dissenting. I believe an actual conflict of interest existed that adversely affected the performance of John Gillard’s lawyer. Consequently, Gillard was denied his constitutional right to effective assistance of counsel and his conviction should be reversed. Therefore, I respectfully dissent.
The trial court’s initial failure to conduct a hearing on the issue of conflict of interest does not mandate reversal. John Gillard’s attorney, Louis Martinez, never directly raised the issue of conflict of interest on behalf of John before the trial court. Instead, the state raised the issue when William was called to testify on his brother’s behalf and the state requested the court to advise William of his Fifth Amendment right to remain silent. This was not the equivalent of an objection on behalf of John. Although the trial court appointed other counsel for the limited purpose of advising William of his rights, Martinez represented William at least until he testified at John’s trial. State v. Gillard (1992), 64 Ohio St.3d 304, 307, 595 N.E.2d 878, 879-880.
A court is not required to sua sponte raise the issue of conflict of interest. A better practice would have been for the trial court to stop the proceedings and to inquire into the potential of a conflict of interest. The fact that Martinez was later unable to testify for medical reasons at the remand hearing further underscores the importance of the timeliness of an inquiry. However, if a conflict *559is not raised, or inquired into, in such a hearing, a judgment will be reversed only if an appellant shows that an actual conflict adversely affected counsel’s representation of the appellant. State v. Manross (1988), 40 Ohio St.3d 180, 532 N.E.2d 735; Hamilton v. Ford (C.A.11, 1992), 969 F.2d 1006, 1011.
I believe that the evidence clearly shows that an actual conflict of interest existed because Martinez represented both John Gillard and his brother, William, who was implicated in these crimes. Although John and William were not defendants in the same case, William had been originally charged with these murders and the attempted murder. William, represented by Martinez, later pleaded no contest to discharging a firearm within city limits. An ongoing investigation into these crimes continued during John’s trial and William remained the subject of the investigation. Some two and one-half years later, William agreed in a plea agreement to testify against his brother in a retrial in exchange for a recommendation of early release following a guilty plea and sentencing for the aggravated burglary of the Hendricks home.
Because Martinez represented both brothers, the choices he made before and during John’s trial lead to the inescapable conclusion that Martinez was hampered by divided loyalties that adversely affected his performance. The evidence clearly shows that Martinez’s joint representation of John and William influenced his selection of witnesses, his overall defense strategy, and his ability to zealously represent the interests of John. The United States Supreme Court has held that once a conflict of interest that has adversely affected the lawyer’s performance is identified, prejudice to the defendant is presumed. Cuyler v. Sullivan (1980), 446 U.S. 335, 349, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347.
There is abundant testimony in the record that clearly incriminated William Gillard. Professor Kirkwood testified at the remand hearing that the following pieces of circumstantial evidence connected William to these crimes:
• William was at the house the night the murders occurred and had been in a fight with one of the victims.
• William was carrying brass knuckles.
• William was forcibly removed from the house.
• William later returned to the house and fired a gun outside shortly before the murders occurred.
• William fled the scene and was arrested four hours after the shootings.
• William gave the police a false name when he was arrested.
• Blood consistent with that of victim Denise Maxwell was found on William’s shirt, and blood from victim Leroy Ensign was found on William’s jacket.
• A bullet that matched the type of bullets from the murder weapon was found on William.
*560Martinez’s trial strategy was to establish an alibi defense for John. However, based upon the compelling evidence presented at trial, there existed a plausible defense that implicated William as a substitute or alternate defendant. Instead of bolstering John’s alibi with an alternate defendant defense, Martinez decided to rely solely on the alibi defense. Martinez did not and could not consider this alternative defendant theory or even a combination of the alibi/alternative defendant theory because he represented William as well as John. Where the attorney’s choice of strategy would have been different had there been separate representation, the attorney renders ineffective assistance of counsel. Griffin v. McVicar (C.A.7, 1996), 84 F.3d 880, 887.
