IN THE SUPREME COURT OF TENNESSEE
AT JACKSON
April 9, 2003 Session
STATE OF TENNESSEE v. JEREMY WHITE
An Appeal by Permission from the Court of Criminal Appeals
Criminal Court for Shelby County
Nos. 00-04744-45 and 00-04746-47 Arthur T. Bennett, Judge
No. W2001-02580-SC-R11-CD - Filed September 8, 2003
We granted review to determine whether the Court of Criminal Appeals erred in concluding that
defense counsel’s dual roles as part-time assistant district attorney and defense counsel in this case
created a conflict of interest requiring removal of counsel. The trial court found that defense counsel
must be disqualified under the facts of this case because a “perceived” conflict of interest existed that
could not be waived by the defendant. The Court of Criminal Appeals affirmed on the ground that
an actual conflict of interest existed. After reviewing the record, we conclude that counsel’s dual
roles as prosecutor and defense counsel created an actual conflict of interest that required
disqualification. Accordingly, the judgment of the Court of Criminal Appeals is affirmed.
Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
Affirmed
E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA , III , C.J.,
and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
Mark S. McDaniel, Jef Feibelman, and Susan M. Clark, Memphis, Tennessee, for the appellant,
Jeremy White.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; John H.
Bledsoe, Assistant Attorney General; William L. Gibbons, District Attorney General; and Lee Coffee
and Alanda Dwyer, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
BACKGROUND
Jeremy White was indicted by the Shelby County Grand Jury on May 2, 2000, for the
offenses of attempt to commit first degree murder, especially aggravated robbery, especially
aggravated burglary, and especially aggravated kidnapping arising out of events that occurred on
October 29, 1999, in Shelby County, Tennessee. He retained Mark S. McDaniel as his defense
counsel. McDaniel represented White at his preliminary hearing in the General Sessions Court of
Shelby County and his arraignment in the Criminal Court of Shelby County. Thereafter McDaniel
conducted discovery, requested a trial date from the Criminal Court of Shelby County, and prepared
White’s defense.
Prior to trial and during the time McDaniel was serving as White’s defense counsel,
McDaniel was also serving as a part-time prosecutor for the Town of Collierville in Shelby County,
Tennessee. He had been appointed by the Town of Collierville to prosecute municipal law violations
occurring in Collierville and heard in the Collierville Municipal Court. The Collierville Municipal
Court was also vested with concurrent jurisdiction and authority with Courts of General Sessions in
all cases involving the violations of criminal laws of Tennessee within the limits of the municipality.
In addition, the District Attorney of Shelby County had appointed McDaniel to serve as an assistant
district attorney for Shelby County, and he had been sworn in by a Shelby County Criminal Court
judge. The appointment was for the purpose of conveying authority upon McDaniel to prosecute
state criminal law violations, in addition to municipal law violations, before the Collierville
Municipal Court.
On July 9, 2001, the Board of Professional Responsibility for the State of Tennessee,
(hereinafter “Board”), responding to a request from the Shelby County District Attorney’s office,
issued an unpublished advisory opinion addressing the question of whether it is ethically appropriate
for a part-time Assistant District Attorney to prosecute and to represent criminal defendants within
the same judicial district. See Advisory Ethics Opinion No. 2001-A-742. The Board, citing
provisions of the Tennessee Code of Professional Responsibility and the ABA’s Canons of
Professional Ethics, concluded that such representation was unethical because the prosecutor’s duties
to the public and the criminal defense lawyer’s duties to the accused are inherently antagonistic and
cannot be waived by the public.1
Based on the Board’s opinion, the State filed a motion in the Criminal Court for Shelby
County to disqualify McDaniel from representing Jeremy White. An evidentiary hearing was
conducted by the trial court in which the following facts were developed:
1
The Board reiterated the position in its Advisory Opinion in Formal Ethics Opinion 2002-F-107(b) and Formal
Ethics Opinion 2002 -F-146. The B oard based its decisions in part on relevant Disciplinary Rules and Ethical
Considerations found in the C ode of Professional Responsibility pursuant to Rule 8 of the Tennessee Suprem e Court
Rules. McDaniel and other part-time assistant district attorneys general have filed a petition in this Court asking us to
set aside these Formal Ethics Op inions. See Mark McD aniel, Joe Lee W yatt, M.C. Jermann and Christopher Nearn v.
