The opinion
BEASLEY, Judge
dissenting.
As to Defendant’s argument that the trial court erred by failing to conduct an evidentiary hearing to address the possible conflict of interest due to his attorney’s prior representation of the State’s witness Michelle Wahome, in unrelated matters, I believe that the trial court did not properly conduct an inquiry, fully informing Defendant of the specific potential conflict of interest such that Defendant was able to knowingly, intelligently, and voluntarily make a decision regarding counsel. I, therefore, respectfully dissent.
“[W]here a trial court becomes aware of even the ‘mere possibility’ of a conflict of interest prior to the conclusion of a trial, the trial court must conduct a hearing to determine whether the conflict will deprive a defendant of his Sixth Amendment right to counsel.” State v. Mims, 180 N.C. App. 403, 410 , 637 S.E.2d 244, 248 (2006) (citing State v. Hardison, 126 N.C. App. 52, 55 , 483 S.E.2d 459, 461 (1997)).
The trial court conducted an inquiry, informing Defendant that his attorney previously represented Michelle Wahome, a State’s witness, on unrelated charges. Defendant appeared in a videotape with Wahome in the transaction for which she was later convicted of common law forgery. The trial court also informed Defendant that Wahome “might testify” and asked whether Defendant “had concerns” about Wahome’s possible testimony to which Defendant indicated he did not, nor did Defendant have concerns that his attorney formerly represented Wahome, and Defendant indicated that he was satisfied with his attorney’s services. Defendant declined the trial court’s invitation to speak with his attorney or to the court about the attorney’s prior representation of Wahome.
Our Court in State v. James, 111 N.C. App. 785 , 433 S.E.2d 755 (1993), held that “ ‘the trial judge should see that the defendant is fully advised of the facts underlying the potential conflict and is given the opportunity to express his or her views.’ ” Id. at 791 , 433 S.E.2d at 759 (quoting United States v. Alberti, 470 F.2d 878, 881-82 (2d Cir. 1972) (emphasis added)). In assessing the consequences about which a defendant should be informed, our Court further noted:
*431 We believe representation of the defendant as well as a prosecution witness (albeit in another matter) creates several avenues of possible conflict for an attorney. Confidential communications from either or both of a revealing nature which might otherwise prove to be quite helpful in the preparation of a case might be suppressed. Extensive cross-examination, particularly of an impeaching nature, may be held in check. Duties of loyalty and care might be compromised if the attorney tries to perform a balancing act between two adverse interests.
Id. at 790, 433 S.E.2d at 758 .
In the case sub judice, the trial court did not specifically inform Defendant of the consequences the attorney’s potential conflict of interest might impose upon Defendant. The trial court did not inform Defendant that if Wahome testified, as she did, that if Defendant’s attorney examined her, the attorney might be prohibited from zealously questioning her about the 2003 events for which she was convicted or about any information garnered from his representation of Wahome, which might have been detrimental to Wahome or detrimental or beneficial to Defendant. It is unclear however, whether the attorney did not question Wahome about the forgery conviction because of confidential matters preventing him from seeking to impeach her character for truthfulness or because he did not wish to implicate Defendant for his involvement with Wahome in the 2003 incident by opening the door for the State’s witness to provide greater detail about Defendant’s involvement.
It is not enough for the trial court to ask Defendant if he “ha[d] any concerns about whether or not Mr. Williams [Defendant’s attorney] [could] appropriately represent [Defendant] in this case because he represented a witness for the State in the past” without informing Defendant about the possible consequences a potential conflict of interest might bear on Defendant’s attorney’s ability to zealously represent him. In determining whether a conflict existed, it would not be enough for the trial court to rely on Defendant’s attorney to explain the consequences, especially if a conflict actually exists. See State v. Ballard, 180 N.C. App. 637, 643 , 638 S.E.2d 474, 479 (2006) (rejecting the State’s argument that defense counsel had adequately advised the defendant on the implications of the conflict of interest because “it is the trial court, not the conflicted defense counsel... which must ‘see that the defendant is fully advised’ ” on these matters (quoting James, 111 N.C. App. at 791 , 433 S.E.2d at 758 ).
*432 Because I believe that the trial court did not properly conduct a hearing to inform Defendant of the consequences of any potential conflict of interest and because Defendant was not fully informed, he did not knowingly, intelligently, and voluntarily waive any such conflict. Accordingly, Defendant argues that he is therefore entitled to a new trial, but this case is unlike James because here, as discussed above, the record does not “clearly show[] on its face that the conflict adversely affected counsel’s performance[.]” James, 111 N.C. App. at 791 , 443 S.E.2d at 759 (presuming prejudice because it was clear from the record that an actual conflict of interest existed). I would remand for the trial court to conduct an evidentiary hearing. See Mims, 180 N.C. App. at 411 , 637 S.E.2d at 249 (citing Hardison, 126 N.C. App. at 58 , 483 S.E.2d at 462 ) (remanding the matter to the trial court for an evidentiary hearing to address whether the defendant’s attorney had a conflict where such could not be determined from the face of the record).