Dennis Leon Edwards appeals from the trial court’s denial of his plea in bar in which he contends that the constitutional prohibition against double jeopardy precludes retrial after his first trial for rape and child molestation ended in a mistrial. We find no error and affirm.
After a jury was impaneled and sworn to try Edwards on charges of rape and child molestation, but before any evidence was presented, Edwards’s defense counsel and the prosecutor brought to the trial court’s attention that, during the trial of the case, they expected defense counsel would have an actual or a potential conflict of interest under ethical standards set forth in the Georgia Rules of Professional Conduct. Defense counsel told the court that, in unrelated proceedings, he had previously represented the mother of the alleged molestation victim, that during the prior representation the mother disclosed confidential information to him that could be used to impeach her if she testified as a witness during the trial, and that counsel was concerned he was ethically prohibited from using that information to cross-examine and impeach the victim’s mother for the benefit of Edwards’s defense. The prosecutor informed the court that, based on his investigation, the state expected the defense would claim that the victim’s mother falsely planted the idea in the victim’s mind that Edwards molested the victim, and that the state would respond by presenting testimony from the victim’s mother refuting that claim. Defense counsel told the court that the prosecutor and I have been talking about this constantly, trying to figure out where we’re going to go with it, and we told you that we thought it would be a problem. . . . Without revealing the confidential information, defense counsel informed the court that, if someone knew the confidential information he had acquired from the victim’s mother and wanted to use it, it would certainly be very strong impeachment material. Given the actual or potential conflict of interest described by the prosecutor and defense counsel, the trial court gave defense counsel an opportunity to confer privately with Edwards to discuss the conflict. After defense counsel met with Edwards, counsel and Edwards informed the court that Edwards had elected to waive the conflict and proceed with the trial with the understanding that, if the victim’s mother testified at the trial, defense counsel could not use the confidential information during cross-examination to impeach the witness. Edwards does not claim, and nothing in the record shows, that the victim’s mother waived the conflict or consented to the disclosure or use of the confidential information. On these facts, the trial court concluded, in effect, that the attempted waiver by Edwards did not cure the problem, and that an actual or serious potential conflict of interest disqualified defense counsel from representing Edwards at the trial. Based on these conclusions, the trial court sua sponte disqualified defense counsel and declared a mistrial over Edwards’s objection.1
