PEOPLE OF MI V CURTIS OMAR MCGEE
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 11, 2007
Plaintiff-Appellee,
v
No. 263591
Saginaw Circuit Court
LC No. 04-024634-FC
CURTIS OMAR MCGEE,
Defendant-Appellant.
Before: Murray, P.J., and Fitzgerald and Owens, JJ.
PER CURIAM.
Defendant was convicted by a jury of assault with intent to do great bodily harm less than
murder, MCL 750.84, discharge of a firearm at an occupied structure, MCL 750.234b, felon in
possession of a firearm, MCL 750.224f, carrying a concealed weapon, MCL 750.227, and three
counts of possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant as an habitual offender, second offense,
MCL 769.10, to concurrent prison terms of 95 months to 15 years for the assault conviction,
three to six years for the discharge of a firearm conviction, and 47 to 90 months for the felon-inpossession and carrying a concealed weapon convictions, to be served consecutively to three
concurrent two-year terms of imprisonment for the felony-firearm convictions. He appeals by
right. We affirm.
Defendant’s convictions arose from an allegedly gang-related shooting at Captain’s
Cove, a Saginaw nightclub. One person died and several were injured. Defendant was present at
the nightclub. He drove away in a Dodge Durango, but was stopped by the police a short
distance from the scene. An ammunition magazine and a nine-millimeter Ruger firearm, which
was identified as one of the guns involved in the shooting, was recovered from the side of the
road along the path that defendant drove as he left the nightclub. A second magazine fell to the
ground as defendant exited the vehicle when he was stopped by the police. A witness, Alonzo
Taylor, testified that he sold the nine-millimeter Ruger firearm to defendant approximately one
month before the shooting.
I
On appeal, defendant first argues that the admission of inadmissible, testimonial hearsay
from unavailable and unidentified declarants violated his constitutional right of confrontation
and denied him a fair trial. Defendant acknowledges that he did not object to the challenged
-1-
testimony. Therefore, this issue is unpreserved. We review unpreserved issues for plain error
affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999); People v Coy, 243 Mich App 283, 287; 620 NW2d 888 (2000).
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
When hearsay evidence is admitted and the declarant cannot be cross-examined, the evidentiary
ruling may implicate constitutional error under the Confrontation Clause. People v Stanaway,
446 Mich 643, 694 n 53; 521 NW2d 557 (1994). “In Crawford [v Washington, 541 US 36; 124
S Ct 1354; 158 L Ed 2d 177 (2004)], the United States Supreme Court held that, under the
Confrontation Clause of the Sixth Amendment, testimonial statements of witnesses absent from
trial may not be admitted against a criminal defendant unless the declarant is unavailable and the
defendant has had a prior opportunity to cross-examine the declarant.” People v Shepherd, 472
Mich 343, 347; 697 NW2d 144 (2005).
Defendant first challenges the testimony of Ryan Larrison, a firearms expert. Larrison
testified that he reviewed the firearms evidence and prepared the report in this case. Larrison
also testified, however, that it is procedure at the Michigan State Police Crime Lab to have two
examiners review the evidence and agree on a conclusion before a report is authored. Larrison
explained that Ronald Crichton, a senior firearms expert, reviewed the same evidence and agreed
with Larrison’s conclusions. To the extent that Larrison’s testimony regarding Crichton’s
conclusions involved hearsay, it did not affect defendant’s substantial rights. Larrison testified
that he was the person who prepared the report and that he reached the conclusions that were the
subject of his testimony. Evidence that Crichton agreed with those conclusions was cumulative
of Larrison’s testimony. Thus, this unpreserved issue does not warrant appellate relief.
Defendant also argues that Detective Robert Ruth improperly testified about information
he received from confidential and unidentified sources. At trial, Ruth explained that when
investigating gang activity, witnesses often are uncooperative or reluctant to testify, and that
gang members do not normally reveal their gang affiliation. Accordingly, Ruth explained, the
police routinely gather information from confidential informants. In the challenged testimony,
however, Ruth did not refer to specific statements from other sources. In the one instance when
Ruth was asked, “Did anybody indicate to seeing who the shooters were?,” he responded, “No.
Nobody in the bar that evening would indicate who was doing the shooting. They’re all afraid.”
Although defendant argues that the statement “They’re all afraid” was inadmissible hearsay, this
testimony was Ruth’s conclusion and did not involve another’s statement. Thus, this statement
was not hearsay and did not implicate defendant’s right of confrontation. Even if the testimony
could be interpreted to suggest that a declarant articulated a statement expressing fear, the
statement was made in the context of explaining that nobody would identify who was involved in
the shooting. Because defendant was not implicated in this testimony, his substantial rights were
not affected.
