Florida Supreme Court
Case No. 93-35736
GERARDO MANSO, Appellant,
STATE OF FLORIDA, Appellee.
November 20, 1997
We have on appeal the judgment and sentence of the
trial court imposing a death sentence upon Gerardo Manso. We have
jurisdiction. Art. V, § 3(b)(1), Fla. Const. We affirm the convictions
of guilt. For the reasons expressed, we reverse Mansos death sentence
and remand for a new competency determination and penalty proceeding.
Manso was a night shift foreman at Aircraft Modular
Products in Miami, where he had worked for six years. He believed he had
been treated unfairly in being passed over for a promotion and was
concerned about the possibility of losing his job.
On October 14, 1993, Manso placed his twelve-gauge
shotgun in his car. When other employees left the shop for an evening
meal, he retrieved the shotgun and five shotgun shells from his car,
entered the shop, ground off identifying serial numbers and markings,
and cut off the stock of the gun.
After modifying the gun, he picked up plastic covers
to cover himself because it was raining. He left the building and
climbed two separate ladders to the roof. On the way, he loaded five
shells into the gun and threw the empty box down a drain. He then waited
for Miguel Roque, Jorge Sanchez, Douglas Zamora, Ray Cruz, and George
Moussa to return from a computer training class. Manso knew they would
return about 9 p.m. While waiting, Manso stationed himself on the roof
directly over the area where the vehicle would arrive.
When the vehicle arrived, Manso fired directly at
four of the occupants. Manso stated in his confession that he aimed at
the person in the vehicle whom he believed to be Jorge Sanchez and fired
two shots, intending to kill that person. That person actually was
Miguel Roque, who died as a result of the gunshot. When Douglas Zamora
got out of the car, Manso fired one shot at him, causing severe
injuries. When Ray Cruz got out of the car, Manso also fired one shot at
him, causing severe injuries. Next Manso shot through the roof of the
vehicle, intending to kill George Moussa, who was not injured because
Roque's body was on top of him.
Then Manso discarded the plastic, threw the gun into
a yard beside the building, descended the two ladders, and returned to
the shop. Manso mingled with other employees. When police arrived, Manso
said he had seen a Cadillac carrying three Colombians who asked about
Jorge Sanchez just before the shooting. Manso knew Sanchez had been
arrested on drug charges, and Manso wanted police to believe the
shooting was narcotics-related.
Approximately a week after the shootings, after the
police confronted him with evidence linking him to the murder weapon,
Manso confessed to the shooting. He told police that he intended to kill
Sanchez and Moussa because they were making his job impossible and he
heard a rumor that he was going to be fired. Manso maintained that he
did not intend to kill Cruz, Zamora, or Roque.
A jury found Manso guilty of one count
of first-degree murder and four counts of attempted first-degree murder.
The jury recommended a death sentence by a ten-to-two vote. The trial
court followed the jury's recommendation and sentenced Manso to death,
finding the following aggravating circumstances: (1) Manso had
previously been convicted of another capital felony or of a felony
involving the use or threat of violence to the person (murder of his
wife's lover, Luis Gutierrez, and four contemporaneous attempted murders);
(2) Manso knowingly created a great risk of death to many persons; and
(3) the murder was committed in a cold, calculated, and premeditated
The court found the following
statutory mitigators: (1) that Manso was under the influence of extreme
mental and emotional disturbance; (2) that his capacity to appreciate
the criminality of his acts and conform his conduct to the requirements
of the law was substantially impaired. The judge found the following
nonstatutory mitigators: (1) Manso had a history of childhood abuse and
neglect; (2) was a good parent and family man; (3) cooperated with the
police; (4) was contrite and remorseful; and (5) had a capacity for
In this direct appeal, Manso raises twelve claims. We
find dispositive his claim that the trial court should have granted a
continuance during the penalty phase so that Manso?s competence could be
further examined. Because we are compelled to order a new sentencing
proceeding upon a new determination that Manso is competent to proceed,
we do not reach the other penalty-phase claims.
Manso raises only one guilt-phase claim. This claim
challenges the court?s denial of motions for acquittal of the charges of
attempted first-degree murder as to Cruz and Zamora because the State
failed to establish that Manso had a specific intent to kill Cruz and
Zamora. We reject this contention because the record contains sufficient
facts regarding Manso?s intent. Thus, we conclude that the jury could
determine the charges of attempted first-degree murder. Sireci v.
State , 399 So. 2d 964, 967 (Fla. 1981). Therefore, we affirm
Manso?s convictions of one count of first-degree murder and four counts
of attempted first-degree murder.
In his competency claim, Manso contends that the
court erred during the penalty phase in failing to continue the
proceedings for hospitalization and further observation to determine
Manso?s competency as the two examining mental health experts
recommended. We agree that a continuance was required because of the
testimony of the two psychologists and because of testimony of other
witnesses as to additional facts relating to Manso?s psychological
During the penalty proceeding, the trial court
correctly assessed Manso?s behavior, along with relevant testimony, and
found that a competency hearing was necessary. See Fla. R. Crim.
P. 3.210; Pridgen v. State , 531 So. 2d. 951, 954 (Fla. 1988).
First, Manso?s sister and brothers testified to the following: that
Manso?s mother was a paranoid schizophrenic and was periodically
hospitalized; that Manso, while in the Cuban military, had received
psychiatric treatment, was hospitalized and given electric shock
treatments; that his siblings observed Manso to be depressed and thought
he acted strangely; that Manso often expressed the belief that people
were laughing at him and ridiculing him; and that, for a number of years,
Manso had been self-medicating to calm himself with his mother?s anti-psychotic
drugs. Manso then took the stand, admitted shooting his co-workers, and
expressed remorse. Manso also testified as to his personal history,
including his mother?s schizophrenia and his own psychological problems.
