State v. Kevin M. Lockhart

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 16, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP330-CR Cir. Ct. No. 2018CF1435

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEVIN M. LOCKHART,

DEFENDANT-APPELLANT.

APPEAL from judgments and an order of the circuit court for Dane
County: JILL KAROFSKY and CHRIS TAYLOR, Judges. Affirmed.

Before Blanchard, P.J., Kloppenburg, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP330-CR

¶1 PER CURIAM. Kevin Lockhart appeals his judgments of
conviction and the circuit court’s order denying his motion for postconviction
relief.1 Lockhart contends that his trial counsel was ineffective for failing to file a
motion to dismiss criminal charges or to suppress evidence as a sanction for the
State’s failure to preserve exculpatory evidence. We conclude that counsel did not
perform deficiently by failing to file such a motion because the motion would not
have been successful or would have required the resolution of unsettled law. We
therefore affirm the judgments of conviction and the order denying Lockhart’s
motion for postconviction relief.

BACKGROUND

¶2 The State charged Lockhart with attempted armed robbery,
possession of a firearm by a felon, misdemeanor bail jumping, resisting an officer,
two counts of disorderly conduct, felony bail jumping, and two counts of
intimidating a victim, all as repeat offenses. Lockhart denied the allegations and
the case proceeded to a jury trial. The following summary of facts is derived from
the testimony and exhibits introduced during the trial.

¶3 On July 12, 2018, A.B. and C.D. were sitting in A.B.’s car, which
was parked in the parking lot of their friend E.F.’s apartment complex.2 Lockhart
drove by and spotted A.B., who owed him money. Lockhart pulled into the

1
The Honorable Jill Karofsky presided over the trial and entered the judgments of
conviction. The Honorable Chris Taylor presided over the postconviction proceeding and entered
the order denying Lockhart’s postconviction motion.
2
To protect their privacy, we refer to the victims and witnesses using initials that do not
correspond with their own. See WIS. STAT. RULE 809.86(4) (2021-22). All references to the
Wisconsin Statutes are to the 2021-22 version.

2
No. 2022AP330-CR

parking lot, got out of his vehicle, and demanded money from A.B. A.B.
responded that he did not have the money. According to the trial testimony of
A.B. and C.D., Lockhart returned to his vehicle, loaded a clip into a handgun, and
returned to A.B.’s car. Trial testimony varied about whether Lockhart cocked the
gun and perhaps pointed it at A.B. or whether he left the gun in his pocket.3

¶4 Lockhart again demanded that A.B. repay him and said that if A.B.
did not, Lockhart would take A.B.’s car. A.B. got out of the car, Lockhart
followed, and a struggle ensued during which A.B.’s keys fell onto the ground.
Lockhart picked up the keys, and A.B. left the scene to call 9-1-1. During the 9-1-
1 call, A.B. stated that a man wearing a blue jogging suit pulled a 9-mm handgun
on him and took his car keys and money.

¶5 A police officer was dispatched to the scene and observed a man
wearing a blue jogging suit, later identified as Lockhart, standing beside A.B.’s
car. Lockhart fled into the apartment complex, despite the officer’s commands to
stop. Video surveillance footage obtained from the complex showed Lockhart
leaving the complex wearing different clothing than he had been wearing when he
entered. Lockhart surrendered to law enforcement and was arrested shortly
thereafter. Law enforcement searched apartments in the complex and discovered a

3
A.B. testified that Lockhart cocked the gun, but C.D. said that the gun remained in
Lockhart’s pocket, partially exposed. E.F. testified that the gun was partially exposed in
Lockhart’s pocket, that Lockhart was reaching for it, “and then pull[ed] it out. It was like a black
handle or something. Then he put it back ….” However, E.F. initially told police he did not see a
gun at all.

3
No. 2022AP330-CR

9-mm black handgun and clothing matching the description that A.B. had
provided in the 9-1-1 call.4

¶6 Later that day, A.B. was approached by Lockhart’s girlfriend. She
was on the phone with Lockhart, who had called from jail, and she handed the
phone to A.B. This phone call was recorded, the audio recording was played for
the jury at the trial, and a transcript was entered as evidence.

