State of Minnesota, Respondent, vs. Mario F. Smeriglio, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-97-2102

State of Minnesota,
Respondent,

vs.

Mario F. Smeriglio,
Appellant.

Filed August 4, 1998
Affirmed
Short, Judge

Ramsey County District Court
File No. K097777

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, and

Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant County Attorney, Suite 315, 50 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Steven P. Russett, Assistant State Public Defender, Room 371, 875 Summit Avenue, St. Paul, MN 55105 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Norton, Judge.*

U N P U B L I S H E D   O P I N I O N

SHORT, Judge

Mario Smeriglio was convicted of a third-degree controlled substance offense in violation of Minn. Stat. § 152.023, subds. 1(1), 3(a) (1996) (sale of a mixture containing a narcotic). On appeal, Smeriglio argues: (1) his right to a speedy trial was violated; and (2) the trial court abused its discretion in excluding defense evidence and in failing to sanction the prosecution for a discovery violation. We affirm.

D E C I S I O N

I.

Both the federal and state constitutions guarantee a defendant the right to a speedy trial. U.S. Const. amends. VI and XIV; Minn. Const. art. 1, § 6. To determine whether a particular defendant's right to a speedy trial has been violated, we balance the length of the delay, the reason for the delay, the defendant's assertion of the right, and any prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93 (1972); State v. Friberg, 435 N.W.2d 509, 512 (Minn. 1989). In Minnesota, a defendant must be tried within 60 days of demanding a trial unless good cause is shown for the delay. Minn. R. Crim. P. 11.10.

Smeriglio made his initial speedy trial demand on March 21, 1997. On June 18, the trial began. Smeriglio argues his conviction should be reversed because he was denied a speedy trial. We disagree. The record demonstrates:  (1) Smeriglio's trial began 88 days after his speedy trial demand; (2) the trial was delayed due to the court's scheduling system and defense counsel's scheduling conflicts; (3) there was no evidence of bad faith by the state; (4) Smeriglio would have remained in custody pending trial due to a Hennepin County hold; and (5) although a defense witness voluntarily ignored a subpoena for the rescheduled trial date, that testimony was eventually presented to the jury by stipulation. Considering the Barker factors in light of these facts, Smeriglio's constitutional right to a speedy trial was not violated. See State v. Jones, 392 N.W.2d 224, 234-36 (Minn. 1986) (holding, given Barker factors, no violation of right to speedy trial despite a seven-month delay).

II.

Rulings on evidentiary matters rest within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. State v. Naylor, 474 N.W.2d 314, 317 (Minn. 1991). Harmless error impact analysis applies to a trial court's erroneous exclusion of defense evidence in violation of the defendant's right to present evidence. State v. Post, 512 N.W.2d 99, 102 (Minn. 1994).

The trial court excluded evidence of an acquittal involving Smeriglio's employer. Smeriglio argues the trial court's ruling constituted reversible error because the rejected evidence demonstrated police bias due to Smeriglio's lack of cooperation in that investigation and suggested Smeriglio was targeted by police. We disagree. The record demonstrates: (1) Smeriglio raised the entrapment issue through his testimony that Officer Dunnom persistently pressured him to make the sale; (2) the trial court gave an entrapment instruction; (3) there was no evidence of an on-going campaign to convict Smeriglio's employer; (4) neither investigating officer had been to Smeriglio's job site in a police capacity; and (5) one officer testified the auto business was not targeted for investigation at the time of Smeriglio's offense. Given these facts, we cannot say the trial court abused its discretion by excluding evidence of an investigation that resulted in an acquittal six years before Smeriglio's offense. See Naylor, 474 N.W.2d at 317 (stating ruling prejudicial and reversible if reasonable possibility error complained of may have contributed to conviction).

Smeriglio also argues the trial court abused its discretion in refusing to strike the criminologist's testimony due to the prosecution's failure to disclose the gas chromatography mass spectrometer (GCMS) test. Although the prosecutor's nondisclosure of the GCMS test was a violation of Minn. R. Crim. P. 9.01, subd. 1(4), we find no prejudice from the nondisclosure. First, Smeriglio admitted selling a substance from his own prescription for Dilaudid, a pain medication containing hydromorphone. Second, Smeriglio does not claim, in view of his entrapment defense, the substance he sold out of his personal prescription bottle was other than what was prescribed for him. Thus, Smeriglio failed to show a reasonable probability the disclosure of the GCMS test would have resulted in a different outcome at trial. See State v. Clobes, 422 N.W.2d 252, 255 (Minn. 1988) (stating standard for prejudice from nondisclosure of evidence). Under these circumstances, the trial court did not abuse its discretion in failing to strike the criminologist's testimony due to the prosecutor's nondisclosure.

III.

After a careful review of Smeriglio's pro se briefs, we conclude all additional claims are without merit. The trial court did not abuse its discretion in admitting, for impeachment purposes, three of Smeriglio's prior convictions. See Minn. R. Evid. 609 (providing guidelines for admission of prior conviction for impeachment purposes). In addition, there is sufficient evidence to prove predisposition based on Smeriglio's ready response to the undercover officer's solicitation of two sales in one day. See State v. Johnson, 511 N.W.2d 753, 755 (Minn. App. 1994) (holding predisposition may be established by defendant's ready response to government's solicitation of the crime), review denied (Minn. Apr. 19, 1994).

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.