dissenting in part, concurring in part.
I respectfully dissent from the holding of the majority opinion that the trial court, even when requested, is not obliged to include the language concerning volition from State v. Rawland, 294 Minn. 17, 199 N.W.2d 774 (1972), when instructing the jury on the defense of mental illness under Minn.Stat. § 611.026. The refusal of the trial court in this case to instruct the jury on the defense of mental illness as construed in State v. Raivland infringed on appellant’s due process right to a fair trial and thwarted his due process right to present a complete defense. U.S. Const., amend. V, XIV; Minn. Const., article 1, § 7.
In Raivland, this court held that In determining whether or not a defendant has met the burden imposed on him by statute to prove absence of guilt because of insanity, the factfinder may give credence to competent evidence that relates to cognition, volition, and capacity to control behavior.
Id. 199 N.W.2d at 790. At trial the defense had presented extensive evidence concerning appellant’s mental illness. Both Dr. Carl Malmquist, the court appointed psychiatrist, and Dr. R. Owen Nelsen, the defense expert psychologist, diagnosed appellant as suffering from Multiple Personality Disorder under the DSM-III-R criteria. Though both testified that, in their opinion, at the time of the murder, appellant knew the nature of his act and that it was wrong, both also testified that volition was a critical aspect of their diagnosis of appellant from a medical or clinical view, and that appellant’s behavior raised questions about the volitional end of his personalities and how he was functioning at the time of the offense. Because evidence of volition and capacity to control his behavior was the crux of his defense, appellant asked the court to add to CRIMJIG 6.02, the jury instruction on the Defense of Mental Illness or Mental Deficiency, the following language from Raivland,
To decide whether defendant knew the nature of his act or to decide whether defendant understood that the act was wrong, you may give credence to all the evidence introduced that relates to cognition, volition, and capacity to control behavior.
The trial court gave Crim. JIG 6.02 but refused to give the requested additional instruction.' I would hold the refusal to give such an instruction to be error.
The Raivland court recognized that when a defendant raises an insanity defense, “[t]he basic question of fact remains ⅜ * * whether in light of this burden [proof by a preponderance] and this evidence [that relates to cognition, volition, and capacity to control behavior] the defendant was laboring under such a *774defect of reason as not to know ‘the nature of his act or that it was wrong.’ ” 199 N.W.2d at 790. To say that the factfinder may consider competent evidence that relates to cognition, volition, and capacity to control behavior, however, and then not tell the jury they may consider such evidence is to make a nullity of Rawland. This is especially true in a case like this where the prosecutor misstated the law and told the jury that evidence of volition was irrelevant.
It is true that Rawland, a trial to the court, did not address the issue of whether instructions regarding volition or capacity to control behavior are required. The majority opinion, therefore, relies on three post-iicwo-land cases, State v. Larson, 281 N.W.2d 481 (Minn.1979), State v. Carlson, 328 N.W.2d 690 (Minn.1982), and State v. LaTourelle, 343 N.W.2d 277 (Minn.1984), to support its decision that an instruction on capacity to control behavior need not be given, but the cases are distinguishable. In Larson, there is no indication that the defendant requested an insanity instruction which was . denied, rather he seems to have argued that Rawland altered the test for insanity in Minnesota. 281 N.W.2d at 486. In Carlson, the defendant requested that the trial court use the Model Penal Code instruction which mandated that the factfinder consider volition and capacity to control behavior. 328 N.W.2d at 694 n. 2. And in LaTon/relle, the defendant requested that the jury be instructed that it should consider [rather than may consider] volition, cognition and capacity to control behavior in determining whether the defendant knew right from wrong and the nature of his act. 343 N.W.2d at 281. Appellant’s proposed instructions, to the contrary, did not attempt to alter the M’Naghten test; did not suggest that the jury should or must consider volition evidence; and did not suggest that evidence of volition could be considered for any purpose other than to show that defendant did not know the nature of his act or that it was wrong. Rather the proposed instructions merely advised the jury that “you may give credence” to all the evidence relating to cognition, volition, and capacity to control behavior that had been introduced.
The trial court’s refusal to give the proposed jury instructions is even more serious in light of the prosecutor’s closing argument and the extensive testimony the prosecutor elicited from the expert witnesses to the effect that evidence of volition or capacity to control behavior was irrelevant to the legal test for insanity in Minnesota. The prosecutor told the jury that volition was irrelevant and that under the law they could not question appellant’s ability to control himself. Based on this gross mischaracterization of the law, it is likely that the jury did not consider the evidence showing appellant lacked volition and did not have the capacity to control his behavior. — evidence that was critical to appellant’s defense. As the majority opinion seems to recognize, in light of the state’s gross mischaracterization of the law, it was error for the trial court not to give a curative instruction sua sponte.
In a closer case, the trial court’s failure to give the requested instruction and its failure to give a curative instruction might well be grounds for reversal and a new trial. In this case, however, where the expert testimony was unanimous that appellant knew the nature of his act and that it was wrong at the time he committed the offense, and where there was further evidence that appellant had been planning the perfect crime for over a year, I agree that the error is harmless.