681 S.E.2d 81
This is an appeal by Dana December Smith (hereinafter Mr. Smith) from an order of the Circuit Court of Kanawha County that denied his petition for a writ of habeas corpus. Mr. Smith filed the habeas corpus petition seeking a new trial from his two convictions for felony murder. In this appeal, Mr. Smith argues that the circuit court erred in finding that he was not entitled to a new trial based upon newly discovered evidence, and in considering an unauthenticated letter. After a careful review of the briefs and the record submitted on appeal, and having listened to the oral arguments of the parties, we affirm.
The State called two witnesses, Cathy Bragg and Ernest Jarrell, who
lived a few houses away from the home of the murder victims. Both witnesses testified that
on September 7th, they saw a man walking in the area wearing camouflage pants, military
boots, (See footnote 10) and a military belt that had a canteen attached to it, along with a sheath that
contained a knife. Neither witness was able to identify the man as being Mr. Smith.
The State introduced a videotaped deposition of Dora Back, a neighbor whose house was right next door to the victims' house. (See footnote 11) Ms. Back testified that she had talked with the victims during the course of the day on September 7th. Ms. Back indicated that when she left her home at 5:00 p.m. to visit one of her daughters, both victims were still alive. Further, Ms. Back testified that when she left home, the victims' white Ford Taurus station wagon was in the driveway. (See footnote 12) The State also called Rachel Britton, one of Ms. Back's daughters. Ms. Britton, who lived with her mother, stated that she came home at 6:00 p.m. on September 7th and noticed that the victims' car was gone. Dr. Irvin M. Sopher, the State Chief Medical Examiner, testified that it was possible that the victims died on September 7th, between 5:00 p.m. and 6:00 p.m.
At about 6:45 p.m., on September 7th, Mr. Smith drove to the home of
a friend, Anita McKinney. Ms. McKinney testified that Mr. Smith was driving a muddy,
light-colored car. According to Ms. McKinney, Mr Smith did not get out of the car, and they
talked for a few minutes before he left.
Between 7:30 p.m. and 8:00 p.m., on September 7th, Mr. Smith drove to the home of another friend, Jeanette Laws. Ms. Laws testified that Mr. Smith drove to her house in a white Ford Taurus station wagon. Mr. Smith told Ms. Laws that the car belonged to his stepfather. According to Ms. Laws, Mr. Smith was wearing a T-shirt with a teddy bear emblem on it. Ms. Laws stated that, after Mr. Smith entered her home, he took off the teddy bear T-shirt and dropped it on the floor. (See footnote 13) According to Ms. Laws, the teddy bear T-shirt had blood on it. Ms. Laws testified further that Mr. Smith appeared nervous and could not sit still. Mr. Smith left Ms. Laws' home after about twenty minutes. Mr. Smith left the teddy bear T-shirt at Ms. Laws' home. Patricia Lee, the daughter of Ms. McClain and sister of Ms. Castaneda, testified that the teddy bear T-shirt belonged to Ms. Castaneda. Ms. Lee's brother, Robert McClain, also testified that the teddy bear T-shirt belonged to Ms. Castaneda. L.C. Harrison, of the Federal Bureau of Investigation, testified that DNA testing (See footnote 14) was performed on the bloodstains found on the teddy bear T-shirt and blood samples from the victims and Mr. Smith. Ms. Harrison indicated that DNA from the bloodstains on the teddy bear T-shirt matched the DNA profiles of Mr. Smith and Ms. Castaneda.
