No. 14	                       March 10, 2016	749

              IN THE SUPREME COURT OF THE
                    STATE OF OREGON

                        STATE OF OREGON,
                            Respondent,
                                v.
                       ISACC CREED AGEE,
                             Appellant.
                     (CC 09C41224; SC S059530)

   On appellants petition for reconsideration filed January 4,
2016; considered and under advisement February 23, 2016.
  Kenneth A. Kreuscher, Portland Law Collective LLP,
Portland, filed the petition for reconsideration for appellant.
With him on the petition was Ryan T. O’Connor, O’Connor
Weber LLP, Portland.
    No appearance contra.
  Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Baldwin, and Brewer, Justices.*
    BALMER, C. J.
   The petition for reconsideration is allowed. The former
opinion is modified and adhered to as modified.
     Case Summary: Defendant petitioned for review of this court’s opinion in
State v. Agee, 358 Or 325, 364 P3d 971 (2015). Held: This court’s opinion is modi-
fied to clarify that, at a pretrial hearing to determine whether certain witnesses
would testify at defendant’s aggravated murder trial, defendant effectively
waived his first objection to the prosecutor’s extensive cross-examination of one
of the defense witnesses.
   The petition for reconsideration is allowed. The former opinion is modified
and adhered to as modified.




______________
	 *  Nakamoto, J., did not participate in the consideration or decision of this
case.
750	                                                 State v. Agee

	         BALMER, C. J.
	        Defendant has petitioned for reconsideration of our
decision in State v. Agee, 358 Or 325, 364 P3d 971 (2015). He
argues that this court erred in two respects in affirming his
judgment of conviction for aggravated murder. He contends,
first, that the court erred in holding that the trial court
did not err in allowing the prosecutor’s extensive cross-
examination of defense witness Davenport at a pretrial
hearing until after defendant interposed a second objection
to that cross-examination. Second, defendant seeks recon-
sideration of the court’s conclusion that any trial court error
in permitting the extensive cross-examination of Davenport
at that pretrial hearing was harmless. We allow defendant’s
petition for reconsideration, modify our opinion, and adhere
to the opinion as modified.
	        In support of his first argument, defendant quotes
the following paragraph from this court’s opinion:
    	 “It is true that Davenport initially resisted answer-
    ing questions about his relationship with a certain prison
    gang, but he did eventually answer all of the prosecutor’s
    questions on that topic, and he had appropriately answered
    questions about his relationship with defendant. At the
    point when defense counsel interposed his second objection
    to the prosecutor’s questions, Davenport also had answered
    several questions about the murder itself. At that point,
    requiring Davenport to answer questions from the prose-
    cutor that essentially revealed the entirety of Davenport’s
    substantive testimony about defendant’s participation in
    the murder exceeded the legitimate purpose of the hearing.
    The prosecutor’s continued questioning of Davenport con-
    stituted, in essence, a pretrial deposition—the sort of dis-
    covery that is not permitted under the statutes governing
    pretrial discovery in criminal matters and that is prohib-
    ited by the requirement in ORS 136.420 that all testimony
    ‘shall be given orally in the presence of the court and jury.’
    We conclude, therefore, that the trial court erred in overrul-
    ing defense counsel’s second and third objections to the pros-
    ecutor’s continued questioning of Davenport about the events
    surrounding the murder.”
358 Or at 335 (emphasis added). Defendant contends that he
had unsuccessfully objected a first time to the prosecutor’s
extensive questioning about Davenport’s gang involvement
Cite as 358 Or 749 (2016)	751