Board of Professional Responsibility of the Supreme Court of Tennessee, No. M200 2-00 916 -SC-O T-C V. Although the
Code of Professio nal Co nduc t recently has been superseded by the Tennessee Rules of Professional Conduct, the rules
became effective on M arch 1 , 200 3, and are to b e app lied prospectively o nly. Accordingly, our decisio n today is
primarily based on provisions of the Code of Professional Responsibility applicable to this case.
-2-
In July of 1992, Mark S. McDaniel, was employed by the Town of Collierville, in Shelby
County, Tennessee, to serve as a part-time prosecutor. This position authorized McDaniel to
prosecute city ordinance violations. In 1996, McDaniel was sworn in as an assistant district attorney
general to the District Attorney General for Shelby County. See Tenn. Code Ann. § 8-7-103(1)
(1993 & Supp. 2002). This additional appointment granted him the authority to prosecute state
criminal law violations, i.e., misdemeanor and felony charges.
During the evidentiary hearing, McDaniel conceded that while prosecuting cases in the
Collierville Municipal Court on behalf of both the State of Tennessee and the Town of Collierville,
he had engaged in a private law practice, which included the defense of individuals charged with
committing criminal offenses in the Shelby County General Sessions and Criminal Courts.
McDaniel asserted that his appointment as an assistant district attorney was done for the limited
purpose of authorizing him to prosecute only state law violations before the Collierville Municipal
Court and to “protect and insure him against any type of liability.” McDaniel further stated that in
this capacity, his prosecutions had only once involved a member of the Shelby County Sheriff’s
Department.
McDaniel disputed the binding authority of the Board’s advisory opinion, No. 2001-A-742,
and argued that he was sufficiently independent of the office of the District Attorney General for
Shelby County so as to defend White in Shelby County courts without any actual or perceived
conflict of interest. Specifically, he contended that his title as assistant district attorney general was
a mere formality necessary for liability purposes, that he only prosecuted in his capacity as assistant
district attorney general in the Town of Collierville, and that he rarely encountered officers from the
Shelby County Sheriff’s Department in those prosecutions. White testified in the hearing that he was
aware of McDaniel’s position as a part-time assistant district attorney general, and he agreed to
waive any actual or perceived conflicts of interest.
The State contended that there was an actual conflict of interest that White could not waive
in that Shelby County deputy sheriffs, who had county-wide jurisdiction and often testified in State
prosecutions in Collierville, might also testify in White’s case. The State argued that a public
prosecutor’s client is the State, that the State is the adverse party here, and that a prosecutor cannot
“serve two masters” by representing both the State and the defendant.
The trial court concluded that McDaniel’s position as a part-time assistant prosecutor for the
Shelby County District Attorney’s office, while simultaneously defending White against the State’s
prosecution in a Shelby County criminal court, created, at a minimum, a “perceived” conflict of
interest.2 The court found that there was a close relationship between the Collierville prosecutor’s
office and the Shelby County Sheriff’s office, and that the community most likely perceived the
2
The trial court’s analysis followed State v. Jones, 726 S.W.2d 515, 520 (Tenn. 1987), in which we considered
whether county attorneys and their partners may ethically represent defendants being prosecuted by county officials and
analyzed the following factors: (1) the lawyer-client relationship between the county attorney and the sh eriff; (2) the
perception of the community of that relationship; and (3) whether the criminal defendant is being prosecuted by county
officers.
-3-
prosecutor to be a representative of the Shelby County District Attorney’s office. The court also
found that the Shelby County District Attorney was prosecuting White and that, together, these
factors created a “perceived” conflict of interest:
Here, the [appellant] is charged with a crime, committed in Shelby
County, likely investigated by Shelby County Sheriff’s Deputies and
prosecuted by the Shelby County District Attorney’s office.
