Mondello v. State, s. 91-17

• Decision Date: 15 December 1992
• Docket Number: Nos. 91-17,91-18,s. 91-17
• Citation: 843 P.2d 1152
• Parties: Giuseppe MONDELLO, a/k/a Joe Mondello, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Mark Charles JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1152

843 P.2d 1152

Giuseppe MONDELLO, a/k/a Joe Mondello, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Mark Charles JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 91-17, 91-18.

Supreme Court of Wyoming.

Dec. 15, 1992.

Michael R. O'Donnell, Cheyenne (argued), for appellant Mondello.

Leonard D. Munker, State Public Defender, and David Gosar, Appellate Counsel (argued), for appellant Jones.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., and Mary Beth Wolff (argued), Asst. Atty. Gen., for appellees.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ.

CARDINE, Justice.

This is a conspiracy to sell drugs case in which there was no evidence that Giuseppe Mondello, a/k/a Joe Mondello (Mondello) and Mark Charles Jones (Jones) ever sold any drugs to anybody. There was no drug distribution ring. There was no one in the business of selling narcotics except the State's informant. Over a period of one and a half years, Mondello did no more than give money or pay money to buy drugs for himself. The case was made by a drug dealer who, in exchange for testifying to an agreement with Mondello and Jones to sell drugs, avoided prosecution for his acknowledged crime.

In this consolidated appeal, Jones and Mondello appeal their convictions for conspiracy to deliver controlled substances, marijuana and cocaine. Proof of intent was established by evidence of a reverse sting operation mounted by police officers in which they sold one, but delivered two, ounces of cocaine to Mondello. The jury, being unable to agree, refused to convict Mondello of possession of cocaine with intent to distribute but convicted appellants of agreeing to sell cocaine and marijuana.

We reverse both convictions.

Appellant Jones raises the following issues:

I. Did the prosecutor's closing argument deprive the appellant [Jones] of a fair trial?

II. Should the verdict be set aside because it is not supportable by one of the two theories on which it was offered to the jury?

III. Is there insufficient evidence to support the verdict?

IV. Did the use of leading questions and inadmissable hearsay testimony deprive the appellant of a fair trial?

V. Did the cumulative effect of the errors deprive the appellant of [a] fair trial?

Mondello raises the following issues on appeal:

1. Did the District Court's jury instructions deny the appellant due process and a fair trial by allowing the jury to convict on conspiracies which were not charged?

2. Did the conduct of the prosecutor deny the appellant due process and a fair trial?

3. Was the conduct of law enforcement so outrageous as to deny the appellant due process?

4. Was the evidence of conspiracy insufficient to allow the jury to consider the charge?

The relevant facts of this case begin with a deal made around Thanksgiving 1988. Mondello gave a man named Ronnie Lee (Lee) $1,300.00 to obtain an ounce of cocaine for him. Lee, in turn, gave the money to a source named Dara Kenney. Lee never saw Dara Kenney, any cocaine, or the money again.

Mondello was angered at Lee, who he held responsible for the loss. He subsequently paid several visits to Lee's house to demand repayment of the $1,300.00. On one of these visits, Mondello brought along a "friend" who Lee estimated was six feet tall or more and weighed 300 pounds. On another visit, Mondello told Lee that he could place a call "East" and arrange to "get guns" or have arms broken. Lee became frightened because he had no way to repay the money, so he went to the police.

Lee was introduced to Officer Glick, a deputy sheriff on special assignment to work narcotics. It was agreed that Glick would pose as the person who was given Mondello's money. Glick and Lee met Mondello at Lee's residence, where Glick used the alias "Mike Melvin." Glick promised to repay Mondello the $1,300.00 Lee owed him in exchange for Mondello letting Lee "off the hook." Glick paid Mondello $300.00 from state confiscated funds at that time. Over the next few weeks, Glick paid Mondello another $700.00, leaving $300.00 due.

Eight months later, during June 1989, Glick was reassigned by the sheriff's department, and his special assignment duties with narcotics came to an end. Essentially all that transpired during the eight-month period was repayment to Mondello of $1,000.00 by the State. The Mondello case sat dormant for the next year, or until June of 1990, when appellants Jones and Mondello met with a drug dealer named Chris Bascus (Bascus) at Bascus' home. Jones told Bascus that Mondello was looking for someone to get Mondello cocaine. Mondello wanted a supplier who could furnish him with an "eight ball" every other day. (An "eight ball" is 3 1/2 grams of cocaine. An ounce contains forty-eight grams.)

