Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 9, 2003
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121189
THOMAS DAVID CRESS,
Defendant-Appellee.
____________________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
We granted leave to appeal to consider whether the trial
court abused its discretion in denying defendant’s motion for
relief from judgment on the basis of a new, third-party
confession. We hold that the trial court did not abuse its
discretion when it concluded that the third-party confessor
was not credible and that the confession, therefore, did not
make a different result probable on retrial. The trial
court’s decision necessarily hinged on determinations of
credibility and was supported by the evidence. The Court of
Appeals impermissibly substituted its judicial opinion for
that of the trial court. We thus reverse the judgment of the
Court of Appeals and reinstate the trial court’s order denying
relief from judgment.
I. FACTUAL AND PROCEDURAL HISTORY
In 1985, a jury convicted defendant of first-degree
felony murder, MCL 750.316, in the death of seventeen-year-old
Patty Rosansky. The victim’s body had been found in a ravine
covered by a refrigerator door. Two pieces of tree limbs were
found in her throat, and the autopsy revealed that the cause
of death was a brain injury resulting from one or more blows
to the head with a club-like object. The victim had defensive
wounds on her hands and extensive bruising on her legs. She
was clothed from the waist up, but was naked from the waist
down, with her underwear around her feet. There was evidence
of forced anal penetration.
No physical evidence connected defendant to the murder
and no eyewitnesses were identified. Rather, the case against
defendant consisted primarily of the testimony of several
witnesses to whom defendant had admitted murdering the
victim.1 Defendant took the stand and denied that he killed
1
John Moore testified that he lived with defendant and
heard defendant state in February 1983 after coming home in
the evening, that “he felt a little better because he went and
knocked off a piece.” He testified that he also heard
defendant say he had killed the victim.
2
the victim or that he had told anyone that he did so. He
stated that he was delivering papers on February 3, 1983, and
presented an alibi witness, Doug Moore. Defendant also
presented the testimony of people who claimed to have seen the
Terry Moore testified that he lived with defendant and
that, in July 1983, defendant took Terry, his brother Walter,
and Cindy Lesley to a wooded area and pointed out the location
of the victim’s body. The victim’s body was later found in
that location.
Candy Moore testified that defendant came to her house
almost every day in the spring of 1983 and told her on two
different occasions that he had killed a girl named Patty and
put her in a ditch.
Emery DeBruine testified that in May 1983 defendant saw
him in a bar and told DeBruine that defendant had raped and
killed a girl because she refused to have sex with him.
Defendant also said that it was a perfect crime and that no
one would know about it.
Walter Moore, a convicted felon, testified that defendant
had stated that he had picked the victim up and that they had
smoked marijuana. Defendant wanted to have sex and when the
victim refused, he raped her, killed her, and dumped the body
in a wooded area.
Cindy Lesley testified that defendant had taken her out
to the ravine where the victim was found and told her that he
had killed the victim and left her body in the ravine after he
covered her. Lesley called the police and eventually received
a monetary reward.
Officers Nick Pestum and Marion Bagent testified
regarding prior consistent statements of Walter Moore, Candy
Moore, and Cindy Lesley, for the limited purpose of refuting
defendant's charges that the witnesses were influenced.
Shirley House testified that she was the Moore family's
landlady. She testified that when she was at the house
repairing the steps, she heard defendant say, “I cannot
believe that I got so hard up I had to kill the bitch for a
piece of ass.”
3
victim with a man other than defendant after the date she
disappeared.
The Court of Appeals affirmed defendant’s conviction on
direct review. Unpublished opinion per curiam, issued
February 4, 1988 (Docket No. 86748). This Court denied leave
to appeal. 431 Mich 856 (1988).
In 1997, defendant filed a motion for a new trial on the
basis of newly discovered evidence. Although defendant
presented three separate arguments in support of his motion,
the only argument at issue in this case is that Michael
Ronning, an inmate in an Arkansas prison, had admitted
murdering the victim.
