives the prosecution a right to cross-examination upon all

facts to which he has testified and which tend to his conviction or

acquittal.

offense shall have been committed; to be heard by himself and

counsel; * * *”

a 17

defendant himself since the state had already finger-

printed and investigated defendant prior to trial.

The New York Court also relied on the New York

Code of Criminal Procedure § 393 which provided, “The

defendant in all cases may testify as a witness in his own

behalf * * *” The court in People v. Rakiec, supra, held:

“* * * The section [393] is all inclusive. The

enactment of section 393 in its original form (L.

1869, ch 678) was a milestone in the progress of

criminal jurisprudence and its object was to benefit

the accused * * *. Section 295-1 on the other hand

is contained in chapter III-A entitled ‘Simplified

Indictments,’ all of the sections of which relate to

form and procedure. It is a sound rule of construc-

tion that in the absence of express language, it will

be presumed that the Legislature did not intend to

defeat the main purpose and object of another

legislative enactment relating to the same subject

*** nor to make a radical change in long estab-

lished rules * * *.”

Defendant submits the same reasoning properly applies

in relation to ORS 139.310 and ORS 135.875, the latter

statute being applicable only to witnesses and not to

defendant because the purpose of the statute is to enable

the District Attorney to investigate the defendant’s

prospective witnesses, and not the defendant himself,

since the state has presumably done that prior to trial. To

construe ORS 135.875 as denying petitioner the right to

testify himself as to alibi would be directly contrary to

tte Fourteenth Amendment due process provision of the

United States Constitution, ORS 139.310, and Article I,

Section 11 of the Oregon Constitution.

The Iowa Supreme Court in State vy. Post, 255 Iowa

573, 123 NW2d 11 (1963), and State v. Stump, 254 lowa

18

1181, 119 NW2d 210 (1963), indicated the Iowa alibi

statute, Iowa Code §777.18° did not prevent the

defendant from testifying as to his alibi even though no

notice was given as required by the statute.

Petitioner submits there is no justification for a

sanction which wholly denies him the opportunity to be

heard on a material issue of his defense. The alibi-notice

provisions of Oregon’s statute deny petitioner his right to

be heard and arbitrarily stifles his defense as a penalty for

what is a purely procedural omission. Such a sanction

denies petitioner due process of law as guaranteed by the

Fourteenth Amendment to the United States Consti-

tution.

8 lowa Code 777.18 provides: :

“Where the defendant pleads not guilty and proposes to

show insanity as a defense, of that he relies on an alibi or

that he was at some other place at the time of the alleged

commission of the offense charged, he shall, at the time he

or at any time thereafter, not-later than four days

before trial, file a written notice of this purpose, setting forth

the names of the witnesses, together with the address and

occupation of each, and a statement of the substance of that

the defendant expects to prove by the testimony of

each of said witnesses. If the defendant files said notice less

than four days before the case is set for trial, the state, on

motion of the country attorney, shall be entitled to a

continuance of said cause for not to exceed four days.”

19

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 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.

If petitioner complies with the requirements of ORS

135.875, petitioner is compelled prior to the trial not

only to give notice of his intent to testify, but he must

also give the place or places where petitioner claims to

have been. The effect of these requirements is to compel

petitioner to divulge his testimony prior to trial. The

testimony so given prior to trial is a judicial statement

and can be used against petitioner along with any fruits

which the state discovers as a result of the compelled

testimony. It is petitioner’s belief that ORS 135.875 as

construed by the Oregon Court of Appeals is unconsti-

tutional as violative of the Fifth and Fourteenth

Amendments to the United States Constitution.

Petitioner submits that the Oregon Court’s construc-

tion of ORS 135.875 is directly opposed to the language

of the Fifth Amendment in that it forces the defendant

to provide the State with the names and addresses of his

prospective alibi witnesses as well as the “place or places

where defendant claims to have been at the time or times

of the alleged offense.”

Mr. Justice Brennan, speaking for the Court in Malloy

v. Hogan, 378 US 1, 84 S Ct 1489, 12 L Ed2d 653

(1964), extended the Fifth Amendment guarantees

against self incrimination to the states by way of the

Fourteenth Amendment due process clause and said:

¢

20

“* * * The 14th Amendment secures against state

invasion the same privilege that the Sth Amendment

guarantees against federal infringement—the right of

a person to remain silent unless he chooses to speak

in the unfettered exercise of his own will, and to

suffer no penalty, * * * for such silence,” at 378 US

8.

The penalty exacted for failure to comply with the

statute is the denial fo the defendant’s right to present his

alibi witnesses. Defendant believes this is “compulsion”

which forces him to give evidence that may incriminate.

Mr. Justice Douglas in announcing the opinion of the

Court in Spevack v. Klein, 385 US 511, 87 S Ct 625, 17

L Ed2d 574 (1967), cited the above statement from

Malloy v. Hogan, supra, and said:

“In this context ‘penalty’ is not restricted to fine or

imprisonment. It means, as we said in Griffin v.

California, 380 US 609, 85 S Ct 1229, 14 L Ed2d

106 (19650, the imposition of any sanction which

makes assertion of the Fifth Amendment privilege

‘costly.’ ”

An accused who complies with the alibi notice require-

ments under ORS 135.875 is compelled to give prior

testimony which might incriminate him, plus the added

burden of being forced to take the stand in rebuttal if the

state decides to use the information given by petitioner in

the state’s case in chief.

In Williams v. Florida, supra, this 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,” at

399 US 83.

21

Petitioner agrees with the above holding by this Court.

Mr. Williams waa not being compelled to incriminate

himself by divulging the name and address of his witness.

The instant case is contra since the Oregon statute applies

not only to witnesses but also to the criminal defendant.

