dissenting.
I feel I must dissent from the conclusion of the court that this conviction must be reversed. Certainly the trial judge will have substantial reason to be disappointed in the result reached by the majority. He did his very best to treat with this problem, and the record demonstrates unequivocally that he invoked the amended statute with the acquiescence of both the defendant and the State of Wyoming. In some instances the only appropriate comment is a classic cliche, and our rule of law of the case covers this situation like a blanket. I would hold that because the case was tried and the instruction given under the amended statute with the clear concurrence of the defendant the instruction became the law of this case, and the judgment should be affirmed.
There can be no question that Section 2 of Chapter 179, Session Laws of Wyoming, 1983, was the basis for the comment of the trial court when, more than one month prior to trial in proceedings which addressed the issue of insanity including the burden of proof, it called to the attention of counsel the issue of whether the jury should be instructed under the statute as it read prior to July 1,1983 or as it read after July 1, 1983. At that time the judge said:
“I want to say one other thing on the record here, and that is I raised the question with you before of whether or not this was — and in spite of the fact that the statute says that it will take effect for crimes charged after July first, 1983 —I raised that question of is that procedural or is that substantive, and since neither one of you have addressed that I assume that you both conclude that it’s procedural and there are no problems with it.”
So far as the record discloses neither counsel made any comment.
There then occurred a discussion of instructions, and with respect to the insanity instruction this dialogue occurred:
“[COUNSEL FOR DEFENDANT]: Your Honor, it has just come to my attention this — this—this instruction is still under the old statute.
“THE COURT: Right.
“[COUNSEL FOR DEFENDANT]: And I didn’t even pay any attention to that after it was drafted, so if you’d like me to redraft an instruction I’d be happy to do that. Or we can just amend it right here.”
After that there was dialogue which resulted in a conclusion on the part of the court that it would hold a hearing prior to trial to determine whether the defendant was able to produce sufficient evidence of insanity to meet his burden of showing insanity by a preponderence of the evidence. The court indicated that if the defendant could not do that the issue would not be submitted to the jury. Later in the day, however, the court again met with counsel, and the court then said:
“THE COURT: I was doing some additional research over the noon hour, and I discovered that I made two errors when we were talking before.
*1284“One of the errors was that, based upon — I was reading something into the statutes which is just not there, and that was that the State retains some obligation to prove the defendant’s sanity beyond a reasonable doubt.
“Now, that’s not in the statutes. And I guess I was getting confused by reading some of those other cases on affirmative defenses. And, so, that obviates the need, in my opinion, for this evidentiary hearing, and I intend to instruct the jury that it will be — well, I’m going to instruct them substantially as follows:
“ ‘Under certain circumstances, a person is not responsible for his criminal acts. “ ‘The defendant has entered a plea of not guilty by reason of mental illness or deficiency. Every defendant is presumed to be mentally responsible.
“ ‘To overcome that presumption, the defendant must prove to your satisfaction by a greater weight of the evidence the following:
“ ‘First, at the time of his acts, the defendant lacked substantial capacity either, (a), to appreciate the wrongfulness of the acts, or (b), to conform his conduct to the requirements of law, and that the lack of substantial capacity was due to a mental illness or deficiency.
“ ‘Mental illness or deficiency means only those severely abnormal mental conditions that grossly and demonstrably impair a person’s perception or understanding of reality and that are not attributable primarily to self-induced intoxication.
“ ‘In considering whether the defendant has met the burden of proving those propositions by a greater weight of the evidence, you should consider all of the evidence presented on that subject, whether presented by the State or by the defendant. If, at the conclusion — if you conclude that it’s more likely than not that the defendant has overcome the presumption, you should find him not guilty.’
“Now, I will entertain variations of that as you all may wish to submit. But that’s substantially — she can type it for you — substantially what I’ll be — what I have in mind.”
No objection was made at that time to the proposed instruction by the defendant.
This matter came up again some five days prior to trial when the following dialogue occurred:
“[COUNSEL FOR DEFENDANT]: I believe there was a — I received a copy of an instruction that I believe you sent around on Friday. I don’t know if Jack has seen that yet or not.
“THE COURT: I thought I sent it over earlier than Friday but okay. That’s the mental illness and deficiency?
“[COUNSEL FOR DEFENDANT]: Yes, that’s the Court’s proffered instruction. I just — I have no objection to this. I think it’s all right, and, so, I don’t know if — if—well—well—
“THE COURT: It’s changed somewhat from the one I previously had done.
