Connolly v. State
| Decision Date | 28 May 2014 |
| Docket Number | Lower Tribunal No. 01-8287D,No. 3D09-280,3D09-280 |
| Court | Florida District Court of Appeals |
| Parties | John J. Connolly, Jr., Appellant, v. The State of Florida, Appellee. |
John J. Connolly, Jr., Appellant,
v.
The State of Florida, Appellee.
No. 3D09-280
Lower Tribunal No. 01-8287D
Third District Court of Appeal State of Florida
Opinion filed May 28, 2014
An Appeal from the Circuit Court for Miami-Dade County, Stanford Blake, Judge.
Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
Pamela Jo Bondi, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
SUAREZ, J.
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John J. Connolly, Jr. ["Connolly"] moves for rehearing of this Court's opinion of March 2, 2011, affirming his conviction for second-degree murder as a lesser included offense of first-degree murder, and reclassification of that conviction to a life felony for carrying a firearm at the time of the offense. We grant Connolly's motion for rehearing, vacate the conviction and sentence in Case Number 01-8287D, and remand with instructions to discharge him because the trial court impermissibly relied on an uncharged firearm to enhance the only crime for which he was convicted. Without the fundamentally erroneous reclassification, Connolly's conviction for second-degree murder as a lesser included offense of first-degree murder was barred by the applicable statute of limitation.
BACKGROUND
In 2005, former FBI agent Connolly was charged by indictment, as a principal, with co-defendants James Bulger, Stephen Flemmi and John Martorano, with first-degree murder (Count 1)1 and conspiracy to commit first-degree murder (Count 2)2. The indictment alleged that Connolly, while actively employed as an
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FBI agent, participated in a scheme to murder businessman John Callahan in South Florida on or about July 31, 1982. The State of Florida submitted evidence at trial that Connolly met many times with co-defendants Bulger, Flemmi and Martorano in New York and/or Boston over several weeks preceding the murder. The State's evidence at trial indicated that the scheme to murder Callahan occurred during these meetings. Further, the State's evidence indicated Connolly wore his FBI-issued service weapon while he was at these meetings and, by implication, over the time period Callahan was murdered. However, the State's evidence also showed that at the time of the actual murder, which occurred within or between Broward and Miami-Dade Counties, Florida, Connolly and his service weapon were both in Boston, Massachusetts. It was undisputed that co-defendant Martorano used his own gun to shoot Callahan, and that Connolly never carried, displayed, used, or threatened to use the murder weapon.
Connolly moved to dismiss Count 2 of the indictment, conspiracy to commit first-degree murder with a firearm, on the ground it failed to allege an armed conspiracy to commit first-degree murder, and therefore could not be reclassified as a life felony. Furthermore, in 1982, when the murder occurred, the statute of
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limitation for a first-degree felony was four years. § 775.15(2)(a), Fla. Stat. (1981). Thus, by the time Connolly was indicted in 2005, the four-year statute of limitation had expired some nineteen years earlier for the first-degree felonies of conspiracy to commit first-degree murder, section 777.04(4)(b), Florida Statutes (1981), and second-degree murder, section 782.04(2), Florida Statutes (1981). "It is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed." State v. Miranda, 793 So. 2d 1042, 1044 (Fla. 3d DCA 2001). Any conviction on those charges was thus barred by the four-year statute of limitation in effect at the time of the 1982 murder. The trial court denied Connolly's motion to dismiss the charge in Count 2 of conspiracy to commit first-degree murder with a firearm. Connolly did not move pre-trial to dismiss Count 1, first-degree murder with a firearm, based on the State's failure to charge him with possession of a firearm because reclassification was not an issue: first-degree murder in 1982, and at present, was a capital felony and cannot be reclassified to a higher offense.
