The constitutional right to counsel includes the right to conflict free representation. See generally Dean v. State, 247 Ga. 724, 725 ( 279 S.E.2d 217) (1981); Chapel v. State, 264 Ga. 267, 269-270 ( 443 S.E.2d 271) (1994).Wood v. Georgia, 450 U.S. 261, 271 ( 101 SC 1097, 67 LE2d 220) (1981); Turner v. State, 273 Ga. 340 ( 541 S.E.2d 641) (2001).
To be constitutionally valid, however, the waiver must be knowing, intelligent, and voluntary. There is no record in this case of the trial court questioning Woods about his written, pro forma waiver to ensure that it was knowing, intelligent, and voluntary. Nor did trial counsel ever discuss the dangers or conflicts that might arise from joint representation. Dean v. State, 247 Ga. 724 (1981); compare Fleming v. State, 246 Ga. 90, 91 ( 270 S.E.2d 185) (1980) (in death penalty cases, defendants cannot waive right to conflict-free counsel and separate counsel must be appointed).Fleming, 246 Ga. at 91.
The appellants' second enumeration of error contends that, by having been required improperly to proceed with joint representation at trial, over timely objection, they were deprived of their constitutional right to effective assistance of counsel. They argue that whenever a trial court improperly requires joint representation over timely defense objection, reversal is automatic, citing Holloway v. Arkansas, 435 U.S. 475, 478 ( 98 S.C. 1173, 55 L.Ed.2d 426) (1978); Dean v. State, 247 Ga. 724 ( 279 S.E.2d 217) (1981); Brown v. State, 247 Ga. 298 (2) ( 275 S.E.2d 52) (1981). They urge that, because of divided loyalties, counsel failed to cross-examine as to questionable testimony that implicated one or the other appellant.
Secondly, "[t]he trial court followed proper established procedure when the jury was ordered to resume deliberations after determining the verdict was not unanimous. [Cits.]" Rosser v. State, 156 Ga. App. 463, 464(2) ( 274 S.E.2d 812) (1980), aff'd on separate grounds, Dean v. State, 247 Ga. 724 ( 279 S.E.2d 217) (1981). See also Lockleer v. State, 188 Ga. App. 271, 272(1) ( 372 S.E.2d 663) (1988).
Here, the trial court questioned the defendants about the joint representation as follows: See Dean v. State, 247 Ga. 724, 725, n. 1 ( 279 S.E.2d 217) (1981) ("In an effort to reduce case-by-case review, in cases where co-indictees or co-conspirators are represented by the same attorney or firm, trial judges should point out to the defendants that joint representation may create a conflict of interest and determine whether all such defendants agree to joint representation"). The Court: [D]o you recall [your attorney] talking to you about the possibilities of conflicts involved with him representing the both of you?
At the hearing, the State suggested that the court follow the Georgia Supreme Court's direction that "where co-indictees or co-conspirators are represented by the same attorney or firm, trial judges should point out to the defendants that joint representation may create a conflict of interest and determine whether all such defendants agree to joint representation." Dean v. State, 247 Ga. 724, 725 n. 1 ( 279 S.E.2d 217) (1981) (emphasis deleted). Butterworth then produced a document styled "Agreement" signed by himself, Wiley, and Rice four days before Wiley's trial. It recited that the parties had discussed the possibility of a conflict of interest, that they "voluntarily, knowingly and intentionally agree" that no conflict existed, that they knew of none that would develop, and that if any did develop, "all parties do hereby waive, forgive and dismiss any complaint of any nature against any person(s) (their agents or assigns) now a party to this Agreement."
Miller v. State, 160 Ga. App. 639 ( 287 S.E.2d 643) (1981). Separate counsel is not required for each co-defendant in a case where the death penalty is not sought by the State. Dean v. State, 247 Ga. 724 ( 279 S.E.2d 217) (1981). It is permissible for the same attorney to represent co-indictees who tender guilty pleas.
In this regard, defendants point out that they were represented by the same attorney; that the trial court did not advise them that joint representation may create a conflict of interest; and that the trial court did not determine whether they agreed to joint representation. See in this connection Dean v. State, 247 Ga. 724, 725, fn. 1 ( 279 S.E.2d 217); Shirley v. State, 166 Ga. App. 456, 457 (2a) ( 304 S.E.2d 468). This enumeration of error must fail. "It is fundamental principle that the Sixth Amendment guarantee of effective assistance of counsel includes the right of an accused to be represented by an attorney free of any conflicts of interest.
In any event, it is the duty of the court and the prosecutor to ensure that the defendant receives a fair trial. Dean v. State, 247 Ga. 724 ( 279 S.E.2d 217) (1981). Under the peculiar facts of the instant case, we cannot say that the publication of a faulty verdict in open court, including the numbers of those voting "guilty" and "not guilty," could not have had a prejudicial effect upon the jurors' subsequent deliberations, thereby impinging upon appellant's Sixth Amendment right to trial by a fair and impartial jury.
Barnes v. State, 160 Ga. App. 232 ( 286 S.E.2d 519). See also Dean v. State, 247 Ga. 724 ( 279 S.E.2d 217). 3. Appellant was not entitled to a mistrial on the claimed basis of improper argument by the state's attorney concerning a conspiracy and the independent crime, and improper statement by a witness concerning "appeals."