Connolly, Jr. v. State

Third District Court of Appeal

State of Florida

Opinion filed July 29, 2015.

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No. 3D09-280

Lower Tribunal No. 01-8287D

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John J. Connolly, Jr.,

Appellant,

vs.

The State of Florida,

Appellee.

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; Katherine Fernandez Rundle, State Attorney, and Joel D. Rosenblatt and

Michael Von Zamft, Assistant State Attorneys, for appellee.

Before SUAREZ, C.J., and WELLS, SHEPHERD, ROTHENBERG, LAGOA,

SALTER, EMAS, FERNANDEZ, LOGUE and SCALES, JJ.

ON MOTION FOR REHEARING EN BANC

ROTHENBERG, J.

Based on the State of Florida’s (“the State”) motion for rehearing/rehearing

en banc, we grant rehearing en banc, withdraw this Court’s opinion issued on May

28, 2014, and issue the following en banc opinion affirming John J. Connolly, Jr.’s

(“the defendant”) conviction for second degree murder with a firearm in its stead.

As the State correctly noted in its opening statement at the en banc oral

argument before this Court, and which is supported by the record:

John Connolly [was] not an innocent FBI Agent sitting at his desk a

thousand miles away from the murder. John Connolly [was] the

primary mover who started the murder in action. It was his phone call

to Whitey Bulger telling him that the FBI [was] going to question—

[was] looking for John Callahan—going to squeeze him—if they

squeeze him he will talk, if he talks we will all go to jail. You gotta get

Johnny Martorano and have him take care of him. That was the initial

act which caused the death of the victim. . . . Defendant’s act as an

aider and abettor, an accessory before the fact, became a crime once the

crime was committed here in Florida.

The defendant and his co-defendants were charged with first degree

premeditated murder (Count I) and conspiracy to commit first degree murder (Count

II). The defendant and co-defendants were tried separately, and the jury convicted

the defendant of second degree murder with a firearm as a lesser included offense of

first degree murder. The second degree murder conviction was reclassified from a

first degree felony to a life felony pursuant to section 775.087(1), Florida Statutes

(1981), based on the jury’s specific finding that the defendant was armed with a

firearm during the acts giving rise to his liability for second degree murder.

The defendant does not dispute the sufficiency of the evidence relied on by

2

the jury in finding him guilty of second degree murder, nor does he dispute that he

carried a firearm on his person during the acts he committed as a principal to the

murder. The evidence as to both his participation in the murder and his possession

of a firearm during his participation is overwhelming. Rather, the defendant disputes

the legality of the reclassification of the second degree murder from a first degree

felony to a life felony even though the reclassification was based on his actual

possession of a firearm. The reclassification issue is dispositive, as it is undisputed

that the indictment was filed in 2005 and the homicide was committed in 1982.

Thus, without the reclassification from a first degree felony to a life felony, the

defendant’s conviction must be vacated due to the expiration of the four-year statute

of limitations for first degree felonies pursuant to the law that was in effect in 1982. 1

§ 775.15(2)(a), Fla. Stat. (1981).

The defendant contends that the firearm reclassification was error because:

(1) there was a defect in the charging document; (2) the jury verdict was insufficient

to subject him to reclassification; (3) reclassification cannot be based on a co-

defendant’s use of a firearm during the commission of the offense; and (4) there was

no evidence that the defendant carried a firearm during the commission of the

murder.

1

Presently, a prosecution for “a felony that resulted in a death may be commenced

at any time.” § 775.15(1), Fla. Stat. (2014).

3

As will be detailed herein: (1) the defendant failed to raise an objection to

any defect in the charging document and therefore waived his objection to the

indictment, and no fundamental error has been demonstrated; (2) his argument

regarding the verdict form was also not raised and therefore waived, and it is

completely without merit; (3) reclassification of the second degree murder was based

on the defendant’s personal possession of a firearm during the commission of the

homicide, not on the vicarious possession of a firearm by a co-defendant; and (4)

there was abundant evidence that the defendant personally carried a firearm during

the commission of the homicide.

SUMMARY OF THE CASE

The 2005 indictment charged the defendant and his co-defendants in Count I

as follows:

Count I

[T]hat on or between the 31st day of July, 1982, and the 2nd day

of August, 1982, within the Counties of Miami-Dade and Broward,

State of Florida, JAMES J. BULGER, STEPHEN J. FLEMMI, JOHN

V. MARTORANO and JOHN J. CONNOLLY, JR., did unlawfully and

feloniously kill a human being, to wit: JOHN B. CALLAHAN, from a

premeditated design to effect the death of the person killed or any

human being, by shooting the said JOHN B. CALLAHAN with a

firearm, in violation of s. 782.04(1), s. 775.087 and s. 777.011, Florida

Statutes, to the evil example of all others in like cases offending and

against the peace and dignity of the State of Florida.

To understand the murder of John B. Callahan (“Callahan”) and the

defendant’s involvement in Callahan’s murder, a summary of the evidence

4

established at trial is necessary. The evidence at trial revealed that Callahan’s

murder was the last of several murders committed by and/or for the benefit of James

“Whitey” Bulger, Stephen Flemmi, John Martorano, and the Winter Hill Gang, an

organized crime organization working out of Boston, Massachusetts. The chain of

events that led to Callahan’s murder began in 1973.

In 1973, the defendant, an agent working for the Federal Bureau of

Investigation (“FBI”), was transferred to the Boston office of the FBI where he was

assigned to the organized crime division. In 1975, the defendant recruited Bulger

and Flemmi to work as FBI informants, and over time, the defendant became

corrupted by his relationship with Bulger, Flemmi, and the Winter Hill Gang.

Although he provided some of the information he obtained from Bulger and Flemmi

to the FBI, the defendant also submitted false and misleading information and

reports to the FBI to protect Bulger and Flemmi, and he provided Bulger and Flemmi

with confidential FBI and law enforcement information, which enabled Bulger and

Flemmi to avoid arrest and prosecution by federal, state, and local law enforcement.

Flemmi testified that the defendant was considered a member of their criminal

organization and that he was essentially on their payroll. In exchange for the

defendant’s services (providing misleading and false information to the FBI and

giving Bulger and Flemmi confidential law enforcement information), the defendant

was paid large sums of money. Bulger and Flemmi also used the defendant as a

5

conduit for the delivery of cash and gifts from Bulger and Flemmi to other FBI

agents. Thus, the defendant was working both sides and profiting from each. He

benefited professionally by providing organized crime information to the FBI, and

he benefited personally and financially by assisting Bulger and Flemmi.

The jury learned about some of the confidential information the defendant

provided to Bulger and Flemmi. For example, in 1976, the defendant warned Bulger

and Flemmi that Richard Castucci, another FBI confidential informant, had given

the FBI the location of two Winter Hill Gang members who were federal fugitives.

Based on the information provided to them by the defendant, Bulger and Flemmi

warned the two fugitives, and they, along with Martorano, murdered Castucci for his

disclosures to the FBI. In 1978, the defendant also warned Bulger and Flemmi that

they were about to be indicted in a federal racketeering case, but the defendant told

them that if they agreed not to kill Anthony “Tony” Ciulla, who was cooperating

with the government as a witness against members of their criminal organization,

Bulger and Flemmi would not be indicted. Additionally, the defendant warned

Bulger and Flemmi that Martorano was going to be indicted. As a result, Martorano

went into hiding in Miami.

In 1978, Callahan, the victim in the instant case, was the owner and president

of World Jai Alai. When Callahan learned that the authorities in Connecticut had

discovered his ties to the Winter Hill Gang and other organized crime figures in

6

Boston, he sold World Jai Alai to Roger Wheeler (“Wheeler”). Four years later,

when Callahan decided that he wanted to repurchase World Jai Alai from Wheeler,

but Wheeler refused to sell, Callahan solicited Bulger, Flemmi, and Martorano to

murder Wheeler. On May 27, 1981, Martorano shot and killed Wheeler at a country

club in Tulsa, Oklahoma.

During its investigation of the Wheeler murder, the FBI began searching for

members of the Winter Hill Gang to cooperate with the FBI. Brian Halloran

(“Halloran”), a member of the Winter Hill Gang who had been indicted for an

unrelated murder in Boston, agreed to cooperate with the FBI in the Wheeler murder

investigation in order to obtain leniency in his pending case.

When the defendant learned from his supervisor, Special Agent John Morris,

that Halloran was cooperating with the FBI and that Halloran had implicated Bulger

and Flemmi in the Wheeler murder, the defendant warned Bulger and Flemmi. After

this initial warning, the defendant contacted Bulger and Flemmi again to warn them

that the FBI had outfitted Halloran with a body wire and had directed Halloran to

meet with Callahan. After being alerted by the defendant, Bulger and Flemmi

warned Callahan that Halloran intended to inform on him, and Bulger, with the help

of other Winter Hill Gang members, murdered Halloran.

Because the Halloran murder was committed on a public street in Boston, the

investigation intensified. In an effort to deflect suspicion away from Bulger,

7

Flemmi, and the Winter Hill Gang, the defendant prepared and submitted a series of

false reports suggesting that other organized crime factions in Boston were

responsible for Halloran’s murder. Despite the defendant’s efforts, the FBI

continued to believe that Bulger and Flemmi were involved in the Wheeler and

Halloran murders, and its investigation focused on locating Callahan to obtain his

cooperation. When the defendant learned that the FBI was looking for Callahan, the

defendant contacted Bulger and Flemmi and told them that Callahan would likely

cooperate and implicate Bulger, Flemmi, and Martorano in the Wheeler murder, and

the defendant suggested that they contact their hit man, Martorano, to “handle it” so

none of them would be caught.

Thereafter, Bulger and Flemmi met with Martorano, informed him what the

defendant had told them, and Martorano agreed to kill Callahan before the FBI could

locate him, specifically agreeing to kill Callahan in Florida because of the “heat on

them” in Boston. After meeting with Martorano, Bulger and Flemmi met with the

defendant and told the defendant that Martorano and his associate, Joe MacDonald,

were going to “take care of” Callahan. Flemmi testified that the defendant clearly

knew that “tak[ing] care of” Callahan meant they were going to have Callahan killed

based on the information the defendant had given them—that the FBI would find

Callahan, who would likely cooperate with the FBI and implicate Bulger, Flemmi,

and Martorano in Wheeler’s murder. On July 31, 1982, Martorano met Callahan at

8

the Fort Lauderdale Airport, shot Callahan in the back of the head, put Callahan in

the trunk of a car, and left the car and body at the Miami International Airport.

In anticipation of Callahan’s murder, the defendant filed false reports with the

FBI in an effort to mislead the FBI and to protect Bulger and Flemmi. In these

reports, the defendant provided alibis for Flemmi and Bulger for both the Halloran

murder and the planned Callahan murder, and the defendant also falsely reported

that Callahan had a falling-out with a group of Cuban drug dealers in Miami in order

to deflect the FBI’s attention away from Flemmi, Bulger, and Martorano.

After Callahan was murdered, the FBI and other law enforcement agencies

redoubled their efforts into the investigation, and the defendant continued to

manipulate the system to protect Bulger, Flemmi, and himself. However, in 1990,

after the defendant had retired from the FBI, Bulger and Flemmi became the subjects

of a federal grand jury investigation. The defendant, who had maintained his

relationship with other FBI agents, kept Bulger and Flemmi informed as to the

progress being made in the FBI’s investigation of Bulger and Flemmi, and, when the

defendant learned Bulger and Flemmi were about to be indicted by the federal grand

jury and arrested, he warned them. Bulger went into hiding, while Flemmi, who did

not react quickly enough, was arrested.

After Flemmi was arrested, the defendant wrote a letter to the presiding

federal judge in an effort to have Flemmi’s case dismissed. Many of the statements

9

he made in this letter were false. The defendant also provided sensitive FBI

information and documents to Flemmi’s defense attorney, and he counseled Flemmi

to falsely testify that the defendant’s supervisor, Special Agent Morris, warned

Bulger about the federal indictment rather than the defendant.2 Ultimately, however,

Flemmi and others agreed to cooperate with the FBI and other law enforcement

agencies, and an amended indictment was filed in 1995 charging the defendant,

along with the previously-charged co-defendants (Bulger, Flemmi, and Martorano),

with Callahan’s murder. The defendant was tried, and on November 6, 2008, the

jury found the defendant guilty of the reclassified lesser included offense of second

degree murder with a firearm.

ISSUES RAISED ON APPEAL

I. The indictment

The defendant argues that the indictment failed to provide him with sufficient

notice that if he was convicted of a lesser included offense of first degree murder,

the lesser included offense could be reclassified based on the defendant’s personal

possession of a firearm during the commission of the murder. However, because the

defendant did not raise a challenge or an objection to the indictment or otherwise

2

Morris and other FBI agents received money and gifts from Bulger and Flemmi

while the defendant was still employed by the FBI. The defendant served as an

intermediary to deliver the money and gifts to these agents. Morris, who testified at

the defendant’s trial, admitted that the defendant delivered money and gifts to him

from Bulger and Flemmi.

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challenge the reclassification before submitting the reclassification issue to the jury,

the defendant has waived the right to contest that issue unless he can demonstrate

fundamental error. Specifically, the defendant did not claim that the second degree

murder could not be reclassified due to a defect in the indictment or based on the

evidence presented until one month after the jury’s verdict, and even then, he did not

claim surprise or the lack of due process. Thus, he has failed to preserve any

objection to the reclassification of his second degree murder conviction based on a

defect in the indictment, and therefore, he must establish fundamental error on this

claim to obtain a reversal.

The defendant cannot demonstrate fundamental error because possession of a

firearm is not a necessary element of second degree murder; the indictment charges

that the second degree murder was committed with a firearm; the indictment

references section 775.087, the firearm reclassification/enhancement statute, in both

the heading and in the body of the indictment; the State specifically informed the

defendant that it intended to prove that he personally carried a firearm during the

commission of the murder; the defendant has never claimed surprise or that he was

prejudiced in the preparation or presentation of his defense by the reclassification of

the homicide offense under section 775.087; and the reclassified second degree

murder was not greater in degree or penalty than the charged first degree

premeditated murder.

11

A. The defendant failed to preserve the alleged defect in the indictment

and therefore waived that issue.

To preserve error for appellate review, a contemporaneous, specific objection

must be made during trial. Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008); Gore

v. State, 964 So. 2d 1257, 1265 (Fla. 2007). The Florida Supreme Court has

explained that “[t]his requirement is ‘based on practical necessity and basic fairness

in the operation of a judicial system.’” Insko v. State, 969 So. 2d 992, 1001 (Fla.

2007) (quoting Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).

