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446 Phil. 838


[ G.R. Nos. 149382-149383, March 05, 2003 ]




TRIAL COURTS MUST TAKE HEED that in criminal cases involving capital offenses the waiver of the right to present evidence and be heard should not be considered haphazardly, perfunctorily, lightly or trivially, because the right is inherent in due process, but must at all times be scrutinized by means of a test and procedure to ascertain that the waiver was done voluntarily, knowingly and intelligently with sufficient awareness of its relevant circumstances and likely consequences.

In Crim. Cases Nos. T-3285 and T-3286 the Regional Trial Court of Tabaco City, found Ricardo Bodoso y Bolor guilty of raping his fourteen (14)-year old daughter on two (2) occasions. He was sentenced to death on each count and ordered to pay P50,000.00 for moral damages and another P50,000.00 as civil indemnity also for every count.[1]

On 10 January 2000 Jenny Rose Bausa Bodoso filed a complaint-affidavit accusing her father Ricardo Bodoso of qualified rape committed on 14 July 1999 by means of force and intimidation and repeated sometime the following September. Accused-appellant was arrested and detained by virtue of a warrant of arrest issued by the Municipal Circuit Trial Court of Malilipot and Bacacay, Albay. He was subjected by the same court to preliminary investigation where he failed to submit counter affidavit/rebuttal evidence against his daughter’s complaint-affidavit.[2]

On 10 March 2000 two (2) Informations charging accused-appellant with qualified rape were filed as to which he pleaded not guilty.

On 4 July 2000 the trial court called the parties to a pre-trial conference. The prosecution and the defense stipulated that Jenny Rose was the daughter of accused-appellant and that she was fourteen (14) years old during the alleged incidents of rape. The admitted facts were stated in the pre-trial order that was signed by accused-appellant and his counsel de oficio from the Public Attorney’s Office and by the public prosecutor.

On 3 October 2000 the trial court commenced the consolidated trial of Crim. Cases Nos. T-3285 and T-3286. The prosecution presented only two (2) witnesses, namely, the private complainant herself who affirmed the contents of her complaint-affidavit, and Dr. Arsenia L. Manosca-Moran who physically examined the complaining witness and issued the pertinent medical certificate. Subsequently, the defense counsel cross-examined the prosecution witnesses. Incidentally, Jenny Rose did not substantiate the allegation that she was only fourteen (14) years old when the crimes of rape were supposedly perpetrated.

On 19 March 2001, after offering its documentary evidence and the admission thereof by the trial court for whatever it may be worth, the prosecution rested its case against accused-appellant. However, upon the manifestation of the counsel de oficio, reception of the evidence for the defense was deferred to 2 April 2001.

A sudden twist of events changed the complexion of the otherwise orderly proceedings. On 2 April 2001, as booked in the trial calendar, the defense was summoned to present its evidence. Lamentably, unlike in the previous settings of the trial court, the consolidated records of Crim. Cases Nos. T-3285 and T-3286 do not indicate whether accused-appellant was present on the scheduled trial date. There were also no transcript of stenographic notes nor minutes of the proceedings on that date that would have elucidated on the cryptic order of the trial judge of even date tersely stating –
Upon the manifestation of counsel for the accused, Atty. Danilo Brotamonte, that the defense is not intending to present any evidence and now resting its case today, this case therefore is now submitted for decision (underscoring supplied). SO ORDERED.
On 9 July 2001 the trial court promulgated its judgment convicting accused-appellant of two (2) counts of qualified rape against his fourteen (14)-year old daughter; hence, this automatic review.

In the Appellant’s Brief now before us, counsel de oficio for accused-appellant suggests that the charges against him were trumped up by the purported boyfriend of his daughter, and further claims that no evidence proved beyond reasonable doubt the elements of force, intimidation or moral ascendancy exerted by him during their sexual trysts, assuming these had taken place. It was also argued by way of an alternative defense that the victim’s minority was not sufficiently corroborated by any evidence. Clearly, the attorneys of accused-appellant assail the findings of fact of the lower court but do not seek relief from the Order of 2 April 2001 that inexplicably waived their client’s constitutional right to present evidence and be heard.

We are not about to jump willy-nilly over the issues raised by the Public Attorney’s Office that cut deeply into the merits of accused-appellant’s culpability simply because these were the only questions that the counsel de oficio found worthy of our review. In the automatic review of cases, this Court has the concomitant power to review and sift through the entire case to correct any error, even if unassigned, since the transcendental matter of life and liberty, especially of a person who possesses nothing but life and liberty, is at stake. As we have emphasized quite frequently, “there can be no stake higher and no penalty more severe than the termination of human life.”[3] Thus, although there was not even the slightest protestation by counsel regarding the issue of accused-appellant’s waiver, we shall consider the same in the interest of justice.

