Pugh v. State

HOLLANDER, Judge. Dennis Pugh, appellant in No. 622, and Morgan Kelley, Jr., appellant in No. 636, were co-defendants below; they were charged with various narcotics offenses and were tried jointly by a jury sitting in the Circuit Court for Worcester County. As appellants were tried together and present common issues on appeal, we shall consider together their separately noted appeals. On January 11, 1994, the jury convicted Pugh of the following: bringing into Maryland an amount of cocaine exceeding twenty-eight grams, in violation of Md.Code Ann., Art. 27, § 286A (1992 & Supp.1994); occupying a position as a “drug kingpin,” as defined and proscribed in Art. 27, § 286(g); possession of cocaine with intent to distribute, in violation of Art. 27, § 286(a)(1); and possession of cocaine, in violation of Art. 27, § 287.

Kelley was convicted of the same offenses, but, after trial, the court granted Kelley’s motion for judgment of acquittal with respect to his conviction as a “drug kingpin.” On April 8, 1994, Pugh was sentenced to twenty-five years incarceration, without parole, for the “drug kingpin” conviction, a concurrent twenty-five year term for bringing into the State an amount of cocaine exceeding twenty-eight grams, and a concurrent twenty-year term for possession with intent to distribute, into which the simple possession conviction was merged. Kelley was sentenced on the same date to a total of twenty-five years incarceration. Appellants were jointly represented by the same attorneys. Central to their appeals are appellants’ claims that they were denied their constitutional right to effective assistance of counsel in part because of a serious conflict of interest resulting from dual representation.

Because we are unable to find the requisite facts, from the record now before us, we hold that appellants’ claims as to conflict of interest and ineffective assistance must be addressed through post conviction proceedings instituted pursuant to Md.Code Ann., Art. 27 § 645A (1992 & Supp.1994). As to appellants’ remaining assertions, ⁶³¹ we perceive no error and shall therefore affirm the judgments in all respects. ISSUES Pugh presents the following questions, which we have rephrased slightly for clarity: I. Was the evidence sufficient to sustain appellant’s conviction as a “drug kingpin,” under Article 27, § 286(g)?

II

Was appellant denied effective assistance of counsel? A. Was defense counsel laboring under a conflict of interest because counsel represented both Pugh and Kelley at their joint trial? B. Did defense counsel fail to represent appellant competently because counsel failed to file timely a motion to suppress? C. Did appellant have a meritorious motion to suppress, such that his defense was prejudiced by counsel’s failure to file timely the motion?

III

Did the trial court err in failing to act, sua sponte, regarding defense counsel’s joint representation of appellants?

IV

Was appellant’s constitutional right to be present at a critical stage of the proceeding violated when he was not present for argument on the State’s motion to strike the defense’s motion to suppress? V. Did the trial court err in granting the State’s motion to strike the defense’s motion to suppress? Kelley presents these related questions: I. “Was the State’s evidence sufficient to support [Kelley’s] convictions for possession with intent to distribute cocaine and importation of cocaine when the uncontroverted evidence simply established that [Kelley] was asleep as the passenger in a car driven by his co-defendant, rented to a third person unknown to [Kelley], when the cocaine was secreted in the spare tire in the car’s trunk and appellant had no access to the ⁶³² trunk and no knowledge of the presence of the cocaine?” II. “Did the court commit error by failing to instruct the jury that [Kelley’s] knowledge of the existence of the cocaine was an essential element of the crimes charged?” III. “Were [Kelley’s] fifth and sixth amendment rights violated when he was represented by counsel who without explaining the actual conflict of interest and without obtaining waiver represented both the passenger [Kelly] and the co-defendant driver of the car?” FACTUAL SUMMARY The following factual summary is gleaned from the evidence presented at trial. On the morning of Wednesday, May 13, 1992, Corporal Ernest Leatherbury of the Maryland State Police and Trooper First Class Mike Lewis had parked their unmarked police cars in the median of Route 13 in Worcester County in the vicinity of Stockton Road.