Further evidence of an actual conflict of interest is demonstrated by Martinez’s direct examination of William, who testified on behalf of his brother. A conflict of interest may arise when counsel representing two defendants must decide whether either or both of the defendants should testify. “This kind of decision, difficult enough where two defendants at the same trial are represented by different counsel, is made doubly difficult where they are represented by the same counsel.” Morgan v. United States (C.A.2, 1968), 396 F.2d 110, 114. This decision “may be unduly affected by the risk that [one defendant’s] testimony may develop so as to disclose matters which are harmful to the other defendant or which conflict with the other defendant’s story. The attorney’s freedom to cross-examine one defendant on behalf of another will be restricted where the attorney represents both defendants.” Id.
Here, although William was not a defendant in this case, his actions were so intertwined in the facts of the case that Martinez was tactically unable to fully examine William to extract testimony helpful to John because it would also tend to incriminate William. The majority finds that this choice of strategy was not prejudicial because the dangers of pursuing the alternative defendant theory could have had an adverse impact on John. However, the court in United States v. Carrigan (C.A.2, 1976), 543 F.2d 1053, 1057, stated:
“We cannot accept the proposition that the more potent the Government’s case, the less compelling the criminal defendant’s constitutional right to independent counsel. * * * Trial counsel could not possibly have given his full measure of professional devotion to clients presenting inconsistent defenses. Each was entitled to zealous and independent counsel. While here counsel obviously slighted White [one client] and favored Carrigan [his other client], he could not fully exploit Carrigan’s willingness to testify without further damaging White’s credibility. We see no need to speculate as to how independent counsel could have more competently handled the defense of either defendant. The record discloses the sharp conflict in their positions which, in the nature of things, prejudiced each even if one was apparently less disadvantaged than the other.”
*561Here, Martinez clearly did not vigorously pursue an allegation that William was the participant in the murders and that John had an alibi, because this would prejudice his own client, William.
The majority reasons that if William had taken the fall, so would John by association. This “united we stand, divided we fall” approach was rejected in Foxworth v. Wainwright (C.A.5, 1975), 516 F.2d 1072, because, the court concluded, the conflict occurs not in presenting the defense chosen by counsel but in selecting defenses and strategies in the first place. The Foxworth court stated:
“Under these circumstances, counsel’s choice of the ‘united we stand, divided we fall’ defense was not a free choice of strategy. It was the only course open to an attorney with the unenviable task of saving three boys from the electric chair. ‘It must be remembered that in cases involving conflicts of interest, the conflict does not always appear full-blown upon the record, since counsel may throughout endeavor to reconcile the conflict.’” (Emphasis added.) Id., 516 F.2d at 1079-1080. The Foxworth court reasoned that had counsel represented one defendant only, counsel could have more fully cross-examined prosecution witnesses on their testimony to inculpate the co-defendant, but that was not an avenue open because of counsel’s joint representation. Id. at 1080.
As was the case in Foxworth, I believe Martinez was so hindered by the joint representation that he also failed to effectively cross-examine other witnesses. Ron Postlethwaite, one of the victims, testified that he had heard gunshots in the backyard and saw William shoot a gun into the air. Postlethwaite then went back to sleep. Postlethwaite also testified that there was a third party present that evening, Timothy Foehrenbach. Martinez did not pursue inconsistencies in Postlethwaite’s testimony regarding mistaken identity, his demeanor when police and emergency personnel arrived, and his failure to identify John to the paramedics who treated him at the scene. Paramedics noted that Postlethwaite was oriented, yet a police officer on the scene described him as “raving.” A thorough cross-examination of Postlethwaite and other prosecution witnesses to emphasize William’s presence at the scene would have strengthened John’s alibi defense and could have established sufficient reasonable doubt in the jury’s mind as to the guilt of John. However, because of the joint representation, Martinez did not, and could not, pursue questioning that would have implicated William which, at the same time, would have exonerated John.
The case of Griffin v. McVicar (C.A. 7, 1996), 84 F.3d 880, is particularly on point. In Griffin, defense counsel represented two defendants, Griffin and Smith, who were both charged with the murder of three individuals and an attempt to murder a fourth. Counsel presented a joint alibi defense. His main strategy was to discredit the eyewitness identifications of both defendants.
