Ballarotto overturns conviction on appeal

Convictions of ex-Elmira man overturned in Florida
Written by Jason Whong 4:42 PM, Jul 17, 2013 | stargazette.com

A Florida appeals court has blotted out the 2011 convictions of a former Elmira man who has already served the prison time from his sentence in that case.

The state’s Third District Court of Appeal ruled that a Monroe County, Fla., court erred in the trial of John C. Merrone, 41, of Stock Island, Fla., by not letting Merrone’s attorney recall a prosecution witness to corroborate the story of a defense witness. Merrone is a 1990 graduate of Notre Dame High School in Southport, according to this newspaper’s archives.

“I’m 100 percent innocent,” Merrone said Wednesday by phone. “I always have been, and this doesn’t change the fact that I was innocent from the get-go.” Merrone declined to comment further, citing advice from attorneys not to make additional statements.

The appeal court erased Merrone’s 2011 convictions on a count of felony false imprisonment and two counts of misdemeanor battery. At his trial, he was acquitted of the more serious aggravated battery and sexual battery charges lodged against him.
He has already served two years in jail. Merrone probably won’t be able to receive any compensation from the state for his incarceration, said his attorney, Jerry Ballarotto, of Trenton, N.J.

“It’s a shame,” Ballarotto said. “He was completely an innocent man. ... This is a classic example that justice delayed is justice denied. It’s unfortunate, but that’s the way it is.”

The opinion
In an opinion filed June 26, the appeal court said the trial court should have allowed Ballarotto to recall a Monroe County, Fla., sheriff’s detective to the stand after the jury heard testimony from defense witness Frank Silver, Merrone’s roommate, who also worked at Merrone’s charter boat business.

Silver testified that he was in the apartment the night of the alleged sexual battery, that he heard two people having sex and that the woman sounded happy, according to the appeal court. Silver said he would have come out of his room if he thought someone was being hurt.
He also testified that he received $2,100 from Merrone before the trial because Merrone owed it to him for running the boat business while he was in jail; he said the payment didn’t affect his testimony.

After Silver testified, Ballarotto asked to recall the detective to testify about what Silver said on the night of Merrone’s arrest, but the judge would not allow it, agreeing with the prosecution that such testimony would be hearsay.

Because the prosecution suggested in its opening statement, in its cross-examination of Silver, and in its closing argument that Silver’s testimony may have been motivated by the $2,100 payment, the defense should have been allowed to ask the detective what Silver said, the appeal court wrote in its opinion.

“The defense was entitled to show that Silver provided the same version of events to the police before he ever rendered these services to, or was owed money by, Merrone,” the appeal court wrote.

What's next
The decision vacates the convictions and holds those charges for a new trial. It is marked as not final; the state has some time to ask the appeal court to hear the appeal again. There will only be a rehearing if the state asks for one and the court agrees.

A clerk at the appeal court wouldn’t say Wednesday how long the state has to request a rehearing or if another copy of the decision has been marked final.

“Now the prosecutor has to decide if they want to try it again or not,” Ballarotto said. “My suspicion is that they won’t.”
“He was found not guilty of the serious charge at the time of the trial,” Ballarotto said. “The appellate court now says that the judge made these errors and ... it may have affected the outcome of the case, indeed, the conviction may not have resulted.”

A prosecutor at the State Attorney’s Office in Key West, Fla. did not return a call seeking comment.