652 Phil. 512
Brief Background
On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven, were brutally slain at their home in Parañaque City. Following an intense investigation, the police arrested a group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery especially to the public whose interests were aroused by the gripping details of what everybody referred to as the Vizconde massacre.
Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with homicide against Webb,
et al.
[1]The Regional Trial Court of Parañaque City, Branch 274, presided over by Judge Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura and Joey Filart remained at large.
[2] The prosecution presented Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former laundrywoman of the Webb's household, police officer Biong's former girlfriend, and Lauro G. Vizconde, Estrellita's husband.
For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere when it took place. Webb's alibi appeared the strongest since he claimed that he was then across the ocean in the United States of America. He presented the testimonies of witnesses as well as documentary and object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation for truth and the incredible nature of her testimony.
But impressed by Alfaro's detailed narration of the crime and the events surrounding it, the trial court found a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony, undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies between Alfaro's April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings.
In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and Gatchalian set up for their defense. They paled, according to the court, compared to Alfaro's testimony that other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial court also awarded damages to Lauro Vizconde.
[3]On appeal, the Court of Appeals affirmed the trial court's decision, modifying the penalty imposed on Biong to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde.
[4] The appellate court did not agree that the accused were tried by publicity or that the trial judge was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother and sister.
On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted three against two to deny the motion,
[5] hence, the present appeal.
On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmela's cadaver, which specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant to section 4 of the Rule on DNA Evidence
[6] to give the accused and the prosecution access to scientific evidence that they might want to avail themselves of, leading to a correct decision in the case.
Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case.
This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the government's failure to preserve such vital evidence has resulted in the denial of his right to due process.
Issues Presented
Accused Webb's motion to acquit presents a threshold issue: whether or not the Court should acquit him outright, given the government's failure to produce the semen specimen that the NBI found on Carmela's cadaver, thus depriving him of evidence that would prove his innocence.
In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death her mother and sister. But, ultimately, the controlling issues are:
1. Whether or not Alfaro's testimony as eyewitness, describing the crime and identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to belief; and
2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaro's testimony that he led the others in committing the crime.
The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission.
The Right to Acquittal
Due to Loss of DNA Evidence
Webb claims, citing
Brady v. Maryland,
[7] that he is entitled to outright acquittal on the ground of violation of his right to due process given the State's failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela.
The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmela's rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins.
[8] If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in
Brady v. Maryland[9] that he cites has long be overtaken by the decision in
Arizona v. Youngblood,
[10] where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test.
For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webb's application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused.
[11] They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accused's lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time.
Now, to the merit of the case.
Alfaro's Story
Based on the prosecution's version, culled from the decisions of the trial court and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu from Artemio "Dong" Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled frequently seeing them at a shabu house in Parañaque in January 1991, except Ventura whom she had known earlier in December 1990.
As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl, whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to Carmela's house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Parañaque City. Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who were on a Nissan Patrol car.
On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmela's house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webb's message that he was just around. Carmela replied, however, that she could not go out yet since she had just arrived home. She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive back to the Ayala Alabang Commercial Center.
The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her car's headlights twice when she approached the pedestrian gate so Carmela would know that she had arrived.
Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmela's boyfriend. Alfaro looked for her group, found them, and relayed Carmela's instructions to Webb. They then all went back to the Ayala Alabang Commercial Center. At the parking lot, Alfaro told the group about her talk with Carmela. When she told Webb of Carmela's male companion, Webb's mood changed for the rest of the evening ("bad trip").
Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb decided that it was time for them to leave. He said, "Pipilahan natin siya [Carmela] at ako ang mauuna." Lejano said, "Ako ang susunod" and the others responded "Okay, okay." They all left the parking lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at Carmela's house shortly before midnight.
Alfaro parked her car between Vizconde's house and the next. While waiting for the others to alight from their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the Vizconde's residence to cause a brownout ("Pasabugin kaya natin ang transformer na ito"). But Alfaro shrugged off the idea, telling Fernandez, "Malakas lang ang tama mo." When Webb, Lejano, and Ventura were already before the house, Webb told the others again that they would line up for Carmela but he would be the first. The others replied, "O sige, dito lang kami, magbabantay lang kami."
Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes' Nissan Sentra and loosened the electric bulb over it ("para daw walang ilaw"). The small group went through the open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining area.
As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes, she was surprised to hear a woman's voice ask, "Sino yan?" Alfaro immediately walked out of the garden to her car. She found her other companions milling around it. Estrada who sat in the car asked her, "Okay ba?"
After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route. The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a lady's bag that lay on the dining table. When she asked him what he was looking for, he said: "Ikaw na nga dito, maghanap ka ng susi." She asked him what key he wanted and he replied: "Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse." When she found a bunch of keys in the bag, she tried them on the main door but none fitted the lock. She also did not find the car key.
Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining area, she heard a static noise (like a television that remained on after the station had signed off). Out of curiosity, she approached the master's bedroom from where the noise came, opened the door a little, and peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare buttocks exposed.
Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area. He told her, "Prepare an escape. Aalis na tayo." Shocked with what she saw, Alfaro rushed out of the house to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame.
As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house. But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car into the cogonal area.
The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at BF Executive Village. They entered the compound and gathered at the lawn where the "blaming session" took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what happened. The first to be killed was Carmela's mother, then Jennifer, and finally, Carmella. Ventura blamed Webb, telling him, "Bakit naman pati yung bata?" Webb replied that the girl woke up and on seeing him molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the telephone in the house. Meanwhile, Webb called up someone on his cellular phone.
At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the Vizconde house and said to him, "Pera lang ang katapat nyan." Biong answered, "Okay lang." Webb spoke to his companions and told them, "We don't know each other. We haven't seen each other...baka maulit yan." Alfaro and Estrada left and they drove to her father's house.[12]
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the time she revealed her story, working for the NBI as an "asset," a stool pigeon, one who earned her living by fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to get rewards that would pay for her subsistence and vices.
According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or December 1994 as an "asset." She supplied her handlers with information against drug pushers and other criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir. Alfaro's tip led to the arrest of the leader of the "Martilyo gang" that killed a police officer. Because of her talent, the task force gave her "very special treatment" and she became its "darling," allowed the privilege of spending nights in one of the rooms at the NBI offices.
When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story. When this did not happen and Sacaguing continued to press her, she told him that she might as well assume the role of her informant. Sacaguing testified thus:
ATTY. ONGKIKO: |
Q. | Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will you tell the Honorable Court?
|
| x x x x
|
A. | She told me. Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. That's what she told me, Your Honor.
|
ATTY. ONGKIKO: |
Q. | And what did you say? |
| x x x x |
A. | I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case.
|
| x x x x
|
Q. | Atty. Sacaguing, were you able to interview this alleged witness?
|
WITNESS SACAGUING: |
A. | No, sir.
|
ATTY. ONGKIKO: |
Q. | Why not?
|
WITNESS SACAGUING: |
A. | Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not and the man does not like to testify.
|
ATTY. ONGKIKO: |
Q. | All right, and what happened after that?
|
WITNESS SACAGUING: |
A. | She told me, "easy lang kayo, Sir," if I may quote, "easy lang Sir, huwag kayong..."
|
COURT: |
| How was that?
|
WITNESS SACAGUING: |
A. | "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang `yan."
|
| x x x x
|
ATTY. ONGKIKO: |
Q. | All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan?"
|
WITNESS SACAGUING: |
A. | I said, "hindi puwede yan, kasi hindi ka naman eye witness."
|
ATTY. ONGKIKO: |
Q. | And what was the reply of Ms. Alfaro?
|
WITNESS SACAGUING: |
A. | Hindi siya nakakibo, until she went away.
|
| (TSN, May 28, 1996, pp. 49-50, 58, 77-79) |
Quite significantly, Alfaro never refuted Sacaguing's above testimony.
2. The suspicious details
But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical evidence at the scene of the crime? No doubt, yes.
Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking about what the police found at the crime scene and there were lots of speculations about them.
Secondly, the police had arrested some "akyat-bahay" group in Parañaque and charged them with the crime. The police prepared the confessions of the men they apprehended and filled these up with details that the evidence of the crime scene provided. Alfaro's NBI handlers who were doing their own investigation knew of these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too difficult for her to hear of these evidentiary details and gain access to the documents.
Not surprisingly, the confessions of some members of the Barroso "akyat bahay" gang, condemned by the Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make a confession ring true by matching some of its details with the physical evidence at the crime scene. Consider the following:
a. The Barroso gang members said that they got into Carmela's house by breaking the glass panel of the front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of her story was that Webb was Carmela's boyfriend. Webb had no reason to smash her front door to get to see her.
Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the Vizconde residence. His action really made no sense. From Alfaro's narration, Webb appeared rational in his decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the neighbors to come.
b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso "akyat-bahay" gang members said that they tried to rob the house. To explain this physical evidence, Alfaro claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a handbag on the dining table. He said he was looking for the front-door key and the car key.
Again, this portion of Alfaro's story appears tortured to accommodate the physical evidence of the ransacked house. She never mentioned Ventura having taken some valuables with him when they left Carmela's house. And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they had already gotten into the house. It is a story made to fit in with the crime scene although robbery was supposedly not the reason Webb and his companions entered that house.
c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked car's hood to reach up and darken that light. This made sense since they were going to rob the place and they needed time to work in the dark trying to open the front door. Some passersby might look in and see what they were doing.
Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that Ventura climbed the car's hood, using a chair, to turn the light off. But, unlike the Barroso "akyat-bahay" gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk standing on the car's hood and be seen in such an awkward position instead of going straight into the house.
And, thirdly, Alfaro was the NBI's star witness, their badge of excellent investigative work. After claiming that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and, obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute witness. She was their "darling" of an asset. And this is not pure speculation. As pointed out above, Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court and the Court of Appeals failed to see this is mystifying.
At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the circumstances? Not likely. She named Miguel "Ging" Rodriguez as one of the culprits in the Vizconde killings. But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation Center, initially suspected to be Alfaro's Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking Michael, exclaiming: "How can I forget your face. We just saw each other in a disco one month ago and you told me then that you will kill me." As it turned out, he was not Miguel Rodriguez, the accused in this case.[13]
Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people for what they did not do.
3. The quality of the testimony
There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies. An understanding of the nature of things and the common behavior of people will help expose a lie. And it has an abundant presence in this case.
One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to be Webb's co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmela's house, only Webb, Lejano, Ventura, and Alfaro entered the house.
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaro's car, which was parked on the street between Carmela's house and the next. Some of these men sat on top of the car's lid while others milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the people who were having a drinking party in a nearby house. Obviously, the behavior of Webb's companions out on the street did not figure in a planned gang-rape of Carmela.
Two. Ventura, Alfaro's dope supplier, introduced her for the first time in her life to Webb and his friends in a parking lot by a mall. So why would she agree to act as Webb's messenger, using her gas, to bring his message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night with Webb and his friends?
They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an "asset" then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed along where the group took her, how could she remember so much details that only a drug-free mind can?
Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she supposedly dropped off a man whom she thought was Carmela's boyfriend. Alfaro's trailing Carmela to spy on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness, Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela.
Four. According to Alfaro, when they returned to Carmela's house the third time around midnight, she led Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird. Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with him to go to Carmela's house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something she did not see.
Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman exclaimed, "Sino yan?" On hearing this, Alfaro immediately walked out of the garden and went to her car. Apparently, she did this because she knew they came on a sly. Someone other than Carmela became conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting involved in what was not her business.
But if that were the case, how could she testify based on personal knowledge of what went on in the house? Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next claimed. She went back into the house to watch as Webb raped Carmela on the floor of the master's bedroom. He had apparently stabbed to death Carmela's mom and her young sister whose bloodied bodies were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly got out of the house after Webb supposedly gave her a meaningful look.
Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered her car and turned on the engine but she testified that she did not know where to go. This woman who a few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing indicates a witness who was confused with her own lies.
4. The supposed corroborations
Intending to provide corroboration to Alfaro's testimony, the prosecution presented six additional witnesses:
Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims, testified on the stab wounds they sustained[14] and the presence of semen in Carmela's genitalia,[15] indicating that she had been raped.
Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at the Vizconde residence. He went there and saw the dead bodies in the master's bedroom, the bag on the dining table, as well as the loud noise emanating from a television set.[16]
White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall the time when he saw the group in those two instances. And he did not notice anything suspicious about their coming and going.
But White's testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out. Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of Carmela's house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White who supposedly manned that guardhouse did not notice her.
Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early morning of June 30 when he supposedly "cleaned up" Vizconde residence on Webb's orders. What is more, White did not notice Carmela arrive with her mom before Alfaro's first visit that night. Carmela supposedly left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not notice Carmela reenter the subdivision. White actually discredited Alfaro's testimony about the movements of the persons involved.
Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle convoy,[17] White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did not, therefore, provide corroboration to Alfaro's testimony.
Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan replied, however, that Pitong Daan had a local sticker.
Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard Operating Procedure required.[18]
But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to challenge a Congressman's son with such vehemence, Cabanacan did not log the incident on the guardhouse book. Nor did he, contrary to prescribed procedure, record the visitor's entry into the subdivision. It did not make sense that Cabanacan was strict in the matter of seeing Webb's ID but not in recording the visit.
Mila Gaviola used to work as laundry woman for the Webbs at their house at BF Homes Executive Village. She testified that she saw Webb at his parents' house on the morning of June 30, 1991 when she got the dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door near the maid's quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.[19]
On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days she was on service at the Webb household as to enable her to distinctly remember, four years later, what one of the Webb boys did and at what time. She could not remember any of the details that happened in the household on the other days. She proved to have a selective photographic memory and this only damaged her testimony.
Gaviola tried to corroborate Alfaro''s testimony by claiming that on June 30, 1991 she noticed bloodstains on Webb's t-shirt.[20] She did not call the attention of anybody in the household about it when it would have been a point of concern that Webb may have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muñoz, the Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2nd floor bedrooms, this being the work of the housemaid charged with cleaning the rooms.
What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect, as she claimed, the laundry from the rooms of her employers and their grown up children at four in the morning while they were asleep.
And it did not make sense, if Alfaro's testimony were to be believed that Webb, who was so careful and clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed habit.
Lolita De Birrer was accused Biong's girlfriend around the time the Vizconde massacre took place. Birrer testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet.[21]
The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7 a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene shortly after midnight, what was the point of his returning there on the following morning to dispose of some of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it earlier?
At most, Birrer's testimony only established Biong's theft of certain items from the Vizconde residence and gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the effects of the crime. Birrer's testimony failed to connect Biong's acts to Webb and the other accused.
Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters. Carmella spoke to him of a rejected suitor she called "Bagyo," because he was a Parañaque politician's son. Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was. Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight. She even left the kitchen door open so he could enter the house.
5. The missing corroboration
There is something truly remarkable about this case: the prosecution's core theory that Carmela and Webb had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb brought his friends to her house to gang-rape her is totally uncorroborated!
For instance, normally, if Webb, a Congressman's son, courted the young Carmela, that would be news among her circle of friends if not around town. But, here, none of her friends or even those who knew either of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that Alfaro tried to project with her testimony.
But, except for Alfaro, the NBI asset, no one among Carmela's friends or her friends' friends would testify ever hearing of such relationship or ever seeing them together in some popular hangouts in Parañaque or Makati. Alfaro's claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into Webb and Carmela's life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor concomitant support in the verifiable facts of their personal histories. It is quite unreal.
What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X, whom Alfaro thought the way it looked was also Carmela's lover. This was the all-important reason Webb supposedly had for wanting to harm her. Again, none of Carmela's relatives, friends, or people who knew her ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals.
Webb's U.S. Alibi
Among the accused, Webb presented the strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the United States (U.S.) to learn the value of independence, hard work, and money.[22] Gloria Webb, his aunt, accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito Orendain Escobar, of his travel plans. He even invited them to his despedida party on March 8, 1991 at Faces Disco along Makati Ave.[23] On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party. Among those present were his friends Paulo Santos and Jay Ortega.[24]
b. The two immigration checks
The following day, March 9, 1991, Webb left for San Francisco, California, with his Aunt Gloria on board United Airlines Flight 808.[25] Before boarding his plane, Webb passed through the Philippine Immigration booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol checked Webb's visa, stamped, and initialed his passport, and let him pass through.[26] He was listed on the United Airlines Flight's Passenger Manifest.[27]
On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS Certification issued by the U.S. Immigration and Naturalization Service,[28] the computer-generated print-out of the US-INS indicating Webb's entry on March 9, 1991,[29] and the US-INS Certification dated August 31, 1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995 Certification.[30]
c. Details of U.S. sojourn
In San Francisco, Webb and his aunt Gloria were met by the latter's daughter, Maria Teresa Keame, who brought them to Gloria's house in Daly City, California. During his stay with his aunt, Webb met Christopher Paul Legaspi Esguerra, Gloria's grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo watched the concert of Deelite Band in San Francisco.[31] In the same month, Dorothy Wheelock and her family invited Webb to Lake Tahoe to return the Webbs' hospitality when she was in the Philippines.[32]
In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim Hills, California.[33] During his stay there, he occupied himself with playing basketball once or twice a week with Steven Keeler[34] and working at his cousin-in-law's pest control company.[35] Webb presented the company's logbook showing the tasks he performed,[36] his paycheck,[37] his ID, and other employment papers. On June 14, 1991 he applied for a driver's license[38] and wrote three letters to his friend Jennifer Cabrera.[39]
On June 28, 1991, Webb's parents visited him at Anaheim and stayed with the Brottmans. On the same day, his father introduced Honesto Aragon to his son when he came to visit.[40] On the following day, June 29, Webb, in the company of his father and Aragon went to Riverside, California, to look for a car. They bought an MR2 Toyota car.[41] Later that day, a visitor at the Brottman's, Louis Whittacker, saw Webb looking at the plates of his new car.[42] To prove the purchase, Webb presented the Public Records of California Department of Motor Vehicle[43] and a car plate "LEW WEBB."[44] In using the car in the U.S., Webb even received traffic citations.[45]
On June 30, 1991 Webb, again accompanied by his father and Aragon,[46] bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a receipt dated June 30, 1991.[48] On July 4, 1991, Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic.[49]
Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991 he left for Longwood, Florida, to stay with the spouses Jack and Sonja Rodriguez.[50] There, he met Armando Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing billiards.[51] In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at the Rodriguez's house.[52] He left the Rodriguez's home in August 1992, returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on October 26, 1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also went through both the U.S. and Philippine immigrations on his return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his entry.[53] Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the Passenger Manifest of Philippine Airlines Flight No. 103,[54] certified by Agnes Tabuena[55] confirmed his return trip.
When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by Carmelita Alipio, the immigration officer who processed Webb's reentry.[56] Upon his return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's Phase III basketball court.
e. Alibi versus positive identification
The trial court and the Court of Appeals are one in rejecting as weak Webb's alibi. Their reason is uniform: Webb's alibi cannot stand against Alfaro's positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts, Webb's denial and alibi were fabricated.
But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been made cynical by the rule drilled into his head that a defense of alibi is a hangman's noose in the face of a witness positively swearing, "I saw him do it."? Most judges believe that such assertion automatically dooms an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet?
There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused's claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye.
Rather, to be acceptable, the positive identification must meet at least two criteria:
First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.
And second, the witness' story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims.
Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.
She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecution's worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI.
And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly--just so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the car's hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front door--just so to explain the darkened light and foot prints on the car hood.
Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaro's story that she agreed to serve as Webb's messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity.
To provide basis for Webb's outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable.
Ultimately, Alfaro's quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
f. A documented alibi
To establish alibi, the accused must prove by positive, clear, and satisfactory evidence[57] that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime.[58]
The courts below held that, despite his evidence, Webb was actually in Parañaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm.
If one is cynical about the Philippine system, he could probably claim that Webb, with his father's connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines' passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration's record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.
The Court of Appeals rejected the evidence of Webb's passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent,[59] the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court.
The U.S. Immigration certification and the computer print-out of Webb's arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webb's passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true.[60]
The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webb's passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record.[61]
The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:
While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.
The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S..[62]
The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.
If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webb's passport and the certifications of the Philippine and U.S.' immigration services regarding his travel to the U.S. and back. The prosecution's rebuttal evidence is the fear of the unknown that it planted in the lower court's minds.
7. Effect of Webb's alibi to others
Webb's documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaro's testimony will not hold together. Webb's participation is the anchor of Alfaro's story. Without it, the evidence against the others must necessarily fall.
CONCLUSION
In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one's inner being, like a piece of meat lodged immovable between teeth.
Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce?
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause.
Let a copy of this Decision be furnished the Director, Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to this Court within five days from receipt of this Decision.
SO ORDERED.
Peralta, Bersamin, and Perez, JJ., concur.
Corona, C.J., join the dissent of J. Villarama.
Carpio, J., no part, testified in this cases.
Carpio Morales, J., please see concurring opinion.
Velasco, Jr., J., on official business.
Nachura, J., no part.filed pleading as Sol Gen.
Leonardo-De Castro, J., join the dissent of J. Villarama.
Brion, J., certify that J. Brion cast a dissenting vote for J. Villarama, pls. see supplemental opinion.
Del Castillo, J., no part.
Villarama, Jr., J., see dissenting opinion.
Mendoza, J., vote for the vocation of verdict of conviction thus being a lingering doubt.
Sereno, J., see separate concurring opinion.
[1] Records, Vol. 1, pp. 1-3.
[2] Rollo (G.R. 176389), pp. 393-399 and rollo (G.R. 176864), pp. 80-104.
[3] Records, Vol. 25, pp. 170-71.
[4] CA rollo, Vol. IV, pp. 3478-3479.
[5] Resolution dated January 26, 2007, rollo (G.R. 176839), pp. 197-214.
[6] A.M. 06-11-5-SC effective October 15, 2007.
[7] 373 U.S. 83 (1963).
[8] People v. Yatar, G.R. No. 150224, May 19, 2004, 425 SCRA 504, 514.
[9] Supra note 7.
[10] 488 U.S. 41 (1988).
[11] Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652; Webb v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243.
[12] The ponencia, pp. 4-9.
[13] TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits "274" and "275".
[14] Exhibits "G" to "G-2", "Q" to "R", "V", "W" and "X", Records, Vol. 8, pp. 308-310, 323-324, 328-330.
[15] Exhibits "H" to "K", Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp. xx.
[16] TSN, March 25, 1996, pp. 8-14, 17-34.
[17] TSN October 10, 1995, pp. 97-98 (Records, Vol. 4, pp. 271-272).
[18] TSN, March 14, 1996, pp. 79-89, 103-104.
[19] TSN, December 5, 1995, pp. 21-65.
[20] Id.
[21] TSN, April 16, 1996, pp. 18-38, 79.
[22] TSN, August 14, 1997 and September 1, 1997.
[23] TSN, July 9, 1997, pp. 22-26.
[24] TSN, July 8, 1997, pp. 15-19; and TSN, June 9, 1997, pp. 22-26.
[25] Exhibit "227".
[26] TSN, May 28, 1997, pp. 112-118, 121-122.
[27] Exhibit "223".
[28] Exhibits "207" to "219".
[29] Exhibit "207-B".
[30] Exhibit "212-D".
[31] TSN, June 3, 1997, pp. 14-33; photograph before the concert Exhibit "295," Records (Vol.2), p. 208.
[32] TSN, April 23, 1997, pp. 128-129, 134-148.
[33] TSN, April 30, 1997, pp. 69-71.
[34] TSN, June 2, 1997, pp. 51-64, 75-78.
[35] TSN, June 16, 1997, pp. 12, 16-38, 43-59 and 69-93.
[36] Exhibits "305".
[37] Exhibits "306" and "307".
[38] Exhibits "344" and "346".
[39] Exhibits "244", "245" and "246".
[40] TSN, July 16, 1997, pp. 35, 41-42, 48-49, 58, 61-62.
[41] TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84.
[42] TSN, June 26, 1997, pp. 13-28.
[43] Exhibit "338".
[44] Exhibit "348".
[45] Exhibits "341" and "342".
[46] TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84.
[47] Exhibit "349".
[48] Exhibit "337-B".
[49] TSN, May 9, 1996, pp. 26-32, 37, 44-57.
[50] Id.
[51] TSN, July 7, 1997, pp. 19-35.
[52] TSN, July 2, 1997, pp. 33-37.
[53] Exhibit "212-D".
[54] Exhibit "261".
[55] Exhibit "260".
[56] TSN, June 23, 1997.
[57] People v. Hillado, 367 Phil. 29 (1999).
[58] People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46.
[59] Rollo (G.R. 176839), pp. 216-217.
[60] Section 44, Rule 130, Rules of Court.
[61] Antilon v. Barcelona, 37 Phil. 148 (1917).
[62] Rollo (G.R. 176839), pp. 218-219.
CONCURRING OPINION
CARPIO MORALES, J.:
While
it should be the common desire of bench and bar that crime is not left
unpunished, it is no less important, if not more so, that the innocent
be shielded from hasty prosecution and rash conviction. We have nothing
but praise for sincerity and zeal in the enforcement of the law.
Nevertheless, the undeserved penalties inflicted upon the blameless, and the indelible stain upon their name, which is never quite washed away by time, should caution all concerned to a more careful and conscientious scrutiny of all the facts before the finger is pointed and the stone is cast.[1] (emphasis and underscoring supplied)
And
so, as in all criminal cases, the very voluminous records of the
present cases call for a "more careful and conscientious scrutiny" in
order to determine what the facts are before the accused's conviction is affirmed.
On
June 30, 1991, Estrellita Vizconde and her daughters, then 19-year old
Carmela and then seven-year old Jennifer, were found dead in their home
at No. 80 Vinzons Street, BF Homes Subdivision, Parañaque. They all
bore multiple stab wounds on different parts of their bodies. Some of
their personal belongings appeared to be missing.
An intense and sustained investigation conducted by the police resulted in the arrest of a group of suspects, the Akyat Bahay gang members, some of whom gave detailed confessions to having committed the crimes, hence, their indictment in court.[2]
The Makati Regional Trial Court (RTC), Branch 63 eventually found those
suspects to have been victims of police frame-up, however, and were
thus ordered discharged.
Subsequently, in 1995, the National
Bureau of Investigation (NBI) which conducted a parallel investigation
announced that it had solved the crime by presenting its "star witness"
in the person of Jessica Alfaro y Mincey (Alfaro), one of its
"informers" or "assets," who claimed to have been an eyewitness to the
crime. She named the accused Hubert Jeffrey P. Webb, Antonio "Tony Boy"
Lejano, Artemio "Dong" Ventura, Michael A. Gatchalian, Hospicio "Pyke"
Fernandez, Peter Estrada, Miguel "Ging" Rodriguez, and Joey Filart as
the culprits. She also tagged Parañaque police officer Gerardo Biong as
an accessory after the fact. On the basis of Alfaro's account, an
Information was filed on August 10, 1995 before the Parañaque RTC
against Webb, et al.[3] for rape with homicide, reading as follows:
That
on or about the evening of June 29 up to the early morning of June 30,
1991, in the municipality of Parañaque, province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, accused Hubert
Jeffrey P. Webb conspiring and confederating with accused Antonio "Tony
Boy" Lejano, Artemio "Dong" Ventura, Michael Gatchalian y Adviento,
Hiospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez and
Joey Filart, mutually helping one another, while armed with bladed
instruments, with the use of force and intimidation, with lewd design,
with abuse of superior strength, nighttime and with the use of motor
vehicle, willfully, unlawfully and feloniously have carnal knowledge of
the person of Carmela Vizconde against her will and consent.
That
by reason or on the occasion of the aforesaid rape or immediately
thereafter, the above-named accused with intent to kill, conspiring and
confederating together, mutually helping one another, did then and there
and with evidence premeditation, abuse of superior strength, nighttime,
with the use of motor vehicle, assault and stab with bladed instruments
Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby
inflicting upon them numerous stab wounds in different parts of their
bodies which caused their instantaneous death.
The accused
GERARDO BIONG and JOHN DOES having knowledge after the commission of the
above-mentioned crime, and without having participated therein as
principals or accomplices, took part subsequent to its commission by
assisting, with abuse of authority as police officer, the above-named
principal accused, to conceal or destroy the effects or instruments
thereof by failing to preserve the physical evidence and allowing their
destruction in order to prevent the discovery of the crime.
The
case was, after the Presiding Judge of Branch 258 of the Parañaque RTC
inhibited, re-raffled to Branch 274 of the Parañaque RTC. The trial
court, then presided over by Judge Amelita G. Tolentino, tried only
seven of the accused, Artemio Ventura and Joey Filart having remained at
large.[4]
At the trial, the prosecution presented Alfaro as its main witness. The other witnesses were Dr. Prospero Cabanayan, the medico-legal officer who autopsied the bodies of the victims; Lolita Carrera Birrer, an ex-lover of Gerardo Biong; Mila Gaviola, former laundrywoman of the Webbs; Normal White and Justo Cabanacan, security personnel of the Pitong Daan Subdivision, BF Homes, Parañaque, and Lauro G. Vizconde, Estrellita's husband.
The
defense presented testimonial evidence which tended to cast a bad light
on Alfaro's reputation for truth, as well as on the implausibility of
her account.
At all events, some of the accused invoked alibi,
claiming to have been somewhere else at the time of the commission of
the crime. In Webb's case, he presented documentary and testimonial
proof that he was in the United States of America from March 1991 to
October 1992.
The trial court, impressed by Alfaro's detailed
narration of the events surrounding the commission of the crime, deemed
her a credible witness after finding her testimony to have been
corroborated by those of the other prosecution witnesses, as well as by
the physical evidence. To the trial court, her testimony was
categorical, straightforward, spontaneous, and frank, and withstood
grueling cross-examinations by the different defense counsel.
On the other hand, it belittled the denial and alibi of accused Webb, Lejano, Rodriguez, and Gatchalian in light of their positive identification by Alfaro.
And
so after a protracted trial, the trial court rendered on January 4,
2000 a 172-page decision finding all the accused guilty beyond
reasonable doubt of rape with homicide.
Thus the trial court disposed:
WHEREFORE,
this Court hereby finds all the principal accused GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES
EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA. This
Court likewise finds the accused Gerardo Biong GUILTY BEYOND REASONABLE
DOUBT AS AN ACCESSORY AFTER THE FACT, AND HEREBY SENTENCES HIM TO SUFFER
AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY
TO TWELVE (12) YEARS. In addition, the Court hereby orders all the
accused to jointly and severally pay the victim's surviving heir, Mr.
Lauro Vizconde, the following sums by way of civil indemnity:
1) The amount of P150,000.00 for wrongful death of the victims;
2) The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde;
3) The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde;
4) The amount of P97,404.55 as attorney's fees.[5]
On
appeal, the Court of Appeals rendered its challenged Decision of
December 15, 2005 affirming with modification the trial court's decision
by reducing the penalty imposed on Biong to six years minimum and
twelve years maximum and increasing the award of civil indemnity to
Lauro Vizconde to P200,000.00.[6]
The appellate court found that indeed there was sufficient evidence
that Rodriguez, Gatchalian, Fernandez, and Estrada had conspired to rape
and kill Carmela as well as to kill Estrellita and Jennifer.
