347 Phil. 723
PANGANIBAN, J.:
“That on or about the 8th day of March, 1993, in Quezon City, Philippines, the abovenamed accused, conspiring, confederating with four (4) other persons whose true names, identities, whereabouts and other personal circumstance have not yet been ascertained and mutually helping one another, did, then and there wilfully, unlawfully and feloniously kidnap one CHARMAINE MAMARIL, a female, a minor, 7 years of age, represented herein by her mother, RAQUEL MAMARIL, from her school at Kaligayahan Elementary School located at Rivera Compound, Barangay Kaligayahan, Novaliches, Quezon City, and brought her to a house at No. 8 G Araneta Avenue, Sto. Domingo, Quezon City, on March 13, 1993, thereby illegally detaining her for five (5) days, to her damage and prejudice.”With the assistance of Atty. Noel Ocampo of the Public Attorney’s Office, she pleaded “not guilty” to the charge during the arraignment.[3] A pre-trial conference was conducted on June 2, 1993, but no stipulation or agreement was arrived at.[4] After trial, the court a quo rendered the assailed Decision, the decretal portion of which reads:[5]
“WHEREFORE, judgment is hereby rendered finding the accused MERCY SANTOS y ENTIENZA guilty beyond reasonable doubt of the crime of KIDNAPPING AND SERIOUS ILLEGAL DETENTION and sentencing her to suffer reclusión perpetua; to indemnify the victim CHARMAINE MAMARIL, her parents, and members of her family, represented by her mother, RAQUEL MAMARIL, in the sum of Pesos: One Hundred Thousand (P100,000.00); and to pay the costs of suit.”Hence, this appeal.[6]
“Charmaine Mamaril, a kindergarten pupil, was brought to school, the Kaligayahan Elementary School, in Novaliches, Quezon City by her mother, Raquel Mamaril, at noontime on March 8, 1993. Raquel left Charmaine in her classroom with her classmates but stayed awhile, going home only after 12:30 p.m. She would be going back for Charmaine, according to her daily routine, at 2:00 p.m. When she returned to fetch Charmaine before 2:30 p.m., Charmaine’s teacher Ms. Grace Lucena, met and asked her if the child had already reached home; Raquel replied that Charmaine did not know the way home. She then looked for her child in school until someone informed her that a woman had earlier fetched her daughter. She immediately reported the matter to the police authorities stationed in Novaliches at around 3:00 p.m. and then to the National Bureau of Investigations the next day; she also approached radio and television stations for help. She and her family conducted their own search from then until her daughter was finally found on March 13, 1993.
Raquel recounted how her child was recovered. According to her, a police sergeant came to her house on March 13, 1993 and asked for her; he told her to contact Kagawad Aida Bautista of Sto. Domingo. When contacted, Bautista informed her that a child named Charmaine was with her; Raquel immediately went to Bautista with some identification papers of Charmaine, and the child was turned over to her after showing the birth certificate. This occurred on a Saturday.
Although Charmaine’s kidnapper was not immediately caught, the matter did not end with the return of Charmaine to her family’s bosom. Two days later, on Monday, Bautista telephoned Raquel to tell her that the woman, a certain Mercy Santos, had returned to her place to claim Charmaine. Raquel wasted no time notifying NBI Agent Roel Jovenir, who, in turn and with other NBI agents, accompanied by Raquel and her husband, proceeded to Bautista’s place and arrested Santos.
Following the arrest of Santos, the kidnapping was investigated at the NBI office, where Raquel gave her written statement.
Bautista recalled that she was at the store on No. 719 Quezon Avenue, Quezon City on March 9, 1993 when, at around 2:00 p.m., a woman approached and asked if she could leave her child with her; that she told the woman to just leave the child ‘at the bench’ of the store; that the woman then left the child there; that when it was already 7:00 p.m. and the woman had not yet returned, she became worried for the child and reported the matter to the Barangay Chairman who also reported it to Eagle Base, the base of the Barangay officials; that on March 12, 1993, she read from a newspaper about a child who was kidnapped in Novaliches; that she immediately called up the Novaliches police sub-station to know more about the kidnapping; that when the child’s mother later phoned her on March 13, 1993, she required the caller to bring the birth certificate of the child for identification, that later that day, the child was returned to her parents in the presence of Barangay Chairman Jose Valdez, the reporter of Pinoy and a barangay tanod; that on March 15, 1993, the woman who had left the child returned for her; that she called up the child’s parents to tell them about this; and that soon, three NBI agents, including one named Roel, came with the parents of the child and, after talking to the woman, arrested her.
The victim, Charmaine, aged 7 years, declared that Mercy Santos took her; that she was seated and crying in school when Mercy waved for her to draw near; that after she approached, Mercy promised to give her a ‘surprise’ if she went with her to a big house where there were many children; that she went with Mercy and was brought to a big house with many children; that she and Mercy slept there; that Mercy later brought her to the store owned by Ate Tina; and that Ate Tina later brought her to a house where she saw her ‘daddy.’