At no time prior to the jury’s verdict did the defendant raise a challenge or an

objection to the reclassification of the murder charged in Count I based on the

sufficiency of the indictment. He did not claim the indictment was imprecise,

imperfect, or defective. At the charge conference, when the State sought

reclassification of the homicide based on the defendant’s personal possession of a

firearm during the acts the defendant committed as a co-perpetrator (principal in the

first degree) to the homicide, the defendant did not claim surprise, lack of due

process, or that the second degree murder could not be reclassified due to a defect in

the indictment. In fact, the first time the defendant challenged the sufficiency of the

indictment to permit reclassification of the homicide was one month after the jury’s

verdict in his untimely filed motion for arrest of judgment, and even to this day, he

has not claimed surprise or prejudice in the preparation of his defense. At the charge

conference, the defendant generally objected to the jury being instructed on all of

12

the lesser included offenses of first degree premeditated murder because they were

time-barred, but the defendant conceded that second degree murder with a firearm

was not time-barred because it was a life felony, and he did not claim or argue that

the second degree murder could not be reclassified based on a defect in the

indictment.

The case law is clear: The failure to object to a technical deficiency in the

charging document constitutes a waiver, and the time to raise a challenge to the

charging document is prior to the jury’s verdict so the deficiency can be cured, not

after the verdict is rendered. State v. Burnette, 881 So. 2d 693, 693-94 (Fla. 1st DCA

2004). Additionally, the specific argument or legal ground raised on appeal must

have been raised and argued below. Bertolotti v. Dugger, 514 So. 2d 1095, 1096

(Fla. 1987) (“[T]o preserve an issue for appellate review, the specific legal argument

or ground upon which it is based must be presented to the trial court.”); see

also Tolbert v. State, 679 So. 2d 816, 818 (Fla. 4th DCA 1996) (en banc) (finding

that, although a necessary element of the lesser included offense was not alleged in

the information, the defendant’s objections were not specific enough to preserve the

issue for appellate review); Wilson v. State, 383 So. 2d 670, 671 (Fla. 5th DCA

1980) (finding that the defendant cannot claim error on appeal where he did not

assert the State’s failure to allege the necessary elements of a permissive lesser

included offense as a ground for his objection).

13

A general objection to all lesser included offenses, the same objection made

by the defendant in the instant case, has been found by Florida courts to be

insufficient to apprise the trial court of the specific reason for the defendant’s

objection. For example, in Tolbert, 679 So. 2d at 818, the Fourth District Court of

Appeal, sitting en banc, declined to address the defendant’s claim on appeal that the

charging document did not sufficiently allege the elements of the lesser included

offense for which the defendant was convicted because the defendant failed to raise

this specific ground before the trial court. Specifically, the Fourth District stated:

We agree with the state that this issue was not preserved for appeal

because appellant’s general objections to instructions on any lesser

included offenses did not apprise the trial court of the ground now relied

upon by the appellant, i.e., that an element of aggravated battery was

not alleged in the information. It is well settled that in order to preserve

an issue for appellate review, the specific legal ground or argument

relied upon for appeal must have been presented to the trial court.

Id.

Similarly, in Courson v. State, 414 So. 2d 207, 209 (Fla. 3d DCA 1982), this

Court found that Courson’s objection to all lesser included offenses was not

sufficient to put the trial court on notice of his specific objection. This Court held

that “a defendant must state distinctly the matter to which he objects and the grounds

of his objection” to preserve his objection for appellate review. Id.

In the instant case, the defendant generally objected to all lesser included

offenses. The only specific objection he made to the lesser included offenses of first

14

degree murder was that they were time-barred. The defendant therefore failed to

preserve the specific ground upon which his appeal is now based—that second

degree murder could not be reclassified to the non-time-barred offense of second

degree murder with a firearm based on a deficiency in the charging document. Thus,

any defect or deficiency as to Count I in the indictment was waived, unless the

defendant can demonstrate fundamental error.

B. The alleged defect in the charging document does not constitute

fundamental error.

Because the defendant did not object to the reclassification of second degree

murder under section 775.087(1) based on a deficiency in the indictment, he must

demonstrate that fundamental error occurred. See Jackson, 983 So. 2d at 568

(“Errors that have not been preserved by contemporaneous objection can be

considered on direct appeal only if the error is fundamental.” (citing Goodwin v.

State, 751 So. 2d 537, 544 (Fla. 1999))); see also § 924.051(3), Fla. Stat. (2008)

(“An appeal may not be taken from a judgment or order of a trial court unless a

prejudicial error is alleged and is properly preserved or, if not properly preserved,

would constitute fundamental error.”).

A review of the indictment, the case law, and the record demonstrates that

Count I was not fundamentally defective because: (1) the indictment did not omit

an essential element of the charged offense; (2) the indictment referenced section

775.087 in the heading and the body of the charges; (3) the defendant had notice that

15

the State would be seeking a reclassification of his conviction under section 775.087

based on the defendant’s personal possession of a firearm during the commission of

the homicide; (4) at no time during the years of postconviction litigation has the

defendant claimed surprise or prejudice in the preparation or presentation of his

defense; and (5) the reclassified second degree murder was not greater in degree or

penalty than the charged first degree murder.

(1) Count I of the indictment did not omit an essential element of the crime.

Under Florida law, technical defects in a charging document are treated

differently than the failure to allege an essential element of the crime. An indictment

that wholly omits an essential element of a crime is a fundamental defect that may

be raised at any time because the indictment fails to charge a crime when an essential

element is omitted. State v. Gray, 435 So. 2d 816, 818 (Fla. 1983). Use or

possession of a firearm, however, is not an essential element of second degree

murder, 3 but rather, it may serve to allow for a reclassification of the second degree

murder from a first degree felony to a life felony or as an enhancement of the

sentence imposed. See § 775.087.

Because the defect was not the omission of an essential element of the crime,

3

The elements of second degree murder are: (1) the victim is dead; (2) the death

was caused by the criminal act of the defendant; and (3) there was an unlawful killing

of the victim “by any act imminently dangerous to another and evincing a depraved

mind regardless of human life . . . .” § 782.04(2), Fla. Stat. (1981).

16

the defect is fundamental only if the defendant demonstrates that he was denied due

process. In other words, because the defendant did not specifically and timely object

to reclassification based on a defect in the indictment, and the defect was not the

omission of an essential element, he has waived the defect unless he can demonstrate

that he had no notice that a conviction for second degree murder could subject him

to a reclassification under section 775.087(1) if the jury found he carried a firearm

during the commission of the felony. See Delgado v. State, 43 So. 3d 132, 133 (Fla.

3d DCA 2010) (“An information is fundamentally defective only where it totally

omits an essential element of the crime or is so vague, indistinct or indefinite that

the defendant is misled or exposed to double jeopardy.”); State v. Wimberly, 459

So. 2d 456, 458-59 (Fla. 5th DCA 1984) (“There is a difference between an

information that completely fails to charge a crime and one where the charging

allegations are incomplete or imprecise. The former is fundamentally defective.

However, where the information is merely imperfect or imprecise, the failure to

timely file a motion to dismiss under Rule 3.190(c) waives the defect and it cannot

be raised for the first time on appeal. . . . If the information recites the appropriate

statute alleged to be violated, and if the statute clearly includes the omitted words, it

cannot be said that the imperfection of the information prejudiced the defendant in

his defenses.” (citations omitted) (quoting Jones v. State 415 So. 2d 852, 853 (Fla.

5th DCA 1982))); Brewer v. State, 413 So. 2d 1217, 1221 (Fla. 5th DCA 1982) (en

17

banc) (finding no fundamental error where the deficiency of the charging document

was not a total omission of an essential element of the crime); Kane v. State, 392 So.

2d 1012, 1013 (Fla. 5th DCA 1981) (same); State v. Cadieu, 353 So. 2d 150, 151

(Fla. 1st DCA 1977) (“The law does not favor a strategy of withholding attack on

the information until the defendant is in jeopardy, then moving to bar the prosecution

entirely.”).

In the instant case, it is undisputed that the indictment properly charged all of

the elements of second degree murder, and, as will be discussed in the following

sections, the indictment did not mislead the defendant because he had notice that a

conviction as to Count I could subject him to a reclassification of the offense based

on his personal possession of a firearm during the commission of the offense.

(2) There was no fundamental error because the indictment referenced

section 775.087 in the heading and the body of the charge.

In Mesa v. State, this Court, relying on binding Florida Supreme Court

precedent, noted that even where the charging document fails to include an essential

element of a crime, the defendant’s failure to file a pretrial motion to dismiss the

indictment or information constitutes a waiver if the charging document references

the specific criminal code the defendant is charged with violating. 632 So. 2d 1094,

1097-98 (Fla. 3d DCA 1994) (citing DuBoise v. State, 520 So. 2d 260, 265 (Fla.

1988)). Applying this standard, this Court held that where the information charging

Mesa with attempted second degree murder failed to allege that Mesa possessed a

18

firearm during the commission of the felony, the information was not

fundamentally defective because it referenced section 775.087 as one of the

statutes the defendant had allegedly violated; the jury found the defendant guilty

of possessing a firearm during the commission of the offense; and there was

competent evidence to support the jury’s finding. Id. at 1097-98; see also Baker v.

State, 4 So. 3d 758, 760-61 (Fla. 1st DCA 2009) (holding that the defendant must

establish fundamental error because he did not raise an objection to a defect in the

information prior to trial and noting that, even where the charging document omits

an essential element of the crime, the charging document may still withstand

challenge if it references the specific section of the code that details the elements of

the offense).

In the instant case, section 775.087 was referenced in both the heading and

the body of Count I of the indictment; the jury found the defendant guilty of carrying

a firearm during the commission of the homicide; and there was competent evidence

to support the jury’s finding. Thus, no fundamental error has been demonstrated.

(3) There was no fundamental error because the defendant has not claimed or

demonstrated prejudice.

“‘The test for granting relief based upon a defect in the charging document is

actual prejudice.’” Delgado, 43 So. 3d at 133 (quoting Gray, 435 So. 2d at 818). In

the instant case, no actual prejudice has been alleged or shown. The defendant has

never claimed surprise or prejudice in the preparation or presentation of his defense.

19

He did not claim surprise, lack of notice, or prejudice at the charge conference when

the State requested that the jury be instructed on the firearm reclassification of

second degree murder, and he has not asserted that he was surprised or prejudiced

in his post-trial motions, appellate briefs, or arguments before this Court.

The record sheds light on why no such claim has been made by the defendant.

First, on February 15, 2006, two and a half years prior to trial, the defendant filed

and litigated a motion to dismiss Count II, the conspiracy charge, on the basis that

the statute of limitations had run on that count prior to the filing of the indictment.

In his motion, the defendant argued that conspiracy to commit murder was subject

to a four-year statute of limitations, and even if this limitations period could be

extended for the homicide if the defendant committed the homicide with a

firearm, the State would also be required to prove that the defendant was

armed with a firearm at the time he conspired with others to commit the

homicide in order to permit reclassification of the conspiracy. This argument

clearly shows that the defendant recognized the potential for reclassification upon a

conviction of the homicide.

In its response to the defendant’s motion to dismiss the conspiracy count, the

State readily acknowledged that the jury must find that the defendant actually carried

a firearm during the charged offense in order for the defendant to be subject to

reclassification under section 775.087(1) and that, although one of the co-defendants

20

actually shot the victim, the defendant could also be eligible for reclassification

based on his own personal possession of a firearm during his actions giving rise to

liability for the offense. The State explained that section 775.087(1) provides for

the reclassification of a first degree felony to a life felony if the defendant “carried”

“any” (emphasis in the original) weapon during the commission of the felony. The

State not only bolded and underlined “carried” and “any,” the State also specifically

told the defendant in its response that it intended to prove at trial that the defendant

carried a firearm within the meaning of section 775.087(1) during the relevant time

periods alleged in the indictment.

Additionally, the trial court’s order denying the defendant’s motion to dismiss

Count II put the defendant on notice that a conviction in Count I could also result in

a reclassification of that offense. The trial court’s order specifically found that a first

degree felony could be reclassified to a life felony under section 775.087(1), and

there is no statute of limitations for a life felony. The trial court’s order also put the

defendant on notice that the State intended to seek a reclassification of the conspiracy

to commit first degree murder charge because (1) conspiracy was designated as a

life felony in the caption of the indictment; (2) section 775.087 was referenced in

the heading of the indictment and in the body of each count of the indictment; and

(3) the State alleged in the body of the conspiracy count that the conspiracy was

committed with a firearm. Although the defendant’s motion and the State’s response

21

were directed to the conspiracy charge, these pleadings and the trial court’s order

put the defendant on notice that Count I could also be reclassified because the

indictment also referenced section 775.087 in the heading and in the body of the

murder charge in Count I, and it also alleged that the homicide was committed with

a firearm.

Additionally, because first degree murder cannot be further enhanced or

reclassified, the only purpose in referencing section 775.087 in the heading and in

the body of Count I was to put the defendant on notice that a conviction for a lesser

included offense in that count could subject him to an enhancement and/or a

reclassification of the lesser offense. Second degree murder is a necessary lesser

included offense of first degree premeditated murder, see State v. Montgomery, 39

So. 3d 252, 259 n.4 (Fla. 2010) (citing Fla. Std. Jury Instr. (Crim.) 7.2), and second

degree murder with a firearm is not barred by the statute of limitations because it is

a life felony. § 775.15(1), Fla. Stat. (1981).

It is well-established Florida law that a lesser included offense of the crime

alleged in the charging document can be reclassified under section

775.087(1). See Miller v. State, 460 So. 2d 373, 374 (Fla. 1984). The defendant

was therefore put on notice that section 775.087(1) could be used to reclassify

second degree murder to a life felony if the State proved and the jury found that the

defendant carried, displayed, used, threatened, or attempted to use a firearm during

22

the commission of the homicide. Because second degree murder is a necessary

lesser included offense of first degree premeditated murder, and second degree

murder with a firearm was not barred by the statute of limitations, the defendant was

on notice that the jury would be charged with considering second degree murder as

a lesser included offense. Thus, the indictment was not fundamentally defective.

(4) There was no fundamental error because the reclassified second degree

murder was not greater in degree or penalty than the charged first degree

murder.

In Ray v. State, the Florida Supreme Court cautioned the appellate courts to

exercise their discretion concerning fundamental error ‘“very guardedly,”’ 403 So.

2d 956, 960 (Fla. 1981) (quoting Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970)),

and “only in the rare cases where jurisdictional error appears or where the interests

of justice present a compelling demand for its application,” id. The Court also noted

that “[t]he failure to object is a strong indication that, at the time and under the

circumstances, the defendant did not regard the alleged fundamental error as harmful

or prejudicial.” Id. Further, the Ray Court stated: ‘“It is well-established law that

where the trial judge has extended counsel an opportunity to cure any error, and

counsel fails to take advantage of the opportunity, such error, if any, was invited and

will not warrant reversal.”’ Id. (quoting Sullivan v. State, 303 So. 2d 632, 635 (Fla.

1974)). Additionally, where defense counsel fails to object to an improper

instruction or where he takes affirmative action, such as requesting the improper

23

instruction, he waives any defects. Id. at 961.

Applying these principles in Ray, the Florida Supreme Court held that it was

not fundamental error to convict the defendant of an erroneous lesser included

offense when the defendant failed to object if: (1) the offense is lesser in degree and

penalty than the main offense, or (2) defense counsel requested or relied on the

charge or took other affirmative action. Id. “Failure to timely object precludes

relief from such a conviction.” Id. (emphasis added).