¶7 During the call, Lockhart told A.B. that his girlfriend would drive
A.B. to the police station so he could “go in there and tell … the truth.” Lockhart
told A.B. to say that he “lied” about his interaction with Lockhart because he “was
upset,” he “was all high, or whatever,” that they “just had a little
misunderstanding” and that nothing really happened. A.B. agreed to go to the
police station and make a statement. Lockhart told A.B. that his girlfriend would
go into the station with him.

¶8 According to his trial testimony, A.B. entered the police station,
approached an officer, and informed the officer that he wished to retract his
statements from earlier that day. The officer told A.B. “it was too late,” that the
matter “was in the [district attorney]’s hands,” that “I can’t retract it from them,”
and that “I would have to take that up with the [district attorney].”5 A.B. testified

4
The six charges in the original complaint—attempted armed robbery in violation of
WIS. STAT. § 943.32(2); possession of a firearm by a felon in violation of WIS. STAT.
§ 941.29(1m); misdemeanor bail jumping in violation of WIS. STAT. § 946.49(1); resisting an
officer in violation of WIS. STAT. § 946.41(1); and two counts of disorderly conduct while using a
dangerous weapon in violation of WIS. STAT. § 947.01 and WIS. STAT. § 939.63—were all based
on the above-described sequence of events on July 12, 2018.
5
We observe that this testimony from A.B., and specifically A.B.’s use of the pronoun
“I,” is somewhat ambiguous. It is not clear from the transcript whether A.B. was saying that “I,
the officer,” or “I, A.B.,” would have to take it up with the district attorney. However, during the
Machner hearing, the circuit court found that A.B. was referring to himself and that the officer
(continued)

4
No. 2022AP330-CR

that he went to the police station because he had considered recanting, but that
A.B. later changed his mind because “reality kicked in,” and he realized that when
Lockhart “cocked that gun, the gun could have went off” and A.B. “[w]ouldn’t be
here today.”

¶9 Following the events of July 12, 2018, Lockhart continued to contact
A.B. and, on several occasions, Lockhart attempted to persuade A.B. to provide
different information to the police or to refuse to cooperate with the prosecution.6
A.B. testified that these contacts made him nervous, that he felt that he needed to
“watch [his] back,” that he wanted Lockhart to think that he was not cooperating
with the prosecution, and that on one such occasion, A.B. came to the courthouse
“to make [Lockhart] think [he was] coming to recant,” but that A.B. left without
saying anything.

¶10 At trial, the State attempted to establish the elements of attempted
robbery, possession of a handgun, and disorderly conduct with a dangerous
weapon through the surveillance footage, the gun found in the apartment, and the
testimony of witnesses including A.B., C.D., and E.F. Lockhart’s trial counsel
conceded to the jury that Lockhart had acted “disorderly” towards A.B. on July 12,
2018, and that he had resisted an officer. However, trial counsel argued that the
State had not proven that Lockhart possessed a weapon that day, that Lockhart had

directed A.B. to the district attorney, and neither party challenges this interpretation on appeal.
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (1979).
6
Lockhart was also alleged to have attempted to persuade C.D. to provide different
information to the police or to refuse to cooperate with the prosecution. Based on Lockhart’s
post-charging conduct toward A.B. and C.D., the State amended the information, adding two
counts of victim intimidation in violation of WIS. STAT. §§ 940.44 and 940.45 and one count of
felony bail jumping in violation of WIS. STAT. § 946.49(1).

5
No. 2022AP330-CR

attempted to rob A.B., or that Lockhart had intimidated A.B. and C.D. Lockhart’s
defense to those charges centered on attacking the credibility of A.B., C.D., and
E.F., and emphasizing the absence of “hard evidence.”

¶11 In attacking A.B.’s credibility, trial counsel highlighted the fact that
A.B. had gone to the police station, and attempted to recant his initial statements
to police. Counsel characterized Lockhart’s request that A.B. make a statement as
“encouragement … to go down and tell the truth,” and she reminded the jury that
the on-duty officer “refuse[d] to take the statement.” Counsel argued that A.B.
changed his mind about recanting after he learned that he might face criminal
penalties for doing so. Counsel argued that A.B. had “a choice of … maintaining
that statement that he originally gave and getting to sit in this chair as a witness, or
… of changing his statement and potentially ending up in this chair as a
defendant[,]” and she remarked that “regardless of what happened,” she had “no
doubt as to why” A.B. ultimately decided not to recant.

