Appeal from Circuit Court, Multnomah County. Charles S. Crookham, Judge. No. C 70-11-0387 Cr.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.
Defendant was convicted after jury trial of assault and robbery while armed. Former 163.280.*fn1 He appeals, contending that the trial court erred:
(1) In denying defendant's motion to suppress evidence seized as a result of police entry into his motel room on November 3, 1970, and a search of that room on November 4;
(2) In denying defendant's motion for a new trial based on newly discovered evidence;
(3) In prohibiting testimony from an examining psychiatrist as to statements made by defendant while under a so-called "truth serum"; and
(4) In instructing the jury that the agreement of 10 members was sufficient to convict defendant.
The essential facts are as follows:
Early in the evening of November 2, 1970, two armed men wearing ski masks held up the Portland business office of the Plaid Pantry grocery chain. Several office employes identified defendant, who had previously been an employe of the firm, as one of the two armed robbers.
The following evening, November 3, defendant, while driving along a Portland street, was arrested for failure to have a valid driver's license. Just prior to being placed in the patrol car, defendant passed a sizeable roll of currency to a woman companion who had been in the car with him. This woman was later identified as Susan Bliss, with whom defendant had been living. Miss Bliss was not detained.
After defendant had been transported to jail, the officers found a key to room 42 of the Jamaica Motel under the rear seat of the patrol car. The officers immediately turned over the key to detectives investigating the robbery. The detectives thereupon went to the motel, contacted the desk clerk and learned that the room was registered to "Erin O'Brien." However, both the residence address and car registration shown on the motel registration card were those of defendant. The clerk was also able to identify the picture of defendant shown her by the detectives as that of the individual who had previously registered as "Erin O'Brien." She also told them that a young woman was presently in the room. The detectives then proceeded to the room where they knocked and identified themselves as police officers, in response to inquiry by a female voice from within. At this point, the detectives heard considerable commotion and scurrying about within the room. Without waiting
further they let themselves into the room, using the key previously recovered from the rear seat of the patrol car.
Inside the room the detectives found only Miss Bliss, whom they thereupon arrested for violation of the "hotel ordinance."*fn2 They seized a bank coin bag, of the type reportedly used in the Plaid Pantry robbery, which was lying on top of an overnight case belonging to Miss Bliss. Miss Bliss was searched at the women's jail and $1,676 in currency was recovered from her person. Several of these bills were subsequently identified as being among those taken in the robbery.
On the following day, November 4, 1970, police officers obtained the consent of the management of the motel to conduct a search of room 42. This search was conducted just prior to the management's cleaning of room 42 preparatory to making the room available for rental. Defendant's belongings were packed and placed in a storage room.
The motel owner testified that defendant rented the room on October 28, paying only for that night. On October 31, defendant paid the rent due for the 29th through the 31st, and again on November 2 paid the rent due for the nights of the 1st and 2nd. This was the last payment made prior to the search on November 4. The motel owner testified that she would have removed defendant's belongings on November 3 or 4, since he had not paid the room rent, if another party had been available to rent the ...