Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

December 4, 2020

160529

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee,

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 People v Clark, unpublished per curiam opinion of the Court of Appeals, issued 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 legalinsanity 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.” 
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

3

Clerk

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.