*562While eyewitness testimony consistently implicated Griffin’s co-defendant, there were significant contradictions in the testimony implicating Griffin. Id. at 889. Griffin asserted that he was denied effective assistance of counsel. Griffin claimed that his attorney failed to present the alternative defense that Griffin was merely a nonparticipating bystander, that his attorney was unable to emphasize testimony that would exonerate Griffin at the expense of Smith, and that his attorney failed to pursue lines of inquiry to aid Griffin at the expense of his co-defendant. Griffin claimed that, instead, his attorney’s defense strategy was highly prejudicial to Griffin.
As to ineffective assistance of Griffin’s counsel, the Seventh Circuit cited conclusions reached by the state court of appeals in the same case:
“ ‘As it was, [the attorney] only pointed to the inconsistencies and ambiguities as matters going to the credibility of the State’s witnesses. Counsel could not give Griffin the best possible defense under the circumstances because to do so would have been disloyal to Smith, his original client. Because of this conflict of loyalties, he remained silent when independent counsel would have spoken out on Griffin’s behalf.’ ” Id. at 885, quoting People v. Griffin (1984), 124 Ill.App.3d 169, 181, 79 Ill.Dec. 509, 518, 463 N.E.2d 1063, 1072.
The Seventh Circuit affirmed the grant of Griffin’s petition for writ of habeas corpus. The court found that a conflict of interest existed on the basis that Griffin’s counsel had failed to discuss with him the likely untruth of his alibi and the near certainty it would not be believed by a jury. This, coupled with the failure to assert an alternate defense that could rest on the weaknesses and contradictions in the testimony that implicated him in this shooting, left Griffin with the task of refuting the evidence against both defendants as well as to establish an alibi on behalf of both of them. The Griffin court reasoned:
“In the face of the uncontradicted evidence placing Smith at the scene during the shootings, Griffin’s testifying to an alibi which involved Smith could do nothing but damage his own case. While a defense based on simply raising doubts about the credibility of the testimony implicating Griffin in the shootings might well have been unsuccessful, the joint alibi defense was nearly as weak as no defense at all. There was only the slimmest chance, if any, that a jury would believe the alibi in the face of the consistent eyewitness testimony placing Griffin and Smith at the scene of the murders. On the other hand, an attorney representing only Griffin could have impeached the identifications of Griffin as a shooter by exploiting obvious inconsistencies in testimony. The joint representation prevented [Griffin’s counsel] from exploiting the disparity in strength of the respective prosecution cases again Griffin and Smith.
“ * * * It is often the unenviable job of defense counsel to choose among unpromising defenses. However, when an actual conflict of interest due to joint *563representation constrains an attorney to choose the hopeless in favor of the unpromising, the defendant has received ineffective assistance of counsel.” Id. at 890.
Finally, the Seventh Circuit found that the record disclosed no waiver of the conflict on Griffin’s part or any evidence that the attorney discussed the potential of conflict of interest or the alternative defendant theories with his client. Nor was there any evidence presented at the remand hearing that Martinez had discussed the conflict of interest that existed because of his representation of both John and William so that John could make an informed choice about waiver and the selection of other defense theories.
Although William was not a co-defendant in the same trial as John, he was charged with the same crimes. The reasons for the existence of the conflict of interest are identical to those in the cases cited. The record in this case is replete with evidence implicating William,in these crimes, from blood on his jacket, a matching bullet found on his body, and his flight from the scene, to his fight with one of the victims on the night of the murders. Initially, an arrest warrant was issued only for William. William’s plea of no contest to the unlawful discharge of a firearm placed him by his own admission at the scene of these crimes. William’s later plea included an agreement to testify against his brother if retrial occurred. Clearly, there was sufficient evidence upon which Martinez should have established an alternate defendant theory. Martinez could have used this evidence to attack the strength of the identification of John at the scene of the crime. However, Martinez did not present this evidence as part of a defense strategy, nor did he argue it to the jury in support of reasonable doubt for John’s involvement. Because of Martinez’s joint representation, he was constrained to rely solely on the alibi defense and was not free to pursue this plausible alternate defendant theory as part of his defense strategy.
