Cherry v. State, 23110

• Court: United States State Supreme Court of South Carolina
• Citation: 386 S.E.2d 624,300 S.C. 115
• Docket Number: No. 23110,23110
• Parties: Lavern Holiday CHERRY, Petitioner, v. STATE of South Carolina, Respondent.
• Decision Date: 04 December 1989

Page 624

386 S.E.2d 624 300 S.C. 115 Lavern Holiday CHERRY, Petitioner,
v.
STATE of South Carolina, Respondent. No. 23110. Supreme Court of South Carolina. Submitted Dec. 9, 1988.
Decided Dec. 4, 1989.

Page 625

[300 S.C. 117] Assistant Appellate Defender Daniel T. Stacey of S.C. Office of Appellate Defense, Columbia, for petitioner.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka and Asst. Atty. Gen. Salley W. Elliott, Columbia, for respondent.

TOAL, Justice:

Laverne Holiday Cherry was convicted of first degree burglary and received a twenty year sentence. Cherry filed an application for Post-Conviction Relief (PCR) on the grounds of ineffective assistance of counsel. Following an evidentiary hearing, his application was denied. We granted Cherry's Petition for Certiorari to review the findings of the PCR court pursuant to Supreme Court Rule 50(9).

Cherry contends that he was denied effective assistance of counsel because counsel (1) failed to object to the solicitor's references to Cherry as "Doc Holliday" and (2) failed to ensure the presence of an alibi witness. He also contends that he was denied the right to appeal.

A. Ineffective Assistance of Counsel

A two-prong test for determining effective assistance of counsel has been set forth by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show that counsel's performance was deficient. Under this prong, "[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. at 2065. The second prong of the Strickland test requires a showing that the deficient performance prejudiced the defendant to the extent that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been [300 S.C. 118] different." The defendant is required to overcome the presumption that counsel was effective in order to receive relief.

References to Cherry as "Doc Holiday"

During the trial, the solicitor and several witnesses referred to Cherry by his nickname, "Doc Holliday." Cherry seeks to equate this with the solicitor's repeated references to a death penalty defendant as "Mad Dog," see, State v. Hawkins, 289 S.C. 482, 347 S.E.2d 98 (1986), and alleges his counsel was ineffective in failing to object to the use of this nickname.

At the PCR hearing, Cherry's trial counsel testified that he did not contemplate objecting to the use of "Doc Holliday" since Cherry was well known locally by that name. He also noted that no negative connotations arose at trial from use of the nickname. The PCR judge concluded that counsel's action was based upon informed professional trial strategy and did not constitute ineffective assistance of counsel. We agree and uphold the findings of the PCR judge.

Alibi Witness

Cherry contends that his trial counsel was ineffective in failing to ensure the presence of an alibi witness, Richard Brockington. The trial...