On
motion for reconsideration by the accused, the appellate court's Special
Division of five members, voting three against two, sustained its
affirmance of the trial court's decision.[7] Hence, this appeal.
On
April 20, 2010, as a result of its initial deliberation in this case,
the Court issued a Resolution granting the request of Webb to submit for
Deoxyribonucleic Acid (DNA) analysis the semen specimen taken
from Carmela's cadaver, which specimen was believed to be still under
the safekeeping of the NBI. The Court granted the request pursuant to
Section 4 of the Rule on DNA Evidence[8] to give the accused and the prosecution access to scientific evidence which could affect the result of the case.
On
April 27, 2010, however, the NBI informed the Court that it no longer
had custody of the specimen which it claimed had been turned over to the
trial court. Parenthetically, the trial court records do not
show that the specimen was among the object evidence that was offered in
evidence in the case by any of the parties. It was in light of this
development that accused Webb filed an urgent motion to acquit on the
ground that the government's failure to preserve such vital evidence has
resulted in the denial of his right to due process.
In the draft
decision prepared by Justice Martin S. Villarama as a basis of this
Court's deliberation, the decision of the appellate court affirming with
modification the trial court's decision was affirmed.
In
discussing why the Decision of the Court of Appeals is being affirmed
with modification, the draft decision which was the basis of this
Court's deliberations, started by stating a "fundamental rule," viz:
It
is a fundamental rule that findings of the trial courts which are
factual in nature and which involve credibility are accorded respect
when no glaring errors, gross misapprehensions of facts and speculative,
arbitrary and unsupported conclusions can be gathered from such
findings.[9] When the trial
court's findings have been affirmed by the appellate court, said
findings are generally conclusive and binding upon this Court.[10]
The
draft decision, which was later adopted by the dissenters, found "no
glaring errors, gross misapprehensions of facts and speculative,
arbitrary and unsupported conclusions" made by the lower courts. It
readily credited the testimony of prosecution "star" witness Jessica
Alfaro (Alfaro) who, it observed, "underwent exhaustive and intense
cross-examination by eight . . . defense lawyers . . . [and] revealed
such details and observations which only a person who was actually with
the perpetrators could have known."
The trial court banked
primarily on Alfaro who claimed to be an eyewitness to the massacre and
considered the testimonies of the other prosecution witnesses as merely
corroborative of hers.
Jurisprudence has consistently summoned, however, that for testimonial evidence to be worthy of belief, it must firstly proceed from the mouth of a credible witness.
A person may be credible where he is without previous conviction of a
crime; who is not a police character and has no police record; who has
not perjured in the past; whose affidavit or testimony is not incredible; who has a good standing in the community; and who is reputed to be trustworthy and reliable.[11] Secondly, the person's testimony must in itself be credible.
Daggers v. Van Dyck[12] illuminates:
Evidence
to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself - such as the common
experience and observation of mankind can approve as probable under the
circumstances. We have no test of the truth of human testimony, except
its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance. (underscoring supplied)
Alfaro
was found both by the trial and appellate courts to be a credible
witness. She impressed the trial court which found her to have
"testified in a categorical, straightforward, spontaneous and frank
manner, and [to] ha[ve] remained consistent in her testimony."[13]
By Alfaro's own admission, she was a habitual drug addict who inhaled and sniffed shabu "every other day"[14] since December 1990.
It was about this time that she met Artemio "Dong" Ventura who provided
her with a regular supply of shabu at the so-called "house of shabu" in
Parañaque.[15] In March
1991, she stopped getting her supply of shabu from Ventura as she
instead got it from other sources including Orly Bacquir and Cris Santos
and places such as Quezon City, Makati and Tondo.[16]
In
the afternoon of June 29, 1991, the date of the commission of the
crime, before she and accused Peter Estrada, who she claimed was her
boyfriend, went to the Alabang Commercial Center, she had taken illegal
drugs, and in the evening of even date, she not only smoked shabu but
sniffed cocaine as well at the "parking lot."[17] It was only in about October 1994 that she stopped taking illegal drugs.
The paper of authors Burrus and Marks, "Testimonial Reliability of Drug Addicts,"[18] teaches:
. . . [W]here the prolonged
use of drugs has impaired the witness' ability to perceive, recall or
relate, impeaching testimony is uniformly sustained by the courts.
Aside from organic deterioration, however, testimony may be impugned if
the witness was under the influence of drugs at the time of perceiving
the event about which he is testifying or at the time he is on the
stand. This necessarily follows, for even the temporary presence of
drugs affects the functioning of the body's organs, and thus bears
directly on the credibility of the witness' testimony...[19] (underscoring supplied)
Evidence
derived from the testimony of a witness who was under the influence of
drugs during the incident to which he is testifying is indeed very
unreliable.[20] So it has
been held that "habitual users of narcotics become notorious liars and
that their testimony is likely to be affected thereby."[21]
We believe it will be admitted that habitual users of opium, or other like narcotics, become notorious liars.
The habit of lying comes doubtless from the fact that the users of
those narcotics pass the greater part of their lives in an unreal world,
and thus become unable to distinguish between images and facts, between illusions and realities.[22] (underscoring supplied)
Defense
witness Dr. Rey San Pedro, then Deputy Executive Director of the
Dangerous Drugs Board, opined that drug addicts or dependents are
generally liars who would lie for less than noble objectives, such as
for money and/or to satisfy their craving for attention, viz:
Atty. M. Ongkiko: |
Q: | Based on your experience, Doctor, will this dependency of shabu affect the character of a person specifically, for example, the capacity to tell the truth, would that affect?
|
Witness Dr. Rey San Pedro: |
A: | Our general examination of patients showed that they become liars.
|
Atty. M. Ongkiko: |
Q: | They become liars. Yes, what would be the usual motivation for a shabu-dependent person to become liars. Why, why do they lie?
|
Witness Dr. Rey San Pedro: |
A: | My experience, Sir, is because they are aware that what they are doing is wrong and therefore they want to hide it. Not only from the family, but also from their friends.
|
Atty. M. Ongkiko: |
Q: | Yes. They could lie on the persons they go out with?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | They could lie on the persons they meet?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | They could lie on the persons from whom they allegedly get the drugs?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | Is it not correct, Doctor, that the tendency of a drug dependent is to hide the identity of the drug suppliers. Is this correct?
|
Witness Dr. Rey San Pedro: |
A: | This is our experience. I have not encountered a patient who would tell you where they get their supply.
|
Atty. M. Ongkiko: |
Q: | Who would tell you the correct name of the drug supplier?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | And who would tell you the correct address of the drug supplier, correct?
|
Witness Dr. Rey San Pedro: |
A: | Correct.
|
Atty. M. Ongkiko: |
Q: | Their tendency is to give you misleading information, correct?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | Now, would a drug dependent on shabu lie for money?
|
Witness Dr. Rey San Pedro: |
A: | Yes.
|
Atty. M. Ongkiko: |
Q: | Yes. When I say lie for money so that she could get money?
|
Witness Dr. Rey San Pedro: |
A: | She could get money.
|
Atty. M. Ongkiko: |
Q: | He will, from her relatives, from her friends, or even from third persons?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir. They even sell the family belongings.
|
Atty. M. Ongkiko: |
Q: | They even sell their personal effects?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | Would they sell their honor to get money, like a woman becoming a prostitute?
|
Witness Dr. Rey San Pedro: |
A | I have not encountered a case like that.
|
Atty. M. Ongkiko: |
Q: | You have not encountered that much. But tell me, Doctor, would they lie in order to get attention?
|
Witness Dr. Rey San Pedro: |
A: | Yes, they do.
|
Atty. M. Ongkiko: |
Q: | Yes, because they want to be the center of attention to cover up for their drug dependency, correct?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir.
|
Atty. M. Ongkiko: |
Q: | Now, Doctor, if a person were drug dependent on shabu since 1990, 1991, up to and including December, 1994. So, that is a long time, isn't it?
|
Witness Dr. Rey San Pedro: |
A: | '90 to '94?
|
Atty. M. Ongkiko: |
Q: | Yes, drug dependent. What would it take, Doctor, in order that we can cure this patient of his or her dependency on shabu, what would it take?
|
Witness Dr. Rey San Pedro: |
A: | They have to be rehabilitated, Sir, treated and rehabilitated.
|
Atty. M. Ongkiko: |
Q: | Treated and rehabilitated, where?
|
Witness Dr. Rey San Pedro: |
A: | In a hospital.
|
Atty. M. Ongkiko: |
Q: | In a hospital. Does the government provide for such facilities?
|
Witness Dr. Rey San Pedro: |
A: | Yes, Sir. |
| x x x x[23] (underscoring supplied) |
Former
National Bureau of Investigation (NBI) Director Epimaco Velasco had a
view similar to that of Dr. San Pedro's ─ that any information which is
being furnished by a drug addict is "not generally reliable" and his
capacity to lie may be "very great."[24]
In their earlier mentioned paper, Burrus and Marks
write on the "peculiar effects upon veracity" of the principal types of
drugs, like cocaine and amphetamine which were used by Alfaro:
x x x x
b. Cocaine ─
Cocaine is a powerful cortical stimulant which causes a state of
euphoric excitement and varying degrees of pleasurable hallucinations.
Under its influence, a person experiences sensations of great muscular
and mental strength and overestimates his capabilities. He is truly, at
least while under the drug's influence, in an "unreal" or "dream world,"
and the majority exception of admitting impeaching testimony where the
witness was under the influence of the drug at the time of perception or
testifying seems clearly sustainable in medical evidence.
Over
time, cocaine produces on the addict a degree of physical and mental
deterioration not found in connection with the use of opiates. The
cocaine addict is not a normal person; many, in fact, become paranoids
and suffer from feelings of persecution. Visual, auditory and tactual
hallucinations are common, as are digestive tract disorders, and
occasionally convulsions.
It would seem to follow that, so far as
medical evidence is concerned, expert testimony should be admissible to
impeach the cocaine addict. Both in its long-run effect of organic
deterioration and in its short run influence, the drug severs the user's
contact with reality, and renders him, to that extent, unreliable.
Even the majority admits impeaching testimony in cases of organic
deterioration. There are few instances of deterioration more pronounced
than that found in the habitual user of cocaine.
x x x x
e. Amphetamine─ Similar to the barbiturates and bromides, amphetamine operates upon the central nervous system, and its effect on the user's ability to perceive and accurately to relate is dependent on the amount of the drug taken.
Rather than a depressant however, amphetamine is a potent stimulant,
the initial proper dosage promoting wakefulness and alertness, increased
initiative, confidence, euphoria and increased motor activity. Thus,
the non-addict's sparing use of the drug, would not seem to impair
reliability and impeaching testimony to this end should be excluded.
Overdosage
and repeated medication, however, can prove most harmful. Thus, the
addict may suffer vasomotor disturbances, dizziness, agitation,
confusion and delirium. The usual dosage taken by the addict is
sufficient to cause toxic psychosis characterized by hallucinations and
paranoid delusions similar in effect to cocaine. In this state, the
amphetamine addict's testimonial capabilities are definitely impaired.
The
result is that with amphetamine, as well as with barbiturates and
bromides, impeachment should depend upon the amount of the drug taken
and the extent of its use. Absent excessive use to the extent of
organic deterioration, the barbiturate, bromide or amphetamine addict,
when not intoxicated by the direct influence of the drug, is apparently
perfectly reliable and the majority judicial view, under these
circumstances seems sustainable. Also, as with marihuana, its effects
vary with the personality make-up of the user, with the result that
this, too, should be considered in admitting or excluding the impeaching
testimony. This, of course, broadens the inquiry from the
physiological-pharmacological effects of drugs upon reliability to the
psychological framework of the user in its relation to his ability to
tell the truth or proneness to lie.[25] (italics in the original; emphasis and underscoring supplied)
How Alfaro got to be a "star" witness in this case was narrated by then NBI agent Artemio Sacaguing:
Atty. Ongkiko: |
Q | All right, Atty. Sacaguing, how did the NBI treat Ms. Alfaro considering the assistance that he was giving your group?
|
Witness Sacaguing: |
A | We gave her very special treatment. So, we consider her already the darling of the group because she was giving us good projects and she loved it.
|
Atty. Ongkiko: |
Q | What do you mean by she loved it, she loved what?
|
Witness Sacaguing: |
A | She liked being treated that way.
|
Atty. Ongkiko: |
Q | Now tell the Honorable Court, was there ever any time where the group got tired of giving Ms. Alfaro the VIP treatment?
|
| x x x x
|
Atty. Ongkiko: |
| All right, Atty. Sacaguing, how long did you give Ms. Alfaro this VIP treatment?
|
Witness Sacaguing: |
A | Well, she was always there and we treated her very nicely, but later on, about . . . after the lapse of about one or two weeks, the boys, I mean, my associates in my team, began teasing her because she could not give us any project anymore.
|
|
|
Atty. Ongkiko: |
Q | What do you mean by projects, leads?
|
Witness Sacaguing: |
A | Projects, cases we could work on.
|
Atty. Ongkiko: |
Q | I see, and what do you mean by teasing?
|
| x x x x
|
Atty. Ongkiko: |
Q | Mr. Sacaguing, after your group teased her because, according to you, she could not give you anymore projects, what was the reaction of Ms. Alfaro, if any? |
| Please look at the judge, please do not look at me.
|
Witness Sacaguing: |
A | She seemed to have been piqued and she said . . . |
| Atty. Ongkiko: |
Q | She seemed to have been what?
|
Witness Sacaguing: |
A | Piqued, yes, "napikon".
|
Atty. Ongkiko: |
Q | I see, piqued.
|
Witness Sacaguing: |
A | Piqued.
|
Atty. Ongkiko: |
Q | Piqued. Ano yun, napikon?
|
Court: |
|
| p i c q u e d. (underscoring in the original)
|
Atty. Ongkiko: |
Q | And when she was piqued or "napikon", what did she say or what did she do? |
| x x x x
|
Atty. Ongkiko:
|
| x x x x
|
Q | Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case. Will you tell the Honorable Court?
|
Witness Sacaguing: |
A | She told me, she knew somebody who . . .
|
Court: |
|
| Face the Court.
|
Witness Sacaguing: |
A | She told me, Your Honor, that she knew somebody who related to her the circumstances, I mean, the details of the massacre of the Vizconde family. That's what she told us, Your Honor.
|
Atty. Ongkiko: |
Q | And what did you say? |
| Please look at the Court.
|
Witness Sacaguing: |
A | I was quite interested and I tried to persuade her to introduce to me that man and she promised that in due time, she will bring to me the man, and together with her, we will try to convince him to act as a state witness and help us in the solution of the case.
|
Atty. Ongkiko: |
Q | Did she ever bring to you or to your office this man that, according to her, knew about the Vizconde murder case?
|
| x x x x
|
Atty. Ongkiko: |
Q | Atty. Sacaguing, were you able to interview this alleged witness?
|
Witness Sacaguing: |
A | No, sir.
|
Atty. Ongkiko: |
Q | Why not?
|
Witness Sacaguing: |
A | Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She told me later that she could not, and the man does not like to testify.
|
Atty. Ongkiko: |
Q | All right, and what happened after that?
|
Witness Sacaguing: |
A | She told me, "easy lang kayo, Sir", if I may quote, "easy lang, Sir, huwag kayong . . ."
|
Court: |
|
Q | How was that?
|
Witness Sacaguing: |
A | "Easy lang, Sir. Sir, relax lang, Sir, papapelan ko yan, papapelan ko na lang yan."
|
Atty. Ongkiko: |
Q | And what did you understand by her statement as you quoted it?
|
Witness Sacaguing: |
A | I thought it . . . |
Prosecutor Zuño: |
| Objection, Your Honor, that is asking for the opinion of this witness, Your Honor.
|
Court: |
|
| Reform your question.
|
Atty. Ongkiko: |
Q | All right, and what was your reaction when Ms. Alfaro stated that "papapelan ko na lang yan"?
|
Witness Sacaguing: |
A | I said, "hindi pwede yan, kasi, hindi ka naman eye witness."
|
Atty. Ongkiko: |
Q | And what was the reply of Ms. Alfaro?
|
Witness Sacaguing: |
A | Hindi siya nakakibo, until she went away.
|
Atty. Ongkiko: |
Q | She what?
|
Witness Sacaguing: |
A | She went away, she went out of my office.
|
Court: |
|
| You speak clearly, Mr. Witness, I could hardly get you.
|
Witness Sacaguing: |
A | She did not answer anymore, Your Honor. She just went out of the office. |
| x x x x[26] (emphasis and underscoring supplied) |
NBI
agent Sacaguing was the special "handler" of Alfaro, an NBI "asset" who
regularly provided leads on projects or cases being investigated by the
NBI, on which account she received special treatment. From
Sacaguing's above-quoted testimony, Alfaro came forward with her
"knowledge" about the commission of the crimes only after being
cajoled by the NBI agents about her lack of productivity and her failure
to make good her word that she knew and would bring someone who could
"shed light" on the crimes that occurred close to four years earlier.
It is thus hard to fathom how her motives for suddenly developing a
first hand account of the commission of the crimes could be treated as
anything but suspect. Yet, the lower courts, despite the peculiar
circumstances related by Sacaguing, were not put on guard from
swallowing Alfaro's testimony.
Significantly, Alfaro never disputed Sacaguing's above-quoted testimoy.
The
trial court credited as satisfactory and plausible Alfaro's explanation
for her silence from the time she allegedly witnessed the crimes in
June 1991 up to "about October 1994" when the numbing effects of drug
abuse only began to wear off and she had an earnest desire to reform her
life.
WITNESS JESSICA ALFARO ON CLARIFICATORY QUESTIONS BY THE COURT |
Court: |
|
Q | After that incident, did it not occur to your mind to immediately report the same to the police authorities? |
Witness Alfaro: |
A | No, Your Honor, I did not. |
Court: |
|
Q | Why? |
Witness Alfaro: |
A: | Because at first, I was so scared. I just want to my Dad, but I didn't have a chance to tell him. |
Court: |
Q: | No, after the lapse of a reasonable time, after witnessing that incident, did it not also occur to your mind to finally report it to the proper authorities? |
Witness Alfaro: |
A: | I did not first have that in mind, only recently when I was out on drugs. |
Court: |
|
Q: | When? |
Witness Alfaro: |
A: | When I got out on drugs. |
Court: |
|
Q | When was that? |
Witness Alfaro: |
A: | About October of 1994. |
Court: |
|
Q | What prompted you to finally reveal what you have witnessed? |
Witness Alfaro: |
A: | Well, when I started having these nightmares about my daughter instead of that Jennifer that I see in my dreams. It's my daughter whom I see crying, and that triggered me, and then I got out from drugs, and then it came to the point when I saw them accidentally, so, that's the thing which triggered me, Your Honor. |
Court: |
|
Q: | Any other reason? |
Witness Alfaro: |
A: | Those are my main reasons. |
Court: |
|
Q: | Is that your principal reason? |
Witness Alfaro: |
A: | I wanted to change my life already.[27] (underscoring supplied) |
Given
Alfaro's confession of having for years, after the commission of the
crimes, been numbed by the effects of drug abuse, would the dissenters
take as gospel truth her what they termed "vivid" and "infallible"
recollection of the minutiae surrounding the commission of the crime in
June 1991, and point to the accused as the malefactors, particularly
Webb, despite evidence, documentary and testimonial, supporting his
alibi?
The explanation for this feat of wizardry is within
arms-length - Alfaro appears to be a rehearsed witness. Prior to her
decision to surface and claim to tell what she "knew" about the crimes,
the crimes had already been played out in the media, both print and
broadcast, in every gory detail. It was a raging topic that drew
intense discussions in both talk shows and informal gatherings, and all
sorts of speculations about it were rife. In fact, prior to the arrest
of the accused, members of the Philippine National Police (PNP) arrested
some members of an "akyat-bahay" gang who were charged
accordingly. These gang members were later released upon orders of the
Makati Regional Trial Court after it was discovered that their
confessions were fabricated by the PNP to conform to the physical
evidence found at the crime scene.
It is not thus difficult to
believe that Alfaro could have become familiar with the evidentiary
details of the crimes, given that she was practically a resident at the
offices of the NBI which was actively investigating the crimes, not to
mention her being an NBI "star" witness.
Sadly, dissenters choose to gloss over the strikingly uncanny similarities between the confessions of the "akyat-bahay"
gang members and Alfaro's testimony. The nature and extent of the
similarities were amplified by Justice Dacudao in his Dissenting
Opinion, which is quoted at length:
It also bothers me that Ms. Alfaro's narration of the events in the case under review was
in many points uncannily similar to that set forth in the extrajudicial
confessions or sinumpaang salaysay executed by certain members of
the so-called "Akyat Bahay Gang" of the Barroso group (the brothers
Villardo Datuin Barroso, Jr. and Roberto Datuin Barroso and their
several companions Rolando Mendoza y Gomez, Ernesto Cesar, Bienvenido
Baydo, Angelito Santos y Bisen, Boy Kulit, Rey Doe and several other
John Does). These persons were earlier charged with two cases of robbery
with homicide, and one case of rape with homicide that is now the very
subject of the case under review. Indeed, I cannot understand why the
three criminal cases that were instituted before the Makati City RTC,
Brnach 63, (presided over by Judge Julio R. Logarta,) which recited facts and events that are so strikingly akin to those set forth in the information
filed in the case under review, hardly commanded the attention of the
trial court. The records of these criminal cases, which were introduced
in evidence by the accused-appellants during the trial of the case
under review, covered the following:
(1) Criminal Case No.
91-7135 filed by then Assistant Chief State Prosecutor Aurelio C. Trampe
before the sale of Judge Julio R. Logarta of the Makati City RTC,
Branch 63, on November 11, 1991 (for robbery with homicide) against
Villardo Barroso y Datuin, Roberto Barroso y Datuin¸ Rolando Mendoza y
Gomez, Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Rey Doe
and several other John Does still at large.
Crim. Case No. 91-7135
That on or about the 30th
day of June 1991 at BF Homes Parañaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above named accused
conspiring and confederating together and helping one another did then
and there willfully, unlawfully, and feloniously, by the use of force
upon things, to wit, by breaking the glass in the left side of the door
to open it and from where they entered the house, and once inside,
willfully, unlawfully and feloniously and intent to gain and against the
consent of the owners thereof, forcibly open cabinet and drawers inside
the house, take and carry away therefrom, the following pieces of
personal property:
P140,000.00 in cash
Four (4) necklace
Five (5) rings
Two (2) bracelets
Two (2) pairs of earings
belonging
to Mr. and Mrs. Lauro Vizconde of the total value of Two Hundred
Thousand (P200,000.00) Pesos, Philippine currency to the damage and
prejudice of said owners in the said total sum, and that on the occasion
of the said Robbery and for the purpose of enabling them to take,
steal, and carry away the articles above-mentioned herein accused, in
pursuant of their conspiracy, did then and there willfully, unlawfully
and feloniously and with evident premeditation and taking advantage of
their superior number and strength and with intent to kill,
treacherously attack, assault, stab and use personal violence upon
JENNIFER NICOLAS VIZCONDE thereby inflicting upon her multiple stab
wounds in different parts of her body thus causing her instantaneous
death.
Contrary to law.
(2) Criminal case No. 91-7136 (for
the rape with homicide of Carmela Nicolas Vizconde filed by ACSP
Aurelio C. Trampe with the same RTC, Branch 63, on November 11, 1919)
also against the same accused. It alleged:
Crim. Case No. 91-7136
That on or about the 30th
day of June 1991 at BF Homes, Parañaque, Metro Manila, Philippines, and
within jurisdiction of this Honorable Court, the above-named accused,
armed with knives, by means of violence, force and intimidation, did
then and there willfully, unlawfully and feloniously have carnal
knowledge of CARMELA NICOLAS VIZCONDE (without her) consent, and that on
the occasion of the commission of rape, and in pursuance of their
conspiracy, did then and there willfully, unlawfully and feloniously,
with evident premeditation and taking advantage of their superior number
and strength and with intent to kill, treacherously attack, assault,
stab and use personal violence upon said CARMELA NICOLAS VIZCONDE,
thereby inflicting upon her multiple stab wounds in different parts of
her body, thus causing her instantaneous death.
Contrary to law.
(3)
Criminal Case No. 91-7137 (for robbery, with homicide wherein the
victim was ESTRELLITA NICOLAS VISCONDE) likewise filed against the same
accused by ACSP Aurelio C. Trampe. It alleged:
Crim. Case No. 91-7137
That on or about the 30th
day of June 1991 at BF Homes Parañaque, Metro Manila, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused
conspiring and confederating together and helping one another did then
and there, willfully, unlawfully and feloniously, by the use of force
upon things, to wit: by breaking the glass in the left side of the door
to open it and from where they entered the house and once inside,
willfully, unlawfully and feloniously and with intent to gain and
against the consent of the owners thereof, forcibly open cabinets and
drawers inside the house, take and carry away therefrom the following
pieces of personal property:
P140,000.00 in cash
Four (4) necklace
Five (5) rings
Two (2) bracelets
Two (2) pairs of earings
belonging
to Mr. and Mrs. Lauro Vizconde, the total value of which is Two Hundred
Thousand (P200,000.00) pesos, Philippine Currency, to the damage and
prejudice of said owners in the said total sum; and that on the occasion
of the said Robbery and for the purpose of enabling them to take, steal
and carry way the articles above-mentioned, herein accused, in
pursuance of their conspiracy, did then and there willfully, unlawfully
and with evident premeditation and taking advantage of their superior
number and strength and with intent to kill, treacherously attack,
assault, stab and use personal violence upon ESTRELLITA NICOLAS VIZCONDE
thereby inflicting upon her multiple stab wounds causing her
instantaneous death.
Contrary to law.
Consider this: In
the aforementioned cases, one of the accused therein (Angelito Santos y
Bisen) who by his account was bothered by his conscience, surrendered
and executed an affidavit or sinumpaang salaysay narrating his
participation in the gruesome killing of members of the Vizconde family
and the rape-killing of a young Vizconde girl. And based on the
extrajudicial confessions of the accused in these cases (specifically
Angelito Santos y Bisen, Ernesto L. Cesar, the Barroso brothers
Villardo, Jr. and Roberto, and Rolando G. Mendoza) it appears that the
group conspired to rob the house of the Vizcondes in W. Vinzons Street
inside the BF Subdivision; that they used at least two (2) vehicles in
going there (a mint green Toyota Corona, and an owner's tinted jeepney);
that when they entered the subdivision, one of them motioned to the
security guards manning the gate that the other vehicles were with him;
that when they reached the Vizconde residence at W. Vinzons Street, BF
Homes, one of them (Bienvenido "Ben" Baydo) climbed the fence, and once
inside the house opened the gate for the group; that Bienvenido "Ben"
Baydo put-out the light in the garage; that using a stone "na binalot sa
basahan" Ben Baydo broke the glass in the door and opened it; that a
woman who had apparently been roused from sleep (apparently referring to
Mrs. Estrellita Nicolas Vizconde) came near the door and shouted
"magnanakaw"; that Ben Baydo gagged the woman and dragged her inside the
master's bedroom where Ben Baydo, Boy Kulit, Rolando Mendoza and
Roberto Barroso stabbed her several times (one knife used in stabbing
was described as "isang double blade na mga anim na pulgada ang haba
nang talim"); that when a young girl (apparently referring to Jennifer
Nicolas Vizconde) inside started to cry and shout, she too was stabbed
to death by Rolando Mendoza, Ernesto Cesar, Villardo Barroso, Jr., Ben
Baydo and Boy Kulit; that in one of the rooms they found a young woman
(apparently referring to Carmela Nicolas Vizconde) who was raped
successively by Roberto Barroso, Rolando Mendoza, Ben Baydo, and Ernesto
Cesar and later repeatedly stabbed to death; and that they ransacked
the house for valuables and were able to find cash and jewelries which
they later on divided among themselves. Some of the pieces of jewelry
were pawned by some of the accused at the Tambunting Pawnshop and the La
Cebuana Pawnshop at Dart, Paco. Carefully evaluated, it is plain enough that the statements contained in the extrajudicial confessions or sinumpaang salaysay also overlapped or corroborated each other in their material particulars.
Stock
must be taken of the fact that the detailed extrajudicial confessions
or sinumpaang salaysay of the several accused (especially Villardo
Barroso y Datuin, Jr., Roberto Barroso y Datuin, his Rolando Mendoza y
Gomez, Ernesto Cesar y Lizardo, Angelito Santos y Bisen) in the three
criminal cases, were acknowledged and ratified before Judge Roberto L.
Makalintal, Atty. Luis Matro, Atty. Francis Tolentino and Atty. Salvador
B. Aguas, who affirmed that the said extrajudicial confessions or
sinumpaang salaysay were freely and voluntarily given by the affiants,
and that no duress violence, intimidation or coercion of any kind was
employed against the affiants when the latter gave their statements if
they did not want to; and that indeed the affiants were made aware of
their constitutional right to have a lawyer of their choice to assist
them during the custodial investigation and to remain silent if they
wished to. Nevertheless, as seen in the consolidated decision rendered
in the three criminal cases, these extrajudicial confessions or
sinumpaang salaysay were declared inadmissible by the Makati City RTC,
for having been allegedly obtained through duress, threats, or
intimidation. The dismissal of these criminal cases nowithstanding, it
does not detract from the fact: (1) that said criminal case had indeed
been filed in court, (2) that the criminal indictments were erected on
the strength of the extrajudicial confessions or sinumpaang salaysay
executed by the accused therein, (3) that these extrajudicial
confessions or sinumpaang salaysay set forth facts and events that are
eerily similar to those which found their way into the information
was filed in the case under review; (4) that the victims in the three
criminal cases are also the victims in the case under review; and (5)
that since the accused therein had been duly arraigned, as indeed,
criminal proceedings had been commenced thereon before a competent
court, the accused therein were in real danger of being convicted of the
felonies charged.[28] (emphasis and underscoring supplied)
On
the questioned inconsistencies between Alfaro's April 28, 1995 and May
22, 1995 Affidavits, the dissenters brush them aside as not necessarily
affecting her credibility, citing People v. Sanchez[29] which held:
.
. . [W]e advert to that all-too familiar rule that discrepancies
between sworn statements and testimonies made at the witness stand do
not necessarily discredit the witnesses. Sworn statement/affidavits are
generally subordinated in importance to open court declarations because
the former are often executed when an affiant's mental faculties are
not in such a state as to afford him a fair opportunity of narrating in
full the incident which has transpired. Testimonies given during trials
are much more exact and elaborate. Thus, testimonial evidence carries
more weight than sworn statements/affidavits. (underscoring supplied)
It
bears emphasis that the questioned inconsistencies in Alfaro's
Affidavits, and indeed they are too glaring to escape attention, arise
not from an affidavit and testimony at the witness stand but from two
affidavits.
