People v. Cress, Docket No. 225855.

Citation645 N.W.2d 669,250 Mich. App. 110
Decision Date31 May 2002
Docket NumberDocket No. 225855.
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas David CRESS, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John A. Hallacy, Prosecuting Attorney, and Nancy Mullett, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by David A. Moran), for the defendant on appeal.

Bridget McCormack, Ann Arbor, and Andrea Lyon, Chicago, IL, for amici curiae National Association of Criminal Defense Lawyers and Criminal Defense Attorneys of Michigan.

Before: BANDSTRA, C.J., and FITZGERALD and GAGE, JJ. GAGE, Judge.

Defendant, who in 1985 was convicted of first-degree felony murder, M.C.L. § 750.316, appeals by leave granted from the trial court's order denying his motion for a new trial. We reverse and remand.

I

The victim in this case is Patricia Rosansky, a seventeen-year-old girl who was murdered in early 1983. To summarize the voluminous record generated during defendant's twenty-six-day jury trial, we reprint the following portion of this Court's 1988 opinion affirming defendant's conviction for Rosansky's murder:

The body of the victim ... was found in a wooded ravine, covered with brush on April 6, 1983, in Bedford Township near Battle Creek. She was identified by dental records. Two pieces of tree limb were found located in her throat, which testimony indicated would have been forcibly put there to obstruct her voice. An autopsy and post-mortem examination revealed that the cause of death was a brain injury due to a blow or blows to the head with a club-like object. There were also defensive injuries on the back of her hands. Several bruises also existed on the back of her legs, buttocks and neck. The body was discovered naked from the waist down with panties located at the ankles. There was evidence of forced anal intercourse.

[The victim] had been missing since February 3, 1983. She had left for school that morning at and was last seen by a school friend. Defendant presented one witness who testified that she had seen [the victim] a few days after she was missing when [the victim] and another person drove past her house in a pickup truck. Another witness testified that she had seen [the victim] get into a pickup truck the morning of February 3. The witness also stated that she saw a man other than defendant get out of the same truck at a prior time.
Several witnesses testified that defendant had made statements to them concerning the sexual assault and death of a girl. Defendant lived near [the victim] and had spoken to her. 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 also heard defendant say that he had killed [the victim].
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 where Patty's body lay (and was later found).
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 testified that defendant had told him that defendant had picked [the victim] up and that they had smoked marijuana. he raped her, killed her and dumped the body in a wooded area. Moore was a convicted felon and at the time of confessing his own crimes, he told the police about defendant's statements.
Defendant allegedly asked several people whether they had ever had sex with a corpse.
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 $5,000 reward.
Officers Nick Pestum and Marion Bagent were allowed to testify as to 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, and when she was at the house repairing the steps, had heard defendant say, "I cannot believe that I got so hard up I had to kill the bitch for a piece of ass."

Defendant took the stand in his own defense and denied that he killed [the victim] or that he had told anyone that he did so. He stated that he was delivering papers on February 3, 1983. He presented an alibi witness, Doug Moore, who testified that on February 3, 1983, he and defendant were delivering papers. Defendant did admit to dumping trash illegally at the site where the body was found.

After closing arguments by both counsel, the court instructed the jury on first-degree felony murder, with the predicate felony being first-degree criminal sexual conduct, second-degree murder and voluntary manslaughter. The jury returned a verdict of guilty of first-degree felony murder. [People v. Cress, unpublished opinion per curiam of the Court of Appeals, issued February 4, 1988 (Docket No. 86748).]

This Court rejected defendant's claims on appeal that the prosecutor improperly introduced prior consistent witness statements, that the trial court erred in failing to order a corporeal lineup before one witness' in-court identification of him, and that the court improperly admitted photographs of the victim's body. The Supreme Court subsequently denied defendant's application for leave to appeal this Court's decision. People v. Cress, 431 Mich. 856 (1988).

In 1997, defendant filed a motion for a new trial on the basis of newly discovered evidence. Defendant argued that the following three grounds entitled him to a new trial: (1) his trial counsel rendered ineffective assistance by failing to introduce at trial and losing an audiotape recording of a telephone conversation in which prosecution witness Walter Moore allegedly admitted that he and other prosecution witnesses set up defendant by testifying that he acknowledged committing the victim's murder, (2) prosecution witnesses Walter Moore, Candy Moore,1 and Cindy Leslie had recanted their trial testimony, and (3) Michael Ronning recently admitted murdering the victim.