The Florida statute specifically exempts the defendant

from giving notice because the defendant may testify

_ regardless of compliance with the alibi statute (A. 17). In

Oregon, the defendant is compelled prior to trial to give

his testimony which he is going to rely upon as alibi

during his trial, or be excluded from the stand entirely.

It is petitioner’s belief that the statute, if complied

with, is unconstitutional as in violation of the Fifth and

Foruteenth Amendments to the United States Consti-

tution.

Cc.

THE PETITIONER MAY NOT CONSTITU-

TIONALLY BE DENIED THE OPPORTUNITY

TO OFFER WITNESSES IN HIS DEFENSE AS

A SANCTION IMPOSED FOR NON-

COMPLIANCE WITH A NOTICE REQUIRE-

MENT.

An accused in a criminal trial has an absolute right

to have compulsory process to obtain witnesses in

his own behalf as guaranteed by the Sixth and Four-

teenth Amendments to the United States Constitution.

Washington v. Texas, 388 US 14, 87 S Ct 1290,°18

L Ed2d 1019 (1967).

Petitioner respectfully submits that in holding he was

not denied his right to compulsory process, the Oregon

Court of Appeals and the Oregon Supreme Court in

denying review, completely disregarded the rationale not

only of Washington v. Texas, supra, but also of State ex

rel Gladden v. Lonergan, 201 Or 163, 269 P2d 491

22

(1954), where the Oregon Supreme Court said at 201 Or

189:

“The right to compulsory process for necessary

and material witnesses on his behalf is a valuable

right guaranteed to an accused. it is a right that

cannot be denied by legislative act or failure to act.

In the interests of justice, it is the duty of the courts

to enforce the right. When all is said and done, in

every criminal proceeding * * * the primary aim of

the law is to arrive at the truth of the matter in

controversy, and no obstacle should be sanctioned

that. would deny the presence of a competent

witness who had knowledge of material facts.”

The Oregon Supreme Court in Staite v. Gann, 254 Or 549,

463 P2d 570 (1969), reinforced the holding of State ex

rel Gladden v. Lonergan, supra, indicating that the

witnesses sought and denied to the defendant Gann could

have changed the outcome of the case. Petitioner believes

the holdings of Gann and Lonergan are correct state-

ments of the law and should have been followed in

his case.

This Court in Washington v. Texas, supra, held the

right to offer the testimony of*witnesses, and to compel

their attendance was “‘in plain terms the right to present a

defense” in order to enable a jury to decide the truth, and

determined this was a fundamental element of due

process of law. In Washington, the testimony sought was

that of a co-defendant who was incompetent to testify

favorably for his partner under the applicable Texas

statutes. This Court decided that the defendant was

denied his right to compulsory process because the State

of Texas arbitrarily denied him the right to call a witness

whose testimony would have been relevant to the

defense. Former Mr. Chief Justice Warren, speaking for

this Court said: |

23

“We hold that the petitioner in this case was

denied his right to have compulsory process for

obtaining witnesses in his favor because the State

arbitrarily denied him the right to put on the stand a

witness who was physically and mentally capable of

testifying to events that he had personally observed,

and whose testimony would have been revelant and

material to the defense. The Framers of the Con-

stitution did not intend to commit the futile act of

giving to a defendant the right to secure the

attendance of witnesses whose testimony he had no

right to use. The judgment of conviction must be

reversed,” at 388 US 23.

In the instant case, petitioner was denied the right to

have Miss Colleen McFadden testify he was with her at a

drive-in movie at the time the crime was alleged to have

occurred, because he had not submitted her name and

address to the state prior to trial as required by ORS

135.875. (A. 5-7). Certainly petitioner was denied his

right to present his defense as arbitrarily as the defendant

in Washington v. Texas, supra. The testimony of Miss

McFadden was relevant and material to the very heart of

petitioner’s case; i.e., his guilt or innocence and the

refusal to allow her to testify denied petitioner his right

to compulsory process.

It should be noted that the accused in Williams v.

Florida, 399 US 78, 90 S Ct 1893, 26 L Ed2d 446

(1970), was permitted to have his witnesses testify even

though he failed to comply with the provisions of the

Florida alibi statute. Petitioner believes this Court

indicated that the rule applied in Washington v. Texas,

supra, would be applicable had defendant in Williams vy.

Florida, supra, not been allowed to introduce the

testimony of his alibi witness. This is indicated in

Footnoe 14 where the Court stated:

24

“We emphasise that this case does not involve the

question of the validity of the threatened sanction,

had petitioner chosen not to comply with the notice

of alibi rule. Whether and to what extent a State can

enforce discovery rules against a defendant who fails

to comply by excluding relevant, probative evidence

is a question raising Sixth Amendment issues which

we have no occasion to explore * * * It is enough

that no such penalty was enacted here.” (Emphasis

ours)

Such a penalty was exacted on petitioner in the instant

case, the effect of which was to deny him the right to

present to the trial court relevant, probative evidence that

could very well have proved him innocent. In short,

petitioner was denied his right to present a defense which

petitioner believes, contrary to the opinion of the Oregon

Court of Appeals, should not be denied him on the basis

of a vague public policy interest, because petitioner feels

public policy could best be served by allowing a criminal

defendant to present all relevant evidence that may be

determinative on the issue of his guilt or innocence.

The penalty provision of ORS 135.875, denying

petitioner his right to present alibi witnesses for failure to

file the required notice is an “impermissible restriction”

on his Sixth Amendment right to compulsory process. €f.

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

25

VIII. CONCLUSION

For the reasons stated, it is respectfully submitted the

judgment of the court below should be reversed.

Respectfully submitted, |

J. MARVIN KUHN

Deputy Public Defender

110 Labor & Industries Building

Salem, Oregon 97310