¶12 The jury returned guilty verdicts on seven of the nine counts:
attempted armed robbery, possession of a firearm by a felon, misdemeanor bail
jumping, resisting an officer, two counts of disorderly conduct, and the count of
victim intimidation related to A.B. It returned not guilty verdicts on the victim
intimidation charge related to C.D. and on the felony bail jumping charge.

¶13 Postconviction, Lockhart filed a motion to vacate his convictions on
the ground of ineffective assistance of counsel, and to grant a new trial. Lockhart
argued that trial counsel had been ineffective for failing to file a pretrial motion to
dismiss the charges based on the State’s failure to preserve evidence related to
A.B.’s attempted recantation. Lockhart argued that this evidence possessed an
exculpatory value that should have been apparent to the officer who interacted

6
No. 2022AP330-CR

with A.B., and that Lockhart was unable to obtain comparable evidence by other
reasonably available means.7

¶14 The circuit court held a Machner hearing, at which trial counsel was
the sole witness. See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905
(1979). She testified that she did not “have any specific or strategic reason” for
not filing a pre-trial motion regarding the State’s failure to preserve A.B.’s
attempted recantation. Counsel testified that “it never occurred to [her] to file
such a motion,” and she declined to “speculate” whether such a motion would
have had merit. She testified that her trial strategy related to A.B.’s recantation
attempt was to cross-examine A.B. about going to the police station with “the
intent to recant,” and to attack the credibility of A.B.’s allegations.

¶15 The circuit court denied Lockhart’s motion in an oral ruling. The
court first found that trial counsel did not consider making a motion to dismiss
charges or suppress evidence, and that she accordingly had no strategic reason for
not doing so. The court then considered whether the motion would have had
merit, had it been filed.

¶16 In deciding whether the State violated Lockhart’s due process rights
by failing to preserve A.B.’s attempted recantation, the circuit court considered
whether the unpreserved evidence was apparently or potentially exculpatory. It

7
Although Lockhart’s postconviction motion suggests that the State’s failure to preserve
the evidence in question would have been material to each of the seven charges for which
Lockhart was convicted, this assumption does not appear to be well founded. To the extent that
A.B. provided a different account of Lockhart’s actions on July 12, 2018, that account could have
been material to the attempted armed robbery, possession of a firearm by a felon, misdemeanor
bail jumping, and disorderly conduct charges. However, Lockhart does not explain how A.B.’s
hypothetical statement would be material to the charge of intimidating a victim or the charge of
resisting an officer.

7
No. 2022AP330-CR

appeared to determine that the recantation attempt possessed an exculpatory value
that was apparent to the State. However, it concluded that Lockhart’s due process
rights were not violated because evidence of the fact that A.B. attempted to recant
was presented at trial.

¶17 Finally, the circuit court determined that the record at the Machner
hearing was devoid of any evidence that the officer failed to preserve the evidence
in bad faith. According to the court, there was no evidence of “intentional
destruction or … concealment” but rather “some laziness and maybe a little
negligence [in] not … taking that statement and directing [A.B.] instead to the
District Attorney.”

¶18 The circuit court issued an order denying the postconviction motion.
Lockhart appeals.

DISCUSSION

¶19 On appeal, Lockhart contends that he was denied the effective
assistance of counsel guaranteed by the state and federal constitutions.8 “Whether
a defendant was denied effective assistance of counsel is a mixed question of law
and fact.” State v. Breitzman, 2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d
93. “The factual circumstances of the case and trial counsel’s conduct and
strategy are findings of fact, which will not be overturned unless clearly

8
“Under the Sixth and Fourteenth Amendments to the United States Constitution, a
criminal defendant is guaranteed the right to effective assistance of counsel.” State v.
Lemberger, 2017 WI 39, ¶16, 374 Wis. 2d 617, 893 N.W.2d 232 (citation omitted). “The same
right is guaranteed under Article I, Section 7 of the Wisconsin Constitution.” State v. Brietzman,
2017 WI 100, ¶37, 378 Wis. 2d 431, 904 N.W.2d 93.