The rules on the validity or invalidity of a waiver are not something we have crafted overnight to suit the instant case. They have been extant since time that is now immaterial to recall. In civil cases, we overturn decisions because the waiver of certain rights was not done in accordance with the requisites. Hence, in Intestate Estate of the Late Vito Borromeo v. Borromeo,[4] this Court set aside the waiver of hereditary rights because it was not clearly and convincingly shown that the heir had the intention to waive his right or advantage voluntarily. In criminal cases where life, liberty and property are all at stake, obviously, the rule on waiver cannot be any less. In this light, we are at a loss why counsel de oficio for accused-appellant did not touch upon this point when something more valuable than any property that a person could ever inherit in his lifetime is in danger of being taken away eternally.

It is elementary that the existence of waiver must be positively demonstrated since a waiver by implication cannot be presumed.[5] The standard of waiver requires that it “not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences.”[6] There must thus be persuasive evidence of an actual intention to relinquish the right. Mere silence of the holder of the right should not be easily construed as surrender thereof; the courts must indulge every reasonable presumption against the existence and validity of such waiver.[7] Necessarily, where there is a reservation as to the nature of any manifestation or proposed action affecting the rights of the accused to be heard before he is condemned, certainly, the doubt must be resolved in his favor to be allowed to proffer evidence in his behalf.

Our criminal rules of procedure strictly provide the step-by- step formula to be followed by courts in cases punishable by death. The reason for this is to ensure that the constitutional presumption of innocence in favor of the accused is preserved and the State makes no mistake in taking life and liberty except that of the guilty. Hence, any deviation from the regular course of trial should always take into consideration that such a different or extraordinary approach has been undertaken voluntarily and intelligently. For otherwise, as in the instant case, denial of due process can be successfully invoked since no valid waiver of rights has been made.[8]

This Court notes with deep regret the failure of the trial court to inquire from accused-appellant himself whether he wanted to present evidence; or submit his memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any; or in default thereof, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. The inquiry is simply part and parcel of the determination of the validity of the waiver, i.e., “not only must be voluntary, but must be knowing, intelligent, and done with sufficient awareness of the relevant circumstances and likely consequences,” which ought to have been done by the trial court not only because this was supposed to be an uncomplicated and routine task on its part, but more importantly since accused-appellant himself did not personally, on a person-to-person basis, manifest to the trial court the waiver of his own right.

As things stand, both this Court and the trial court are being asked hook, line and sinker to take the word of counsel de oficio whose own concern in that particular phase of the proceedings a quo may have been compromised by pressures of his other commitments. For all we know, the statutory counsel of the indigent accused at that time of the trial, although not evident in the other aspects of his representation, only wanted to get rid of dreary work rather than protect the rights of his client.[9] Of course, it may be stretching the argument too much to ascribe fatal incompetence upon herein accused’s counsel for this solitary instance of faux pas. But, for sure, we must inquire if the waiver was validly done.

Worse, the consolidated records of Crim. Cases Nos. T-3285 and T-3286 do not contain any instructive summary of the proceedings which would have clarified counsel de oficio’s inscrutable action to unceremoniously waive his client’s constitutional right to be heard. In the same deplorable manner, absolutely no transcripts of stenographic account for what had transpired at that pivotal moment. Hence, whether accused-appellant really intended to relinquish his own right to be heard, as manifested by the public defender, is something we must determine with absolute certainty in the interest of complete and compassionate justice.[10]

The inquiry sought herein is not unprecedented. In People v. Bernas,[11] the trial court found it necessary after the prosecution had rested its case to satisfy itself that the representation of defense counsel that his client was waiving the presentation of his evidence constituted a voluntary and intelligent waiver of an important constitutional right. It was only after being convinced of the validity of the waiver that the lower court considered the case submitted for decision. In the automatic review that followed the trial court’s decision, no one in this Court ever thought that the apparently prudent and sensible action of the trial court in Bernas to determine the legitimacy of the waiver was a new procedure impetuously concocted for the satisfaction of over-eager civil libertarians, and was in fact adjudged by us to be still lacking in assiduity according to the standards of a “searching inquiry” as used in cases where there is a plea of guilty to a capital offense.