in prison, and he had objected a second and third time as
the prosecutor’s questions veered into a detailed exploration
of Davenport’s and defendant’s behavior and thoughts before
and during the murder. In the paragraph quoted above,
however, the court seemed to arbitrarily draw the line at
his second objection. He asserts that “it is legally unclear
why the pretrial examination of Davenport prior to [the]
second objection was lawfully within the discretion of the
trial court.” And, he argues, by drawing the line at the sec-
ond objection, the court permitted extensive examination of
Davenport that went well beyond the trial court’s need to
control courtroom proceedings or to discover whether poten-
tial witnesses intended to assert a privilege, which were the
bases for this court’s conclusion that later parts of the exam-
ination went too far.
	        We agree that it is unclear in the opinion why the
court marked the error at the trial court’s overruling of the
second and third objections, and we allow reconsideration
to clarify the court’s reasoning in that regard. As the court
explained in its description of the facts surrounding the
prosecutor’s cross-examination of Davenport, defendant’s
objections, and the trial court’s legal rulings, defendant first
objected, unsuccessfully, when the prosecutor began asking
questions about Davenport’s gang involvement, and objected
unsuccessfully for a second time when the prosecutor began
asking Davenport specific and detailed questions about his
and defendant’s actions on the day of the murder. Id. at
330-31. Defendant then raised a third objection,
   “noting that the purpose of the hearing was limited to an
   inquiry about whether the inmate witnesses would be invok-
   ing their Fifth Amendment right not to testify. Defendant
   conceded that the prosecutor had had reason to ensure that
   Davenport would testify about his gang involvement and
   who ordered the murder, but he argued that this was not
   an opportunity for a pretrial deposition about the murder;
   Davenport had no arguable Fifth Amendment right not to
   testify about the murder itself and, therefore, the prosecu-
   tor should not be allowed effectively to depose him on that
   topic at that hearing. The prosecutor responded that ‘[t]his
   is not about him taking the Fifth.’ Rather, the prosecutor
   argued, the issue was whether Davenport would answer
   the state’s questions. The prosecutor argued that he should
752	                                                State v. Agee

   be permitted to determine whether Davenport would ‘talk
   through the incident in its entirety,’ and, if not, then his
   testimony should not be allowed. The trial court overruled
   defendant’s objection and directed the prosecutor to con-
   tinue, which he did, in the same vein as earlier, questioning
   Davenport in detail about his and defendant’s roles in the
   murder, his and defendant’s statements during the murder,
   and what information defendant would have known prior
   to the murder.”
Id. at 332 (emphasis added). As the italicized wording states,
defendant “conceded that the prosecutor had had reason to
ensure that Davenport would testify about his gang involve-
ment and who ordered the murder.” Defendant, thus, effec-
tively conceded that the trial court was correct to overrule
his first objection to the prosecutor’s examination. With that
concession, defendant waived the first objection.
	        To make the point clear, we therefore amend the
opinion by adding the following clarifying sentence (in bold-
face below) to the original opinion, at 358 Or at 335:
   	 “It is true that Davenport initially resisted answer-
   ing questions about his relationship with a certain prison
   gang, but he did eventually answer all of the prosecutor’s
   questions on that topic, and he had appropriately answered
   questions about his relationship with defendant. Later at
   the hearing, defendant conceded that that question-
   ing was proper, and, by that concession, defendant
   effectively waived his first objection to the exam-
   ination of Davenport as to those matters. At the point
   when defense counsel interposed his second objection to
   the prosecutor’s questions, Davenport also had answered
   several questions about the murder itself. At that point,
   requiring Davenport to answer questions from the prose-
   cutor that essentially revealed the entirety of Davenport’s
   substantive testimony about defendant’s participation in
   the murder exceeded the legitimate purpose of the hearing.
   The prosecutor’s continued questioning of Davenport con-
   stituted, in essence, a pretrial deposition—the sort of dis-
   covery that is not permitted under the statutes governing
   pretrial discovery in criminal matters and that is prohib-
   ited by the requirement in ORS 136.420 that all testimony
   ‘shall be given orally in the presence of the court and jury.’
   We conclude, therefore, that the trial court erred in over-
   ruling defense counsel’s second and third objections to the
Cite as 358 Or 749 (2016)	753

   prosecutor’s continued questioning of Davenport about the
   events surrounding the murder.”
	        Defendant also seeks reconsideration of this court’s
conclusion that any trial court error in permitting exten-
sive cross-examination of Davenport at the pretrial hear-
ing was harmless. We have reviewed defendant’s arguments
on this point and do not find them persuasive. We therefore
deny reconsideration of the court’s conclusion that any trial
court error in permitting extensive cross-examination of
Davenport at the pretrial hearing was harmless.
	       The petition for reconsideration is allowed. The for-
mer opinion is modified and adhered to as modified.