After Mr. Smith left the home of Ms. Laws, he went back to the home of Ms. McKinney. Ms. McKinney testified that Mr. Smith entered her home on his second visit. While at the home, Ms. McKinney also treated the cuts that were on Mr. Smith's body. Ms. McKinney stated that Mr. Smith informed her that he had received the cuts after he fell into a briar patch. Mr. Smith also told Ms. McKinney that the car he was driving belonged to his mother. Ms. McKinney testified that she allowed Mr. Smith to spend the night at her home. Mr. Smith left the home at about 10:00 a.m. on Sunday, September 8th. Ms. McKinney testified further that Mr. Smith returned to her house later in the evening of September 8th. During that visit, Mr. Smith gave Ms. McKinney's daughter a Pizza Hut noid doll. Mr. Smith left the home after several hours. (See footnote 15) Detective J.W. Johnson, of the Kanawha County Sheriff's Department, testified that the Pizza Hut noid doll was later determined to be missing from the victims' car. (See footnote 16)
On Sunday, September 8th, at around 11:30 a.m., Mr. Smith drove to the home of Denise Morgan. Ms. Morgan testified that Mr. Smith was driving a white Ford Taurus station wagon. Ms. Morgan stated that Mr. Smith gave her a VCR, CB radio and a Walkman radio headset and asked her to keep them for him. Mr. Smith also told Ms. Morgan that he had stolen the car he was driving because someone had stolen the car he had taken from Mary Walls. (See footnote 17) Mr. Smith told Ms. Morgan that he was going to ditch the car on the outskirts of Logan. Detective R.J. Flint, of the Kanawha County Sheriff's Department, testified that the CB radio came from the victims' car. Detective Flint also testified that the serial number on the VCR matched that of a VCR that was rented by Ms. Castaneda from a local rent-to-own store. Paula Sydenstricker, the daughter of Ms. McClain and sister of Ms. Castaneda, identified the Walkman radio headset as belonging to Ms. Castaneda. (See footnote 18)
At around noon on September 8th, Mr. Smith returned to the Walls'
home, where he had been temporarily living for several months. Sam Walls testified that
Mr. Smith was not driving when he returned. Mr. Walls indicated that Mr. Smith stated that
he had returned the car of Mr. Walls' mother, Mary Walls, but that someone must have stolen
it from the driveway. Mr. Walls testified that, on September 9th, Ms. Walls asked Mr. Smith
to cut a roast. Mr. Smith asked Mr. Walls to cut the roast, and suggested that Mr. Walls use
a hunting knife that Mr. Walls used for cutting deer. Mr. Walls retrieved the hunting knife
and observed that it did not have the deer hairs that he had previously left on it. (See footnote 19) Mr. Walls
testified that the hunting knife had something that looked like blood and sand on it. (See footnote 20) There was also testimony by Mr. Walls that he owned an aluminum canteen, and that he once
owned a plastic canteen, but that he lost it in some woods. Dr. Sopher testified that the stab wounds inflicted on the victims were consistent with Mr. Walls' hunting knife. Detective Johnson testified that during his investigation he discovered a canteen and cover on the floor of the victims' home. Ms. Lee and Mr. McClain testified that neither Ms. McClain nor Ms. Castaneda owned a canteen.
At the close of the State's evidence, Mr. Smith called five witnesses. (See footnote 21) The first witness called by Mr. Smith was Betty Coleman. Ms. Coleman's testimony was simply that she had previously purchased T-shirts from Ms. Castaneda at a bar called the Route 60 Lounge in St. Albans. (See footnote 22) The second witness called by the defense was John Gilbert. Mr. Gilbert testified that he was a neighbor of the victims. According to Mr. Gilbert, on the night of September 7th, between 11:00 p.m. and 1:00 a.m., he saw a car parked near the victims' residence. Mr. Gilbert was unable to identify the car or who was in the car. The third witness called by defense counsel was Lorena Lambert. Ms. Lambert was the owner of the Route 60 Lounge. Ms. Lambert testified that Ms. Castaneda sold T-shirts at the bar. The fourth witness called by the defense was Molly Walker. Ms. Walker testified that she was an employee at the Route 60 Lounge, and that she had bought T-shirts from Ms. Castaneda. The fifth witness called by defense counsel was Thomas Fisher. Mr. Fisher testified that he was a friend of Ms. Castaneda. Mr. Fisher stated that Ms. Castaneda informed him that her husband once kidnaped her and took her to Mexico to engage in prostitution. (See footnote 23) According to Mr. Fisher, during the summer of 1991, Ms. Castaneda informed him that she felt that she was being followed; but, did not know who was following her. (See footnote 24)
After the case was submitted to the jury, the jury returned a verdict finding Mr. Smith guilty of two counts of murder during the commission of aggravated robbery, i.e., felony murder. (See footnote 25) The jury did not recommend mercy. On January 28, 1993, the trial court sentenced Mr. Smith to two terms of life imprisonment without the possibility of parole. Mr. Smith filed a petition for appeal with this Court, which was refused.
In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three- prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review.
Syl. pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). With these standards
in mind, we now consider the issues presented in this appeal.
Pursuant to Rule 8(b) of the Rules Governing Post-Conviction Habeas
Corpus Proceedings in West Virginia, letters, documents, exhibits, and affidavits may be
submitted and considered as part of the record. It is also provided in Rule 8(c) that [t]he
court may require the authentication of any material under [Rule 8(b)]. (Emphasis added).
