dissenting: I respectfully dissent. The State had a strong case against defendant Charles Smith. The robbery victim got a good look at the robber. The store’s surveillance cameras also captured the robbeiy from various angles. From the victim’s de*354scription and the surveillance shots, the investigating officers (who apparently knew Smith) believed that he was definitely a suspect.
Smith and his brother, Rufus Smith, were brought in for questioning. Rufus was wearing black tennis shoes that were similar to the distinctive shoes worn by the robber. Rufus said the shoes belonged to his brother. Smith admitted that the shoes were his.
Stephen Edwards, an acquaintance of the Smiths, whose house was where the Smiths were picked up, said he believed Charles Smith was the man in the surveillance shots. Rufus also said his brother was the man in the surveillance shots.
Not surprisingly, the jury found Smith guilty. He received the presumptive sentence of 57 months-’ imprisonment.
The defense by James Rumsey was to attack though cross-examination and oral argument the State’s case, which was based on the five identifications of Smith by the victim, the two officers, Rufus, and Edwards, as well as the jury’s ability to see the surveillance shots and compare them to defendant Smith.
Smith apparently wanted Rumsey to do more than that, although exactly what that was is not clear from the record, Smith’s brief, or the majority opinion. Rumsey was doing the best he could with the evidence that actually existed. Smith and the majority appear to focus on the fact that Rumsey believed the robber was Smith because of the veiy strong evidence.
However, this is not a case where the defense counsel gave up and/or admitted to the jury that Smith was guilty. Rumsey continued to challenge and test the evidence as best as could be done, and he argued that most important arrow in the quiver of the defense, the obligation of the State to prove Smith’s guilt beyond a reasonable doubt.
Neither Smith nor the majority state what other evidence Rumsey should have presented. There was no alibi, there was no evidence that someone else committed the crime, and there was no evidence, despite Smith’s receiving workers compensation benefits, that he was physically unable to do what the robber did.
It is true that Rumsey told the court he refused to present fraudulent evidence. But, in the context of the colloquy, all he was contending was that there was no evidence of the sort that Smith, and *355now the majority, demand him to produce or invent. Should this case be remanded for a new trial on this issue, the trial judge and the trial attorney would be faced with a very difficult question: What evidence must the counsel present, whether it exists or not?
A close reading of the record, Smith’s brief, and the majority opinion shows no evidence that actually exists which was not presented. Rumsey refused to create evidence that was not there. However, he argued strongly in support of Smith’s innocence, even though the evidence against Smith was very strong. The position of Smith and the majority is unsupported by the facts or the applicable law of this case. The trial judge, who heard the whole trial, was correct in denying Smith’s demand to be supplied with an attorney who would be required to produce nonexistant or fraudulent evidence.