On review from the Court of Appeals.
John K. Hoover, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.
Doyle L. Schiffman, District Attorney, Roseburg, argued the cause for respondent. With him on the brief was Brian R. Barnes, Deputy District Attorney, Roseburg.
The defendant was convicted of three charges of criminal activity in drugs. He appealed to the Court of Appeals which affirmed without an opinion. State v. Morales, 12 Or App 601, 506 P2d 733 (1973). We granted review.
The sole assignment of error is that the trial court erred in striking alibi testimony. The court struck the testimony because the defendant failed to give notice, prior to trial, of intent to rely on alibi
evidence as required by ORS 135.875.*fn1 The defendant offered no reason for his failure to give notice.
We granted review because the trial court's ruling appeared contrary to Wardius v. Oregon, 412 U.S. 470, 93 S Ct 2208, 37 L Ed2d 82, decided June 11, 1973. The majority in Wardius decided that a defendant could not be required to comply with the Oregon notice of alibi statute in the absence of a provision giving defendants reciprocal discovery rights.
The trial court's ruling and the affirmance of the Court of Appeals also appeared contrary to State v. Kelsaw, 11 Or App 289, 502 P2d 278 (1972), decided subsequent to the trial of this case.
In State v. Kelsaw, supra (502 P2d at 280), Chief Judge Schwab wrote:
"* * * It follows that in order to give our notice of alibi statute, ORS 135.875, a rational interpretation it must be construed as providing that unless the record clearly and unequivocally shows that the defendant was given timely reciprocal information as to time and place, ...