Corporal Leatherbury’s police car was facing south and Trooper Lewis’s police car was facing north so that their driver’s side doors were side-by-side. At approximately 7:20 a.m., while the troopers were speaking, they observed a 1992 blue Pontiac Grand Prix with its lights on traveling southbound in the right-hand lane of Route 13. The troopers believed that the Pontiac was exceeding the posted speed limit of fifty-five miles per hour. When the Pontiac passed the troopers’ position, they observed that its brake lights were on.

Corporal Leatherbury waited until the Pontiac was out of sight, then pursued the Pontiac in an attempt to “pace” the car. 1 After Corporal Leatherbury’s police car was out of sight, Trooper Lewis also proceeded southbound on Route 13 in pursuit of the Pontiac. ⁶³³ When Corporal Leatherbury paced the Pontiac, he determined that it was travelling at approximately fifty-five miles per hour. While the corporal was behind the Pontiac, he observed that approximately half of the vehicle crossed the center line. Consequently, Corporal Leatherbury executed a traffic stop of the Pontiac “[f]or crossing the center line, not driving in a designated lane.” As the corporal was stopping the Pontiac, Trooper Lewis arrived at the scene. Corporal Leatherbury approached the driver’s side of the Pontiac and asked the driver, later identified as Pugh, for his driver’s license and registration.

Trooper Lewis approached the passenger side of the Pontiac and spoke to Kelley, who was the passenger. When Pugh could not produce his license, Corporal Leatherbury asked Pugh to accompany him to his police car. After learning Pugh’s name, address, and date of birth, the corporal, through a radio check, was able to determine that Pugh was a licensed driver. The corporal also learned that the Pontiac had been rented to one Mary Holman in New York.

At some point, the troopers obtained a copy of the rental contract. Trooper Lewis spoke with Kelley, who remained seated in the Pontiac; he learned that appellants were supposedly travelling from Brooklyn, New York to Norfolk, Virginia. Trooper Lewis noticed a brown jacket on the back seat of the Pontiac with an airline ticket protruding from the pocket. Kelley informed Trooper Lewis that he had travelled to New York "... yesterday, to see my mom for Easter, I mean Mother’s Day.” Trooper Lewis said that Kelley also informed him that he had travelled to New York to pick up a car he was planning to buy and that the two men did not have any luggage.

The trooper commented to Kelley on what the trooper thought was a “big bulge” in Kelley’s front left pants pocket. In response, Kelley reached into his pocket and pulled out a “wad of money.” Trooper Lewis further testified that Kelley said he was unemployed. The troopers then privately discussed their observations of the two men and they agreed that they should request permis ⁶³⁴ sion to search the Pontiac for drugs and contraband. As Pugh was the driver, Corporal Leatherbury obtained his consent to search the Pontiac.

But when Kelley stepped out from the Pontiac, Trooper Lewis also asked him if he had “any problem” with the troopers’ search of the vehicle. Kelley responded that he did not, and also gave his consent to a search of his person. Trooper Lewis searched the Pontiac while Corporal Leatherbury watched appellants, who were standing beside the car. When he searched the trunk of the car, Trooper Lewis observed that the carpeting was in disarray.

He pulled back the carpet, and noticed that “the cardboard panel that covers the spare tire well in the floor was loose. It wasn’t bolted down....” The trooper then removed the cardboard panel and found an old Firestone Supreme tire that was deflated and covered with brake dust. In contrast, there were four new B.F. Goodrich tires on the Pontiac. Trooper Lewis also observed marks around the perimeter of the Firestone tire.

As a result, he asked appellants if they had had a flat tire during the trip and both men responded in the affirmative. Trooper Lewis removed the tire from the trunk. He realized that it was unusually heavy and that there were some “obstructions” in the tire. After Trooper Lewis pried the rubber loose he observed some “gray duct tape packages” in the tire.

