dissents with separate opinion.
MILLER, Presiding Judge, dissenting.
I dissent. The majority concludes the defendants were not denied their fundamental right to effective assistance of counsel under the test enunciated in Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333. In order to determine whether the defendants have been denied effective assistance of counsel this court must search the record to determine (1) whether there was an actual conflict of interest between the defendants, and (2) whether the conflict adversely affected counsel’s performance. Cuyler, supra; Tate v. State (1987), Ind.App., 515 N.E.2d 1145.
As Judge Shields explained in Tate,
“Where an actual conflict of litigation interest exists between the defendants, the attorney’s active representation necessarily will result in impairing his performance as to at least one defendant. Given his clients’ conflicting interests, counsel is necessarily and inevitably placed in the position where he cannot represent the interest of one defendant without impairing the representation of his other client’s interest. Thus, as to the adversely affected performance component of the Cuyler test, the record must be searched or evidence must be submitted at a hearing, not to assess the quality of the attorney’s tactics, but to determine (1) whether the joint attorney, at various times, represented the different interests of his clients who are challenging that representation, in which case, a reversal would be warranted for all, or (2) whether the attorney consistently represented the interests of one client over the interests of his other client, in which case the attorney’s performance is not impaired as to the favored client, and a reversal would not be warranted for that client.”
Tate, supra at 1148.
The majority notes Mary and Gary asserted at trial the baby’s injuries were nothing more than the ordinary injuries sustained by a child learning to crawl or walk, or, alternatively, the injuries were inflicted while the child was at the babysitter’s home. However, Mary also tried to assert she believed the earlier injuries were adequately explained in this way, but when she discovered the more extensive injuries on October 1, she suspected Gary of inflicting them, and took the baby to the hospital.
This defense was not fully pursued. To have done so would have harmed Gary’s defense. At one point, the State attempted to question Mary about a note Gary had written to her on the day she took the baby to the hospital. The note contained an admission Gary had spanked the baby the night before. Mary’s counsel objected to the testimony concerning the note. Clearly the note would hurt Gary’s defense and may have helped Mary. The objection was overruled and Mary was questioned briefly by the State about its contents. Her counsel did not pursue the matter further. This incident shows an actual conflict of interest existed between Mary and Gary which adversely affected the performance of her counsel.1
Gary asserts his attorney’s failure to pursue his “lack of legal duty” defense shows the adverse effect of the joint representation. As the majority notes, such defense, under the facts of this case, would have been unavailing. In addition, this defense could not have been harmful to Mary’s defense. Gary did not claim Mary injured the baby. Therefore, reversal is not warranted as to Gary.
However, Gary’s defense did impair Mary’s attorney’s representation. I would reverse Mary’s conviction.
. Mary does not need to show the objection to the testimony resulted in actual prejudice. ‘‘[Pjrejudice is presumed when counsel is burdened by an actual conflict of interest.” Strickland v. Washington (1984), 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674.