¶1dissenting.
¶2I disagree with the majority’s position that the false pretense and the murder cases were unrelated. The majority correctly notes “that if attorney Freeman had represented the defendant on the murder and robbery charges, he could have controlled access to the defendant.” Because, under the circumstances here, the murder and robbery charges were related, I believe that at the time Freeman advised Sheriff Gentry that no one should talk to his client, Freeman was in fact speaking for his client on both the false pretense and the murder charges, although he had only been formally appointed in the false pretense cases. At least the evidence before the trial court at the voir dire hearing on admissibility was such that the trial court should have resolved any questions of fact regarding the relationship of the false pretense cases to the murder case.
¶3*271Freeman was appointed to represent the defendant in the false pretense cases on 25 January 1982. Before this appointment, SBI Agent Cabe had discussed with defendant the murder case on 21 January 1982. Defendant had admitted his guilt in the false pretense cases to Cabe and had told Cabe that he knew something about the Absher murder. According to Freeman’s testimony, Cabe told Freeman that defendant “had been cooperating with them in another matter.” Freeman asked if it was serious and Cabe said, “Yes, it is a murder, a homicide.” Freeman then discussed with Cabe the possibility of a plea bargain in the false pretense cases if defendant would cooperate with the prosecution in the murder case. Cabe was receptive to this idea. Thereafter, Freeman spoke to defendant and defendant admitted that he had made a statement to law enforcement investigators about “another case.” Freeman advised defendant not to talk with anybody. Freeman then learned that the other murder case involved the Absher killing.
¶4Freeman spoke with Sheriff Gentry, one of whose deputies was involved in the Absher murder investigation. Gentry told Freeman that he understood defendant “had been cooperating” in the murder investigation. Freeman told Gentry that he “didn’t want anybody talking to Mr. Bauguss about that or anything else unless I was notified.” Although Sheriff Gentry advised Freeman that the murder investigation was “not my case,” the sheriff agreed to “pass the word along.”
¶5On 4 February defendant advised Freeman that Agent Cabe and Chief of Police Delbert Wilson wanted him to take a polygraph examination “about the Absher matter.” Freeman advised defendant that he did not have to take the polygraph and that if he did not want to take it, he should not take it. Defendant told Freeman that although he had earlier agreed with the officers to take the polygraph, “he had changed his mind and he didn’t understand why they wanted him to take it.” Freeman told defendant that he would “try to find out more about it.”
¶6Later on 4 February Freeman received a call from Chief Wilson. During this telephone conversation Freeman advised Wilson that defendant did not want to take the polygraph and he asked Chief Wilson “why it is that you want him to take the polygraph.” Chief Wilson said, “It is part of our investigation.” Freeman ad*272vised the chief that defendant was “not going to take the polygraph test or talk to anybody until you tell me what this is all about.” Chief Wilson replied that Freeman did not represent defendant on anything but the false pretense cases. Freeman replied, “No I don’t represent him on anything else, Delbert, but it is my duty as an attorney and I have a client and I see he is in a situation where he may get himself in danger, then I have to look out for his best interest whether I represent him on that particular charge or not.” Chief Wilson refused to tell Freeman why they wanted defendant to take a polygraph and what the subject of the polygraph examination would be. Freeman ended the conversation by telling the chief, “You think about it and let me know but until you let me know, Bauguss is not going to take a polygraph and he is not going to talk to anybody and I don’t want anybody talking to him.”
¶7On 5 February 1982, without the knowledge of defendant’s attorney, Freeman, the investigators took defendant to Hickory, North Carolina, where the polygraph was administered. It concerned the Absher murder case. The polygraph operator, Whitman, testified that the examination indicated deception on defendant’s part. Whitman said, “At this time I stopped the . . . polygraph and told him I felt like we needed to talk.” Whitman and defendant then talked from 10:46 a.m. until approximately 1 p.m. “Less than thirty minutes” into the conversation, defendant made a statement to Whitman “implicating himself in the death of Mark Absher.”
¶8If Freeman’s testimony is true, the false pretense cases were indeed related to the murder case. Freeman was trying to work out a plea bargain in the false pretense cases in return for defendant’s cooperation in the murder case. Although Freeman had not formally been appointed as counsel in the murder case, he was in fact advising and speaking for defendant with regard to it. Under these circumstances, I think Freeman had the right to control access to his client. When law enforcement officers ignored Freeman’s admonitions and continued to interrogate defendant about the Absher murder case despite these admonitions, they deprived defendant of his Sixth Amendment right to counsel.
¶9*273Sheriff Gentry admitted that Freeman told him that “he didn’t want anybody talking with his client, Mr. Bauguss.” Sheriff Gentry replied, “Okay.” Although the sheriff knew that one of his deputies was involved in the Absher murder investigation and that other agencies were also involved, he did not pass on Freeman’s request to his own investigating deputy, or anyone else.
¶10It is, therefore, uncontradicted that Freeman advised the sheriff that he did not want any officers talking to his client. I think the sheriff had a duty to pass this admonition along to others whom he knew were involved in the Absher murder investigation. Since Freeman’s conversation with Sheriff Gentry is not contradicted, this is enough to conclude that defendant’s Sixth Amendment right to counsel was violated.
¶11I recognize that Police Chief Wilson denied that Freeman ever told him not to talk to defendant. Chief Wilson said that Freeman told him only that Mr. Bauguss should not take the polygraph unless and until he was fully advised of the reasons for it. Neither did Agent Cabe corroborate Freeman’s testimony regarding the plea bargain discussion.
¶12There is, therefore, some conflict in the evidence regarding what Freeman said to Chief Wilson and what he said to Cabe. The trial court did not resolve this conflict. If resolution of the conflict is necessary in order to determine whether defendant was denied his right to counsel, then I think the matter should be remanded to the trial court for that purpose.