(concurring in part, concurring in result in part).
I concur in the disposition of the first issue, the constitutionality of the “guilty but mentally ill” statutory scheme; however, I concur in the result only as to the second issue, adequacy of the representation of counsel.
My problem with the majority opinion with regard to the second issue is the statement therein: “Insanity is an affirmative defense, and the burden is on the defendant to show by clear and convincing evidence that he was insane at the time of the alleged offense. SDCL 22-5-10.” I would point out that the offense charged occurred on May 8, 1985. SDCL 22-5-10 was enacted at the 1985 legislative session. It did not have an emergency clause. Therefore, the statute did not become effective until July 1, 1985. I would consider a statute that changes the burden of proof of the defendant from the burden of producing evidence (a simple defense) to the additional burden of persuasion (an affirmative defense) to be an ex post facto law and, therefore, not applicable to this offense.
My concurrence in the first issue is reluctant. In State v. Robinson, 399 N.W.2d 324 (S.D.1987), there was a strong dissent representing the views of two members of this court. I think that the majority opinion correctly pointed out that the views of that dissent were premature and that is why I concurred therein. I wish that the legislature would take heed of that dissent and strive as diligently to correct the statutory scheme as it has to change the burden of proof. It might avoid a possible future problem when a majority possibly would decide that the time has come to apply the reasoning of that dissent.