Submitted on remand from the United States Supreme Court June 18, 1973; 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).
Schwab, Chief Judge, and Foley and Thornton, Judges.
On October 27, 1972, we affirmed defendant's two convictions for sale of heroin. State v. Kelsaw, 11 Or App 289, 502 P2d 278 (1972). In that opinion we rejected defendant's claim that Oregon's notice of alibi statute, ORS 135.875, was unconstitutional. On November 21, 1972, the Oregon Supreme Court denied defendant's petition to review our decision. On June 11, 1973, the United States Supreme Court held ORS 135.875 unconstitutional in Wardius v. Oregon, 412 U.S. 470, 93 S Ct 2208, 37 L Ed 2d 82 (1973). On June 18, 1973, the United States Supreme Court granted defendant's petition for certiorari, vacated our prior judgment in this case and remanded it to us, "for further consideration in light of Wardius v. Oregon * * *." 412 U.S. 947, 93 S Ct 3016, 37 L Ed 2d 999 (1973).
In both of his separate trials defendant and witnesses called on his behalf testified, by way of an offer of proof, to facts that would have, if believed, established an alibi defense. Two different trial judges rejected the offered testimony and did not permit the juries to hear it, because defendant had not served the notice of intent to rely on an alibi defense that is required by ORS 135.875.
The only possible basis for prohibiting defendant and his alibi witnesses from testifying would be the terms of ORS 135.875. That statute was held unconstitutional in Wardius v. Oregon, supra, in so far as it does not require reciprocal discovery from the state.*fn1
Hence, it was error to prohibit defendant and his alibi witnesses from testifying.
Reversed and remanded for a new trial.