¶1(dissenting).
¶2I respectfully dissent. Reference is made to my two dissenting opinions in State v. Robinson, 399 N.W.2d 324, 327-30 (S.D.1987), and Robinson v. Solem, 432 N.W.2d 246, 252-58 (S.D.1988), regarding *294constitutionality of our “Guilty But Mentally Ill” statutes.
¶3As to that special writing reflecting that SDCL 22-5-10 is unconstitutional, I disagree, as allocation to the defendant of the burden of proving insanity is constitutional. See Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952); United States v. Freeman, 804 F.2d 1574 (11th Cir.1986); United States v. Amos, 803 F.2d 419 (8th Cir.1986).
¶4(dissenting).
¶5Unconstitutional Shifting of Burden of Proof.
¶6I would reverse and remand for a new trial because the trial court’s instructions improperly required Baker to prove his insanity by clear and convincing evidence under SDCL 22-5-10. This is plain error as the statute is unconstitutional. SDCL 23A-44-15 provides “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of a court.” State v. Breed, 399 N.W.2d 311 (S.D.1987); State v. Brammer, 304 N.W.2d 111 (S.D.1981).
¶7The fatal constitutional defect of SDCL 22-5-10 is that it places upon the defendant “the burden of proving the defense of insanity by clear and convincing evidence.” The State cannot constitutionally require a defendant to do more than raise a reasonable doubt as to his sanity, i.e., the defendant’s burden of persuasion cannot exceed raising “a reasonable doubt.” It is an unconstitutional invasion of the presumption of innocence to exceed this point. S.D. Const., art. VI § 2.
¶8The State must prove each and every element of the crime charged beyond a reasonable doubt. Most serious crimes contain an element which overlaps sanity. Therefore, if the defendant raises a reasonable doubt as to his sanity, it becomes constitutionally inconsistent and impossible for the State to prove the overlapping element of the crime beyond a reasonable doubt.
¶9Therefore, the statute poses a very great danger for jury confusion and for conviction by less than beyond a reasonable doubt and is unconstitutional. S.D. Const., art. VI § 2; Robinson v. Solem, 432 N.W. 2d 246, 251 (S.D.1988) (Sabers, J., concurring in result in part and dissenting in part).