People v. Cress, Docket No. 225855.
Citation | 645 N.W.2d 669,250 Mich. App. 110 |
Decision Date | 31 May 2002 |
Docket Number | Docket No. 225855. |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas David CRESS, Defendant-Appellant. |
Court | Court 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.
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.
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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