The use of the word may in Rule 8(c) connotes discretion. See Rosen v. Rosen, 222 W. Va.
402, 664 S.E.2d 743, 750 (2008) (An elementary principle of statutory construction is that
the word 'may' is inherently permissive in nature and connotes discretion.); In re Cesar L.,
221 W. Va. 249, 261, 654 S.E.2d 373, 385 (2007) ([T]he word 'may' generally is afforded
a permissive connotation, which renders the referenced act discretionary, rather than
mandatory, in nature.); State v. Hedrick, 204 W. Va. 547, 552, 514 S.E.2d 397, 402 (1999)
(The word 'may' generally signifies permission and connotes discretion.). Therefore, and
we hold, under Rule 8(c) of the Rules Governing Post-Conviction Habeas Corpus
Proceedings in West Virginia, a letter, document, exhibit, or affidavit may be admitted into
evidence without being authenticated, unless authentication is required by the trial court.
We have previously noted, and now hold, that a trial judge's ruling on authenticity will not be disturbed on appeal unless there has been an abuse of discretion. State v. Jenkins, 195 W. Va. 620, 625, 466 S.E.2d 471, 476 (1995). Under the facts of this case, we do not believe the circuit court abused its discretion, if it in fact considered Mr. Sells' letter.
A hearing pertaining to Mr. Sells' letter was held on February 17, 2006.
At the hearing, the State informed the trial court that, on February 6th, Deputy Poore
telephoned the State with information that Mr. Sells had recanted his confession. The State
asked Deputy Poore to have the recantation placed in writing. Upon receipt of Mr. Sells'
recantation letter, the State provided Mr. Smith and the court with a copy of the letter. The
State asked the trial court to consider the letter as evidence. Counsel for Mr. Smith provided
a lengthy objection that essentially attacked the veracity of the substance of the letter. Mr.
Smith personally interjected an objection to the letter on the grounds of authenticity. Defense
counsel thereafter reiterated the objection on the grounds of authenticity. The trial court
ruled that it would take the matter under advisement. The State thereafter informed the trial
court that if the Court rules, if you will not consider this statement, after a chance to review
everything, we would ask leave of the Court to be able to take a deposition for [sic] Mr.
Sells[.] Mr. Smith objected to having Mr. Sells deposed again. The trial court indicated
that it would take all the issues under advisement and render a ruling within the next two
weeks or so[.] The trial court entered an order on April 10, 2006, granting the State's
motion to depose Mr. Sells. The State's brief indicates that the deposition never took place
because Mr. Sells refused to cooperate with the State.
In view of the record submitted in this case, we are unable to definitively conclude that the trial court considered Mr. Sells' letter. Insofar as the State informed the trial court that it wanted to depose Mr. Sells only if the court refused to consider the letter, we must presume that the court did not consider the letter because it authorized the State to depose Mr. Sells. Mr. Smith points out that the trial court's order denying habeas relief referred to recantations by Mr. Sells. The only reference to Mr. Sells' recantations contained in the trial court's detailed and lengthy order is the following: Tommy Lynn Sells has recanted his 'confession' on more than one occasion. We cannot attribute this passage as conclusively showing that the trial court considered Mr. Sells' recantation letter, because there was evidence by Sergeant Allen and Ms. Fanning that indicated Mr. Sells denied committing the murders. In addition, during the February 17th hearing, there was a statement made to the trial court that Mr. Sells recanted his confession in a newspaper called Del Rio Herald.
Assuming, for the sake of argument, that the trial court considered the recantation letter over an authentication objection, we do not find that such consideration was an abuse of discretion. During the February 17th hearing and in the brief submitted on appeal, Mr. Smith focused upon the veracity of the substantive statements in the recantation letter. However, this Court has held that establishing authenticity does not require a showing of the truth of the assertions contained in a writing[.] State v. Jenkins, 195 W. Va. 620, 624, 466 S.E.2d 471, 475 (1995) (internal quotations and citation omitted). The issue of [w]hether or not the evidence is credible is for the trier of fact to determine. Jenkins, 195 W. Va. at 626, 466 S.E.2d at 477. Mr. Smith has not shown, either during the February 17th hearing or in this appeal, that the letter is not what had been claimed by the State. The State informed the trial court, during the February 17th hearing, that Deputy Poore was asked to have Mr. Sells' recantation reduced to writing and forwarded to the State. The State tendered to the trial court the recantation letter it requested from Deputy Poore. For the limited purpose of authenticity, Mr. Smith has failed to show that the letter is not the document requested by the State and forwarded by Deputy Poore. Had Mr. Smith presented evidence that would tend to prove that the document in question is a forgery or otherwise did not come from [Deputy Poore], [Mr. Smith] would have a valid objection challenging its authenticity. 2 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 9-1(A) (4th ed. 2000).