Relying on Ray, this Court concluded in Mitchell v. State, 689 So. 2d 1118,

1120 (Fla. 3d DCA 1997), that no fundamental error had occurred in the

reclassification of Mitchell’s manslaughter conviction from a second degree felony

to a first degree felony under section 775.087(1), the weapon reclassification statute,

where Mitchell did not object to the jury instructions or verdict form, the jury found

the offense was committed with a firearm, and Mitchell was not convicted of an

offense greater in degree or penalty than the charged offense. See also Diaz-

Gonzalez v. State, 932 So. 2d 528, 529-30 (Fla. 3d DCA 2006) (citing Ray and

declining to address on appeal the alleged defect in the charging document where

the defendant failed to raise the issue at trial).

In the instant case, although the defendant had ample time to object to the

indictment and to the reclassification of the lesser included offense of second degree

murder under section 775.087(1) before trial and at the charge conference before the

24

jury was instructed, he failed to do so. 4 Although defense counsel objected to the

trial court instructing the jury on any lesser included offenses because they were

barred by the statute of limitations, he conceded that second degree murder with a

firearm was not similarly barred, and he never argued that the State could not seek

reclassification of the second degree murder under section 775.087(1) because the

firearm reclassification was not properly charged in the indictment. Instead, defense

counsel affirmatively requested the trial court to include the firearm

reclassification as a necessary element of second degree murder when charging

the jury because second degree murder with a firearm was the only lesser included

4

While the defendant objected at the charge conference to the trial court instructing

the jury on conspiracy with a firearm (Count II), he specifically limited his objection

regarding reclassification under section 775.087(1) to the conspiracy count:

Defense Counsel: I object to the instruction with a firearm because it

is not charged in the indictment. This goes back to an argument that

was made a while ago with regard to our motion to dismiss because the

statute of limitations has run. If we look at Count 2.

The State: Count 1 or 2?

Defense Counsel: If we look at Count 2, what is charged is a

conspiracy to commit the crime of first degree murder with a firearm.

What should be charged is armed conspiracy to commit first degree

murder with a firearm and the way it is charged it is not the substantive

charge of conspiracy is not charged with a firearm [sic]. Therefore, I

object to this instruction and renew my motion to dismiss Count 2

because the statute of limitations has run.

The defendant’s only objection to Count I, the homicide count, was his

objection to second degree murder as a lesser induced offense because second degree

murder was time barred.

25

offense of first degree murder that was not time barred. The State agreed, and the

jury was instructed as the defendant requested. Thus, the jury was instructed that

the lesser included offense of first degree premeditated murder was second degree

murder with a firearm, and the jury instruction included four elements: the three

statutory elements for second degree murder and the possession of a firearm, all of

which the State was required to prove beyond a reasonable doubt.

The defendant did not demonstrate fundamental error because he did not

object to the reclassification of the second degree murder under section 775.087(1);

he took affirmative action by requesting that the reclassification be made an element

of second degree murder; there was abundant evidence that the defendant carried a

firearm during the commission of the murder; and second degree murder with a

firearm is an offense lesser in degree and penalty than first degree premeditated

murder.

II. The jury’s verdict

The defendant’s second contention is that the jury’s verdict was insufficient

to subject him to reclassification under section 775.087(1). While the defendant is

correct that it is generally advisable for the trial court to instruct the jury to indicate

whether the defendant was armed with a firearm during the commission of the

offense via a special interrogatory, no special interrogatory was requested by the

defendant. Further, a special interrogatory was not required in this case because,

26

based on the defendant’s specific request, the firearm reclassification was included

as an essential element of second degree murder in both the jury instructions and the

verdict form.

Specifically, the jury was instructed that the only lesser included offense of

first degree premeditated murder it could consider was second degree murder with

a firearm, not simply second degree murder. The jury was also instructed that

before it could find the defendant guilty of second degree murder with a firearm, as

a lesser included offense of first degree murder, they must find beyond a reasonable

doubt that the defendant personally carried a firearm during the commission of

the murder. Specifically, the jury was instructed as follows:

To prove the crime of Second Degree Murder, with a Firearm,

as a lesser included offense the State must prove the following four

elements beyond a reasonable doubt:

1. JOHN CALLAHAN is dead.

2. The death was caused by the criminal act of JOHN J.

CONNOLLY, JR.

3. There was an unlawful killing of JOHN CALLAHAN by

an act imminently dangerous to another and demonstrating

a depraved mind without regard for human life.

4. During the “act” the defendant John Connolly carried

a firearm.

An “act” includes a series of related actions arising from and

performed pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a

depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably

certain to kill or do serious bodily injury to another, and

27

2. is done from ill will, hatred, spite or an evil intent, and

3. is of such a nature that the act itself indicates an indifference

to human life.

In order to convict of Second Degree Murder with a Firearm, it

is not necessary for the State to prove the defendant had an intent to

cause death.

(emphasis added).

The State also clarified its theory of prosecution, the trial court’s instructions,

and the verdict form in its closing arguments. The State explained to the jury,

without any objection by the defendant, that there was no dispute that the

defendant was not physically present when Martorano killed Callahan, but that the

defendant need not be present when the killing took place so long as the defendant

committed some act or said some word which was intended to incite, cause,

encourage, assist, or advise the other person or persons who actually committed the

murder under the law regarding principals and accomplices.

The State then explained that there were two relevant guns in this case: the

gun Martorano used to actually shoot and kill Callahan and the gun carried by the

defendant when he committed the acts that made him a principal to the murder. The

State specifically went over the jury instructions for second degree murder and the

evidence that had been presented regarding the defendant’s possession of a firearm

during his role in Callahan’s murder.

The State also told the jurors that before they could find the defendant guilty

28

of second degree murder with a firearm, as a lesser included offense of first degree

premeditated murder, the State had to prove four elements beyond a reasonable

doubt. When addressing the fourth element, that during the “act” the defendant

carried a firearm, the State explained:

And the fourth, which is a unique act element, which applies to

this and the criminal conspiracy as well, is that during the act the

defendant, John Connolly, carried a firearm.

Now what does that mean? It does not mean that John Connolly

had to have a gun and shoot Callahan. It meant and it means that

during the time John Connolly is advising, discussing, assisting and

conspiring with Flemmi, Bulger and ultimately Martorano that he

had a gun.

And how do you know he had a gun? Because he’s an FBI agent,

and all the witnesses told you that as an FBI agent he’s required to carry

his gun.

He carried his gun. He had his gun. Flemmi saw it when

they met. And if you--when he’s meeting with his informants every

agent says, you don’t meet with an informant without a gun.

And he’s an FBI agent. And, you know, he was carrying his gun.

He doesn’t have to have used his own gun, just had to have had it at the

time he’s discussing it with them.

And the act includes a series of related actions arising from and

performed pursuant to a single design or purpose. And in this case, it’s

the murder of John Callahan.

(emphasis added).

Lastly, the verdict form specifically required the jury to find that the defendant

personally carried a firearm during the acts he committed which caused the death of

29

Callahan in order to convict the defendant of second degree murder with a firearm.

Notably, while the firearm language was not included in the verdict form for first

degree murder, it was included in the verdict form for second degree murder with a

firearm.

VERDICT-COUNT I

We the jury, in Miami-Dade County, Florida, this 6 day of

NOVEMBER, 2008, find the defendant, JOHN J. CONNOLLY, JR.,

COUNT 1 (check only one):

 GUILTY of FIRST DEGREE MURDER AS CHARGED IN

COUNT 1 OF THE INDICTMENT.

 GUILTY of SECOND DEGREE MURDER, WITH A FIREARM,

AS A LESSER-INCLUDED OFFENSE OF FIRST DEGREE

MURDER.

 NOT GUILTY

Because the firearm reclassification was treated as an element of second

degree murder, and based on the State’s arguments to the jury, the trial court’s

instructions to the jury that it must find that the defendant carried a firearm during

the acts he committed as a principal to Callahan’s murder as a necessary element of

second degree murder with a firearm, and the jury’s verdict reflecting that the State

proved the firearm element beyond a reasonable doubt, the jury’s verdict sufficiently

supports the firearm reclassification of the second degree murder.

30

III. The reclassification of second degree murder was based on the defendant’s

personal possession of a firearm, not on a co-defendant’s use of a firearm

during the commission of the homicide

We agree with the defendant that his conviction for second degree murder

could not be reclassified under section 775.087(1) based on a co-defendant’s

possession or use of a weapon or firearm during the commission of the murder. The

dissent’s assertion that we conclude otherwise is therefore misplaced. Florida law

is well-settled that section 775.087(1) does not permit vicarious

enhancement. See State v. Rodriguez, 602 So. 2d 1270, 1271 (Fla. 1992) (holding

that “section 775.087(1) does not, by its terms, allow for vicarious enhancement

because of the action of a codefendant”); Chase v. State, 74 So. 3d 1138, 1139 (Fla.

2d DCA 2011) (reversing the reclassification of the defendant’s conviction for

aggravated battery where there was no evidence that the defendant possessed or used

a weapon during the commission of the offense); Campbell v. State, 935 So. 2d 614,

618 (Fla. 3d DCA 2006) (finding that it was error to reclassify Campbell’s

conviction for conspiracy to traffic in cocaine under section 775.087(1) where there

was no evidence that Campbell had actual physical or personal possession of a

weapon at any time during the conspiracy); Parker v. State, 906 So. 2d 1273, 1273

(Fla. 5th DCA 2005) (noting that enhancement under section 775.087(1) is

impermissible unless the defendant actually possesses a weapon during the

commission of a crime); Betancourt v. State, 767 So. 2d 557, 557 n.1 (Fla. 3d DCA

31

2000) (noting that the State properly conceded below that the reclassification of the

kidnapping conviction was error where the co-defendant, not the defendant,

possessed the firearm).

We fully agree that the defendant’s conviction could not have been

reclassified due to Martorano’s use of a firearm. However, the defendant’s second

degree murder conviction in the instant case was not reclassified based Martorano’s

possession or use of a firearm during the commission of the murder. Rather, the

reclassification was based solely on the defendant’s own actual and personal

possession of a totally separate firearm during his involvement in the commission of

the homicide.

The defendant was convicted as a principal of the second degree murder of

Callahan, see § 777.011, Fla. Stat. (2005) 5 (making those who actually commit or

aid, abet, or procure the commission of a felony principals in the first degree), and

the jury found that the defendant was personally armed with a firearm during the

commission of the second degree murder. There was ample evidence at trial to

support this finding as several witnesses testified that the defendant had a firearm at

all the meetings where he met with Bulger and Flemmi. Thus, there was no vicarious

enhancement, only a proper reclassification based on the defendant’s personal

5

Although the murder occurred in 1982, we cite to section 777.011, Fla. Stat. (2005),

as that is the principal instruction that was agreed to by the parties and instructed by

the trial court.

32

possession of a firearm.

IV. Reclassification under section 775.087(1) does not require possession of the

murder weapon

Section 775.087(1) does not require, as the dissent claims, the defendant’s use

or possession of the actual murder weapon. Rather, section 775.087(1) allows for

reclassification of an offense if the defendant carries any weapon or firearm at any

time during the commission of the felony.

The dissent’s position to the contrary is based on its misreading of Rodriguez.

In Rodriguez, the Florida Supreme Court once again addressed the impropriety of

vicarious enhancement or reclassification—as we recognized above—and reiterated

that a defendant’s sentence may not be enhanced based on a co-defendant’s

possession of a weapon: “We have jurisdiction and answer the question in the

negative, finding in accordance with the district court decision, that section

775.087(1) does not, by its terms, allow for vicarious enhancement because of the

action of a codefendant.” 602 So. 2d at 1271 (footnote omitted). The Florida

Supreme Court further held that because the defendant was charged with use of the

weapon during the commission of the felony and the State did not prove that

Rodriguez had personal possession of the weapon used during the commission of

the offense, enhancement was improper. Id. at 1272. Importantly, however, the

Florida Supreme Court noted that “Rodriguez’s sentence could have been

enhanced under the statute if the State had charged him with the commission

33

of a felony while carrying the pistol that was found on his person after the

chase.” Id. (emphasis added).

Thus, contrary to the dissent, a defendant’s sentence may be enhanced or

reclassified if the defendant carried any firearm during the commission of the

homicide. The law does not require that the defendant be the actual shooter. Indeed,

such a holding would entirely negate all the language in section 775.087 except for

“use” of a weapon. Thus, if two men enter a business with the intent to rob and

murder the owner, and both are armed with firearms, the State may seek

reclassification of both perpetrators’ convictions based on their respective

possession of a firearm, even if only one of the perpetrators shoots and kills the

victim. Reclassification of the shooter’s convictions would be based on his

possession and use of the murder weapon, while the reclassification of the co-

perpetrator’s convictions would be based on his possession of a second firearm

during the commission of the offense even though he only “carried” and did not use

or threaten the victim with his firearm. See Andrade v. State, 564 So. 2d 238, 239

(Fla. 3d DCA 1990) (finding no error in enhancement of Andrade’s convictions for

three counts of attempted murder and the imposition of three-year minimum

mandatory sentences as to each conviction where there was evidence that established

that Andrade possessed a firearm during the criminal episode); Junco v. State, 510

So. 2d 909, 913 (Fla. 3d DCA 1987) (affirming Junco’s and his co-defendant’s

34

convictions for second degree murder with a firearm, attempted second degree

murder, robbery with a firearm, trafficking in cannabis, and the enhancement of their

sentences where it was established that each possessed a firearm when participating

in the criminal offense).

In this case, during the commission of the homicide the defendant committed

acts as a principal in the first degree, and while committing these acts, he

indisputably carried a firearm. Thus, section 775.087(1) was correctly applied to

reclassify the offense.

Section 775.087(1) provides in relevant part as follows:

(1) Unless otherwise provided by law, whenever a person is charged

with a felony, except a felony in which the use of a weapon or firearm is

an essential element, and during the commission of such felony the

defendant carries, displays, uses, threatens to use, or attempts to use any

weapon or firearm, or during the commission of such felony the

defendant commits an aggravated battery, the felony for which the person

is charged shall be reclassified . . . .

(emphasis added).

The statute is clear and unambiguous. “Use” of “the” firearm (or weapon)

during the commission of the felony is simply not required, and the dissent’s narrow

reading of the reclassification statute has no basis in Florida law. It is merely one of

many options from which the State can choose to reclassify an offense. Here, the

jury found that the defendant carried a firearm during the acts he committed during

the commission of, and which subjected him to his conviction for, the second degree

35

murder. If a defendant “carries” “any” weapon during the commission of the felony,

section 775.087(1) is applicable.