Battle Creek Police Detective Dennis Mullen2 first
discovered Ronning’s potential involvement while investigating
another crime, an August 1982 murder. Ronning was initially
reluctant to cooperate, but then agreed to confess to multiple
murders in exchange for a transfer to a Michigan prison so he
could be closer to his family. Ronning passed a polygraph
test in which he admitted committing three homicides in
Michigan. During the polygraph test, however, no questions
were asked specifically about the murder in this case. In
addition to taking the polygraph test, Ronning confessed to
2
Detective Mullen did not personally investigate this
case.
4
the murder in this case. In his confessions, Ronning claimed:
(1) Rosansky, the victim, calmly got into Ronning’s car
without a struggle and crouched down on the floor while he
drove her to Fort Custer; (2) once at the woods, Ronning had
Rosansky remove all her clothes except her socks, and they
smoked a joint; (3) Rosansky was not distressed, but was
rather “quite comfortable” with him, even laughing and
giggling; (4) he tried to have sex with Rosansky in the car,
but specifically remembered that he did not and could not have
sex because he “was too loaded up on drugs”; (5) he may have
penetrated Rosansky’s vagina with his fingers, but did not
penetrate her rectum; (6) when they got out of the car, he
followed Rosansky as she walked, holding on to her hair; (7)
he strangled Rosansky with his left arm in a headlock-type
hold for approximately four minutes; (8) Rosansky did not
fight back or struggle in any way; and (9) after he thought
Rosansky was dead, he stood over her and threw a rock at her
head one time. Ronning also accompanied police on two
unsuccessful attempts to locate the scene of the crime.
Ronning later signed an affidavit attesting that he alone had
murdered Rosansky.
The trial court originally granted defendant's request
for a new trial on the basis of Ronning's confession. The
court held:
5
It is important to note some observations
concerning the trial testimony. There were no
eyewitnesses to the murder of Patricia
Rosansky. . . . There was absolutely no physical
evidence linking the Defendant, Mr. Cress, to this
crime. The only evidence connecting him to the
crime was the testimony of several witnesses . . .
all of whom testified that Mr. Cress had admitted
to each of them his involvement in Ms. Rosansky's
murder.
* * *
This Court has had the opportunity to review
the videotaped statements of Michael Ronning in
which he confesses to the murder of Patricia
Rosansky. Parts of his statements agree with the
established facts in this case, and parts of his
statements may not agree with the established
facts.
* * *
It appears to this Court that to deny the
Motion for a New Trial in this case, one must be
able to conclude that Mr. Ronning's confession is
incredible, unbelievable, or simply unsubstantiated
by the established facts. This I cannot do for
several reasons.
First, there are portions of Mr. Ronning's
statements which do conform to the established
facts in this case. Second, although there are
parts of his statements which may not be in
conformity with the established facts, it must be
noted that we are dealing with events which
occurred 14 years ago. Given that lapse of time,
it is possible that one's memory of some of the
specific details may be sketchy. And finally,
there is the testimony at the hearing of Battle
Creek Police Detective Dennis Mullen.
Detective Mullen testified that he has been
working on this murder case and two others since
the 1980s. He stated under oath at the Hearing
that he encouraged the Prosecutor's office to issue
an arrest warrant against Michael Ronning for the
murder of Patricia Rosansky. The testimony clearly
6
indicates that Detective Mullen, based upon his
knowledge of the circumstances surrounding Patricia
Rosansky's murder and his subsequent investigation,
believes Mr. Ronning's confession is true.
It is obvious that Detective Mullen and the
Prosecutor's Office have a difference of opinion
concerning the believability of Michael Ronning's
confession. That difference simply indicates to
this Court that the Ronning confession cannot be
summarily dismissed. Ultimately, at a new trial,
the jury may believe Mr. Ronning and acquit Thomas
Cress. On the other hand, the jury may totally
reject Ronning's confession and convict Mr. Cress
of Murder.
Considering the fact that at Mr. Cress' trial,
there was no physical evidence connecting him to
the crime; that his conviction was based solely
upon the statements attributed to him by several
prosecution witnesses; that some of those
witnesses may have recanted their trial testimony;
and that Mr. Ronning's confession cannot be deemed
incredible or unbelievable, I believe that the
Defendant has met his burden of establishing the
four factors . . . required for granting a new
trial . . . .