8
No. 2022AP330-CR

erroneous[.]” Id. “[W]hether counsel’s conduct constitutes ineffective assistance
is a question of law, which we review de novo.” Id.

¶20 To demonstrate that counsel’s assistance was ineffective, Lockhart
must establish that counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). Counsel’s performance “is constitutionally deficient if it falls below
an objective standard of reasonableness.” State v. Thiel, 2003 WI 111, ¶19, 264
Wis. 2d 571, 665 N.W.2d 305; Breitzman, 378 Wis. 2d 431, ¶38. To demonstrate
prejudice, Lockhart must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694. We proceed to address whether trial
counsel performed deficiently, and because we conclude that she did not, we do
not address whether Lockhart was prejudiced. See id. at 697 (if a defendant fails
to satisfy either prong, we need not consider the other).

¶21 Lockhart argues that trial counsel performed deficiently because she
failed to seek dismissal of the charges against him, or suppression of the State’s
most probative evidence, on the basis that the State’s failure to preserve
exculpatory evidence violated Lockhart’s due process rights. To determine
whether counsel’s performance was deficient for failing to bring a motion, we
assess the merits of the motion. See State v. Sanders, 2018 WI 51, ¶29, 381
Wis. 2d 522, 912 N.W.2d 16. “Counsel does not perform deficiently by failing to
bring a meritless motion,” id., or by failing to raise issues that require the
resolution of unsettled law. See Breitzman, 378 Wis. 2d 431, ¶49 (“[F]ailure to
raise arguments that require the resolution of unsettled legal questions generally
does not render a lawyer’s services ‘outside the wide range of professionally

9
No. 2022AP330-CR

competent assistance’ sufficient to satisfy the Sixth Amendment.” (citation
omitted)).

¶22 We begin by setting forth applicable due process law regarding the
State’s duty to disclose, preserve, and collect exculpatory evidence. We then
apply these legal principles to Lockhart’s arguments.

I. The State’s Due Process Duty to
Disclose, Preserve, and Collect Evidence

¶23 The due process clauses of the state and federal constitutions require
the State to disclose material exculpatory evidence in its possession to afford
criminal defendants a meaningful opportunity to present a defense. State v.
Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468 (“A defendant has
a due process right to any favorable evidence ‘material either to guilt or to
punishment’ that is in the State’s possession.” (quoting Brady v. Maryland, 373
U.S. 83, 87 (1963)). The duty to disclose exculpatory evidence is not directly
relevant to this appeal, because Lockhart is not arguing that the State failed to
disclose any evidence in its possession.

¶24 Lockhart’s appeal instead turns on related due process principles
regarding the State’s duty to preserve certain evidence that is or could turn out to
be exculpatory. Illinois v. Fischer, 540 U.S. 544 (2004) (addressing the
government’s duty to preserve evidence); Arizona v. Youngblood, 488 U.S. 51
(1988) (same); California v. Trombetta, 467 U.S. 479 (1984) (same). When the
State has a duty to preserve evidence, it fails in that duty whether it “affirmatively
destroy[s] evidence or passively allow[s] it to be destroyed.” State v. Huggett,
2010 WI App 69, ¶20, 324 Wis. 2d 786, 783 N.W.2d 675. “When evidence has
been destroyed in violation of the Constitution, the court must choose between

10
No. 2022AP330-CR

barring further prosecution or suppressing … the State’s most probative
evidence.” State v. Hahn, 132 Wis. 2d 351, 361, 392 N.W.2d 464 (Ct. App.
1986) (quoting Trombetta, 467 U.S. at 487).