At the conclusion of the trial, during the jury instruction conference, the discussion turned to lesser included offenses. The trial court pointed out that, were Connolly to be convicted of second-degree murder without a firearm, the statute of limitation would be found to have run and Connolly would be discharged. The
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defense repeatedly objected to inclusion of any lesser included offenses. The State requested the jury be instructed on second-degree murder with a firearm as a lesser included offense of first-degree murder. The State argued if Connolly were so convicted, it would seek reclassification of that first-degree felony to a life felony pursuant to section 775.087(1), and that a life felony was not barred by the four-year statute of limitation.3 The trial court granted the State's request over defense counsel's objection, adding "carrying a firearm," as a fourth element to the second-degree murder instructions. The jury was thus instructed that to find Connolly guilty of second-degree murder they must find the following four elements beyond a reasonable doubt: 1) Callahan is dead; 2) His death was caused by the criminal act of Connolly; 3) There was an unlawful killing of Callahan by an act imminently dangerous to another and demonstrative of a depraved mind without regard for human life; and 4) During the act, Connolly carried a firearm.
The jury acquitted Connolly of the Count 2 charge of conspiracy to commit first-degree murder with a firearm, but found Connolly guilty of second-degree murder with a firearm as a lesser included offense of first-degree murder as charged in Count 1. The verdict form simply stated, "Guilty of second-degree murder, with a firearm, as a lesser included offense of first-degree murder." Based
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on the jury's verdict that found Connolly guilty of second-degree murder "with a firearm," a time-barred first-degree felony, the trial court reclassified the conviction to a life felony pursuant to section 775.087(1), Florida Statutes (1981),4 and sentenced Connolly to forty years in prison.5
Connolly appeals from the reclassification of his conviction for second-degree murder, a first-degree felony barred by the statute of limitation, to a life felony pursuant to section 775.087(1), which is not time-barred. Connolly argues
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that, as neither the indictment nor the jury verdict support the reclassification, the reclassification was fundamentally erroneous. We agree.
1) COUNT 1 OF THE INDICTMENT FAILED TO PROVIDE NOTICE THAT CONVICTION FOR A LESSER INCLUDED OFFENSE COULD BE RECLASSIFIED BASED ON AN UNCHARGED SECOND WEAPON.
Due process of law requires the State to allege every essential element when charging a violation of law to provide the accused with sufficient notice of the allegations against him. Art. I, § 9, Fla. Const.; M.F. v. State, 583 So. 2d 1383, 1386-87 (Fla. 1991). There is a fundamental denial of due process when there is a conviction on a charge not made in the information or indictment. See Thornhill v. Alabama, 310 U.S. 88 (1940), and progeny. As noted above, the indictment alleges the four co-defendants killed Callahan "by shooting the said JOHN B. CALLAHAN with a firearm. . . ." That language accuses the four co-perpetrators of shooting the victim with a firearm (singular), but does not allege Connolly personally possessed, used, or carried a firearm, either the murder weapon or Connolly's FBI-issued firearm, during the commission of the murder. The only weapon implied by "shooting . . . JOHN B. CALLAHAN" is the murder weapon. The State acknowledges it was uncontested that the only gun used to shoot the victim was possessed and discharged by co-defendant Martorano and that Connolly is not the person who effected "the death of [the victim] by shooting [the victim] with a firearm."6 The record is clear that there was only one shooter and
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only one weapon involved in the actual offense. Count 1 of the indictment does not reference a specific subsection of section 775.087; Connolly could not reasonably have concluded that the general reference to that statute pertained to him rather than to the actual shooter Martorano. From the language of Count 1, no reasonable person could conclude that the State was planning to apply section 775.087(1), upon possible conviction for a lesser included offense, to a firearm that was not the charged murder weapon. The language, "with a firearm" is singular, and refers to the manner in which John Callahan was killed: it is clearly a reference to the only firearm used to murder Callahan. It is pure sophistry to argue that the general reference to section 775.087 in Count 1 of the indictment put Connolly on notice that his service weapon—an uncharged firearm unrelated to the murder, located in an entirely different state at the time of the offense—could later be the basis for reclassifying a time-barred conviction of a lesser included offense to a...
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