John Connolly was convicted of second degree murder. For the sake of the appeal all, even Connolly’s lawyers, conceded that was a proper conviction.
The issue then is whether another statute relating to the use of gun during the commission of a crime applies to Connolly’s situation. If it does not, then Connolly cannot be convicted of second degree murder because the statute of limitations for that crime would have long passed. If it does, then he can be convicted because the utilization of the gun turns the crime into a life sentence and the statute of limitations does not apply.
(A little side issue is that if Connolly’s lawyer had filed the right motion after he was found guilty within ten days then the trial judge would have ruled the statute of limitations had passed and he must be acquitted. He filed it 30 days after. It was too late. The trial judge lost jurisdiction. Connolly lost his freedom.)
The facts in Connolly’s case are simple from the Appeals Court point of view. Connolly met with Martorano, Bulger and Flemmi a few times. He told them they had to murder Callahan or else they would all go to prison. At those times he met he was wearing his FBI gun. Three weeks after his last meeting Martorano shot Callahan in the head in Fort Lauderdale. Florida. Connolly was in Massachusetts at that time.
The statute relating to the use of the gun states as applicable here: “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 person charged shall be reclassified . . . .”
The issue is: did Connolly during the commission of Callahan’s murder carry a weapon.
The Judge Rothenberg of the Third District Court of Appeal writing for the majority took 68 pages to answer that question. Other judges dissenting used 74 pages explaining why she was wrong.
Step back a second and think for yourself what that statute is intended to accomplish. You don’t have to be a lawyer or judge to figure it out. It seems to me it is simple. The legislature wanted to punish people who brought guns to the scene of a crime. If you and Buddyboy rob a bank with a gun, then you are going to get your sentence increased; if you and Buddyboy do it with a note and a mask then you won’t.
The Connolly court does not see it that way. It states that from the time you first plan the crime up to its commission if at any time you carry a gun or other weapon your sentence can be reclassified even though you did not use any gun or weapon while committing the actual act.
Here is a simple example to show why the decision is so wrong. Suppose on Monday you and Buddyboy start making preparations to rob a bank on Friday. You sit at the kitchen table next to the sliding door leading out to the lanai. You are both wearing your guns. You decide who will steal the car, get the masks, do the casing, and other steps. Buddyboy says: “are we going to bring these” as he hold up his gun. You take your gun out and say: “no, no firearms, I don’t want anyone shot. We’ll leave them here.” You and he walk over to the hide and put the guns in. That Firday you commit the robbery.
The judges in Connolly case would say that the statute applied to you and that you can be reclassified. That is because the robbery began at the time you sat at the table planning it. The planning is “during the commission of the” robbery. Even though you did not use any guns during the Friday robbery you carried the guns on the Monday when you were planning the robbery.
The problem with the decision is rather than upholding the intent of the statute which is to keep guns away from felony situations it encourages bringing them to the commission of a felony. If one carries any weapon during any stage of the planning of a felony even if it is months before and even if it is only a kitchen carving knife then the statute will apply to that person. You can be reclassified up? Why not bring them after you carve the turkey since it is already too late to avoid being reclassified.
It makes no sense. It is an example of a court out to get someone making bad law just to do that. It shows how judges can twist and turn to law to make it do the opposite that it was intended to do.