dissenting.
I respectfully dissent because there is no prejudice to any of the defendants arising from the failure to comply with RCr 8.30. Consequently, there is no reversible error.
Smith v. Commonwealth, Ky., 669 S.W.2d 527 (1984), establishes what must be demonstrated in order to obtain a reversal based on a claim of improper joint representation. Holder did not suffer any prejudice resulting from the joint representation. He confessed to the crime. At the pretrial hearing on the motion to suppress the confession, he told the court; the prosecution and defense that his confession was the truth. His confessions were corroborated by the facts of the burglary, the footprints leading from the scene to the dump, the tool boxes, hedge trimmer and clippers found in the freezer. Evidence against all the defendants was so overwhelming that the prosecutor opted against using the testimony of the juvenile co-conspirator because defense counsel stated he would have a conflict if the juvenile testified.
Even in the defense counsel’s belated argument and motion for a new trial, no conflict of interest was perceived, however, *910until he learned of Brown’s oral confession. The confession by Brown is no more prejudicial to Holder than his own confession which he has acknowledged as the truth. Brown cannot argue prejudice over his own confession. The fact that one defendant has implicated another does not create a situation of automatic reversal.
Any problems relating to the totality of circumstances, did not arise because of the joint representation.
Defense counsel never provided the trial judge with any adequate notice of potential conflicts until the very end of the trial. Defense counsel has an ethical obligation to advise the trial judge promptly when any conflict of interest arises during the course of the trial. Cuylver v. Sullivan, 446 U.S. 335, 345, 347, 100 S.Ct. 1708, 1716, 1717, 64 L.Ed.2d 333, 345, 346 (1980). The trial judge is not required to initiate his own inquiry unless he knows or reasonably could know that a particular conflict exists.
Defense counsel had a fair opportunity to examine any possible conflicts of interest prior to trial as shown by his comments regarding a potential conflict if his juvenile client testified. His failure to raise the issue on the record prior to trial allowed the trial judge to assume that there was no conflict. In my view, the defense waived any objection, pursuant to RCr 8.30, by failing to make a timely motion before the trial judge instead of waiting to do so at the end of .the trial in a motion for a new trial. The defense is in the best position to know if there is a conflict or a possible conflict resulting from the representation of multiple defendants. This should be brought to the trial judge’s attention immediately.
The defendants were ably and competently represented. The joint representation did not hinder the defense from attempting to suppress the evidence from the freezer, the confession of Holder and the confession of Brown. Brown’s oral confession was identical or very similar to Holder’s written confession which defense counsel was already well aware of.
There was no reversible error and I would affirm the convictions.