Defendant further argues that Ruth was permitted to testify that the shooting was gangrelated, that there were predominantly north-side gang members at the nightclub and that the
people who were shot were from the south side, that the south-side people did not have guns, that
people from the north side have since died in gang-related deaths, and that defendant was a
north-side gang member. Although defendant asserts that this information was based on
information garnered from confidential informants, he does not identify a single out-of-court
-2-
statement that he believes was improperly admitted at trial. Thus, he has not established that the
admission of this testimony constituted plain error.
Defendant also argues that Ruth improperly testified that alleged gang memberships were
listed on jail inmate logs under the category of “special information” to separate members of
rival gangs in jail, and that defendant’s log indicated that he was affiliated with a gang called
“The Projects.” Yet defendant admitted at trial that he was “affiliated” with “The Projects” and
that he was a friend of members of that group. Defendant also acknowledged that he was in a
cell with people from the north end and that it was probably not a good idea for him to be placed
in a south-end cell at the jail. Because defendant provided the same information at trial as that
provided by Ruth in the disputed statements, Ruth’s testimony did not affect defendant’s
substantial rights.
Defendant further argues that Ruth’s testimony that individuals depicted in photographs
with defendant were gang members was improperly based on information gathered from
unavailable confidential informants. Again, however, defendant does not identify out-of-court
statements that were admitted at trial. Moreover, Ruth testified at trial that the photos depicted
people throwing their gang signs, and defendant confirmed on direct examination that the hand
gestures he was making in the photos were gang signs indicating an affiliation with “The
Projects.” In light of this record, defendant failed to show that Ruth’s statements about the
photographs constituted testimonial hearsay. Further, because defendant admitted that the
photos depicted him making gang signs indicating an affiliation with “The Projects,” Ruth’s
testimony did not affect defendant’s substantial rights.
Defendant also challenges Ruth’s testimony that Sherice Byrd, owner of the Dodge
Durango that defendant was driving, reported a few hours after the shooting that she was
carjacked and that the Durango was stolen, and that Byrd later pleaded guilty to filing a false
police report. Because there was no dispute at trial that defendant was driving the Durango after
the shooting and that he had permission to drive the vehicle, the passing reference to Byrd did
not affect defendant’s substantial rights.
Further, contrary to defendant’s assertions, the emergency 911 call was not testimonial in
nature and, therefore, its admission did not implicate the Confrontation Clause. Davis v
Washington, ___ US ___; 126 S Ct 2266, 2273-2278; 165 L Ed 2d 224 (2006).
II
Next, defendant argues that the prior statements of Taylor and Antaurean Jones were
inadmissible hearsay, and that their admission denied him a fair trial. Because defendant did not
object to these statements at trial, our review is again limited to plain error affecting defendant’s
substantial rights. Carines, supra at 763-764.
Defendant cites People v Rosales, 160 Mich App 304, 308; 408 NW2d 140 (1987), to
support his argument that Taylor’s prior consistent statements were inadmissible. In Rosales,
this Court stated, “[a]s a general rule, neither a prosecutor nor anyone else is permitted to bolster
a witness’ testimony by referring to prior consistent statements of that witness.” Id. However,
Rosales preceded the 1991 amendment of MRE 801. As amended, MRE 801(d)(1)(B) provides
that the prior consistent statement of a witness is admissible if the declarant testifies at trial and
-3-
is subject to cross-examination, there is an express or implied charge of recent fabrication or
improper influence or motive of the declarant’s testimony, the declarant’s prior statement is
consistent with the declarant’s challenged testimony, and the prior consistent statement was
made before there was a motive to falsify. See People v Jones, 240 Mich App 704, 706-707; 613
NW2d 411 (2000). In the present case, defendant disputed the veracity of Taylor’s trial
testimony. Taylor testified at trial, his prior statements were consistent with his trial testimony,
and Taylor was subject to cross-examination concerning the prior statements, which were made
just days after the shooting. Thus, the admission of Taylor’s prior consistent statements did not
constitute plain error.