The appellate court in Blango v. Thornburgh, 942 F.2d 1487 (10th Cir. 1991), confronted an authenticity issue similar to that presented by Mr. Smith. In Blango, the defendant was convicted of a crime by the District of Columbia, (See footnote 39) but was ordered to serve his sentence in a federal prison pursuant to a memorandum of understanding between the Federal Bureau of Prisons and the District of Columbia Board of Corrections. The defendant filed a habeas corpus petition in a federal district court arguing that his detention in a federal prison was unlawful. The district court denied relief. The defendant appealed.
One of the issues raised by the defendant in his appeal was that the district court improperly considered a copy of the memorandum of understanding between the Federal Bureau of Prisons and the District of Columbia Board of Corrections because it was not authenticated. The appellate court rejected the argument as follows:
We are guided by Rule 7(d) of the Rules Governing
Section 2254 Cases in the United States District Courts, which
provides: The court may require the authentication of any
material under subdivision[s] (b) and (c). [Emphasis in
original.] We deem the [memorandum of understanding] in
question to be part of an expansion of the trial court record. . . .
As such, authentication of the exhibit would be discretionary
under Rule 7(d). . . . While petitioner . . . raised the issue of
whether the document had been authenticated under the Federal
Rules of Evidence, [he] did not challenge the truth of the
government's allegation that the document . . . was an accurate
copy of the memorandum of understanding[.]
Thus, petitioner has not come forward, either in . . . the district court or in his brief on appeal, with any indication that the document . . . was not a reliable copy of the memorandum of understanding[.]
Blango, 942 F.2d at 1493. (See footnote 40)
Based upon the foregoing, to the extent that the trial court may have considered Mr. Sells' recantation letter over Mr. Smith's authentication objection, there was no abuse of discretion in so doing.
No one would doubt that a confession by another person to the crime, if discovered after trial, could be a ground for a new trial on the basis of newly discovered evidence. A confession by another person, however, does not invariably require a new trial; the integrity of the confession is for the trial court.
State v. King, 173 W. Va. 164, 165-66, 313 S.E.2d 440, 442 (1984). See also Fast v. State, 221 So. 2d 203, 205 (Fla. Dist. Ct. App. 1969) (A trial court is not bound to accept a confessor's confession[.]); People v. Cress, 664 N.W.2d 174, 182 (Mich. 2003) ([I]t is within the trial court's discretion to determine the credibility of the confessor.). The factors that must be satisfied in order to obtain a new trial based upon newly discovered evidence are as follows:
A new trial will not be granted on the ground of newly- discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his [or her] affidavit that [the defendant] was diligent in ascertaining and securing [the] evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. Syl. pt. 1, Halstead v. Horton, 38 W. Va. 727, 18 S.E. 953 (1894). Syllabus, State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979).
Syl. pt. 3, In re Renewed Investigation of State Police Crime Lab., Serology Div., 219 W. Va.
408, 633 S.E.2d 762 (2006). If any of the foregoing five essential requirements is not
satisfied or complied with, a new trial will not be granted on the ground of newly discovered
evidence. State v. Crouch, 191 W. Va. 272, 276, 445 S.E.2d 213, 217 (1994). See also State v. Helmick, 201 W. Va. 163, 167-68, 495 S.E.2d 262, 266-67 (1997).
In the instant case, the trial court denied Mr. Smith a new trial because of his failure to satisfy the fourth prong of the test. It has been noted that
[n]ewly discovered evidence satisfies the [fourth] prong of the
. . . test if it weakens the case against [the defendant] so as to
give rise to a reasonable doubt as to his culpability. If the
defendant is seeking to vacate a sentence, the [fourth] prong
requires that the newly discovered evidence would probably
yield a less severe sentence [or acquittal].
Riechmann v. State, 966 So. 2d 298, 316 (Fla. 2007) (internal quotations and citations omitted). The trial court specifically found that, [b]ased on the implausibility of Tommy Lynn Sells' confession, as well as the lack of integrity of the confession, this Court does not believe there is evidence . . . that would produce an opposite result at a second trial on the merits.
