dissenting:
I respectfully dissent. In my opinion, since there is evidence of probative value in the record to support the post-conviction relief (PCR) judge’s finding of ineffective assistance of counsel, we should' uphold his decision. E.g., Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
The majority finds error in the PCR judge’s finding that identification was the “integral issue” at Respondent’s trial, stating that instead the “critical issue” was witness credibility. I do not understand this distinction, as the question was whether the witnesses’ identification of Respondent as a participant in the crimes was credible. Moreover, the fact that two State’s witnesses unequivocally identified Respondent as the assailant does not negate the importance of identification in the case, but merely highlights the centrality of the issue given that four defense witnesses, including those who admitted being present at the scene, as well as Respondent testified that he was not involved.
I would uphold the PCR judge’s finding that trial counsel was ineffective in failing to request a jury charge emphasizing the State’s burden to establish the accuracy of Respondent’s identification beyond a reasonable doubt. Cherry v. State, supra.