At that point, Pugh and Kelley were placed under arrest. Trooper Lewis then cut the tire open and recovered “eleven large duct tape packages.” Also recovered were $286.00 from Pugh and $44.00 and a beeper from Kelley. Subsequent analysis of the packages revealed that they contained 2307.7 grams of powdered cocaine and 1472 grams of crack cocaine. At trial, Trooper Lewis, testifying as an expert in drug interdiction, estimated the value of the cocaine recovered from the spare tire at $508,980.00.

Kelley testified at trial. He denied that he had any knowledge of the cocaine hidden in the spare tire, that he had ever seen the Pontiac before Pugh offered him a ride, and claimed he did not know who had rented the car. ⁶³⁵ Kelley explained that on the day before his arrest, he had flown to New York from Norfolk to visit his mother and retrieve his car, which was being repaired following an accident six weeks earlier. After arriving in New York, Kelley learned that his car was not ready, but did not have enough money to return to Norfolk. While standing in front of his “mother’s building,” he ran into Pugh, whom he knew from the “community.” Kelley asked Pugh to lend him some money to pay for his return trip to Norfolk.

Pugh informed Kelley that he could not lend him any money, but offered to drive Kelley back to Norfolk, provided Kelley was willing to leave immediately. Kelley testified that he ran inside to his mother’s apartment to get his shirt and shorts and then left with Pugh. Kelley testified that they left New York at approximately 10:00 p.m. and that they made only one stop during the trip. Pugh also testified at trial.

He said that he had been living in Virginia for approximately two weeks prior to his arrest because relatives were helping him to rent an apartment. He had returned to New York from Virginia by bus on the Saturday before his arrest. Pugh explained that he had returned to New York for Mother’s Day and to retrieve his car, which was being repaired. Although the repairs to his car were not complete, Pugh testified that he had to return to Norfolk to “finalize” the rental of an apartment.

As a result, he rented the Pontiac from a friend, Philip Holman, whom he knew “from the neighborhood;” Pugh planned to return to New York with the Pontiac on Friday. Pugh explained that there was no luggage in the car because he had clothes both in New York and in Virginia. Finally, Pugh denied any knowledge of the cocaine found in the spare tire. We shall set forth additional facts as necessary to our discussion of the issues presented.

DISCUSSION I. Conflict of Interest At trial, Pugh and Kelley were jointly represented by an out-of-state attorney, admitted to practice in Maryland pro ⁶³⁶ hoc vice 2 Appellants contend that defense counsel’s joint representation resulted in an inherent conflict of interest that adversely affected counsel’s performance. Pugh complains that his attorney’s divided loyalties adversely affected counsel’s representation of him because counsel used Pugh’s position as the procurer and driver of the Pontiac in an effort to establish Kelley’s lack of knowledge, as the passenger, of the cocaine secreted in the spare tire. Pugh argues that, because of the conflict, counsel was ineffective as to him. Similarly, Kelley avers that counsel was not as zealous as he would have been had he not also been representing Pugh.

He states that “every decision by ... trial counsel suffered from the fact that he was representing not only Kelley, but Dennis Pugh against whom the evidence was significantly stronger.” Therefore, Kelley claims, “his counsel was precluded from arguing the lesser culpability of Kelley, for fear of implicating his other client, Pugh.” Additionally, Kelley complains that he was prejudiced because counsel could not competently advise him about whether he should testify once Pugh decided to testify. Multiple representation results in an impermissible conflict when an attorney represents one client “whose interests are adverse to those of another client.” Att’y Grievance Comm’n v. Kent, 337 Md. 361, 379 , 653 A.2d 909 (1995). It is well settled that “[t]he constitutional right to counsel, under the Sixth Amendment of the United States Constitution and Article 21 of the Maryland Declaration of Rights, includes the right to have counsel’s representation free from conflicts of interest.” Austin v. State, 327 Md. 375, 381 , 609 A.2d 728 (1992); see also Kent, 337 Md. at 379 , 653 A.2d 909 . While appellants were jointly represented by the same attorneys, it does not automatically follow that a conflict of ⁶³⁷ interest resulted.