It will be up to a new jury to weigh all the
evidence presented, including Mr. Ronning's
confession, and then determine whether there is
evidence beyond a reasonable doubt that Thomas
Cress committed the murder of Patricia Rosansky.
The prosecutor applied for leave to appeal to the Court
of Appeals. Defendant then filed a motion in the trial court
"for evidentiary hearing and dismissal of the charges,"
claiming bad-faith destruction of evidence.
The Court of Appeals denied the prosecutor's application
for leave to appeal and stated that the trial court had not
abused its discretion in granting defendant a new trial.
7
Referring to evidentiary materials developed after the trial
court's ruling, however, the Court noted that "denial of leave
to appeal does not preclude a party from asking the trial
court to revisit the merits of its order . . . based on
information developed subsequent to such order," including
evidence derived from the forensic testing of the decedent's
remains following exhumation.
The prosecutor moved in the trial court to reopen the
proofs regarding defendant's motion for a new trial. The
prosecutor sought to present new evidence attacking the
veracity of Ronning's confession and more evidence regarding
the allegedly recanting prosecution witnesses. The trial
court granted the prosecutor's motion. At the hearing,
several prosecution witnesses testified that Ronning had told
them that he falsely confessed to the victim's murder.
Ronning testified that he killed Rosansky, but refused to
answer any questions about the circumstances of the murder,
claiming that to do so would somehow violate his agreement
with the government. As a result, Ronning’s confessions to
the murder of Rosansky have never been given under oath, and
have never been subject to the crucible of cross-examination.
After the hearing, the trial court vacated its December
1997 decision and denied defendant's motion for new trial.
The court explained that it no longer found Ronning's
8
confession persuasive:
The evidence presented since the Court granted
the Prosecution's Motion to Re-open Proofs has
established overwhelmingly and convincingly that
Michael Ronning is in fact a false confessor to the
Patricia Rosansky murder. The primary reasons for
this conclusion are as follows:
1. Mr. Ronning stated in his confession that
he strangled Ms. Rosansky, and he demonstrated how
he struck her one time with a rock to the back of
her head. This Court heard from four expert
witnesses concerning the blow(s) to her head: two
Forensic Anthropologists . . . and two Forensic
Pathologists . . . . Some of the professional
opinions of these witnesses are contradictory.
When weighing this evidence, one must consider not
only the expert's qualifications (all of which are
impeccable), but one must also consider the
underlying facts and circumstances giving rise to
those opinions. After considering the expert
testimony presented in this matter, this Court is
convinced that there were in fact multiple blows to
the head and neck of Patricia Rosansky. That fact
finding is important because although Mr. Ronning
is vague and claimed a lack of memory about many
details in his description of the murder, he
consistently claimed striking her in the head only
one time. The expert testimony, whether it be the
number of blows to Ms. Rosansky's head, or the
presence of defensive wounds, or the lack of any
evidence of strangulation, or the linear, rod-like
shape of the object used to strike Ms. Rosansky,
all rebut Mr. Ronning's version of the manner of
Ms. Rosansky's death.
2. There were four people who testified in
December, 1998, that at various times over the
course of the last several years, Mr. Ronning
confided in each of them that he was falsely
confessing to this murder in order to do his prison
time in Michigan. . . .
It was an acknowledged fact from the outset
that Mr. Ronning had a motive to confess to the
Rosansky murder. . . .
9
Of those four witnesses, Melissa Meyer was
particularly persuasive. Mr. Ronning had been her
guardian in 1983-84, and she had a close
relationship with him. She testified that Mr.
Ronning admitted to her that he had committed the
murder in Arkansas. He also told her that his goal
was to do his time in Michigan and that he had not
committed the murder of Ms. Rosansky. She also
testified that Mr. Ronning told her he had obtained
information from the secretary of his Michigan
attorney, had read some transcripts of the court
proceedings in this matter, and had attempted to
memorize the facts contained therein. She also
testified, based upon her prior relationship with
him, that Mr. Ronning is a very intelligent and a
very manipulative person.