Jones’s prior statements were properly admitted for a nonhearsay purpose, namely, to
impeach Jones’s inconsistent trial testimony. Defendant incorrectly argues that the prior
statements were hearsay because Jones did not deny making them. Regardless whether Jones
admitted making the prior statements, the statements were inconsistent with his testimony at trial
and, therefore, were admissible for impeachment purposes. Because Jones’s credibility was at
issue, he testified at trial, the prosecutor elicited the time and place of the prior statements and
the person to whom they were allegedly made, and Jones was given the opportunity to explain or
deny his inconsistent statements, the admission of Jones’ prior statements for impeachment
purposes was not plain error. MRE 607; MRE 613; People v Rodriguez, 251 Mich App 10, 34;
650 NW2d 96 (2002).
III
Defendant argues that the prosecutor improperly impeached him with evidence of a prior
conviction for fleeing or eluding a police officer. Again, defendant failed to object to the
admission of this evidence at trial, so we review this issue for plain error affecting defendant’s
substantial rights. Carines, supra at 763-764.
The prosecutor did not use the prior conviction for impeachment purposes under
MRE 609. Rather, defense counsel first elicited evidence of this conviction on direct
examination of defendant. Because defendant volunteered the evidence on direct examination, it
was within the scope of cross-examination, unless otherwise prohibited. MRE 611(b). The
prosecutor’s cross-examination was limited to eliciting that the prior conviction arose from
defendant’s use of the same vehicle that he was driving when the police stopped him after the
charged shooting incident. Because there was evidence that defendant did not drive the vehicle
to the nightclub, and defendant denied knowledge of the magazine clip that fell from the vehicle
after the police stopped it, evidence showing that defendant had access to the vehicle was
arguably relevant. For these reasons, defendant failed to establish that the prosecutor’s crossexamination constituted plain error that affected his substantial rights.
IV
Defendant next argues that the prosecutor’s conduct denied him a fair trial. Because
defendant did not object to the prosecutor’s conduct at trial, he must show that plain error
affected his substantial rights. Carines, supra at 763-764; People v Schutte, 240 Mich App 713,
720; 613 NW2d 370 (2000). We consider the prosecutor’s alleged misconduct in context to
determine if it denied defendant a fair and impartial trial. People v Reid, 233 Mich App 457,
466; 592 NW2d 767 (1999). Further, a prosecutor is afforded great latitude in closing argument.
-4-
People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). He is not required to use the
“blandest possible terms” to state his inferences and conclusions. People v Launsburry, 217
Mich App 358, 361; 551 NW2d 460 (1996). The prosecutor may use strong and emotional
language when making his argument as long as it is supported by the evidence. People v Ullah,
216 Mich App 669, 678-679; 550 NW2d 568 (1996). Also, reversal is not warranted if
defendant could have registered a cautionary instruction that would have cured any perceived
prejudice. Schutte, supra at 721.
The evidence in this case indicated that the nightclub shooting was gang-related.
Defendant denied belonging to a gang. The prosecutor’s questions and comments concerning
defendant’s drug activity and not having a job were made in the context of establishing his
affiliation with a gang. These questions and comments were not plainly improper.
Further, the prosecutor’s questions and comments did not shift the burden of proof. To
the extent that any questions or comments could have been construed in this manner, the trial
court’s instructions that defendant is presumed to be innocent, that the prosecutor was required to
prove each element of the crime charged beyond a reasonable doubt, and that “defendant is not
required to prove his innocence or do anything,” were sufficient to cure any prejudice and to
protect defendant’s substantial rights. Schutte, supra at 721.
We also disagree with defendant’s contention that the prosecutor improperly referred to
matters lacking evidentiary support. The prosecutor was entitled to argue the evidence and all
reasonable inferences from the evidence relating to his theory of the case. Bahoda, supra at 282.
Here, the prosecutor’s remarks involved reasonable inferences from the evidence. Furthermore,
the jury was instructed that the questions and arguments made by the attorneys were not
evidence, and jurors are presumed to follow their instructions. People v Graves, 458 Mich 476,
486; 581 NW2d 229 (1998). The court’s instruction was sufficient to protect defendant’s
substantial rights.
Defendant also argues that he was prejudiced because the prosecutor improperly elicited
evidence that witnesses Marcel Bogan, Antaurean Jones, and Terrance Moore were incarcerated.
However, defense counsel elicited that Moore was incarcerated. Jones testified that authorities
were holding him in jail as a material witness, which was relevant to his bias as a witness. The
prosecutor merely elicited that Bogan was incarcerated as a result of the incident at the Captain’s
Cove nightclub. Further, a cautionary instruction, if requested, would have cured any perceived
prejudice. Schutte, supra at 721. On this record, defendant has not shown plain error affecting
his substantial rights.
V
Defendant next argues that the trial court erred by failing to give the cautionary jury
instructions on accomplice testimony, CJI2d 5.4 and 5.6, in connection with Alonzo Taylor’s
testimony. Defendant did not request these instructions at trial or object to the trial court’s
instructions as given. Therefore, this issue is not preserved. “[A]n unpreserved claim that the
court failed to give a cautionary accomplice instruction may be reviewed only for plain error that
affects substantial rights.” People v Young, 472 Mich 130, 143; 693 NW2d 801 (2005).