Moreover, his counsel of record is an employee of the division of
government which seeks to prosecute and punish him for his alleged
criminal actions.
Therefore, this court finds that, even if the above facts do not
give rise to an actual conflict of interest, the State has met its burden
of proving that a perceived conflict of interest exists.
The trial court further concluded that this perceived conflict of interest could not be waived by White
without the State’s consent, and that the State was not required to provide such consent. Finally, the
court discounted White’s claim that he would be prejudiced if forced to retain new counsel, and
instead determined that White’s right to “fair and impartial representation” would actually be
fostered by McDaniel’s removal.
White filed a timely motion for interlocutory appeal pursuant to Rule 9 of the Tennessee
Rules of Appellate Procedure, which was granted by the trial court and the Court of Criminal
Appeals. The Court of Criminal Appeals affirmed the judgment of the trial court but held that the
conflict in this case was more than just “perceived.” Relying on Tennessee Supreme Court Rule 8,
Formal Ethics Opinion 2002-F-146, and case law from other jurisdictions,3 the Court of Criminal
Appeals held that an “actual” conflict of interest existed because McDaniel could not fulfill the
ethical requirements owed by a prosecutor to the public while simultaneously satisfying the ethical
requirements owed by a zealous advocate to his client. The Court of Criminal Appeals further held
that the trial court did not abuse its discretion in refusing to allow White to waive the conflict.
We granted the appellant’s application for permission to appeal.
ANALYSIS
White argues that he has a right to the counsel of his own choosing and that this right may
only be abridged where the State carries its burden of proving that an actual conflict of interest
exists. He argues that this Court’s decision in State v. Jones, 726 S.W.2d 515 (Tenn. 1987),
3
See People v. Rhodes, 524 P.2d 363 , 367 (Cal. 1 974 ); cf. Goodson v. Peyton, 351 F.2d 905 , 908 -09 (4 th Cir.
1965); In re C ole, 738 N.E .2d 1 035 , 103 7 (Ind . 200 0); State v. Brown, 853 P.2d 85 1, 85 7-59 (Utah 1992); Lanza v.
Rath, 568 N.Y .S.2d 278, 280 (N.Y. Sup. Ct. 1991).
-4-
precludes any conclusion that counsel’s dual roles as prosecutor and defense counsel created an
actual conflict of interest in this case and that disqualification was improper. Furthermore, he
contends that the removal of counsel would be prejudicial because it would force the appellant to
retain new counsel unfamiliar with his family and his case.
The State responds that it did not have the burden of proof to establish that McDaniel’s dual
status as defense counsel and assistant district attorney general created an actual conflict of interest.
Moreover, the State maintains that the trial court’s finding of a conflict of interest, whether
characterized as actual or perceived, constituted a valid basis from which the trial court could
conclude that disqualification was necessary.
Standard of Review
A trial court’s ruling on attorney disqualification will be reversed only upon a showing of an
abuse of discretion. Clinard v. Blackwood, 46 S.W.3d 177, 182 (Tenn. 2001); State v. Culbreath,
30 S.W.3d 309, 312-13 (Tenn. 2000). A trial court abuses its discretion whenever it “applie[s] an
incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an
injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn. 1999).
Right to Counsel
We begin our review by recognizing that the Sixth Amendment to the United States
Constitution and article I, section 9 of the Tennessee Constitution guarantee a defendant in a state
criminal prosecution the assistance of counsel. See Gideon v. Wainwright, 372 U.S. 335, 342
(1963); State v. Northington, 667 S.W.2d 57, 60 (Tenn. 1984). The United States Supreme Court
has further observed, however, that “while the right to select and be represented by one’s preferred
attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to
guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant
will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U.S.