¶25 The State’s failure to preserve evidence violates a defendant’s due
process rights if the State failed to preserve evidence that is apparently
exculpatory, or failed to preserve evidence that is potentially exculpatory in bad
faith. State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994)
(Greenwold I); State v. Greenwold, 189 Wis. 2d 59, 67-68, 525 N.W.2d 294 (Ct.
App. 1994) (Greenwold II). Thus, a fundamental question is whether the
unpreserved evidence was apparently or potentially exculpatory. In deciding
whether lost or destroyed evidence is apparently or potentially exculpatory, “[w]e
are to assess the constitutional materiality of the evidence in question at the time
of its destruction.” State v. Weissinger, 2014 WI App 73, ¶15 n.6, 355 Wis. 2d
546, 851 N.W.2d 780, aff’d sub. nom., State v. Luedtke, 2015 WI 42, 362 Wis. 2d
1, 863 N.W.2d 592 (citing Trombetta, 467 U.S. at 489).

¶26 Evidence is “apparently exculpatory” if it “possess[es] an
exculpatory value that was apparent [to the State] before the evidence was
destroyed.” Hahn, 132 Wis. 2d at 356 (quoting Trombetta, 467 U.S. at 488-89).
The State’s failure to preserve apparently exculpatory evidence violates a
defendant’s due process rights if the unpreserved evidence is “of such a nature that
the defendant would be unable to obtain comparable evidence by other reasonably
available means.” Huggett, 324 Wis. 2d 786, ¶21 (citation omitted). In cases in
which “the materiality of the evidence rises above being potentially useful to
clearly exculpatory,” the defendant need not show bad faith. Greenwold II, 189
Wis. 2d at 67-68.

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No. 2022AP330-CR

¶27 In contrast, evidence that does not possess an apparently exculpatory
value prior to it being lost or destroyed, and instead is only potentially useful, is
“potentially exculpatory.” See id. at 67; see also Greenwold I, 181 Wis. 2d at 885.
Our cases have often characterized untested forensic evidence as potentially
exculpatory. See State v. Oinas, 125 Wis. 2d 487, 373 N.W.2d 463 (Ct. App.
1985) (fingerprints left on a wallet found at the crime scene); State v. Smith, 125
Wis. 2d 111, 370 N.W.2d 827 (Ct. App. 1985), rev’d on other grounds, 131
Wis. 2d 220, 388 N.W.2d 601 (1985) (miscellaneous items in a home that may
have contained forensic evidence); Greenwold I, 181 Wis. 2d 881 (untested blood
spots in a vehicle’s interior); Luedtke, 362 Wis. 2d 1 (blood samples taken during
OWI investigations). In these cases, the exculpatory value of the evidence was
unknown to the State prior to it being lost or destroyed, and “no more [could] be
said [of the evidence] than that it could have been subjected to tests, the results of
which might have exonerated the defendant.” See Greenwold I, 181 Wis. 2d at
885-86 (“this evidence was simply an avenue of investigation that might have led
in any number of directions” (quoting Youngblood, 488 U.S. at 56 n.*)). The
State’s failure to preserve potentially exculpatory evidence violates due process
only if the State fails to preserve the evidence in bad faith. Greenwold II, 189
Wis. 2d at 67.

¶28 Before turning to Lockhart’s arguments, we briefly comment on the
few federal and state cases that discuss whether the State has a duty to collect
exculpatory evidence, or to generate it in the first instance. In contrast to the law
regarding the duty to disclose and preserve evidence, discussed above, the law is
far less settled on the State’s obligation to collect or generate evidence. The

12
No. 2022AP330-CR

United States Supreme Court has never directly addressed this issue,9 and federal
circuit court cases appear to point in different directions.10 No Wisconsin case has
explicitly recognized a duty on the part of the State to collect or generate
exculpatory evidence, and two published Wisconsin cases appear to acknowledge
a distinction between preserving evidence on the one hand, and collecting
evidence on the other. See Smith, 125 Wis. 2d at 130 (declining to conclude that
“a defendant’s right to due process includes a requirement that the state collect all
evidence which might possibly turn out to be exculpatory”); Greenwold II, 189
Wis. 2d at 69-70 (stating that “failure to collect potentially exculpatory evidence is
not a violation of due process rights,” but then lumping together the officers’
failure to gather certain evidence at the crime scene with their failure to preserve
the blood specimens, and analyzing both in terms of whether the officers acted in
bad faith).

