State v. Donald L. Treadwell

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.
November 14, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP792-CR Cir. Ct. No. 2017CF370

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DONALD L. TREADWELL,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: MARK A. SANDERS, Judge. Affirmed.

Before White, C.J., Donald, P.J., and Dugan, J.

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. 2022AP792-CR

¶1 PER CURIAM. Donald L. Treadwell appeals from a judgment
entered following a jury trial convicting him of one count of first-degree sexual
assault of a child under the age of thirteen, and an order denying his
postconviction motion. On appeal, Treadwell contends that trial counsel was
ineffective for failing to request a mistrial and that the circuit court erroneously
denied his postconviction motion without a hearing. For the reasons discussed
below, we affirm.

BACKGROUND

¶2 Treadwell was charged with first-degree sexual assault of a child
under the age of thirteen. According to the criminal complaint, E.C. allowed
Treadwell, her father, who she had not seen in over thirty years, to stay at her
house. On January 20, 2017, E.C.’s eight-year-old son, T.E., told E.C. that “[m]y
grandpa is nasty” and “Grandpa asked me could he touch my ding a ling and suck
it.” T.E. told police that his grandfather reached in his pants and touched his
“private part.” In a Mirandized1 interview, Treadwell admitted to asking T.E. to
have sex with him and to touching T.E. on his penis.

¶3 In preparation for trial, Treadwell’s counsel filed a motion in limine
requesting that the circuit court prohibit the State from introducing evidence at
trial “as to alleged criminal acts or other misconduct” by Treadwell, which the
court granted.

¶4 Treadwell’s case proceeded to trial, beginning on October 22, 2018.
The State called several witnesses, including E.C., T.E., Officer Cindy Carlson,

1
See Miranda v. Arizona, 384 U.S. 436 (1966).

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No. 2022AP792-CR

and Detective Steve Wells. The defense did not call any witnesses and Treadwell
did not testify.

¶5 Relevant to this appeal, during trial, the State asked E.C. if she was
surprised when T.E. came into her room and told her what Treadwell did and she
replied that there were “rumors that [Treadwell] was a predator.” Treadwell’s trial
counsel immediately objected and moved to strike. The circuit court sustained the
objection and instructed the jury to “disregard those comments and not give them
any weight.”

¶6 Subsequently, during its closing instructions, the circuit court
advised the jury that it was required to disregard all stricken testimony. The court
stated:

During the trial I ordered certain testimony to be
stricken or instructed you to disregard certain testimony.
The jury will disregard all stricken testimony. The jury
will not consider and will not give any weight to testimony
that you have been instructed to disregard.

¶7 The jury found Treadwell guilty as charged. Treadwell was
sentenced to sixteen years of initial confinement and ten years of extended
supervision.

¶8 Treadwell filed a postconviction motion seeking an evidentiary
hearing and new trial on the grounds that he received ineffective assistance of
counsel when trial counsel failed to move for a mistrial after E.C. testified that
there were rumors that he was a predator.

¶9 After briefing, the circuit court denied Treadwell’s motion without
an evidentiary hearing. The circuit court found that trial counsel was not deficient
for failing to move for a mistrial. The court stated that even if counsel had moved

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No. 2022AP792-CR

for a mistrial, it would not have granted that request. The court stated that E.C.’s
testimony was “unsolicited, extremely brief,” “non-specific,” and “simply was not
the sort of ‘plain and obvious’ issue that would preclude the court from utilizing
the less drastic alternative of instructing the jury to disregard it.” In addition, the
court found that Treadwell was not prejudiced given the strength of the State’s
case and the court’s instructions to the jury. This appeal follows.

DISCUSSION

¶10 On appeal, Treadwell renews his argument that trial counsel was
ineffective for failing to move for a mistrial and further contends that the circuit
court should have granted an evidentiary hearing on his postconviction motion.

¶11 When a postconviction motion is denied without an evidentiary
hearing, we review independently “whether the motion on its face alleges
sufficient material and non-conclusory facts that, if true, would entitle the
defendant to relief” and “whether the record conclusively demonstrates that the
defendant is not entitled to relief.” State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d
458, 983 N.W.2d 608. “[I]f the motion does not raise facts sufficient to entitle the
movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” State v. Allen, 2004 WI 106,
¶9, 274 Wis. 2d 568, 682 N.W.2d 433.

¶12 To prevail on an ineffective assistance of counsel claim, a defendant
must show that counsel performed deficiently, and that the deficiency was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). If a defendant
fails to make an adequate showing as to one prong of the test, we need not address
the other. Id. at 697.

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No. 2022AP792-CR

¶13 In this case, we conclude that the record conclusively shows that
Treadwell’s trial counsel was not deficient.

¶14 Counsel performs deficiently if his conduct falls below “an objective
standard of reasonableness.” Id. at 688. “Counsel does not perform deficiently by
failing to bring a meritless motion.” State v. Sanders, 2018 WI 51, ¶29, 381
Wis. 2d 522, 912 N.W.2d 16. “In determining whether counsel’s performance
was deficient for failing to bring a motion, we may assess the merits of that
motion.” Id.