153, 159 (1988); see also State v. Huskey, 82 S.W.3d 297, 305 (Tenn. Crim. App. 2002). Thus,
under both the Sixth Amendment and article I, section 9, the right to the counsel of one’s choosing
“must be balanced against the requirements of the fair and proper administration of justice.” Huskey,
82 S.W.3d at 305 (quoting United States v. Micke, 859 F.2d 473, 480 (7th Cir. 1988)).
The existence of a conflict of interest is a vital consideration to this balance. Indeed, the
United States Supreme Court and this Court have held that a trial court may disqualify or remove
a defendant’s counsel of choice where there exists an actual conflict of interest or a serious potential
for conflict. See Wheat, 486 U.S. at 164 (“The District Court must recognize a presumption in favor
of petitioner's counsel of choice, but that presumption may be overcome not only by a demonstration
-5-
of actual conflict but by a showing of a serious potential for conflict.”);4 State v. Thompson, 768
S.W.2d 239, 245 (Tenn. 1989). In short, “courts have an independent interest in ensuring that
criminal trials are conducted within the ethical standards of the profession and that legal proceedings
appear fair to all who observe them.” Wheat, 486 U.S. at 160. Moreover, where a trial court finds
an actual conflict of interest, it may disqualify the offending attorney notwithstanding a defendant’s
waiver:
[W]hen a trial court finds an actual conflict of interest which impairs
the ability of a criminal defendant’s chosen counsel to conform with
the ABA Code of Professional Responsibility, the court should not be
required to tolerate an inadequate representation of a defendant. Such
representation not only constitutes a breach of professional ethics and
invites disrespect for the integrity of the court, but it is also
detrimental to the independent interest of the trial judge to be free
from future attacks over the adequacy of the waiver or the fairness of
the proceedings in his own court and the subtle problems implicating
the defendant’s comprehension of the waiver.
Wheat, 486 U.S. at 162 (quoting United States v. Dolan, 570 F.2d 1177, 1184 (3d Cir. 1978)).
Conflict of Interest
In determining whether to disqualify an attorney in a criminal case, the trial court must first
determine whether the party questioning the propriety of the representation met its burden of
showing that there is an actual conflict of interest. Clinard, 46 S.W.3d at 187; Culbreath, 30 S.W.3d
at 312-13; Jones, 726 S.W.2d at 520-21. In the case before us, therefore, the State had the burden
of showing by a preponderance of the evidence that McDaniel’s representation of both the State and
White created an actual conflict of interest.
This Court has clarified that an actual conflict of interest includes any circumstances in which
an attorney cannot exercise his or her independent professional judgment free of “compromising
interests and loyalties.” See Culbreath, 30 S.W.3d at 312-13; see also Tenn. R. Sup. Ct. 8, EC 5-1.
In the context of multiple employment, for example, an actual conflict arises where an attorney’s
continuance of such employment “would be likely to involve the lawyer in representing differing
interests.” Tenn. Sup. Ct. R. 8, DR 5-105(B). If a conflict exists, it may only be cured if “it is
obvious that the lawyer can adequately represent the interest of each [client] and if each [client]
consents to the representation after full disclosure of the possible effect of such representation on the
exercise of the lawyer’s independent professional judgment on behalf of each.” Tenn. Sup. Ct. R.
4
Moreover, the Supreme Court emphasized that the “[trial] court must be allowed substantial latitude in
refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before
trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual
conflict as the trial progresses.” Id. at 163.
-6-
8, DR 5-105(C). An appearance of impropriety, on the other hand, existed under the Tennessee
Code of Professional Conduct “in those situations in which an ordinary knowledgeable citizen
acquainted with the facts would conclude that the . . . representation poses substantial risk of
disservice to either the public interest or the interest of one of the clients.” Clinard, 46 S.W.3d at
187.
In applying these standards to this case, we must first examine the ethical duties and loyalties
of the prosecutor and defense counsel. As we stated in Culbreath, prosecutors hold a unique office
in our criminal justice system, and therefore must shoulder unique expectations:
[P]ublic . . . prosecutors are expected to be impartial in the sense that
they must seek the truth and not merely obtain convictions. They are
also to be impartial in the sense that charging decisions should be
based upon the evidence, without discrimination or bias for or against
any groups or individuals. Yet, at the same time, they are expected
to prosecute criminal offenses with zeal and vigor within the bounds
of the law and professional conduct.