* * *
The testimony of these four witnesses is a
direct attack on Michael Ronning's believability.
It consistently establishes that Mr. Ronning's
confession is self motivated and untrue. After
considering the testimony of these four witnesses,
their demeanor while testifying, and any motives
which may have influenced their testimony, this
Court finds that this evidence is credible and
believable.
3. Perhaps the most compelling evidence which
causes this Court to now conclude that Mr. Ronning
is a false confessor comes from Mr. Ronning
himself. In April, 1997, Detective Mullen and
others had Mr. Ronning attempt to show them where
the scene of the crime was. This was videotaped
and admitted as Exhibit 54. Although there was
evidence that Detective Mullen may have caused some
confusion by using the wrong two-track to enter the
area, eventually Mr. Ronning did come to an area
where he believes the murder occurred. He stated
on that videotape that there was a clearing where
he could turn his car around. He described where
the car would have been, where the body was placed
after he strangled her, from which direction he
would have thrown the rock, and how far the rock
would have gone "with the roll."
The area Mr. Ronning stated "may very well be
10
the place" is shown on the videotape. Although Mr.
Ronning qualified his identification of the crime
scene by saying "this could be it" and "this has to
be it, but I don't really recognize it per se," he
nonetheless was firm and definite in stating that
if the particular clearing they were in wasn't it,
it nevertheless "was a place like this." The area
where Mr. Ronning believes the murder occurred is a
flat piece of ground, a clearing next to a
two-track. There are no man-made landmarks in the
immediate vicinity.
At the hearing in December, 1998, numerous
photographs were admitted into evidence of the
scene of the crime taken in 1983. Those
photographs clearly show that Ms. Rosansky's body
was not found in a flat, open area as described by
Mr. Ronning. Rather, her body was found in a
ravine. This ravine was not just a slight
indentation in the ground. Each side rose to a
height of seven or eight feet, according to the
testimony of Trooper Zimmerman. The body was found
at the bottom of the ravine, within view of a
concrete well station. Mr. Zimmerman testified
that the ravine and well station look similar in
appearance today, compared to 1983. Indeed, Mr.
Zimmerman testified that a metal roof vent shown in
the 1983 crime scene photographs is still there.
He had no difficulty locating the area where Ms.
Rosansky's body was found.
When one compares the videotape of the area
Mr. Ronning concludes was the scene of the crime
(or as he said, "it was a place like this") to the
photographs of the scene of the crime, the
difference in topography and terrain is dramatic.
This is not a situation where Mr. Ronning's
recollection is clouded due to a lapse in time. On
the 1997 videotape, Mr. Ronning describes the crime
scene based on his recollection. When one compares
his description of the crime scene to the actual
crime scene, the only reasonable conclusion one can
draw is that Mr. Ronning didn't know where the
crime scene was because he did not commit the
crime. Indeed, Mr. Ronning was shown the cement
well station which is located at the beginning of
the ravine about 40 feet from where the body was
found. Mr. Ronning said he would have remembered
11
that well station if it had been visible from the
scene of the murder. Mr. Zimmerman testified it is
easily observable.
The trial court further rejected its prior reliance on
Detective Mullen's opinion that Ronning killed the victim,
noting that other police agencies and detectives disagreed
with Mullen that Ronning killed three young women in Michigan,
including the victim. The trial court also found it
significant that Mullen did not investigate the victim’s
murder, speak with the state police who had initially
investigated the victim's murder, read defendant's trial
transcript, or speak with witnesses from defendant's trial or
with defendant himself before reaching the conclusion that
Ronning killed Rosansky. The court concluded that “it would
be inappropriate in effect to enhance the credibility of
Michael Ronning based upon one investigating officer's
professional opinion” because apart from Ronning's statement,
“Detective Mullen's opinion that Mr. Ronning committed the
Rosansky murder is based primarily upon his professional
opinion and instinct, as opposed to any newly-discovered facts
or evidence obtained during the course of his investigation.”
The court noted that Ronning "had the ability and opportunity
over the years to obtain information from various sources
. . . about relevant facts and circumstances surrounding the
Rosansky murder . . . .” The court denied defendant's motion
12
for new trial because it "no longer believes that a different
result at a re-trial is probable."