V. Florida law does not treat actual perpetrators and aiders and abettors

differently, and application of section 775.087(1) does not rely on the role

each plays during the commission of the offense

Under Florida law, those who actually commit the offense and those who aid,

abet, or procure the commission of an offense are treated the same regardless of their

role in the commission of the offense or whether they are present at the scene during

the final acts of the offense. State v. Dene, 533 So. 2d 265, 266-69 (Fla. 1988); Potts

v. State, 430 So. 2d 900, 901-02 (Fla. 1982). In 1957, the Florida Legislature

eliminated these distinctions.

Prior to 1957, Florida law provided different classifications for perpetrators

depending on their level of participation in the offense. Those who actually

committed the offense were treated as principals in the first degree; those who were

present when the crime was being committed and aided and abetted the commission

of the crime were treated as principals in the second degree; those who were not

present while the crime was being committed but procured, counseled, commanded,

or abetted another to commit the crime were treated as accessories before the fact;

and those who knew a felony had been committed and then assisted the felon

afterward were treated as accessories after the fact. Potts, 430 So. 2d at 901.

In 1957, the Florida Legislature retained the category of accessories after the

36

fact but eliminated the distinctions between principals in the first degree (the actual

perpetrator), principals in the second degree, and accessories before the fact and now

treats them the same, referring to perpetrators and accomplices alike as “principal[s]

in the first degree.” Ch. 57-310, §§ 1-2, at 608, Laws of Fla.; Dene, 533 So. 2d at

267 (concluding that “[t]he effect of this law was that the traditional definitions of

principal in the first degree, principal in the second degree, and accessory before the

fact were all combined within the statutory definition of principal in the first

degree”) (emphasis added).

Since 1957, actual perpetrators, as well as aiders and abettors, whether before

or during the offense and whether present or not present at the scene, are all

“principals in the first degree,” and they are treated the same and are equally culpable

under the law. Staten, 519 So. 2d at 624 (Fla. 1988); see also § 777.011, Fla. Stat.

(2005) (renumbered in 1977 from section 776.011 to section 777.011). Section

777.011 provides as follows:

Whoever commits any criminal offense against the state, whether

felony or misdemeanor, or aids, abets, counsels, hires, or otherwise

procures such offense to be committed, and such offense is

committed or is attempted to be committed, is a principal in the

first degree and may be charged, convicted, and punished as such,

whether he or she is or is not actually or constructively present at the

commission of such offense.

(emphasis added).

The Florida Legislature specifically stated the following in Chapter 57-310 of

37

the Laws of Florida when it abolished the distinctions between perpetrators

(principals in the first degree), principals in the second degree, and accessories

before the fact:

WHEREAS, the legal distinctions between accessory before the fact,

principal in the first degree and principal in the second degree serve no

useful purpose; and

WHEREAS, these distinctions serve only as technicalities which

impede the orderly administration of justice for the benefit of those

charged with crimes, and as such should be abolished . . . .

Ch. 57-310, at 608, Laws of Fla. And, as the Florida Supreme Court recognized

in Dene, “The legislative intent could not have been clearer.” 533 So. 2d at 266.

The dissent, however, takes the position that reclassification of the murder in

this case under section 775.087(1) is only permissible for what it calls the “actual

perpetrator,” i.e., the person who shot the victim in the head. Thus, based on the

dissent’s position, even if another individual (“Perp. #2”) held the victim at gunpoint

while his accomplice (“Perp. #1”) shot and killed the victim, only Perp. #1 would be

subject to reclassification. The dissent’s position is contrary to section 777.011 (the

law of principals) and section 775.087(1) (the law regarding reclassification of

offenses). Section 777.011 mandates that perpetrators and aiders and abettors are

all “principals” and “may be charged, convicted and punished as such.” Florida law

does not identify some of the participants of the offense as “perpetrators” and others

as “principals.” They are all “principals” if they actually committed, aided, abetted,

38

counseled, hired, or procured such offense to be committed. And section 775.087(1)

provides, in pertinent part that “Whenever a person is charged with a felony . . . and

during the commission of such felony the defendant carries, displays, uses, threatens

to use, or attempts to use any weapon or firearm . . . the felony for which the person

is charged shall be classified as follows . . . .”

It now no longer matters whether the defendant hired (procured) a hit man,

turned to his mob friends to murder Callahan, served as a lookout, provided the gun,

or pulled the trigger himself, he is a principal in the first degree. See Staten. 519 So.

2d at 624 (“Under our law, both the actor and those who aid and abet in the

commission of a crime are principals in the first degree. . . . Clearly, the getaway

driver who has prior knowledge of the criminal plan and is ‘waiting to help the

robbers escape,’ falls into this category and is, therefore, a principal.” (footnote and

citations omitted) (quoting Enmund v. State, 399 So. 2d 1362, 1370 (Fla.

1981), rev’d on other grounds, 458 U.S. 782 (1982))). As long as the State proves

that the act the defendant committed was “imminently dangerous to another and

evincing a depraved mind regardless of human life” and the act caused the victim’s

death, § 782.04(2), the defendant is guilty as a principal for the second degree murder

of Callahan. And because the defendant was armed with a firearm when he

committed these acts, reclassification under section 775.087(1) was lawful.

Thus, contrary to the dissent’s position, for nearly sixty years, Florida has

39

treated the “actual perpetrator” and aiders and abettors the same regardless of their

roles in the offense (they are all principals in the first degree), and section 775.087(1)

provides for reclassification of the offense if during the commission of the offense

the defendant carries, displays, etc. a firearm. Section 775.087(1) does not limit its

application to “the actual perpetrator,” nor would it make sense to do so since actual

perpetrators and aiders and abettors are all “principal[s] in the first degree.” §

777.011. As the Florida Legislature specifically noted, such distinctions “serve no

useful purpose.” Ch. 57-310, at 680, Laws of Fla.

VI. Reclassification of the second degree murder was lawful because the State

presented evidence and the jury found that the defendant personally

carried a firearm during his role as a “principal in the first degree” to

second degree murder

Lastly, the defendant suggests, and the dissenting opinion and the concurring

in part and dissenting in part opinion (which for purposes of addressing this

argument will be referred to collectively as “the dissenters”) conclude that

reclassification under section 775.087(1) may only occur if the firearm the defendant

was carrying was both temporally and spatially related to the homicide. Thus, the

dissenters contend that because the defendant was hundreds of miles away in Boston

when the victim was shot in Miami, it was fundamental error to reclassify his second

degree murder conviction. This argument is based, in part, on the premise that,

unlike certain on-going or continuing offenses (such as conspiracy, theft, and

trafficking), the homicide was committed only at the precise moment the trigger was

40

pulled. As will be discussed below, the Florida Legislature has not engrafted such a

requirement into the reclassification statute; the death of the victim was the result of

a series of acts, not the sole act of the shooter; the acts committed by the defendant

were imminently dangerous demonstrating a depraved mind without regard for

human life; these acts caused the victim’s death; and during the acts committed by

the defendant, the defendant was armed with (carried) a firearm. Thus, the defendant

was properly convicted of second degree murder with a firearm, and reclassification

of his murder conviction was not error, much less fundamental error.

A. “During the commission of” does not require spatial proximity

The relevant language in section 775.087(1) provides that “whenever a person

is charged with a felony . . . and during the commission of such felony the defendant

carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, . .

. the felony for which the person is charged shall be reclassified.” (emphasis added).

The phrase “during the commission of” is not expressly defined in the statute, likely

because these words need no further explanation when given their plain and ordinary

meaning. See Daniels v. Fla. Dep’t of Health, 898 So. 2d 61, 64 (Fla. 2005) (holding

that if the language is plain and unambiguous it is unnecessary to resort to statutory

construction).

The Merriam-Webster Dictionary defines “during” as “at some time in the

course of (something).” (emphasis added). The evidence presented in this case

41

clearly established that the defendant carried a firearm “at some time in the course

of” committing this second degree murder.

Second degree murder is the unlawful killing of the victim “by an act” that is

“imminently dangerous to another and evincing a depraved mind regardless of

human life . . . .” § 782.04(2), Fla. Stat. (1981). Florida’s standard jury instruction

on second degree murder defines an “act” as “a series of related actions arising from

and performed pursuant to a single design or purpose.” Fla. Std. Jury Instr. (Crim.)

7.4. The same instruction explains that:

An act is “imminently dangerous to another and demonstrating a

depraved mind” if it is an act or series of acts that:

1. a person of ordinary judgment would know is reasonably certain

to kill or do serious bodily injury to another, and

2. is done from ill will, hatred, spite or an evil intent, and

3. is of such a nature that the act itself indicated an indifference to

human life.

In order to convict of Second Degree Murder, it is not necessary

for the State to prove the defendant had an intent to cause death.

The jury found that the acts the defendant committed—counseling members

of the Winter Hill Gang to “take care of” Callahan—were imminently dangerous to

another evincing a depraved mind because the defendant knew that when he told

Bulger and Flemmi that the FBI was trying to locate Callahan to obtain his

cooperation and also told them to contact Martorano to “handle it,” he was signing

a death warrant for the murder of Callahan. When the defendant provided similar

information to Bulger and Flemmi in the past, they murdered or procured the murder

42

of the cooperating witnesses. For example, when the defendant warned Bulger and

Flemmi that Castucci was cooperating with the FBI, Bulger, Flemmi, and Martorano

murdered Castucci. When the defendant warned Bulger and Flemmi that Halloran

was cooperating with the FBI, Bulger, Flemmi, and other Winter Hill Gang members

murdered Halloran. Thus, when the defendant told Bulger and Flemmi that the FBI

was looking for Callahan and that he believed Callahan would likely cooperate with

the FBI and implicate Bulger, Flemmi, and Martorano, the defendant knew the

result: Callahan would be murdered.

This act was done from ill will and an evil intent, and indicated an indifference

to human life. The defendant wanted to protect Bulger, Flemmi, Martorano, and

himself from criminal prosecution. He believed that once the FBI located Callahan

and implicated Callahan in Wheeler’s murder, Callahan would cooperate with the

FBI for a reduced sentence, and Callahan’s cooperation would implicate Bulger,

Flemmi, Martorano, and the defendant in the Wheeler murder and other killings.

The defendant therefore knew that Callahan needed to be silenced, and the way in

which Bulger, Flemmi, and Martorano would silence Callahan was in the same way

they silenced Castucci, Wheeler, and Halloran—by murdering him.

The State also proved that during this act the defendant was armed with

(“carried”) a firearm. Thus, during the commission of the second degree murder

(the unlawful killing of the victim by an act of the defendant that was imminently

43

dangerous to another demonstrating a depraved mind without regard for human life),

the defendant carried a firearm and the defendant’s conviction was lawfully

reclassified pursuant to section 775.087(1).

The dissenters seek to engraft a requirement into the text of section 775.087(1)

that is not present—that the carrying of the firearm must be “both temporally and

spatially related to the crime committed.” However, the wording of the statute itself

and a comparison to similar legislation demonstrates that the Florida Legislature did

not include such a requirement and it intended that the reach of section 775.087 be

as broad as possible, but tempered by prosecutorial discretion.

The relevant language in section 775.087(1) provides that “whenever a person

is charged with a felony . . . and during the commission of such felony the

defendant carries, displays, uses, threatens to use or attempts to use any weapon or

firearm . . . the felony for which the person is charged shall be reclassified.”

(emphasis added). Compare the emphasized language in 775.087(1) to a similar

federal provision, 18 U.S.C. § 924(c)(1)(A), which provides that:

“[A]ny person who, during and in relation to any crime of violence

or drug trafficking crime . . . uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition

to the punishment provided for such crime of violence or drug

trafficking crime [be sentenced to a minimum mandatory sentence to

run consecutive to the underlying sentence.]”

(emphasis added).

When comparing section 775.087 (under any of its subsections) to the Federal

44

Code, it becomes glaringly apparent that the reach of section 775.087 of the Florida

Statutes is substantially broader than that of section 924(c)(1)(A) of the Federal Code

because the word “during” (at some time in the course of) in the Florida statute

contemplates only a temporal relationship to the underlying crime, whereas the terms

“during and in relation to” and “in furtherance of” in the Federal Code necessarily

require a substantial nexus between the weapon carried and the charged

offense. See, e.g., U.S. v. Gonzalez, 528 F.3d 1207, 1212 (9th Cir. 2008)

(concluding that under Federal law, the determination of whether the “‘in

furtherance’ requirement is met is a ‘fact-based inquiry into the nexus between

possession of the firearm and the drug crime[,]’ including such factors as ‘proximity,

accessibility and strategic location of the firearms in relation to the locus of drug

activities’”) (alteration in original) (quoting United States v. Hector, 474 F.3d 1150,

1156-57 (9th Cir. 2007))). United States v. Guidry, 456 F.3d 493, 508 (5th Cir. 2006)

(“To be carried ‘in relation to’ an offense under this section, a gun must have ‘some

purpose or effect with respect to the crime of violence.’” (internal quotation marks

omitted) (quoting United States v. Polk, 118 F.3d 286, 293 (5th Cir. 1997))).

Florida’s statute, section 775.087, however, does not include the “in relation to” or

“in furtherance of” language contained in its federal counterpart. Unlike the Federal

Code, Florida’s statute does not require any “functional” or spatial nexus for the

carried firearm as the dissenters assert, nor does it require any coincidence of

45

purpose with the underlying offense. It merely requires that the defendant carry a

weapon during the commission of the felony, and in this case it was proven, and the

jury found, that during the acts the defendant committed during the commission of

the homicide, he carried a firearm.

We must assume that the Florida Legislature chose its words carefully when

drafting section 775.087, and it clearly chose to use very broad language to

encompass a wide variety of factual permutations. Not only does section 775.087(1)

require reclassification when the weapon is utilized “during the commission of [the]

felony,” it also allows the offense to be reclassified if the defendant “carries,

displays, uses, threatens to use, or attempts to use” any weapon during the

commission of the felony. It is clear that the ambit of section 775.087 is to allow

harsher sentencing for defendants who in any way associate with a weapon while

engaging in felonies. Thus, any person who carries any weapon while engaged in a

felony is subject to harsher sentencing under section 775.087.

B. Section 775.087 does not require that a principal be present when the

“last act” was committed

Besides attempting to add this “spatial and temporal proximity” language to

section 775.087(1), which does not appear in the statute under any of its provisions,

the dissenters conclude that second degree murder is a “discrete offense,” and

because the defendant was not present when the “last act” to the murder was

committed (the shooting of the victim), his conviction for second degree murder

46

cannot be reclassified pursuant to section 775.087(1). This conclusion rests on the

premises that: (1) application of section 775.087(1) differs between “actual

perpetrators” and aiders and abettors; and (2) second degree murder is a “discrete

offense” that is only committed upon the completion of the crime—in other words,

when the victim was shot and he died—and the defendant must have been present

and armed when this last act occurred.