“[COUNSEL FOR DEFENDANT]: The only — the only item that I wanted to make note of was where you mentioned in your definition of mental illness and you talk about something that’s not attributable primarily to self-induced intoxication.
“I would assume that that was included in there only because it’s just standard, part of the definition, not because there’s any evidence of intoxication in this particular case.
“THE COURT: Right. It’s — it’s right out of the statute.
“[COUNSEL FOR DEFENDANT]: Right, Okay.
“[COUNSEL FOR THE STATE]: We have no objection to it.”
For completeness I note that the following colloquy occurred after the instructions were read to the jury and after closing argument:
“THE COURT: As I was reading the jury instructions, I remembered that there was an error in Instruction No. 11 where it provided that the evidence — if you find from the evidence in the case *1285beyond a reasonable doubt that the defendant was mentally responsible — as I was reading it, I recognized that I’d made the error, and I thought about going back and correcting it but decided that it would unnecessarily highlight that for the jury. So, what I have done is struck that portion — obliterated it from the written jury instructions.
“If there is an objection to that, put it on the record now.
“[FIRST COUNSEL FOR DEFENDANT]: This is how you read it, with that out of it, didn’t you?
“THE COURT: I read it with that in, unfortunately.
“[FIRST COUNSEL FOR DEFENDANT]: I didn’t catch it.
“[SECOND COUNSEL FOR DEFENDANT]: I didn’t catch it.
“THE COURT: I don’t see how it can possibly be a prejudice to the defendant because it would certainly be in his favor. And it’s not the law, and I have struck it out and obliterated it, and I’ve done that on the original and on both copies of the jury instructions which are going to go to the jury.
“Mr. Sundquist also mentioned it in his closing and mentioned it beyond a reasonable doubt. If there is any confusion, I would think it would go to — to the benefit of the defendant.
“[COUNSEL FOR THE STATE]: It was a little too late for me to change once I had said it and realized the problem.
“THE COURT: Well, I had the same problem, of course. Do you want to have any — do you want to—
“[FIRST COUNSEL FOR DEFENDANT]: I think we probably got the best of it already.
“[SECOND COUNSEL FOR DEFENDANT]: We have nothing to say, so—
“THE COURT: Okay. All right.
“THE COURT: What I wanted was if you had any objection before I sent it in to the jury. I wanted to give you the opportunity to get it on the record. “Here are the jury instructions, then.”
With respect to law of the case in criminal matters the court has said:
“We make no determination as to the correctness of the instruction on entrapment because there was no objection to it by the State, and therefore as to the state the instruction became the law of the case and is not open to review by this court on appeal. Vinich v. Teton Construction Co., Wyo., 518 P.2d 137, 138; Gifford-Hill Western, Inc. v. Anderson, Wyo., 496 P.2d 501, 503, and 88 C.J.S. Trial § 425, p. 1151. * * * ” Janski v. State, Wyo., 529 P.2d 201, 202 (1974), vacated on rehearing for other reasons, 538 P.2d 271 (1975).
“Neither instruction being objected to by either party, they became the law of this case.” Russell v. State, Wyo., 583 P.2d 690, 700 (1978).
“⅜ * * [T]his instruction nevertheless became the law of this case, in the absence of objection. Matter of Estate of Mora, Wyo., 611 P.2d 842, 846 (1980) and cases there cited. * * * ” Apodaca v. State, Wyo., 627 P.2d 1023, 1027, n. 6 (1981).
While it may be conceded that the law of the case rule is controlled by the concept of plain error, my interpretation of the record in this case is that there was sufficient participation and acquiescence by the defendant with respect to these instructions that the concept of invited error should be invoked. In similar instances we then have taken the stand that a reversal of a conviction will not be premised upon invited error. Settle v. State, Wyo., 619 P.2d 387 (1980); Burns v. State, Wyo., 574 P.2d 422 (1978).
One final matter occurs to me and that is whether the evidence adduced by the defendant was sufficient to raise an issue of mental illness or deficiency. It seems clear to me that under the new version of the statute and the definition given to the jury the defendant’s evidence was not sufficient. His medical expert testified only as to a severe depression and, I think, conceded that this is not a mental illness under the language of the statute. Neither is it a *1286mental deficiency according to the definition used in § 7-11-301, W.S.1977. Even if the earlier statute is to be applied I have a serious question as to whether the defendant met his burden of going forward and entering evidence on the issue of mental responsibility. In this instance counsel for the state apparently conceded that this had been done. Upon any retrial, however, I am persuaded that counsel should not make the same concession unless some evidence beyond that which is set forth in this record is adduced on behalf of the defendant.