People v. Cress

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