And the dissenters forget that the first
Affidavit, dated April 28, 1995, was given about two months shy of four
years from the occurrence of the crime in late June 1991 and, therefore,
her mental faculties could not have been in "such a state as [not] to
afford [her] a fair opportunity of narrating in full the incident"
subject of her tale. The second Affidavit, on the other hand, was executed 24 days after the first
Affidavit or on May 22, 1995. Do the dissenters find that Alfaro's
mental faculties were more refreshed at a date more remote from the
occurrence of the crime she claims to have witnessed?
Again, as did the lower courts, the dissenters disregard the glaring inconsistencies between Alfaro's two affidavits vis-à-vis
her testimony in open court which undeniably detract from credibility ─
of witness and of testimony. Consider these inconsistencies reflected
in the tabulation below:
| April 28, 1995 Affidavit | May 22, 1995 Affidavit | Testimony in Court |
Alfaro's meeting with Carmela | She has not met Carmela before the night of the crime | She knew Carmela personally and met her in a party sometime in February 1991 | She met Carmela in a party sometime in January 1991 and in a disco sometime in February 1991 |
The number of trips the group made to the Vizconde residence | There were only two
trips made. After the first trip, Alfaro went back to the parking lot.
The group was about to leave when she arrived. Ventura signaled her to
board the Nissan Patrol to take more drugs and asked her to leave her
car, but she refused. Thereafter, she was instructed to join the convoy of vehicles. They went around BF Homes for about 15 minutes before they finally proceeded to Vinzons Street. | Alfaro and Peter Estrada made three trips to the Vizconde residence. During their second trip,
the other accused stayed behind at the Alabang Commercial Center
Parking Lot. Peter Estrada and Alfaro went back to the Vizconde
residence after about 30 minutes. This time, Carmela asked Jessica to
come back after midnight. | The entire group made three trips to the Vizconde residence. On the second trip, Webb and his companions parked and stayed along Aguirre Avenue. Only Alfaro went to the Vizconde residence. |
What Webb said | Alfaro did not hear any instructions from Webb or any member of the group. | Before they left the parking lot, Alfaro overheard Webb say, "Pipilahan natin si Carmela, pero ako ang mauuna. | After Webb said "Pipilahan...," Lejano retorted, "Oo pero ako ang susunod." The others responded, "Okay, okay." |
What Alfaro saw at the scene of the crime | Alfaro did not see what transpired inside the Vizconde residence because she did not go in. | After leaving the accused Webb, Lejano and Ventura inside the Vizconde residence, Alfaro again entered the house through the kitchen door; Ventura was coming out as she was about to enter and once inside, curiosity impelled Alfaro to peep through the first door
on the left. Noticing the high volume of the TV set inside the room,
she saw two bloodied bodies on top of the bed and on the floor, she saw
Webb pumping on top of Carmela who was gagged and in tears. | Before going to the bedroom, Alfaro saw Ventura rummaging through the ladies' bag on top of the dining table. She proceeded to the bedroom after hearing the sound of static and peeped through the door. She could not see anything so she stepped inside where she saw Webb pumping Carmela. |
Alfaro's location in the Vizconde bedroom in relation to what she saw | Alfaro did not see what transpired inside the Vizconde residence because she did not enter it. | Alfaro peeped through the bedroom door and saw two bloodied bodies and Webb pumping Carmela. | Alfaro first peeped through the bedroom door and did not see anything. Since she did not see anything, she walked inside the bedroom where she saw the rape of Carmela. |
The
dissenters approvingly note the trial court's findings that Alfaro had
sufficiently explained these discrepancies between her two affidavits as
arising from a desire "to protect her former boyfriend Estrada and her relative Gatchalian, the absence of a lawyer during the first taking of her statements by the NBI, her distrust of the first investigators who took her statements and prepared her April 28, 1995 affidavit, and her uncertainty if she could obtain adequate support and security for her own life were she to disclose everything she knows about the Vizconde killings." (underscoring supplied)
There was, however, no rational basis for Alfaro to mistrust her "handler" Sacaguing who was present at the execution of the first
Affidavit, or the NBI for that matter, she, as stated earlier, having
been accorded special treatment precisely because she was one of the
more valuable "assets" of the NBI. Sacaguing himself testified that
Alfaro was virtually dependent on them . . . "for protection, for
sympathy and even for her spiritual needs."[30]
Accused Gatchalian's father, Atty. Francisco Gatchalian, denied that
his family was in any way related to Alfaro. And the lawyer who is
mentioned in the first Affidavit to have assisted her, Atty.
Arturo Mercader, Jr., took the witness stand and categorically stated
that he was present during the taking of such first Affidavit of Alfaro, he claiming that, inter alia:
Atty. Ongkiko: |
Q | And after the typing of the statement was finished by Agent Tamayo, what happened?
|
Witness Mercader: |
A | Well, I received the statement and showed it to Jessica and asked her to read it also.
|
Atty. Ongkiko: |
Q | Did Jessica Alfaro read her statement?
|
Witness Mercader: |
A | Yes, Your Honor.
|
Atty. Ongkiko: |
Q | How long did it take her to read the statement?
|
Witness Mercvader: |
A | Just for few minutes, Your Honor.
|
Atty. Ongkiko: |
Q | And after she read the statement, what happened next?
|
Witness Mercader: |
A | Well, she signed the statement and afterwards, I also affixed my signature on it, Your Honor.
|
| x x x x
|
Atty. Aguirre: |
Q | While assisting Jessica Alfaro, did you notice any action on the part of anybody which pressured Jessica Alfaro to finish her statement?
|
Witness Mercader: |
A | No, Your Honor, none that I have noticed. If I did, I would have objected to.[31]
|
| x x x x
|
Prosecutor Zuno: |
Q | And that, I believe, to your own perception, at that time she was giving the facts, the answer, in accordance with her recollection?
|
| x x x x
|
Witness Mercader: |
A | Your Honor, at that time what I noticed only was the spontaneity of the answers of Jessica. Of course, I could not tell whether from where Jessica was basing it. From the recollection or from a memorize script, I do not know, Your Honor, about that. But definitely, whenever she was asked a question, she answers them readily as if she knows the answer personally.[32] (emphasis and underscoring supplied) |
The
trial court's order preventing the defense from cross-examining Alfaro
on the inconsistencies between her two Affidavits was thus correctly SET ASIDE
by the Court of Appeals, to which this Court, by Resolution of January
22, 1996, referred for disposition G.R. Nos. 122466 and 122504, the
accused's petitions assailing, among other orders, the trial court's
order denying their right to cross examine Alfaro, for purposes of impeachment, on her conflicting Affidavits. Thus, the appellate court, in its Decision[33] in CA-G.R. SP Nos. 39839 and 39840 of June 21, 1996, held:
x x x x
[T]he
issue of the right of petitioners to cross-examine Jessica Alfaro on
the alleged inconsistencies between her first and second affidavits is
too crucial to be simply brushed aside with a perfunctory application of
the general rule adverted to in the preceding paragraphs. It may bring about a failure of justice.
Consequently, we consider the actuations of respondent judge in this
regard to be reviewable by certiorari under rule 65 of the Rules of
Court. (Emphasis and underscoring supplied)
Under Section 11,
Rule 132 of the Rules of Court, an adverse party's witness may be
impeached (1) by contradictory evidence; (2) by evidence that his
general reputation for truth, honesty, or integrity is bad; (3) by evidence that he has made at other times statement inconsistent with his present testimony;
and (4) by producing the record of his conviction of an offense.
Insofar as impeachment by evidence of prior inconsistent statements
however, under Section 13 of the same Rule 132, a proper foundation must
first be laid, in that, the attention of the witness should first be
called to such statements, and he should be asked whether or not he made
them, and afforded an opportunity for explanation, or affirmance, or
denial of the authenticity of the writing. (emphasis and underscoring
in the original)
A testimony given four years after the
occurrence of crime which gives minute details that even contradict
tales earlier given is too incredible as to draw dubiety. The lucid
observations of Court of Appeals Justice Renato C. Dacudao in his
Dissent[34] for the acquittal of the accused, and the graphic analysis of Justice Roberto Abad in his ponencia on why Alfaro's testimony can not be relied upon are thus well taken.
It bears stressing that the defense's earnest assertion that the
prosecution failed to rebut the pieces of evidence, highlighted by the
defense, that seriously dent its (the prosecution's) case has not been controverted.
Respecting
Alfaro's "eyewitness identification" of Webb as the rapist: As
reflected in the tabulations above, she had conflicting claims on whether and where
she witnessed the commission of the crime. AT ALL EVENTS, such
identification is not as accurate and authoritative as the scientific
forms of identification evidence such as Deoxyribonucleic Acid (DNA) testing,[35]
which testing could not now, in the present case, be carried out in
view of the information of the NBI that it no longer has custody of the
semen specimen from rape victim Carmela's cadaver, claiming that it had turned it over to the trial court. The NBI did not, however, present any documentary proof of such claim. Parenthetically, it does not appear from the records that the specimen was offered in evidence by any of the parties.
To
Webb's credit, he had asked for the conduct of DNA evidence on October
6, 1997, during the trial on the merits, when he filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis[36] which motion the prosecution opposed.[37] The motion was subsequently denied by the trial court by its November 25, 1997 Order,[38] citing Lim v. Court of Appeals[39]
to the effect that DNA, "being a relatively new science, it has not as
yet been accorded official recognition by our courts." Besides, the
trial court "believed" that no one in the Philippines had as yet the
knowledge and expertise to testify on matters involving DNA testing.
What is worse, however, is that it "believed" that DNA testing "will not
subserve the ends of justice."[40]
If the motion had been granted and DNA analysis were carried out,
nagging doubts on Webb's culpability for the crimes or lack of it could
have been dissipated.
FINALLY, even assuming arguendo that
the burden of evidence had shifted to the defense, the testimonial and
documentary evidence of the defense indubitably establishes that, with
respect to accused Webb, he was out of the country when the crime
occurred.
It is undisputed that accused Webb's travel and
immigration documents, which have not been found to be spurious,
unquestionably show that he left the Philippines for the United States
on March 9, 1991 and returned to the Philippines only on October 26,
1992. In rejecting Webb's alibi, the dissenters point out:
These
dates [March 9, 1991 and October 26, 1992] are so distant from the time
of the commission of the crime, June 29, 1991 and June 30, 1991, and it would not have been impossible during the interregnum for Webb to travel back to the country
and again fly to the US several times considering that the travel time
on board an airline from the Philippines to San Francisco, and from San
Francisco to the Philippines takes only about twelve (12) hours to
fourteen (14) hours. Given the financial resources and political
influence of his family, it was not unlikely that Webb could have
traveled back to the Philippines before June 29-30, 1991 and then
departed for the US again, and returning to the Philippines in October
1992. There clearly exists, therefore, such possibility of
Webb's presence at the scene of the crime at the time of its commission,
and its excuse cannot be deemed airtight. (underscoring and italics
supplied)
It is now the dissenters' reasoning which
turns highly speculative and conjectural, one borne out of unfounded
suspicion. It suspects that the Webb family may have used its
"financial resources and political influence" to control all the U.S.
and Philippine immigration people, thus allowing Webb to secretly
"travel back to the country and again fly to the U.S. several times"
between March 9, 1991 and October 26, 1992. It bears noting that the
prosecution proffered no evidence to establish that during the
interregnum Webb had surreptitiously slipped out of the U.S.A. to the
Philippines, and that he subsequently re-entered the U.S.A. by
bypassing all immigration controls and protocols in both countries.
This is the stuff of which spy novels are made, but not in the real
world where the lives of innocent individuals are at stake.
Facts
decide cases. Conjectures and suspicions are not facts, hence, they
have no evidentiary value. They cannot be the bases of conviction as
they cannot substitute for the constitutional requirement of proof of
guilt beyond reasonable doubt. Suspicions, no matter how strong they
are, must never sway judgment.[41]
At this juncture, given the evidence on record, it is crucial to heed the Court's caveat
that when an accused puts up the defense of alibi, "the courts should
not at once have a mental prejudice against him. For, taken in the
light of all the evidence on record, it may be sufficient to acquit him."[42]
While alibi is, indeed, a weak defense because the accused can easily fabricate his story to escape criminal liability,[43]
in the present case, Webb's alibi could not have been fabricated with
ease. His travel and immigration documents showing his departure from
the Philippines and arrival in the U.S.A., not to mention the
testimonial and documentary evidence on his activities while in the
U.S.A. between March 9, 1991 and October 26, 1992, deserve full credit.
If half the world away could not even be considered to be "so far removed from the crime scene"[44] as
to evince the physical impossibility of actual presence, then the
defense of alibi can only be appreciated when an accused lands in a
different planet.
The dissenters cite People v. Larrañaga[45] to
highlight the weakness of alibi as a defense. That case did not
involve foreign and travel immigration documents or even the use of a
passport, the accused therein having claimed that he was in Quezon City
at the time the crime was committed in Cebu City. Because he was
positively identified by several prosecution witnesses whose
testimonies, unlike Alfaro's, were credible and trustworthy, this Court
rejected Larrañaga's alibi.
WHEREFORE, for failure of the
prosecution to prove beyond reasonable doubt the guilt of the accused,
Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano, Michael A.
Gatchalian, Hospicio "Pyke" Fernandez, Peter Estrada, and Miguel "Ging"
Rodriguez, they are ACQUITTED of the crime charged.
[1] Salvacion v. Sandiganbayan, G.R. No. L-68633, July 11 1986, 142 SCRA 707, 713.
[2] The cases were (1) Criminal Case No. 91-7135
filed by then Assistant Chief State Prosecutor Aurelio C. Trampe before
the sala of Judge Julio R. Logarta of the Makati City RTC, Branch 63,
on November 11, 1991 (for robbery with homicide) against Villardo
Barroso y Datuin, Roberto Barroso y Datuin¸ Rolando Mendoza y Gomez,
Ernesto Cesar, Bienvenido Baydo, Angelito Santos y Bisen, Rey Doe and
several other John Does still at large; (2) Criminal case No. 91-7136 (for
the rape with homicide of Carmela Nicolas Vizconde filed by ACSP
Aurelio C. Trampe with the same RTC, Branch 63, on November 11, 1919)
also against the same accused and (3) Criminal Case No. 91-7137
(for robbery, with homicide wherein the victim was ESTRELLITA NICOLAS
VISCONDE) likewise filed against the same accused by ACSP Aurelio C.
Trampe.
[3] Records, Vol. I, pp. 1-3.
[4] Rollo (G.R. No. 176389), pp. 393-399 and rollo (G.R. No. 176864), pp. 80-104.
[5] Decision dated January 4, 2000.
[6] CA rollo, Vol. IV, pp. 3478-3479.
[7]
Resolution dated January 26, 2007, rollo (G.R. No. 176839), pp.
197-214. The resolution was penned by Justice Rodrigo V. Cosico, with
the concurrence of Justices Regalado E. Maambong and Normandie B.
Pizarro. Justices Renato C. Dacudao and Lucenito N. Tagle dissented.
[8] A.M. 06-11-5-SC effective October 15, 2007. Section 4 states:
Application for DNA Testing Order. - The appropriate court may, at any time, either motu proprio
or on application of any person who has a legal interest in the matter
in litigation, order a DNA testing. Such order shall issue after due
hearing and notice to the parties upon a showing of the following:
a. A biological sample exists that is relevant to the case;
b. The biological sample:
(i) was not previously subjected to the type of DNA testing now requested; or
(ii) was previously subject to DNA testing , but the results may require confirmation for good reasons;
c. The DNA testing uses a scientifically valid technique;
d.
The DNA testing has the scientific potential to produce new information
that is relevant to the proper resolution of the case; and
e.
The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.
This
rule shall not preclude a DNA testing, without need of a prior court
order, at the behest of any party, including law enforcement agencies,
before a suit or proceeding is commenced.
[9] People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828.
[10] People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207.
[11] Siao Tick Chong v. Republic, No. L-22151, March 30,1970, 32 SCRA 253, 258.
[12]
37 N.J. Eq. 130, 132. Cited in SALONGA, Philippine Law on Evidence, 774
(1964) and VIII Francisco, The Revised Rules Of Court In The
Philippines, 458-459 (1997).
[13] January 4, 2000 RTC Decision, p. 74.
[14] Vide TSN, October 18, 1995, pp. 105-106.
[15] TSN, October 23, 1995, pp. 6-9.
[16] Id. at 25-27.
[17] Id. at 35-36; TSN, October 10, 1995, pp. 80-96, 156-163.
[18] 35 N.Y.U.L. Rev. 259 (1960)
[19] Ibid.
[20] Vide 98 C.J.S. 348.
[21] Vide People v. Lewis, 25 Ill. 2d 396, 185 NE 2d 168 where the Supreme Court of Illinois ruled:
The
question of whether a witness is a narcotics addict is an important
consideration in passing upon the credibility of a witness for, as we
have stated, the testimony of a narcotics addict is subject to suspicion
due to the fact that habitual users of narcotics become notorious
liars. (citations omitted)
In People v. Perkins, 26 Ill 2d 2300, 186 NE 2d 330 (1962) , the Supreme Court of Illinois said:
The
defendant contends that the trial court erred in finding him guilty on
the basis of the uncorroborated testimony of a drug addict who was the
only witness to the alleged crime, and further urges that the evidence
as a whole does not prove him guilty beyond a reasonable doubt. We have
repeatedly held that the fact that a witness is a narcotics addict and a police informer has an important bearing upon his credibility and,
while his position is not that of an accomplice, the situation is
sufficiently similar to that of an accomplice to warrant a close
scrutiny of the testimony of such a witness, recognizing the fact that
habitual users of narcotics become notorious liars and that their
testimony is likely to be affected thereby. (Citations omitted; emphasis
supplied)
[22] State v. Fong Loon, 29 Idaho 248, 158 Pac. 233, 236.
[23] TSN, August 7, 1997, 35-45
[24] TSN, June 4, 1997, pp. 47-48.
Atty. Ongkiko:Q:
As an investigator, Governor, will you tell the Honorable Court how did
you relate or rather assess the reliability of any information
furnished by a drug addict?
Witness Velasco:
A: Well, I will consider it, Your Honor, not generally reliable.
Atty. Ongkiko:
Q: Why do you say that?
Witness Velasco:
A:
Well, because, you know, if one is under the influence of drugs or one
is considered to be an addict, you could hardly believe his information.
Atty. Ongkiko:
Q: Why, why so?
Witness Velasco:
A: Because he is not in his state of mind.
Atty. Ongkiko:
Q: Well, what about the capacity to lie, Governor?
Witness Velasco:
A: Well, the capacity to lie may be very great, Your Honor.
Atty. Ongkiko:
Q: Well, because, you know, for maintaining or for in order to get money, they will lie."
(underscoring supplied)
[25] Burrus and Marks Testimonial Reliability of Drug Addicts 35 N.Y.U.L. Rev. 259, 262-263, 269-270, 272-273 (1960).
[26] TSN, May 28, 1996, pp. 49-50, 77-79.
[27] TSN, July 29, 1996, pp. 77-78.
[28] Justice Roberto Abad raised the same points, viz:
a.
The Barroso gang members said that they got into Carmela's house by
breaking the glass panel of the front door using a stone wrapped in
cloth to deaden the noise. Alfaro could not use this line since the core
of her story was that Webb was Carmela's boyfriend. Webb had no reason
to smash her front door to get to see her.
Consequently, to
explain the smashed door, Alfaro had to settle for claiming that, on the
way out of the house, Webb picked up some stone and, out of the blue,
hurled it at the glass-paneled front door of the Vizconde residence.
His action really made no sense. From Alfaro's narration, Webb appeared
rational in his decisions. It was past midnight, the house was dark,
and they wanted to get away quickly to avoid detection. Hurling a stone
at that glass door and causing a tremendous noise was bizarre, like
inviting the neighbors to come.
b. The crime scene showed that
the house had been ransacked. The rejected confessions of the Barroso
"akyat-bahay" gang members said that they tried to rob the house. To
explain this physical evidence, Alfaro claimed that at one point Ventura
was pulling a kitchen drawer, and at another point, going through a
handbag on the dining table. He said he was looking for the front-door
key and the car key.
Again, this portion of Alfaro's story
appears tortured to accommodate the physical evidence of the ransacked
house. She never mentioned Ventura having taken some valuables with him
when they left Carmela's house. And why would Ventura rummage a bag on
the table for the front-door key, spilling the contents, when they had
already gotten into the house. It is a story made to fit in with the
crime scene although robbery was supposedly not the reason Webb and his
companions entered that house.
c. It is the same thing with the
garage light. The police investigators found that the bulb had been
loosed to turn off the light. The confessions of the Barroso gang
claimed that one of them climbed the parked car's hood to reach up and
darken that light. This made sense since they were going to rob the
place and they needed time to work in the dark trying to open the front
door. Some passersby might look in and see what they were doing.
Alfaro
had to adjust her testimony to take into account that darkened garage
light. So she claimed that Ventura climbed the car's hood, using a
chair, to turn the light off. But, unlike the Barroso "akyat-bahay"
gang, Webb and his friends did not have anything to do in a darkened
garage. They supposedly knew in advance that Carmela left the doors to
the kitchen open for them. It did not make sense for Ventura to risk
standing on the car's hood and be seen in such an awkward position
instead of going straight into the house.
[29] G.R. Nos. 121039-45, January 25, 1999, 302 SCRA 21.
[30] TSN, October 6, 1997, p. 100.
[31] Vide TSN, July 31, 1996, pp. 20-21, 44.
[32] TSN, August 1, 1996, pp. 10, 15.
[33] CA rollo (CA-G.R.
SP No. 51173), pp. 209-225, penned by Associate Justice Ricardo P.
Galvez, with the concurrence of Associate Justices Antonio M. Martinez
and Hilarion L. Aquino.
[34] Rollo, pp. 254-285, G.R. No. 176389.
[35] People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 586.
[36] Records, Vol. 17, pp. 186-196. Webb argued that:
x x x x
7.
Since the semen specimen is still in the custody and possession of the
NBI, accused Webb moves for the submission of the semen evidence to a
DNA analysis by a US-government or US government accredited forensic
laboratory, preferably the Federal Bureau of Investigation, Washington,
D.C. If granted, accused Webb reserves his right to be presented at all
stages of the DNA typing process and to have access to the results
thereof.
x x x x
[37] Id. at 502-529.
[38] Records, Vol. 18, pp. 256-259.
[39] G.R. No. 112229, March 18, 1997, 270 SCRA 1, 3.
[41] People v. Tajada, G.R. No. 147200, December 17, 2002, 394 SCRA 159, 166; Monteverde v. People, G.R. No. 139610, August 12, 2002, 387 SCRA 196, 215.
[42] People v. Abellanosa, G.R. No. 121195, November 27, 1996, 264 SCRA 722, 746-747.
[43] People v. Peruelo, No. L-50631, June 29, 1981, 105 SCRA 226-238;
[44] People v. Domingo, G.R. No. 184958, September 17, 2009.
[45] G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.
DISSENTING OPINIONVILLARAMA, JR., J.:With all due respect to my colleagues, I dissent from the majority decision acquitting all the accused-appellants.
In
the middle part of 1991, the gruesome deaths of 19-year old Carmela
Vizconde, her mother Estrellita and 7-year old sister Jennifer in the
hands of unknown assailants inside their home in a private subdivision
shocked our countrymen and alarmed the authorities of the rise in
heinous crimes, particularly those committed by individuals under the
influence of drugs. Investigations conducted by the police and other
bodies including the Senate, and even the arrest of two (2) sets of
suspects ("
akyat-bahay"
gang and former contractor/workers
of the Vizcondes), failed to unravel the truth behind the brutal
killings - until an alleged eyewitness surfaced four (4) years later.
The ensuing courtroom saga involving sons of prominent families had
become one (1) of the most controversial cases in recent history as the
entire nation awaited its long-delayed closure.
The Case
Subject of review is the Decision
[1]
dated December 15, 2005 of the Court of Appeals (CA) in CA-G.R. CR H.C.
No. 00336 affirming with modifications the Decision dated January 4,
2000 of the Regional Trial Court (RTC) of Parañaque City, Branch 274
finding the accused-appellants Hubert Jeffrey P. Webb, Antonio "Tony
Boy" Lejano, Michael A. Gatchalian, Hospicio "Pyke" Fernandez, Peter
Estrada and Miguel "Ging" Rodriguez guilty beyond reasonable doubt as
principals, and accused-appellant Gerardo Biong as accessory, of the
crime of Rape with Homicide.
The petition for review on
certiorari filed earlier by accused Lejano (G.R. No. 176389) is hereby
treated as an appeal, considering that said accused had in fact filed a
notice of appeal with the CA.
[2] In view of the judgment of the CA imposing the penalty of
reclusion perpetua, such appeal by notice of appeal is in accord with A.M. No. 00-5-03-SC
(Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)
[3] which provides under Rule 124 (c):
(c) In cases where the Court of Appeals imposes reclusion perpetua, life
imprisonment or a lesser penalty, it shall render and enter judgment
imposing such penalty. The judgment may be appealed to the Supreme
Court by notice of appeal filed with the Court of Appeals.
Accordingly,
G.R. No. 176389 was consolidated with the present appeal by all accused
(G.R. No. 176864) except Artemio Ventura and Joey Filart who are still
at large.
[4] Only Webb and Gatchalian filed their respective supplemental briefs in compliance with our April 10, 2007 Resolution.
[5]The Facts
The Information filed on August 10, 1995 reads:
That
on or about the evening of June 29 up to the early morning of June 30,
1991, in the municipality of Parañaque, province of Rizal, Philippines,
and within the jurisdiction of this Honorable Court, accused Hubert
Jeffrey P. Webb conspiring and confederating with accused Antonio "Tony
Boy" Lejano, Artemio "Dong" Ventura, Michael Gatchalian y Adviento,
Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez and
Joey Filart, mutually helping one another, while armed with bladed
instruments, with the use of force and intimidation, with lewd design,
with abuse of superior strength, nighttime and with the use of motor
vehicle, wilfully, unlawfully and feloniously have carnal knowledge of
the person of Carmela Vizconde against her will and consent.
That
by reason or on the occasion of the aforesaid rape or immediately
thereafter, the above-named accused with intent to kill, conspiring and
confederating together, mutually helping one another, did then and
there, and with evident premeditation, abuse of superior strength,
nighttime, with the use of motor vehicle, assault and stab with bladed
instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde,
thereby inflicting upon them numerous stab wounds in different parts of
their bodies which caused their instantaneous death.
That
accused GERARDO BIONG and JOHN DOES having knowledge after the
commission of the above-mentioned crime, and without having participated
therein as principals or accomplices, took part subsequent to its
commission by assisting, with abuse of authority as a police officer,
the above-named principal accused, to conceal or destroy the effects or
instruments thereof by failing to preserve the physical evidence and
allowing their destruction in order to prevent the discovery of the
crime.
CONTRARY TO LAW.[6]
The
RTC and CA concurred in their factual findings based mainly on the
testimony of the prosecution's principal witness, Jessica M. Alfaro who
is a confessed former drug user, the declarations of four (4) other
witnesses and documentary exhibits.
Alfaro testified that on June
29, 1991 at around 8:30 in the evening, she drove her Mitsubishi Lancer
and, with her then boyfriend Peter Estrada, went to the Ayala Alabang
Commercial Center parking lot to get her order of one (1) gram of
shabu
from Artemio "Dong" Ventura. There she met and was introduced to
Ventura's friends: Hubert Jeffrey P. Webb, Antonio "Tony Boy" Lejano,
Miguel "Ging" Rodriguez, Hospicio "Pyke" Fernandez, Michael Gatchalian
and Joey Filart (she had previously seen them in a
shabu house located in Parañaque which they frequented as early as January 1991,
[7] while she had known Ventura since December 1990
[8]). After paying for her
shabu
and while she was smoking it, Webb approached her and requested a favor
for her to relay a message to a certain girl who happened to be
Carmela, to which she agreed. After the group finished their
shabu session,
they proceeded to Carmela's place at No. 80 Vinzons Street, Pitong Daan
Subdivision, BF Homes, Parañaque City. She and Estrada in her car
followed the two (2) vehicles: Webb, Lejano, Ventura, Fernandez and
Gatchalian on board a Nissan Patrol car; while Filart and Rodriguez rode
a Mazda pick-up.
[9]Upon
reaching the area, Alfaro parked her car along Vinzons St. and
approached the gate of the house pointed to by Webb. She pressed the
buzzer and when a woman came out, she asked for Carmela. When she was
able to talk to Carmela (an acquaintance she had met only twice in
January 1991
[10]), Alfaro
relayed Webb's message that he was around. However, Carmela said she
cannot make it as she had just arrived home and told Alfaro to come back
after twenty (20) minutes. She relayed the answer of Carmela to Webb
who then instructed the group to return to Ayala Alabang Commercial
Center.
[11]At the same parking lot, the group had another
shabu session
before proceeding again to Carmela's residence in a convoy. Alfaro
went to Vinzons St. alone while the Nissan Patrol and Mazda parked
somewhere along Aguirre Avenue. Upon seeing Carmela who was at their
garden, Alfaro was approached by Carmela saying she was going out for a
while. Carmela told Alfaro that they come back before 12:00 midnight
and she would just leave the pedestrian gate, as well as the iron grill
gate leading to the kitchen door, open and unlocked.
[12]
Carmela further instructed Alfaro to blink her car's headlights twice
before reaching the pedestrian gate to signal her arrival. Alfaro
returned to her car but waited for Carmela's car to get out of the gate.
Carmela drove ahead and Alfaro likewise left Vinzons St. Upon reaching
the main road, Aguirre Avenue, she saw Carmela drop off the man who was
with her in the car (whom she thought to be her boyfriend
[13]).
Alfaro looked for the group and relayed Carmela's instructions to Webb.
Thereafter, they all went back to the Ayala Alabang Commercial Center.
[14]At
the parking lot, Alfaro relayed to the group what transpired during her
last conversation with Carmela. She also told Webb about Carmela's
male companion; this changed his mood for the rest of the evening ("
bad trip"
already
[15]). Webb then gave out complimentary cocaine and all of them used
shabu and/or cocaine.
[16] After about 40 to 45 minutes, Webb decided it was time to leave, declaring: "
Pipilahan natin siya [Carmela]
at ako ang mauuna."
Lejano said: "
Ako ang susunod" and the others responded "
Okay, okay."
They all left the parking lot and their convoy of three (3) vehicles
entered Pitong Daan Subdivision for the third time. They arrived at the
Vizconde residence between 11:45 to 11:55 p.m.
[17]Alfaro
parked her car in between the Vizconde house and its adjacent house.
While waiting for the rest of the group to alight from their cars,
Fernandez approached her suggesting that they blow up the transformer
near the pedestrian gate of the Vizconde residence in order to cause a
brownout ("
Pasabugin kaya natin ang transformer na ito"
). She shrugged off the idea and told Fernandez "
Malakas lang ang tama mo."
When Webb, Lejano and Ventura were already standing infront of the
Vizconde residence, Webb repeated to the boys that they will line up for
Carmela but he will be the first, and the others said, "
O sige, dito lang kami, magbabantay lang kami."