-5-
Here, it not clear that Taylor was an accomplice or that this instruction was clearly or
obviously required in this case. Taylor testified that he sold to defendant a nine-millimeter
Ruger firearm that was linked to this offense. But Taylor was also linked to this offense because
a different .45-caliber Ruger used in the shooting was found in Taylor’s house. Significantly,
Taylor testified that he did not possess a gun at the Captain’s Cove nightclub, that he did not see
defendant with a gun, and that he did not see defendant shoot at anyone at the nightclub. The
prosecution presented evidence beyond Taylor’s testimony linking defendant to the offense and
to the nine-millimeter Ruger firearm, including evidence that the nine-millimeter firearm was
found along the road on the same path that defendant traveled before he was stopped, and that an
ammunition magazine and the firearm fell from defendant’s car when the car was stopped. Also,
the jury was instructed that it was to evaluate the credibility of all witnesses and consider any
bias, prejudice, or personal interest that a witness might have. For these reasons, defendant fails
to establish that the trial court’s failure to give cautionary jury instructions constituted plain error
affecting his substantial rights.
VI
Next, defendant argues that he was denied effective assistance of counsel. We disagree.
“Whether a person has been denied effective assistance of counsel is a mixed question of fact
and constitutional law. A judge first must find the facts, and then must decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s
findings of fact are reviewed for clear error, while questions of constitutional law are reviewed
de novo. Id.
To establish ineffective assistance of counsel, a defendant must show that counsel made
errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth
Amendment and that the deficient performance prejudiced the defense. Id. at 578. When
applying this test, a court must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance and the defendant must overcome the
presumption that the challenged action might be considered sound trial strategy. Id.
In this case, defendant has not demonstrated that counsel was ineffective for failing to
object to the prior statements of Taylor or Jones, Ruth’s testimony regarding Saginaw gangs,
booking sheets, Byrd’s false police report, and Jones’ recantation of his previous statements,
Larrison’s statements regarding Crichton, the admission of the 911 tape, or the prosecutor’s
closing arguments. As discussed supra, defendant has not shown that evidence was improperly
admitted or that the prosecutor’s remarks were improper. Similarly, counsel was not ineffective
for failing to request a cautionary accomplice testimony instruction, because defendant has not
shown that the instruction was required. Further, because the prosecutor did not shift the burden
of proof, defense counsel did not commit an act of misconduct when he failed to object to the
prosecutor’s questions and comments for this reason.
Defendant also contests the effectiveness of his counsel’s cross-examination of Taylor,
Bogan, and Moore. Decisions about calling and questioning witnesses are matters of trial
strategy. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). “This Court will not
substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight.” Id. at 76-77. Defense counsel presented
-6-
plausible reasons for his trial decisions, and defendant has not overcome the presumption that his
decisions constituted sound trial strategy. Defendant’s counsel was not ineffective merely
because the strategy may not have worked. People v Stewart (On Remand), 219 Mich App 38,
42; 555 NW2d 715 (1996).
Defendant also argues that his counsel was ineffective for failing to impeach Jeff
Reynolds with evidence of his prior conviction for filing a false police report. However,
Reynolds’ testimony was largely cumulative, and we do not believe that defense counsel’s
failure to impeach Reynolds’ credibility with evidence of his prior conviction prejudiced the
defense.
Defendant also argues that his counsel was ineffective for questioning defendant
concerning his history of selling drugs and his prior conviction for fleeing and eluding the police.
Counsel explained that he pursued this line of questioning to show that, while defendant had a
troubled background, his background did not involve assaultive behavior, and to present
defendant as someone who was trustworthy, not a liar, even if his testimony did not always
portray him in a favorable light. Again, counsel’s direct examination of defendant was a matter
of trial strategy, and this Court will not second-guess that strategy with the benefit of hindsight.
People v Rice (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
Accordingly, defendant fails to establish that he was denied effective assistance of
counsel.
VII
Finally, defendant argues that the cumulative effective of these errors denied him a fair
trial. Because we have rejected defendant’s claims of error, reversal under this theory is
unwarranted. LeBlanc, supra at 591; People v Mayhew, 236 Mich App 112, 128; 600 NW2d 370
(1999).
Affirmed.
/s/ Christopher M. Murray
/s/ E. Thomas Fitzgerald
/s/ Donald S. Owens
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.