Roel Jovenir was assigned as special investigator of the Anti-Fraud and Action Division of the NBI from April 18, 1992 to June 1, 1993, whose duties included the conduct of surveillance, making arrests, and investigating and filing cases involving violations of laws, like the Revised Penal Code. He testified that on March 9, 1993, Raquel Mamaril filed her written complaint at the NBI offices against an unidentified woman for allegedly kidnapping her daughter on March 8, 1993; that although Raquel’s statement was taken only on March 15, 1993, the NBI were already conducting their investigation and surveillance of the kidnapping incident in the vicinity of Kaligayahan Elementary School since the filing of the complaint; that on March 13, 1993, Raquel called to tell him about the child being under the custody of Bautista; that he and the child’s parents rushed to Bautista’s place and rescued the child; that on March 15, 1993, Raquel again called up to inform him that the suspected kidnapper had gone back to Bautista’s place to fetch the child; that in the company of other NBI operatives, namely, Agents Arnel Azul, SPO1 Rodrigo Mapoy, and Emeterio Armada, he proceeded to the Bautista house and waited for the suspect to return; that they arrested the suspect upon her return and brought her to the NBI; that the suspect was Mercy Santos; that Santos was investigated in the presence of counsel, Atty. Gordon Uy, after she was informed of her rights under the Constitution; that she executed and signed a statement, on the occasion of which she admitted the kidnapping; that during the investigation by question and answer, Atty. Uy would raise objections by cautioning Santos against answering, in which case the objection and the question objected to were not anymore typed in the statement; and that photographs were taken of Charmaine and the accused during the confrontation.”
“The accused testified in her own behalf on November 24, 1993. She stated that she was arrested by NBI Agent Jovenir on March 15, 1993 at Araneta Avenue, Talayan Village, Quezon City, at the residence of Aida Bautista; that she was at Bautista’s house because her friend named Elsa had asked her to fetch Charmaine at that place; that she did not know the surname of Elsa, but Elsa lived on Tops Street, Talayan; that she had come with Elsa from Novaliches; that Elsa had left Charmaine at Bautista’s place and later requested her to fetch the child; that Elsa was a nightclub dancer whom she had known for two years; that she was not the woman whom Bautista said had left Charmaine at the store; that she was not able to confer with any Atty. Uy and she might have merely signed the affidavit; that she did not know Atty. Uy; and that she signed Exhibit C only because she was threatened by NBI Agent Rodrigo Mapoy and was maltreated.”
“I
The trial court gravely erred in giving full weight and credence to the incredible, unworthy and unreliable testimonies of the prosecution witnesses and in disregarding the theory of the defense.II
The trial court gravely erred in not giving credence to the defense of denial raised by the accused Mercy Santos.III
The trial court gravely erred in admitting in evidence the extra-judicial confession of the accused despite the fact that it was elicited in violation of the exclusionary rule on evidence.IV
The trial court gravely erred in convicting the accused-appellant despite failure of the prosecution to prove his (sic) guilt beyond reasonable doubt.”
“01. TANONG: Bb. MERCY SANTOS Y ENTIENZA, ikaw ay iimbesigahan namin sa pagkakasangkot mo sa kasong ‘kidnapping’, bago kami magpatuloy sa pagsisiyasat na ito ay nais naming ipaalam sa iyo and iyong mga karapatan sa ilalim ng ating Saligang Batas. Ikaw ay may karapatang manahimik at di magpahayag ng anumang salaysay kung nais mo, naiintindihan mo ba ito?
SAGOT: Opo sir.
02. T: Ikaw ay mayroon ding karapatan na kumuha at tulungan ng isang abogado na pili mo upang umasiste sa iyo sa pagsisiyasat na ito. Kung hindi mo naman kayang bumayad ng serbisyo ng isang abogado ay ikaw ay bibigyan namin ng isa na siyang tutulong sa iyo sa pagsisiyasat na ito ng walang bayad, naiintindihan mo ba ito?
S: Opo sir.
03. T: Ngayon, ikaw ba ay mayroong abogado na sarili mong pili para tumulong sa iyo sa pagsisiyasat na ito?
S: Opo sir, Nandito ang aking abogado si ATTY. GORDON UY na siyang tutulong sa akin sa pagsisiyasat na ito.” [14]
“The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If the advice given is so cursory as to be useless, voluntariness is impaired. If the lawyer’s role is reduced to being that of a mere witness to the signing of a pre-prepared document albeit indicating therein compliance with the accused’s constitutional rights, the constitutional standard guaranteed by Article III, Section 12(1) is not met. The process above-described fulfills the prophylactic purpose of the constitutional provision by avoiding ‘the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense’ and ensuring that the accused’s waiver if his right to self incrimination during the investigation is an informed one in all aspects.”Thus, the trial court erred in admitting appellant’s extrajudicial confession without showing that Atty. Gordon Uy was indeed the “competent and independent counsel of appellant’s own choosing.” The Court notes appellant’s insistent and persistent disavowals of knowing said Atty. Uy, much less of retaining him as her counsel of choice. The prosecution, for unexplained reasons, failed to present Uy as a witness to show his role in the taking of the alleged confession.
