A Cobb County jury convicted defendant of a single count of trafficking in cocaine and the trial court sentenced him to confinement for a term of thirty years and a $200,000 fine. The trial court denied defendant’s motion for new trial, as amended. Defendant now appeals contending that trial counsel failed to call the State’s confidential informant as a witness for conflict of interest prompted by animosity trial counsel held for the informant resulting from “dual representation”—specifically, trial counsel’s representation of the informant in an earlier criminal case. Further, defendant argues that his waiver of any conflict of interest claim against trial counsel at trial was invalid, as not knowingly, voluntarily, and intelligently given.
Prior to trial, defendant filed a motion to require the State to reveal the identity of the informant who accompanied the arresting agent in the buy-bust drug transaction which resulted in defendant’s arrest. The trial court granted defendant’s motion following an in camera hearing conducted during its hearing on defendant’s motion to suppress. In camera, the informant testified, among other things, that he had been in the arresting agent’s car at the time of defendant’s arrest therein. However, on subsequently being interviewed by defendant’s counsel, the informant, who after reviewing the arresting agent’s testimony at the probable cause hearing, changed this testimony, and stated he had been outside the arresting agent’s car. It is undisputed that the trial counsel had formerly represented the confidential informant in another criminal case. Further, the record reflects that such case was dismissed for the State’s nolle prosequi action in October 1995, after defendant’s arrest, but more than three months before trial counsel undertook his representation of the defendant and about two and a half years before trial. At trial, neither party called the informant as a witness. Held:
