People of Michigan v. Fernandus Cortez Ellen
325627
| Mich. Ct. App. | Sep 27, 2016Background
- On August 21, 2013, Fernandus Ellen repeatedly tapped and taunted Jonas Johnson; after Johnson punched Ellen, Ellen struck Johnson repeatedly, causing head trauma; Johnson later died on October 7, 2013.
- Defendant was charged with second-degree murder, acquitted of that charge, but convicted by a jury of voluntary manslaughter.
- Multiple eyewitnesses described an extended, violent assault by defendant after Johnson’s single punch.
- At trial, defense argued defendant was the initial aggressor but claimed his subsequent force was reasonable self-defense; defense emphasized weaknesses in the prosecution’s proof.
- Trial evidence included witness testimony referencing defendant’s alleged street conduct and the term “head shots.” The prosecutor elicited a question about prior gun conduct from a witness.
- The trial court imposed an upward-departure sentence (10–15 years); after sentencing, Lockridge changed Michigan law making guidelines advisory, prompting appellate remand for Crosby-type proceedings.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Ellen) | Held |
|---|---|---|---|
| Prosecutorial misconduct — rebuttal argument | Reply to defense attacks; argument tied to evidence and common-sense assessment of reasonableness | Rebuttal improperly invoked jury civic duty and appealed to fears/prejudices | No misconduct; prosecutor responded to defense and did not make improper civic-duty appeal |
| Prior-act evidence — question about pulling guns | Question was responsive after defense opened the door about neighborhood violence | Question elicited inadmissible propensity evidence under MRE 404 and lacked pretrial notice; unduly prejudicial | Trial court erred in admitting the question on that basis, but error was harmless given witness denied knowledge and strong other evidence |
| Lay/speculative testimony — meaning of “head shots” | Testimony helped explain witness perception and context of the exchange | No foundation for witness to define slang; testimony was speculation and prejudicial under MRE 701/403 | Testimony should have had foundation and thus was not proper lay opinion, but admission was harmless given other evidence and central issues focused on post-punch conduct |
| Sentencing — upward departure after Lockridge | Departure justified by court’s reasons at sentencing | Departure relied on factors already accounted for in guidelines; Lockridge requires different review | Conviction affirmed but remand required for Crosby-type proceedings so court can consider advisory guidelines and Milbourn proportionality standard (defendant may elect to forgo resentencing) |
Key Cases Cited
- People v. Bahoda, 448 Mich. 261 (1995) (prosecutor should not invoke civic-duty appeals to jury)
- People v. Bennett, 290 Mich. App. 465 (2010) (standard of review for prosecutorial misconduct)
- People v. Lockridge, 498 Mich. 358 (2015) (sentencing-guidelines minimums rendered advisory)
- People v. Steanhouse, 313 Mich. App. 1 (2015) (adopted Crosby remand procedure; apply Milbourn proportionality to Lockridge review)
- People v. Shank, 313 Mich. App. 221 (2015) (remand for Crosby procedure where court used pre-Lockridge framework)
- People v. Dupree, 486 Mich. 693 (2010) (defendant who is initial aggressor generally not entitled to justification when using excessive force)
- People v. Milbourn, 435 Mich. 630 (1990) (principle of proportionality for reviewing sentence reasonableness)