dissenting:
I respectfully dissent.
Although respondent testified at the PCR hearing that counsel refused to call witnesses to corroborate his alibi claim, he did not produce these purported witnesses or make any proffer of testimony to support his claim. To the contrary, all the evidence produced at the PCR hearing indicates these witnesses would not have been helpful to respondent’s case. Respondent offered no proof of prejudice from counsel’s failure to call these witnesses.
The PCR judge also found counsel ineffective for failing to object to the admission of a photographic lineup citing State v. Tate, 288 S. C. 104, 341 S. E. (2d) 380 (1986). The photographs admitted in Tate were held prejudicial because they were “mug shots.” Respondent did not present the photographs in question at the PCR hearing and there is no indication in the record they were mug shots. Respondent’s reliance on Tate is misplaced. There is no evidence of prejudice from counsel’s failure to object to admission of these photographs.
Because the record is devoid of any evidence respondent’s defense was prejudiced by counsel’s performance, I would reverse the PCR judge’s order granting a new trial.