Battle Creek Police Detective Dennis Mullen ascertained Ronning's potential involvement in the victim's murder while investigating the August 1982 murder of twenty-year-old Margaret Hume. Hume had been killed inside her Battle Creek apartment. In 1986, the Arkansas State Police apprised Mullen that Ronning, whom they had arrested for an Arkansas murder, had lived in the same Battle Creek apartment complex in which Hume resided at the time of her murder. Mullen's investigation of Ronning and his travels led Mullen to form the opinion that Ronning likely had committed murders of numerous young women in Arkansas, California, Michigan, and Texas. Mullen recounted that by 1991 he had concluded with certainty that Ronning murdered Hume, and believed that a high degree of probability existed that Ronning also murdered several other young women, including the victim, in and around Calhoun County during the early 1980s.

Mullen initially visited Ronning in an Arkansas prison in 1987 to seek information regarding Hume's murder, but Ronning refused to cooperate. Mullen returned to Arkansas in early 1992 to inquire whether Ronning had any interest in confessing to the murders he had committed in exchange for being able to serve a life sentence of imprisonment in Michigan where members of Ronning's family resided. During the 1992 visit, Mullen advised Ronning that someone was in prison for one of the Battle Creek area murders that Mullen believed Ronning committed. Mullen also mentioned to Ronning his opinion that Ronning had committed a third murder in the area.

In late summer 1996, the Governors of Michigan and Arkansas entered into an executive agreement that Ronning would be transferred to the Michigan Department of Corrections to serve life without parole provided that Ronning offered "Mirandized confessions" of the details of all his Michigan murders, pleaded guilty of these murders, and waived appellate review of his convictions.2 After arriving in Michigan in the fall of 1996, Ronning took a polygraph examination. Ronning responded affirmatively when questioned whether he had committed three homicides in Michigan, and the polygraph examiner determined that Ronning had responded truthfully. In the spring of 1997, Ronning made three "Mirandized", videotaped confessions of committing the victim's murder that provided varying levels of detail regarding the crime. Ronning also was videotaped during two unsuccessful attempts to locate the exact location where the police discovered the victim's body. Ronning later signed an affidavit attesting that he alone had murdered the victim.

On November 5, 1997, the trial court held an evidentiary hearing regarding defendant's motion for a new trial. In December 1997, the trial court granted defendant's request for a new trial. The trial court's opinion did not rely on the missing audiotape recording; the court did not consider the tape as newly discovered evidence but instead found that the tape could have been discovered and produced at the time of defendant's trial. With respect to recantation, the court found evidence that could impeach the testimony of several of the prosecutor's trial witnesses, but ultimately was "not convinced...

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6 cases
  • Cress v. Palmer
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 5 Abril 2007
    ...the matter and taking more evidence. The Michigan Court of Appeals then reversed this denial of a new trial. People v. Cress, 250 Mich.App. 110, 645 N.W.2d 669 (2002). Finally, the Michigan Supreme Court reversed the Court of Appeals, after remanding for a hearing on the issue of whether th......
  • People v. Reed
    • United States
    • Court of Appeal of Michigan — District of US
    • 2 Septiembre 2021
    ... ... defendant. See People v Cress , 250 Mich.App. 110, ... 157-158; 645 N.W.2d 669 (2002), rev'd on other grounds ... 468 ... of the Court of Appeals, entered July 23, 2020 (Docket No ... 353140) (granting leave to appeal - one judge dissenting - ... "limited to the ... ...
  • King v. Winn
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 22 Abril 2020
    ...of a party is not produced at trial, the opposing party is entitled to an adverse inference instruction." People v. Cress, 250 Mich. App. 110, 157 n.27; 645 N.W.2d 669 (2002), rev'd on other grounds 468 Mich. 678 (2003). An adverse inference instruction allows the jury to infer that the evi......
  • People v. Wilson
    • United States
    • Court of Appeal of Michigan — District of US
    • 10 Noviembre 2022
    ... ... People v Stafford, 434 Mich ... 125, 134 n 4; 450 N.W.2d 559 (1990); People v Cress, ... 250 Mich.App. 110, 149; 645 N.W.2d 669 (2002), rev'd on ... other grounds 468 ... the Court of Appeals, issued September 17, 2019 (Docket No ... 346398), a case upon which I sat. The analysis in ... Borowka clearly supported ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Evidence destroyed, innocence lost: the preservation of biological evidence under innocence protection statutes.
    • United States
    • American Criminal Law Review Vol. 42 No. 4, September 2005
    • 22 Septiembre 2005
    ...for evidence destruction unilaterally decided to preserve the rape kit that was later used to exonerate Kevin Byrd); People v. Cress, 645 N.W.2d 669 (Mich. Ct. App. 2002) (stating the prosecutor signed a "routine" evidence destruction order authorizing the police department evidence custodi......
  • Reforming the law on show-up identifications.
    • United States
    • Journal of Criminal Law and Criminology Vol. 100 No. 2, March 2010
    • 22 Marzo 2010
    ...to Eyewitnesses Distorts Their Reports of the Witnessing Experience, 83 J. APPLIED PSYCHOL. 360 (1998)). (17) See, e.g., People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002); Cynthia E. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence Under Innocence ......

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