In People v. Court of Appeals,[12] the colloquy between magistrate and accused centered into the latter’s voluntariness and intelligence to make the waiver of his right to present evidence, an undemanding ceremony which did not intrude into precious court time nor upset judicial economy to deal with and dispose of criminal cases at optimum speed –
There is no question that per the record of the hearing of July 10, 1979, respondents-accused affirmed personally and through counsel that they categorically waived their right to present their evidence in the trial of the criminal case. Thus, Justice de la Fuente expressly asked: “You have to be consistent. If the case is denied and returned to the court of origin, you want to present witnesses” of their counsel, Atty. Balgos, who replied “No more,” and “so that our position is this — inasmuch as Mr. Justice de la Fuente asked whether if the petition were denied and the case were returned to the court of origin whether we will still present evidence. We are not presenting already.” Their counsel further replied to Justice Gaviola: “Precisely I asked my client to come here today and for the record make manifest that they are not presenting any further evidence.” Respondent-accused affirmed their counsel’s manifestations to respondent court as reproduced in respondent court’s September 18, 1979 Resolution quoted hereinabove, wherein they expressed undertook that if a verdict were found against them, “they could no longer go back to the court of origin for a new trial” and that their “only area of relief is with the Supreme Court.” Such express waiver is binding upon them and the trial court “has no alternative but to decide the case upon the evidence presented by the prosecution alone.”[13]
People v. Flores[14] is indubitably in point and on all fours with the instant case to correct the injustice resulting from the improvident waiver of the right to present defense evidence. In that case we ruled –
The lower court, in view of the severity of the imposable penalty, ought to have inquired into the voluntariness and full knowledge of the consequences of accused-appellants’ waiver. Though the Rules require no such inquiry to be undertaken by the court for the validity of such waiver or any judgment made as result of the waiver, prudence however requires the Court to ascertain the same to avoid any grave miscarriage of justice. Although accused-appellants' waiver amazed the lower court, nevertheless, the record is devoid of any facts which would indicate that the lower court took steps to assure itself of accused-appellants' voluntariness and full knowledge of the consequences of their waiver. Besides, counsel’s waiver should have put the court on guard x x x x [A] counsel who files a demurrer with leave of court, but at the same time expressly waives his right to present evidence should put a judge on guard that said counsel may not entirely comprehend the consequences of the waiver. The trial court should have exercised prudence by warning counsel about the prejudicial effects of their waiver, that with such a waiver, the case would be deemed submitted for decision, and their leave to file motion for demurrer to evidence will have no effect.[15]
The above-quoted portion of the Flores case is plain enough for us to see clear similarities with the instant criminal case so as to be considered an authority for our decision herein. To emphasize, the lower court ought to have inquired into the voluntariness and full knowledge of the consequences of accused-appellant’s waiver, and prudence requires this Court to ascertain the same if only to avoid any grave miscarriage of justice.

Sure enough, there are precedents where the accused was correctly denied the right to present defense evidence after he had waived his right to be heard. These cases however involved a valid, verified, clear and convincing renunciation of an accused’s right to offer contrary proof, circumstances that are sorely missing in the instant case.

In these cases, it was indubitably shown that the express waiver made by accused of his right to rebut the prosecution evidence was done after he had personally manifested to the trial court his belated desire to change his plea of not guilty to guilty, thus indicating his wholehearted willingness to forego reception of his evidence and uncompromised admission of complicity in the crimes charged therein;[16] or that the waiver was made only after the trial court informed accused-appellant of the consequences if he failed to present evidence in his defense, specifically that the prosecution was able to establish his guilt beyond reasonable doubt but accused-appellant nonetheless insisted that he had no intention of presenting evidence in his behalf;[17] or that his waiver was inferred from a valid and enforceable stipulation of facts in the pre-trial order signed by him and his counsel, which amounted to a surrender of his right to present evidence to contradict the stipulation,[18] among other situations which veritably evinced a voluntary and intelligent relinquishment of the right. None of these situations nor analogous ones obtain in the case at bar.

Henceforth, to protect the constitutional right to due process of every accused in a capital offense and to avoid any confusion about the proper steps to be taken when a trial court comes face to face with an accused or his counsel who wants to waive his client’s right to present evidence and be heard, it shall be the unequivocal duty of the trial court to observe, as a prerequisite to the validity of such waiver, a procedure akin to a “searching inquiry” as specified in People v. Aranzado[19] when an accused pleads guilty, particularly –
  1. The trial court shall hear both the prosecution and the accused with their respective counsel on the desire or manifestation of the accused to waive the right to present evidence and be heard.

  2. The trial court shall ensure the attendance of the prosecution and especially the accused with their respective counsel in the hearing which must be recorded. Their presence must be duly entered in the minutes of the proceedings.