The Court of Appeals reversed the trial court’s denial of
defendant’s motion.3 The majority held that the trial court
erred in (1) finding that Ronning’s confession lacked any
probative value in establishing defendant’s right to a new
trial, (2) failing to address the fact that Ronning passed a
polygraph examination during which he confessed to the
Rosansky murder, (3) failing to consider evidence that several
prosecution witnesses had recanted, (4) dismissing the fact
that Mullen believed Ronning had committed the crime, and (5)
failing to consider that the prosecutor may have destroyed
potentially exculpatory physical evidence. The majority
stated that although no medical experts had opined that the
cause of death was strangulation, it could not be definitively
ruled out as a cause of death. The majority remanded for a
new trial, directing that the jury was to resolve whether the
prosecutor intentionally or in bad faith authorized the
destruction of potentially exculpatory evidence.4
3
250 Mich App 110; 645 NW2d 669 (2002).
4
The issue of bad-faith destruction of evidence has been
resolved and is no longer before the Court. This Court
remanded the case to the trial court for an evidentiary
hearing concerning defendant’s allegation of bad-faith
destruction of evidence, clarifying that that issue was to be
decided by the court and not a jury. 466 Mich 883 (2002).
The circuit court filed its opinion and order on August 16,
13
The dissenting judge disagreed with the majority’s
conclusion that the trial court abused its discretion in
denying the motion for a new trial. The dissent opined that
although defendant had presented newly discovered evidence
that was not cumulative, the trial court did not abuse its
discretion in holding that the evidence would not render a
different result probable upon retrial. Although the case was
a “close call,” 250 Mich App 161, and although the trial
court’s original decision that defendant was entitled to a new
trial would not have constituted an abuse of discretion, great
deference must be accorded to the trial court’s assessment of
the credibility of witnesses. The trial court did not make a
mistake of law in its analysis of the new evidence. Although
the veracity of the testimony of three prosecution witnesses
had been questioned, four other nonrecanting witnesses had
testified regarding “how defendant had admitted in graphic
terms how he raped and killed the victim.” 250 Mich App 162.
This Court granted the prosecutor’s application for leave
to appeal, limited to the issue “whether the defendant is
entitled to a new trial on the basis that there is newly
discovered evidence in the form of a confession by another to
2002, finding that the prosecutor’s office did not engage in
the bad-faith destruction of evidence.
14
the crime of which the defendant was convicted.”5
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision to grant or
deny a motion for new trial for an abuse of discretion.
People v Lemmon, 456 Mich 625, 648 n 27; 576 NW2d 129 (1998).
A mere difference in judicial opinion does not establish an
abuse of discretion. Alken-Ziegler, Inc v Waterbury Headers
Corp, 461 Mich 219, 228; 600 NW2d 638 (1999). A trial
court’s factual findings are reviewed for clear error. MCR
2.613(C).
III. DISCUSSION
We agree with the dissenting judge in the Court of
Appeals that the trial court did not abuse its discretion in
denying defendant’s motion for a new trial on the asserted
ground of newly discovered evidence.6 For a new trial to be
granted on the basis of newly discovered evidence, a defendant
must show that: (1) “the evidence itself, not merely its
materiality, was newly discovered;” (2) “the newly discovered
evidence was not cumulative;” (3) “the party could not, using
reasonable diligence, have discovered and produced the
5
467 Mich 889 (2002).
6
Whether the dissent is correct that this case
constitutes a “close call” is something that we need not
address in light of our agreement that there was no abuse of
discretion on the part of the trial court in denying
defendant’s motion.
15
evidence at trial;” and (4) the new evidence makes a different
result probable on retrial. People v Johnson, 451 Mich 115,
118 n 6; 545 NW2d 637 (1996); MCR 6.508(D).
After considering the conflicts between Ronning’s
confessions and the facts established at trial, the trial
court concluded that Ronning was not a credible witness and
was a false confessor. A false confession (i.e., one that
does not coincide with established facts) will not warrant a
new trial, and it is within the trial court’s discretion to
determine the credibility of the confessor. People v Simon,
243 Mich 489, 494; 220 NW 678 (1928); People v Czarnecki, 241
Mich 696, 699; 217 NW 781 (1928).