Although “a possible conflict inheres in almost every instance of multiple representation,” Cuyler v. Sullivan, 446 U.S. 335, 348 , 100 S.Ct. 1708, 1718 , 64 L.Ed.2d 333 (1980), an attorney’s dual representation of clients “is not per se violative of constitutional guarantees of effective assistance of counsel.” Holloway v. Arkansas, 435 U.S. 475, 482 , 98 S.Ct. 1173, 1178 , 55 L.Ed.2d 426 (1978) (emphasis in original); see also Austin, 327 Md. at 386 , 609 A.2d 728 ; Pressley v. State, 220 Md. 558, 562 , 155 A.2d 494 (1959); Graves v. State, 94 Md.App. 649, 658 , 619 A.2d 123 (1993), rev’d on other grounds, 334 Md. 30 , 637 A.2d 1197 (1994); Gee v. State, 93 Md.App. 240, 246 , 611 A.2d 1081 (1992); Brown v. State, 10 Md.App. 215, 221 , 269 A.2d 96 (1970). Moreover, as Judge Eldridge recognized in Austin , “There is ... no precise test as to when the possible conflict of interest inherent in dual or multiple representation will become an actual conflict of interest.” 327 Md. at 386 , 609 A.2d 728 . Counsel’s comments throughout the proceedings seemingly acknowledge the obvious: the position of a passenger is often considered less culpable than that of a driver who has control of the vehicle. At the preliminary hearing on July 16, 1992, defense counsel stated, in relevant part: Certainly, Mr. Pugh, by virtue of his driving and operating the vehicle, having constructive control over the vehicle and its contents, there is a stronger inference to him....

Although admittedly, because of 'Pugh’s constructive possession or active possession of the vehicle’s keys and operation of the vehicle, there is a stronger inference as to him. ****** ... I certainly submit that as to Mr. Kell[e]y, the posture of the evidence is in entirely different, different posture, because he has no control over the vehicle, and there is not one bit of evidence that he did have any control over the vehicle. In his opening statement to the jury, defense counsel remarked: ⁶³⁸ Morgan [Kelley] had nothing to do with the rental of the car or even obtaining the car, because when he ran into Dennis [Pugh], Dennis already had the car. Further, in closing argument, defense counsel highlighted that it was Pugh who had effectively borrowed the vehicle from Holman and exercised control over it.

Counsel stated, in part: So they are driving down the interstate. Mr. Pugh is driving the car. He is the one that has gotten it from Mr. Holman. Mr. Holman has given him the rental contract.

He has that. They are stopped by the police. He doesn’t know there is anything in the trunk of the car. Counsel’s comments demonstrate at least a possible conflict of interest stemming from his dual representation of both the driver and the passenger. 3 The comment to Rule 1.7 of the Maryland Rules of Professional Conduct is relevant here.

It provides: An impermissible conflict may exist by reason of substantial discrepancy in the parties’ testimony, incompatibility in positions in relation to an opposing party or the fact that ⁶³⁹ there are substantially different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in criminal cases as well as civil. The potential for conflict of interest in representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than one co-defendant. Nevertheless, the mere “possibility of conflict is insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350 , 100 S.Ct. at 1719 .

Rather, “to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” 4 Id. at 348 , 100 S.Ct. at 1718 (emphasis added). On the basis of the record before us, we cannot say that there was an actual conflict of interest. 5 On the contrary, appellants’ defenses are not necessarily incompatible or inconsistent; Pugh claimed he merely rented the car from Holman, and Kelley claimed, as a passenger, that he never knew what ⁶⁴⁰ was in the spare tire. See Brown, 10 Md.App. at 221 , 269 A.2d 96 (“The mere fact that [appellants’] stories are different does usually not present a conflict of interest if the innocence of both parties is maintained by both stories.”). “[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” Cuyler, 446 U.S. at 350 , 100 S.Ct. at 1719 . Although we cannot conclude that counsel’s simultaneous representation amounted to an actual conflict, we also cannot determine that no conflict existed.

