                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                        UNPUBLISHED
                                                                        August 10, 2017
               Plaintiff-Appellee,

v                                                                       No. 332297
                                                                        Kalamazoo Circuit Court
JERMAL DONTE CLARK,                                                     LC No. 2013-001512-FC

               Defendant-Appellant.


Before: HOEKSTRA, P.J., and MURPHY and K. F. KELLY, JJ.

PER CURIAM.

        In a bench trial, the court found defendant guilty but mentally ill of first-degree
premeditated murder, MCL 768.36; MCL 750.316(1)(a). The trial, which solely entailed
stipulated facts and the testimony of two competing experts, focused on the defense of legal
insanity, MCL 768.21a. The trial court ruled that defendant failed to establish by a
preponderance of the evidence that he was legally insane. Defendant was sentenced to life
imprisonment without the possibility of parole, and he now appeals as of right. We vacate the
conviction and remand to the trial court for a finding with respect to whether defendant
established by a preponderance of the evidence that he lacked the substantial capacity to conform
his conduct to the requirements of the law, which is an issue that needed to be reached for
purposes of the insanity defense, but which the court neglected to rule upon given an apparent
misunderstanding of the law.

       In order to give context to our discussion, we begin with a recitation of MCL 768.21a,
which provides, in relevant part, as follows:

               (1) It is an affirmative defense to a prosecution for a criminal offense that
       the defendant was legally insane when he or she committed the acts constituting
       the offense. An individual is legally insane if, as a result of mental illness . . ., that
       person lacks substantial capacity either to appreciate the nature and quality or the
       wrongfulness of his or her conduct or to conform his or her conduct to the
       requirements of the law. . . . .

                                                 ***

             (3) The defendant has the burden of proving the defense of insanity by a
       preponderance of the evidence. [Emphasis added.]

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        Under the plain language of MCL 768.21a(1), if a defendant has sufficiently established
the existence of a mental illness at the time of the offense, he or she need only additionally
establish either (1) the absence of a substantial capacity, resulting from the mental illness, to
appreciate the nature and quality or the wrongfulness of the conduct at issue, or (2) the absence
of a substantial capacity, resulting from the mental illness, to conform his or her conduct to the
requirements of the law. See People v Jackson, 245 Mich App 17, 24-25; 627 NW2d 11 (2001).
By way of example, if a defendant who was mentally ill at the time of a charged offense fails to
show a lack of substantial capacity to appreciate the nature and quality or the wrongfulness of the
defendant’s conduct (prong 1), the defendant may still be able to prove legal insanity by showing
that he or she lacked the substantial capacity to conform his or her conduct to the requirements of
the law (prong 2). Therefore, if both prongs are in dispute at trial, the trier of fact must make a
finding on both prongs, unless the trier of fact concludes that, as to one of the prongs, the
defendant met the burden to establish the prong by a preponderance of the evidence, making it
unnecessary to examine a second prong.

        Here, before trial, the parties stipulated to a detailed set of facts, which included an
agreement that defendant had caused the victim’s death, that defendant had intended to kill the
victim, that defendant’s intent to kill the victim was premeditated, and that the killing had been
deliberate. The stipulated facts revealed claims by defendant that “voices” directed him to kill
the victim, along with setting forth the sequence of events that occurred before, during, and after
the killing. At trial, the two experts, one on behalf of defendant and one on behalf of the
prosecution, agreed that defendant was mentally ill at the time of the killing, suffering from
paranoid schizophrenia or schizoaffective disorder. Defendant’s expert further opined that
defendant lacked the substantial capacity to both appreciate the wrongfulness of his conduct in
killing the victim and to conform his conduct to the requirements of the law. Stated otherwise,
defendant’s expert submitted that both prongs were established, and defense counsel so
contended during closing arguments. Of course, the prosecution’s expert opined to the contrary
on both prongs.

         In ruling from the bench, the trial court cited and discussed MCL 768.21a and appeared
to properly understand the workings of the two prongs discussed above. The court proceeded to
review some of the testimony and the stipulated facts and made some general observations. The
trial court then found that defendant “did have substantial understanding that what he was doing
with regard to [the victim] was wrong[,]” thereby ruling on what we have characterized as the
first prong of legal insanity. The court next explained why it came to that particular conclusion.
Given the trial court’s ruling on prong 1, it became necessary under the law to make a finding on
the second prong. The court next ruled:

               I do have some concerns with regard to the defendant’s recognition of
       whether his behavior conformed with the requirements of the law;[1] but, by
       virtue of my finding that he did have capacity-substantial capacity to recognize



1
 Although this was a misstatement of the law concerning prong 2, it is plain that the trial court
had now focused its attention on the second prong.


                                                -2-
       and appreciate what he was doing was wrong and that it was an act that he should
       not have engaged in, I believe that satisfies one of the prongs establishing that the
       defendant is, in fact, not insane from the standpoint of . . . legal insanity.
       Therefore, the defendant has not met [his] burden showing that the defendant in
       this case was legally insane under [MCL] 768.21a. [Emphasis added.]

         The only reasonable construction of this passage is that the trial court believed that once
it determined that defendant had failed to establish the first prong regarding appreciation of the
wrongfulness of his conduct, defendant was essentially deemed legally sane at the time of the
offense, making it unnecessary to render a finding on the second prong concerning the ability to
conform one’s conduct to the requirements of the law. This reflects a fundamental
misunderstanding of legal insanity and the operation of MCL 768.21a. For the reasons expressed
earlier, the trial court was absolutely required to make a finding on the second prong, and it
simply did not do so. To the extent that the trial court intended otherwise and merely misspoke,
we cannot reasonably discern such a conclusion from a plain reading of the transcript. We
recognize that appellate counsel has not raised this issue on appeal, which we find troubling, but
the error is so glaring that we simply cannot ignore it and therefore raise it sua sponte. Indeed,
we would be in no position to assess whether error occurred with respect to prong 2, as claimed
by defendant’s appellate counsel, where the record is devoid of a finding and ruling on the
second prong.

       We vacate the conviction and remand for a finding by the trial court regarding whether
defendant established by a preponderance of the evidence that he lacked the substantial capacity
to conform his conduct to the requirements of the law.

        Vacated and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction, considering the possibility of an acquittal on remand and, in such a case, no
need to exercise continuing jurisdiction.2


                                                             /s/ Joel P. Hoekstra
                                                             /s/ William B. Murphy
                                                             /s/ Kirsten Frank Kelly




2
  If defendant is once again convicted, he will of course be free to file a new claim of appeal in
this Court.


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