The first premise is wrong because as previously explained, the Florida

Legislature eliminated the disparate treatment between “actual perpetrators” and

aiders and abettors nearly sixty years ago. Perpetrators, who were always statutorily

referred to as “principals in the first degree,” and aiders and abettors are now all

“principal[s] in the first degree,” and section 777.011 provides that each may be

“charged, convicted, and punished” the same. Section 775.087(1) does not alter this

general principal of law, and thus, all principals are treated alike. If a principal is

armed during the commission of the felony, his offense may be reclassified under

section 775.087(1) whether or not he is present. “Whoever commits any criminal

offense against the state, . . . or aids, abets, hires, or otherwise procures such offense

to be committed, and such offense is committed or is attempted to be committed, is

a principal in the first degree and may be charged, convicted, and punished as such,

whether he or she is or is not actually or constructively present at the commission of

such offenses.” § 777.011.

47

The second premise is wrong because, while it is true that the offense

committed by Bulger, Flemmi, Martorano, and the defendant did not become a

second degree murder until the victim died, see § 782.042(2) (requiring that a human

be “kill[ed]” before the defendant can be charged with second degree murder), a

defendant need not be present at the scene (“spatial and temporal proximity”) when

the last element of the second degree murder occurred to permit reclassification of

the murder for the defendant’s possession of a firearm during the commission of the

offense. The dissenters essentially argue that the defendant must carry a weapon

during every element of a particular crime, but the word “during” contemplates the

carrying of a weapon at any point (while committing any element) in the course of

the offense.

The fallacy of this interpretation of “during the commission of” can easily be

demonstrated in the following hypothetical. Defendants #1, #2, and #3 decide to

murder the victim. Defendant #1’s assigned role in the homicide is to pick up the

victim at Miami International Airport and to deliver him to Defendant #2 at a

warehouse in Hialeah. Because the victim weighs 265 pounds, is a reputed enforcer

for the mob, and may not willingly get into Defendant #1’s car, Defendant #1 arms

himself with a firearm. Everything, however, goes smoothly, and Defendant #1,

who is armed with a firearm, delivers the victim to Defendant #2, and Defendant #1

promptly leaves the warehouse and begins driving to Atlanta, Georgia, where he

48

lives. While at the warehouse, Defendant #2 decides to extract information from the

victim before shooting him and accordingly keeps the victim in the warehouse for

two days where he tortures the victim. Two days later, while Defendant #1 is in

Atlanta, Defendant #2 finally shoots the victim, as planned, and calls Defendant #3

to dispose of the body. Defendant #3 arrives shortly thereafter. He too is armed

with a firearm. Defendant #3 picks up the victim, who is still breathing; puts the

victim in his car; places his revolver on the seat next to him as a precautionary

measure; and dumps the victim in an isolated field. The victim lingers for over

twelve hours, but he eventually dies.

Under this scenario, if we applied the “last act” requirement as suggested by

the dissenters, even though each of the defendants was armed during his role in the

homicide, only Defendant #3, who committed the last act—dumping the victim’s

body at a deserted location where he could not seek help and where he ultimately

died—would be subject to reclassification under section 775.087(1). Although

Defendant #2 shot the victim and both Defendants #1 and #3 were principals in the

first degree to the murder, because neither Defendant #1 nor Defendant #2 was

present during the last act that caused the victim’s death, under the dissenters’

interpretation of section 775.087(1), their offenses could not be reclassified even

though each was armed with a firearm when they carried out their agreed-upon roles

in the homicide. What the dissenters fail to recognize is that all three perpetrators

49

were principals in the first degree to the homicide; section 777.011 requires that they

all be treated the same (“may be charged, convicted, and punished as such”); and

section 775.087(1) permits reclassification of each of the principal’s convictions if

he personally used, threatened to use, carried, etc. a weapon during his participation

in the commission of the felony.

The dissenters’ “last act” argument is also defeated by the very language

chosen by the Florida Legislature when drafting the statutes defining second degree

murder and principals. The statutes establishing the elements of second degree

murder and the law governing principals and accomplices specifically contemplate

that the acts committed by a co-defendant during the commission of the felony may

be committed at any time and any place. Neither section 777.011, the statute

pertaining to principals, nor section 782.04(2), the statute pertaining to second

degree murder, requires that the defendant be present or that he commit the last act

that led to the victim’s demise.

Section 777.011, the principal statute, holds the defendant legally responsible

as a principal, whether or not he is present when the crime is committed, if he “did

some act”—not the last act—“or said some word which was intended to and which

did incite, cause, encourage, assist, or advise the other person or persons to actually

commit or attempt to commit the crime.” See also State v. Dene, 533 So. at 270

(holding that, pursuant to section 777.011, a principal does not have to be at the

50

scene of the crime); State v. Lowery, 419 So. 2d 621, 623-24 (Fla. 1982) (holding

that Lowery was as equally culpable as a principal under section 777.011, as his co-

felon who actually did the killing, although he was not present when his co-felon

murdered the victim).

Similarly, for the defendant to be properly convicted of second degree murder,

the State was required to prove that the victim’s death was caused by any criminal

act of the defendant that was imminently dangerous to another and demonstrated a

depraved mind without regard for human life, not the last act. The jury instructions

on second degree murder further explain that:

An “act” includes a series of related actions arising from and performed

pursuant to a single design or purpose.

An act is “imminently dangerous to another and demonstrating a

depraved mind” if it is an act or series of acts that:

(1) a person of ordinary judgment would know is reasonably certain

to kill or do serious bodily injury to another, and

(2) Is done from ill will, hatred, spite or evil intent, and

(3) Is of such a nature that the act itself indicates an indifference to

human life.

The defendant does not dispute that there was competent substantial evidence

to support his conviction for second degree murder. It is equally clear that neither

section 777.011 nor section 782.04(2) requires the defendant to be present when the

shooting occurs or during the “last act” that caused the victim’s demise. The

defendant and the dissenters, however, would impose such a requirement for

reclassification under section 775.087(1) despite the Legislature’s failure to add such

51

language to section 775.087(1).

C. Second degree murder can be an on-going crime

Despite the Florida Legislature’s failure to include a “last act” requirement for

imposition of section 775.087(1), the defendant and the dissenters encourage this

Court to judicially impose a “last act” requirement for the crime of second degree

murder. In doing so, they attempt to distinguish the crime of second degree murder

from other crimes where there is case law specifically upholding the reclassification

of the offense. They argue that while some crimes may be “continuing crimes,”

second degree murder can never be a continuing crime; and unless the crime is a

continuing crime, the defendant must be present when the last act was committed to

have his sentence reclassified. The dissenters therefore conclude that because the

acts the defendant committed occurred prior to the actual shooting—the last act that

caused Callahan’s death—his conviction for second degree murder could not be

reclassified even though he was armed with a firearm when he committed those acts.

We disagree. As we have already shown, there is no requirement under Florida law

that the defendant commit the last act that caused the victim’s death, that he be

present during this last act, or that he possessed the weapon used during the last act

that caused the victim’s death for his murder conviction to be reclassified. And there

are numerous scenarios where second degree murder may be an on-going crime.

This Court’s opinion in Junco v. State, 510 So. 2d 909 (Fla. 3d DCA 1987),

52

which is in fact a second degree murder and attempted second degree murder case,

clearly illustrates this point. In Junco, this Court affirmed the enhancement of

Junco’s robbery conviction and the imposition of consecutive three-year minimum

mandatory sentences for his possession of a firearm during the commission of the

second degree murder of two warehouse guards and the attempted second degree

murder of another man even though Junco was not the shooter and was not present

when the two guards were shot and killed and the third man was shot and injured. Id.

This Court found that enhancement of the two second degree murders and the

attempted second degree murder sentences pursuant to section 775.087 was proper,

even though Junco was not present when the actual homicides and the attempted

homicide were committed, because there was evidence that Junco was a principal to

these offenses and he was in possession of a firearm while aiding and abetting the

commission of the crimes. Id. This Court reached the same conclusion for Junco’s

co-defendant, R. Esquivel, who also did not shoot any of the victims but was armed

with a firearm during the commission of the offenses. Id. at 911-13.

The fallacy of the dissenters’ “last act” argument and their conclusion that

second degree murder can never be an on-going or a continuing crime can also be

illustrated by applying common logic. Consider the following two hypotheticals. In

the first hypothetical, a homicide was committed by poisoning the victim. The

victim’s husband and son decide to murder the victim, and the husband begins lacing

53

the victim’s food with a deadly poison. While the husband is out of town on a

business trip, the son uses the last of the poison they were feeding the victim, so the

son obtains another bottle of the lethal substance, and, after the son administers two

more doses from the bottle he obtained, the victim finally dies. It is undisputed that

the husband was not present when the son administered the last dose of poison from

the bottle he obtained. Although the weapon (poison) used by the son during the

“last act” was not the same weapon used by the husband, it seems clear that both are

criminally liable for the murder and that each was armed with a weapon (the poison)

during the acts they committed that were imminently dangerous to another and

evincing a depraved mind without regard for human life. Clearly both are guilty of

at least second degree murder with a weapon. The dissenters’ rationale would not

allow the husband’s sentence to be reclassified because he was not present and did

not administer the last dose of poison to the victim, while the son’s conviction could

be reclassified—an absurd result. This hypothetical also illustrates how, under

certain circumstances, a homicide may be a continuing or an on-going offense. The

victim did not die from the doses of poison from the first bottle. She died from the

accumulation of the doses administered over time, and, while she did not die until

the last dose of poison was administered, each act of poisoning was an act

imminently dangerous to the victim without regard for human life, and these acts

caused her death. During each act of poisoning, a principal to the murder was armed

54

with a deadly weapon.

In the second hypothetical, Bob the Burglar and Security Sam have a long-

standing relationship whereby Sam, using his contacts and the information he

obtained by working as a security guard, provides Bob the Burglar with confidential

information regarding homes to burglarize. Over the course of this relationship, Bob

the Burglar has, on occasion, been confronted by a homeowner or a security guard

during the burglary, and during such confrontations, he has killed the occupant. The

“job” that results in their undoing is a home on E-Z Street. Sam tells Bob that there

is a large quantity of cash, jewelry, and drugs at that location, but also informs him

that the homeowner is usually at home and the property is guarded by a hired security

guard who Sam knows quite well. Sam tells Bob that he will help Bob commit the

burglary by luring the security guard off the property, and it is understood that Bob

will do whatever is necessary (i.e., kill the homeowner) if confronted by the

homeowner during the burglary.

On the night of the burglary, Sam lures the security guard away from the

property, and they go into town for a drink. However, when the security guard

begins to get suspicious and tries to return to his post on the property, Sam forces

the guard at gunpoint back into the car, hits him on the head with the firearm, and

takes the unconscious security guard to a deserted area where he tries to decide what

to do next. Meanwhile, while committing the burglary, Bob is confronted by the

55

homeowner. The homeowner activates a silent alarm, Bob shoots the homeowner,

and the police arrive while Bob is still burglarizing the house. Although the

homeowner dies moments after the police arrive, he is able to tell the police that he

has surveillance cameras all throughout his property, explain that a security guard

was supposed to be guarding the property, and gives them the security guard’s cell

phone number. From this information, the police observe Sam on the surveillance

tapes luring the guard into a car, and they are able to track the security guard’s

location through the guard’s cell phone. The police locate Sam and the unconscious

but otherwise unharmed security guard, and they arrest Sam. Sam was armed with

a firearm throughout his participation as a principal to the burglary and the homicide.

Based on these facts, it is clear that both Bob and Sam are guilty of armed

burglary and, at a minimum, second degree murder. Because both Bob and Sam

were armed with firearms during the commission of the acts that make them guilty

of second degree murder, their convictions for second degree murder may be

reclassified under section 775.087(1). Just like the defendant in our case, Sam

committed acts that caused the death of the victim. The acts he committed were

done from ill will, hatred, spite, or evil intent; were imminently dangerous to the

victim; demonstrated a depraved mind; and indicated an indifference to human life,

which a person of ordinary judgment would certainly know was reasonably certain

to cause the death of the victim or cause serious bodily injury to another. Thus, just

56

like the defendant in our case, Sam is guilty of second degree murder because the

evidence establishes each and every element of second degree murder; and Sam

aided, incited, encouraged, and otherwise assisted Bob in committing the offenses,

even though Sam was not present when the shooting occurred and he did not pull

the trigger. Additionally, both the burglary and the homicide where on-going

crimes. Although Sam was not present when Bob entered the house or shot the

victim, he was armed when he committed the acts as a principal to both offenses.

Thus, because Bob and Sam in this hypothetical, and the defendant in our case, were

armed with firearms during the acts they committed and which caused the death of

the victims, their convictions for second degree murder shall be reclassified to life

felonies under section 775.087(1).

As these hypotheticals and this Court’s prior opinion in Junco demonstrate,

the homicide in the instant case was an on-going offense, and the defendant was

armed while he committed acts which were intended to and did in fact incite, cause,

encourage, assist, or advise his partners in crime (Bulger, Flemmi, and Martorano)

to commit the murder, acts that pre-1957 would have made the defendant an

accessory before the fact, but since 1957 make him for all purposes a principal in the

first degree to the murder. The acts the defendant committed were also acts that

were imminently dangerous to the victim, demonstrating a depraved mind without

regard for human life, and these acts caused the death of the victim. Thus, whether

57

relying on the language regarding principals or the language of second degree

murder itself, the reclassification of the defendant’s conviction for second degree

murder was lawful. In short, the murder began when the defendant told Bulger and

Flemmi to “take care of” Callahan, and it ended when Callahan was actually shot

and killed. Possession of a weapon at any point in the interim was “during the

commission of the felony.”

In 1999, the Florida Legislature specifically addressed the application of

subsections (2) and (3) of section 775.087, regarding the imposition of minimum

mandatory prison terms for criminals who possess firearms during the commission

of an offense. In section 27.366, Florida Statutes (1999), the Florida Legislature

specified that whenever a criminal offender meets the criteria in sections 775.087(2)

and (3), and a minimum mandatory sentence is not imposed, the State Attorney must

explain why the minimum mandatory sentence was not imposed in writing and

maintain that explanation in the case file. While expressing its “zero tolerance” for

those who possess firearms during the commission of an offense, the Florida

Legislature recognized that “prosecutors should appropriately exercise their

discretion in those cases in which the offenders’ possession of the firearm is

incidental to the commission of the crime and not used in furtherance of the crime,

used in order to commit the crime, or used in preparation to commit the crime.” Id.

Section 27.366 reads in full as follows:

58

It is the intent of the Legislature that convicted criminal offenders

who meet the criteria in s. 775.087(2) and (3) be sentenced to the

minimum mandatory prison terms provided herein. It is the intent of

the Legislature to establish zero tolerance of criminals who use,

threaten to use, or avail themselves of firearms in order to commit

crimes and thereby demonstrate their lack of value for human life. It is

also the intent of the Legislature that prosecutors should appropriately

exercise their discretion in those cases in which the offenders’

possession of the firearm is incidental to the commission of a crime and

not used in furtherance of the crime, used in order to commit the crime,

or used in preparation to commit the crime. For every case in which

the offender meets the criteria in this act and does not receive the

mandatory minimum prison sentence, the state attorney must explain

the sentencing deviation in writing and place such explanation in the

case file maintained by the state attorney.