In Glasser v. U.S., 315 U.S. 60 , 62 S.Ct. 457 , 86 L.Ed. 680 (1942), the Supreme Court recognized that, because the attorney “struggle[d] to serve two masters,” he was not as zealous an advocate for appellants together as he would have been had he represented only one or the other. Id. at 75 , 62 S.Ct. at 467 . Recently, in the context of a grievance action, the Court of Appeals observed: “As a general rule, whenever one codefendant makes a statement which is exculpatory or which inculpates a codefendant, they cannot be represented by the same attorney because a conflict exists. “Thus, there also is a conflict where one defendant gives a statement saying that the other was the instigator of the crime, they were involved in a separate crime together, one indicates a desire to become a prosecution witness, one says that the other is more guilty, or the statements raise inconsistent defenses.” Kent, 337 Md. at 376-377 , 653 A.2d 909 (quoting John W. Hall, Jr., Professional Responsibility of the Criminal Lawyer § 13.27 (1987)) (footnotes omitted in Kent). In Gee , where one attorney jointly represented both the buyer and the seller in a drug case, we held that defendants were denied effective assistance of counsel because of counsel’s inability to be the zealous advocate to which the parties were entitled.

What we said in Gee is instructive: The only defense that could have been asserted in this case was for each of the appellants to point an accusing ⁶⁴¹ finger at the other. A lawyer, equally dedicated to the fortunes of both, was frozen into inactivity because he could not aid and abet such finger-pointing. Coffey’s only defense was to deny any involvement in criminal activity. An advocate championing his cause to the exclusion of all other masters would have had no compunction in assassinating Gee. “Gee alone was in possession of heroin; my client was not.” A hard-hitting champion for Coffey might have flailed Gee as a known “junkie” in the neighborhood and would have insisted that the observed transfer was nothing more than Coffey’s repayment of a $5.00 loan.

Since the contraband was found only on the body of Gee, Coffey’s only viable defense was to distance himself from Gee in every way possible, callously leaving Gee hanging out to dry in the process. Because Coffey’s defender was also loyal to Gee, however, he was totally inhibited from attempting in any such fashion to “lay off the blame.” The sin of divided loyalty, as it afflicted Coffey, was in nothing his lawyer did but in what his lawyer found himself “compelled to refrain from doing,” from his unavoidable “erosion of zeal.” Gee, 93 Md.App. at 259-60 , 611 A.2d 1081 . 6 The question as to whether counsel labored under an actual conflict is clearly crucial to appellants’ claims. While the conflict claim is a serious one, it is best resolved through a post conviction hearing; 7 in order to determine whether there ⁶⁴² was an actual conflict, further factual investigation is necessary. See, e.g., Cuyler, 446 U.S. at 338 , 100 S.Ct. at 1712-13 (in a post conviction proceeding, the lower court heard five days of testimony to determine whether a conflict existed).

As the Court said in Kent , “whether or not a conflict exists must be determined by the facts of each individual case.” 337 Md. at 379 , 653 A.2d 909 (citing Austin, 327 Md. 375 , 609 A.2d 728 ; In re Special Investigation No. 231, 295 Md. 366 , 455 A.2d 442 (1983)). Ordinarily, “consideration of a claim of ineffective counsel is best left to a post conviction hearing____” Harris v. State, 295 Md. 329, 337 , 455 A.2d 979 (1983); see also Hunt v. State, 321 Md. 387, 407 , 583 A.2d 218 (1990), cert. denied, 502 U.S. 835 , 112 S.Ct. 117 , 116 L.Ed.2d 86 (1991). This is because the record on appeal usually does not establish the reasons for the challenged acts or omissions of counsel and review by an appellate court would involve “ ‘ “the perilous process of second-guessing,” perhaps resulting in an unnecessary reversal in a case where sound but unapparent reasons existed for counsel’s actions.’ ” Harris, 295 Md. at 338 , 455 A.2d 979 (quoting Johnson v. State, 292 Md. 405, 435 , 439 A.2d 542 (1982) (citations omitted in original)). Through a post conviction hearing, the court has the opportunity to receive evidence and testimony and to make factual findings concerning the allegations. 8 Id.