During direct examination, Manso told the jury he had no right to live,
and the following exchange occurred:
Q. Let me ask you this, do you think that you?re
A. Huh? No, no.
Q. You don?t think so?
A. No. Who knew they?re sitting there -- everybody
there and they?re the people above them and now they make themselves be
good, and they think about one thing, in what way have they put me there
in order be able to kill five people. Yeah, that is all and I don?t want
to keep talking. I already asked for the electric chair so everyone
would be happy. What else do they want?
MR. CARTER : I don?t have anything further.
THE DEFENDANT : And that way I?m going to go
to a place where no one can bother me and I can be calm.
The prosecutor then attempted to cross-examine Manso,
who stated, "Tell the fat lady I don?t want to answer any of her
questions." Manso threw the witness-stand microphone at the prosecutor.
The court excused the jury. Manso then got down on the floor and began
screaming and shaking violently.
The court granted defense counsel?s oral motion for
recess in order to hold a competency evaluation. For the purpose of
determining competency, the court immediately appointed psychologists
Dr. Merry Haber and Dr. Lazaro Garcia, who had been retained by the
defense and the prosecution, respectively, to testify at the penalty
phase. Dr. Haber and Dr. Garcia were at the courthouse at the time and
performed their evaluations that afternoon. The two psychologists
interviewed Manso for a period of about two hours.
Later that same day, each psychologist orally
reported findings to the court in an evidentiary hearing in which both
experts testified. Dr. Haber stated that she concluded Manso was not
competent to proceed because he had experienced a psychotic break and
should be hospitalized and medicated until restored to competency. Dr.
Garcia disagreed as to the psychotic break and concluded that he had a "strong
suspicion that [Manso was] malingering" because Manso?s statements were
self-serving. Dr. Garcia concluded that Manso was competent, but also
stated: "I discussed this with Dr. Haber, and I think in the case of
prudence that involuntary hospitalization for observation is recommended."
The trial court also heard testimony from an
interpreter and two corrections officers who had contact with Manso. The
prosecution argued that Manso was malingering, and defense counsel
argued that Manso should be hospitalized based on both psychologists?
testimony. The court found Manso to be competent to proceed based upon
testimony by Dr. Haber and Dr. Garcia and upon the court?s own
observation that Manso was feigning psychosis.
In view of the particular circumstances of this case,
we hold that the court abused its discretion in failing to grant a
continuance based on the recommendations of the two psychologists that
Manso should be observed in a hospital setting. Lane v. State ,
388 So. 2d 1022, 1025-26 (Fla. 1980).
Accordingly, we affirm Manso?s convictions of guilt
but reverse his death sentence and remand to the trial court for a
complete new penalty proceeding on the first-degree murder conviction
with new counsel representing him. Manso?s new sentencing may proceed
only after the circuit court determines that he is competent to proceed
in accord with Florida Rules of Criminal Procedure 3.211 and 3.212.
It is so ordered.
KOGAN, C.J., and OVERTON, SHAW, HARDING, WELLS and
ANSTEAD, JJ., and GRIMES, Senior Justice, concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
An Appeal from the Circuit Court in and for Dade
Leslie Rothenberg, Judge
1§ 921.141(5)(b), Fla. Stat. (1993).
2§ 921.141(5)(c), Fla. Stat. (1993).
3§ 921.141(5)(i), Fla. Stat. (1993).
4§ 921.141(6)(b), Fla. Stat. (1993).
5§ 921.141(6)(f), Fla. Stat. (1993).
6. Manso claims that: (1) the trial court erred in
failing to grant Manso?s motion for judgment of acquittal on two charges
of attempted first-degree murder; (2) the trial court erred in finding
Manso competent to proceed at the penalty phase without granting a
continuance for further observation; (3) the State improperly used the
competency examination to rebut mental mitigation; (4) the testimony of
a prosecution expert, Dr. Garcia, exceeded the proper scope of rebuttal;
(5) Manso was denied his right to counsel and to a fundamentally fair
sentencing hearing because trial counsel?s ineffectiveness is apparent
from the record and counsel was suspended from practice in Florida three
days after Manso was sentenced; (6) the trial court erred in restricting
Manso?s ability to elicit testimony regarding his family history of
mental illness; (7) the trial court erred in permitting the State?s
rebuttal witness to testify to a previously undisclosed oral statement
by Manso; (8) the trial court erred in sustaining the State?s objection
to defense counsel?s closing argument regarding alternatives to the
death penalty; (9) the trial court erred in imposing a death sentence;
(10) the trial court erred in relying on the nonstatutory aggravator of
future dangerousness; (11) the standard jury instructions misled the
jury as to the significance of its verdict; and (12) Florida?s death
penalty statute is unconstitutional.
7. We note that subsequent to this trial, the
Superintendent of Union Correctional Institution petitioned to have
Manso involuntarily committed to the Corrections Mental Health
Institution in Chattahoochee. On September 5, 1995, the circuit court in
Union County granted the petition, finding that Manso was suffering from
major depression with psychotic features.
SEX: M RACE: H TYPE: T MOTIVE:
MO: Shot wife's suspected
lover; shot employees at his job
DISPOSITION: 22 years on one
count, 1994; condemned on second count + four life terms for attempted
Gerardo Marten Manso