Ronning’s confessions sharply deviated from the
established facts regarding the crime: (1) he stated that
Rosansky did not struggle or resist, but the evidence at trial
showed that she had defensive wounds and extensive bruising;
(2) he stated that he strangled Rosansky, but the medical
experts testified at trial that there was no evidence of
strangulation and the cause of death was brain injury caused
by blunt-force trauma to the head; (3) he stated that he hit
Rosansky once with a round rock, while the medical evidence
tended to show multiple blows with a linear, club-like object;
(4) he did not mention the tree-limb pieces placed in
Rosansky’s throat; (5) he stated that Rosansky was almost
16
completely naked, wearing only her socks, when in fact she had
been found clothed from the waist up; (6) he stated that he
“specifically remembered” not having or being able to have
intercourse with Rosansky and denied digitally penetrating her
rectum, although the medical evidence showed evidence of
forced anal penetration; and (7) he could not find the
location where the body was found, even when that location was
shown to him and despite the fact that he claimed that he left
Rosansky’s body in an area that he lived near as an adult.7
Further, it was not disputed that Ronning had an incentive to
confess, and several witnesses testified that he admitted that
he fabricated the confession. Finally, Ronning also refused
to testify regarding any details concerning Rosansky’s murder
at the evidentiary hearing, thereby casting doubt on whether
he would testify at a new trial. In light of the above
inconsistencies between Ronning’s confession and the
7
Further, as the prosecutor observed in his brief,
Nor can Ronning’s total inability to locate
the scenes be attributed to a failed memory or a
change in geography. This is so for the following
reason[] . . . Exhibit 25, the map drawn by Michael
Ronning clearly shows an area identified by Ronning
as the crime scene and site of the body. The map
places the scene and the body near the V. A.
Hospital at Fort Custer. It actually appears to be
right near the entrance to Fort Custer. The map is
wrong. The map does, however, mirror Detective
Mullen’s testimony of what he told Ronning about
where the murder took place . . . .
17
established facts, the trial court did not abuse its
discretion in deciding that Ronning was a false confessor and
that his testimony (even presuming he would testify at a new
trial) would not make a different result probable on retrial.
The Court of Appeals erred in substituting its judicial
opinion regarding Ronning’s credibility for that of the trial
court. See Alken-Ziegler, supra.
Further, the Court of Appeals erred in holding that the
trial court erred in not considering the polygraph-examination
results. Although Ronning was questioned regarding the number
of murders committed in Michigan, none of the polygraph
questions specifically mentioned Patty Rosansky. Therefore,
the results are simply irrelevant to a determination regarding
the veracity of Ronning’s confession to the Rosansky murder.
The trial court did not abuse its discretion in refusing to
consider the polygraph results.
Finally, the Court of Appeals erred in concluding that
the trial court had impermissibly rejected Detective Mullen’s
testimony. The trial court’s opinion demonstrated that the
trial court heard and considered Detective Mullen’s testimony.
The court found that Detective Mullen’s testimony was not
likely to make a different result probable on retrial because
(1) Detective Mullen was not involved in the Rosansky
investigation; (2) other police agencies and detectives who
18
were involved in the investigation disagreed with Mullen that
Ronning killed three young women in Michigan, including the
victim; and (3) Mullen did not speak with those in the state
police who initially investigated the victim's murder, did not
read defendant's trial transcript, and did not speak with
witnesses from defendant's trial or with defendant himself
before concluding that Ronning murdered Rosansky.8 The trial
court did not abuse its discretion, and the Court of Appeals
erred in merely substituting its view of the weight of
Detective Mullen’s evidence for that of the trial court.
IV. CONCLUSION
The trial court did not abuse its discretion in denying
defendant’s motion for a new trial based on newly discovered
evidence in the form of Michael Ronning’s confession.