Culbreath, 30 S.W.3d at 314. The United States Supreme Court has also addressed the unique duties
of a prosecutor:
[The prosecutor] is the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done. As such, he is in a peculiar
and very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer. He may
prosecute with earnestness and vigor–indeed he should do so. But,
while he may strike hard blows, he is not at liberty to strike foul ones.
Berger v. United States, 295 U.S. 78, 88 (1935). Tempered only by their impartial search for justice,
prosecutors are to keep the interests of the State as their preeminent concern. Id.
On the other hand, “[t]he basic duty defense counsel owes to the administration of justice and
as an officer of the court is to serve as the accused's counselor and advocate with courage and
devotion and to render effective, quality representation.” See ABA Standards for Criminal Justice
4-1.2(b) (3d ed. 1993). This duty requires defense counsel to exert every reasonable effort to protect
the client’s interests, both in the investigation and the trial of a case, by interviewing the client;
apprising the client of his or her rights; conducting a thorough legal and factual investigation of the
case; attempting to obtain information in the possession of the prosecution and law enforcement
authorities; filing appropriate motions for the suppression of the evidence; raising all available
claims, issues and defenses; conducting effective cross-examination of the State’s witnesses; and
-7-
attempting to mitigate punishment if the client is convicted. See, e.g., Nichols v. State, 90 S.W.3d
576 (Tenn. 2002); Goad v. State, 938 S.W.2d 363 (Tenn. 1996); State v. Melson, 772 S.W.2d 417
(Tenn. 1989); Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975). In sum, counsel must be constantly
guided by the obligation to pursue the defendant’s interests and to do so to the fullest extent allowed
by the law and applicable standards of professional conduct. See Culbreath, 30 S.W.3d at 314; Tenn.
R. Sup. Ct. 8, EC 7-1.
These ethical duties and principles demonstrate that the Court of Criminal Appeals properly
concluded that McDaniel’s dual roles as assistant district attorney general and defense counsel in the
same county were inherently antagonistic and thus, created an actual conflict of interest. The ethical
obligations of these dual roles required McDaniel to represent the interests of two adverse parties
simultaneously and forced him to attempt to reconcile his duty to vigorously prosecute criminal
offenses on behalf of the State with his duty to zealously defend the criminal defendant. In his
capacity as an assistant district attorney, for example, his ethical duties required him to advocate for
the public and to seek justice. In his capacity as defense counsel, however, his ethical duties required
him to be a zealous advocate of White and an adversary to his fellow assistant district attorneys in
Shelby County. As the Board of Professional Responsibility has correctly observed, such a conflict
would prove detrimental to the lawyer’s representation:
Prosecutors have taken an oath of office to uphold and apply state law
in prosecutions and assist . . . law enforcement officers in prosecuting
alleged crime. Zealous representation of criminal defendants very
often will require . . . vigorous cross-examination of the testimony of
such law enforcement personnel, and in many instances will require
challenging the very laws the prosecutor is charged to enforce. Even
if cross-examination of such personnel would not involve the
disclosure of confidences and secrets of the state or municipality, the
desire to maintain a harmonious working relationship with these law
enforcement officers could adversely affect the inquiring attorney’s
zeal in conducting such cross-examination.
Formal Ethics Opinion 2002-F-146. The Disciplinary Rules preventing conflicts of interests were
specifically designed to free the lawyer’s judgment from such “compromising interests and
loyalties.” Tenn. R. Sup. Ct. 8, EC 5-1; see also Blackwood, 46 S.W.3d at 187; Culbreath, 30
S.W.3d at 312-13.
We disagree with White’s contention that McDaniel is independent of the Shelby County
District Attorney’s office and can ethically represent both him and the State. As the trial court
specifically found, there is necessarily a close relationship between the Collierville City Prosecutor
and the Shelby County Sheriff’s Department. The Shelby County Sheriff’s Department, in turn,
partners with the Shelby County District Attorney’s office in which McDaniel serves as an assistant
district attorney. As the trial court also found, McDaniel has worked with the Shelby County
Sheriff’s Department on one prosecution and is likely to have “regular contact” with the Department
-8-
on future prosecutions. As defense counsel, however, McDaniel must reverse roles completely by
zealously pursuing available defenses, contesting the State’s evidence, and vigorously cross-
examining the State’s witnesses, including law enforcement officers. Accordingly, we conclude that
McDaniel is not independent of the Shelby County District Attorney’s office, but rather, is part of
the office and subject to its supervision. His service to the District Attorney while representing
White involved inconsistent obligations sufficient to constitute an actual conflict of interest.
