☢ test - Í

behalf of Tolbert … Likewise, there is no evidence that the prosecuting attorney would have been inclined to offer a favorable plea bargain to Tolbert, even if the lawyer had proposed that Tolbert would be willing to testify against Leroy.” In fact, at motion hearing, Tolbert’s testimony was favorable to Leroy. “In addition, Tolbert has failed to show that the evidence would not support separate arguments for Tolbert and Leroy in plea negotiations, such that the lawyer could have negotiated pleas for Tolbert and Leroy alike without prejudicing either and without forcing the lawyer to choose one client over another.” 3. Contrary to defendant’s argument, “[i]t is not clear … that any attempt to distinguish between the culpability of Tolbert and Leroy would have been helpful to Tolbert. In the light of that uncertainty, even if Tolbert and Leroy had been represented by separate counsel at trial, there would have been strategic reasons for those separate counsel not to advance arguments about differences in culpability between the two co-defendants. Accordingly, in the absence of any other evidence about what led the trial lawyer to choose another course, we cannot conclude that his failure to argue that Tolbert was less culpable than Leroy is indicative of an actual conflict of interest.” Unlike Leroy, Tolbert here accompanied the shooter, and also carried a gun. Leroy, Tolbert and the shooter all left together. Counsel instead advanced a common defense that neither Leroy nor Tolbert was a party to the shooting, and “we cannot say that an argument that Tolbert was less culpable than Leroy would have been significantly stronger than the common defense that the lawyer actually advanced at trial.” “As the United States Supreme Court has recognized, ‘[i]n many cases[,] a common defense gives strength against a common attack.’ Burger [ v. Kemp, 483 U.S. 776, 784(III), 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)]. See also Holloway v. Arkansas, 435 U.S. 475, 482(II), 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (‘[I]ndeed, in some cases, certain advantages might accrue from joint representation.... Joint representation is a means of insuring against reciprocal recrimination.’) (punctuation omitted). The defenses of Tolbert and Leroy were perfectly compatible, as they both were based on the theory that [shooter] Dewey had acted in self- defense and that, even if the evidence of self-defense failed, Tolbert and Leroy were not parties to the crime of murder.” 4. Notes that trial court failed to obtain a waiver of conflict from defendant prior to trial. “The trial court … asked Tolbert and Leroy if they were satisfied with their lawyer, the lawyer told them to ‘[s]tand up and say “yes, sir,”’ and they did so. Although the court cautioned the lawyer not to put words in the mouths of his clients, no further questions were asked, and Tolbert said nothing more about any conflict. ‘In order to waive a right as fundamental as effective counsel, the trial court must, on the record, determine that the waiver is knowing, intelligent and voluntary. To meet this test, the trial court must be satisfied that the defendant is aware of the possibility of conflicts and the dangerous consequences which may result. [Federal appellate courts] point out the importance of personal questioning, on the record, by the trial court.’ Redd v. State, 264 Ga. 399, 401, 444 S.E.2d 776 (1994) (citations and punctuation omitted). See also Golden v. State, 250 Ga.App. 288, 289(2), 551 S.E.2d 398 (2001). In this case, Tolbert was asked a single question that was not specifically and expressly directed to potential conflicts of interest, and he merely answered that he was satisfied with his lawyer after being told to do so. His response to this inquiry does not demonstrate that he understood the possible conflict in his representation by the same lawyer who represented Leroy, as well as the potential perils of such conflict.” Thomas v. State, 298 Ga. 106, 779 S.E.2d 616 (November 16, 2015). Malice murder and related convictions affirmed. No ineffective assistance where counsel moved to withdraw, but failed to obtain a ruling on the motion. Thomas and co- defendant Lee were represented by attorneys in same public defender’s office. Counsel moved to withdraw based on a potential conflict of interest, believing that the State would call Lee to testify against Thomas; however, Lee then pled guilty, the State chose not to use Lee as a witness, and Thomas then called Lee as a defense witness. “Under these circumstances, had trial counsel pursued a ruling on her motion to withdraw at trial, the court would have been entitled to deny the motion for failure to establish that an impermissible conflict of interest existed at that time.” Miller v. State, 295 Ga. 769, 764 S.E.2d 135 (October 6, 2014). Convictions for murder and concealment of death affirmed. Counsel wasn’t ineffective for failing to withdraw when defendant took the stand to give perjured testimony. Counsel instead stood aside and allowed defendant to testify in narrative form. “Because counsel is precluded from assisting the client in presenting false evidence, ineffective assistance of counsel is not shown by trial counsel's taking steps to avoid violating this ethical duty. See Nix v. Whiteside, 475 U.S. 157, 168–171(II)(C) (106 S.Ct. 988, 89 L.Ed.2d 123) (1986). Although other options for avoiding violating this duty exist, courts that have examined the issue have overwhelmingly endorsed the option of permitting a criminal defendant to testify in the narrative, after counsel has attempted to dissuade the defendant from perjury. See Foster v. Smith, 2014 WL 1230551 *14 (W.D.Mich.) (March 25, 2014) and cases cited therein. ‘The only clearly established Supreme Court law in this area is established by Nix: defense counsel does not act ineffectively for refusing to present known or suspected perjury by the client. Beyond that, the Court has not prescribed clear guidelines.’ [ Foster ] at *15.” Substitution of new counsel in this situation is not a viable option because “such an approach would likely have begun an endless cycle of continuances and motions to withdraw by newly appointed counsel, or else may have encouraged appellant to keep his intent to commit perjury to himself, thus facilitating false testimony at trial. See People v. Johnson, 62 Cal.App. 4th 608, 623(3) (72