Although section 27.366 is directed to subsections (2) and (3) of section

775.087, because section 775.087(1) does not include the “related to” or the “in

furtherance of” language, and the Florida Legislature has expressed its zero tolerance

for those who possess firearms during the commission of a crime, we reject the

notion that section 775.087(1) should only apply to principals who are present when

the last act or last element of a crime is committed, or when the firearm is used in

furtherance of the crime. To do so violates the clear and unambiguous language of

sections 777.011 (the principal statute), 775.087(1) (the reclassification statute), and

782.04(2) (the second degree murder statute). As the Florida Legislature has clearly

stated, the decision as to whether to seek enhancement (or in this case a

reclassification) of an offense when the firearm was incidental to the commission of

the offense, lies within the State’s discretion. And that discretion is further tempered

59

by the jury’s pardon powers. If the Legislature granted prosecutors the discretion

whether to seek enhanced sentences under section 775.087 “in those cases in which

the offender’s possession of a firearm is incidental to the commission of a crime and

not used in furtherance of a crime, used in order to commit a crime, or used in

preparation to commit a crime,” then obviously prosecutors may exercise their

discretion, as they did in this case, whether to seek a reclassification of the offense.

VII. Miscellaneous arguments raised in the concurring in part and dissenting

in part opinion

Lastly, we address the concurring in part and dissenting in part opinion’s

characterization of the defendant’s role in the homicide as an “aider and abettor,”

whose acts were simply part of “the planning and preparation for the murder,” and

the opinion’s discussion regarding attempts, solicitation, and other criminal statutes.

The concurring in part and dissenting in part opinion proclaims that the defendant’s

acts merely “consisted of planning and preparation, [] which are insufficient to

establish commencement of the crime,” and for a crime to be committed, “[t]here

must be proof of an overt act beyond mere preparation.” While this is a correct

statement of the law regarding attempts, this case does not involve an attempt. The

defendant’s acts occurred during the commission of the completed crime of second

degree murder. Rather than addressing whether the defendant was armed during the

commission of the sum total of the elements he committed to make him guilty of

second degree murder, the dissenters separate the elements and ultimately conclude

60

that the defendant must have been armed with a firearm when one or all of the

elements was satisfied in order for reclassification to occur under section 775.087(1).

As stated earlier, second degree murder is the unlawful killing of a human

being by any act that is imminently dangerous to another and evincing a depraved

mind regardless of human life. § 782.04(2). While it is true that there must be an

overt act beyond mere preparation for an attempted murder, we are not discussing

whether the defendant could have been convicted of attempted second degree

murder if Martorano did not shoot Callahan. The crime the defendant and his co-

defendants committed went past mere planning and preparation. They picked

Callahan up at the airport, shot him in the head, and left his dead body in the trunk

of a car in the parking garage at Miami International Airport.

Thus, the concurring in part and dissenting in part’s discussion of “attempt”

cases such as Arias v. State, 593 So. 2d 260 (Fla. 3d DCA 1992), Morehead v. State,

556 So. 2d 523 (Fla. 5th DCA 1990), State v. Coker, 452 So. 2d 1135 (Fla. 2d DCA

1984), and Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972), sheds no light on

the issue in this appeal. The issue in this appeal is whether the defendant’s

conviction for the completed crime of second degree murder was lawfully

reclassified under section 775.087(1) where the jury found that the defendant

committed an act or acts that were imminently dangerous to another and which

caused the death of Callahan, the jury found the defendant carried a firearm during

61

these acts, and there was evidence to support the jury’s findings.

Additionally, the defendant did not simply participate in the planning and

preparations of the murder, although if that was all he had done, he would still have

been equally and legally responsible as a principal in the first degree to the murder.

The defendant actually initiated and procured the murder of Callahan, and he did so

not only to protect Bulger, Flemmi, and Martorano, but to protect himself. He

needed Callahan to be silenced so everyone’s acts, which included several murders

in which Connolly was involved, would not be exposed. And the defendant was

armed with a firearm when he procured, planned and prepared for the murder of

Callahan. Callahan would not have been murdered but for the defendant’s initiation

of, and participation in, the commission of the murder.

The concurring in part and dissenting in part opinion also boldly asserts that

the acts committed by the defendant while he was armed with a firearm were not

acts that were imminently dangerous to the victim. The jury, however, found that

they were. Moreover, the defendant does not dispute that he was lawfully convicted

of second degree murder, which required the State to prove beyond a reasonable

doubt that the defendant committed a criminal act that was imminently dangerous

to another and demonstrating a depraved mind without regard for human life and

this act caused the death of Callahan.

We do agree with the concurring in part and dissenting in part opinion that the

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completed crime of second degree murder differs from solicitation, conspiracy, and

possessory offenses. Each of these crimes becomes a completed crime when the

solicitation, conspiracy, or possession occurs. Second degree murder differs in many

respects. Procurement, planning, and an overt act or acts that do not cause the death

of the victim, do not satisfy the requisite elements of second degree murder. That

does not mean, however, that the defendant must possess a firearm during the

commission of all of the elements of second degree murder. Section 775.087(1)

imposes no such requirement. Section 775.087(1) provides that “whenever a person

is charged with a felony . . . and during the commission of such felony the defendant

carries . . . any weapon or firearm . . . the felony for which the person is charged

shall be reclassified . . . .” And as the Merriam-Webster Dictionary clearly

concludes—“during” means “at some time in the course of.” Because the jury found,

and the evidence established, that the defendant carried a firearm during his role in

the commission of Callahan’s murder, his conviction was properly reclassified under

section 775.087(1).

Second degree murder is also a rather unique crime. Most crimes require a

specific act or acts to give rise to criminal liability. For example, to commit the

crime of robbery, an example relied on in the concurring in part and dissenting in

part opinion, the defendant or defendants must take the property from the person or

custody of the person with force, violence, assault, or by putting the victim in fear

63

during the course of the taking. § 812.13. Second degree murder does not require a

specific act, such as shooting or stabbing the victim. Second degree murder only

requires that the defendant commit some act—any act—that is imminently

dangerous to another evincing a depraved mind regardless of human life and which

ultimately causes the victim’s death. § 782.04(2). The defendant committed such

acts, his acts caused the victim’s death, and he was armed with (carried) a firearm

during these acts. These findings would have allowed the defendant to be convicted

of second degree murder wholly apart from accomplice liability or the principal

statute, i.e., the defendant is the “actual perpetrator” as well. Thus, his conviction

was properly reclassified pursuant to section 775.087(1).

The concurring in part and dissenting in part opinion erroneously relies

on Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010). In Lemus, the Fourth District

Court of Appeal addressed whether under section 775.087(2)(a)2. (the “10/20/Life”

statute), the trial court could impose twenty-year minimum mandatory sentences for

each of the separate aggravated assaults committed by the defendant based on his

discharge of a firearm during his standoff with the police. The Fourth District Court

of Appeal correctly held that based on the facts of that case, the twenty-year

minimum mandatory sentences could not be imposed for the aggravated assaults. Id.

at 776.

Section 775.087(2)(a)2. provides in pertinent part that any person who is

64

convicted of a qualifying offense (including an aggravated assault) “and during the

course of the commission of the felony such person discharged a ‘firearm’ . . . shall

be sentenced to a minimum term of imprisonment of 20 years.” Although the

defendant discharged his firearm during his standoff with the police, because he did

not discharge his firearm during the commission of either of the aggravated assaults

(when he came outside the house and pointed his firearm at the police), the Fourth

District Court of Appeal correctly held that section 775.087(2)(a)2. could not be used

to impose twenty-year minimum mandatory sentences for the aggravated assaults.

The aggravated assaults were wholly committed when Lemus pointed his weapon at

the officers and cause fear. Thus, the entire commission of those aggravated assaults

took mere seconds, and the defendant did not discharge a weapon during that time.

In the instant case, the defendant may have carried his firearm during other criminal

acts, but his second degree murder conviction was reclassified based solely on the

firearm the defendant carried during the commission of the murder, and not some

other offense. Further, unlike the defendant in Lemus, he carried his weapon while

the crime of second degree murder was ongoing.

CONCLUSION

Because the defendant did not timely object to the reclassification of second

degree murder based on a defect in the indictment, he must demonstrate fundamental

error to obtain a reversal of his conviction and sentence to second degree murder

65

with a firearm. The defect in the indictment was not a failure to charge an element

of the crime; the defendant had notice that the State intended to prove that he carried

a firearm during his role as a principal to the murder and that the State would seek a

reclassification of the murder charge; the defendant has not claimed surprise or

prejudice; and the reclassified second degree murder was not greater in degree or

penalty than the charged offense. Therefore, no fundamental error has been shown,

and we cannot reverse on that basis.

The jury’s finding was also legally sufficient to permit reclassification of the

second degree murder. The defendant specifically requested, and the trial court

instructed the jury, that the firearm reclassification of second degree murder was to

be treated as an element of second degree murder. Therefore, the jury was instructed

that the lesser included offense of first degree murder was second degree murder

with a firearm. The jury was instructed that it must find the defendant not guilty

unless it concluded that the State proved beyond a reasonable doubt that the

defendant carried a firearm when he committed an act or acts that were imminently

dangerous to another and evincing a depraved mind regardless of human life, and

that these acts caused Callahan’s death. Thus, it cannot be disputed that the jury

found that the defendant carried a firearm during the commission of the second

degree murder.

Lastly, reclassification under section 775.087(1) does not require use of the

66

weapon that actually killed the victim, the defendant’s physical presence during the

last act that resulted in the victim’s death, or that the firearm carried by the defendant

be used in furtherance of the crime. Thus, because the reclassification of the

defendant’s conviction for second degree murder was based on his personal

possession of a firearm during the acts he committed during the commission of the

murder—acts that were imminently dangerous and evincing a depraved mind

regardless of human life and which caused the death of Callahan—the

reclassification of the second degree murder was not fundamental error.

Affirmed.

WELLS, SALTER, FERNANDEZ, LOGUE and SCALES, JJ., concur.

67

Connolly v. State

Case No. 09-280

SUAREZ, C.J. (dissenting).

I respectfully dissent. The majority decision has established an entirely

new standard for the application of section 775.087(1), Florida Statutes, 6 governing

the reclassification of certain crimes, not only in direct conflict with Florida Supreme

Court precedent interpreting that statute, but also precedent out of every Florida

district court of appeal including our own. The majority’s overbroad interpretation

of the reclassification statute contravenes the long-held rule of statutory construction

that “when the language [of the criminal statute] is susceptible of differing

constructions, it shall be construed most favorably to the accused.” § 775.021(1),

Fla. Stat. (1981) (providing the rules of construction for the provisions of that statute,

which includes reclassification, section 775.087(1)). 7

6

Section 775.087(1), Florida Statutes (1981) (emphasis supplied) provides,

Unless otherwise provided by law, whenever a person is charged with

a felony, except a felony in which the use of a weapon or firearm is an

essential element, and during the commission of such a felony the

defendant carries, displays, uses, threatens, or attempt to use any

weapon or firearm, or during the commission of such felony the

defendant commits an aggravated battery, the felony for which the

person is charged shall be reclassified as follows: (a) In the case of a

felony of the first degree, to a life felony. . .

7

See, Kasischke v. State, 991 So. 2d 803, 814–15 (Fla. 2008) (observing in regard

to ambiguous criminal statute that we “cannot simply choose our preferred

68

The statutory construction at issue in the language of section 775.087(1) is

whether the words “carries, displays, uses . . . any weapon or firearm during the

commission of” the offense refers to the weapon charged in the indictment and

directly related to or available for use in the charged offense; or, as the majority now

holds, that language refers to any weapon – charged or not – in the possession of a

co-defendant, no matter how remote in time and geographical location from the

actual charged crime. Up until today, section 775.087(1) has been interpreted

throughout the state to require the defendant to have carried, displayed, used,

threatened or attempted to use the weapon actually used or available for use in

commission of the felony. In this case, that weapon is co-perpetrator Martorano’s

own gun that Martorano used to murder Callahan.

Even appellate counsel for the State conceded at oral argument there is no

case law in the entire jurisprudence of this state, or in the entire country so far as we

can discern, to support today’s interpretation and application of section 775.087(1)

to reclassify based on 1) a co-defendant’s carrying, using, displaying, etc., a weapon

not charged or mentioned in the indictment or information; 2) where that weapon

construction” and “In Florida, the rule [of lenity] is not just an interpretive tool, but

a statutory directive”); Lambert v. State, 545 So. 2d 838, 841 (Fla. 1989) (“In

construing [penal] statutes, we begin with the principle that, where criminal statutes

are susceptible to differing constructions, they must be construed in favor of the

accused.”).

69

was not the weapon used or available for use in the commission of the crime, and;

3) the defendant was remote in time and place from the commission of the crime.

Case authority in Florida up to the present leads to only one conclusion: that

Connolly’s conviction for second-degree murder as a principal was not subject to

being reclassified under the statute. Because reclassification is inapplicable, the

statute of limitation for the underlying offense has expired and the conviction should

be vacated.

Let me be clear: Connolly’s conviction for second-degree murder is not the

issue before us on appeal. Connolly’s participation in egregious acts and culpability

as a principal should not enter into our analysis of the very specific and

circumscribed legal issue raised by the parties in this appeal: whether section

775.087(1) allows reclassification of Connolly’s conviction of the lesser included

offense of second-degree murder as a principal where Connolly was not present

during the commission of the offense, and never carried the firearm used and charged

in the indictment and referred to in the verdict.

At the outset, we must recognize the unusual procedural posture of this case.

In 2005, the State of Florida decided to charge Connolly with murder in the first

degree, as well as conspiracy to commit first-degree murder, although the criminal

events occurred twenty-three years earlier, in 1982. The statute of limitation had

run on the lesser included felony of second-degree murder, and any such conviction

70

would have to be vacated. 8

After trial, the jury acquitted Connolly of both conspiracy and first-degree

murder, but found him guilty of the lesser included offense of second-degree murder

as a principal. This result put the State between a rock and a hard place: the State

wanted Connolly incarcerated and had risked a great deal to achieve a conviction,

but everyone knew that the statute of limitation had run on the crime of second-

degree murder, and Connolly would have to be released. There was only one way

for the State to repurpose the conviction, and that was to argue that Connolly’s

conviction for second-degree murder should be reclassified to a life felony pursuant

to section 775.087(1), as there is no statute of limitation on a life felony. Connolly

would then be exposed at sentencing to a term of years up to life in prison. The

problem the State faced is that years of case law had interpreted section 775.087 to

require the defendant to have been in actual possession of (carried, displayed, etc.)

the weapon during commission of the crime, in order for a conviction to be

reclassified. The State then pursued a novel theory to justify reclassification: the

State argued that a literal reading of section 775.087(1) required only that the

defendant possess “any” weapon or firearm. Thus, the State proposed, if during the

commission of the crime the defendant carried “any weapon or firearm,” that

8

See § 775.15(2) (a), Fla. Stat. (1982) (“A prosecution for a felony of the first degree

must be commenced within 4 years after it is committed.”)

71

defendant’s conviction could be reclassified pursuant to section 775.087(1).