Although this case has a long and tortuous history, one still cannot overlook the actual conflict that clearly affected Martinez’s ability to zealously represent John. Martinez was left with no choice but to choose the weaker line of defense. For these reasons, I believe reversal is mandated and, therefore, I. respectfully dissent.
Moyer, C.J., concurs in the foregoing dissenting opinion.APPENDIX
“Proposition of Law No. I[:] A decision by a court of common pleas after the remand by an appellate court is reviewable by the court of appeals.
“Proposition of Law No. II[:] The failure of a trial court to hold a hearing into the conflict of interest mandates reversal of the convictions and sentences.
*564“Proposition of Law No. III[:] Joint representation of a defendant and a potential defendant constituted an actual conflict of interest mandating reversal of the conviction and sentence.
“Proposition of Law No. IV[:] When a defense attorney labors under an actual conflict of interest the error is a fundamental and structural error which is not susceptible [of] harmless error review.
“Proposition of Law No. V[:] When a hearing court fails to review the entire record on the trial, the factual conclusions of the trial court are unreliable and not binding on the reviewing court.
“Proposition of Law No. VI[:] A capital defendant’s convictions and sentences are unreliable and inappropriate when he is denied the effective assistance of counsel, in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.
“Proposition of Law No. VII[:] Appellant Gillard was denied the effective assistance of appellate counsel in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. VIII[:] When counsel fails to investigate and present mitigating evidence and labors under a conflict of interest, the defendant is denied effective assistance of counsel in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of the Ohio Constitution.
“Proposition of Law No. IX[:] The prosecutor’s misconduct in the trial phase of John Gillard’s capital case denied Mr. Gillard his due process right to a fair trial.
“Proposition of Law No. X[:] When the appearance of judicial bias and impropriety [is] present a defendant is denied a fair trial, in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9, and 16 of the Ohio Constitution and Canon 3 of the Code of Judicial Conduct.
“Proposition of Law No. XI[:] The trial court procedures at all stages of appellant Gillard’s trial violated his rights of due process and to a reliable determination of the appropriateness of the death sentence in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9,10 and 16, Article I, of the Ohio Constitution.
“Proposition of Law No. XII[:] When a trial court releases grand jury transcripts to the state to aid in preparation of an appeal, the court must release *565the transcripts to the defense and make the transcripts a part of the record on appeal.
“Proposition of Law No. XIII[:] The evidence in appellant Gillard’s case was not sufficient to support his convictions under the Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XIV[:] Appellant Gillard’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9,10, and 16[,] Article I of the Ohio Constitution were violated when the trial court reimposed the death penalty at the resentencing hearing.
“Proposition of Law No. XV[:] The death sentence is inappropriate and unreliable when voir dire errors deny a capital defendant his right to a fair trial and a fair jury, in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 5, 9,10, and 16 of the Ohio Constitution.
“Proposition of Law No. XVI[:] The death sentence imposed on appellant Gillard is unreliable, inappropriate and violates the Eighth and Fourteenth Amendments to the United States Constitution, Section[s] 9 and 16, Article I of the Ohio Constitution and O.R.C. Sec. 2929.05.
“Proposition of Law No. XVII[:] Appellant Gillard’s death sentence was disproportionate and violated the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 16, Article I of the Ohio Constitution.
“Proposition of Law No. XVIII[:] A capital defendant’s death sentence is unreliable and inappropriate when he is denied the procedural safeguard of a meaningful, independent review by the trial court under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 9 and 16, Article I of the Ohio Constitution, O.R.C. Sec. 2929.03(F) and O.R.C. Sec. 2929.05.
“Proposition of Law No. XIX[:] A capital defendant’s death sentence is unreliable and inappropriate when he is denied the procedural safeguard of a meaningful, independent review by the appellate court under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Sections 9 and 16, Article I of the Ohio Constitution, O.R.C. Sec. 2929.03(F) and O.R.C. Sec. 2929.05.
“Proposition of Law XX[:] The Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution establish requirements for a valid death penalty scheme. Ohio Revised Code Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions governing the imposition *566of the death penalty, do not meet the prescribed constitutional requirements and are unconstitutional, both on their face and as applied to appellant Gillard.”