Here, Mr. Smith argues that Mr. Sells' confession would bring about a different result at a new trial because the details that Mr. Sells knew about the victims and the crime scene are credible. Mr. Smith listed the following as details from Mr. Sells' confession: (1) Sells committed a double homicide (2) in Kanawha County, West Virginia, (3) in September 1991, (4) the victims were a mother and daughter, (5) the victims resided on Cabin Creek near the Boone County line, (6) the daughter's name was Pamela, (7) Sells met Pamela at the Route 60 Lounge, (8) the elderly mother was in poor health, (9) the victims owned a white Ford Taurus automobile, (10) Sells stayed in the victims' upstairs attic for two or three days prior to the murders, (11) Sells traded the victims' television set for narcotics, (See footnote 41) (12) during an argument over the sale of the television, Sells repeatedly stabbed the victims, (13) the stabbing was committed in the downstairs area of the residence, (14) Sells removed the victims' pants to make the attack look sexually motivated, and (15) Sells left the victims' automobile behind and hitchhiked out of the area. (See footnote 42)
The State argues that the so-called details that Mr. Sells knew concerning the crime could have been obtained from a variety of public sources, such as newspaper articles. More importantly, however, the State argues that the lack of credibility of Mr. Sells' confession rested upon four major inaccuracies in his testimony about the crimes.
First, Mr. Sells described the attic of the victims' home as having a bedroom and bathroom. However, the attic did not have a bathroom and only contained a mattress. Further, it was pointed out during the habeas corpus hearing that a trial exhibit was incorrectly marked as being a photo of the upstairs bedroom and bathroom when, in fact, the photo depicted a downstairs bedroom and bathroom. Thus, the State contends that Mr. Sells' description of the attic was based upon the mislabeled trial exhibit, not from having stayed in the attic.
Second, Mr. Sells testified that the victims' home had a brown couch with a black afghan on it. However, the victims did not have an afghan. The State points out that an exhibit was introduced during the trial that had a brown couch and black afghan, but the exhibit was a photograph of a residence that was not that of the victims. Thus, the State argues that Mr. Sells' description of the couch and afghan was based upon a trial exhibit that depicted the residence of someone else.
Third, Mr. Sells testified that he stole a CB radio from the victims' home. However, the State points out that, during the trial, it was established that the CB radio was stolen by Mr. Smith and given to Ms. Morgan. No evidence was ever introduced to show that the victims had two CB radios.
Fourth, Mr. Sells testified that the victims only had one dog, that he did not harm the dog, and that he would not harm animals. However, during the habeas corpus hearing, the evidence showed that the victims had two dogs, a Chinese Pug and a Chihuahua. The Chinese Pug was found alive and in a cage inside the home. The Chihuahua was found dead and hidden in a laundry room of the home. (See footnote 43)
This Court agrees with the trial court, and the State, that Mr. Sells' confession lacks credibility. See United States v. Steel, 458 F.2d 1164, 1166 (10th Cir. 1972) (A hearing was held by the trial judge; he found Culp's confession lacking in credibility. We find no abuse of discretion in denial of appellants' motion for a new trial.); Love v. State, 799 P.2d 1343, 1344 (Alaska Ct. App. 1990) (affirming trial court ruling that confessor was 'probably the most non-believable witness I've ever seen in a court'). Mr. Sells' confession clearly shows that he provided blatant incorrect information about the crime scene. The fact that two of Mr. Sells' incorrect statements can be traced to improperly identified trial exhibits indicates that it is very plausible that someone supplied Mr. Sells with information about the murders. The logical conclusion to be reached from all of the inaccuracies in Mr. Sells' confession is that his numerous recantations were in fact true, i.e., he did not murder Ms. McClain and Ms. Castaneda. (See footnote 44)
The facts of this case have striking similarities to the decision in People v. Cress, 664 N.W.2d 174 (Mich. 2003). The defendant in Cress, Thomas Cress, was convicted by a Michigan jury of felony murder in 1985. The victim was named Patty Rosansky. In 1997, Mr. Cress sought a new trial based upon newly discovered evidence.
The newly discovered evidence was a confession by Michael Ronning, an inmate at an Arkansas prison. Mr. Ronning had initially confessed to killing three people in Michigan, but not Ms. Rosansky. While the police were administering a polygraph test to Mr. Ronning, concerning the three murders, he mentioned that he had also killed Ms. Rosansky. Mr. Ronning provided the following detailed information about the murder of Ms. Rosansky:
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.