Bascus, unknown to Mondello and Jones, had been arrested for selling cocaine and had turned informant for the government, i.e., cut a deal in which he would make a case against Mondello and avoid prosecution for his own crime. He testified at trial that the deal Mondello offered was to give Bascus $1,350.00 to buy an ounce of cocaine. Bascus was then to sell the cocaine and use the profits to buy more cocaine. Mondello would take back his stake in the form of either "an eight ball a week" for his personal use, or in cash. Bascus further testified that Mondello suggested that Bascus invest in and sell marijuana to build up his money supply faster. Bascus testified that Mondello was not interested in marijuana for his personal use, only cocaine. The plan also called for Jones to help sell whatever Mondello did not use. It was Bascus' testimony about this plan which formed the alleged conspiracy of which Mondello and Jones were convicted.

Bascus informed the police of details of the plan. He then made a recorded telephone call to Mondello for the police department on June 12, 1990. Bascus told Mondello that "Mike" (Officer Glick) was back in Cheyenne and had "four big ones" (four ounces of cocaine) for Mondello. Mondello could pay for two ounces and would be "fronted" the other two to sell. Mike would set off the $300.00 still owed to Mondello against the price of the cocaine. Bascus told Mondello that Mike would only agree to front to Mondello, not Bascus, because Mike and Mondello knew each other. Bascus tried to arrange a rendezvous at the Flying J truck stop, but Mondello said he had to work and agreed only to have Jones call Bascus if he arrived that day.

Bascus managed to reach Jones at home that same afternoon. Bascus was still calling from the tapped phone. The transcript of this conversation shows that Jones thought Mondello would be reluctant to go along with Bascus' plan. Bascus described Mike's offer of the four ounces of cocaine. Jones told Bascus that Mondello would not want to buy even two ounces. Bascus offered to chip in another $700.00 so that Mondello could buy two ounces. Jones told Bascus that Mondello only wanted "what he wants * * *. He don't even want to have nothing extra or nothing." Jones said Mondello was "just going to wait till somebody keeps getting 8ths, or more so he could, 'cause that is what he wants * * *." Jones finally said he was willing to "go [along] for the ride," but he had to check it out with Mondello.

Bascus again reached Jones later that day. Jones indicated that Mondello wanted Jones to go to meet Mike at the Flying J truck stop. However, Jones did not have access to a car. Bascus agreed to give Jones a ride. While they were travelling in Bascus' car, Bascus and Jones discussed Mike's offer again. Jones told Bascus that, although he wanted all four ounces, it was up to Mondello whether the transaction would be made because Mondello had the money. (This conversation was apparently not recorded.)

Bascus and Jones ended up at Parkway Pizza, the business owned by Mondello and his wife. They were unable to discuss the drug transaction in detail because Mondello's wife was present. However, Jones later told Bascus that, during the visit to Parkway Pizza, Mondello gave Jones a total of $1,000.00 to buy cocaine: $300.00 from a cash register and $700.00 he had concealed in his sock.

Jones and Bascus proceeded to the Time Out, a video arcade. On the way, they had a conversation concerning cocaine. Bascus was wearing a body mike, but the sound quality was so poor, the tape was not played for the jury except to demonstrate the poor sound quality. Neither Mondello nor Jones met with Mike (Officer Glick) that day.

Later in the afternoon, Bascus placed a recorded call to Jones and informed him that Mike (Officer Glick) was not able to meet with them that day because it was raining and hailing in Denver, and Mike could not ride his motorcycle in the rain up to meet them. Bascus told Jones that he had instructed Mike to call Mondello. Jones remarked that "I don't think he [Mondello] will want it." Jones asked Bascus about "another place" where Bascus could obtain an ounce of cocaine. Bascus said he would try.

Officer Glick, again posing as Mike Melvin, called Mondello at 4:30 p.m. that afternoon to apologize for not being able to make the delivery. Mike (Officer Glick) told Mondello that it had rained and that he was stuck in Denver because he could not ride his motorcycle safely in the rain. Mondello and Glick talked in coded language because of Mondello's (justified!) fear that his phone might be tapped. Glick suggested Mondello take "four cases" (ounces), and Mondello indicated he was interested in two. Mondello inquired as to the purity of the cocaine ("skim" v. "100% whole milk") and, when told that it was "100% whole milk," stated cryptically "[y]eah, people like better like that." The two agreed to a price of $900.00 per ounce for the cocaine.

On the next day, Glick placed several calls attempting to get back with Mondello and to reach Jones. He finally was able to speak to Mondello. Mondello asked...