COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59734 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION SALVISA NIKOLIC : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 14, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. CR-241858 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. GARY LEVINE, ESQ. CUYAHOGA COUNTY PROSECUTOR 1200 Illuminating Building BY: LARRY COLLINS, ESQ. 55 Public Square ASSISTANT COUNTY PROSECUTOR Cleveland, Ohio 44113 The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: On March 9, 1990 defendant-appellant, Salvisa Nikolic, was convicted on two counts of Drug Law violations (R.C. 2925.03 (A)(5))./1\ On appeal, Nikolic sets forth a single assignment of error alleging he was denied his Sixth Amendment right to counsel because he was denied conflict-free representation. The assignment of error is without merit and the judgment is affirmed. The state's case against Nikolic consisted of the testimony of two witnesses, Detective Steven Jedrick of the Parma Police Department and Scott Murman, an informant for the state. Detective Jedrick testified that Nikolic was placed under investigation because of his alleged involvement in the distribution of cocaine. Detective Jedrick thereafter arranged to have a confidential informant, Scott Murman, make a buy from Nikolic. Scott Murman had previously been arrested on drug law violations and at Detective Jedrick's request agreed to assist in /1\ R.C. 2925.03 states in relevant part: (A) No person shall knowingly do any of the following: *** (5) Sell or offer to sell a controlled substance in an amount equal to or exceeding the bulk amount but in an amount less than three times that amount. - 2 - an investigation of drug traffickers. Murman on two separate occasions purchased one-half ounce of cocaine from Nikolic. Murman identified, in court, Nikolic as the individual from whom he had purchased the cocaine. Nikolic testified at trial and admitted to receiving the cocaine from a supplier and selling it to Murman on two occasions. On appeal, Nikolic states he was denied his Sixth Amendment right to the effective assistance of counsel since his appointed counsel had served as counsel for state's witness Scott Murman in State v. Murman (CR Case No. 238753)./2\ Nikolic states that it is reasonable to presume that his trial counsel had consulted with his former client, Murman, and was in possession, at the time of Nikolic's trial, of privileged communications. Nikolic argues that he has no way of ascertaining the contents of those communications, and thus, he is unable to precisely show how counsel's behavior may have affected his trial. Nikolic claims that counsel may have refrained from questioning Murman in certain areas during cross-examination because the subject matter may have been connected with confidences gained from the earlier representation. /2\ Scott Murman was indicted on June 5, 1989. He entered a plea of not guilty and counsel was assigned June 28, 1989. On August 18, 1989 Murman entered a plea of guilty and was sentenced November 1, 1989. - 3 - It is well established that the Sixth Amendment guarantee of effective counsel is comprised of two distinct rights, the right to reasonably competent counsel, McMann v. Richardson (1970), 397 U.S. 759, 771, fn. 14, and the right to counsel's undivided loyalty. Glasser v. United States (1942), 315 U.S. 60, 70. Counsel therefore must perform competently and also avoid conflicts of interest in the representation of his client. Ordinarily, in cases alleging ineffective assistance of counsel based upon a conflict of interest, the conflict alleged exists between the interest of one defendant and the interest of another defendant, each represented by the same counsel. See Cuyler v. Sullivan (1980), 446 U.S. 335; Holloway v. Arkansas (1978), 435 U.S. 475; Glasser, supra. A conflict of interest, however, is not necessarily limited to those particular instances where one attorney jointly represents more than one defendant. The critical inquiry instead is whether the defendant demonstrated that counsel actively represented conflicting interests and, secondly, whether the defendant demonstrated that the actual conflict of interest adversely affected his lawyer's performance. Burger v.Kemp (1987), 483 U.S. 776, 783; Strickland v. Washington (1984), 466 U.S. 668, 692; Cuyler, supra, at 350, 348; Glasser, supra, at 72-75; State v. Haberek (1988), 47 Ohio App. 3d 35, 38. In the present case Nikolic has not made a specific showing that there was an actual conflict nor that he was adversely - 4 - affected by the representation. The present case does not reveal a situation in which defense counsel refrained from using confidential information to the detriment of his client. Instead, the reasons Murman decided to cooperate with the police in the investigation of Nikolic proved useful to the defense and in fact defense counsel's former representation of Murman appears to have enabled him to conduct a more extensive cross-examination of Murman. Defense counsel's cross-examination of Murman revealed that if he cooperated with the police in the investigation, the police would tell the prosecutor and court of his cooperation in hopes that he would receive probation. Further, his cooperation in the investigation meant that his girlfriend possibly would not be indicted on similar charges. During his cross-examination of Murman, defense counsel clearly revealed to the trier of fact what Murman had to gain by acting as an informant. Finally, it is important to note that defense counsel's relationship with Murman had ended prior to Nikolic's trial. There has been no showing in the present case that there was an actual conflict or that appellant was adversely affected by his counsel's prior representation of Murman. Cf. State v. Foster (November 6, 1990), Franklin County App. No. 90AP-05, unreported (Court of Appeals found defendant made specific showing that an active conflict of interest adversely affected his lawyer's performance.) - 5 - The judgment of the trial court is affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN MCMANAMON, J., AND JAMES D. SWEENEY, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .