dissenting.
The majority opinion holds that under the circumstances of this case a constitutionally protected right may not be intelligently and voluntarily waived. In so doing the majority has placed this Court’s supervisory role over the Bar of this State above the rights of an accused. I do not understand this to be the law and disagree.
The only issue in this case is whether Larry Fleming should have the right to waive a conflict of interest resulting from his retained attorney having also represented one of his co-defendants. The majority answers this issue by the invention of a simplistic rule calculated to solve "problems” in death penalty cases. The rule sweeps a broad path and would not allow representation of co-defendants by the same attorney even where there is a common defense and no scintilla of a conflict of interest. This flies in the face of the generally accepted rule that an accused is entitled to retain the lawyer of his choice, as Larry Fleming is seeking to do in this case.
It is undisputed in this case that there is a conflict of interest between Millard Farmer’s representation of both Henry Willis and Larry Fleming. However, if there is an effective waiver of this conflict by the co-defendants involved such waiver should be recognized by the courts.
Of course, the trial court should actively participate in the waiver decision. As was stated in United States v. Garcia, 517 F2d 272, 277 (5th Cir. 1975) "the [trial] court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the [trial] court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. [Cit.] It is, of course, vital that the waiver be established by ‘clear, unequivocal, and unambiguous language.’ [Cit.] Mere assent in response to a series of questions from the bench *99may in some circumstances constitute an adequate waiver, but the court should nonetheless endeavor to have each defendant personally articulate in detail his intent to forego this significant constitutional protection. Recordation of the waiver colloquy between defendant and judge will also serve the government’s interest by assisting in shielding any potential conviction from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth Amendment 'fundamental fairness’ basis.” 517 F2d at 278. (Emphasis supplied.)
The federal cases on this question clearly permit a waiver under stipulated conditions. I would give Larry Fleming the opportunity to do so. The fact that he is facing the death penalty increases the importance of this right of waiver in order that he might be represented by counsel of his choice.
I respectfully dissent.