State v. Carignan , 271 N.W.2d 442 ( 1978 )

PER CURIAM.

Defendant, who raised the insanity defense at his trial on charges of aggravated sodomy, Minn.St. 609.293, subd. 2, and attempted first-degree murder, §§ 609.17 and 609.185, was found guilty by a district court jury of both charges and was sentenced by the trial court to the maximum term of 30 years in prison on the sodomy charge. Defendant appeals from judgment of conviction, and we affirm.

Defendant s main contention on appeal is that the trial court erred in refusing to allow defense counsel to explain postver-dict consequences of a finding of not guilty by reason of insanity and that the trial court erred in failing to instruct, sua sponte, on the consequences of such a verdict. The general approach of this court has been to prohibit any argument or instruction on the consequences of a jury verdict in a criminal case. State v. Meany, 262 Minn. 491,115 N.W.2d 247 (1962); State v. DePauw, 243 Minn. 375, 68 N.W.2d 223 (1955); State v. Gensmer, 235 Minn. 72, 51 N.W.2d 680 (1951). The specific issue whether an exception to this rule should be made with regard to the effect of a verdict of not guilty by reason of insanity was carefully considered and decided negatively by this court in State v. Bott, 310 Minn. 331, 246 N.W.2d 48 (1976). The Bott case is dispositive of this contention of defendant.

Defendant’s other contentions relate to the trial court’s refusal to grant a mistrial when the prosecutor cross-examined defendant about his criminal record, the trial court’s denial of surrebuttal testimony by defendant’s psychiatric witness, the trial court’s denial of mid-trial sequestration of the jury after a potentially prejudicial newspaper story was published, and whether the evidence was such as to mandate a finding of not guilty by reason of mental illness.

Defense counsel opened the matter of defendant’s juvenile record on direct examination of defendant and, even if the prosecutor’s questioning of defendant was error — something we need not decide — -the trial court did not err in denying a mistrial because defense counsel had already elicited evidence about defendant’s prior criminal record, as well as evidence of another violent crime for which defendant had not been prosecuted. Under the circumstances, defendant simply could not show that the questions about his juvenile record prejudiced him.

The trial court did not abuse its discretion in denying the defense permission to call its psychiatric expert in surrebuttal because he already had had an opportunity to testify on the matter to which the prosecutor’s testimony related.

Defendant has not shown that the trial court’s denial of his mid-trial motion for sequestration of the jury prejudiced his case. In fact, there is no evidence on the record that the jury ever read the article which prompted the motion. We must presume that they did not because the trial court carefully instructed them not to expose themselves to any media accounts of the trial. Finally, it appears that even if the jury had read the article in question— which was about a similar attack by defendant on another young woman — it is not clear that the jury would have been prejudiced by it. As we indicated, the defense on its own elicited testimony about one such other incident.

There is no merit to defendant’s contention that the evidence mandated a verdict of not guilty by reason of insanity. In State v. Hoskins, 292 Minn. 111, 193 N.W.2d 802 (1972), we affirmed a conviction even though the defendant’s expert testimony on the issue of insanity was unrebutted. Here the testimony of the defendant’s expert was rebutted.

Affirmed.