(dissenting).
1. Unconstitutional Shifting of Burden of Proof
I would reverse and remand for a new trial because the trial court’s instructions improperly required Rough Surface 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).
The 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.
The 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.
Therefore, 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.
2. Three Murder Convictions on One Death.
This case presents an additional plain error or defect which affects substantial rights. Rough Surface was tried and convicted on all six counts of the information. They were 1) first-degree robbery; 2) first-degree rape; 3) first-degree assault; 4) first-degree murder by premeditated design; 5) first-degree murder in the commission of a felony — rape; and 6) first-degree murder — robbery. He was sentenced to concurrent terms of life imprisonment in the South Dakota State Penitentiary on each murder conviction. He was also given concurrent fifteen-year sentences on each of the other counts. It was plain error to convict and sentence him on all three murder charges as the two felony murder convictions are not proper.
Felony murder is an alternative to premeditated murder in cases where the elements of murder are difficult to prove. Felony murder was never intended to be used, as here, as a supplement to the basic charge of murder to enable the State to get two or more murder convictions where only one death resulted. State v. Wise, 237 Kan. 117, 697 P.2d 1295 (1985); People v. Lowe, 660 P.2d 1261 (Colo.1983). As stated by Justice Wollman in his excellent writing in State v. O'Blasney, 297 N.W.2d 797, 798 (S.D.1980) (citing 13 Gonz.L.Rev. 268, 271 (1977)):
[One] rationale underlying the felony murder rule is the transferred or constructive intent theory. According to this approach, “the purpose of the felony-murder rule is to relieve the state of the burden of proving premeditation or malice.... By proof of the perpetration of a separate felony, general malicious intent is transferred from that crime to the homicide, thus elevating the homicide to the crime of murder.”
Numerous courts have vacated a conviction and sentence for both premeditated murder and felony murder where there has only been one death. State v. LaTourelle, 343 N.W.2d 277 (Minn.1984); Lowe, supra; Thompkins v. State, 270 Ind. 163, 383 N.E.2d 347 (1978); State v. Jackson, 223 Kan. *761554, 575 P.2d 536 (1978); State v. Gilroy, 199 N.W.2d 63 (Iowa 1972); Gray v. State, 463 P.2d 897 (Alaska 1970); Goss v. State, 398 So.2d 998 (Fla.Dist.Ct.App.1981); People v. Densmore, 87 Mich.App. 434, 274 N.W.2d 811 (1978). The rationale applied by these courts is that the imposition of two sentences violates double jeopardy as it permits double punishment for one offense. Thompkins, supra; Jackson, supra; Gilroy, supra. This court has also recognized that double jeopardy protects against multiple punishments for the same offense. State v. Baker, 440 N.W.2d 284 (S.D.1989); State v. Adams, 418 N.W.2d 618 (S.D.1988).
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court first set out the “same evidence” test to determine whether two statutes prohibit the same offense for purposes of double jeopardy. The test set out in Blockburger is “whether each provision requires proof of a fact which the other does not.” Id. 284 U.S. at 304, 52 S.Ct. at 182. The Supreme Court has since clarified Blockburger and stated that it is merely a tool for statutory construction and may not be used to contravene the intent of the legislature. Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985); Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). As stated in Hunter the “Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Id. 459 U.S. at 366, 103 S.Ct. at 678. “The assumption underlying the Blockburger rule is that [the legislature] ordinarily does not intend to punish the same offense under two different statutes.” Ball v. United States, 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746 (1985).
Other jurisdictions which have faced this question have stated that the intent of the legislature must be considered foremost. Houser v. State, 474 So.2d 1193 (Fla.1985); Lowe, supra; Gray, supra. These courts have recognized that under modern statutory schemes the “same evidence” test may not be sufficient:
Legislative refinement of an essentially unitary criminal episode into numerous separate violations of the law has resulted in a proliferation of offenses capable of commission by a person at one time and in one criminal transaction. Since each violation by definition will usually require proof of a fact which the others do not, application of the same-evidence test will mean that each offense is punishable separately. But as the separate violations multiply by legislative action, the likelihood increases that a defendant will actually be punished several times for what is really and basically one criminal act. (footnote omitted).
Whitton v. State, 479 P.2d 302, 306 (Alaska 1970). The court should not assume that the legislature intended that a defendant could be convicted of more than one type of first-degree murder where there is but one death, unless there is a clear intention on the part of the legislature. Houser, supra; Lowe, supra. This is consistent with the rule of lenity adopted by the United States Supreme Court. Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). This rule requires the courts to resolve statutory ambiguities in favor of the defendant. Whalen, supra; Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955).
SDCL 22-16-4 provides that first-degree murder may be committed either 1) by premeditation, or 2) by the perpetration or attempt to perpetrate certain enumerated felonies. The evidence may establish, as here, that a single homicide is both premeditated and in perpetration of one of the enumerated felonies. Courts have held that this alone does not establish a legislative intent to convict a person of both offenses for only one death. Houser, supra; Lowe, supra. There is nothing in SDCL 22-16-4 which would evidence an intent on the part of the legislature to permit a conviction and sentence on more than one first-degree murder when there is only one death. As stated by the Colorado Supreme Court in Lowe:
*762The legislature has not manifested any clear intent that a defendant could be convicted of more than one kind of first-degree murder where there is but one victim. The rule of lenity requires that the first-degree murder statute be construed to favor the defendant. That construction is that a defendant can be convicted only of one first-degree murder for one killing.
Id. at 1269.
A fair reading of the above cases makes it obvious that the separate acts of the defendant support the conviction for 1) first-degree robbery, 2) first-degree rape, 3) first-degree assault, and 4) first-degree murder by premeditated design, but cannot support additional convictions for 5) first-degree murder in the commission of a felony — rape, and 6) first-degree murder in the commission of a felony — robbery.* To permit all three of the murder convictions to stand against Rough Surface is error. As stated in Gray, supra at 911-12:
Although there are several ways of committing first degree murder, it is still only one crime; and only one sentence can be imposed....
It would indeed be a strange system of justice that would allow [a defendant] to be sentenced to two life sentences for the killing of one person.
This is plain error under SDCL 23A-44-15. Breed, supra; Brammer, supra. I would reverse and remand to the trial court for vacating the convictions for first-degree murder in the commission of a felony— rape, and first-degree murder in the commission of a felony — robbery, and for appropriate resentencing.
The Kansas court has held that it is improper for the trial court to instruct a jury that they may convict a defendant of both premeditated murder and felony murder where there is one death and the theories should be given in the alternative to avoid jury confusion. Wise, supra; Jackson, supra. However, the failure to instruct in the alternative does not rise to the level of prejudicial error, unless a defendant is sentenced on both convictions. Wise, supra.