9
See, e.g., Arizona v. Youngblood, 488 U.S. 51, 58-59 (1988) (stating in passing that the
Court is unwilling to read the due process clause to “impos[e] on the police an undifferentiated
and absolute duty to retain and to preserve all material that might be of conceivable evidentiary
significance in a particular prosecution,” and that “the police do not have a constitutional duty to
perform any particular tests”).
10
See Commonwealth of N. Mariana Islands v. Bowie, 243 F.3d 1109, 1117 (9th Cir.
2001) (“[D]ue process requires law enforcement not just to preserve evidence already in hand, but
to gather and to collect evidence in ‘those cases in which the police themselves by their conduct
indicate that the evidence could form a basis for exonerating the defendant’” (citation omitted));
Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989) (“A police officer’s failure to preserve or
collect potentially exculpatory evidence does not violate due process unless the officer acted in
bad-faith.”); United States v. Brimage, 115 F.3d 73, 76 (1st Cir. 1997) (noting that law
enforcement’s decision to not record a conversation is categorically different from the failure of
police to maintain the breath samples of a drunk driving defendant, or the failure to preserve
semen samples in a sexual assault case); Bullock v. Carver, 297 F.3d 1036, 1056 n.9 (10th Cir.
2002) (noting that Trombetta and Youngblood may apply when police fail to preserve interview
notes or recordings, but that it is unclear whether that framework applies when the police fail to
take notes or record an interview in the first instance).

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No. 2022AP330-CR

II. Lockhart’s Arguments

¶29 With this legal framework in mind, we turn to Lockhart’s arguments.
Lockhart contends that the State violated his due process rights by failing to
preserve: (1) evidence of the fact that A.B. went to the police station with
Lockhart’s girlfriend and told an officer that he wanted to recant his earlier
statement; and (2) the contents of any recantation A.B. would have given, had the
officer taken a statement from him that day. Whether state action violates due
process presents a legal question, which we decide independently. Luedtke, 362
Wis. 2d 1, ¶37. However, “we accept the [circuit] court’s findings of historical
fact unless clearly erroneous.” Wayerski, 385 Wis. 2d 344, ¶35. We address
Lockhart’s arguments in turn.

A. Evidence of A.B.’s Recantation Attempt

¶30 We begin with Lockhart’s arguments concerning A.B.’s recantation
attempt. Lockhart argues that the fact that A.B. went to the police station with
Lockhart’s girlfriend and told the officer that he wanted to recant is apparently
exculpatory evidence, and we agree. However, as discussed above, counsel is not
ineffective for failing to file a motion that would have been denied, or that would
have required the resolution of unsettled law. Sanders, 381 Wis. 2d 522, ¶29;
Breitzman, 378 Wis. 2d 431, ¶49. For reasons we now explain, we conclude that,
had trial counsel made a motion premised on the State’s failure to preserve
evidence of the fact that A.B. attempted to recant, the motion would have been
denied.

¶31 Lockhart’s argument about the topic fails because Lockhart has not
identified any evidence of A.B.’s recantation attempt that the State lost or
destroyed. As we understand it, all of the existing evidence of A.B.’s recantation

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No. 2022AP330-CR

attempt was preserved and presented at trial. Specifically, the State played the
recorded jail call in which Lockhart encouraged A.B. to recant, and during which
A.B. indicated that he would go to the police station to recant. And A.B. testified
that he went to the station with Lockhart’s girlfriend, told an officer that he wanted
to recant, and was turned away. Trial counsel cross-examined A.B. extensively
about his recantation attempt and, during closing argument, she argued that it
undermined the credibility of A.B.’s trial testimony. Accordingly, any motion to
dismiss charges or suppress evidence based on the State’s failure to preserve
evidence of the recantation attempt would have been denied.

¶32 Alternatively, Lockhart may be arguing that the State had a duty to
generate a police report documenting the fact that A.B. expressed an intent to
recant, and that the existing evidence—the audio recording of the jail call and
A.B.’s testimony—was less favorable to Lockhart’s defense than a police report
recording the same events would have been. However, to the extent that Lockhart
is arguing that counsel was ineffective for failing to make a motion on that basis,
any such argument would likewise fail. Although the State’s duty to preserve
existing evidence is well established, Lockhart points to no federal or Wisconsin
case that has imposed a duty upon the State to create or generate evidence, let
alone the best or most favorable form of the evidence. See, e.g., Youngblood, 488
U.S. at 58-59 (expressing unwillingness to impose a duty on the State to perform
any particular tests); Breitzman, 378 Wis. 2d 431, ¶49 (counsel does not perform
deficiently by failing to raise arguments that require the resolution of unsettled
law).