“The circumstances of the investigation, to begin with determine the compliance with the ‘right to counsel’ provision. Where, as in the instant case, the accused is shown to have accepted the representation and assistance of the counsel during the investigation, he may not easily subsequently retract acceptance and disavow counsel during the trial on the flimsy excuse that counsel was not an acquaintance. xxxx
x x x x x x x x x
The accused need not expressly assent to the representation and assistance of her counsel. Her acquiescence sufficed. xxxx
The accused should further be instructed that her failure to object to the representation and assistance of Atty. Uy as her counsel has precluded her from complaining. She could have easily objected at any time but apparently did not. For her to assert now that she could not have done so or that she was not enabled to do so is not credible, it being shown satisfactorily in the records that she was far from prevented during the investigation from doing so. xxx.”[18] (Emphases found in the original.)
Q. On March 8, 1993, can you recall if you went to school?The fact that the victim initially agreed to go with appellant does not remove the element of deprivation of liberty because the victim went with her on false inducement, without which the victim would not have done so. Besides, the minor was distraught because her mother was late in fetching her from school, and she did not know the way to her house. It must have been a comfort to her that a grown-up who could bring her home asked about her situation. As the trial court said:[23]
A. Yes, sir.
Q. Can you remember if there is anything that happened to you on that day?
A. Yes, sir.
Q. What was that which happened to you?
A. She took me, sir.
Q. When you said she took me, whom are you referring to?
A. Mercy Santos, sir.
Q. If Mercy Santos is in court, can you point her out?
A. Yes, sir. (witness pointing to a person seated on the second bench)
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Pros. Bringas:
Now, Charmaine you stated awhile ago that Mercy Santos took you, how was she able to get you, when Marcy Santos took you, how did she do it?
A. I was left in a store to a certain Mrs...
xxx xxx xxx
Q. From what place did Mercy get you?
A. At the school sir.
Q. How was she able to get you? I am withdrawing the question. Do you know Mercy previous to that day?
A. Yes, sir.
Q. How did you know her?
A. When I met her at a big house I cried and a man whipped me with a piece of rope.
Q. Before Mercy took you from your school, where was she?
A. This Mercy was standing while I was seated and crying.
Q. Did Mercy call you?
A. Yes, sir.
Q. Why did she call you?
A. She waved me over to go to her.
Q. Did you go to her?
A. Yes, sir she told me there is a surprise for me.
Q. Do you know the reason why there was a surprise for you?
A. Yes, sir.
Q. What was the reason?
A. She told me that she will bring me to a big house were [sic] there were many children?
xxxx xxx xxx
Q. After you went there, where else did you go, if any?
A. When I was brought to the big house, Mercy and I are and then I slept then after sleeping, I was brought to the store." [sic]
“The crime committed is of the most serious nature, involving a defenseless minor of seven years of age whom the accused enticed with her promise of a gift. The accused thereby deprived the child of her personal liberty and endangered her life. In addition, the child was forcibly taken away from the midst of her family, causing to them, particularly her parents, much pain, anxiety, anger, and wounded feelings in them. That the minor was subsequently saved from the clutches of the accused and of her cohorts did not diminish a bit the criminal and civil responsibility of the accused, for, even if the deliverance of the victim was due to the overconfidence of the accused, her degree of criminality still evinced her high malevolence and abject disregard of the rights and safety of the child. xxx.”The victim was actually “locked up” inside what she referred to as the “big house.” Although her detention there lasted only one night, the trial court held that the victim was actually deprived of her liberty for five days, including the four-day period when she was already in the custody of Bautista. It must be stressed that appellant was charged and convicted under Article 267, paragraph 4 of the Revised Penal Code. Under this provision, it is not the duration of deprivation of liberty which is important, but the fact that the victim, a minor, was locked up. Furthermore, it bears emphasis that appellant did not merely take Charmaine to the “big house” against her will; she in fact detained Charmaine and deprived her of her liberty. The Spanish version[24] of Article 267 of the Revised Penal Code uses the terms “lockup” (encerrar) rather than “kidnap” (secuestrar or raptar). “Lockup” is included in the broader term “detention,” which refers not only to the placing of a person in an enclosure which he cannot leave, but also to any other deprivation of liberty.[25] To repeat, the prosecution clearly established “lockup” in this case.