We also disagree with White’s argument that our decision in State v. Jones, 726 S.W.2d 515
(Tenn. 1987), mandates a different conclusion. In Jones, we rejected the proposition that a conflict
of interest, actual or apparent, necessarily inheres in an attorney’s representation of a criminal
defendant in a county in which the attorney is employed as the partner of the county attorney.
However, our refusal to declare a blanket prohibition on such representations stemmed from the fact
that the title of “county attorney” was imprecise and that in some Tennessee counties, the county
attorneys’ representation extends only to civil cases. See Jones, 726 S.W.2d at 520. Thus, Jones
does not preclude the disqualification of counsel whose representations clearly involve inherently
contradictory duties. Given the fact that the prosecutor always represents the State in prosecuting
crimes and that we have herein found the duties of a prosecutor and defense attorney to be inherently
antagonistic, we conclude that Jones does not control the issue at hand.
We also disagree with White’s argument that he may unilaterally waive any actual or
perceived conflict of interest. For a waiver to be effective, the Disciplinary Rules require each client
to consent to the representation. See Tenn. Sup. Ct. R. 8, DR 5-105(C). As the trial court explained,
the State has not done so in this case:
As an employee of the Shelby County District Attorney’s office, Mr.
McDaniel has a duty to the citizens of Shelby County not to actively
represent conflicting interests. Thus, even if the [appellant] could
waive the conflict, as he claims he wishes to do, the state is not
required to comply with such a waiver and cannot be compelled to
effectively relinquish [its] right to object to the conflict of interest
created when one of [its] members actively represents an opposing
party.
Finally, we agree with the trial court’s conclusion that the representation of White would not
be prejudiced by McDaniel’s disqualification. Indeed, McDaniel’s disqualification is necessary to
avoid a violation of White’s constitutional right to counsel. As we stated in Jones, “it is axiomatic
that the rights of the criminal defendant demand that there be no actual or perceived conflict of
interest that would have any effect whatsoever upon the defense of the charges pending.” Jones, 726
S.W.2d at 520. Thus, instead of hindering White’s interests, we conclude, as did the trial court, that
McDaniel’s disqualification will prevent the actual conflict of interest discussed herein from
interfering with White’s right to fair and impartial representation.
-9-
In sum, we hold that the State has met its burden of proof in showing that McDaniel’s dual
roles as assistant district attorney general and criminal defense lawyer in the same county created an
actual conflict of interest that the State could not be forced to waive.5 We further conclude that this
conflict of interest superseded the appellant’s right to the counsel of his choosing. Accordingly, we
conclude that the trial court did not abuse its discretion in disqualifying McDaniel from representing
the appellant.
CONCLUSION
After reviewing the record, we conclude that the facts in this case present an actual conflict
of interest such that disqualification is required. Accordingly, the judgment of the Court of Criminal
Appeals is affirmed. Costs of this appeal are taxed to the appellant, Jeremy White.
___________________________________
E. RILEY ANDERSON, JUSTICE
5
Although not applicable in this case, we believe the newly adopted Tennessee Rules of Professional Conduct
are consistent with the result we have reached today. For ex ample, R ule 1.7(a) reads:
A lawyer shall not represent a client if the representation of that client will be direc tly adverse to
another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the
other client; and
(2) each client consents in writing after consultation.
As we have explained, McD aniel’s representation of White was directly adverse to the State’s interest in prosecuting him.
Mo reover, contra ry to W hite’s argument on appeal, the conflict could not be waived unilaterally because the new rules
require that both clients waive the conflict. The State did not waive the conflict, nor was it required to do so under the
circumstances of this case.
-10-