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Oregon v. Kelsaw

October 27, 1972

STATE OF OREGON, RESPONDENT,
v.
VIRGIL ALLEN KELSAW, JR., APPELLANT



Appeal from Circuit Court, Multnomah County. Berkeley Lent, Judge. (No. C 72-02-0484 Cr); Phillip J. Roth, Judge. (No. C 72-02-0485 Cr).

Peter A. Schwabe, Jr., Portland, argued the cause for appellant. With him on the briefs were Marshall & Schwabe, Portland.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Schwab, Chief Judge, and Foley and Thornton, Judges.

Schwab

The defendant was twice convicted, on separate indictments, of the sale of heroin. His appeal from each conviction has been consolidated for argument before this court. The issues on appeal relate to Oregon's notice of alibi statute, ORS 135.875, which reads:

"(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."

Defendant contends, relying upon Williams v. Florida, 399 U.S. 78, 90 S Ct 1893, 90 S Ct 1914, 26 L Ed 2d 446 (1970), that ORS 135.875 is unconstitutional on its face. This issue has been decided adversely to his position in State v. Wardius, 6 Or App 391, 487 P2d 1380, Sup Ct review denied (1971), reversed and remanded 412 U.S. , 93 S Ct 2208, 37 L Ed 2d 82 (1973).

Defendant also contends, assuming that there can be a constitutional construction of the statute, that a proper construction would result in a holding that in the cases at bar there was "good cause" as a matter of law for waiver of the notice requirements.

On February 15, 1972, the Multnomah County grand jury returned two indictments against the defendant. One charged him with the sale of heroin on or about November 28, 1971, in Multnomah County, and the other with the sale of heroin on or about January 5, 1972, in Multnomah County.

The transcripts disclose, and defendant concedes, that on February 29, 1972, defendant's counsel was given access to the district attorney's files and that these files disclosed the exact times and places of the commission of the offenses and the names of all the witnesses that were called by the state in the subsequent trials. ...


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