Development of the record would demonstrate the extent, if any, to which counsel’s divided loyalty interfered with his zealous representation of appellants. We observe that the record here is devoid of any evidence as to whether counsel disclosed to defendants a possible ⁶⁴³ conflict. Thus we cannot determine whether appellants knowingly waived the conflict. 9 A post conviction proceeding would also establish whether appellants were aware of the attorneys’ possible conflict and whether appellants voluntarily and knowingly agreed to proceed. As the Court said in Gee : It is ... beyond dispute that the Sixth Amendment right to counsel is breached and “effective representation is lacking ... if counsel, unknown to the accused and without his knowledgeable assent, is in a duplicitous position where his full talents—as a vigorous advocate having the single aim of acquittal by all means fair and honorable—are hobbled or fettered or restrained by commitment to others.” 93 Md.App. at 246 , 611 A.2d 1081 (citing U.S. v. Alvarez, 580 F.2d 1251, 1254 (5th Cir.1978) (emphasis added)).

In so concluding, we recognize that, in unusual circumstances, claims of ineffective assistance of counsel have been considered on direct appeal. In Austin , the Court recognized that “a claim that the constitutional right to counsel was violated because of defense counsel’s conflict of interest has been treated by courts as different from a claim that the constitutional right to counsel was violated because of defense counsel’s deficient performance apart from conflict of interest.” 327 Md. at 394 , 609 A.2d 728 . Accordingly, in contrast to other claims of ineffective assistance of counsel, the Court acknowledged that conflict of interest cases may be decided on direct appeal. Id.

See also Pressley, 220 Md. 558 , 155 A.2d 494 (ineffective assistance of counsel claim based on conflict of interest decided on direct appeal); Brown, 10 Md.App. 215 , 269 A.2d 96 (same). But careful review of the few cases that have entertained direct appeal of ineffective assistance claims makes plain that such review is not appropriate here. In those cases, either the issue of conflict was raised at trial, the conflict was egregious and patently obvious, or post conviction proceedings would not have been productive. ⁶⁴⁴ In Austin , two partners in one law firm represented two defendants, Austin and Wise, in a multiple defendant drug case. At one point, the prosecutor informed the judge that Wise planned to plead guilty and testify against Austin.

Because of the obvious conflict of interest, the judge ordered the two lawyers not to discuss the case with each other. When Austin failed to reach a plea agreement with the State, Austin’s attorney objected to the continued gag order imposed on his law partner, but the court refused to lift it. At Austin’s trial, the State called Wise as a witness, and Wise made several statements that incriminated Austin. Austin was ultimately convicted.

Thereafter, the Court of Appeals granted Austin’s petition for a writ of certiorari to consider “whether defense counsel labored under such a conflict of interest that the defendant’s constitutional right to the assistance of counsel was violated.” 327 Md. at 381 , 609 A.2d 728 . The trial judge had lengthy discussions with counsel concerning conflict of interest. Although Austin’s attorney never specifically objected to the firm’s representation of both defendants, defense counsel objected to the gag order that prevented counsel from conferring. Also, both the trial judge and the prosecutor expressly recognized an actual conflict of interest.

Thus, the Court felt that there was no need to wait for a post conviction hearing because the record clearly demonstrated the conflict. Instead, the Court was troubled by the way in which the trial court attempted to address the conflict. The Court held that “it was the action of the trial court as the result of the conflict which caused an adverse effect in defense counsel’s representation.” Id. at 394 , 609 A.2d 728 . The gag order impaired counsel’s representation by essentially “discharging] one-half of Mr. Austin’s defense team.

