Order Michigan Supreme Court
Lansing, Michigan
December 4, 2020 Bridget M. McCormack,
Chief Justice
160529 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
PEOPLE OF THE STATE OF MICHIGAN, Richard H. Bernstein
Plaintiff-Appellee, Elizabeth T. Clement
Megan K. Cavanagh,
Justices
v SC: 160529
COA: 344701
Kalamazoo CC: 2013-001512-FC
JERMAL DONTE CLARK,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the September 17, 2019
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.
MCCORMACK, C.J. (concurring).
I concur with the Court’s order denying leave to appeal.
I write separately, however, for two reasons. First, when the defendant initially
raised the affirmative defense of legal insanity, the trial court determined that he failed to
satisfy the first prong of the legal standard to establish insanity: a showing that he lacked
the substantial capacity to appreciate the wrongfulness of his conduct. The court
therefore mistakenly concluded that the defendant was unable to establish legal insanity.
The Court of Appeals correctly remanded, noting that under MCL 768.21a, a defendant
need only establish one of the two prongs to establish legal insanity, the second of which
is the lack of a substantial capacity to conform one’s conduct to the requirements of the
law. People v Clark, unpublished per curiam opinion of the Court of Appeals, issued
August 10, 2017 (Docket No. 332297), pp 2-3. From that point forward, however, the
Court of Appeals did not review the trial court’s conclusion that the defendant had failed
to satisfy the first prong. While I see potential merit in an argument that the trial court
erred in concluding that the defendant failed to satisfy the first prong of the legal-insanity
defense, the defendant has not raised this question on appeal.
Second, and relatedly, while I am not sure I disagree with the Court of Appeals’
2
conclusion that the defendant’s conviction was not against the great weight of the
evidence, I am troubled by the panel’s treatment of this question.
In evaluating the merits of a “great weight” claim, a reviewing court must consider
whether the evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow the verdict to stand. People v Lemmon, 456 Mich 625,
642 (1998). Perhaps the defendant did not meet that burden. But no such analysis
appears in the panel’s opinion. Instead, there is a single conclusory paragraph:
In light of the evidence presented, we affirm the trial court’s order
denying defendant’s motion for a new trial on the basis that the verdict was
against the great weight of the evidence. The trial court did not err in
concluding that defendant failed to prove by a preponderance of the
evidence that he lacked the substantial capacity to conform his conduct to
the requirements of the law, and therefore could not establish that “the
evidence preponderates so heavily against the verdict that it would be a
miscarriage of justice to allow the verdict to stand.” People v Lacalamita,
286 Mich App 467, 469; 780 NW2d 311 (2009). [People v Clark,
unpublished per curiam opinion of the Court of Appeals, issued September
17, 2019 (Docket No. 344701), p 4]
The panel seems to have decided that its conclusion that the defendant had the
ability to conform his conduct to the requirements of the law was sufficient to resolve his
great-weight claim. I worry that this approach conflates the standards governing a
challenge to the sufficiency of the evidence with those governing a challenge based on
the great weight of the evidence. Resolution of the former does not necessarily resolve
the latter; they are distinct, if related, inquiries. The panel should have analyzed whether
the verdict constituted a miscarriage of justice or whether the interests of justice require a
new trial to be ordered in light of the “whole body of proofs,” Lemmon, 456 Mich at 634-
635, 638, notwithstanding its sufficiency finding on the “conforming conduct to the
requirements of the law” prong of legal insanity.1 As part of that inquiry, the panel
should have taken a broader view and analyzed both prongs of the defendant’s legal-
insanity defense.
1
The panel’s cursory treatment of the great-weight argument is easier to understand
given the defendant’s treatment of this issue in his briefing, which refers back to his
argument regarding the “conforming conduct to the requirements of the law” prong. But
the defendant is arguing that upholding his conviction, and specifically the finding that he
was not legally insane, would constitute a miscarriage of justice. Determining whether
that is true warrants a deeper dive beyond just the “substantial capacity” prong; it
demands an inspection of “the entire body of proofs.”
3
Because the defendant has not appealed the trial court’s determination on the
“wrongfulness” prong and because I am not convinced the panel erred in concluding that
the defendant’s conviction was not against the great weight of the evidence, I concur in
the Court’s denial of leave to appeal.
I, Larry S. Royster, 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.
December 4, 2020
p1201
Clerk