dissenting:
I respectfully dissent from the majority opinion because Stevenson’s attorney, William Dean, Jr., was operating under an actual conflict of interest that adversely affected his representation of Stevenson and thus infringed upon Stevenson’s Sixth Amendment rights.
*1564I.
Although the majority correctly recognizes that the threshold question is whether there was an actual conflict of interest, it has incorrectly concluded that there is no evidence that Dean was subject to divided loyalties sufficient to establish an actual conflict of interest.
The critical issue in this case is whether a temporary suspension can eliminate an actual conflict of interest. If Dean had continued to represent Winters and Stevenson, there would be no doubt that Dean was operating under an actual conflict of interest. Similarly, had Dean been removed from Winters’ case entirely there would be no argument that the conflict of interest was adequately eliminated. However, the trial court in this case merely suspended Dean. By only suspending Dean from representing Winters for the duration of Stevenson’s trial, the trial court created a situation that was extremely conducive to conflicting loyalties and duties.
The existence of an actual conflict is demonstrated by Dean’s testimony at the habeas hearing and his conduct at trial. Dean testified that while Winters was on the stand he fully expected to continue to represent him. It is apparent from this testimony that when Dean made the tactical decision to cross-examine Winters, he realized that he would be representing Winters in the future. Dean did in fact subsequently represent Winters at Winters’ trial.
Dean’s testimony demonstrates that the actual conflict of interest was not eliminated when the trial court merely suspended Dean. Dean was considering his future representation of Winters while he was representing Stevenson and while Winters was on the witness stand. Had Dean been forbidden from representing Winters further, it is probable that Dean’s thoughts would have been focused entirely on Stevenson’s defense.
As a reviewing court, we cannot be certain that Dean’s zeal, judgment or general trial conduct was not affected by this conflict. As the former Fifth Circuit observed in Castillo v. Estelle:
When there is a conflict of interest such as exists in this case, the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty.
Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974).
I also disagree with the majority’s conclusion that Dean was not forced to make choices that would benefit one defendant at the expense of the other.
In Barham v. United States, 724 F.2d 1529 (11th Cir.1984) we observed that:
“If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.”
Id. at 1535 (quoting Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979)). We conclude that the attorney had “conflicting duties to his two clients and this conflict became actual when he was required to cross-examine [his client].” Id.
It was in Winters’ best interest to be cross-examined about the voluntariness of the purported statement given to the investigator. Such an examination could have begun to establish the theory that the statement made by Winters was involuntary and thus should not be admitted at Winters’ trial. On the other hand, if Dean had not been burdened with conflicting loyalties, he might have been able to recognize that he owed a duty to Stevenson not to cross-examine Winters about the purported statement. Such a tactic could have prevented further discussion about the statement and additional questioning by the prosecutor. This would have been an effective tactic because Dean could have attempted to prevent the investigator from *1565reading the statement to the jury which would have eliminated the jury’s consideration of the statement during its deliberations. For these reasons it is plausible that Dean owed a duty to Winters to cross-examine him and attempt to shed light upon the involuntariness of the statement; yet, he also owed a duty to Stevenson to forego any cross-examination of Winters or to cross-examine to bolster the statement. Thus, the existence of conflicting duties was sufficient to create an actual conflict. See Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974) (Attorney’s representation of the defendant and a principal witness for the defense in an unrelated civil suit created a conflict of interest and was “so inherently conducive to divided loyalties as to amount to a denial of the right to effective representation essential to a fair trial.”).
II.
The majority has also properly recognized that a petitioner must prove that an actual conflict of interest adversely affected his lawyer’s representation. However, it has erred in its assumption that even if an actual conflict existed, there was no infringement of Stevenson’s Sixth Amendment rights because he did not show an adverse effect in this case. In my view, the failure of Dean to object to the state’s impeachment of its own witness (Winters) not only illustrated that an actual conflict existed but adversely affected Stevenson.
Furthermore, the majority errs when it assumes that Dean was ineffective by failing to object, and concludes that the magistrate nevertheless was correct when it found that Stevenson failed to establish the requisite prejudice.1 The majority reasons that it was not error to allow the state to impeach Winters under Ga.Code Ann. § 24-9-81 (1981) because the state reasonably believed that Winters would testify consistently with his prior statement. Moreover, the majority explains that any objection to the admission of the statement would have been without merit.
The majority, however, fails to mention Ga.Code Ann. § 24-3-52 (1982) [hereinafter cited as § 24-3-52] which provides that “[t]he confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” Clearly, case law interpreting § 24-3-52 demonstrates that Stevenson was prejudiced both by Dean’s failure to object to the introduction and admission of the statement on the basis of § 24-3-52 and by his failure to seek a mistrial or a curative instruction once the statement was admitted into evidence. See, e.g., Dudley v. State, 148 Ga.App. 560, 251 S.E.2d 815 (Ga.Ct.App. 1978); see also cases cited infra.