By imposing the gag order, [the judge] did not reduce the conflict; he reduced the defense team.” Id. at 393 , 609 A.2d 728 . In Brown , one attorney represented the defendant as well as a potential prosecution witness. The record indicated that the witness “had volunteered to the prosecution a story which completely exculpated herself by shifting all blame to the appellant.” Brown, 10 Md.App. at 224 , 269 A.2d 96 . At trial, ⁶⁴⁵ Brown’s counsel advised the court that he had a conflict and felt hampered as a result.

Id. In Kent v. State, 11 Md.App. 293 , 273 A.2d 819 (1971), counsel represented two defendants. While one defendant was awaiting sentencing, he elected to testify against the other defendant who was on trial. As to the defendant awaiting sentencing, his cooperation with the State in testifying could have resulted in a favorable sentence for himself.

Obviously, counsel’s loyalty was divided; he did not want to jeopardize the interests of either client. Counsel needed to attack vigorously the testimony of one client in order to protect the other client who was on trial. Yet due to the conflict, counsel’s cross-examination of his own client—a state’s witness—was obviously restrained. Although the conflict of interest was not raised at trial, the conflict was nonetheless blatant.

Id. at 301 , 273 A.2d 819 . The Court stated: Counsel was in an obvious conflict of interest situation. Since waiver will not be presumed from a silent record, the trial judge should have ascertained for the record whether appellant, knowingly and willingly, was consenting to the dual representation at a time when he would have been entitled to separate counsel. Id.

(citations omitted). 10 In Gee, 93 Md.App. 240 , 611 A.2d 1081 , the public defender recognized that he had a conflict in his representation of two codefendants. He stated: “I can’t really represent Mr. Gee effectively where he has a potential benefit if he cooperates against Mr. Coffey.” Id. at 243 , 611 A.2d 1081 . Although counsel asked to withdraw his representation of the one ⁶⁴⁶ defendant, the trial judge determined that the joint representation did not give rise to a conflict and directed the attorney to represent both appellants. In the foregoing cases, the issue of conflict was squarely ripe for direct appellate review. 11 In the instant case, however, neither appellants nor counsel voiced any objection to the joint representation until the post trial motions were filed. 12 Moreover, as we have noted, actual conflict has not been established.

Therefore, we are of the view that the issue must be fleshed out through post conviction proceedings.

II

Trial Court’s Duty To Inquire Pugh and Kelley assert that the trial court erred in failing, sua sponte, to warn them of the hazards of joint representation. 13 They claim that the trial court was aware of the conflict and was obligated to inquire if appellants understood the conflict and if they desired separate counsel. It is true that the burden of determining if a conflict exists does not rest solely with the attorney. If defense counsel undertakes dual representation and fails to bring a conflict of interest issue to the attention of the trial court, “the court still has a great responsibility.” Brown, 10 Md.App. at 230 , 269 A.2d 96 . Where a conflict of interest is “so immedi ⁶⁴⁷ ately obvious and apparent the trial court has the responsibility, with or without objection from counsel, to protect the right of the accused from being lessened by an actual ... conflict of interest.” Id.

Thus, an apparent conflict of interest, of which the trial court “knows or reasonably should know,” requires action by the trial court. Cuyler, 446 U.S. at 347 , 100 S.Ct. at 1717 . See also Austin, 327 Md. at 390 , 609 A.2d 728 (“[I]t was apparent that an actual conflict of interest existed requiring action by the trial court.”); Graves, 94 Md.App. at 671 , 619 A.2d 123 (“When the potential conflict is brought to the attention of the court, it must conduct a full evidentiary hearing to determine if ‘facts peculiar to the case preclude the representation of competing interests by separate members of the public defender’s office.’ ”). In United States v. Tatum, 943 F.2d 370 (4th Cir.1991), the Court explained: When the risk of a conflict of interest is brought to the attention of the trial court, however, the court has the responsibility