¶1dissenting.
¶2The majority opinion misconstrues the facts in this case in holding that "[the major issue at trial was identification."
¶3The facts recited by the majority clearly show overwhelming cireumstantial evidence of guilt of both appellant and We-thington, his co-perpetrator, even if the vie tims of the crime had been unable to identify either man. Their capture in the vicinity of the crime within a very short time, their possession of goods taken from the scene, and the possession of a handgun, which was demonstrated to have been fired at the seene, constituted ample evidence to support the jury verdict.
¶4Turning to the identification, I cannot agree with the majority that it was tainted in any way. The victims of the crime testified that these same two persons had robbed them a few weeks earlier but that the robbery was not reported to police. This is not surprising in view of the fact the victims were dealing in marijuana.
¶5The majority makes much of the fact that one of the witnesses was hesitant in his identification of appellant. However, the evidence shows that his hesitancy occurred when he first saw appellant at the roadside identification, but when permitted a closer look at appellant, he made a positive identification.
¶6The majority also makes much of the fact that the victims were permitted to see the items taken from them, which were *528found on appellant and Wethington at the time of their arrest. To say that such viewing was impermissibly suggestive, is incredible in view of the fact that only one of the witnesses was hesitant upon his first observation of appellant, that no hesitancy existed on the part of the others, that both men had robbed them previously, and that all witnesses immediately identified We-thington as one of the perpetrators. In view of all this, to say that the presence of the items taken during the robbery at the identification constituted improper police action is unrealistic.
¶7For the majority to charge counsel with deficient performance in view of the circumstances of this case is unjustified.
¶8I would affirm the trial court and hold that there was no deficiency of performance on the part of trial counsel.