concurring specially.
The majority is, in my view, correct in affirming the trial court’s disqualification of Millard Farmer from representing Larry Fleming.
First, there is a clear conflict of interest. Mr. Farmer’s other client, Henry Willis, testified at his own trial that Son Fleming shot Police Chief Giddens first, that he (Willis) shot Chief Giddens next and that Larry Fleming shot him last.1 In at least one statement given to police, Willis stated that Larry Fleming did not shoot Chief Giddens. If Larry Fleming was not one of the actual perpetrators of the murder, that fact is material to his defense against the death penalty. Collins v. State, 243 Ga. 291, 299-300 (253 SE2d 729) (1979); Lockett v. Ohio, 438 U. S. 586 (98 SC 2954, 57 LE2d 973) (1978) (opinion of Blackmun, J.). Having testified at his own trial, Willis may be called as a witness for the state or the defense at the trial of Larry Fleming. If Willis is called as a witness, by either the state or Larry Fleming, Willis will need advice from his counsel as to his rights under the fifth amendment. If Larry Fleming is the one who calls Willis as a witness, Larry Fleming’s lawyer will not be able to advise Willis freely regarding his fifth amendment rights. Moreover, if Larry Fleming calls Willis and Willis recants his trial testimony as to Larry Fleming’s shooting Chief Giddens, Willis will be giving contradictory testimony and thereby admitting perjury under examination by his own attorney. If the state calls Willis and Willis restates his trial testimony, then his attorney should *96undertake to impeach him by cross examining him as to his contradictory statement to police. Thus, there is a clear conflict of interest between Larry Fleming and Henry Willis, in the decision of whether to call Willis, in the decision whether Willis should waive his fifth amendment rights, and in the decision to examine or cross examine Willis. One lawyer cannot represent both Fleming and Willis in making these decisions.
Second, the authorities are in agreement that in order for a defendant to waive his counsel’s conflict of interest, his waiver must be knowing, voluntary and intelligent, and that in order to be sure that his waiver meets this standard, the trial judge must question the defendant personally (see authorities cited by the majority and in the dissenting opinion of Jordan, P. J.). Here the trial court’s effort to question Larry Fleming personally was frustrated by his attorney’s instructions to Fleming to invoke his right to remain silent. A defendant cannot claim the right or privilege of waiving his counsel’s conflict of interest and also refuse to participate in the process by which such waiver is made effective.
Moreover, when he appeared at the hearing on the motion to disqualify, Larry Fleming did not make any showing that Henry Willis had agreed to waive the conflict of interest.2 Such a waiver by Willis, in order to be effective, would have to be tested by the trial judge personally questioning Willis. Here, there was no tender of waiver by Willis so as to require the trial judge to question Willis. Hence the majority properly has affirmed the trial judge’s disqualification of Farmer.
However, the majority goes further and adopts a rule which precludes waiver in death penalty cases.3 The majority feels that this "blanket rule” will avoid the problems which would arise where two or more defendants seek, to waive a conflict of interest. I respectfully disagree. In the future, a defendant who seeks to waive a conflict of interest will be foreclosed by the rule adopted by the majority from a hearing on waiver. Such a defendant may be able to claim, after conviction, that the rule adopted by the majority violated his right to counsel of his choice and that absent the majority’s rule, he would have waived the conflict, would have *97answered the judge’s questions, and would have shown that his co- defendant also would have waived the conflict and answered the judge’s questions. A post-conviction determination of whether there would have been a pretrial waiver raises more problems, in my view, than are solved by the rule adopted by the majority.
I would prefer to adopt a rule to the effect that where the state seeks the death penalty against any one defendant in a criminal transaction, he and his co-defendants must be provided with separate and independent counsel, unless and until those defendants declare in advance of trial, on the transcript or in writing, (1) that they want to be represented by common counsel, (2) that they are aware of their rights to effective representation by separate counsel free of conflict, who may cooperate or not as they see fit in the best interest of their respective clients, (3) that they are aware of the details of any conflict of interest which exists (or aware of the possibility of conflicts even if none is apparent) and understand the dangerous consequences which may result, (4) that they knowingly and voluntarily waive the conflict or possibility of conflict, (5) and that they will personally answer questions put to them by the trial judge. Only after such showing has been made in writing signed by the defendants or made orally by them or in their behalfs, would the trial judge be required to hold a hearing on the question of waiver of conflict of interest.
Although the majority do not adopt the exception to the rule which I propose, defendants who hereafter seek to attack the rule *98adopted by the majority would be well advised to make the showing which I propose, before trial, in order to lay the necessary foundation for their attack upon the rule adopted by the majority.
Under the facts of this case and for the reasons stated above, I concur in the judgment of the court.
At his trial, Son Fleming testified in his own behalf but denied being present at the scene of the murder. Fleming v. State, 240 Ga. 142, 143-144 (240 SE2d 37) (1977).
Millard Farmer represented Willis at the trial and on appeal in Willis v. State, 243 Ga. 185 (253 SE2d 70) (1979). Whether or not Farmer continues to represent Willis today actually is immaterial. Only Willis can agree that Farmer may use what he learned from Willis in confidence during that representation in defending Larry Fleming.
The rule adopted by the majority is supported by reasons applicable in many, but not all, cases. An attorney representing two defendants in a death penalty case *97cannot recommend to one of them that he or she testify for the state in the hope of leniency, see Potts v. State, 241 Ga. 67 (2) (243 SE2d 510) (1978), and cannot plea bargain on behalf of one in exchange for testifying against the other, see Coleman v. State, 237 Ga. 84 at 85 (226 SE2d 911) (1976) (testimony of Billy Isaacs). (Larry Fleming has lost these opportunities already.)
In many if not most death penalty cases, one defendant was the actual perpetrator of the murder. That same person frequently is the dominant person in the criminal enterprise. An attorney representing the other defendant should consider whether the client should testify in his own defense, particularly in the sentencing phase of the trial. An attorney representing both defendants cannot freely recommend that one testify in his own interest and against the other.
The foregoing frequently occurring illustrations support the majority’s rule. However, each of these illustrations have one thing in common. Both defendants appear to be guilty of the crime of murder. But if both are not guilty, as the law presumes at the outset, then a common defense presented by one attorney may he in order. It seems to me that the majority’s rule is sustainable by reason where both codefendants are guilty but is not sustainable where both are innocent. Thus it seems to me that the majority’s rule is based on a predicate contrary to the presumption of innocence and I would allow one attorney to represent co-defendants in death cases where certain conditions are met.