[18]Alfaro
entered first the pedestrian gate which was left open, followed by
Webb, Lejano and Ventura. At the garage, Ventura pulled out a chair to
get on top of the hood of the Vizcondes' Nissan Sentra car and loosened
the electric bulb ("
para daw walang ilaw"
). They
proceeded to the iron grill gate which was likewise left open, and
passed through the dirty kitchen. It was Carmela who opened the
aluminum screen door of the kitchen for them to enter. Carmela and Webb
for a moment looked at each other in the eye, and then proceeded towards
the dining area. As she lost sight of Carmela and Webb, Alfaro decided
to go out of the house. Lejano asked where she was going and she told
him she will smoke outside. On her way to the screen door, she saw
Ventura pulling a drawer in the kitchen. At the garden area, she smoked
a cigarette. After about twenty (20) minutes, she was surprised upon
hearing a female voice uttered "
Sino yan?" and she immediately
walked out towards her car. She found the others still outside around
her car and Estrada who was inside the car said: "
Okay ba?"
After staying in her car for about ten (10) minutes, she returned to the
house passing through the same iron grill gate and dirty kitchen. While
it was dark inside the house, there was light coming from outside. In
the kitchen, she saw Ventura searching a lady's bag on top of the dining
table. When she asked Ventura what was it he was looking for, he said:
"
Ikaw na nga dito, maghanap ka ng susi." She asked him what particular key and he replied: "
Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse."
When she found a bunch of keys in the bag, she tried them on the main
door of the house but none of them fitted the lock; she also did not
find any car key.
[19]Unable
to open the main door, Alfaro walked back towards the kitchen but upon
reaching the spot leading to the dining area, she heard a very loud
static sound (like that coming from a television which had signed off).
Out of curiosity, she went to the door of the master's bedroom where
the sound was coming from and peeped inside. She pushed the slightly
ajar door with her fingers and the sound grew even louder. After
pushing the door wider, she walked into the room. There she saw a man
on top of Carmela who was lying on the floor, two (2) bloodied bodies on
top of the bed and Lejano who was at the foot of the bed about to wear
his jacket. She turned her eyes on Carmela who was gagged, moaning and
in tears while Webb was pumping her, his bare buttocks exposed. Webb
gave her a look and she immediately left the room. At the dining area,
she met Ventura who told her: "
Prepare an escape. Aalis na tayo."
Shocked by what she saw, Alfaro rushed out of the house and found the rest of the group outside, in her car and on the sidewalk.
[20]Alfaro
boarded her car and started the engine but did not know where to
proceed. She saw Webb, Lejano and Ventura leaving the house already.
Webb suddenly picked up a stone and threw it to the main door, breaking
its glass frame. When the three (3) were near the pedestrian gate, Webb
told Ventura that he left behind his jacket. But Ventura said they
cannot make it anymore as the iron grills were already locked. They all
rode in their cars and drove away until they reached Aguirre Avenue.
Near an old hotel in the Tropical Palace area, Alfaro saw the Nissan
Patrol slow down and something thrown out into a cogonal area. They went
to a large house with high walls and concrete fence, steel gate and
long driveway located at BF Executive Village. They parked their cars
inside the compound and gathered in the lawn area where the "blaming
session" took place. It was only at this point that Alfaro and the
others came to know fully what happened at the Vizconde house. The
mother was the first one (1) killed, then Jennifer and the last,
Carmela.
[21]Ventura was blaming Webb telling him: "
Bakit naman pati yung bata?"
According to Webb, the girl was awakened and upon seeing him molesting
Carmela, she jumped on him, bit his shoulders and pulled his hair.
Webb got mad and grabbed the girl, pushed her to the wall and stabbed
her several times. Lejano excused himself and used the telephone inside
the house, while Webb called up someone on his cellular phone. At
around 2:00 in the morning, Gerardo Biong arrived and talked to Webb who
ordered him to clean up the Vizconde house, and said "
Pera lang ang katapat nyan."
Biong answered "
Okay lang." Webb addressed the group and gave his final instructions: "We don't know each other. We haven't seen each other...
baka maulit yan." She and Estrada then departed and went to her father's house.
[22]Dr. Prospero A. Cabanayan,
medico-legal officer of the National Bureau of Investigation (NBI), who
conducted the autopsy on the cadavers of the victims, testified on his
findings as stated in the autopsy reports he submitted to the court.
The bodies were photographed showing their condition before the start of
the post-mortem examination.
[23] Considering that they were almost in complete
rigor mortis,
the victims must have been dead for twelve (12) hours. Carmela's hands
were on her back hogtied with an electric cord and her mouth gagged
with a pillow case. She had contusions on her right forearm and thighs,
ligature marks on her wrists and nine (9) stab wounds on her chest
(five
[5] wounds are
"connecting" or reaching to the back of the body). Further, specimen
taken from her genitalia tested positive for the presence of human
spermatozoa, which is indicative of complete penetration plus
ejaculation of the male sex organ into the female sex organ. The
contusions on her thighs were probably due to the application of blunt
force such as a fist blow.
[24]Dr.
Cabanayan further testified that Estrellita was also hogtied from
behind and her wrists bore ligature marks from an electric cord with a
plug. She sustained twelve (12) stab wounds, eight (8) of which are
"communicating" or perforating (through and through stab wounds) which
are fatal since vital organs are involved.
[25]
As to Jennifer, her stab wounds, nineteen (19) in all, had the
characteristics of one (1) which is extremely blunt, the other extremely
sharp. These wounds are located in different parts of her body, most of
which are on the left anterior chest. But unlike Carmela and
Estrellita, Jennifer had two (2) stab wounds on her back and incise
wounds on her left and right forearms, the latter usually referred to as
defense wounds. Seven (7) of the nine (9) stab wounds on her chest were
perforating, hence fatal wounds.
[26]
Judging from the characteristics of the stab wounds sustained by the
victims, Dr. Cabanayan concluded that they could have been inflicted
using sharp-edged, pointed and single-bladed instruments such as a
kitchen knife.
[27]Normal E. White,
Jr.,
one (1) of four (4) security guards assigned at Pitong Daan Subdivision
which is part of the United BF Homes, testified that he and Edgar
Mendez were the guards on duty on the night of June 29, 1991, starting
at 7:00 o'clock in the evening until 7:00 o'clock in the morning of June
30, 1991. On June 30, 1991, at around 6:00 a.m., a homeowner called his
attention on the incident the previous night at the Vizconde house. He
immediately proceeded to said house where there were already many
people. The housemaids of the Vizcondes led him to the entrance at the
kitchen and pointed to the master's bedroom. Upon entering the room, he
saw the bloodied bodies of the victims: two (2) were on top of the bed,
and one (1) lying down on the floor. He is familiar with Mrs. Vizconde,
Carmela and Jennifer because they were kind to the guards and usually
greeted them. Mrs. Vizconde was gagged and her hands tied, while
Jennifer was also lying on top of the bed. Carmela was lying on her back
with one (1) of her legs raised, her dress pulled up and her genitals
exposed. He also noticed that the TV was still on with loud sound. He
went out to call the police but he met their Security Chief whom he
informed about the killings at the Vizconde house. He then proceeded
directly to the entrance/guard post of the subdivision and was told by
Mendez that there were already policemen who had arrived.
[28]Having
been apprised of the arrival of the police, White, Jr. returned to the
Vizconde house to observe what was going on. He saw the policemen
already investigating the crime scene and one (1) of them he later came
to know as Gerardo Biong. There was also a woman who was with Biong
when he was conducting the investigation inside the Vizconde premises at
the garage area. The maids were being asked if they were able to hear
the breaking of the main door's glass frame, and he saw Biong in the act
of further breaking the remaining glass. He recognized other homeowners
who were also there, including Michael Gatchalian who passed by infront
of the house. Afterwards, he returned to their guard post where their
Officer-in-Charge (OIC), Justo Cabanacan, probed him and Mendez on
anything they had observed the previous night. He and Mendez told
Cabanacan that they did not notice anything unusual except "Mike"
(Michael Gatchalian) and his friends entering and exiting the
subdivision gate ("
labas-masok").
[29]White,
Jr. recounted that Mike's group entered the subdivision on the night
of June 29, 1991. Upon approaching the gate, Mike's car slowed down on
the hump. He was about to flag down and verify ("
sisitahin") but
Mike (who was at the right front seat) immediately opened his window to
show his face and pointed to two (2) vehicles behind him as his
companions. Because of their policy allowing outsiders to enter the
subdivision as long as they are accompanied by a homeowner, he and
Mendez just let the three (3) vehicles in (Mike was in the first car).
That was actually the second time he saw Mike and his "
barkada"
that night because he had earlier seen them at Vinzons St. near the
Gatchalian residence. However, he could no longer remember the precise
time he saw the group on these two (2) instances.
[30]White,
Jr. further testified that on the night of June 30, 1991, policemen
took him from the Pitong Daan Subdivision Homeowners' Association and
brought him to the Parañaque Municipal Building. Biong was forcing him
to admit that he was one (1) of those who killed the Vizconde women.
Biong boxed him insisting he was among the perpetrators and had no mercy
for the victims. He and Mendez were later fetched by the Chief of
Security of Pitong Daan Subdivision Homeowners' Association, Nestor
Potenciano Jr., and OIC Justo Cabanacan.
[31]
Biong had also taken their logbook where they list down the names of
visitors, plate number of vehicles, name and street of the homeowner
they were staying at, etc. However, when presented with the alleged
logbook, White, Jr. said it was not the same logbook, he could not
recognize its cover and could not categorically confirm the entries
supposedly made in his own handwriting.
[32]Justo Cabanacan,
another security guard assigned at the Pitong Daan Subdivision and the
one (1) supervising his co-guards White, Jr., Mendez and Tungo,
testified that when he reported for duty on June 30, 1991 at about 7:00
o'clock in the morning, he was met by Mendez who told him about the
killing of a homeowner and her family. When he asked Mendez if he and
White, Jr. noticed anything unusual during their tour of duty the
previous night, Mendez said everything was alright except for Mike and
his friends who had gone in and out of the subdivision ("
labas-masok")
until the wee hours in the morning of June 30, 1991. White, Jr. also
reported to him that on the night of June 29, 1991, while doing his
roving duty around the subdivision, he noticed vehicles parked along
Vinzons St. near the house of Mr. Almogino where there seemed to be a
drinking party, and that Mike was "
labas-masok" through the
subdivision gate. He confirmed it was indeed their policy that if one
(1) is a son/daughter of a homeowner, or accompanied by a homeowner or
any relative of homeowner, he/she will no longer be stopped or queried
by the guards. In particular, he knows Mike and had seen him visit the
house of Lilet Sy, another homeowner. He often goes to Lilet Sy's house
because of the various complaints of homeowners against her like the
presence of too many people at her house until midnight and the vehicles
of her visitors running over her neighbors' plants. This Lilet Sy is
also a suspected drug pusher within the subdivision.
[33]Cabanacan
further testified that around the last week of May or first week of
June 1991, he came to know Hubert Webb because he had stopped his car at
the subdivision gate as it had no local sticker of Pitong Daan
Subdivision. It was around 7:00 o'clock in the evening when Webb
arrived. He greeted Webb and asked about his destination. Webb replied
he was going to see Lilet Sy. When he asked Webb to leave an
identification card, Webb pointed to his car sticker saying he is also a
BF Homes resident. He explained to Webb that the sticker on his car
was for United BF Homes and not the local sticker of Pitong Daan
Subdivision. Webb then said: "
Taga-diyan lang ako sa Phase III...saka anak ako ni Congressman Webb."
He insisted on seeing Webb's ID card and grudgingly Webb obliged and
pulled out his wallet. Webb gave him a laminated ID card with Webb's
picture and with the name "Hubert Webb" written on it. After seeing the
ID card, he returned the same to Webb and allowed him to enter the
subdivision. However, he did not anymore record this incident in their
logbook because anyway Webb is the son of the Parañaque Congressman, a
well-known personality.
[34]In
the morning of June 30, 1991, Cabanacan said he also went to the
Vizconde house upon being told by Mendez and White, Jr. of the
killings. By afternoon of the same day, he came to meet Biong who was
conducting the investigation. Based on the information given by Mendez
and White, Jr., he prepared a written report on the incident which he
submitted to Nestor Potenciano, Jr. After the incident, Biong
frequented their place to investigate and asserting he had no female
companion while conducting his investigation at the Vizconde house on
June 30, 1991. Aside from taking their logbook, Biong also took his two
(2) guards (Mendez and White, Jr.) to the police headquarters on June
30, 1991 at around 7:00 p.m. The said guards also related to him what
Biong did to them. They said Biong punched them and forced them to admit
having participated in the Vizconde killings.
[35]Mila Solomon Gaviola, a laundrywoman who worked at the Webb residence located at Aguirre Avenue, BF Homes, Parañaque from January to July 1991
[36]
testified that on June 30, 1991 at around 4:00 in the morning, she went
to the room of Hubert to get his and his brothers' (Jason and
Michael's) dirty clothes, using the small "secret door" at the second
floor near the servants' quarters. She noticed that Michael and Jason
were still asleep while Hubert was sitting on the bed wearing only his
pants. When she finished collecting dirty clothes including those of
Senator Webb, she brought them down to the laundry area. She ate
breakfast and rested for a while. Afterwards, she started washing first
Senator Webb's clothes and then those of the sons. She washed Hubert's
white shirt with round neck and found it had fresh blood stains at the
stomach area and also splattered blood ("
tilamsik lang") on the
chest. She had difficulty removing the blood stains and had to use
Chlorox. After she finished washing the clothes, she hanged them to dry
on the second floor. Returning to the servants' quarters, she peeped
into Hubert's room through the "secret door." She saw Hubert pacing the
floor ("
di mapakali"); this was about 9:00 a.m. already. She
saw Hubert again around 1:00 o'clock in the afternoon as he left the
house passing through the "secret door"; he was clad in t-shirt and
shorts. Hubert was back at the house by 4:00 o'clock in the afternoon.
She never saw him again until she left in July 1991.
[37]Gaviola
further testified that on June 30, 1991 at around 7:00 o'clock in the
morning, she saw Senator Webb at the sala reading a newspaper.
[38]Lolita Carrera Vda. de Birrer,
a widow and resident of United Parañaque Subdivision 5, testified that
on June 29, 1991 at around 6:00 p.m., Biong who was then her boyfriend,
asked her to come to the Parañaque police station to play "mahjong" at
Aling Glo's canteen located at the back of their office. They started
playing at 6:30 in the evening. Between 1:00 and 2:00 in the morning of
June 30, 1991, the radio operator at the police station went down to
the canteen telling Biong he has a call. She took Biong's place at the
game while Biong went to the headquarters. After a while, she followed
Biong to ask if he was joining the next bet. Biong was on the telephone
talking with someone and visibly irked. She heard Biong's words: "
Ano?... Saan?... Mahirap yan ah! O sige, dadating ako... Ano?... Saan?... Dilaw na taxi?"
Biong then told her he was leaving and shortly thereafter a taxicab
arrived with a man seated at the back seat. Biong bade her good-bye
saying he was going to BF Homes. She continued playing "mahjong" until
morning. At around 7:00 a.m., Biong came back and went straight to the
washing area of the canteen. She followed him and saw him cleaning
blood stains on his fingernails. After wiping his face and hands with a
handkerchief, he threw it away and when she asked why, Biong said it
smelled stinky. Biong was in bad mood ("
aburido") and complained, "
Putang inang mga batang `yon, pinahirapan ako nang husto".
Afterwards, Biong took out a knife with aluminum cover from his drawer
and put it in his steel cabinet. She invited him for lunch but another
policeman, Galvan, came and told Biong to proceed to BF Homes and
investigate the three (3) dead persons there. Biong answered, "
Oo, susunod na ako" and
then proceeded to Capt. Bartolome's office. With Capt. Bartolome's
permission, she joined them in going to the Vizconde residence.
[39]Upon
arriving at the Vizconde house, Biong asked that the victims' relatives
and the homeowners' association President be summoned. A certain Mr.
Lopez and Ms. Moreno arrived and also a security guard named White, Jr.
who pointed to the location of the victims' bodies. They entered the
master's bedroom and she saw the mother and a small girl on top of the
bed, and a young woman sprawled on the floor. After inspecting the
bodies, Biong went to the toilet and turned on the faucet; the running
water washed out the blood on the flooring of the toilet. Biong searched
the drawers using his ballpen. She saw him took a round pendant watch
and pocketed it. They went out of the room and on the top of the dining
table they saw a shoulder bag and scattered next to it were various
items such as Carmela's ATM card, her driver's license and calling
cards. Biong proceeded to the main door and removed its chain lock.
When they came out towards the garage area, Biong saw a stone by the
window. He then asked Capt. Bartolome to go inside the room of the two
(2) maids to see for himself if indeed the noise of the breaking glass
could not be heard. When Capt. Bartolome was already inside the middle
room, Biong shattered the remaining glass of the main door with the butt
of his gun. When Biong asked if he could hear it, Capt. Bartolome
answered in the affirmative. Biong next inspected the garage where he
saw the footmarks on the car's hood; Biong also found fingerprints on
the electric bulb. She was just beside Biong at the time. They
followed Biong towards the back of the house but upon seeing another
shoe print on the ground just outside the master's bedroom, he directed
them not to proceed any further. They left the Vizconde house at around
10:00 a.m. and proceeded to the Parañaque Municipal Building.
[40]Birrer
further testified that on July 1, 1991 at 10:00 o'clock in the morning,
Biong arrived at her house bringing along with him the two (2) maids of
the Vizcondes. He asked her to cook something for the maids to eat.
Biong also instructed her to interview the maids on what they know about
the killings. She did as told but the maids said they do not know
anything as they were asleep. After they had lunch, Biong told her to
let the maids rest. While she and the maids were resting at the sala,
Biong requested to use her bathroom. Before taking a bath, Biong took
out the contents of his pockets which he put on the dining table. She
saw Carmela's ATM card and driver's license, bracelet, earrings and the
round pendant watch Biong had taken from a jewelry box while they were
inside the Vizconde house. When Biong left her house, he brought all
said items with him.
[41]On
July 2, 1991 at around 6:00 p.m., Birrer was at the Parañaque Municipal
Building inside Biong's office. She saw Biong open his steel cabinet
and took out a brown leather jacket which she thought was imported.
When she asked him where it came from, Biong initially just said it was
given as a gift but when she further queried, he answered: "
Natatandaan mo ba `yong nirespondehan ko noong gabi sa BF Homes? Doon galing `yon."
She asked Biong whether those were the youths he had mentioned earlier
and he said yes. As to the jewelries taken by Biong from the Vizconde
house, she was with Biong when the latter pawned them at a pawnshop near
Chow-Chow; Biong got P20,000.00 for the pawned items.
[42]Birrer
further testified that two (2) weeks after they went to the Vizconde
residence to investigate, Biong on two (2) occasions brought her along
to a certain house. It was only Biong who went inside the said house as
she waited in a taxicab. In both instances, Biong came out of the house
with an envelope containing an undisclosed amount of money. She
remembered this because when she was already staying in Pangasinan on
December 7, 1995, she saw flashed on ABS-CBN's TV Patrol News 7:00 p.m.
newscast on television, a video footage of the house of Senator Webb.
She was certain it was that house where Biong went and came out carrying
cash in an envelope.
[43]Lauro G. Vizconde,
husband of Estrellita and father of Carmela and Jennifer, testified on
the personal circumstances of the victims. At the time of their deaths,
Estrellita was engaged in business (at one
[1]
time or another she was a garment manufacturer, taxi operator, canteen
owner and local employment recruiter), Carmela was a graduating B.S.
Psychology student at the University of Santo Tomas, while Jennifer was
a Grade I pupil at Bloomfield Academy at BF Resort, Las Piñas, Metro
Manila. He left the Philippines in November 1989 to work in the United
States of America. He had not since returned to the country -- until
this unfortunate tragedy befell his family -- but communicated with his
wife through telephone once or twice a month.
[44]Lauro
G. Vizconde further testified that his daughter, when she was still
alive, was so close to him that she confides her daily activities,
dreams, ambitions and plans in life. She intended to pursue further
masteral and doctoral degrees in business psychology in the U.S.A. In
fact, that was the reason he transferred from one (1) state to another
looking for a school where Carmela could enroll. However, he had to come
home in July 1991 and bury his wife and daughters whose violent deaths
he was informed of only upon arriving in the country and when he saw
their bodies with stab wounds at the funeral parlor just before burial.
He spent burial expenses in the amount of P289,000.00, plus P103,000.00
incidental expenses, P300,000.00 paid for memorial lots and around
P100,000.00 for the construction of the mausoleum - with a grand total
of P793,950.00. He likewise incurred litigation expenses in the amount
of P97,404.50.
[45]In
one (1) of their telephone conversations when he was still in the
U.S.A., Lauro Vizconde recounted that Carmela mentioned to him that she
had turned down a suitor whom she called "
Bagyo," who is a son of
politician in Parañaque and comes from an affluent family. He also
expressed his mental anguish, wounded feelings, emotional suffering due
to the untimely demise of his family. It actually cost him his life,
his heart bled all the time and only time can tell when he can fully
cope with the situation. He is presently totally displaced and jobless;
he misses his family and he now lives an abnormal life with no
inspiration and no more challenge to work for. When asked how much
compensation he will ask for moral damages, he answered saying he leaves
the matter to the sound discretion of the court as in truth, no amount
can truly compensate him for the loss of his loved ones. He sought
justice for the death of his family and hoped that the culprits, whoever
they were, will be punished so that the souls of his departed loved
ones may rest in peace.
[46] Defense EvidenceThe
accused chiefly assailed the credibility of prosecution star witness
Alfaro, in particular her execution of two (2) allegedly inconsistent
affidavits (one on April 28, 1995 and another on May 22, 1995) and
raised
alibi and denial as defenses to the charge of rape with homicide attended by conspiracy. During the trial, no less than 95 witnesses
[47] were presented, and voluminous documentary exhibits were submitted.
The testimonies of the principal witnesses for the defense are summarized as follows:
Hubert Jeffrey P. Webb testified
that at the time of the killings between June 29 and 30, 1991, he was
still in Anaheim Hills, California, U.S.A., having departed from the
Philippines on March 9, 1991 on board a United Airlines flight bound for
San Francisco. He was accompanied by Gloria Webb, whose husband
Richard Webb is the eldest brother of his father Senator Freddie Webb.
It was the first time he traveled to the US and he returned to the
Philippines only on October 25, 1992. On the eve of his departure, he,
Rael, Tina and his then girlfriend Milagros Castillo went out and had
dinner at Bunchchums. Later that night, they went to Faces Disco at
Makati Avenue where his friends Paulo Santos and Jay Ortega followed.
They went home at 3:00 o'clock in the morning already. After driving
around in the city and bringing Milagros home, he arrived at his house
at around 5:00 a.m. His parents were already preparing to leave and so
they headed to the airport.
[48]
Webb's friend Rafael Jose, Paulo Santos, Senator Webb's security staff
Miguel Muñoz, Webbs' secretary Cristina Magpusao and house girl Victoria
Ventoso corroborated Webb's testimony that he departed from the
Philippines on March 9, 1991.
[49]Webb
further testified that he stayed at the house of her Auntie Gloria and
Uncle Dinky at San Francisco until late April to May 1991. Upon the
invitation of her aunt Susan Brottman, sister of his mother, he rode a
train and went to Anaheim where he stayed until mid-July 1991.
Thereafter, he rented a nearby place but did not complete the one (1)
month pre-paid lease period as he proceeded to Longwood, Florida. He
stayed at the residence of his Uncle Jack and Sonia Rodriguez for almost
a year (August 1991-August 1992). He went back to Anaheim and stayed
at the house of his godmother and sister of his mother, Imelda Pagaspas,
until October 1992. He met his relatives and other personalities while
in the US; visited Lake Tahoe with the Wheelock family; toured
Disneyland where Luis Wheelock filmed them and attended a concert with
Christopher Esguerra who also took him out to the malls.
[50]Webb
further testified that in the later part of June 1991, his parents
joined him in the US. He applied for and was issued a driver's license
on June 14, 1991. He also worked at the pest control company of his
cousin-in-law Alex del Toro. Aside from his passport and airline ticket
for return flight to the Philippines, Webb presented before the court
the logbook of jobs/tasks kept by del Toro, in which he pointed to the
entries therein which were actually performed by him; and also his
purported pay check ($150 "pay to Cash"), ID and other employment
papers. He also identified some handwritten letters he mailed while he
was in the US and sent to his friend Jennifer Cabrera in the
Philippines; photographs and video tape clips taken during his cousin
Marie Manlapit's wedding to Alex del Toro which wedding he attended in
the US together with his mother; and receipt issued for the mountain
bicycle he bought on June 30, 1991 from the Orange Cycle store in
Anaheim.
[51]Webb
denied having met Carmela Vizconde and neither does he know Jessica
Alfaro. He had been jailed since August 9, 1995. When asked about his
co-accused, Webb said the only ones he had met before June 29, 1991 were
Fernandez and Rodriguez. He used to play basketball with Fernandez at
BF Homes Phase III, during which he also met Rodriguez. While he
admitted having gone out on a group with Fernandez to the houses of
their basketball buddies, he denied having gone out with Rodriguez at
any time.
[52] He also denied knowing Biong who is neither a driver nor security aide of his father.
[53]Gloria Webb
testified that on March 9, 1991, she traveled with Webb on a United
Airlines flight to San Francisco. Webb stayed at her residence at 639
Gellert Boulevard, Daly City, California until May 1991 when he left to
be with his mother's sister and relatives in Anaheim. Webb and her
grandson attended a "concierto" in the evenings and he also joined and
helped her son-in-law with his business. Webb went with them to church,
to the malls and in shopping. In April 1991, Webb went on a trip to
Lake Tahoe with Mr. Wheelock and family.
[54]Dorothy Wheelock
testified that she became a US citizen in 1974 and has been residing at
877 Las Lomas Drive, Milpitas, California. Webb's mother is her
childhood friend and schoolmate. When she heard that Webb was in the US
looking for a job, she invited him, and her husband Louis Wheelock
picked him up at Daly City in April 1991. To reciprocate the Webbs'
hospitality while they visited the Philippines in 1990, she and her
family took Webb to a trip to Lake Tahoe in Nevada during which they
even took a video tape. Senator Freddie and Mrs. Webb also visited and
stayed with them for four (4) days in July 1991. They took them to a
trip to Yosemite Park, also with video footages taken by her husband.
[55]Steven Keeler
testified that he had been an American citizen since 1982 and resident
of 4002 River Street, Newport Beach, California. He met Webb at a
dinner in the house of Webb's aunt Susan Brottman in Anaheim Hills
around May or June 1991. Brottman's son, Rey Manlapit, was his good
friend. They played basketball with Webb, went to bars, shopped and
watched TV. He also knew that Webb bought a car and worked for Alex del
Toro for Environment First Termite Control. He believed that Webb left
for Florida towards the end of summer (July 1991). He could not recall
any specific dates he was with Webb.
[56]Honesto Aragon
testified that he went to the US in 1967 and became a US citizen in
1989. On June 28, 1991, he met then Congressman Freddie Webb at the
house of the latter's sister-in-law, Susan, at Anaheim. Congressman Webb
introduced to him his son Hubert Webb. He, Congressman Webb and Hubert
went to some stores to go shopping for a bicycle for Hubert. But they
only bought bike accessories. He invited them to snack before he
brought them to his own house where he introduced to them his son
Andrew. The following day, June 29, 1991, they went to Riverside,
California to shop for a car for Hubert; though they found a Toyota MR2,
they did not buy it because it has questionable ownership. Early
morning the next day, he picked up Congressman Webb and they played
tennis from 7:00 to 10:00 a.m. He and Congressman Webb were close
friends, as both of them were members of a basketball team in Letran.
The first time he saw Hubert was when he was still a small kid and the
other time on June 28, 1991 at the Brottman's residence in Anaheim.
[57]Senator Freddie Webb
testified that his son Hubert left for the US on March 9, 1991, the
first time he had gone out of the country. Hubert stayed with his
sister-in-law Gloria. They wanted to show Hubert the value of
independence, hard work and perseverance, and for him to learn how to
get along and live with other people. Hubert resigned from his job at
Saztec before departing for the US. He and his wife also went to the US
on June 28, 1991. They stayed at the house of his sister-in-law, Susan
Brottman at Anaheim. From San Francisco, they went to Orlando, Florida,
then back to Los Angeles and returned to the Philippines on July 21,
1991. Among the places he visited while in the US were the Yosemite
Park, Nordstrom, Disneyland, Disneyworld. Upon arriving at Anaheim, he
saw his son Hubert and also informed Honesto Aragon regarding their plan
to procure a bicycle for Hubert. Hubert was with them again on June
29, 1991 at dinner in the residence of his sister-in-law. On July 1,
1991, they went shopping for some clothes. Together with Aragon, he and
Hubert looked for a Toyota MR2 car and paid for it with a check (the
car was priced at $6,000-$7,000).
[58]Senator Webb further testified that he knows Mila Gaviola who used to be their "
labandera."
She left their house but returned to work for them again about a couple
of months after the Mt. Pinatubo eruption. As to Alfaro's statements
implicating his son Hubert in the Vizconde killings, he said the
statements were not accurate because it was physically impossible for
Hubert to have participated in the crime as he was abroad at the time.
[59]Louis Whitaker
testified that he left the Philippines and resided in the US since
September 1964. He met Jack Rodriguez when the latter fetched him and
his wife Sonia at the Los Angeles International Airport on June 28, 1991
upon their arrival from the Philippines. They proceeded to the house of
a mutual friend, Salvador Vaca, at Moresbay Street in Lake Forest. They
went to see Congressman Webb at a house in Anaheim. That was the first
time he met Congressman Webb, Mrs. Webb, the sister-in-law and a Mr.
Aragon. On June 29, 1991, he and Rodriguez invited Congressman Webb to
see Mr. Vaca perform at La Calesa Restaurant in the City of Testin.
When they fetched Congressman Webb at his sister-in-law's house, he met
again Mrs. Webb, and also Hubert. He saw Hubert for the second time at
Orlando, Florida when he went to the house of Jack Rodriguez there; this
was about July or August 1991.
[60]Sonia H. Rodriguez testified
that she was appointed UNESCO Commissioner by then President Fidel V.
Ramos. She has known accused Webb since he was a child. On June 28,
1991, she and her husband boarded a plane for Los Angeles, California.
They were fetched at the LA airport by old-time friend Salvador Vaca and
proceeded to the latter's house in Orange County, California. They had
dinner that evening with spouses Freddie and Elizabeth Webb at the house
of Susan Brottman. The next day, in the afternoon of June 29, 1991,
her husband and Salvador Vaca picked up Senator Webb from the house of
Susan Brottman and then came back to fetch her and Mrs. Vaca to go to La
Calesa, a restaurant owned by Mario Benitez, also a Filipino.