¶15 Generally, the decision whether to grant a mistrial is “within the
sound discretion of the [circuit] court.” State v. Pankow, 144 Wis. 2d 23, 47, 422
N.W.2d 913 (Ct. App. 1988). A motion for a mistrial is not warranted unless, in
light of the entire proceeding, the basis for the mistrial motion is “sufficiently
prejudicial” to warrant a new trial. See State v. Bunch, 191 Wis. 2d 501, 506, 529
N.W.2d 923 (Ct. App. 1995). “[N]ot all errors warrant a mistrial and ‘the law
prefers less drastic alternatives, if available and practical.’” State v. Adams, 221
Wis. 2d 1, 17, 584 N.W.2d 695 (Ct. App. 1998) (citation omitted).

¶16 In this case, we agree with the circuit court that E.C.’s testimony did
not warrant a mistrial. See Bunch, 191 Wis. 2d at 506. First, as the circuit court
observed, the State’s case was “strong.” At Treadwell’s trial, E.C. testified that
T.E. came into her room and told her, “Mama, Grandpa nasty.” E.C. asked T.E.
what he meant, and T.E. said, “Grandpa asked me could he suck my dick and put
his hands down my pants.” E.C. then went to confront Treadwell and said, “You
asked [T.E.] could you suck his dick?” E.C. testified that Treadwell responded,
“yeah and put his head down in shame.”

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No. 2022AP792-CR

¶17 Consistent with E.C.’s testimony, T.E. testified that Treadwell asked
him if he could “suck it” and touched T.E.’s “private part” with his hand. T.E.
testified that he then went to his mom’s room and told her, “my Grandpa nasty”
and relayed what happened.

¶18 T.E.’s testimony was also corroborated by Officer Carlson, who
conducted T.E.’s forensic interview. After the forensic interview was played for
the jury, Officer Carlson confirmed that T.E. told her that “his grandfather
squeezed his private parts.” The State also introduced a body diagram that Officer
Carlson used during her interview with T.E. She testified that T.E. drew a circle
where Treadwell had touched him, which was “where the penis would be located.”

¶19 In addition, during the trial, the State played portions of Treadwell’s
in-custody interview. Near the end of the interview, Treadwell admitted he
touched T.E.2

¶20 Second, as the circuit court observed, E.C.’s testimony that there
were rumors that Treadwell was a predator was unsolicited and extremely brief.

¶21 Third, when trial counsel heard E.C.’s testimony, he immediately
objected to the testimony and moved to strike. The circuit court sustained the
objection and instructed the jury to disregard the comments and not give them any
weight. Later, during closing instructions, the circuit court again instructed the

2
We note that at trial, the defense argued that Treadwell was nervous, scared, and
confused during his interrogation. Detective Wells, who interviewed Treadwell, however,
testified that he specifically asked Treadwell certain background questions to determine his
ability to understand the questions he was being asked. Based on the answers to those questions,
Detective Wells felt that Treadwell understood him. Detective Wells testified that he would not
have continued the interrogation had he been concerned that Treadwell did not understand what
was happening.

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No. 2022AP792-CR

jurors to disregard any stricken testimony. Jurors are presumed to follow
instructions, see State v. Truax, 151 Wis. 2d 354, 362, 444 N.W.2d 432 (Ct. App.
1989), and the instructions cured any prejudicial effect of E.C.’s comment by a
less drastic method than a mistrial, which is preferred by the law. See Adams, 221
Wis. 2d at 17.

¶22 Treadwell contends that the curative instructions in this case were
insufficient to cure prejudice. In support, Treadwell points to State v. Albright, 98
Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980).

¶23 In Albright, the defendant was found guilty of operating a motor
vehicle while under the influence of an intoxicant following a jury trial. Id. at
665. On appeal, the defendant challenged his conviction on multiple grounds. Id.
This court held that the State improperly told the jury in its opening statement that
the police gave the defendant a preliminary breath test, the arresting officer
improperly testified during the trial that the defendant had a knife and a chain on
him when he was arrested, and the State improperly told the jury in its closing
argument that the arresting officer did not get any “brownie points” for making an
arrest. Id. at 675-77. Based on the cumulative impact of these errors and the
“equivocal evidence” of the defendant’s intoxication, we determined that the
defendant was entitled to a mistrial. Id. at 677-78. In our decision, we noted that
the circuit court gave instructions to the jury in an attempt to cure the erroneous
references to the preliminary breath test and the confiscation of the knife and
chain; however, the instructions were insufficient to overcome the improper
testimony and statements. Id. at 677.

¶24 Albright, however, is distinguishable from this case. In Albright,
the holding was based on the cumulative impact of the errors and the “equivocal

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No. 2022AP792-CR

evidence” of the defendant’s intoxication. See id. at 677-78. Here, as discussed
above, there is only one alleged error, and the evidence was not “equivocal.”
Thus, we are not persuaded that the curative instructions here were insufficient.

¶25 Thus, in light of the entire record, we conclude that E.C.’s testimony
was not “sufficiently prejudicial” to warrant a mistrial. See Bunch, 191 Wis. 2d at
506. Accordingly, trial counsel did not perform deficiently by failing to bring a
meritless motion, see Sanders, 381 Wis. 2d 522, ¶29, and the circuit court
properly denied Treadwell’s postconviction motion without an evidentiary
hearing. See Allen, 274 Wis. 2d 568, ¶9.

By the Court.—Judgment and order affirmed.

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

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