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required to withdraw so as to become a witness; testimony he might give about offer of settlement made by victim’s family was “pure conjecture.”). Burns v. State, 274 Ga.App. 687, 618 S.E.2d 600 (June 24, 2005). By 5-2 majority, co-defendants’ convictions for burglary upheld even though both defendants were represented by separate lawyers within the same public defender’s office; their defenses were antagonistic; and one of the lawyers moved to withdraw prior to trial, citing actual conflict of interest. Majority draws distinction between representation by single lawyer and representation by separate lawyers in same government office, analogizing to cases involving prosecutors. “We hold that, in the absence of any authority providing that reversal based on a conflict of interest is automatic in a case such as this (where two attorneys from the same public defender’s office separately represent co-defendants in non-capital cases), Burns is required to show what [a defendant] is normally required to show when alleging that his counsel was ineffective due to a conflict of interest: he must prove that his counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. [Cit.] By actual conflict, the law means more than the bare possibility that a conflict may have developed. [Cit.] The conflict must be palpable and have a substantial basis in fact. [Cit.] The representation must have deprived either defendant of the undivided loyalty of counsel, i.e., counsel slighted one defendant to favor the other. [Cit.] The premise of a defendant’s claim that he was denied conflict-free assistance because of joint representation must be that his lawyer would have done something differently if there was no conflict. [Cit.] In this case, no conflict of interest actually developed. Burns has not shown that his attorney slighted him in favor of Griffin, that his lawyer was compelled to refrain from doing something because of competing interests, or that his attorney otherwise would have done anything differently had the public defender’s office not also been representing Griffin. [Cit.] Nor has he shown that any alleged conflict adversely affected his attorney’s performance, such as where counsel is prevented from conducting a thorough and sifting cross-examination of a witness, [cit.] where counsel concentrated his efforts on representing the co- defendant, where counsel failed to pursue an alternative defense theory more favorable to one defendant which would have prejudiced a co-defendant, or where counsel pursued a more favorable plea bargain on behalf of one co-defendant in exchange for his testimony against the other defendant. [Cit.]” Barnes, Blackburn dissent. Affirmed, November 30, 2006, see above. Miller v. State, 271 Ga.App. 524, 610 S.E.2d 156 (February 7, 2005). “‘Where defendants state on the record that they have discussed the case with counsel, that there is no conflict of interest and that they are satisfied to proceed with one counsel, any error was induced by the defendants’ statements, and induced error is impermissible. A party can not during the trial ignore what he thinks to be an injustice, take [a] chance on a favorable verdict, and complain later.’ (Citations and punctuation omitted.) Brumelow v. State, 239 Ga.App. 119, 123(6) (520 S.E.2d 776) (1999).” Banks v. State, 270 Ga.App. 221, 606 S.E.2d 34 (October 5, 2004). “Prior to trial, Banks’s public defender discovered that another attorney in the Douglas County public defender’s office had represented the confidential informant who would be testifying against Banks at trial. In light of this information, and in light of Banks having also expressed his desire to fire him, Banks’s attorney filed a motion to withdraw as counsel. Banks’s counsel was concerned that cross- examining the confidential informant regarding a plea agreement she took while she was represented by the defender’s office would create the appearance of impropriety at Banks’s trial. Following a hearing, the trial court denied the motion.” Held, trial court properly denied the motion to withdraw: “At the time of the trial, the public defender’s office was no longer representing the confidential informant. Moreover, even if the office had still been representing her, ‘[t]he reason a conflict of interests exists in a situation in which defense counsel is simultaneously representing a witness, even though the witness is not a co-defendant at trial, is that defense counsel might not be vigorous enough in his cross examination of such a witness.’ Lemley v. State, 245 Ga. 350, 352 (264 S.E.2d 881) (1980). Here, there was no evidence that counsel would be less vigorous in his cross examination. Counsel’s fear was not that he would not be able to vigorously cross-examine the witness at trial, but that vigorous cross-examination through use of the witness’ prior plea would create the appearance of impropriety. Indeed, the evidence reveals that trial counsel did in fact vigorously cross- examine the confidential informant by using the informant’s prior plea against her for impeachment purposes. In this case, Banks could not have and did not in fact suffer harm as a result of the trial court’s refusal to appoint new counsel. The trial court therefore did not err in refusing to appoint new counsel. Cf. id. ” Accord, Wheeler v. State , 290 Ga. 817, 725 S.E.2d 580 (March 23, 2012) (counsel’s prior representation of alternative suspect didn’t create conflict of interest, as counsel asserted his possible involvement at trial). Caudell v. State, 262 Ga.App. 44, 584 S.E.2d 649 (June 27, 2003). “The evidence at the motion to withdraw guilty plea hearing established that Caudell paid his attorney $10,000 to hire a forensic expert. The attorney told Caudell that he would reimburse him if the money was not used for experts. The attorney also said that he needed the money because he
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