☢ test - Í

Howard v. State, 267 Ga.App. 257, 599 S.E.2d 231 (May 5, 2004). Conviction for possession of cocaine with intent to distribute affirmed. Not ineffective assistance of counsel to elect not to file a motion to reveal the identity of the confidential informant, where defendant was not accused of selling him drugs; rather, the controlled buy was merely the basis for the search warrant, and defendant was charged with the drugs found as a result of the search. 21. CONFLICTS OF INTEREST Seminal case: Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) White v. State, 298 Ga. 416, 782 S.E.2d 280 (February 1, 2016). Murder and related convictions affirmed; no ineffective assistance based on trial counsel’s prior representation of co-conspirator on unrelated charges. 1. “ To prevail on a claim that a conflict of interest worked a denial of the effective assistance of counsel, a defendant like White—one who failed to object to the conflict at trial—must show that ‘an actual conflict of interest adversely affected his lawyer’s performance.’ Cuyler v. Sullivan, 446 U.S. 335, 348(IV)(B), 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (footnote omitted). See also Barrett v. State, 292 Ga. 160, 174(3)(C)(2), 733 S.E.2d 304 (2012). As we consider whether White has made such a showing, we do not, however, inquire ‘into actual conflict as something separate and apart from adverse effect.’ Mickens v. Taylor, 535 U.S. 162, 172, n. 5(II), 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Rather, as the United States Supreme Court has explained, an ‘actual conflict of interest’ means ‘a conflict that affected counsel’s performance —as opposed to a mere theoretical division of loyalties.’ Id. at 171(II) (emphasis in original). See also Tolbert v. State, 298 Ga. 147, 148- 150(2)(a), 780 S.E.2d 298 (November 23, 2015). White ‘first asserted a conflict of interest on the part of his trial lawyer in a motion for new trial, and on that motion, he had the burden of proving that his trial lawyer had an actual conflict of interest, that is, one that significantly and adversely affected the adequacy of the representation.’ Tolbert, 298 Ga. at 150(2)(a).” 2. “The lawyer did not represent (co-conspirator) Wideman at trial, nor did either party call Wideman as a witness. See Williams v. State, 242 Ga.App. 1, 2, 528 S.E.2d 521 (2000). Cf. Tolbert , 298 Ga. 147(2)(a)-(d); Hill v. State, 269 Ga. 23, 24–25(2), 494 S.E.2d 661 (1998). White argues that Wideman’s testimony would have been important but that the lawyer’s conflict of interest caused her not to call Wideman as a witness and cross-examine him vigorously. In her testimony on motion for new trial, however, White’s lawyer explained that she did not subpoena Wideman because his version of events would not be helpful to her client. See Abernathy v. State, 278 Ga.App. 574, 585(3)(a), 630 S.E.2d 421 (2006) (decision not to call an individual as a witness ‘was not based upon any perceived conflict of interest, but rather was due to [the lawyer’s] conclusion ... that [the individual] would not make a good witness’). Indeed, testimony of the investigator and a sergeant who previously interviewed Wideman indicated that he likely would have testified that White was involved in gang activity. And even at the hearing on the motion for new trial, White never called Wideman as a witness.” Tolbert v. State, 298 Ga. 147, 780 S.E.2d 298 (November 23, 2015). Murder and firearms convictions affirmed. No ineffective assistance based on conflict of interest arising from counsel’s joint representation of Tolbert and co-defendant Leroy. 1. Tolbert contends that counsel had conflict because Leroy paid the lawyer to represent both, and that the lawyer sometimes met with Leroy alone, but never met with Tolbert alone. We have recognized that, ‘in some circumstances[,] counsel’s fee arrangement may create a conflict of interest with the client and the conflict can affect the adequacy of counsel’s representation.’ Blackshear v. State, 274 Ga. 842, 844(2), 560 S.E.2d 688 (2002) (citations omitted). See also Wood v. Georgia, 450 U.S. 261, 268–269(III), 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981) (noting ‘the inherent dangers that arise when a criminal defendant is represented by a lawyer hired and paid by a third party, particularly when the third party is the operator of the alleged criminal enterprise’). If Leroy alone paid the lawyer, that certainly could have provided an incentive for the lawyer to prioritize the interests of Leroy over those of Tolbert. See [ State v. Mamedov, 288 Ga. 858, 861, 708 S.E.2d 879 (2011)].” And “we acknowledge that a lawyer meeting alone with one client, but not the other, in the context of a joint representation is worrisome. See id. at 859–860, 708 S.E.2d 279 (noting that, with one exception, lawyer never met with defendant outside the presence of the co-defendant or the family of the co-defendant).” But trial judge could, and apparently did discount both defendants’ testimony on those subjects, and trial counsel died before motion hearing. “Our obligation to view the evidentiary record in the light most favorable to the findings and judgment of the trial court requires us to assume that the trial court in this case rejected the credibility of Tolbert and Leroy to the extent that their testimony is inconsistent with its decision. [Cit.] And in any event, even if Leroy alone paid the lawyer, and even if the lawyer met alone with Leroy (but not with Tolbert), the question would remain whether the potential conflict of interest for the lawyer had a significant and adverse effect on the way in which he represented Tolbert.” Court finds none here. 2. No evidence supports Tolbert’s claim that the joint representation, and Leroy’s alleged payment for that representation, kept counsel from seeking a better plea offer for Tolbert that Leroy. Trial court again apparently discounted Tolbert’s testimony that, in fact, Leroy was offered a plea deal while Tolbert was not. “Moreover, there is no evidence at all about what plea discussions the lawyer did or did not undertake on