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No. 2022AP330-CR

B. Evidence of the Content of the
Statement A.B. Would Have Given

¶33 We turn to what we perceive to be the heart of Lockhart’s appeal—
his argument that the State violated due process when the officer failed to take a
statement from A.B. after he arrived at the police station and told the officer he
wanted to recant. Lockhart contends that A.B.’s statement would have been
apparently exculpatory, and that, had the officer taken the statement and
memorialized it in some manner, Lockhart could have used the “evidence of this
alternative narrative” to better impeach A.B. at trial. Lockhart argues that he was
unable to obtain any comparable evidence of the statement A.B. would have made
because A.B. changed his mind about recanting and, therefore, what he would
have said that day is irretrievably lost.

¶34 We assume for the sake of argument that the State’s failure to take
and memorialize a statement from A.B. can be characterized as a failure to
preserve evidence, but, as we have explained, this is no small assumption in
Lockhart’s favor. See supra ¶28 & nn.9, 10. Even with that assumption, we
conclude that Lockhart’s due process claim would not have succeeded because the
content of any statement that A.B. would have given is only potentially
exculpatory, and Lockhart has not proven that the State failed to take A.B.’s
statement in bad faith.

¶35 It is certainly true that whatever A.B. would have said is
irretrievably lost. But it is equally true that the record does not reflect what A.B.
would have said. Lockhart argues that the content of a victim’s nearly
contemporaneous recantation is apparently exculpatory evidence, and we agree
with this general proposition. However, Lockhart fails to show any likelihood
that, had the officer taken A.B.’s statement, A.B. actually would have recanted his

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No. 2022AP330-CR

prior statements to police or provided any other information that was useful to
Lockhart’s defense. Much like untested forensic evidence, the contents of the
statement A.B. would have made is entirely unknown. See supra ¶27.

¶36 Lockhart concedes that he does not know exactly what A.B. would
have said if he had given a statement, but he argues that we may infer its likely
contents based on the circumstances established by available evidence. More
specifically, he argues that, based on A.B.’s trial testimony and the recorded jail
phone call in which Lockhart directed A.B. what to say when making his
statement to the police, we may infer that A.B. would have retracted the
incriminating account that he had provided earlier that day, and that he might have
provided a counter-narrative to his earlier statements to police, replete with details
contradicting the earlier account.

¶37 The inferences that Lockhart asks us to make are too speculative.
Although A.B. might have given a detailed counter-narrative that would have been
helpful to Lockhart’s defense, it appears to be equally likely that A.B. would not
have provided any such statement, or even that he would have provided additional
inculpatory information to the officer that would have been harmful to Lockhart’s
defense. As mentioned above, A.B. later testified that Lockhart’s attempts to
pressure him to recant made him nervous, and that he wanted Lockhart to believe
that he was not cooperating with the prosecution. Presumably, had the officer
taken A.B.’s statement, the officer would not have done so in the presence of
Lockhart’s girlfriend. If so, after A.B. was separated from Lockhart’s girlfriend at
the police station, A.B. might have decided against recanting, and he might have
even disclosed that Lockhart was pressuring him into recanting. Alternatively or
in addition, the officer might have informed A.B. of the potential penalties for

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No. 2022AP330-CR

providing false information to the police, and A.B. might have decided to stick
with the original narrative that he had provided to the police earlier that day.

¶38 We acknowledge that all of the above scenarios are based on
speculation, but that is the point—A.B. did not give a statement to the officer at
the station that day, and we lack a basis to determine what A.B. would have said,
had his statement been taken. We therefore conclude that the content of the
statement A.B. would have made, if any, is not apparently exculpatory. It is
potentially exculpatory, and to succeed on a motion to dismiss charges or suppress
evidence, Lockhart would have had to demonstrate that the State failed to preserve
A.B.’s statement in bad faith. See Greenwold II, 189 Wis. 2d at 67 (defendant
carries the burden of proving bad faith).