Ronning’s confession contradicted many of the established
facts surrounding the Rosansky murder, and he told several
witnesses that his confession was a lie. It was well within
the trial court’s discretion to find Ronning’s confession
8
According to Timothy Dixon, one of those who testified
that Ronning told him that he was falsely confessing to the
Rosansky murder, Ronning also told him that Detective Mullen
was unknowingly giving Ronning information about the
circumstances and details of the murder that he was merely
stating back to investigators. See, e.g., n 7. In this
regard, it is noteworthy that Detective Mullen apparently
suspected Ronning of four murders, including that of Cheri
Edwards, but only told Ronning about three of these murders,
including Rosansky’s. Ronning testified about only the three
murders, not including that of Edwards.
19
incredible and to determine that he was a false confessor. It
was similarly within the court’s discretion to refuse to
consider irrelevant polygraph evidence that did not refer to
the Rosansky murder. Finally, the trial court did not abuse
its discretion in concluding that Detective Mullen’s
professional opinion, in light of the factors surrounding the
formation of that opinion and the above determination
regarding Ronning’s veracity, did not make a different result
probable on retrial. The Court of Appeals impermissibly
substituted its judicial opinion for that of the trial court.
Therefore, we reverse the judgment of the Court of Appeals and
reinstate the circuit court’s denial of defendant’s motion for
a new trial.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
20
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121189
THOMAS DAVID CRESS,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (concurring).
While I share the principles espoused by the dissent,
because this Court’s review is confined to the record and to
the evidence therein, I cannot conclude that the trial court
abused its discretion in refusing to grant a new trial.
Michael F. Cavanagh
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 121189
THOMAS DAVID CRESS,
Defendant-Appellee.
___________________________________
KELLY, J. (dissenting).
I respectfully dissent because the record shows a
significant possibility that defendant may be innocent.
Consequently, the Court of Appeals majority did not clearly
err when it held that the trial court abused its discretion in
denying him a new trial.
This is a case in which there was no physical evidence
that defendant committed the crime. After he was convicted,
another person confessed to having done it. Law enforcement
authorities destroyed evidence on which DNA tests could have
been performed that might have exonerated defendant. And
judges considering his appeal have disagreed about whether a
new trial should be granted.
Surely there are here facts and circumstances that
justify a new trial. The destruction of the DNA evidence is
particularly troublesome in my view. DNA evidence has become
a prominent tool in our search for the truth in the criminal
justice system. For nearly three years, Congress has been
considering the innocence protection act, which would create
procedural rules governing when law enforcement authorities
could destroy DNA evidence. The bill, written by Senator
Patrick Leahy of Vermont, has attracted bipartisan support and
seeks to prevent exactly what occurred in this case.
Unfortunately, defendant does not have the benefit of
legislation that would have prevented the destruction of the
physical evidence gathered from the crime scene. We remanded
the case to the trial court for an evidentiary hearing to
determine whether the destruction was ordered in bad faith.
In August of 2002, the court concluded that there was no
evidence of bad faith. I do not dispute this finding. But
the fact that the evidence may not have been destroyed in bad
faith makes this situation no less devastating to defendant,
if he is actually innocent. He lost the possibility of
exculpation.1 A new trial could remedy the loss. At the
1
This is not a remote possibility. On June 17, 2003, in
Macomb County, another Michigan prisoner was released from
prison after being exonerated by DNA evidence. Kenneth
Wyniemko was wrongly convicted of robbery and rape in 1994,
largely on the statements of witnesses and in the absence of
physical evidence. Here, the case against defendant was based
(continued...)
2
least, should defendant again be convicted, it would be done
with due regard for the newly discovered evidence that has
been uncovered.
Michael Ronning has confessed to the crime. He has been
convicted of other murders. Of course, he may be lying when
he maintains that he killed Patty Rosansky. But I believe
that a jury should make that determination.
As the decisions of the courts below show, reasonable
minds can differ regarding the proper course of action in this
case. However, in my judgment, everything considered, this is
an instance where judges abuse their discretion when they
refuse to grant relief. I agree with the Court of Appeals
that defendant should have a new trial. The aggregation of
facts and circumstances has created a very real possibility
that an injustice has occurred.
Marilyn Kelly
1
(...continued)
on similar evidence.
3