However, she and Mrs. Vaca decided to stay home. On June 30, 1991 at
around 8:00 p.m., she and her husband went to the house of Susan
Brottman, together with Salvador and Mrs. Vaca and Louis Whitaker. She
recalled that Hubert was there at the time. She saw Hubert again on
July 4, 1991 when they went on a lakeside picnic with the Webb family,
Brottmans and Vacas. After watching the fireworks, they went to Sizzler
Restaurant. The next day, she and her husband stayed overnight at San
Francisco where they also met Senator and Mrs. Webb. On August August
4, 1991, Hubert arrived in her home in Florida with her son Tony,
daughter-in-law Ana, and stayed with them for almost one (1) year. The
last time she saw Hubert was when he left Orlando, Florida on January
27, 1992.
[61]Webb
presented other witnesses to buttress his defense of alibi: Victor Yap
(who took video shots of Congressman Webb during a boat ride in
Disneyland);
[62] Armando Rodriguez (who testified seeing Hubert in Orlando either August or September 1991);
[63]
performing artist Gary Valenciano (who testified meeting Hubert at a
dinner at the Rodriguez residence in Orlando on November 24, 1991, Jack
Rodriguez being the father of his high school classmate Antonio
Rodriguez;
[64] and Christopher
Paul Legaspi Esguerra (grandson of Gloria Webb who went with Hubert
Webb to watch the concert of the Deelite Band in San Francisco in the
later part of April 1991 and saw Hubert Webb for the last time in May
1991).
[65]Then a practicing lawyer,
Atty. Antonio T. Carpio
(now an Associate Justice of this Court) testified that on June 29,
1991 between 10:00 and 11:00 o'clock in the morning, he had a telephone
conversation with former Congressman Webb who said he was calling from
Anaheim, U.S.A., where he and his wife went to look for a job for their
son Hubert. They also talked about bills to be drafted as his law office
had been engaged by Congressman Webb for bill drafting services as well
as preparation of his speeches and statements. When asked if he had
personal knowledge that Congressman Webb was really in the US at that
time, he replied that since Webb had told him he was leaving for the US,
he just presumed it was so when Webb said he was then at Anaheim.
Neither did he have personal knowledge that Hubert Webb was in the US at
the time of his conversation with Congressman Webb.
[66]Webb submitted the following documentary evidence in connection with his sojourn in the US:
1) Video Tape recording of Disneyland trip on July 3, 1991;[67]
2) Official Receipt issued by Orange Cycle Center dated June 30, 1991,[68] photographs of the bicycle purchased by Webb from said store;[69]
3) Car plate with the name "Lew Webb";[70]
4) Passport with Philippine Immigration arrival stamp;[71]
5) Photographs of Webb with Rodriguez family;[72]
6) California Driver's License of Webb,[73] Original License Card of Webb issued on June 14, 1991;[74]
7) Statement of Account issued to Environment First Termite Control showing Check No. 0180;[75] Bank of America Certification on Check Nos. 0122 and 0180;[76]
8) Public Records of California Department of Motor Vehicle on sale to Webb of Toyota MR2 car;[77] Traffic citations issued to Webb;[78] Import documents of said car into the Philippines;[79]
9)
Certification issued by the US Immigration and Naturalization Service
and correspondence between US and Philippine Government;[80]
computer-generated print-out of the US-INS indicating date of Webb's
entry in USA as March 9, 1991 and his date of departure as October 26,
1992;[81] US-INS Certification
dated August 31, 1995 authenticated by the Philippine Department of
Foreign Affairs, correcting the earlier August 10, 1995 Certification;[82]
10) Certification issued by Agnes Tabuena;[83] Passenger Manifest of PAL Flight No. 103;[84] PAL ticket issued to Webb,[85] Arrival in Manila Certification issued by the Philippine Immigration,[86]
Diplomatic Note of the US Department of State with enclosed letter from
Acting Director Debora A. Farmer of the Records Operations, Office of
Records of the US-INS stating that the Certification dated August 31,
1995 is a true and accurate statement;[87] and Certificate of Authentication of Philippine Consul Herrera-Lim.[88]
Accused
Antonio Lejano and
Michael Gatchalian likewise raised the defense of
alibi claiming
that they spent the night of June 29, 1991 until early morning of June
30, 1991 watching video tapes at the house of Carlos Syap at Ayala
Alabang Village.
Lejano further testified that with the exception
of Miguel "Ging" Rodriguez and Michael "Mike" Gatchalian who are his
former schoolmates, he does not know any of his co-accused. They left
the house of Syap brothers early morning of June 30, 1991; it was Cas
Syap who brought him and Mike home. On July 5, 1991, he and Cas Syap
went to the police station where Mike, who was picked up as a suspect by
the police on July 4, was detained. When they met Biong there, they
told him they are willing to vouch for Mike's innocence and even
volunteered to give statements. Biong told them to return the following
day. However, when he returned in the morning of July 6, 1991, Biong
wanted his fingerprints taken right away but he told Biong he needed to
consult someone first. He eventually submitted himself for
fingerprinting after his name came out in the media. Lejano pointed out
that Alfaro failed to identify him even as she passed by him three (3)
times, and was able to do so only when she was coached by the
prosecution camp.
[89]On the part of Michael Gatchalian, he presented nine (9) witnesses:
Atty. Porfirio "Perry" Pimentel,
RPN 9 broadcast executive who testified that he personally took video
footages of Mon Tulfo's interviews with some persons in America
(including Honesto Aragon and the bicycle shop owner) who attested that
Hubert Webb was there at the time of the Vizconde killings, but which
segment was edited out in the program he produced (Action 9);
[90] Mark Anthony So,
a former NBI intelligence agent who was tasked to confirm photos of
Hubert Webb (his classmate at DLSU St. Benilde) to familiarize Alfaro
with his facial features;
[91] Matthew John Almogino,
a childhood friend and neighbor of Gatchalian, who testified that he
was among those who went inside the Vizconde house in the morning of
June 30, 1991 and Biong even asked him to take pictures; thereupon at
around 9:30 a.m., he saw Gatchalian in front of the Vizconde residence
telling him that he just woke up and exchanged pleasantries with him;
and that as far as he knows, Webb, Fernandez, Lejano and Gatchalian are
not "
magbabarkada";
[92] Atty. Leny Mauricio and
Ana Marie Pamintuan
of The Philippine Star wherein a news article was published stating
that Michael Gatchalian had rejected government's offer for him to turn
state witness in the Vizconde case;
[93] Atty. Camilo Murillo who
accompanied Gatchalian on July 19, 1991 when he gave his statement to
the NBI, testified that Atty. Pete Rivera relayed to Gatchalian the
request of then NBI Director Honesto Aragon for him to turn state
witness and which offer was refused by Gatchalian and his father;
[94] and
Atty. Manuel Sunga who
accompanied Gatchalian to the Department of Justice (DOJ) when he
submitted his counter-affidavit (where there were already media people),
testified that they were invited to the conference room where State
Prosecutor Zuño in the presence of then Secretary Guingona made the
offer for Gatchalian to turn state witness but it was rejected.
[95]Atty. Francisco C. Gatchalian
confirmed that the NBI and later the DOJ made offers for his son to
turn state witness in this case but they refused for the reason that his
son was innocent of the crime charged. Michael had told him that on the
night of June 29, 1991 until early morning of June 30, 1991, Michael
was with his friends at Ayala Alabang Village in Muntinlupa at the
residence of the Syaps. Gatchalian narrated that when he woke up to jog
in the morning of June 30, 1991 around 7:00 to 7:30, he passed by the
Vizconde house and saw people milling in front. At about 8:30 a.m., he
saw the crowd getting bigger and so he instructed Michael who had
wakened up, to find out and check what happened to their neighbor.
Michael rushed out towards the Vizconde residence and when he came back
about 10:00 o'clock that same morning, he reported that the house was
robbed and people were killed inside the house. Both of them stayed in
their house that day. He denied Alfaro's claim that she was their
distant relative.
[96]Accused
Miguel Rodriguez
maintained he was at home when the killings took place. He presented
as witness his first cousin Mark Josef Andres Rualo who testified that
at around 1:00 in the morning of June 30, 1991, he called up Rodriguez
asking why he has not yet proceeded to the birthday party of Rualo at
their house. Rodriguez replied that he could not make it because he was
not fetched by his brother Art (who was the one with a car). So he
handed the telephone to Art (who had arrived at the party around 9:30 to
10:00 p.m.) for them to talk. From Rodriguez's residence at Pilar
Village, it will take about fifteen (15) to twenty (20) minutes by car.
It was a big party attended by some eighty (80) guests and which ended
by 3:30 to 4:00 a.m. But it was only the first time he had invited
Rodriguez to his birthday party. He knows Lejano, Rodriguez's close
friend and classmate, because Rodriguez used to bring him along when
Rodriguez comes to his house.
[97]The
other witnesses presented by Rodriguez, Col. Charles Calima, Jr. and
Michael Rodriguez, testified on the alleged incident of "mistaken
identity" wherein Alfaro supposedly pointed to one (1) "Michael
Rodriguez," a drug dependent who was pulled out by Col. Calima from the
Bicutan Rehabilitation Center on the basis of the description given by
NBI agents. They testified that when Alfaro confronted this "Michael
Rodriguez," she became very emotional and immediately slapped and kicked
him telling him, "How can I forget your face. We just saw each other
in a disco one month ago and you told me then that you will kill me."
Contrary to the physical description given by the NBI, the accused
Miguel Rodriguez he saw inside the court room had no tattoo on his arm
and definitely not the same "Michael Rodriguez" whom Alfaro slapped and
kicked at the NBI premises. Michael Rodriguez testified that he was
blindfolded and brought to the comfort room by NBI agents and forced to
admit that he was Miguel Rodriguez; he identified Alfaro and Atty.
Figueras from a collage of photographs shown to him in court.
[98]Accused
Gerardo Biong testified
that the last time he handled this case was when General Filart
announced the case as solved with the presentation of suspects sometime
in October 1991. However, he was subpoenaed by the NBI for the taking
of his statement because Lauro Vizconde complained that he had stolen
jewelries at the Vizconde house. He had sought the examination of
latent fingerprints lifted from the crime scene but the suspects turned
out negative when tested. He denied the accusation regarding the
destruction of evidence as well as missing items during his
investigation at the Vizconde residence. The bloodied bed, mats, pillows
and bed sheets were burned by people at the funeral parlor as ordered
by Mr. Gatmaitan. Among the suspects he had then were Michael
Gatchalian, Tony Boy Lejano and Cas Syap. As to the testimony of Birrer
that they played "mahjong" on the night of June 29, 1991, he said it
was not true because the place was closed on Saturdays and Sundays.
After a surveillance on Birrer, he discovered she had in her possession
Carmela's driver's license and was driving a car already. He denied
Birrer's account that he went to a place after receiving a telephone
call at 2:30 in the morning of June 30, 1991. As to Alfaro, he met her
for the first time at the NBI on June 23, 1995. His brown jacket was
given to him long ago by a couple whose dispute he was able to settle.
He only met Webb and Estrada at the NBI. Biong denied the accusations of
Birrer, saying that she was angry at him because they separated and he
had hit her after he heard about her infidelity. Neither has he seen
Alfaro before the filing of this case. He was administratively charged
before the Philippine National Police (PNP) for Grave Misconduct due to
non-preservation of evidence. He was offered by the NBI to turn state
witness but he declined as he found it difficult to involve his
co-accused whom he does not really know.
[99]Biong
admitted that Birrer went along with him, Galvan and Capt. Bartolome to
the Vizconde residence in the morning of June 30, 1991. Upon arriving
at the Vizconde house, he looked for the victims' relatives and the
homeowners' association president; Atty. Lopez and Mrs. Mia came. In
going inside the house, they passed through the kitchen door which was
open already. On top of the kitchen table, there was a lady's bag with
things scattered; he later inspected them but did not think of examining
the bag or taking note of the calling cards and other items for
possible relevance to the investigation. Upon entering the master's
bedroom, he saw the bloodied bodies. Mrs. Vizconde's hands were hogtied
from behind and her mouth gagged while Jennifer's body was also
bloodied. Carmela who was lying on a floor carpet was likewise gagged,
her hands hogtied from behind and her legs spread out, her clothes
raised up and a pillow case was placed on top of her private part. He
had the bodies photographed and prepared a spot report.
[100]Biong
also admitted that before the pictures were taken, he removed with his
bare hands the object, which was like a stocking cloth, that was wrapped
around Carmela's mouth and neck. As to the main door glass, it was the
upper part which he broke. There was a red jewelry box they saw where a
pearl necklace inside could be seen; he remembered he had it
photographed but he had not seen those pictures. They left the Vizconde
house and brought the cadavers to the funeral parlor. He did not take
steps to preserve the bloodied carpet, bed sheets and blankets because
they have been previously told by NBI that no evidence can be found on
such items. As for the footprint and shoe print found on the hood of
the car and at the back of the house, he also could not recall if he had
those photographed. It was only the following day that he brought an
employee of the Parañaque police to lift fingerprints from the crime
scene; he was the one (1) giving instructions at the time. However, no
latent fingerprints had been taken; despite attempts, no clear
fingerprint had been lifted and he did not any more ask why.
[101]Biong
further admitted that he was so angry with the Vizconde housemaids as
he did not believe they did not hear anything despite the loud sound of
the breaking of the main door glass. He also admitted mauling Normal E.
White, Jr. because he thought he was withholding information during the
investigation. Edgar Mendez did not tell him about the entry of a
three (3)-vehicle convoy into the subdivision on the night of June 29,
1991. As for Michael Gatchalian, he knows him because on July 3, 1991 at
4:30 a.m., they caught him at Vinzons St. at the entrance of Pitong
Daan Subdivision for possession of marijuana. However, he does not know
any more what happened to that case he filed against Gatchalian as he
was already dismissed from the service.
[102] He also admitted having mauled Gatchalian while interrogating him for his participation in the Vizconde killings.
[103]Ruling of the Trial Court
On January 4, 2000, the trial court rendered its Decision
[104] finding all the accused guilty as charged, the dispositive portion of which reads:
WHEREFORE,
this Court hereby finds all the principal accused GUILTY BEYOND
REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE AND HEREBY SENTENCES
EACH ONE OF THEM TO SUFFER THE PENALTY OF RECLUSION PERPETUA.
This Court likewise finds the accused Gerardo Biong GUILTY BEYOND
REASONABLE DOUBT AS AN ACCESSORY AFTER THE FACT, AND HEREBY SENTENCES
HIM TO SUFFER AN IMPRISONMENT OF ELEVEN (11) YEARS, FOUR (4) MONTHS AND ONE (1) DAY TO TWELVE (12) YEARS. In
addition, the Court hereby orders all the accused to jointly and
severally pay the victims' surviving heir, Mr. Lauro Vizconde, the
following sums by way of civil indemnity:
- The amount of P150,000.00 for wrongful death of the victims;
- The amount of P762,450.00 representing actual damages sustained by Mr. Lauro Vizconde;
- The amount of P2,000,000.00 as moral damages sustained by Mr. Lauro Vizconde;
- The amount of P97,404.55 as attorney's fees;
Let
an alias warrant of arrest be issued against the accused Artemio "Dong"
Ventura and Joey Filart for their eventual apprehension so that they
can immediately be brought to trial.
SO ORDERED.[105]
The
trial court found Alfaro as a credible and truthful witness,
considering the vast details she disclosed relative to the incident she
had witnessed inside the Vizconde house. The trial court noted that
Alfaro testified in a categorical, straightforward, spontaneous and
frank manner, and has remained consistent in her narration of the events
despite a lengthy and grueling cross-examination conducted on her by
eight (8) defense lawyers. Neither was her credibility and veracity of
her declarations in court affected by the differences and
inconsistencies between her April 28, 1995 and May 22, 1995 affidavits,
which she had satisfactorily explained during the trial considering the
circumstances that she initially desired to protect her former boyfriend
Estrada and her relative Gatchalian, the absence of a lawyer during the
first taking of her statements by the NBI, her distrust of the first
investigators who took her statements and prepared her April 28, 1995
affidavit, and her uncertainty if she could obtain adequate support and
security for her own life were she to disclose everything she knows
about the Vizconde killings.
On the other hand, the trial court
ruled that principal accused Webb, Lejano, Rodriguez and Gatchalian
failed to establish their defense of
alibi, the accused having
been positively identified by Alfaro as the group who conspired and
assisted one (1) another in plotting and carrying out on the same night
the rape of Carmela, on the occasion of which Carmela's mother and
sister were also stabbed to death. The trial court held that Alfaro
gave a clear, positive and convincing testimony which was sufficiently
corroborated on its material points by the testimonies of other
witnesses and confirmed by the physical evidence on record.
The Court of Appeals Ruling
By Decision of December 15, 2005, the CA affirmed with modification the trial court's decision:
WHEREFORE,
premises considered, the Decision of the Regional Trial Court, Branch
274 of Parañaque City in Criminal Case No. 95-404, finding
accused-appellants Hubert "Jeffrey" Webb y Pagaspas, Antonio "Tony Boy"
Lejano, Michael Gatchalian y Adviento, Hospicio "Pyke" Fernandez, Peter
Estrada, Miguel "Ging" Rodriguez GUILTY BEYOND REASONABLE DOUBT as
principals, and Gerardo Biong as accessory, of the crime of RAPE with
HOMICIDE, is AFFIRMED with MODIFICATION, as indicated:
1).
We AFFIRM the sentence of accused-appellants Webb. Lejano, Gatchalian,
Fernandez, Estrada, and Rodriguez to suffer the penalty of reclusion perpetua and its corresponding accessory penalties under Article 41 of the Revised Penal Code;
2).
We MODIFY the penalty of Gerardo Biong who is an accessory to the
crime. Accused-appellant Biong is sentenced to an indeterminate prison
term of six (6) years of prision correccional, as minimum, to
twelve (12) years of prision mayor, as maximum, and absolute perpetual
disqualification under Article 58 of the Revised Penal Code; and
3).
We MODIFY the civil indemnity. Accused-appellants Webb. Lejano,
Gatchalian, Fernandez, Estrada and Rodriguez are ORDERED to pay jointly
and severally the surviving heir of the victims, Mr. Lauro Vizconde. the
amounts of P200,000.00 as civil indemnity, P762,450.00 as actual
damages, P2,000,000.00 as moral damages and P97,404.55 as attorney's
fees, with the corresponding subsidiary liability against
accused-appellant Biong pursuant to Article 110, paragraph 2 of the
Revised Penal Code.
SO ORDERED.[106]
The
CA upheld the trial court in giving full weight and credence to the
eyewitness testimony of Alfaro which was duly corroborated by other
prosecution witnesses who had not been shown to have ill-motive and
malicious intent in revealing what they know about the Vizconde
killings. It disagreed with the appellants' view that they were victims
of an unjust judgment upon their mere allegations that they were tried
by publicity, and that the trial judge was biased whose discriminatory
and hostile attitude was demonstrated by her rejection of 132 out of 142
exhibits of the defense during the bail hearings and her refusal to
issue subpoenas to prospective defense witnesses such as former
Secretary Teofisto Guingona and Antonio Calvento.
The CA also
fully concurred with the trial court's conclusion that all the principal
accused failed to establish their defense of
alibi after
carefully evaluating the voluminous documentary and testimonial evidence
presented by the defense. On the issue of conspiracy, the CA found that
the prosecution was able to clearly and convincingly establish its
presence in the commission of the crime, notwithstanding that appellants
Rodriguez, Gatchalian, Estrada and Fernandez did not actually rape
Carmela, nor participated in killing her, her mother and sister.
On
motion for reconsideration filed by the appellants, the CA's Special
Division of Five, voting 3-2, affirmed the December 15, 2005 Decision.
[107]
In the Resolution dated January 26, 2007, the majority reiterated that
it has fully explained in its Decision why the US-INS Certifications
submitted by appellant Webb deserve little weight. It stressed that it
is a case of positive identification versus
alibi founded on documentary evidence. On the basis of the rule that
alibi is
accepted only upon the clearest proof that the accused was not and
could not have been at the crime scene when it was committed, the CA in
resolving the appeal considered the weight of documentary evidence in
light of testimonial evidence -- an eyewitness account that the accused
was the principal malefactor. As to the issue of apparent
inconsistencies between the two (2) affidavits executed by Alfaro, the
CA said this is a settled matter, citing the Joint Decision in CA-G.R.
SP No. 42285 and CA-G.R. SP No. 42673 entitled "
Rodriguez v. Tolentino"
and
"
Webb, et al. v. Tolentino, et al.," which had long become final.
Appellants' Arguments
Appellants
Webb and Lejano set forth the following arguments in their Supplemental
Appeal Brief as grounds for the reversal of the CA Decision and their
acquittal in this case:
I
THE
EVIDENCE ESTABLISHING APPELLANT WEBB'S ABSENCE FROM PHILIPPINE
TERRITORY BETWEEN 9 MARCH 1991 AND 27 OCTOBER 1992 ENGENDERS A
REASONABLE DOUBT AND PRECLUDES AN ABIDING CONVICTION, TO A MORAL
CERTAINTY, OF HIS GUILT OF THE CRIME CHARGED. THUS, AS CORRECTLY
APPRECIATED BY JUSTICES TAGLE AND DACUDAO IN THEIR SEPARATE DISSENTING
OPINIONS -
- THE PASSPORT OF APPELLANT WEBB, AS
THE OFFICIAL TRAVEL DOCUMENT ISSUED BY THE PHILIPPINE GOVERNMENT TO HIM,
IS STAMPMARKED AND INITIALED WITH THE DEPARTURE DATE OF 9 MARCH 1991
AND ARRIVAL DATE OF 27 OCTOBER 1992, SHOWING THAT HE WAS NOT IN THE
PHILIPPINES BUT ABROAD AT THE TIME OF THE COMMISSION OF THE CRIME ON 29
JUNE 1991.
- THE CERTIFICATIONS AND COMPUTER PRINTOUT
ISSUED BY THE UNITED STATES INS NON-IMMIGRANT INFORMATION SYSTEM, WHICH
INDICATE EXACTLY THE SAME DEPARTURE AND ARRIVAL DATES OF 9 MARCH 1991
AND 27 OCTOBER 1992, CONFIRM THAT IT WAS PHYSICALLY IMPOSSIBLE FOR
APPELLANT WEBB TO HAVE COMMITTED THE CRIME.
- THE RULING
THAT APPELLANT WEBB WAS "SMUGGLED" INTO AND OUT OF THE PHILIPPINES
WITHIN 9 MARCH 1991 AND 27 OCTOBER 1992, WITH THE US INS CERTIFICATIONS
BEING THE PROBABLE PRODUCT OF "MONEY, POWER, INFLUENCE, OR CONNECTIONS"
IS BASED ON PURE SPECULATION AND BIASED CONJECTURE AND NOT ON A
CONCLUSION THAT ANY COURT OF LAW SHOULD MAKE.
- NO LESS
THAN THE HONORABLE JUSTICE ANTONIO T. CARPIO TESTIFIED IN OPEN COURT
THAT IN THE MORNING OF 29 JUNE 1991, OR BEFORE THE COMMISSION OF THE
CRIME, HE HAD AN OVERSEAS CONVERSATION WITH SEN. FREDDIE N. WEBB ON THE
LATTER'S PRESENCE IN THE UNITED STATES WITH HIS WIFE AND APPELLANT
WEBB.
II
THE DISSENTING
JUSTICES CORRECTLY REJECTED JESSICA ALFARO FOR NOT BEING A CREDIBLE
WITNESS AND FOR GIVING INCONSISTENT AND UNRELIABLE TESTIMONY.
III
THE
COURT OF APPEALS MANIFESTLY ERRED IN DISCARDING EACH AND EVERY PIECE OF
THE ACCUSED'S EVIDENCE AND PRACTICALLY REDUCING THE APPEAL BELOW INTO
AN EXERCISE OF FINDING GROUNDS TO DOUBT, SUSPECT AND ACCORDINGLY REJECT
THE PROOF OFFERED BY THEM IN THEIR DEFENSE INSTEAD OF GIVING DUE WEIGHT
AND CONSIDERATION TO EACH IN ORDER TO THOROUGHLY SATISFY ITSELF OF THE
"MORAL CERTAINTY" REQUIREMENT IN CRIMINAL CASES.
IV
IN
LIGHT OF THE BASIC TENETS UNDERLYING OUR CRIMINAL JUSTICE SYSTEM, WHICH
ESCHEW A FINDING OF GUILT UNLESS ESTABLISHED BEYOND REASONABLE DOUBT
AND ORDAIN THE RESOLUTION OF ALL DOUBTS IN FAVOR OF THE ACCUSED, THE
COURT OF APPEALS MANIFESTLY ERRED IN AFFIRMING THE CONVICTION OF
APPELLANT WEBB WHEN THE DEFENSE OF ALIBI HE ESTABLISHED BY OVERWHELMING
EVIDENCE IS SUFFICIENT TO ENGENDER REASONABLE DOUBT AS TO HIS GUILT OF
THE OFFENSE CHARGED. THE SCALES OUGHT TO HAVE BEEN TILTED IN HIS, AND
NOT THE PROSECUTION'S, FAVOR.[108]
Appellant
Gatchalian reiterates the arguments he had raised in his appeal brief
and motion for reconsideration filed before the CA, as follows:
I
THE
TRIAL COURT GRAVELY ERRED IN GIVING CREDENCE TO THE INCREDIBLE
TESTIMONY OF SUPPOSED EYEWITNESS JESSICA ALFARO AND CORROBORATING
WITNESSES NORMAL WHITE AND JUSTO CABANACAN.
II
THE
TRIAL COURT GRAVELY ERRED IN FINDING THAT THE PROSECUTION HAS PROVED
THE CONSPIRACY BEYOND REASONABLE DOUBT AND IN CONVICTING HEREIN
ACCUSED-APPELLANT BASED ON SUCH CONSPIRACY.
III
THE
PROCEEDING BELOW WAS ATTENDED BY IRREGULARITIES SHOWING PARTIALITY ON
THE PART OF THE TRIAL JUDGE IN VIOLATION OF HEREIN ACCUSED-APPELLANT'S
RIGHT TO DUE PROCESS.
IV
THE TRIAL COURT GRAVELY ERRED IN NOT ACQUITTING HEREIN ACCUSED-APPELLANT.
x x x x
I
BY ALL STANDARDS OF FAIRNESS AND JUSTICE, THE TESTIMONY OF JESSICA ALFARO CANNOT BE JUDICIALLY RECOGNIZED.
II
THE
CRIMINAL CONNECTION OF MICHAEL GATCHALIAN TO THE GRUESOME VIZCONDE
MURDERS HAS NOT EVEN BEEN REMOTELY SHOWN TO SERVE AS A BASIS FOR
CONVICTION.
III
IN THE REQUIRED JUDICIAL
EVALUATION PROCESS, THE ENVIRONMENTAL CIRCUMSTANCES IN THE RECORD OF
THIS CASE POINT UNERRINGLY TO THE INNOCENCE OF MICHAEL GATCHALIAN.
IV
THE RULES ON EVIDENCE ON BURDEN OF PROOF AND OF THE STANDING PRESUMPTIONS IN LAW HAVE BEEN GROSSLY VIOLATED.
V
MICHAEL
GATCHALIAN RESPECTFULLY INVOKES HIS CONSTITUTIONAL RIGHT TO DUE PROCESS
ON THE GROUNDS OF BIAS AND PREJUDICE, AND FOR ALL THAT IT IS WORTH, HIS
CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL AND A SPEEDY DISPOSITION OF HIS
CASE.[109]
Additionally, Gatchalian
assails the denial by the trial court of his motion (and also appellant
Webb's) for DNA testing despite a certification from the NBI that the
specimen semen remained intact, which Justice Tagle in his dissenting
opinion also found as unjust. He further argues that the right to a
speedy trial is violated even if the delay was not caused by the
prosecution but by events that are not within the control of the
prosecution or the courts. Thus, the length of time which took Alfaro
to come forward and testify in this case is most conspicuous. Her delay
of four (4) years in reporting the crime has to be taken against her,
particularly with the story behind it. She volunteered to come forward
only after the arrests of previous accused did not lead anywhere.
Moreover, it is clear that she adopted the version previously advanced
by an "
akyat-bahay" gang, as noted by Justice Dacudao in his
dissenting opinion. Gatchalian thus contends that the delay occurred
even before a preliminary investigation was conducted and cites cases
upholding the right of accused persons to a speedy trial where there was
delay in the preliminary investigation.
[110]Totality of Evidence Established the
Guilt of Appelants Beyond Reasonable Doubt
Appellants
assail the lower courts in giving full faith and credence to the
testimonies of the prosecution witnesses, particularly Jessica Alfaro
despite inconsistencies and contradictions in her two (2) affidavits,
and the alleged "piece by piece discarding" of their voluminous
documentary exhibits and testimonies of no less than ninety-five (95)
witnesses. They contend that the totality of evidence engenders a
reasonable doubt entitling them to acquittal from the grave charge of
rape with homicide.
After a thorough and conscientious review of
the records, I firmly believe that the CA correctly upheld the
conviction of appellants.
Credibility of ProsecutionWitnessesThe
determination of the competence and credibility of a witness rests
primarily with the trial court, because it has the unique position of
observing the witness' deportment on the stand while testifying.
[111]
It is a fundamental rule that findings of the trial courts which are
factual in nature and which involve credibility are accorded respect
when no glaring errors, gross misapprehensions of facts and speculative,
arbitrary and unsupported conclusions can be gathered from such
findings.
[112] When the trial court's findings have been
affirmed by the appellate court, said findings are generally conclusive
and binding upon this Court.
[113]Reexamining the
testimony of Alfaro, who underwent exhaustive and intense
cross-examination by eight (8) defense lawyers, it is to be noted that
she revealed such details and observations which only a person who was
actually with the perpetrators could have known. More importantly, her
testimony was corroborated on its material points by the declarations of
other prosecution witnesses, to wit:
that their convoy of three (3) vehicles repeatedly entered the Pitong
Daan Subdivision on the night of June 29, 1991 was confirmed by the
security guard on duty, Normal White, Jr., who also testified that he
had seen Gatchalian and his group standing at the vicinity of the
Almogino residence located near the end of Vinzons St., which is
consistent with Alfaro's testimony that on their first trip to the
subdivision she parked her car infront of the Vizconde house while
appellants parked their respective cars near the dead end of Vinzons
St.;
[1][2] that Ventura climbed
on the hood of the Nissan Sentra car and loosened the light bulb to
turn it off was confirmed by the testimony of Birrer and appellant Biong
that they found a shoe print on the hood of the car parked inside the
garage of the Vizconde house; even defense witnesses Dennis Almogino
(neighbor of the Vizcondes) and SPO2 Reynaldo Carbonnel declared that
the garage was totally without light;
[3] that a lady's bag was on top of the dining table in the kitchen was likewise confirmed by Birrer and Biong;
[4]
that a loud static sound coming from the TV set inside the master's
bedroom which led Alfaro to the said room, matched with the observations
of the Vizconde housemaids, Birrer and Biong that when they went
inside the Vizconde house in the morning of June 30, 1991, the TV set
inside the master's bedroom was still turned on with a loud sound;
[5]
the positioning of the dead bodies of Carmela, Estrellita and Jennifer
and their physical appearance or condition (hogtied, gagged and
bloodied) was correctly described by Alfaro, consistent with the
declarations of White, Jr., Birrer and Biong who were among those who
first saw the bodies in the morning of June 30, 1991;
[6]
that Carmela was raped by Webb and how the three (3) women were killed
as Alfaro learned from the conversation of the appellants at the BF
Executive Village house, was consistent with the findings of Dr.