Cress, 664 N.W.2d at 177.
As a result of Mr. Ronning's confession, the trial court initially granted Mr. Cress a new trial. However, the State asked the trial court to reconsider its ruling in light of new evidence establishing that Mr. Ronning had told others that he falsely confessed to Ms. Rosansky's murder. The trial court took evidence on the matter and subsequently vacated its new trial order and entered an order denying Mr. Cress a new trial. One of the grounds given by the trial court for denying Mr. Cress a new trial was set out as follows:
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, [the police]
had Mr. Ronning attempt to show them where the scene of the
crime was. . . . [E]ventually Mr. Ronning did come to an area
where he believes the murder occurred. He stated on th[e]
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 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.
Cress, 664 N.W.2d at 180.
Mr. Cress appealed the trial court's order denying a new trial to the Michigan Court of Appeals. The Court of Appeals reversed the trial court's order and granted Mr. Cress a new trial. The State appealed that decision to the Michigan Supreme Court. The Supreme Court agreed with the trial court's findings as follows:
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. . . .
Ronning's confessions sharply deviated from the established facts regarding the crime. . . . [H]e 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. Further, it was not disputed that Ronning had an incentive to confess, and several witnesses testified that he admitted that he fabricated the confession. . . . In light of the . . . inconsistencies between Ronning's confession and the 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.
Cress, 664 N.W.2d at 182-83 (internal citations omitted). The Michigan Supreme Court
decision in Cress determined that the strength of the State's case against Mr. Cress would not
be impacted by the implausible confession of Mr. Ronning. See State v. Noble, 591 S.W.2d
201, 207 (Mo. Ct. App. 1979) (The strength of the state's evidence at the trial is an
In the instant case, the State argues that because of the strength of the evidence against Mr. Smith, Mr. Sells' implausible confession would not bring about a different result at a new trial. We agree. See State v. King, 173 W. Va. 164, 313 S.E.2d 440 (1984) (denying new trial based upon newly discovered confession); State v. Sparks, 171 W. Va. 320, 298 S.E.2d 857 (1982) (same).
The evidence introduced against Mr. Smith during his trial established beyond a reasonable doubt that he killed the victims. The evidence included an admission by Mr. Smith that he stole the victims' car. The State introduced evidence to establish that the car was started with a key and was not hot-wired. There was also testimony that the victims kept the keys to the car inside the house, on a nail that was in the kitchen door. Evidence was introduced to establish that Mr. Smith stole a VCR, CB radio and a Walkman radio headset that belonged to the victims. There was testimony to show that the VCR and Walkman radio headset were kept inside the home. In addition, the evidence showed that Mr. Smith was wearing a T-shirt that belonged to Ms. Castaneda. Based upon DNA testing,
it was established that blood on the T-shirt matched Ms. Castaneda's DNA profile. (See footnote 45)
The record in this case does not disclose the motivation for Mr. Sells' confession to the murders in this case. The State suggests that Mr. Sells is using this case to delay his execution by the state of Texas. (See footnote 46) This may or may not be Mr. Sells' motivation. However, it is not necessary for this Court to know Mr. Sells' motivation in confessing to the murders in this case. The only legally relevant question for this Court is whether or not the trial court had a basis for concluding that because of the implausibility of Tommy Lynn Sells' confession, as well as the lack of integrity of the confession, . . . there is [no] evidence . . . that would produce an opposite result at a second trial on the merits. We find no abuse of discretion in the trial court's ruling.
In summary, the evidence produced at the [omnibus] hearing amply supports the trial court's findings to the effect that [Mr. Sells'] confession was false . . . and that even if presented at [a new] trial, it would 'undoubtedly' not have changed the result. People v. Scheidt, 528 P.2d 232, 234 (Colo. 1974). See also United States v. Kamel, 965 F.2d 484, 494 (7th Cir. 1992) ([I]t is highly improbable that, in the face of the substantial evidence of [defendant's] guilt, the purported confessions would be believed by a second jury.); Cody v. State, 286 S.E.2d 321, 323 (Ga. Ct. App. 1981) (The trial court did not err in determining as a matter of law that the [confession] offered in support of the motion for new trial was so inherently incredible that it was unlikely to produce a different verdict upon retrial.).