Connolly, though in Boston at the time of the murder, was obligated to wear his FBI-

issued service weapon and thus, argued the State, he “carried” a firearm “during the

commission of the felony,” referring to the language of section 775.087(1). The

State got a verdict that, superficially at least, appeared to allow reclassification on

this basis.

Two questions emerge from this case: What time period is encompassed by

the language “during the commission of the offense,” and, as among multiple

defendants, to what weapon does the statutory phrase “any weapon or firearm” refer?

The controversy over how this specific language within section 775.087(1) should

be applied to the facts before us is the crux of this appeal. 9 My analysis of the issue

9

In yet another procedural twist, one month after the trial Connolly filed a motion

in arrest of judgment on grounds that the second-degree murder conviction could not

be reclassified to a life felony and was therefore barred by the statute of limitation.

The trial court agreed with Connolly that the second-degree murder conviction could

not be reclassified as Connolly did not personally carry the murder weapon and was

in Boston during the commission of the offense. The trial court rejected the State’s

argument that, as Connolly always carried his firearm while on duty, this constituted

“possession’ of a weapon. The trial court noted that,

This argument fails to take into account that the Defendant having a

weapon three weeks prior to the murder does not change the fact that

[he] had to have possessed the actual murder weapon at the time of the

murder for the reclassification of second degree murder with a firearm

under §§ 775.087 and 777.011, Fla. Stat., to apply.

The trial court was nonetheless compelled to deny Connolly’s motion, correctly

ruling that as defense counsel filed the motion more than ten days after rendition of

72

on appeal has not changed: the “during the commission” of the murder refers to the

discrete and time-limited act of shooting the victim with a firearm; the “any weapon

or firearm” refers to one that was used or available for use during commission of

that offense. Without the erroneous application of 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, and his sentence should be

vacated. 10

the verdict, the court had lost jurisdiction as the motion was untimely filed pursuant

to Florida Rules of Criminal Procedure 3.610(c) and 3.590(a).

10

See Toussie v. United States, 397 U.S. 112, 114-115 (1970):

The purpose of a statute of limitations is to limit exposure to criminal

prosecution to a certain fixed period of time following the occurrence

of those acts the legislature has decided to punish by criminal sanctions.

Such a limitation is designed to protect individuals from having to

defend themselves against charges when the basic facts may have

become obscured by the passage of time and to minimize the danger of

official punishment because of acts in the far-distant past. Such a time

limit may also have the salutary effect of encouraging law enforcement

officials promptly to investigate suspected criminal activity. For these

reasons and others, we have stated before “the principle that criminal

limitations statutes are ‘to be liberally interpreted in favor of repose.’ ”

See also Mead v. State, 101 So. 2d 373, 375 (Fla. 1958) (“The appellant was not

required to raise the question of the statute of limitations as the statute must be

construed liberally in favor of defendants and need not be pleaded in bar. It was

incumbent on the state not only to prove that the appellant perpetrated the crime but

that he did so within [the statute of limitation period] of the filing of the information

on which he was being tried.”).

73

BACKGROUND

In 2005, former FBI agent Connolly was charged by indictment, as a

principal,11 with co-defendants James Bulger, Stephen Flemmi and John Martorano,

with first-degree murder (Count 1)12 and conspiracy to commit first-degree murder

(Count 2). 13 The indictment alleged that Connolly, while actively employed as an

FBI agent, participated in a scheme to murder businessman John Callahan in South

Florida on or about July 31, 1982. The State submitted evidence at trial that

Connolly met a few times with co-defendants Bulger, Flemmi and Martorano in New

York and/or Boston over several weeks preceding the murder. This evidence

comprised the basis for the State’s charge of conspiracy to commit first-degree

11

§777.011, Fla. Stat. (1981), Principal in the first degree; see also fn.17, infra.

12

Count 1 of the indictment states that four co-perpetrators, Bulger, Flemmi,

Martorano, and Connolly:

did unlawfully and feloniously kill a human being, to wit: JOHN B.

CALLAHAN, from a premeditated design to effect the death of the

person killed or any human being, by shooting the said JOHN B.

CALLAHAN with a firearm, in violation of s. 782.04(1), s. 775.087,

and s. 777.011, Florida Statutes . . . .

13

Count 2 states that the same four co-defendants,

“did unlawfully and feloniously agree, conspire, combine, or

confederate [with one another] to commit a criminal offense, to wit:

Murder in the first degree with a firearm upon JOHN B. CALLAHAN,

in violation of s. 782.04(1), s. 777.04(3), s. 775.087, and s. 777.011,

Florida Statutes . . . .”

74

murder. The State’s evidence at trial also 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

somewhere between Broward and Miami-Dade Counties, Florida, Connolly and his

service weapon were both approximately 1,400 miles away 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.

In 1982, when the murder occurred, the statute of 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). 14 Any conviction on those charges was

thus barred by the four-year statute of limitation in effect at the time of the 1982

14

“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).

75

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 separate 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

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.

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

76

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 Count 2, conspiracy to commit first-degree

murder with a firearm, as well as Count 1, first-degree murder, but found him guilty

of the lesser included offense subsumed within Count 1 of second-degree murder

with a firearm. The verdict form simply stated, “Guilty of second-degree murder,

with a firearm, as a lesser included offense of first-degree murder.” Based on the

jury’s verdict that found Connolly guilty of second-degree murder “with a firearm,”

the trial court reclassified the conviction to a life felony pursuant to section

775.087(1) and sentenced Connolly to forty years in prison.

ANALYSIS

1) Count 1 of the indictment failed to provide Connolly with notice

that a conviction for a lesser included offense as a principal could

be reclassified based on his own weapon, where Connolly was not

present during the commission of the offense, and his weapon was

unrelated to the commission of the offense.

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

77

uncharged 15 firearm completely 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 non-time-barred life felony,

for committing the offense “with a firearm.” 16 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). In this case, there has

been a fundamental denial of due process because the Defendant’s conviction was

erroneously reclassified based on a charge not made in the information or

indictment. See Thornhill v. Alabama, 310 U.S. 88 (1940);17 compare Inmon v.

15

When I refer to an “uncharged,” weapon in this dissent, I mean that the firearm

used as the basis to reclassify the conviction is not the one specifically referred to in

the charge of first-degree murder in Count 1 of the Indictment. Count 1 only

specifically mentions the firearm used to murder Callahan and no other weapon.

Connolly’s firearm is thus “uncharged.”

16

The State cites to Miller v. State, 460 So. 2d 373 (Fla. 1984), to support its

argument that reclassification was proper. It is true that the primary charge in an

indictment or information includes all lesser included offenses, for purposes of

reclassification, but I cannot agree that Miller supports reclassification pursuant to

section 775.087(1) based on a weapon uncharged and unrelated to the commission

of the offense. Miller, in addition, involved one defendant, not multiple co-

defendants, and it was clearly established that Miller had actually used the handgun

during the commission of the crime.

17

“A conviction on a charge not made by the indictment or information is a denial

of due process” and an indictment or information that “wholly omits to allege one

or more of the essential elements of the crime” cannot support a conviction for that

crime. State v. Gray, 435 So. 2d 816, 818 (Fla. 1983). This is a deficiency that can

78

State, 932 So. 2d 518, 520 (Fla. 4th DCA 2006) (holding that State’s failure to

specifically reference the subsection within section 775.087 in the information

renders notice of the particular enhancement sought against the defendant

insufficient).

Count 1 of the indictment alleged the four co-perpetrators killed Callahan “by

shooting the said JOHN B. CALLAHAN with a firearm,” 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 the only gun used to shoot the victim

was possessed and discharged by co-defendant Martorano and Connolly is not the

person who effected “the death of [the victim] by shooting [the victim] with a

firearm.” 18 Further, the phrase “with a firearm” is clearly singular, and refers to the

manner in which John Callahan was killed: it is clearly a reference to the only

firearm used. From the language of Count 1, no reasonable person could conclude

be raised at any time. Id. The Florida Supreme Court has consistently applied these

principles. See, e.g., Jaimes v. State, 51 So. 3d 445, 448 (Fla. 2010) (“It is a

fundamental principle of due process that a defendant may not be convicted of a

crime that has not been charged by the state.”); Price v. State, 995 So. 2d 401, 404

(Fla. 2008) (reiterating that the failure to allege an essential element of a crime may

be raised in a habeas petition).

18

See fn.7, supra.

79

that the State was planning to apply section 775.087(1), upon possible conviction

for a lesser included offense, to an unmentioned firearm that had nothing to do with

the murder.

The State argues that Connolly’s failure to challenge the sufficiency of the

indictment by motion to dismiss constituted a waiver and should have precluded his

ability to raise the issue at a later time. The State’s arguments on the issue of waiver

are entirely unpersuasive. First, Connolly had no reason to seek to dismiss the first-

degree murder charge in Count 1 of the indictment because it is a capital felony,

punishable by death, and is not subject to reclassification or enhancement as there is

no higher punishment level. Further, the charging document failed to place Connolly

on notice that conviction on a lesser included offense would subject him to

reclassification pursuant to section 775.087(1) because the language of Count 1 did

not expressly single him out, as one of the four equally charged co-defendants, with

actually possessing, carrying, using or discharging a second firearm, i.e., his FBI-

issued sidearm. Martorano’s firearm, the murder weapon, was the only weapon

charged in Count 1. As this was a multi-defendant case and only one of the

defendants, Martorano, used the gun to shoot the victim, Connolly would have no

reason to conclude that the general reference in Count 1 to section 775.087 pertained

80

to him rather than the actual shooter.19 Connolly’s only avenue of relief was to

object to the inclusion of any lesser included offenses, which the record clearly

shows his defense counsel strenuously and continuously did.

The State relies on Mesa v. State, 632 So. 2d 1094 (Fla. 3d DCA 1994), to

support its contention that Connolly’s failure to object prior to trial to the charging

document as flawed amounts to waiver. But Mesa is pointedly distinguishable in

several ways. First, and most important, Mesa involved only one defendant and one

gun, the gun used in the crime. There was no opportunity for confusion regarding

who committed the crime and used the weapon. Thus, the general reference to

section 775.087 in Mesa’s charging document was enough to put him on notice that

the prosecution was seeking reclassification under subsection (1) and/or

enhancement for possession of a firearm under subsection (2) because he was the

only defendant, and there was only one weapon involved. Further, the reference in

the indictment that Mesa “did shoot” the victim put him on notice that, as he was the

only perpetrator, he was charged with actually using a firearm in the crime. In

addition, the jury specifically found that Mesa actually used a firearm via a special

verdict form, to which he did not object. Thus, there was a clear jury finding that

19

At the time of the indictment and trial, case precedent interpreted the language of

section 775.087 to apply only to the defendant who actually possessed, carried,

displayed, etc. the actual weapon used in commission of the offense. Connolly never

possessed, used, displayed, or even had knowledge of the gun used to kill Callahan

and, additionally, was approximately 1,400 miles away when the murder occurred.

81

Mesa personally used the weapon. Finally, I note that Mesa was charged in the

information with second-degree murder, not first-degree murder. Mesa was thus

aware that his conviction could be reclassified as a higher degree felony.

Contrary to the facts in Mesa, Connolly was not the sole defendant, but was

one of four co-perpetrators equally charged with first-degree murder; that crime

cannot be reclassified to a higher offense; Connolly did not shoot Callahan; Connolly

did not carry, display, possess, use or threaten to use, the murder weapon; and

Connolly was miles from the murder at the time it was committed. Mesa and

progeny are inapplicable to the specific facts presented in this case. 20 21

The State asserts that Connolly cannot claim that he was not on notice of the

possibility of reclassification because, as early as two years prior to trial, Connolly

20

Connolly does not challenge the language in Count 1 of the indictment as

defective, as the State persistently argued, but rather that the statutory basis for

reclassification upon conviction for a lesser included offense was not charged, i.e.,

carried, displayed, used, threatened or attempted to use, a second weapon during the

commission of the felony.

21

The State correctly notes that the test for granting relief based on a defect in a

charging document is actual prejudice, and argues that there was no prejudice to

Connolly because first-degree murder and the lesser included offense of second-

degree murder both carry a maximum penalty of life, citing to State v. Gray, 435 So.

2d 816 (Fla. 1983), and Delgado v. State, 43 So. 3d 132 (Fla. 3d DCA 2010). I find

no greater “actual prejudice,” however, than the facts presented by Connolly’s case:

conviction for a first-degree felony alone would have resulted in discharge under the

applicable statute of limitation, but reclassification based on uncharged and

unproven “carrying” of a weapon completely unrelated to the charged offense

resulted in a forty-year sentence.

82

had actual notice that the State was seeking to reclassify a lesser charge on the

specific basis of Connolly’s possession of a firearm during the Count 2 conspiracy

offense. As we explain below in this opinion, upon conviction of a lesser included

offense to Count 2 conspiracy, reclassification based on Connolly’s firearm – which

he carried during the conspiratorial meetings – would have been legally permissible

had Connolly not, in fact, been acquitted of that charge. In that context, Connolly

was appropriately charged with carrying his service weapon during the commission

of the crime of conspiracy because it is an ongoing offense taking place over a period

of time. See generally, Rosen v. State, 757 So. 2d 1236 (Fla. 4th DCA 2000)

(explaining application of statute of limitation to continuing, as contrasted with

discrete, offenses). During the conspiracy, Connolly met with his co-defendants and

the evidence indicated that, while participating in these meetings, Connolly wore his

service weapon. Reclassification for carrying a weapon during an ongoing offense

is legally supported. Section 5, infra. Connolly was, however, acquitted of the

Count 2 conspiracy charge, rendering moot the merit of his pretrial motion to

dismiss that count. As I discussed above, the State’s assertion that Connolly was on

actual notice of the applicability to him of the reclassification statute upon conviction

of any lesser included offense within the Count 1 first-degree murder charge is

untenable. Let us not confuse these two counts or the statutory elements necessary

to prove those two entirely separate criminal offenses.

83

The State concedes there is no case law to support its unprecedented theory

that reclassification upon conviction of a lesser included offense to first-degree

murder could be accomplished where the co-defendant was not present during the

offense, and did not actually carry, display, use or threaten to use, the actual firearm

used by his co-defendant in the commission of the felony. The established case law

at time of trial and at present is that, in a felony involving the use of a weapon, a

defendant’s sentence may only be reclassified upon a showing that the defendant

had personal possession of the weapon during the commission of the felony. State

v. Rodriguez, 602 So. 2d 1270 (Fla. 1992). The State’s theory justifying

reclassification, that Connolly carried his FBI-issued firearm during talks with his

co-conspirators weeks prior to the murder is, as everyone agrees, an issue of first

impression and Connolly cannot be said to have either anticipated or waived the

issue. Where the State failed to allege in Count 1 that Connolly carried, displayed,

used, threatened to use or attempted to use a second, unrelated firearm during the

commission of the homicide, I conclude reclassification pursuant to section

775.087(1), given the facts in this case, was improper. The case controlling

application of section 775.087(1) is the Florida Supreme Court case of State v.