  3. During the hearing, it shall be the task of the trial court to –
    1. ask the defense counsel a series of questions to determine whether he had conferred with and completely explained to the accused that he had the right to present evidence and be heard as well as its meaning and consequences, together with the significance and outcome of the waiver of such right. If the lawyer for the accused has not done so, the trial court shall give the latter enough time to fulfill this professional obligation.

    2. inquire from the defense counsel with conformity of the accused whether he wants to present evidence or submit a memorandum elucidating on the contradictions and insufficiency of the prosecution evidence, if any, or in default thereof, file a demurrer to evidence with prior leave of court, if he so believes that the prosecution evidence is so weak that it need not even be rebutted. If there is a desire to do so, the trial court shall give the defense enough time for this purpose.

    3. elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed waiver.

    4. all questions posed to the accused should be in a language known and understood by the latter, hence, the record must state the language used for this purpose as well as reflect the corresponding translation thereof in English.
In passing, trial courts may also abide by the foregoing procedure even when the waiver of the right to be present and be heard is made in criminal cases involving non-capital offenses. After all, in whatever action or forum the accused is situated, the waiver that he makes if it is to be binding and effective must still be exhibited in the case records to have been validly undertaken, that is, it was done voluntarily, knowingly and intelligently with sufficient awareness of the relevant circumstances and likely consequences. As a matter of good court practice, the trial court would have to rely upon the most convenient, if not primary, evidence of the validity of the waiver which would amount to the same thing as showing its adherence to the step-by-step process outlined above.

Clearly, the rationale behind the foregoing requirements is that courts must proceed with more care where the possible punishment is in its severest form, namely death, for the reason that the execution of such a sentence is irrevocable and experience has shown that innocent persons have at times thrown caution to the wind and given up defending themselves out of ignorance or desperation.[20] Moreover, the necessity of taking further evidence would aid this Court in determining on appellate review the propriety or impropriety of the waiver.[21]

As in the case of an improvident plea of guilty, an invalid waiver of the right to present evidence and be heard per se does not work to vacate a finding of guilt in the criminal case and enforce an automatic remand thereof to the trial court. In People v. Molina,[22] to warrant the remand of the case it must also be proved that as a result of such irregularity there was inadequate representation of facts by either the prosecution or the defense during the trial -
In People v. Abapo we found that undue reliance upon an invalid plea of guilty prevented the prosecution from fully presenting its evidence, and thus remanded the criminal case for further proceedings. Similarly in People v. Durango where an improvident plea of guilty was followed by an abbreviated proceeding with practically no role at all being played by the defense, we ruled that this procedure was “just too meager to accept as being the standard constitutional due process at work enough to forfeit a human life” and so threw back the criminal case to the trial court for appropriate action. Verily the relevant matter that justifies the remand of the criminal case to the trial court is the procedural unfairness or complete miscarriage of justice in the handling of the proceedings a quo as occasioned by x x x the “attendant circumstances.”
Conversely, where facts are adequately represented in the criminal case and no procedural unfairness or irregularity has prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that the guilty verdict may nevertheless be upheld where the judgment is supported beyond reasonable doubt by the evidence on record. Verily, in such a case, it would be a useless ritual to return the case to the trial court for further proceedings.

After a careful examination of the records, we find that the alleged waiver of accused-appellant of his right to present evidence and be heard has affected the adequate representation of facts in favor of the accused-appellant during the trial. In this regard, we note the allegation of the Public Attorneys’ Office in its Appellant’s Brief that the charges against accused-appellant were trumped up by the purported boyfriend of the alleged victim. This matter could perhaps be further explored, among other things, in the court a quo.

