dissenting.
I must respectfully dissent from the majority opinion because the joint representation of Peyton and a co-defendant did not violate her right to due process and a fair trial. The alleged lack of compliance by the trial judge with RCr 8.30 did not substantially or unduly prejudice Peyton.
Although a careful examination of the entire record on appeal indicates there is no document that Peyton and her co-defendant may have been put on notice by the trial judge of the possibility of any conflict of interest or that a waiver was subsequently entered as a result of such advice, it is my view that the absence of such notice or waiver does not automatically constitute reversible error. Therefore, I would not adopt .a so-called bright-line rule requiring reversal.
A similar issue was raised in Smith v. Commonwealth, Ky., 669 S.W.2d 527 (1984), where the record did not disclose compliance with RCr 8.30(1). In that case, this Court, citing Mishler v. Commonwealth, Ky., 556 S.W.2d 676 (1977), stated that the failure to appoint separate counsel for co-defendants is reversible error only where there is a conflict of interest between the defendants. In this ease, the record indicates that this issue was not properly preserved for appellate review. RCr 9.22. The record also does not demonstrate a conflict of interest between Peyton and her co-defendant. Consequently, I believe that the apparent failure to comply with the letter of RCr 8.30 is nonprejudicial error.
The rationale of Smith, swpra, has been subsequently upheld in White v. Commonwealth, Ky., 671 S.W.2d 241 (1984), and in Commonwealth v. Holder, Ky., 705 S.W.2d 907 (1986).
In this case, Peyton has not demonstrated anything in the record to support her allegation of obvious conflict. Both Peyton and her co-defendant assumed the identical defense, complete denial. Peyton received a fundamentally fair trial. Any error or omission on the part of the trial judge was nonprejudicial and was harmless error.
The adoption of this type of bright-line rule replaces the proper and thoughtful exercise by the trial court of discretion based on contemporaneous or on-the-spot supervision of the legal situation with a kind of automatic robotic system handed down from on high. Every case is now the same and the case-by-case method which should be applied to individual situations has been abandoned.
I would affirm the conviction in all respects because there was no prejudicial error.