Cabanayan who conducted the autopsy and post-mortem examination of the
cadavers in the morning of June 30, 1991 showing that the victims died
of multiple stab wounds, the specimen taken from Carmela's vaginal canal
tested positive for spermatozoa and the approximate time of death based
on the onset of
rigor mortis, which would place it between midnight and 2:00 o'clock in the morning of June 30, 1991;
[7]
that Webb, just before going out of the gate of the Vizconde house,
threw a stone which broke the glass frame of the main door, jibed with
the testimony of Birrer who likewise saw a stone near the broken glass
panel at the living room of the Vizconde house, and Biong himself
testified that he even demonstrated to Capt. Bartolome and the
housemaids the loud sound by again hitting the glass of the main door;
[114] and
[8]
that after Webb made a call on his cellular phone, Biong arrived at
around 2:00 o'clock in the morning of June 30, 1991 at the BF Executive
Village house where she and appellants retreated, was consistent with
the testimony of Birrer that Biong left the "mahjong" session to answer a
telephone call between 1:00 to 2:00 o'clock in the morning of June 30,
1991 and thereafter Birrer asked where he was going, to which Biong
replied "BF" and shortly thereafter a taxicab with a man at the backseat
fetched Biong.
Indeed, Alfaro could not have divulged the
foregoing details of the crime if she did not really join the group of
Webb in going to the Vizconde residence and witness what happened during
the time Webb, Lejano and Ventura were inside the house and when the
group retreated to BF Executive Village. Contrary to appellants'
contention, Alfaro's detailed testimony appears clear and convincing,
thus giving the Court the impression that she was sincere and credible.
She even opened her personal life to public scrutiny by admitting that
she was addicted to
shabu for sometime and that was how she came
to meet Webb's group and got entangled in the plot to gang-rape Carmela.
Her being a former drug user in no way taints her credibility as a
witness. The fact that a witness is a person of unchaste character or
even a drug dependent does not
per se affect her credibility.
[115]Alfaro's
ability to recollect events that occurred four (4) years ago with her
mental condition that night of June 29, 1991 when she admittedly took
shabu
three (3) times and even sniffed cocaine, was likewise questioned by
the appellants. When the question was posed to Alfaro on
cross-examination, she positively stated that while indeed she had taken
shabu at that time, her perception of persons and events around
her was not diminished. Her faculties unimpaired by the drugs she had
taken that night, Alfaro was able to vividly recall what transpired the
whole time she was with appellants. Alfaro testified that even if she
was then a regular
shabu user, she had not reached that point of being paranoid
("
praning").
It was the first time Alfaro sniffed cocaine and she described its
initial effect as being "stoned," but lasting only five (5) to seven (7)
minutes. However, she did not fall asleep since
shabu and "coke" are not downers.
Alfaro
further explained her indifference and apathy in not dissuading Webb
and her group from carrying out their evil plan against Carmela as due
to the numbing effect of drugs, which also enabled her to dislodge from
her mind the harrowing images of the killings for quite sometime.
Eventually, the chance to redeem herself came when she was invited to a
Christian fellowship, and with her child's future in mind, her desire to
transform her life grew stronger. As she cast off her addiction to
drugs, its desensitizing effect began to wear off and her conscience
bothered her no end. Under such circumstances, the delay of four (4)
years in admitting her involvement in the Vizconde killings cannot be
taken against Alfaro. In fact, she had to muster enough courage to
finally come out in the open considering that during her last encounter
with appellants at a discotheque in 1995, she was threatened by
appellant Rodriguez that if she will not keep her mouth shut, she will
be killed. He even offered her a plane ticket for her to go abroad.
Coming from wealthy and influential families, and capable of barbaric
acts she had already seen, appellants instilled such fear in Alfaro that
her reluctance to report to the authorities was perfectly
understandable.
I find that the circumstances of habitual drug
use and delay in reporting a crime did not affect the competence and
credibility of prosecution witness Alfaro. It bears stressing that the
fact of delay alone does not work against the witnesses. Delay or
vacillation in making a criminal accusation does not necessarily impair
the credibility of the witness if such delay is satisfactorily
explained.
[116]Besides, appellants failed to
adduce any evidence to establish any improper motive that may have
impelled Alfaro to falsely testify against them, other than their
allegation that she regularly associated with NBI agents as one (1) of
their informants. The absence of evidence of improper motive on the part
of the said witness for the prosecution strongly tends to sustain the
conclusion that no such improper motive exists and that her testimony is
worthy of full faith and credit.
[117] Neither had appellants established any ill-motive on the part of the other prosecution witnesses.
Inconsistencies and Discrepancies in Alfaro's
April 28, 1995 and May 22, 1995 AffidavitsAppellants,
from the start of preliminary investigation, have repeatedly harped on
the discrepancies and inconsistencies in Alfaro's first and second
affidavits. However, this Court has repeatedly ruled that whenever there
is inconsistency between the affidavit and the testimony of a witness
in court, the testimony commands greater weight.
[118] With
greater relevance should this rule apply in situations when a
subsequent affidavit of the prosecution witness is intended to amplify
and correct inconsistencies with the first affidavit, the discrepancies
having been adequately explained. We held in
People v. Sanchez[119] ...we
advert to that all-too familiar rule that discrepancies between sworn
statements and testimonies made at the witness stand do not necessarily
discredit the witnesses. Sworn statements/affidavits are generally
subordinated in importance to open court declarations because the former
are often executed when an affiant's mental faculties are not in such a
state as to afford him a fair opportunity of narrating in full the
incident which has transpired. Testimonies given during trials are much
more exact and elaborate. Thus, testimonial evidence carries more weight
than sworn statements/affidavits.[120]
Alfaro
explained the circumstances surrounding her execution of the first
Affidavit dated April 28, 1995 which was done without the presence of a
lawyer and at the house of agent Mario Garcia where she was brought by
Atty. Sacaguing and Moises Tamayo, another agent of task force
Anti-Kidnapping, Hijack and Robbery (AKHAR). The unusual questioning of
these men gave her the impression that she was merely being used to
boost their career promotion and her distrust was even heightened when
they absolutely failed to provide her security. She was aghast upon
discovering the completed affidavit which falsely stated that it was
made in the presence of her lawyer of choice (Atty. Mercader who was not
actually present). Agent Tamayo also incorporated inaccurate or
erroneous information indicating that she was a college graduate even if
she tried to correct him. Tamayo simply told her to just let it remain
in the statement as it would not be noticed anyway.
[121]
Moreover, on account of her urgent concern for her own security and fear
of implicating herself in the case, Alfaro admitted down playing her
own participation in her narration (including the circumstance that she
had previously met Carmela before the incident) and those of her
ex-boyfriend Estrada and her relative, Gatchalian.
Prosecution Evidence Sufficient to Convict Appellants
This
Court has consistently held that the rule on the trial court's
appreciation of evidence must bow to the superior rule that the
prosecution must prove the guilt of the accused beyond reasonable doubt.
The law presumes an accused innocent, and this presumption must prevail
unless overturned by competent and credible proof.
[122] Thus, we are tasked to consider two crucial points in sustaining a judgment of conviction:
first, the
identification of the accused as perpetrator of the crime, taking into
account the credibility of the prosecution witness who made the
identification as well as the prosecution's compliance with legal and
constitutional standards; and
second, all the elements constituting the crime were duly proven by the prosecution to be present.
[123] There
appears to be no question about the fact that a horrible and most
unfortunate crime has been committed. It is, in this case, indeed a
given fact, but next to it is the pivotal issue of whether or not the
prosecution has been able to discharge its equal burden in
substantiating the identities of accused-appellants as the perpetrators
of the crime. As well said often, conviction must rest on the strength
of the prosecution's case and not on the weakness of the defense.
Positive Identificationof Accused-AppellantsEyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution.
[124]
Both the RTC and CA found the eyewitness testimony of Alfaro credible
and competent proof that appellants Webb, Lejano, Gatchalian, Fernandez,
Rodriguez and Estrada were at the scene of the crime and that Webb
raped Carmela as the bloodied bodies of her mother and sister lay on top
of the bed inside the master's bedroom, and right beside it stood
Lejano while Ventura was preparing for their escape. At another house in
BF Executive Village where the group retreated after leaving the
Vizconde house, Alfaro witnessed the blaming session, particularly
between Ventura and Webb, and thereupon learned from their conversation
that Carmela's mother and sister were stabbed to death before she
herself was killed. Alfaro likewise positively identified appellant
Biong, whom somebody from the group described as the driver and
bodyguard of the Webb family, as the person ordered by Webb to "clean
the Vizconde house."
The testimony of Alfaro on its material
points was corroborated by Birrer, Dr. Cabanayan, White, Jr., Cabanacan
and Gaviola. Appellants' presence at the scene of the crime before,
during and after its commission was duly established. Their respective
participation, acts and declarations were likewise detailed by Alfaro
who was shown to be a credible witness. It is axiomatic that a witness
who testifies in a categorical, straightforward, spontaneous and frank
manner and remains consistent on cross-examination is a credible
witness.
[125]A criminal case rises or falls on the
strength of the prosecution's case, not on the weakness of the defense.
Once the prosecution overcomes the presumption of innocence by proving
the elements of the crime and the identity of the accused as perpetrator
beyond reasonable doubt, the
burden of evidence then shifts to
the defense which shall then test the strength of the prosecution's case
either by showing that no crime was in fact committed or that the
accused could not have committed or did not commit the imputed crime, or
at the very least, by casting doubt on the guilt of the accused.
[126] Appellants' Alibi and Denial
We have held in a number of cases that
alibi is an inherently weak and unreliable defense, for it is easy to fabricate and difficult to disprove.
[127] To establish
alibi,
the accused must prove (a) that he was present at another place at the
time of the perpetration of the crime, and (b) that it was physically
impossible for him to be at the scene of the crime. Physical
impossibility "refers to the distance between the place where the
accused was when the crime transpired and the place where it was
committed, as well as the facility of access between the two places."
[128] Due to its doubtful nature,
alibi must be supported by clear and convincing proof.
[129]"Alibi,
the plea of having been elsewhere than at the scene of the crime at the
time of the commission of the felony, is a plausible excuse for the
accused. Let there be no mistake about it. Contrary to the common
notion, alibi is in fact a good defense. But, to be valid for purposes
of exoneration from a criminal charge, the defense of alibi must be
such that it would have been physically impossible for the person
charged with the crime to be at the locus criminis at the time of
its commission, the reason being that no person can be in two places
at the same time. The excuse must be so airtight that it would admit of
no exception. Where there is the least possibility of accused's
presence at the crime scene, the alibi will not hold water. [130] [emphasis supplied.]
The
claim of appellant Webb that he could not have committed the crime
because he left for the United States on March 9, 1991 and returned to
the Philippines only on October 26, 1992 was correctly rejected by the
RTC and CA. These dates are so distant from the time of the commission
of the crime, June 29, 1991 and June 30, 1991, and it would not have
been impossible during the interregnum for Webb to travel back to the
country and again fly to the US several times considering that the
travel time on board an airline from the Philippines to San Francisco,
and from San Francisco to the Philippines takes only about twelve (12)
to fourteen (14) hours. Given the financial resources and political
influence of his family, it was not unlikely that Webb could have
traveled back to the Philippines before June 29-30, 1991 and then
departed for the US again, and returning to the Philippines in October
1992. There clearly exists, therefore, such
possibility of Webb's presence at the scene of the crime at the time of its commission, and his excuse cannot be deemed airtight.
This Court in
People v. Larrañaga[131] had similarly rejected the defense of
alibi
of an accused, involving a shorter travel distance (Quezon City to
Cebu) and even shorter period of time showing the least possibility of
an accused's presence at the time of the commission of the crime (a
matter of hours) than in the case at bar (March 9, 1991 to June 29, 1991
which is three
[3] months).
In denying the motion for reconsideration of accused Larrañaga, we held
that accused Larrañaga failed to establish his defense of
alibi, which is futile in the face of positive identification:
This case presents to us a balance scale whereby perched on one end is appellants' alibi
supported by witnesses who were either their relatives, friends or
classmates, while on the other end is the positive identification of the
herein appellants by the prosecution witnesses who were not, in any
way, related to the victims. With the above jurisprudence as guide, we
are certain that the balance must tilt in favor of the latter.
Besides,
a thorough examination of the evidence for the prosecution shows that
the appellants failed to meet the requirements of alibi, i.e.,
the requirements of time and place. They failed to establish by clear
and convincing evidence that it was physically impossible for them to be
at the Ayala Center, Cebu City when the Chiong sisters were abducted.
What is clear from the evidence is that Rowen, Josman, Ariel, Alberto,
James Anthony and James Andrew were all within the vicinity of Cebu City
on July 16, 1997.
Not even Larrañaga who claimed to be in Quezon
City satisfied the required proof of physical impossibility. During the
hearing, it was shown that it takes only one (1) hour to travel by
plane from Manila to Cebu and that there are four (4) airline companies
plying the route. One of the defense witnesses admitted that there are
several flights from Manila to Cebu each morning, afternoon and evening. Indeed,
Larrañaga's presence in Cebu City on July 16, 1997 was proved to be
not only a possibility but a reality. Four (4) witnesses identified
Larrañaga as one of the two men talking to Marijoy and Jacqueline on the
night of July 16, 1997. Shiela Singson testified that on July 16,
1997, at around 7:20 in the evening, she saw Larrañaga approach Marijoy
and Jacqueline at the West Entry of Ayala Center. The incident reminded
her of Jacqueline's prior story that he was Marijoy's admirer. Shiela
confirmed that she knows Larrañaga since she had seen him on five (5)
occasions. Analie Konahap also testified that on the same evening of
July 16, 1997, at about 8:00 o'clock, she saw Marijoy and Jacqueline
talking to two (2) men at the West Entry of Ayala Center. She recognized
the two (2) men as Larrañaga and Josman, having seen them several times
at Glicos, a game zone, located across her office at the third level of
Ayala Center. Williard Redobles, the security guard then assigned at
Ayala Center, corroborated the foregoing testimonies of Shiela and
Analie. In addition, Rosendo Rio, a businessman from Cogon, Carcar,
declared that he saw Larrañaga at Tan-awan at about 3:30 in the morning
of July 17, 1997. The latter was leaning against the hood of a white
van. And over and above all, Rusia categorically identified Larrañaga as
one of the participes criminis.[132] [emphasis supplied]
In
the light of relevant precedents, I find no reversible error committed
by the RTC in refusing to give credence to appellant Webb's argument
that he could not have committed the crime of rape with homicide because
he was still in the US on June 29 and 30, 1991. The RTC thus correctly
ruled:
Granting for the sake of argument that the
claim of departure for the United States of the accused Webb on March 9,
1991 and his arrival in the Philippines on October 26, 1992 had been
duly established by the defense, it cannot prove that he remained in the
United States during the intervening period. During the long span
of time between March, 1991 to October, 1992, it was not physically
impossible for the accused Webb to have returned to the Philippines,
perpetrate the criminal act, and travel back to the United States.
It
must be noted that the accused Webb is a scion of a rich, influential,
and politically powerful family with the financial capacity to travel
back and forth from the Philippines to the United States. He could very
well afford the price of a plane ticket to free him from all sorts of
trouble. Since there are numerous airlines plying the route from Manila
to the United States, it cannot be said that there was lack of available
means to transport. Moreover, the lapse of more than three (3) months
from the time the accused Webb left the Philippines for the United
States on March 9, 1991 to June 29 and 30, 1991 when the crime was
committed is more than enough time for the accused Webb to have made
several trips from the United States to the Philippines and back. The
Court takes judicial notice of the fact that it only requires the
short period of approximately eighteen (18) hours to reach the
Philippines from the United States, with the advent of modern travel.
It
must likewise be noted that the father of the accused Webb, besides
being rich and influential, was at that time in 1991, the Congressman of
Parañaque and later became a Senator of the Republic of the
Philippines. Thus, the Webb money and connections were at the disposal
of the accused Webb, and it is worthy of belief that the accused Webb
could have departed and entered the country without any traces
whatsoever of his having done so. In fact, defense witness Andrea
Domingo, former Commissioner of the Bureau of Immigration and
Deportation testified on the practice of "human smuggling" at the Ninoy Aquino International Airport.
On
this point, the Supreme Court has declared in a case that even the
lapse of the short period of one (1) week was sufficient for an accused
to go to one place, to go to another place to commit a crime, and then
return to his point of origin. The principal factor considered by the
Supreme Court in denying the defense of alibi in People vs. Jamero (24 SCRA 206) was the availability to the accused of the means by which to commit a crime elsewhere and then return to his refuge. x x x[133] [emphasis supplied]
There
is likewise no merit in appellant Webb's contention that the CA
misappreciated his voluminous documentary evidence and numerous
witnesses who testified on his stay in the US. The CA, after a
meticulous and painstaking reevaluation of Webb's documentary and
testimonial evidence, sustained the RTC's conclusion that these pieces
of evidence were either inadmissible, incompetent or irrelevant. I quote
with approval the CA's findings which are well-supported by the
evidence on record:
(a) U.S. INS Certifications
x x x x
The
Court seriously doubts that evidentiary weight could be ascribed to the
August 31, 1995 and October 13, 1995 Certifications of the U.S. INS and
computer print-out of the Nonimmigrant Information System (NIIS) which
allegedly established Webb's entry to and exit from the United States.
This is due to the fallibility demonstrated by the US INS with regard to
the certifications which the said office issued regarding the basic
information under its direct control and custody.
It is to be
remembered that as part of his evidence, Webb presented the explanation
of one Steven P. Bucher, Acting Chief of Records Services Branch of the
U.S. INS, who admitted that the U.S. INS had previously reported on
August 10, 1995, erroneously, that it had no record of the arrival and
departure of Webb to and from the United States. The said office later
on admitted that it failed to exhaustively study all information
available to it. We are not convinced with this explanation. It is to
be noted that the U.S. INS is an agency well known for its stringent
criteria and rigid procedure in handling documents relating to one's
travel into and out of its territory. Such being the case, it would
therefore be hard to imagine that the said agency would issue a
certification that it had no record of a person's entry into and exit
from the United States without first conducting an efficient
verification of its records.
We do not also believe that a second
search could give rise to a different conclusion, considering that
there is no showing that the records searched were different from those
viewed in the first search. The later certifications issued by the U.S.
INS modifying its first certification and which was issued only a few
weeks earlier, come across as a strained effort by Webb at establishing
his presence in the United States in order to reinforce his flimsy alibi.
It
is not amiss to note that a reading of the first Certificate of
Non-existence of Record (Exhibit "212-D") subscribed by Debora A. Farmer
of the U.S. INS would show that the U.S. INS had made a "diligent"
search, and found no record of admission into the United States of Webb.
The search allegedly included an inquiry into the automated and
non-automated records systems of the U.S. INS. Be it also noted that the
basis of the U.S. INS second certification (Exhibit "218") was a
printout coming also from automated information systems.
As pointed out by the Office of the Solicitor General in its appeal brief, "how
it became possible for the U.S. INS Archives in Washington, which is
supposed to merely download and copy the information given by the San
Francisco INS, to have an entry on accused-appellant Webb when the said
port of entry had no such record was never sufficiently addressed by the
defense."
It is with this view that the Court recognizes little if not nil probative value in the second certification of the U.S. INS.
x x x x
(b) Passenger Manifest of United Airlines Flight
The
purported passenger manifest for the United Airlines flight that
allegedly conveyed accused-appellant Webb for the United States, was not identified by the United Airlines personnel who actually prepared and completed the same.
Instead, the defense presented Dulcisimo Daluz, the supervisor of
customer services of United Airlines in Manila, who had no hand in the
actual preparation or safekeeping of the said passenger manifest. It
must be stressed that to satisfactorily prove the due execution of a
private document, the testimony of the witness with regard to the
execution of the said document must be positive. Such being the case,
his testimony thereto is at most hearsay and therefore not worthy of any
credit.
Likewise, we note that the said passenger manifest produced in court is a mere photocopy and the same did not comply with the strict procedural requirement of the airline company, that is, all the checking agents who were on duty on March 9, 1991 must sign or initial the passenger manifest. This further lessens the credibility of the said document.
(c) United Airline Ticket
...the alleged United Airline ticket of accused-appellant Webb offered in evidence is a mere photocopy of an alleged original, which was never presented below.
Other than the submission that the original could no longer be produced
in evidence, there is no other proof that there ever was an original
airline ticket in the name of Webb. This does not satisfy the
requirements set forth under Section 5 of Rule 130. x x x we find that
the photocopy presented in evidence has little if no probative value.
Even assuming there was such an original ticket in existence, the same
is hardly of any weight, in the absence of clear proof that the same was
indeed used by accused-appellant Webb to go to the United States.
(d) Philippine passport
The
passport of accused-appellant Webb produced in evidence, and the
inscriptions appearing thereon, also offer little support of Webb's alibi. Be it noted that what appears on record is only the photocopy of the pages of Webb's passport. The
Court therefore can only rely on the appreciation of the trial court as
regards the authenticity of the passport and the marks appearing
thereon, as it is the trial court that had the exclusive opportunity to
view at first hand the original of the document, and determine for
itself whether the same is entitled to any weight in evidence.
(e) Video footage of accused-appellant Webb's parents in Disneyland and Yosemite Park.
The
video footage serendipitously taken by Victor Yap allegedly of Senator
Webb and his family while on vacation at Disneyland in Anaheim,
California on July 3, 1991 does little to support the alibi of accused-appellant Webb for it is quite interesting to note that nowhere did accused-appellant Webb appear in this footage.
None of the people shown in the film was identified as the
accused-appellant Webb. Moreover, the records disclose that just before
the segment of the film that showed Senator Webb, there was a gap or
portion of static that appeared which did not appear in any other
portion of the footage. We find that this supports the conclusion that the videotape was possibly tampered as an additional support to the alibi of accused-appellant that he was in the United States.
x x x x
(f) Video footage at Lake Tahoe and the del Toro-Manlapit Wedding
...the
video footage showing accused-appellant Webb seemingly on holiday at
Lake Tahoe with the Wheelocks, to our mind does not disprove that Webb
was in the country at the time of the Vizconde killing. Firstly, the date being shown intermittently in the footage was not the same or near the date of the Vizconde killing.
As we have earlier stated, we do not discount the possibility that Webb
was in the Philippines during the time he was supposed to have been in
the United States, especially, when there are eyewitnesses who testified
to the effect that Webb was in the Philippines only a couple of weeks
before the killing and who also testified of Webb's participation in the
crime. In any case, we take judicial notice that modern electronic and
photographic advances could offer a means to splice or modify recorded
images to configure to a desired impression, including the insertion or
annotation of numeric figures on a recorded image.
Likewise, the videotape and photographs taken on Alex del Toro's wedding also fail to convince, as this was allegedly taken on October 10, 1992 well after the fateful days of June 29 and 30, 1991.
(g) Photograph of Webb and Christopher Esguerra before the Dee Lite Concert
The
photograph of accused-appellant Webb with Esguerra allegedly taken in
late April 1991 before they went to a band concert has little probative
value. It must be pointed out that the image in the picture itself
does not depict the date or place it was taken, or of any Dee Lite
concert allegedly attended by Webb. Likewise, we observed that the photograph appears to have been trimmed down from a bigger size,
possibly to remove the date printed therein. It is also to be noted
that Esguerra admitted that the inscription appearing at the back of the
photograph of, "Hubert and I before the Dee Lite Concert, April 1991"
was only written by him in 1995, after it was given to him by
accused-appellant's mother, Elizabeth, before he took the witness
stand. The Court cannot therefore but cast suspicion as to its
authenticity.
(h) Webb's Driver's License
We agree with the trial court's observation that the
Driver's License allegedly obtained by accused-appellant from the
California Department of Motor Vehicle sometime in the first week of
June 1991 is unworthy of credit, because of the inconsistencies in
Webb's testimony as to how he obtained the same. In one testimony,
Webb claimed he did not make an application but just walked in the
licensing office and he did not submit any photograph relative to his
application. In a later testimony, he claimed that he submitted an ID
picture for his driver's license, and that the picture appearing on his
driver's license was the very same picture he submitted together with
his application for the driver's license. These are two inconsistent
testimonies on the same subject matter, which render the said driver's
license and the alleged date when the same was obtained, unworthy of
credit.
(i) Logbook of Alex del Toro and Check Payments of Webb's salary
The
employment records of accused-appellant, which include the alleged
logbook of del Toro in his pest control business, and check payments to
Webb were also offered to support the latter's alleged presence in the
United States on the dates near the day of the Vizconde killings. A
review of the logbook shows that the same is unworthy of any evidentiary
weight. The entries where the accused Webb were indicated to have
performed work for del Toro, showed that the name of Webb
("Hubie"/"U.B.") was merely superimposed on the actual entries and could
have been easily fabricated to create the impression that Webb had
some participation in the business of del Toro, and therefore, are not
reliable proofs of Webb's presence and occupation in the United States
around the time of the Vizconde killing.
The alleged check
payments of Webb's salary are also unreliable. The check dated June 13,
1991 was made payable to "Cash", while the other check which appeared
to be payable to "Hubert Webb" was however dated only July 10, 1991. Neither of the said checks squarely placed accused-appellant Webb in the United States at the time of the Vizconde killings. Simply put, neither check is therefore clear proof to support Webb's alibi.
(j) Bicycle/Sportscar
The
Toyota MR2 sportscar and Cannondale bicycle allegedly purchased by
accused-appellant Webb and his father in the United States appear to
have been purchased with great haste, and under suspicious
circumstances.
Consider that immediately after the
accused-appellant's father, former Senator Freddie Webb, arrived in the
United States, the first thing he did was go out with his friend Honesto
Aragon and accused-appellant to look for a bicycle and a car to be used
by the latter in going to and from work. The car was bought sometime
in early July 1991 and the bicycle sometime on June 30, 1991. It is a
wonder to this Court that the accused-appellant and his father would buy
a bicycle and a sportscar at practically the same time to provide the
accused-appellant transportation to his work. Would not just a car or a
bicycle do for him? Also, the hurried purchase of the car right after
the arrival of Freddie Webb appears at the very least, suspicious, as a
prospective car-buyer would understandably want to make a canvas first
for the best car to buy, and not just to purchase the first car he sees.
Moreover,
as aptly observed by the trial court, though it was made clear that the
purpose of purchasing the said bicycle and car was for
accused-appellant's convenience in going to and from his work -- we
find, that this contradicts the other evidence presented by
accused-appellant because it appears from his evidence that other than
his brief stint in del Toro's pest control company business and his
employment as a gasoline station attendant which incidentally was not
sufficiently proven, all that accused-appellant did in the United States
was to go sightseeing, shopping and meet with family and friends.
Lastly,
the fact that the car and the bicycle were allegedly purchased in close
proximity to the date of the rape and killing of the Vizconde women
does little to dissuade the perception that the car and bicycle were
purchased only for the purpose of providing a plausible defense of alibi for Webb.
(k) Letters to Jennifer Claire Cabrera
Cabrera,
a friend and neighbor of accused-appellant in BF Homes, Parañaque,
produced four (4) letters allegedly written and sent to her by Webb
while he was in the United States, in order to support the
accused-appellant's alibi. These were allegedly the only letters sent by Webb to her.
The
letters were allegedly written and posted at around the same time the
Vizconde rape and killing happened, such that, if the letters were to be
duly considered, they would place Webb in the United States at the same
time the June 30, 1991 killings occurred; thus, bolstering Webb's
defense of alibi.
However, the said letters, to our mind, are not convincing proof of alibi,
inasmuch said letters were produced only in 1995 at the time she gave a
statement, and the same time Webb was charged. However, Cabrera
admitted that she knew Webb was being involved or accused in the
Vizconde killings as early as 1991 and that she was shocked upon
learning that he was being implicated therein.
The Court finds it
incredible that despite being shocked in 1991, about the involvement of
her friend, accused-appellant in the Vizconde rape-slay, Cabrera would
wait until 1995 to "produce" the letters that could have cleared her
friend's name. An interregnum of four years before coming out with
valuable proof in support of a friend is to our mind, a telling factor
on the credibility of the alleged letters.
Also, the impression
that may be inferred from reading the letters was one of a man who was
pining away for his ladylove. Webb was quite expressive with his
feelings when he wrote that he missed Cabrera, "a lot," yet after only
four letters that was conveniently written sometime in June 1991, he
thereafter stopped writing letters to Cabrera as if the whole matter was
already forgotten. It is highly suspicious therefore that the only
letters of accused-appellant Webb to Cabrera were written and sent at
the exact opportune time that the Vizconde killings occurred which
conveniently supplied a basis for his defense of alibi.
Moreover,
from the contents of the letters, we can deduce that there was some
sort of romantic relationship with the accused-appellant Webb and
Cabrera. In fact, Webb in his letters referred to Cabrera as his
"sweetheart" and "dearest", and confessed to her that all he thinks
about was her, and he was hoping he would dream of her at night. It is
not improbable, therefore, that Cabrera could have prevaricated herself
to save her friend.
In sum, accused-appellant tried vainly to establish his defense of alibi
with the presentation of not only a substantial volume of documentary
evidence but also testimonies of an overwhelming number of witnesses
which were comprised mostly of relatives and family friends who
obviously wanted him to be exonerated of the crime charged. It is for
this reason that we regard their testimonies with an eye of suspicion
for it is but natural, although morally unfair, for a close relative or
friend to give weight to blood ties and close relationship in times of
dire needs especially when a criminal case is involved.[134] [emphasis supplied]
The
rule is well-entrenched in this jurisdiction that in determining the
value and credibility of evidence, witnesses are to be weighed, not
numbered.The testimony of only one witness, if credible and positive, is
sufficient to convict.
[135] As to appellant Webb's
voluminous documentary evidence, both the RTC and CA judiciously
examined each exhibit and concluded that these do not pass the test of
admissibility and materiality insofar as proving the physical
impossibility of his presence at the Vizconde residence on June 29, 1991
until the early morning of June 30, 1991.
Appellant Webb cites
the opposite view taken by Justices Tagle and Dacudao in their
dissenting opinions and urges this Court to accord the US INS
certification and other documents relative to his arrival and departure
in the US on the dates March 9, 1991 and October 26, 1992, respectively,
the presumption of regularity being official documents issued by US
authorities. Justices Tagle and Dacudao concurred in stating that the
conclusion of their three (3) colleagues (majority) that the US INS
certifications did not exclude the possibility of Webb traveling back to
the Philippines and again departing for the US between March 9, 1991
and October 26, 1992 -- is nothing but speculation and conjecture. Webb
further mentions that since a Justice of this Court "confirmed
appellant Webb's alibi of being in the United States on 29 June
1991[,[a]t the very least, such exculpatory testimony coupled with the
plethora of appellant Webb's other documentary and testimonial evidence
on his presence in the United States on 29 June 1991 raises
reasonable doubt as to appellant Webb's guilt of the crime charged."
