Order Michigan Supreme Court
Lansing, Michigan
October 1, 2010 Marilyn Kelly,
Chief Justice
140934 Michael F. Cavanagh
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
PEOPLE OF THE STATE OF MICHIGAN, Alton Thomas Davis,
Plaintiff-Appellee, Justices
v SC: 140934
COA: 286179
Branch CC: 07-048754-FC
RICHARD ALLEN FRYE,
Defendant-Appellant.
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On order of the Court, the application for leave to appeal the December 22, 2009
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
Defendant was convicted of sexually abusing his daughter and three step-
daughters and sentenced to life in prison. I would grant leave to determine whether the
undisputed error in this case was harmless.
In People v Peterson, 450 Mich 349, 352 (1995), this Court held that “an expert
may not vouch for the veracity of a victim.” Yet, the trial court allowed two expert
witnesses to testify that the alleged sexual abuse in this case had occurred and thus that
the victims were telling the truth in their allegations. As the Court of Appeals asserted,
“[t]he law in this regard is so clear, and the error here so apparent, that we find it
remarkable that the prosecutor offered this testimony, that defense counsel failed to
object and that the trial court did not, sua sponte, prevent its introduction.” People v
Frye, unpublished opinion per curiam of the Court of Appeals issued December 22, 2009
(Docket No. 286179)
Therefore, the only question before this Court is whether the trial court’s error was
harmless. I would grant only so that we can more carefully make such an assessment in
light of the following: (a) that the oldest victim, CL, who reported the abuse, had made
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two prior unsubstantiated allegations of abuse against defendant; (b) that the three
younger victims initially denied that any sexual abuse had occurred when questioned by
their mother and the police; (c) that CL has a lengthy history of mental health problems,
lying, and “acting out”; (d) that CL voluntarily continued weekend visits to defendant’s
house during the period of the alleged abuse; (e) that CL claimed that she continued the
visits to protect her sisters, but then allegedly observed ongoing abuse for years without
reporting it; (f) that the youngest girl testified that she was “told about” the abuse by CL
and her mother; and (g) that the youngest girl now testifies that she was never abused at
the same time as the other girls, which directly contradicts other allegations of group
abuse.
To be sure, there is also considerable evidence tending to corroborate the victims’
allegations, in particular physical evidence found in defendant’s home. The question,
thus, is whether, absent the two experts’ improper corroborative testimony, the evidence
summarized above, by undermining the victims’ credibility, would likely have affected
the jury’s decision to convict defendant. I would grant leave so that we can hear further
from the parties.
KELLY, C.J., and CAVANAGH, J., join the statement of MARKMAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 1, 2010 _________________________________________
s0928 Clerk