¶39 “[B]ad faith can only be shown if: (1) the officers were aware of the
potentially exculpatory value or usefulness of the evidence they failed to preserve;
and (2) the officers acted with official animus or made a conscious effort to
suppress exculpatory evidence.” Greenwold II, 189 Wis. 2d at 69. On this point,
as the circuit court observed, the record is sparse. Lockhart argued that it was bad
faith for the officer to turn A.B. away without taking his statement, but Lockhart
did not attempt to introduce testimony from that officer at the Machner hearing,
nor did he introduce the testimony of any other witness with knowledge of the
facts known to the officer at the time A.B. came to the station, or knowledge of the
officer’s reasons for turning A.B. away. The only facts in the record come from
A.B.’s trial testimony on this point, which was limited to the following:

[A.B.:] We went to the north side police station, and one
officer in there said it was too late; it was in the DA’s hand.

[The prosecutor:] Who was “we”? Who went with you to
the north station?

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No. 2022AP330-CR

[A.B.:] Me and [Lockhart’s] girlfriend and [C.D.]

[The prosecutor:] And you said you went to the north
station and you met with an officer?

[A.B.:] Yes.

[The prosecutor:] And they said it was too late?

[A.B.:] He was, like, it’s in the DA’s hand; I can’t retract it
from them; I would have to take that up with the DA.

¶40 Lockhart argues that this testimony from A.B. is by itself sufficient
to show bad faith. We assume without deciding that this testimony is sufficient to
show that the officer was aware of the potentially exculpatory value of any
statement A.B. might have made, and that it satisfies the first prong of the test for
bad faith. See Greenwold II, 189 Wis. 2d at 69. However, we agree with the
circuit court that it falls far short of satisfying Lockhart’s burden to prove that the
officer “acted with official animus or made a conscious effort to suppress
exculpatory evidence.” Id.

¶41 Lockhart argues that the officer’s statement to A.B.—that it was too
late in the process for the officer to take down A.B.’s recantation—was false.
Lockhart contends that is was not “too late” for the officer to collect a statement,
as evinced by the fact that A.B. met with law enforcement on later occasions to
provide evidence about Lockhart’s alleged intimidation, and to prepare for later
court proceedings. Lockhart distinguishes the officer’s actions in this case from
several federal cases finding no bad faith where law enforcement negligently
failed to preserve evidence. See Montgomery v. Greer, 956 F.2d 677, 681 (7th
Cir. 1992) (losing evidence), United States v. Sanders, 954 F.2d 227, 231 (4th Cir.
1992) (accidentally erasing video). Lockhart argues that, in this case, the officer
made a conscious and deliberate choice to not take A.B.’s statement, and based on
that choice, we can infer bad faith.

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No. 2022AP330-CR

¶42 We conclude that the facts in the record do not rise to the level of
bad faith. Based on A.B.’s testimony, the officer did not tell A.B. it was too late
to provide information relevant to the case—rather, the circuit court found that the
officer stated it was too late for him, the officer, to take A.B.’s statement, and he
instead directed A.B. to speak with the district attorney’s office. The officer’s
affirmative representation had the effect of turning A.B. away, but Lockhart
presented no evidence about why the officer made that representation, and there is
also no evidence suggesting that the officer or anyone else took any action to
impede A.B. from providing additional information to the district attorney. On
this record, Lockhart has not carried his burden of proving bad faith.

¶43 In sum, assuming that the officer’s failure to take A.B.’s statement
can be characterized as a failure to preserve evidence, A.B.’s statement is
potentially exculpatory, and Lockhart has not shown bad faith. Thus, any pretrial
motion to dismiss the charges against Lockhart or to suppress the State’s most
probative evidence as a remedy for the State’s failure to preserve the content of
A.B.’s statement would not have succeeded, and counsel was not deficient for
failing to file such a motion. See Sanders, 381 Wis. 2d 522, ¶29 (counsel does not
perform deficiently by failing to file meritless motions).

CONCLUSION

¶44 For the foregoing reasons, we affirm the judgments of conviction
and the circuit court order denying Lockhart’s motion for postconviction relief.

By the Court.—Judgments and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

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