[136]I find the contentions bereft of merit.
In
the first place, let it be emphasized that Justice Carpio's testimony
before the trial court confirmed merely the fact that his conversation
with then Congressman Webb took place on June 29, 1991 and what the
latter relayed to him about his location at the time such telephone call
was made, who was with him in the US (his wife and appellant Webb) and
the purpose of their US trip (to find a job for appellant Webb). Said
witness even admitted that he had no personal knowledge that appellant
Webb was in fact in the United States at the time of his telephone
conversation with Congressman Webb.
[137]As to the
travel documents consisting of his US passport, US INS certifications
and other evidence presented by appellant Webb in support of his
alibi,
while it is true that such presentation of passport, plane ticket and
other travel documents can serve as proof that he was indeed out of the
country at the time of the Vizconde killings,
[138] it must
still be shown that the evidence is clear and convincing, and the
totality of such evidence constitutes an airtight excuse as to exclude
the least possibility of his presence at the crime scene. However,
appellant Webb failed in this regard and the RTC and CA did not err in
giving scant weight to his arsenal of evidence, particularly so on the
strength of the positive identification of appellant Webb as Carmela's
rapist and one of those who actually took part in the brutal killing of
Carmela, her mother and sister between midnight of June 29, 1991 and
early morning of June 30, 1991.
Indeed,
alibi cannot be sustained where it is not only without
credible
corroboration, but also where it does not, on its face, demonstrate the
physical impossibility of the accused's presence at the place and time
of the commission of the crime.
[139] Against positive evidence,
alibi becomes most unsatisfactory.
Alibi cannot prevail over the positive identification of a credible witness.[140]
Appellant Webb was placed at the crime scene by Alfaro who positively
identified him as the one (1) who plotted and committed the rape of
Carmela, and later fatally stabbed her, her mother and sister, aided by
or in concert with Lejano and Ventura. Gaviola and Cabanacan gave
corroborating testimonies that appellant Webb was here in the country,
as he was just in his house at BF Homes Subdivision Phase III, at least a
few weeks prior to and on June 29 to 30, 1991.
Verily, it is only when the identification of the accused as the author of the crime charged is inconclusive or unreliable that
alibi assumes
importance. Such is not the situation in the case at bar where the
identification of the perpetrators by a lone eyewitness satisfied the
moral certainty standard.
It is the prosecution's burden to prove
the guilt of the accused beyond reasonable doubt. Definitely,
"reasonable doubt" is not mere guesswork whether or not the accused is
guilty, but such uncertainty that "a reasonable man may entertain after a
fair review and consideration of the evidence." Reasonable doubt is
present when --
after the entire comparison and consideration of
all the evidences, leaves the minds of the [judgesin that condition that
they cannot say they feel an abiding conviction, to a moral certainty,
of the truth of the charge; a certainty that convinces and directs the
understanding, and satisfies the reason and judgment of those who are
bound to act conscientiously upon it.[141]
That
reasonable doubt is not engendered by the presentation of certifications
of entry into and exit from the US, passport with stamp marks of
departure and declarations of witnesses who are mostly relatives and
friends of appellant Webb, can be gleaned from the fact that passports
and plane tickets indicating dates of arrival and departure do not
necessarily prove that the very same person actually took the flight.
This Court takes judicial notice of reported irregularities and
tampering of passports in the years prior to the recent issuance by the
DFA of machine-readable passports. In fact, the proliferation of
photo-substituted passports, fake immigration stamps, assumed identity
and double passports, among others, have been cited as grounds to
justify the necessity of amending the
Philippine Passport Act of 1996
(R.A. No. 8239) as proposed in the Senate, "x x x to rally for the
issuance of passports using tamper proof and the latest data encryption
technology; and provide stiffer penalties against proliferators of fake
passports."
[142]It is worthy of note I note that
the original of Webb's passport was not offered in evidence and made
part of the records, which only gives credence to the prosecution's
allegation that it bore signs of tampering and irregularities. And as
earlier mentioned, the much vaunted US-INS second certification dated
August 31, 1995 based on a mere computer print-out from the
Non-immigrant Information System (Exhibit "213-1-D") retrieved from the
US- INS Archives in Washington, and the accompanying certifications,
have little probative value, the truth of their contents had not been
testified to by the persons who issued the same. Moreover, the issuance
of this certification only a couple of weeks after the August 10, 1995
US-INS Office in San Francisco was issued, only raised questions as to
its accuracy. Said earlier certification through Debora A. Farmer
stated that:
[a]fter diligent search no record is found to exist in the records of the Immigration and Naturalization Service. The search included a review of the Service automated
and nonautomated records system; there is no evidence of any lawful
admission to the United States as an immigrant, or as a nonimmigrant,
relating to Hubert P. Webb, born November 7, 1968, in the Philippines.
The records searched are current as of July 1, 1995 for the immigrants
and nonimmigrants.[143] [emphasis supplied]
The
above finding was relayed by Thomas Schiltgen, District Director of the
Immigration and Naturalization Service, San Francisco to Ms. Teresita
V. Marzan, Consul General of the Philippines:
SUBJECT: WEBB, HUBERT
RE: Hubert Jeffrey Webb
Dear Requester:
YOUR REQUEST WAS RECEIVED BY THIS OFFICE ON 07/10/95.
WE HAVE COMPLETED OUR SEARCH FOR RECORDS RESPONSIVE TO YOUR REQUEST BUT DID NOT LOCATE ANY.
IF YOU STILL BELIEVE THAT WE HAVE RECORDS WITHIN THE SCOPE OF YOUR
REQUEST, AND CAN PROVIDE US WITH ADDITIONAL INFORMATION, WE WILL CONDUCT
ANOTHER SEARCH. IF YOU ELECT TO REQUEST ANOTHER SEARCH, WE RECOMMEND
THAT YOU NOT FOLLOW THE APPEALS PROCEDURE DESCRIBED BELOW UNTIL WE HAVE
COMPLETED THAT SEARCH.
YOU MAY APPEAL THE FINDING IN THIS MATTER
BY WRITING TO THE OFFICE OF INFORMATION AND PRIVACY, UNITED STATES
DEPARTMENT OF JUSTICE, SUITE 570, 1310 G. STREET, N.W., FLAG BUILDING,
WASHINGTON D.C., 20530 WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS
LETTER. YOUR LETTER SHOULD REFERENCE THE INS CONTROL NUMBER ABOVE AND
THE LETTER AND THE ENVELOPE SHOULD BE CLEARLY MARKED FOIA/PA APPEAL.
SINCERELY,
(SGD.) DISTRICT DIRECTOR[144] [emphasis supplied]
To
show that the August 10, 1995 US-INS Certification was erroneous,
appellant Webb presented the Memorandum addressed to Secretary Domingo
L. Siazon signed by Consul Leo M. Herrera-Lim, the Diplomatic Note dated
October 30, 1995 and the letter of Debora Farmer stating that the
San Francisco certification was erroneous.
[145] The
prosecution, however, presented another document which indicated that an
appeal to the U.S. Department of Justice, Office of Information and
Privacy yielded a negative result on any record on file that one (1)
Hubert Webb arrived in the United States on March 9, 1991, and further
that Richard L. Huff, Co-Director of the Office of Information and
Privacy had in effect sustained as correct the US-INS San Francisco
report that there is no such data on Hubert Webb in the San Francisco
database so that the Philippine Embassy in Washington, D.C. should
instead ask the assistance of
other U.S. government agencies in their search for data on appellant Webb.
[146]The
defense endeavored to explain why the US-INS Archives in Washington
could have made the "mistake" of stating that it had no data or
information on the alleged entry of appellant Webb on March 9, 1991 and
his exit on October 26, 1992. However, it had not satisfactorily
addressed the nagging question of how it became possible for the US-INS
Archives in Washington, which is supposed to merely download and copy
the information given by the San Francisco INS, to have an entry on
appellant Webb when the said port of entry had no such record.
Considering that many visitors (nonimmigrants) are admittedly not
entered into the NIIS database, and that diligent search already yielded
a negative response on appellant Webb's entry into the US on March 9,
1991 as per the August 10, 1995 Certification, as to what US government
agency the alleged computer-generated print-out in the August 31, 1995
certification actually came from remains unclear.
Appellant
Webb's reliance on the presumption of regularity of official functions,
stressing the fact that the US-INS certifications are official
documents, is misplaced. The presumption leaned on is disputable and
can be overcome by evidence to the contrary.
[147] In this
case, the existence of an earlier negative report on the NIIS record on
file concerning the entry of appellant Webb into and his exit from the
US on March 9, 1991 and October 26, 1992, respectively, had raised
serious doubt on the veracity and accuracy of the subsequently issued
second certification dated August 31, 1995 which is based merely on a
computer print-out of his alleged entry on March 9, 1991 and departure
on October 26, 1992.
As to the testimony of former Foreign
Affairs Secretary Domingo L. Siazon, the same cannot be given due
credence since he is incompetent to testify on the contents of the
August 31, 1995 US-INS Certification, having merely received the said
document in his capacity as the head of the Department of Foreign
Affairs of the Philippines. Consul Leo M. Herrera-Lim's testimony
likewise did not carry much weight considering that its significance is
confined to the fact that the document from the US-INS was transmitted
and received by the DFA. It is to be noted that the certification
issued by the Philippine Embassy with respect to the US-INS
Certifications contained a disclaimer, specifically stating that the
Embassy assumed no responsibility for the contents of the annexed
document.
[148] The same observations regarding the
"consularized certifications" was reflected in the Decision dated April
16, 1998 in CA-G.R. SP No. 42285 ("
Miguel Rodriguez v. Amelita Tolentino") and CA-G.R. SP No. 42673 ("
Hubert P. Webb v. Amelita Tolentino").
[149]Appellant
Webb's travel documents and other supposed paper trail of his stay in
the US are unreliable proof of his absence in the Philippines at the
time of the commission of the crime charged. The non-submission in
evidence of his
original passport, which was
not formally offered and made part of the records, had
deprived the RTC, CA and this Court the opportunity to examine the
same. Such original is a crucial piece of evidence which unfortunately
was placed beyond judicial scrutiny.
IWe quote the following observations made by the prosecution on Webb's passport from the appeal brief of the OSG:
In
tandem with the presentation of the various U.S. INS certifications to
bolster appellant Webb's story of a U.S. sojourn before, during and
after the commission of the offense charged, he further anchors his
defense on his passport (Exh. AAAAAA and 294) ostensibly to show, among
others, that the grant by the United States government granted him a
visa effective from April 6, 1989 to April 6, 1994 and the U.S.
Immigration in San Francisco stampmarked it on March 9, 1991 (Exh.
AAAAAA-6) on page 30 thereof (Exh. AAAAAA-2 and 294-D).
On its
face, what the entries in the passport plainly suggest is that appellant
Webb violated U.S. immigration laws by "overstaying" beyond the usual
six-(6) month period allowed for tourists. However, he being the son of a
Senator would not unnecessarily violate U.S. immigration laws. It
would be quite easy for him to apply for and secure an extension of his
authorized stay in the U.S., if only he requested. But why did not he
or his parents secure the extension? Why was there no evidence to show
that he ever requested an extension? Did he really overstay in the U.S.
or could he simply enter and leave the U.S. and the Philippines without
marking his passport? These raise serious questions on the integrity
of the passport.
Is appellant Webb really untouchable that even
U.S. authorities in various states would let him get "off the hook"
without much of a fuss after his alleged brushes with the law (TSN -
Hubert Webb dated September 10, 1997, p. 82)? This is especially
incredible considering that he was allegedly apprehended in the United
States near the U.S. border (Ibid., pp. 82-83) where authorities are
always on the look out for illegal aliens.
The questions
involving appellant Webb's passport are not limited to the stamp marks
(or lack of stamp marks) therein. There are unusual things about his
passport which he has been unable to explain satisfactorily.
The passport of her mother, Elizabeth Webb, for example, appears to be well preserved despite having been used more frequently
than that of appellant Webb who supposedly used it in only one trip
abroad. Not only do some of the pages appear smudged or untidy, but
more significantly, the perforations on the passport pages indicating
the serial number of appellant Webb's passport no longer fit exactly on
the pages -- that is, they are no longer aligned. The perforations are
intended not only to indicate the serial number of the passport but more
importantly to countercheck intercalations and tampering. The
"non-alignment" of the perforations is thus significant.
In
addition to the over-all shabby appearance of appellant Webb's passport,
what is evident is the torn plastic portion of the dorsal page thereof
near the holder's signature. There is also the matter of the marked
difference in the signatures of appellant Webb as appearing on the
dorsal side of the passport (Exh. AAAAAA-3 and 294-A-1) as compared with
that appearing on his laminated photograph (Exh. AAAAAA-5 and
294-C-1). Of course, he tried to offer an explanation on the variance
in the two (2) signatures. All he could reason out, however, was that
he wrote his name using his normal penmanship when in a lazy mood (TSN
-- Hubert Webb dated August 14, 1997, p. 27), implying that the
signature appearing on his laminated photograph is his real signature. A
review of his other documentary evidence supposedly bearing his
signature shows that what appears therein is his name written in his
"normal penmanship," and that it is only in the laminated picture (Exh.
AAAAAA-5 and 294-C) that such "real signature" appears. Following
appellant Webb's explanation, it means that he was in a lazy mood all
the time![150]
Two (2) more documents
presented by appellant Webb deserve a close look -- his US Driver's
License supposedly issued on June 14, 1991, and the Passenger Manifest.
The RTC's evaluation of said documents revealed their lack of probative
value, thus:
On August 14, 1997, [Webbtestified that
he did not make any application since the procedure in California
provides for a walk-in system, that he did not submit any photograph
relative to his application for a Californian Driver's License, inasmuch
as a photograph of him was taken, and that, his driver's license was
issued sometime on the first week of June, 1991. On the other hand, on
September 1, 1997, the accused suddenly and completely changed his
testimony while still on direct examination. He claims that the picture
appearing on the driver's license was the very same he submitted
together with his application for the driver's license. Thus, the
discrepancy as to the source of the photograph (Exhibit "334-E") between
the testimony given on August 14, 1997 where the accused Webb said that
the California Department of Motor Vehicle took his picture, and the
testimony given on September 1, 1997 where he said that he submitted it
to the California DMV as an attachment to his supposed driver's license
application renders the accused Webb's testimony as unbelievable and
unworthy of credence.
It is beyond belief that the same picture
submitted by the accused Webb became the picture in the driver's license
allegedly issued on June 14, 1991. Moreover, it is contrary to human
nature and experience, aside from the fact that it is likewise contrary
to the procedure described by the accused Webb in obtaining a driver's
license in the State of California. Since a driver's license is one of
the principal means of identification in the United States as well as in
the Philippines, to allow the applicants to produce their own pictures
would surely defeat the purpose in requiring them to appear before the
Department of Motor Vehicle, that is, to ensure the integrity and
genuineness of the driver's license.
The Court takes note that
the accused Webb, in his fervent desire to exculpate himself from
criminal liability, earlier offered in evidence the letter dated January 10, 1992 of Mr. Robert L. Heafner, Legal Attache of the Embassy of the United States to
the then Director of the National Bureau of Investigation, Alfredo S.
Lim, (Exhibit "61") which stated in very clear terms that the accused Webb's California Driver's License Number A8818707 was issued on August 9, 1991.
Furthermore, the said letter states the listed address of the accused
Webb at the time of the issuance of the driver's license was 532 So.
Avenida Faro Ave., Anaheim, California 92807. The said listed address
of the accused Webb at the time his driver's license was issued has
demolished the testimony of the defense witness Sonia Rodriguez that the
accused Webb was supposed to be already living with the Rodriguez
family in Longwood, Florida by the first week of August, 1991.
The accused Webb likewise offered in evidence the official communication coming from the Federal Bureau of Investigation dated December 31, 1991 (Exhibit "MMM" and submarkings; Exhibit "66-C" and submarkings) which likewise gave the information that the accused Webb was issued California Driver's License No. 8818707 on August 9, 1991,
and that as of August 9, 1991, the address of the accused Webb was 532
South Avenida Faro, Anaheim, California 92807. The fact that the
alleged Driver's License No. A8818707 was issued on two (2) different
dates (August 9, 1991 and June 14, 1991) casts a serious doubt on its
provenance and authenticity.
x x x x
In order to establish
that the accused Hubert Webb departed from the Philippines on 09 March
1991 on board UA flight 808 the defense also presented witness Dulcisimo
Daluz, Station Manager of United Airlines for Manila who in turn
presented a document purporting to be the Passenger Manifest for the flight departing on 09 March 1991 (Exhibits "233-A" to "233-N").
This
document merits outright rejection considering that the defense witness
Daluz confirmed that the same was prepared by the UA departure area
personnel and not by himself. Thus, this document is merely hearsay and
is devoid of any merit whatsoever.
In respect of the plane
ticket of the accused Hubert Webb, what was likewise offered as part of
the testimony of Daluz was a mere photo copy, wherein Daluz also
admitted not having any direct participation in its preparation.
The spurious nature of the document was observed by the witness Daluz himself who admitted that there were irregularities in the Passenger Manifest presented by the defense.
According to Daluz, it is a strict procedural requirement that all the
checking agents who were on duty on March 9, 1991 were supposed to
initial the Passenger Manifest, However, he admitted that Exhibits "223" and "223-N" did not contain the initials of the checking agents who were supposed to initial the same.
The
defense presented Agnes Tabuena, Vice-President for Finance and
Administration of the Philippine Airlines for the purpose of
establishing that Hubert Webb arrived in the Philippines only on 26
October 1992.
Like witnesses Daluz and Nolasco, Tabuena's statements on the witness stand and the Certification was based exclusively on the Passenger Manifest of PAL's PR 103.
Unfortunately for the defense, the said testimony is of no probative
value and of doubtful veracity considering that the witness did not
prepare the same, nor did the witness identify the persons who prepared
the same other than that they were "airport staff", nor did she had any
idea when the document was transmitted to her office. In fact, the
witness could not even interpret the contents of the said Passenger
Manifest, much more testify as to the due execution and genuineness
thereof.
In view of the vital necessity to the other accused of
establishing accused Webb's alibi, it is important to note that Atty.
Francisco Gatchalian, father of the accused Michael Gatchalian was then a
high ranking PAL Official and a colleague of Tabuena. This makes the
source of the document, even ignoring the fact of its inadmissibility,
suspicious.[151] [emphasis supplied.]
The
alibi
of appellants Gatchalian and Lejano, who claimed they were at the Syap
residence at Ayala Alabang Village watching video tapes the whole night
of June 29, 1991 until early morning of June 30, 1991, was even less
plausible considering the distance of that place from Pitong Daan
Subdivision, which is just a few minutes ride away. The RTC noted the
manifestation of the defense on Andrew Syap's refusal to testify on
Gatchalian and Lejano's whereabouts during the night in question,
despite their efforts to convince him to do so. It further noted the
testimony of Assistant NBI Director Pedro Rivera that Carlos Syap upon
seeing Gatchalian with their group even berated Gatchalian for dragging
him into his (Gatchalian's) own problem. Aside from Alfaro, security
guard Normal White, Jr. also testified that the presence of Gatchalian
(son of a homeowner), who pointed to the other appellants in the two (2)
cars behind him as his companions, was the reason they allowed his
friends to enter the subdivision on the night of June 29, 1991. White,
Jr. also categorically declared he had, earlier that same night, seen
Gatchalian with his friends standing at Vinzons St. Thus, other than
the hearsay declaration of his father who merely testified on what his
son told him about spending the night watching video tapes at the Syap
residence on June 29, 1991, Gatchalian presented no corroborative
evidence of his
alibi.As to appellant Lejano, he was
positively identified by Alfaro as the first to express approval of
Webb's plan to gang-rape Carmela by saying, "
Ako ang susunod."
Lejano
was also with Alfaro, Webb and Ventura in going inside the Vizconde
house, and whom she later saw inside the master's bedroom, at the foot
of the bed where the bloodied bodies of Estrellita and Jennifer lay, and
just standing there about to wear his jacket while Webb was pumping the
hogtied and gagged Carmela on the floor. His
alibi is likewise
feeble, as he could have easily gone to the Vizconde house within a few
minutes from the Syap residence where he and Gatchalian allegedly
watched video tapes.
Appellant Fernandez, on his part, insisted
that Alfaro's story was simply fabricated by her "hidden mentors" who
considered the sworn statement of Roberto D. Barroso taken on November
4, 1991. Barroso was one (1) of the members of the "
Akyat Bahay"
gang who were earlier charged before the Makati City RTC in Criminal
Case Nos. 91-7135-37 for Rape with Homicide and for Robbery with
Homicide in connection with the Vizconde killings. There is an uncanny
congruence in the details of the incident as testified to by Alfaro,
with the sworn statement of Barroso particularly pertaining to the
manner by which the garage light of the Vizconde house was put out, the
smashing of the glass panel of the main door, and the appearance of a
woman who opened the main door saying "
Sino kayo?"
[152]Such
submissions are inane, in view of the dismissal of those cases filed
against the first set of suspects based on lack of evidence. Contrary
to Fernandez's insinuation of a fabricated eyewitness account, Alfaro
gave much more minute details than the limited narration given by
Barroso. More important, Alfaro's testimony was sufficiently
corroborated on its material points, not only by the physical evidence,
but also by the testimonies of four (4) disinterested witnesses for the
prosecution: White, Jr., Cabanacan, Gaviola and Birrer.
Fernandez
also cited as among the reasons why Alfaro's declarations were far from
positive, the non-recovery of the fatal weapons used in the killings.
He contended that a crucial link in the prosecution's physical evidence
was thus missing, as Alfaro could not even say what was the "object" or
"thing" which she saw thrown out of the Nissan Patrol while the group
was on their way to the BF Executive Village. Hence, her suggestion that
what she saw Ventura took from the kitchen drawer may have been kitchen
knives used to kill the victims must fail.
[153]Such
proposition fails to persuade. The failure to present the murder
weapon will not exculpate the accused from criminal liability. The
presentation and identification of the weapon used are
not indispensable
to prove the guilt of the accused, much more so where the perpetrator
has been positively identified by a credible witness.
[154]Appellant
Rodriguez denies being a conspirator with Webb's group in the
commission of the crime, asserting that his presence and participation
in the Vizconde killings, from the time of its inception up to its
consummation, was not established beyond reasonable doubt. He cites the
failure of Alfaro to mention his name as part of the "group" twice in
her testimony. These instances refer to Alfaro's direct examination
when she was asked to name the persons riding the convoy of three (3)
vehicles when they left Ayala Alabang Commercial Center parking lot to
proceed to the Vizconde residence at Pitong Daan Subdivision,
[155]
and the second time when she was asked to enumerate the members of the
"group" who were waiting along Aguirre Avenue during their second trip
to the Vizconde residence.
[156] Thus, when Alfaro
testified that the rest of the group acted as lookouts while she, Webb,
Lejano and Ventura went inside the Vizconde house, it must be understood
as limited only to those she had previously enumerated, which
definitely did not include Rodriguez.
[157]The
argument is untenable. The mere fact that Alfaro missed out naming
Rodriguez in two (2) instances during her direct examination does not
give rise to the conclusion that he was not positively identified by
Alfaro as among those present and participated prior to, during and
after the commission of the crime as lookouts along with the rest of the
group. Contrary to Rodriguez's claim, the first time that Alfaro
referred to and enumerated the members of the "group" which she had
unexpectedly joined that night, was at the beginning of her narration on
how she met Ventura's friends when she got her order of
shabu at the Ayala Alabang Commercial Center parking lot.
Q. | And you said that Dong Ventura introduced you to this group, will you name the group that was introduced to you by Dong Ventura? |
A. | First, he introduced me to Hubert Webb, then Fyke Fernandez, Miguel Rodriguez, and then Tonyboy Lejano, Michael Gatchalian.[158] |
Alfaro
was again asked to enumerate the members of the "group" when the
prosecution asked her to name the members of the group, in the later
part of her direct examination during the same hearing.
[159] She also testified that after everyone, including Rodriguez, took part in a
shabu session, they left the parking lot.
[160]
It thus logically follows that whenever Alfaro made reference to the
"group" in her entire narration, it necessarily included those she had
enumerated she had met and had a
shabu session with at the Ayala
Alabang Commercial Center parking lot. This same group was with her
from their first trip to the Vizconde residence until the time they left
Pitong Daan Subdivision and retreated to a house at BF Executive
Village early morning of June 30, 1991. Alfaro had specifically
mentioned Rodriguez when asked by Prosecutor Zuño to describe their
relative positions at the lawn area of the BF Executive Village house,
thus establishing his presence during the "blaming session":
A. | x x x kalat kami, sir, pero hindi kami magkakalayo x x x |
| x x x x |
Q. | How about Miguel Rodriguez, how far was he from Hubert? |
A. | Two meters away. |
| x x x x |
A. | Mike is very very near Ging Rodriguez.[161] |
It
must be stressed that Alfaro categorically declared it was Rodriguez
who approached her at Faces Disco on March 30, 1995 and told her to shut
up or she would be killed. Aside from making that threat, Rodriguez
also offered Alfaro a plane ticket so she could leave the country.
[162]
Rodriguez's bare denial cannot be given any evidentiary weight. We
have ruled that denial is a self-serving negative evidence that cannot
be given greater weight than the declaration of a credible witness who
testified on affirmative matters.
[163]Rodriguez's attempt to set up an
alibi
through the testimony of his cousin Mark Rualo was equally frail. Even
assuming as true Rualo's testimony that he had indeed invited Rodriguez
to attend his birthday party on June 29, 1991 but Rodriguez opted to
stay in his house and even talked to him on the phone when he called
Rodriguez to ask why he was not yet at the party, it cannot serve as
proof of Rodriguez's whereabouts at the time of the commission of the
crime. It did not rule out the actual presence of Rodriguez at the crime
scene.
Appellant Estrada, just like Rodriguez and Fernandez, did not take the witness stand and simply relied on the
alibi
defense of his co-accused, principally that of Webb. Alfaro testified
that it was Estrada, then her boyfriend, who was together with her in
her car throughout the night of June 29, 1991 until early morning of
June 30, 1991. Estrada was among those who acted as lookouts outside
the Vizconde house after they all concurred in the plan of Webb to
gang-rape Carmela while they were still at the parking lot of the Ayala
Alabang Commercial Center.
Conspiracy among
appellants duly provenThe
existence of conspiracy between appellants Webb, Ventura, Lejano,
Gatchalian, Fernandez, Rodriguez and Filart was satisfactorily proven
by the prosecution. Conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and decide to commit
it. Conspiracy comes to life at the very instant the plotters agree,
expressly or impliedly, to commit the felony and forthwith decide to
actually pursue it. It may be proved by direct or circumstantial
evidence
.[164] Although only one (1) rape was actually
proven by the prosecution, as conspirators who mutually agreed to commit
the crime and assisted one (1) another in its commission, on the
occasion of which the rape victim Carmela, her mother Estrellita and
sister Jennifer, were killed, each of the accused-appellants shall be
criminally liable for rape with homicide.
Indeed, appellants by
their individual acts, taken as a whole, showed that they were acting in
unison and cooperation to achieve the same unlawful objective, even if
it was only Webb, Ventura and Lejano who actually went inside the
Vizconde house while Estrada, Fernandez, Rodriguez, Gatchalian and
Filart stood as lookouts outside the house. Under these premises, it is
not even necessary to pinpoint the precise participation of each of the
accused-appellants, the act of one being the act of all.
[165]One
who participates in the material execution of the crime by standing
guard or lending moral support to the actual perpetrators thereof is
criminally responsible to the same extent as the latter. There being
conspiracy among the accused-appellants, they are liable as
co-principals regardless of the manner and extent of their
participation.
[166]Biong guilty as accessory
after the factAppellant
Biong contends that he cannot be convicted as accessory to the crime of
rape with homicide because the acts imputed to him did not result in
the hiding of the case. There was no evidence that such indeed was his
intent or motive. He points out that the bodies of the victims were
found at their respective places where they were assaulted and there was
no evidence that they had been moved an inch from where they breathed
their last. He asserts that non-preservation of the evidence is not an
accessory crime under the Revised Penal Code.
[167]The contentions have no merit.
The
Revised Penal Code in Article 19 defines an accessory as one who has
knowledge of the commission of the crime, yet did not take part in its
commission as principal or accomplice, but took part in it subsequent to
its commission by
any of three modes: (1) profiting himself or
assisting the offender to profit by the effects of the crime; (2)
concealing or destroying the body of the crime, or the effects or
instruments thereof in order to prevent its discovery; and (3)
harboring, concealing, or assisting in the escape of the principals of
the crime, provided the accessory acts with abuse of his public
functions or when the offender is guilty of treason, parricide, murder,
or an attempt to take the life of the Chief Executive, or is known to be
habitually guilty of some other crime.
[168]Under
paragraph 3 of Article 19 of the Revised Penal Code, as amended, there
are two (2) classes of accessories, one of which is a public officer who
harbors, conceals or assists in the escape of the principal. Such
public officer must have acted with abuse of his public functions, and
the crime committed by the principal is
any crime, provided it is
not a light felony. Appellant Biong is one (1) such public officer, and
he abused his public function when, instead of immediately arresting
the perpetrators of the crime, he acceded to the bidding of appellant
Webb to "clean the Vizconde house," which means he must help hide any
possible trace or sign linking them to the crime, and not necessarily to
prevent the discovery of the bodies in such actual condition upon their
deaths. Hence, such "cleaning" would include obliterating fingerprints
and other identifying marks which appellants Webb, Lejano and Ventura
might have left at the scene of the crime.
Contrary to Biong's
assertion, his failure to preserve evidence at the crime scene such as
fingerprints on the doors and objects inside the master's bedroom where
the bodies were found, the bloodied floor of the toilet, the actual
material used in gagging Carmela and Estrellita, the bloodied blankets
and bed sheets, the original condition of the broken glass panel of the
main door, the shoe print and foot prints on the car hood and at the
back of the house, fingerprints on the light bulb at the garage -- was a
form of assistance to help the perpetrators evade apprehension by
confusing the investigators in determining initially what happened and
the possible suspects
. Consequently
, Biong's unlawful
taking of the jewelries and Carmela's ATM card and driver's license, his
act of breaking the larger portion of the main door glass
, the
washing out of the blood on the toilet floor and permitting the
relatives to burn the bloodied bed sheets and blankets -- had in fact
misled the authorities in identifying potential suspects. Thus, the
police had a difficult time figuring out whether it was robbers who
entered the Vizconde house and perpetrated the rape-slay, or drug-crazed
addicts on the loose, or other persons having motive against the
Vizconde family had exacted revenge, or a brutal sexual assault on
Carmela by men who were not strangers to her which also led to the
killings.