Rodriguez, 602 So. 2d 1270 (Fla. 1992). Between the holding of Rodriguez and the

language of section 775.087(1) lies “language susceptible of differing construction.”

§ 775.021(1).

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2) It was error to reclassify based on a conviction as a principal

for vicariously possessing the only weapon charged in count 1 and

actually used in the murder.

Connolly could properly have been convicted as a principal of the lesser

included offense of second-degree murder pursuant to section 777.011, Florida

Statutes (1981).22 But a defendant’s conviction may not be reclassified for a co-

defendant’s possession of a firearm during a felony. Rodriguez, 602 So. 2d at 1270.

In Rodriguez, 23 the Florida Supreme Court construed the language of section

775.087(1) and answered this certified question in the negative: “Does the

22

Section 777.011 reads:

Whoever commits any criminal offense against the state, whether

felony or misdemeanor, or aids, abets, counsels, hires, or otherwise

procures such offense to be committed, and such offense is committed

or is attempted to be committed, is a principal in the first degree and

may be charged, convicted, and punished as such, whether he is or is

not actually or constructively present at the commission of such

offense.

23

Rodriguez actually arose out of our court. State v. Rodriguez, 582 So. 2d 1189

(Fla. 3d DCA 1991). In that case, the police attempted to pull Rodriguez’s car over

and a high speed chase ensued. During the chase, a passenger in Rodriguez’s car

picked up a rifle from the car seat and shot at the police. At trial, Rodriguez’s

conviction was reclassified pursuant to section 775.087(1). Upon post-trial motions,

the trial court agreed the reclassification was illegal as Rodriguez never possessed

the rifle that that was fired by the co-perpetrator during the chase. On appeal, this

court agreed. “This court has previously ruled that “the enhancement

provisions of section 775.087(1), Florida Statutes (1977), . . . requires that the

defendant personally possess the weapon during the commission of the crime

involved.” Id. at 1190 (citing to Postell v. State, 383 So. 2d 1159, 1162 (Fla. 3d

DCA 1980)) (emphasis supplied).

85

enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to

persons who do not actually possess the weapon but who commit an overt act in

furtherance of its use by a coperpetrator?” Id. at 1271. The Court focused on the

language of subsection 775.087(1), which requires that the defendant carry, display,

use, threaten, or attempt to use any weapon or firearm. Id. [emphasis in original].

The Court held that when a defendant is charged with a felony involving the “use”

of a weapon, his or her sentence cannot be enhanced [reclassified] under section

775.087(1) without evidence establishing that the defendant had personal possession

of the weapon during the commission of the felony. Id. at 1272. The Court explicitly

rejected the idea that a defendant could be subject to reclassification under

subsection 775.087(1) as a principal, i.e., where the defendant did not personally

possess the weapon used during the commission of the offense. Id.

In the case before us, Count 1 of the indictment refers only to the murder

weapon used by co-defendant Martorano and does not charge Connolly with

possession or use of a second weapon (his own) in the commission of that offense.

The evidence is undisputed that Connolly never possessed, carried, displayed or used

the firearm used by Martorano to kill Callahan. Pursuant to Rodriguez, Martorano’s

firearm cannot be viewed as constructively possessed by Connolly for purposes of

reclassification to avoid the statute of limitation on first-degree felonies. See id.

Further, the verdict form did not include any interrogatory regarding Connolly’s

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actual possession of the firearm alleged in Count 1, nor did the jury, by its verdict,

make any finding that Connolly personally possessed the firearm used to shoot the

victim. In Rodriguez, the firearm described in the information as the one used

during the attempted murder “was at no time carried, displayed, used, or attempted

to be used” by the defendant. 602 So. 2d at 1271-72. The Rodriguez Court reached

its holding despite the plain language of the statute indicating “any” weapon, not

“the” weapon was “carried, displayed, used,” etc.

3) It was error to reclassify based on carrying a weapon remote in

time and unrelated to the charged offense.

The State proposes that a finding of “any” weapon on a principal co-

defendant, however remotely situated, is enough to ground reclassification. This is

contrary to the holding of Rodriguez and its related cases because the Rodriguez

Court also noted in its opinion that the defendant’s sentence “could have been

“enhanced” (more accurately, reclassified) under section 775.087(1) if the State had

charged him with the commission of a felony while carrying the pistol that was found

on his person after the chase. “The failure of the State to properly charge

Rodriguez precludes it from enhancing his sentence under the carrying portion

of the statute.” 602 So. 2d at 1272 (emphasis added). In the case before us,

Connolly was not charged in Count 1 with carrying, displaying, using, etc., his

service revolver during the commission of the murder, nor was that uncharged

weapon at all related to the murder offense. See, e.g., Arnett v. State, 128 So. 3d 87

87

(Fla. 1st DCA 2013) (holding that 775.087 enhancement was improper where the

grounds for enhancement were not clearly charged in the information, and a jury

finding that the appellant actually possessed a firearm does not cure the charging

defect). The same conclusion as arrived by the Florida Supreme Court in Rodriguez

applies here. Consequently, the trial court’s reclassification was fundamentally

erroneous.

The majority’s legal conclusion contradicts years of case authority

interpreting section 775.087(1) as requiring that the defendant must personally

possess the weapon used in the commission of the crime so charged. See e.g., Chase

v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction

for aggravated battery should not have been reclassified from a second-degree felony

to a first-degree felony based on use of a weapon pursuant to section 775.087(1),

where the evidence showed that only the co-defendant possessed or used a weapon

during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006)

(reversing reclassification under section 775.087(1) where the defendant was

convicted as a principal with his co-defendant, and the verdict did not reflect that the

defendant was in actual possession of the firearm during the offense); Parker v. State,

906 So. 2d 1273 (Fla. 5th DCA 2005) (noting that reclassification under section

775.087(1) is impermissible unless the defendant actually possesses a weapon

during the commission of the crime); Porter v. State, 737 So. 2d 1119, 1119 (Fla. 2d

88

DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not

permit vicarious enhancement”); Clark v. State, 701 So. 2d 912 (Fla. 4th DCA 1997)

(same; citing to Rodriguez, and Williams v. State, 622 So. 2d 456 (Fla.

1993)); Williams v. State, 656 So. 2d 574, 575 (Fla. 1st DCA 1995) (holding murder

sentence cannot be enhanced under section 775.087(1) where the jury specifically

found “a firearm not in [defendant’s] physical possession was used” in the course of

committing the murder); Robins v. State, 602 So. 2d 1272 (Fla. 1992) (quashing

affirmance of reclassification under section 775.087(1) based on co-defendant’s

wielding of gun during commission of kidnapping offense); Willingham v. State,

541 So. 2d 124 (Fla. 2d DCA 1989) (holding it error to reclassify a sentence for use

of a weapon during the discrete act of sale of drugs based on vicarious possession,

where the co-defendant possessed the firearm during the transaction). The cited

cases demonstrate that, when no evidence is presented that a defendant personally

carried, displayed, used, threatened to use, or attempted to use a weapon related to

the commission of the charged crime, it is error for the trial court to enhance the

defendant’s sentence based on a co-defendant’s use of a firearm.

4) Connolly’s conviction as a principal pursuant to section 777.011, would have

been legally permissible (if not time-barred), but reclassification of his

conviction is not.

But for the expiration of the statute of limitation, Connolly could have been

convicted of second-degree murder as a Principal in the first degree, pursuant to

89

section 777.011, which provides,

777.011 Principal in first degree.—Whoever commits any criminal

offense against the state, whether felony or misdemeanor, or aids, abets,

counsels, hires, or otherwise procures such offense to be committed,

and such offense is committed or is attempted to be committed, is a

principal in the first degree and may be charged, convicted, and

punished as such, whether he or she is or is not actually or

constructively present at the commission of such offense.

But the Florida Supreme Court explicitly rejected the idea that a defendant could be

subject to reclassification under subsection 775.087(1) as a principal. Rodriguez,

602 So. 2d 1270. On the facts before us, the criminal offense referenced in section

777.011 is the criminal offense for which the State sought to convict Connolly in

Count 1. That is to say, the State charged Connolly as a principal in Count 1 with

the first-degree murder of Callahan by shooting him with a firearm, not any

underlying conspiracy that may have precipitated the murder, i.e., the “act” of

meeting with co-perpetrators weeks earlier.

a) The language in section 775.087(1), “during the

commission of the offense,” refers to the homicide, not the acts of

conspiracy contributing to the homicide.

“Act” is defined in the standard jury instructions as including “a series of

related actions arising from and performed pursuant to a single design or purpose.”

Fla. Std. Crim. Jury Inst. 7.4. The state argued, and the majority here concludes, that

the meetings Connolly had with the co-conspirators three weeks before Callahan’s

murder comprised the “act” referred to in the jury instructions. The majority posits

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that the “act” of meeting with the co-conspirators was performed with “a single

design or purpose,” i.e., to kill Callahan.

Connolly’s complicity in the murder, however, is limited to his role in the

conspiratorial meetings, acts for which he was acquitted. The “acts” necessary to

plan and accomplish the actual murder were performed by the co-perpetrators, not

by Connolly. 24 The majority, however, ignores the conspiracy acquittal and

judicially expands the definition of “act” by engrafting elements of the ongoing

crime of conspiracy to the discrete crime of murder in order to justify reclassification

based on the unrelated weapon. The majority’s interpretation of “act” to encompass

elements of the conspiracy conflates the two entirely separate statutory crimes of

conspiracy and murder, and the evidence necessary to prove them. The majority’s

“plain reading” rationale introduces an unprecedented and unjust application of the

definition of “act” in order to justify reclassification of the murder conviction based

on Connolly’s entirely unrelated and uncharged firearm. 25 This conclusion is not

24

Martorano convinced Callahan that they needed to meet to discuss the recent

killing of another business associate. Martorano picked Callahan up at the Ft.

Lauderdale airport; Callahan got into the van’s front seat while Martorano put his

luggage in the back seat. Martorano then shot Callahan in the back of the head.

Martorano and an associate then transferred the body to the trunk of Callahan’s

Cadillac, drove to Miami International Airport and left the car in the parking garage.

They concocted a story about Callahan having a problem with a Cuban group in

south Florida in order to deflect investigations away from Bulger and Flemmi in

Boston.

25

Under the majority’s rationale, a defendant who is not present during the

commission of a felony but who “carries, displays,” etc. a weapon or firearm (for

91

supported by precedent. See Perkins v. State, 576 So. 2d 1310, 1312 (holding that,

to the extent a statutory word or phrase is vague or ambiguous, the court is under an

obligation to construe it in the manner most favorably to the accused). “Words and

meanings beyond the literal language [of the statute] may not be entertained nor may

vagueness become a reason for broadening a penal statute.” Id. at 1312; see

also Lemus v. State, 33 So. 3d 774, 776 (Fla. 4th DCA 2010) (rejecting, as contrary

to both the plain meaning of the statute and the “rule of lenity,” the State's overbroad

interpretation of 775.087 that, as the defendant fired a revolver while earlier engaged

in a standoff, the weapon was fired during the “criminal episode” of the subsequent

assault for purposes of applying a mandatory minimum sentence under that

statute); Kasischke, 991 So. 2d at 814–15 (Fla. 2008); Lambert, 545 So. 2d at 841

(Fla. 1989).

Even if one considered each of Connolly’s meetings with the co-conspirators

to be an “act,” for purposes of convicting him of murder, the reclassification still

will not stand because at each of those meetings or “acts” Connolly did not carry,

display, use, threaten or attempt to use the firearm explicitly charged in Count 1, the

murder weapon, Martorano’s firearm. Rodriguez, 602 So. 2d at 1272 (“When a

example, a legally registered weapon worn or possessed by valid concealed weapons

permit) unrelated to the felony itself, may be convicted as a principal and have his

or her conviction reclassified based on that unrelated weapon. The policy

implications of this holding are profound.

92

defendant is charged with a felony involving the ‘use’ of a weapon, his or her

sentence cannot be enhanced under section 775.087(1) without evidence establishing

that the defendant had personal possession of the weapon during the commission

of the felony.”) [emphasis supplied].

5) Connolly was acquitted of conspiracy, the only charge that

would support reclassification for committing the offense “with a

firearm.”

Had Connolly been convicted as charged in Count 2 of conspiracy to commit

first-degree murder with a firearm, reclassification under section 775.087(1) would

have been proper. There was competent and sufficient evidence presented at trial

that Connolly met with the co-defendants over several weeks prior to the actual

murder event. Evidence was presented at trial that Connolly was obligated to carry

his FBI-issued firearm while on duty as an FBI agent, and that he was observed at

various times wearing his firearm during those meetings with the co-defendants.

The illegal nature of those transactions and Connolly’s participation in those illegal

meetings while carrying his service weapon formed the factual basis for charging

Connolly with the ongoing crime of conspiracy to commit first-degree murder with

a firearm. A co-defendant’s possession of a weapon during an ongoing offense, such

as trafficking or conspiracy, can be used to reclassify the sentence upon conviction

as a principal. See e.g., Smith v. State, 438 So. 2d 10 (Fla. 2d DCA 1983) (holding

reclassification proper where evidence supported finding that one defendant had a

93

firearm in the immediate area of the crime, and another defendant carried a firearm

while in the discrete act of possessing marijuana); Menendez v. State, 521 So. 2d

210, 212 (Fla. 1st DCA 1988) (finding competent substantial evidence that

defendant carried or used a firearm during the course of the ongoing offense of

cocaine trafficking sufficient to support reclassification pursuant to section

775.087(1); noting that crimes covered by section 775.087 require actual possession

because they are generally of short duration and the purpose served by the firearm

requires physical possession of the weapon) (emphasis supplied).

Such precedent is without application here, however, because Connolly was

acquitted of the ongoing crime of conspiracy to commit murder, and the evidence

supporting the “with a firearm” element of that charge cannot be transplanted to the

separate and discrete charge of murder. The “with a firearm” elements of Count 1

and Count 2 refer to entirely different criminal acts with different statutory elements,

and do not rely on evidence of possession or use of the same weapon. The “shooting

. . . JOHN B. CALLAHAN with a firearm” element of the first-degree murder

charge refers to the actual murder weapon. Whereas Connolly’s possession of his

service weapon would have correctly supported the “with a firearm” element of the

conspiracy to commit murder charge set forth in Count 2 of the indictment. The two

charges in this case and the evidence supporting them are not

interchangeable. See Brown v. State, 130 So. 479 (Fla. 1938) (holding that the

94

commission of a substantive crime and a conspiracy to commit the substantive crime

are separate and distinct offenses). As I have previously explained, Connolly’s

conviction cannot be reclassified based on Martorano’s possession of the only

weapon charged in Count 1. See Willingham, 541 So. 2d at 1240 (“A plain reading

of section 775.087(1) would be to require proof that Willingham actually carried or

used a firearm during the course of the offense. Any other interpretation is not

expressed clearly in the statute, and even if susceptible to such a construction, i.e.,

principal theory can be used to establish use of firearm, the construction more

favorable to the defendant must be given effect.

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