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