In fine, the instant criminal cases must be remanded to the trial court for supplementary proceedings. With grave doubts in our mind as to the voluntariness of the waiver and whether the same was done with full comprehension, we feel uneasy to bring this case to a conclusion without exercising utmost prudence. The trepidation is especially true in this case where accused-appellant’s side of the story was never offered for consideration from the preliminary investigation conducted by the MCTC until his conviction for a capital offense, despite his plea of not guilty. Our observations in the Molina case[23] where the accused-appellant improvidently offered a plea of guilty to the capital offense of qualified rape, likewise ring a soul-inspiring guidance to our task at hand –
x x x obviously we could have learned more about the crimes alleged by the prosecution if accused-appellant had also participated meaningfully in all the proceedings below. His voice could better assure the fairness of any action for or against him x x x x Given the attendant circumstances in the instant case, we are not therefore about to order the execution of accused-appellant because of default by both the public defender and, to a certain degree, the trial court. This Court cannot send him to the death chamber for no matter how outrageous the crime might be or how depraved the offender would appear to be, the uncompromising rule of law must still prevail. Tru ly, there is in the ethics of judgeship the caution expected of every judge, all the more in this case where the accused stands to be executed a superfluous four (4) times. The advocate Hugh P. MacMillan drives this point poignantly: “There is almost always something to be said either way. And it is of the greatest importance that something should be said, not only in order that each party may leave the judgment seat satisfied that, whatever has been the decision, the case has had a fair hearing, but in order that the Court may not reach its judgment without having had in view all that could be urged to the contrary effect x x x x” Clearly we are not unmindful that the charges against accused-appellant carry the punishment that is most severe. The death penalty is irrevocable, and deplorably, experience has shown that innocent persons have at times pleaded guilty. The dispossessed of fortune should not be disinherited in law. But neither are we oblivious of Brenda's claim that she was molested and abused successfully by her father four (4) times. When truth stands, to no person will we sell, or deny, or delay, right or justice, and rightly then would the consequent public condemnation and punishment of the perpetrator reassure the victim that she has public recognition and support.
This Court is left with no better option than to remand this case to the trial court to ascertain accused-appellant’s volition to such waiver as expressed in its Order of 2 April 2001, his knowledge of its consequences, and to receive his evidence if the contrary is found, so that justice may be properly administered. As stated, the defense counsel may also delve into the claim of accused-appellant in his Brief that he had been a victim of intrigue by his daughter’s supposed fiancé. Finally, since the case would have to be sent back to the court a quo, we have carefully avoided making any statement or reference that might be construed as prejudging or pre-empting the trial court in the proper disposition of Crim. Cases Nos. T-3285 and T-3286, where excellent and discerning judgeship is to be exercised as herein discussed.

WHEREFORE, the consolidated Decision of 9 July 2001 in Crim. Cases Nos. T-3285 and T-3286 is SET ASIDE. Criminal Cases Nos. T-3285 (now G.R. No. 149382) and T-3286 (now G.R. No. 149383) are REMANDED to the court a quo for their proper disposition, particularly to ascertain the voluntariness and understanding of accused-appellant RICARDO BODOSO’s waiver of his right to present evidence as expressed in the Order of the trial court dated 2 April 2001, his knowledge of its consequences, and to receive his evidence and further appropriate proceedings if the contrary is found, in accordance with the procedure outlined in this Decision. For this purpose, the proper law enforcement officers are directed to TRANSFER accused-appellant from the New Bilibid Prison where he is presently incarcerated to the Tabaco BJMP District Jail in San Lorenzo, Tabaco City, with adequate security escort, where he shall be DETAINED for the duration of the proceedings in the trial court.

The Regional Trial Court of Tabaco City is directed to dispose of these cases without further delay.


Davide, Jr., C.J., Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Ynares-Santiago and Corona, JJ., on leave.

[1] Decision penned by Judge Cezar A. Bordeos, RTC-Br. 16, Tabaco City, now G.R. Nos. 149382 and 149383, respectively.

[2] Resolution finding probable cause for two (2) counts of qualified rape penned by Judge Edwin C. Ma-alat.

[3] People v. Yambot, G.R. No. 120350, 13 October 2000, 343 SCRA 20, 40.

[4] G.R. No. 41171, 23 July 1987, 152 SCRA 171.

[5] Alonte v. Savellano, G.R. Nos. 131652 and G.R. No. 131728, 9 March 1998, 287 SCRA 245.

[6] Id. at 263.

[7] Ibid.

[8] People v. Yambot, G.R. No. 120350, 13 October 2000, 343 SCRA 20, 40.

[9] See People v. Bernas, G.R. Nos. 133583-85, 20 February 2002.

[10] See Dans v. People, G.R. Nos. 127073 and 126995, 29 January 1998, 285 SCRA 504.

[11] See note 9.

[12] 204 Phil. 511 (1982).

[13] Id., at 520, 521, 529-530.

[14] G.R. No. 106581, 3 March 1997, 269 SCRA 62.

[15] Id. at 68; underscoring supplied.

[16] See e.g. People v. Cabodoc, G.R. No. 118320, 15 October 1996, 263 SCRA 187; People v. Ramilla, G.R. No. 127485, 19 July 1999, 310 SCRA 499.

[17] People v. Banihit, G.R. No. 132045, 25 August 2000, 339 SCRA 110.

[18] Alano v. Court of Appeals, G.R. No. 111244, 15 December 1997, 283 SCRA 269.

[19] G.R. Nos. 132442-44, 24 September 2001.

[20] People v. Pastor, G.R. No. 140208, 12 March 2002.

[21] Ibid.

[22] G.R. Nos. 141129-33, 14 December 2001.

[23] See note 22.

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