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Hillsborough judge declares mistrial in machete murder case

TAMPA

Near the end of a murder trial for the man accused of killing her mother, 19-year-old Jennifer Fonseca said she had no faith in the legal system.

The day before, she told a jury how she and her 16-year-old sister saw their mother, Danitza Fonseca, 50, hacked to death last year with a machete. But on Wednesday morning, she said she expected no conviction for Alexander Cote Ferrer, 40, charged with second-degree murder.

"It's all bull----," she said.

Two hours later, Hillsborough County Circuit Judge William Fuente declared a surprise mistrial.

Earlier, Cote Ferrer had told his attorney he was hearing voices in his head. Under Florida law, the judge was then required to immediately get three expert opinions on his competency to stand trial.

After examining Cote Ferrer for 30 minutes each, two psychologists declared him incompetent. A third found him competent for trial, but too incompetent to testify in his own behalf.

That was enough for Fuente to dismiss the jury.

The questions raised by prosecutors: Was the defendant faking it? Or could he have made himself incompetent by not taking his medicines? Cote Ferrer was said to be taking the mood stabilizer Depakote, but it was unknown Wednesday whether he had skipped his medication in jail.

The issue is a rare one, but came up last year in Hillsborough Circuit Court when convicted cop killer Carlos Bello avoided sentencing for the 13th time since 1987 by refusing to take his psychotropic medications.

Tampa psychiatrist Walter Afield also recalls an opposite — a 1983 case in which a man named Billy Ferry set off a gasoline fire in a Tampa grocery, killing five shoppers.

He was found competent — despite saying he wanted to kill Russians hiding under the store — and was sentenced to death. But the death penalty was overturned, and Ferry was sentenced to five consecutive life sentences and sent to a state hospital.

In Wednesday's machete murder case, psychologist Debra Goldsmith told the judge that Cote Ferrer was "not competent, no question." She said he may suffer from schizophrenia and a bipolar disorder.

Psychologist Bruce Whiting told the judge it was possible Cote Ferrer was faking it, or "malingering," but given his medical history, Whiting said, "He appears genuinely psychotic."

The third expert, psychologist Edward Whyte, equivocated, saying he saw no evidence of a personality disorder, but did find him incompetent to testify in his own behalf.

Legal experts stress that incompetency is not the same as insanity.

Insanity means a defendant was unable to tell right from wrong at the time of the crime, said Tampa defense attorney Rick Terrana. Incompetency means a defendant is incapable of understanding or assisting in his own defense. It can occur before or during trial.

A finding of incompetency is by no means a victory for the defendant, experts say.

"At best it's a short reprieve," said Charles Rose, a criminal law professor at the Stetson University College of Law in Gulfport. "As soon as competency is restored, they go right back to trial."

In his 20 years of practicing law, Terrana said, he has never seen a defendant avoid conviction by claiming incompetency.

On Wednesday, the psychologists estimated it would take three to six months in a mental institution to restore Cote Ferrer's competency.

By the time the mistrial was declared, Jennifer Fonseca, the victim's daughter, had already gone home.

John Barry can be reached at jbarry@sptimes.com or (813) 226-3383.

Hillsborough judge declares mistrial in machete murder case 08/31/11 [Last modified: Wednesday, August 31, 2011 11:43pm]
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