State v. Herbert Ambrose Darden, 2011AP883-CR, District 4, 5/3/12
Trial counsel correctly construed the holding of State v. Miller, 231 Wis. 2d 447, 460, 605 N.W.2d 567 (Ct. App. 1999):
¶16 This is not the first time that we have been asked to determine whether or not Miller created a bright-line rule that evidence of flight is inadmissible if there is an independent explanation for the flight that cannot be explained to the jury. In State v. Quiroz, 2009 WI App 120, ¶25, 320 Wis. 2d 706, 772 N.W.2d 710, we specifically stated that in citing Liggins for the proposition that “an independent reason for flight known by the court which cannot be explained to the jury because of its prejudicial effect upon the defendant,” this court “in no way adopted an automatic exception to the standard balancing of probative value with risk of unfair prejudice that is to be applied to all evidence.” Id., ¶25. Although unaware of Quiroz, which was decided two years after the Machner hearing, Darden’s trial counsel was correct in his analysis of Miller, and the form and substance of his objection was consistent with both the holding in Miller and our later holding in Quiroz. We therefore conclude that counsel’s failure to make a specific objection to evidence relating to Darden’s escape on the basis of Miller was far from deficient.
The court rejects separate challenges to trial counsel’s failure to present certain witness, based on the court’s assessment that this was “a rational strategy and not deficient performance,” ¶¶17-23.