The statute protects a defendant from a co-conspirator’s declarations “made after the criminal enterprise has ended [by providing that the declarations] are evidence only against the one making them.” Banks v. State, 113 Ga.App. 661, 149 S.E.2d 415 (Ga.Ct.App.1966). In this case, Dean could have persuasively argued that the criminal enterprise had ended when Winters gave the statement to the agent at the police station. See Price v. State, 239 Ga. 439, 238 S.E.2d 24, 25 (Ga.1977) (statute “prevented admission into evidence of a co-defendant’s statement, through a police officer-witness because the statement, which was clearly in the nature of a confession, was made after all three suspects had been arrested and identified.”).
Moreover, the fact that Winters was sworn as a witness and testified would not have prevented the application of § 24-3-52 because Winters did not adopt the statement as his testimony and did not implicate Stevenson while he was on the stand. Compare Oliver v. State, 159 Ga.App. 154, 282 S.E.2d 767, 769 (Ga.Ct.App.1981) (The provisions of the statute “have no application where the joint offender or conspirator *1566is sworn and testifies as a witness.”) with Rhodes v. State, 135 Ga.App. 484, 218 S.E.2d 159, 160 (Ga.Ct.App.1975) (Court held that the failure to instruct the jury with regard to the statute “was harmless error where the codefendant was sworn as a witness and testified to the same facts as those contained in his statement.” Oliver v. State, supra, 282 S.E.2d at 769.); see also Pippin v. State, 205 Ga. 316, 53 S.E.2d 482, 489 (1949) (statute does not apply where witness testifies on behalf of state and no confession is offered or admitted).
Dudley v. State, 148 Ga.App. 560, 251 S.E.2d 815 (Ga.Ct.App.1978) illustrates that contrary to the majority’s conclusion that an objection to the admission of the statement would have been without merit, Dean’s failure to object on the grounds of § 24-3-52 clearly prejudiced Stevenson. For example, in Dudley, the defendant was convicted principally on the testimony of an accomplice who had previously been tried and sentenced. A sheriff subsequently testified about a prior statement made by the accomplice. The sheriff answered affirmatively to the following questions: “Did ... [the accomplice] ever make a statement to you? ... Was it what he testified to here today?” Id. at 817. Defense counsel objected and moved for a mistrial “contending it was an attempt to use the confession of the co-conspirator at a time after the conspiracy had ended at a trial where the co-conspirator [was] not on trial contrary to the law of Georgia____” Id. The Georgia Court of Appeals observed that the statement was violative of the statute and prejudicial to the defendant. The court concluded that “[u]nless stricken from the record and the defect in some way cured, the motion for mistrial should have been granted.” Id. Dudley illustrates that situations such as the instant case, are extremely prejudicial to a defendant. Dudley also supports the conclusion that Dean should have objected before the statement was read to the jury.
This case is also similar to Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).2 In Douglas, a co-defendant was called to testify in the petitioner’s trial but, invoking the privilege against self-incrimination, refused to answer any questions concerning the alleged crime. Under the guise of cross-examination, a document, said to be the co-defendant’s signed confession, was read to the jury. Each time the co-defendant was asked if he made the statement in the document, he refused to answer. The Supreme Court held:
The alleged statements clearly bore on a fundamental part of the State’s case against petitioner. The circumstances are therefore such that “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.”
380 U.S. at 420, 85 S.Ct. at 1077 (emphasis added).
Although the prosecutor in this case did not introduce the statement through Winters, his actions had the same effect. Winters, like the co-defendant in Douglas, refused to testify about Stevenson’s involvement in the crime. The prosecutor, like the attorney in Douglas, nevertheless managed to introduce the damaging statement through the guise of impeaching Winters. Clearly, Winters’ statement was a fundamental component of the state’s case against Stevenson. The statement provided:
We drove up to 2664 Columbia Drive and knocked on the door. No one was home. So I kicked the door in and me and Billy went inside and took the stuff out. We then went to the house next door and Billy knocked the window out and we went inside and took out some more stuff. We loaded all the stuff in my truck and left. Billy is William Stevenson.
*1567Investigator Newsome is writing this statement for me at my request.
Moreover, the fact that Winters testified that he committed the burglary contributed to the prejudicial impact of the statement for in the minds of the jury, the statement could have been an “eyewitness’ ” account of the crime. Dean’s objection came after the statement was read and only related to the voluntariness of the statement. This action alone demonstrates that the conflict adversely affected Dean’s representation of Stevenson.
As in Cuyler, the “evidence of counsel’s ‘struggle to serve two masters [cannot] seriously be doubted.’ ” Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Since counsel was burdened with an actual conflict of interest that adversely affected his performance and therefore impaired Stevenson’s defense, I would reverse the decision of the district court and remand the case to the district court with instructions to issue the writ of habeas corpus.
. As the majority correctly points out, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) to prevail on a claim of actual ineffectiveness, it must be shown "that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer’s performance.’ ” 466 U.S. at —, 104 S.Ct. at 2067, 80 L.Ed.2d at 696-97.
. Although the petitioner in Douglas raised a different claim, Douglas, nevertheless supports the conclusion that Stevenson was adversely affected by Dean’s performance due to the existence of an actual conflict of interest.