Defendant recognizes that his request was directed to the exercise of the trial court's discretion and that he must, therefore, demonstrate an abuse of discretion in this case. See McElwain v. Kabatoff, 275 Or. 393, 395, 551 P.2d 105 (1976) (court has inherent power to protect public interest in finality of adjudicative process by preventing post-trial interview of jurors); Niemela v. Collings, 267 Or. 369, 372, 517 P.2d 268 (1973) (expressing strong "antagonism" to "indiscriminate practice of interrogating jurors after the verdict"; citing with approval rule designed to limit such activity significantly). The present record falls short of demonstrating an abuse of discretion.
See also DR 7-108(D), (E), (F) and (G) of the Code of Professional Responsibility; Opinion No. 142, Oregon State Bar Legal Ethics Opinions, PROFESSIONAL RESPONSIBILITY MANUAL (1981). In Niemela v. Collings, 267 Or. 369, 517 P.2d 268 (1973), the court held that a juror's affidavit taken in violation of local court rule will not be considered in ruling upon a motion for a new trial."
She first argues that the trial court had no authority to prevent her from so inquiring. The trial court has inherent authority to protect the public's interest in the finality of the adjudicative process and, pursuant to this authority, it has the power to enter an order such as the court entered here. See Weber v. Kamyr, Inc., 269 Or. 617, 624, 525 P.2d 1307 (1974); Niemela v. Collings, 267 Or. 369, 371-72, 517 P.2d 268 (1973). Defendant next argues that if the court had such authority it abused it in this instance.
One cannot suppress those facts, in hope of a favorable verdict, and then rely upon the same facts after an adverse verdict has been returned. Cheyne v. Deike, 270 Or. 58, 526 P.2d 557 (1974); Wulff v. Sprouse-Reitz Co., Inc., 262 Or. 293, 315-16, 498 P.2d 766 (1972); Raymond v. Southern Pacific Co., 259 Or. 629, 637-38, 488 P.2d 460 (1971); Transamerica Title Ins. v. Millar, 258 Or. 258, 262-64, 482 P.2d 163 (1971); Cf. Niemela v. Collings, 267 Or. 369, 517 P.2d 268 (1973). In appeals from the denial of a motion for a new trial, we generally defer to the discretion of the trial court.
We conclude that it did. The Supreme Court has emphasized the sanctity of the jury verdict and the strong "antagonism" to inquiring beyond it. Niemela v. Collings, 267 Or. 369, 372, 517 P.2d 268 (1973); see Koennecke v. State of Oregon, 122 Or. App. 100, 103, 857 P.2d 148 (1993). However, when as here, the judge's own credibility is at issue with regard to whether there was a communication, we hold that it is an abuse of discretion for the judge to refuse to allow an inquiry of jurors for the limited purpose of taking evidence as to whether there was such a communication between the judge and the jury.
We reject Allen's assertion that Sean's counsel acted improperly, because it appears that counsel did not solicit the post-trial juror contact and did bring the alleged irregularity promptly to the court's attention. See D.C. Thompson and Co. v. Hauge, 300 Or. 651, 717 P.2d 1169 (1986); Niemela v. Collings, 267 Or. 369, 516 P.2d 268 (1973). In the light of our disposition of the case, we need not decide whether the court erred in declining to bring the jurors back for questioning in person; we assume in our analysis that the statements in the affidavits are true.