On the basis of strong evidence of appellant Biong's
effort to destroy crucial physical evidence at the crime scene, I hold
that the RTC did not err in convicting him as an accessory to the crime
of rape with homicide.
PenaltyThe CA was
correct in affirming the sentence imposed by the RTC upon each of the
accused-appellants Webb, Lejano, Gatchalian, Rodriguez, Fernandez and
Estrada. The proper penalty is
reclusion perpetua because the
imposition of the death penalty under the Revised Penal Code (in Article
335 thereof, as amended by R.A. No. 2632 and R.A. No. 4111, when by
reason or on the occasion of rape, a homicide is committed), was
prohibited by the Constitution at the time the offense was committed.
[169]
At any rate, the subsequent passage of R.A. No. 9346 entitled "An Act
Prohibiting the Imposition of the Death Penalty in the Philippines,"
which was signed into law on June 24, 2006, would have mandated the
imposition on accused-appellants the same penalty of
reclusion perpetua.As
to the penalty imposed by the CA on appellant Biong as accessory after
the fact to the crime of rape with homicide, we find the same proper and
in order.
DNA TestingAppellant Gatchalian
reiterates his and appellant Webb's motion for DNA testing of the semen
specimen taken from the vaginal cavity of Carmela during the autopsy
conducted by Dr. Cabanayan, which motion was denied by the RTC for lack
of available scientific expertise and technology at the time.
With
the great advances in forensic science and under pertinent state laws,
American courts allow post-conviction DNA testing when its application
has strong indications that the result could potentially exonerate the
convict. Indeed, even a convicted felon has the right to avail of new
technology not available during his trial.
On October 2, 2007, this Court approved the
Rule on DNA Evidence[170] which took effect on October 15, 2007.
Pursuant to Section 4 of the Rule, the court may at any time, either
motu proprio
or on application of any person who has a legal interest in the matter
in litigation, order a DNA testing after due notice and hearing. Such
order shall issue upon showing of the following:
(a) A biological sample exists that is relevant to the case;
(b)
The biological sample: (i) was not previously subjected to the type of
DNA testing now requested; or (ii) was previously subjected to DNA
testing, but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d)
The DNA testing has the scientific potential to produce new information
that is relevant to the proper resolution of the case; and
(e)
The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.[171]
By
Resolution dated April 20, 2010, this Court granted appellant Webb's
request to submit for DNA analysis the semen specimen taken from the
cadaver of Carmela Vizconde under the custody of the National Bureau of
Investigation (NBI). We ordered (1) the NBI to assist the parties in
facilitating the submission of the said specimen to the UP-Natural
Science and Research Institute (UP-NSRI), Diliman, Quezon City; and (2)
the NBI and UP-NSRI to report to this Court within fifteen (15) days
from notice regarding compliance with and implementation of the said
resolution.
In his
Compliance and Manifestation dated
April 27, 2010, Atty. Reynaldo O. Esmeralda, NBI Deputy Director for
Technical Services, informed this Court that the semen specimen/vaginal
smear taken from the cadaver of Carmela Vizconde and all original
documents (autopsy and laboratory reports, and photographs) are no
longer in the custody of the NBI as these were submitted as evidence to
the Regional Trial Court (RTC) of Parañaque City, Branch 274 by then NBI
Medico-Legal Chief, Prospero A. Cabanayan, M.D., when the latter
testified on direct and cross-examination on January 30, 31, February 1,
5, 6 and 7, 1996. Attached thereto are certified true copies of
Laboratory Report No. SN-91-17 (stating positive result for the presence
of human spermatozoa), Autopsy Report No. N-91-1665 (with remarks:
"Smear for presence of spermatozoa"), copy of the sworn statement of Dr.
Cabanayan and certified true copy of the envelope bearing his signed
handwritten notation that all original photographs have been submitted
as evidence during the aforementioned hearing dates.
[172]On May 11, 2010, the Office of the Solicitor General (OSG) filed a
Motion for Reconsideration of our Resolution dated April 20, 2010 on grounds that (a) the DNA testing order was issued in disregard of Section 4 of the
Rule on DNA Evidence
which requires prior hearing and notice; (b) a determination of
propriety of DNA testing at this stage under the present Rule, separate
from that filed by Webb before the trial court on October 6, 1997, is
necessary as there was no opportunity back then to establish the
requisites for a DNA testing order under the Rule which took effect only
in 2007; (c) the result of the DNA testing will constitute new
evidence, which cannot be received and appreciated for the first time on
appeal; and (d) this Court failed to elucidate an exceptional
circumstance to justify its decision to consider a question of fact, as
this Court itself acknowledged in its April 20, 2010 Resolution that the
result of DNA testing is not crucial or indispensable in the
determination of appellant Webb's guilt for the crime charged.
[173]On May 21, 2010, Atty. Roberto Makalintal, Jr., Branch Clerk of RTC Parañaque City, Branch 274, submitted his
Comment on The Compliance and Manifestation Dated April 27, 2010
of the NBI stating that: (a) There is no showing of actual receipt by
RTC Branch 274 of the specimen/vaginal smear mentioned in Dr.
Cabanayan's affidavit dated April 27, 2010; (b) Based on available
records such as the TSN of January 31, 1996 and February 7, 1996 during
which Dr. Cabanayan testified, no such specimen/vaginal smear was
submitted to RTC Branch 274; (c) The TSN of January 31, 1996 on pages
57, 58 and 69 suggest that marked in evidence as Exhibits "S", "T" and
"U" by then Chief State Prosecutor Jovencito Zuño were only the
photographs of the three slides containing the semen specimen; (c) In
the hearing of February 7, 1996, Dr. Cabanayan's last testimony before
RTC Branch 274 in this case, he testified that the last time he saw
those slides was when he had the photographs thereof taken in 1995 (the
first time was when he examined them in 1991), and as far as he knows
between 1991 and 1995, those slides were kept in the Pathology
Laboratory of the NBI; and (d) The entire records of the cases were
already forwarded to this Court a long time ago, including the evidence
formally offered by the prosecution and the accused.
[174]Under
our Resolution of June 15, 2010, we required the NBI to (a) show proof
of the release of the semen specimen to the RTC of Parañaque City,
Branch 274 in 1996; and (b) comment on the alleged conflicting
representations in its
Compliance and Manifestation dated April 27, 2010, both within ten days from notice. However, the NBI has not complied with said directive.
In
his Comment on the OSG's motion for reconsideration, appellant
Fernandez argued that when this Court, in the higher interest of
justice, relaxed the
Rule on DNA Evidence to afford Webb the
fullest extent of his constitutional rights, the prosecution was not
thereby denied its equally important right to due process. Contrary to
the OSG's claim that this Court immediately granted DNA testing without
observing the requisites under Section 4 of the
Rule on DNA Evidence,
and without due notice and hearing, appellant asserts that the
Resolution dated April 20, 2010 clearly defines the parameters of the
DNA analysis to be conducted by the UP-NSRI assisted by the NBI. Indeed,
there are ample safeguards in the Rule to assure the reliability and
acceptability of the results of the DNA testing. Fernandez, however,
objected to the statement of the OSG that "in the light of positive
identification" of appellant Webb by the principal witness for the
prosecution, Jessica Alfaro, the existing circumstances more than
warrant the affirmation of Webb's guilt. Alfaro's cross-examination
exposed her as an "out-and-out perjurer, a bold and intentional liar
under oath" and a "fake witness" whose account of the incident is
"shot-through with fatal omissions, self-contradictions, inconsistencies
and inherent improbabilities."
[175]Appellant
Lejano likewise filed his comment, pointing out that the trial court
denied Webb's motion to direct the NBI to submit semen specimen for DNA
analysis on November 25, 1997 only after lengthy exchange of pleadings
between the defense and prosecution, the latter having properly opposed
said motion. Hence, the People cannot now rightfully claim that there
was no notice or hearing on the issue of submitting the semen specimen
for DNA analysis. Citing
Brady v. Maryland,
[176]
Lejano contended that the suppression of exculpatory evidence - or
evidence that will show reasonable probability that the verdict would
have been different had the evidence been disclosed - grossly violates
an accused's right to due process. In this case, the evidence needs
only to be subjected to DNA analysis to establish the innocence of
appellant Webb, as well as of petitioner and appellant Lejano. It was
further asserted that the semen specimen was already existing at the
time of the trial, and hence can hardly be considered as "new evidence"
and that DNA testing of said semen specimen taken from the victim
Carmela Vizconde "has the scientific potential to produce new
information that is relevant to the proper resolution of the case" (Sec.
4 (d),
Rule on DNA Evidence).
[177]On his
part, appellant Webb stressed that there are exceptional circumstances
that justify this Court's order to immediately conduct the DNA
analysis. He has been behind bars for more than fifteen (15) years. He
has filed a motion for DNA analysis as early as 1997 or thirteen (13)
years ago. The result of such test could yield evidence that could
acquit him while no damage will be suffered by the prosecution
considering that this Court emphasized in its Resolution of April 20,
2010 that the prosecution's evidences and concerns regarding the proper
preservation of evidence in the custody of the NBI would have to be
addressed in the light of the requirements laid down by the
Rule on DNA Evidence.
As to the prosecution's argument that this Court cannot receive and
appreciate "new evidence," Section 4 of the Rule states that "the
appropriate court may, at any time, either
motu proprio or on
application of any person who has a legal interest in the matter in
litigation, order a DNA testing"; DNA testing is even available
post-conviction (
Ibid, Sec. 6). This Court in accordance with
proper procedure thus decided to receive DNA evidence in order not to
further delay the case, appellants after all, were convicted more than
ten (10) years ago in 2000 and have been incarcerated for fifteen (15)
years now.
Webb further underscored that where the evidence has
not been offered, it is the prosecution who should have the legal
custody and responsibility over it.
[178] The NBI's letter
dated April 23, 1997 confirmed that the semen specimen was in its
custody. The NBI's repudiation of such fact is belied by the records;
the Prosecution's Formal Offer of Evidence shows that Exhibits "S", "T"
and "U" were merely photographs of the slides containing the vaginal
smear. Also, nowhere in the transcript of stenographic notes taken
during Dr. Cabanayan's testimony was it shown that he turned over the
actual slides to the trial court. On the contrary, when Dr. Cabanayan
was asked on February 6, 1996 to produce the slides, which he had
promised to bring during the previous hearing, he admitted that he
"forgot all about it" when he came to the hearing. Thus, it appears from
the record that from the time the semen specimen was taken from Carmela
Vizconde's cadaver, it has always been in the custody of the NBI.
[179]Evidently,
the NBI could no longer produce the semen specimen/vaginal smear taken
from the cadaver of Carmela Vizconde and consequently DNA analysis of
said physical evidence can no longer be done. Hence, this Court set
aside the April 20, 2010 resolution and forthwith proceeded to resolve
the present appeal on the basis of existing evidence which have been
formally offered by the parties and/or made part of the records.
Appellant Webb's Urgent Motion To AcquitWith
the recall of the order for DNA testing, appellant Webb moved for his
acquittal on the ground of violation of his constitutional right to due
process by reason of the State's failure to produce the semen specimen,
either through negligence or willful suppression. Webb argues that the
loss or suppression by the prosecution of the semen specimen denied him
the right to avail of the latest DNA technology and prove his
innocence. Citing American jurisprudence (
Matter of Dabbs v. Vergari,
[180] California v. Trombetta[181] and
Brady v. Maryland[182])
,
Webb contends that in disallowing the DNA examination he had requested,
the RTC denied him from presenting a "complete defense" through that
"singular piece of evidence that could have definitively established his
innocence," the trial court relying instead on the identification of
Jessica Alfaro, a "perjured witness." The constitutional duty of the
prosecution to turn over exculpatory evidence to the accused includes
the duty to preserve such evidence.
Webb maintains that the semen
specimen extracted from the cadaver of Carmela had exculpatory value,
as even NBI's Dr. Cabanayan testified during the hearing of February 7,
1996, that it was still possible to subject the same to DNA analysis to
identify the person to whom the sperm belonged. Thus, a DNA analysis of
said semen specimen excluding appellant Webb as the source thereof
would disprove the prosecution's evidence against him. Further, Webb
points out that the prosecution considered the presence of spermatozoa
on the body of Carmela as evidence that she was raped, offering the
photographs of the glass slides containing the sperm cells as proof that
she was in fact raped on or about the late evening of June 29, 1991 or
early morning of June 30, 1991. But the only evidence of the prosecution
that it was Webb who raped Carmela was the testimony of Alfaro which
was given full credit by the RTC and CA despite all its inconsistencies,
and despite all documentary and testimonial evidence presented by the
defense proving that Webb was at the United States at the time the crime
was committed.
On the matter of preserving DNA evidence, Webb cites Section 12 of the
Rule on DNA Evidence
which authorizes the court to order the appropriate government agency
to preserve the DNA evidence during trial and even when the accused is
already serving sentence, until such time the decision of the court has
become final and executory. While this Court has given Webb the best
opportunity to prove his innocence in the order granting DNA analysis of
the sperm specimen taken from Carmela's cadaver, such potentially
exculpatory evidence could not be produced by the State. Webb now claims
that as a result of the destruction or loss of evidence under the NBI's
custody, he was effectively deprived of his right to present a complete
defense, in violation of his constitutional right to due process, thus
entitling him to an acquittal.
Loss of Semen SpecimenNot Ground For Acquittal of Webb Webb's
argument that under the facts of this case and applying the cited
rulings from American jurisprudence, he is entitled to acquittal on the
ground of violation of his constitutional right to due process,is
without merit.
In
Brady v. Maryland[183] it was held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." In
said case, the petitioner was convicted of murder committed in the
course of robbery and sentenced to death. He later learned that the
prosecution suppressed an extrajudicial confession made by his
accomplice who admitted he did the actual killing. The US Supreme
Court granted a new trial and remanded the case but only on the question
of punishment.
In
Matter of Dabbs v. Vergari,
[184]
the court ordered DNA testing of specimen taken from a rape victim
after the sexual assault and from the accused who was convicted, DNA
testing being unavailable at the time of the trial. Accused therein was
identified by the victim as her attacker. The court found the factual
circumstances clearly showed that the semen specimen could have come
only from the accused. It noted that the witness testified that accused
acted alone, had ejaculated and she did not have sexual intercourse
with any other person within 24 hours prior to the sexual assault. DNA
testing ultimately revealed that petitioner's DNA composition did not
match with that found on the victim's underwear. Consequently, the
court granted petitioner's subsequent motions to vacate the judgment of
conviction.
In
California v. Trombetta,[185]
a case involving the prosecution for drunk driving, the US Supreme
Court ruled that the Due Process Clause of the Constitution does not
require that law enforcement agencies preserve breath samples in order
to introduce breath-analysis tests at trial.
Given
our precedents in this area, we cannot agree with the California Court
of Appeal that the State's failure to retain breath samples for
respondents constitutes a violation of the Federal Constitution. To
begin with, California authorities in this case did not destroy
respondents' breath samples in a calculated effort to circumvent the
disclosure requirements established by Brady v. Maryland and its
progeny. In failing to preserve breath samples for respondents, the
officers here were acting "in good faith and in accord with their normal
practice." x x x The record contains no allegation of official animus
towards respondents or of a conscious effort to suppress exculpatory
evidence.
More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever
duty the Constitution imposes on the States to preserve evidence, that
duty must be limited to evidence that might be expected to play a
significant role in the suspect's defense.
To meet this
standard of constitutional materiality, x x x evidence must both possess
an exculpatory value that was apparent before the evidence was
destroyed, and be of such a nature that the defendant would be unable to
obtain comparable evidence by other reasonably available means.
Neither of these conditions is met on the facts of this case. [italics
supplied.]
From the above cases, it is clear that what
is crucial is the requirement of materiality of the semen specimen
sought for DNA testing. Appellant Webb must be able to demonstrate a
reasonable probability that the DNA sample would prove his innocence.
Evidence is material where "there is reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding
would have been different."
[186]In
People v. Yatar,[187] decided before the promulgation of the
Rule on DNA Evidence,
the Court expounded on the nature of DNA evidence and the factors to be
considered in assessing its probative value in the context of
scientific and legal developments. The proper judicial approach is
founded on the concurrence of
relevancy and
reliability. Most important, forensic identification though useful does not preclude independent evidence of identification.
DNA
is a molecule that encodes the genetic information in all living
organisms. A person's DNA is the same in each cell and it does not
change throughout a person's lifetime; the DNA in a person's blood is
the same as the DNA found in his saliva, sweat, bone, the root and shaft
of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal
cells. Most importantly, because of polymorphisms in human genetic
structure, no two individuals have the same DNA, with the notable
exception of identical twins.
DNA print or identification
technology has been advanced as a uniquely effective means to link a
suspect to a crime, or to exonerate a wrongly accused suspect, where
biological evidence has been left. For purposes of criminal
investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence.
It can assist immensely in effecting a more accurate account of the
crime committed, efficiently facilitating the conviction of the guilty,
securing the acquittal of the innocent, and ensuring the proper
administration of justice in every case.
DNA evidence collected
from a crime scene can link a suspect to a crime or eliminate one from
suspicion in the same principle as fingerprints are used. Incidents
involving sexual assault would leave biological evidence such as hair,
skin tissue, semen, blood, or saliva which can be left on the victim's
body or at the crime scene. Hair and fiber from clothing, carpets,
bedding, or furniture could also be transferred to the victim's body
during the assault. Forensic DNA evidence is helpful in proving that
there was physical contact between an assailant and a victim. If
properly collected from the victim, crime scene or assailant, DNA can be
compared with known samples to place the suspect at the scene of the
crime.
The U.P. National Science Research Institute (NSRI), which
conducted the DNA tests in this case, used the Polymerase chain
reaction (PCR) amplification method by Short Tandem Repeat (STR)
analysis. With PCR testing, tiny amounts of a specific DNA sequence can
be copied exponentially within hours. Thus, getting sufficient DNA for
analysis has become much easier since it became possible to reliably
amplify small samples using the PCR method.
In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors:
how the samples were collected, how they were handled, the possibility
of contamination of the samples, the procedure followed in analyzing the
samples, whether the proper standards and procedures were followed in
conducting the tests, and the qualification of the analyst who conducted
the tests.
In the case at bar, Dr. Maria Corazon Abogado de
Ungria was duly qualified by the prosecution as an expert witness on DNA
print or identification techniques. Based on Dr. de Ungria's testimony,
it was determined that the gene type and DNA profile of appellant are
identical to that of the extracts subject of examination. The blood
sample taken from the appellant showed that he was of the following gene
types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are
identical with semen taken from the victim's vaginal canal. Verily, a
DNA match exists between the semen found in the victim and the blood
sample given by the appellant in open court during the course of the
trial.
Admittedly, we are just beginning to integrate these
advances in science and technology in the Philippine criminal justice
system, so we must be cautious as we traverse these relatively
unchartered waters. Fortunately, we can benefit from the wealth of
persuasive jurisprudence that has developed in other jurisdictions.
Specifically, the prevailing doctrine in the U.S. has proven
instructive.
In Daubert v. Merrell Dow, it was ruled
that pertinent evidence based on scientifically valid principles could
be used as long as it was relevant and reliable. Judges, under Daubert,
were allowed greater discretion over which testimony they would allow
at trial, including the introduction of new kinds of scientific
techniques. DNA typing is one such novel procedure.
Under
Philippine law, evidence is relevant when it relates directly to a fact
in issue as to induce belief in its existence or non-existence. Applying the Daubert
test to the case at bar, the DNA evidence obtained through PCR
testing and utilizing STR analysis, and which was appreciated by the
court a quo is relevant and reliable since it is reasonably based on
scientifically valid principles of human genetics and molecular biology.
Independently
of the physical evidence of appellant's semen found in the victim's
vaginal canal, the trial court appreciated the following circumstantial
evidence as being sufficient to sustain a conviction beyond reasonable
doubt: (1) Appellant and his wife were living in the house of Isabel
Dawang together with the victim, Kathylyn Uba; (2) In June 1998,
appellant's wife left the house because of their frequent quarrels; (3)
Appellant received from the victim, Kathylyn Uba, a letter from his
estranged wife in the early morning of June 30, 1998; (4) Appellant was
seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998
near the kitchen of the house of Isabel Dawang, acting strangely and
wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant
going down the ladder of the house of Isabel at 12:30 p.m., wearing a
dirty white shirt, and again at 1:30 p.m., this time wearing a black
shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a
was approaching; (7) Salmalina Tandagan saw appellant in a dirty white
shirt coming down the ladder of the house of Isabel on the day Kathylyn
Uba was found dead; (8) The door leading to the second floor of the
house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba,
lay naked in a pool of blood with her intestines protruding from her
body on the second floor of the house of Isabel Dawang, with her stained
pants, bra, underwear and shoes scattered along the periphery; (10)
Laboratory examination revealed sperm in the victim's vagina (Exhibits
"H" and "J"); (11) The stained or dirty white shirt found in the crime
scene was found to be positive with blood; (12) DNA of slide, Exhibits
"J" and "H", compared with the DNA profile of the appellant are
identical; and (13) Appellant escaped two days after he was detained but
was subsequently apprehended, such flight being indicative of guilt.[188] [emphasis supplied.]
Indeed, in other jurisdictions it has been recognized that DNA test results are not always exculpatory.
Postconviction
test results are not always exculpatory. In addition, exculpatory test
results will not necessarily free the convicted individual. If the
evidence does exclude the petitioner, the court must weigh the
significance of the exclusion in relation to all the other evidence.
Convicted offenders often believe that if crime scene evidence does not
contain their DNA they will automatically be exonerated. Not finding
the petitioner's DNA does not automatically indicate the case should be
overturned, however. In a rape case, for example, the perpetrator may
have worn a condom, or not ejaculated. In some cases, the absence of
evidence is not necessarily evidence of the defendant's absence or lack
of involvement in the crime.[189]
We hold
that the source of the semen extracted from the vaginal cavity of the
deceased victim is immaterial in determining Webb's guilt. From the
totality of the evidence presented by both the prosecution and the
defense, Webb was positively identified as Carmela's rapist.
As
the records bear out, the positive identification of appellant Webb as
Carmela's rapist satisfied the test of moral certainty, and the
prosecution had equally established beyond reasonable doubt the fact of
rape and the unlawful killing of Carmela, Estrellita and Jennifer on the
occasion thereof. Even assuming that the DNA analysis of the semen
specimen taken from Carmela's body hours after her death excludes Webb
as the source thereof, it will not exonerate him from the crime
charged. Alfaro did not testify that Webb had ejaculated or did not use
a condom while raping Carmela. She testified that she saw Webb rape
Carmela and it was only him she had witnessed to have committed the rape
inside the Vizconde residence between late evening of June 29, 1991 and
early morning of June 30, 1991. Moreover, she did not testify that
Carmela had no sexual relations with any other man at least 24 hours
prior to that time. On the other hand, a positive result of DNA
examination of the semen specimen extracted by Dr. Cabanayan from
Carmela's cadaver would merely serve as corroborative evidence.
As
to the loss of the semen specimen in the custody of the NBI, appellant
Webb's contention that this would entitle him to an acquittal on the
basis of
Brady v. Maryland is misplaced.
In
Arizona v. Youngblood,[190]
a 10-year old boy was molested and sodomized by the accused, a
middle-aged man, for 1½ hours. After the assault, the boy was examined
in a hospital where the physician used swab to collect specimen from the
boy's rectum and mouth, but did not examine them at anytime. These
samples were refrigerated but the boy's clothing was not. Accused was
identified by the victim in a photographic lineup and was convicted of
child molestation, sexual assault and kidnapping. During the trial,
expert witnesses had testified that timely performance of tests with
properly preserved semen samples could have produced results that might
have completely exonerated the accused. The Court held:
There
is no question but that the State complied with Brady and Agurs here.
The State disclosed relevant police reports to respondent, which
contained information about the existence of the swab and the clothing,
and the boy's examination at the hospital. The State provided
respondents' expert with the laboratory reports and notes prepared by
the police criminologist, and respondent's expert had access to the swab
and to the clothing.
x x x x
The Due Process Clause of
the Fourteenth Amendment, as interpreted in Brady, makes the good or bad
faith of the State irrelevant when the State fails to disclose to the
defendant material exculpatory evidence. But we think the Due Process
Clause requires a different result when we deal with the failure of the
State to preserve evidentiary material of which no more can be said than
that it could have been subjected to tests, the results of which might
have exonerated the defendant. x x x We think that requiring a
defendant to show bad faith on the part of the police both limits the
extent of the police's obligation to preserve evidence to reasonable
bounds and confines it to that class of cases where the interests of
justice most clearly require it, i.e., those cases in which the police
themselves by their conduct indicate that the evidence could form a
basis for exonerating the defendant. We therefore hold that unless a
criminal defendant can show bad faith on the part of the police,
failure to preserve potentially useful evidence does not constitute a
denial of due process of law.
In this case, the police
collected the rectal swab and clothing on the night of the crime:
respondent was not taken into custody until six weeks later. The
failure of the police to refrigerate the clothing and to perform tests
on the semen samples can at worst be described as negligent. None of
this information was concealed from respondent at trial, and the
evidence - such as it was - was made available to respondent's expert
who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion - and we agree--that there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause. [emphasis supplied.]
In
this case, there is no showing of bad faith on the part of the police
investigators, specifically the NBI, for the non-production of the
vaginal swab and glass slide containing the semen specimen, during the
trial and upon our recent order for DNA testing. The prosecution did
not conceal at anytime the existence of those vaginal swab and glass
slide containing the vaginal smear. Curiously, despite Dr. Cabanayan's
admission during the hearing that it was still possible to subject the
semen specimen to DNA analysis, the defense never raised the issue
thereafter and resurrected the matter only in October 1997 when Webb's
counsel filed his motion.
It bears to stress that the vaginal
smear itself was not formally offered by the prosecution, but only the
photographs of the glass slide containing the semen specimen for the
purpose only of proving that Carmela was in fact raped
and not that Webb was the source of the sperm/semen.
As noted by the RTC when it denied Webb's motion for DNA on November
25, 1997, prevailing jurisprudence stated that DNA being a relatively
new science then, has not yet been accorded official recognition by our
courts. The RTC also considered the more than six (6) years that have
elapsed since the commission of the crime in June 1991, thus the
possibility of the specimen having been tampered with or contaminated.
Acting on reasonable belief that the proposed DNA examination will not
serve the ends of justice but instead lead to complication and confusion
of the issues of the case, the trial court properly denied Webb's
request for DNA testing.
We thus reiterate that the vaginal smear
confirming the presence of spermatozoa merely corroborated Alfaro's
testimony that Carmela was raped before she was killed. Indeed, the
presence or absence of spermatozoa is immaterial in a prosecution for
rape. The important consideration in rape cases is not the emission of
semen but the unlawful penetration of the female genitalia by the male
organ.
[191] On the other hand, a negative result of DNA
examination of the semen specimen could not have exonerated Webb of the
crime charged as his identity as a principal in the rape-slay of Carmela
was satisfactorily established by the totality of the evidence. A
finding that the semen specimen did not match Webb's DNA does not
necessarily negate his presence at the
locus criminis.Civil Liability of Appellants The
Court sustains the award of P100,000.00 as civil indemnity, pursuant
to current jurisprudence that in cases of rape with homicide, civil
indemnity in the amount of P100,000.00 should be awarded to the heirs of
the victim.
[192] Civil indemnity is mandatory and
granted to the heirs of the victims without need of proof other than the
commission of the crime. For the deaths of Estrellita and Jennifer, the
award of civil indemnity
ex delicto to their heirs,
was likewise in order, in the amount of P50,000.00 each.
[193] Following
People v. Dela Cruz,[194] P75,000.00 civil indemnity and P75,000 moral damages in rape cases are awarded only if they are classified as heinous.
[195]
As the rape-slay of Carmela took place in 1991, R.A. No. 7659 entitled
"AN ACT TO IMPOSE DEATH PENALTY ON CERTAIN HEINOUS CRIMES, AMENDING FOR
THAT PURPOSE THE REVISED PENAL LAWS, AS AMENDED, OTHER SPECIAL PENAL
LAWS, AND FOR OTHER PURPOSES," which was approved on December 13, 1993
and was to become effective fifteen (15) days after its publication in
two national newspapers of general circulation, was not yet effective.
[196]As to moral damages, recent jurisprudence allows the amount of P75,000.00 to be awarded in cases of rape with homicide.
[197]
We find the amount of P2,000,000.00 as moral damages awarded by the RTC
as affirmed by the CA, rather excessive. While courts have a wide
latitude in ascertaining the proper award for moral damages, the award
should not be to such an extent that it inflicts injustice on the
accused.
[198] The award of P2,000,000.00 as moral damages
to the heir of the victims should accordingly be reduced to
P500,000.00. The rest of the awards given by the trial court are
affirmed.
In view of the foregoing, I respectfully vote that the appeals in the above-entitled cases be
DISMISSED and the Decision dated December 15, 2005 of the Court of Appeals in CA-G.R. CR H.C. No. 00336 be
AFFIRMED with MODIFICATION only as to the award of damages.
[1]
Penned by Associate Justice Rodrigo V. Cosico and concurred in by
Associate Justices Regalado E. Maambong and Lucenito N. Tagle (dissented
in the resolution of appellants' motion for reconsideration).
[2] Rollo (G.R. No. 176389), p. 13.
[3] Effective October 15, 2004.
[4] Rollo (G.R. No. 176389)
, pp. 393-399 and
rollo (G.R. No. 176864), pp. 80-104.
[5] Rollo ( G.R. No. 176864)
, pp. 263-499, 525-550.
[6] Records, Vol. 1, pp. 1-3.
[7] TSN, October 19, 1995, pp. 3-6 (Records, Vol. 5, pp. 37-40); TSN, October 23, 1995, pp. 10-24 (Records, Vol. 5, pp. 258-272).
[8] TSN, October 23, 1995, pp. 6-10 (Records, Vol. 5, pp. 254-258).
[9] TSN, October 10, 1995, pp. 79-81 and 93-99 (Records, Vol. 4, pp. 253-255, 267-273).
[10]
TSN, October 18, 1995, pp. 18-19, 27-40, 54 and 62-63 (Records, Vol. 4,
pp. 943-944, 953-966, 980 and 988-989); TSN, October 30, 1995, pp.
27-29 (Records, Vols. 5 & 6, pp. 900-902); TSN, November 8, 1995,
pp. 91, 114, 117-118 (Records, Vol. 6, pp. 395, 418 and 421-422); TSN,
October 16, 1995, pp. 142-143 (Records, Vol. 4, pp. 694-695); Exhibit
"A", Records, Vol. 8, p. 508.
[11] TSN, October 10, 1995, pp. 99-103 (Records, Vol. 4, pp. 273-278).
[12] Pictures of the Vizconde house at Records, Vol. 1, pp. 82-87.
[13] TSN, February 26, 1996, pp. 77-82.
[14] TSN, October 10, 1995, pp. 104-121 and 155 (Records, Vol. 4, pp. 278-295 and 329).
[15] TSN, March 4, 1996, p. 28.
[16] TSN, October 10, 1995, pp. 156-164 (Records, Vol. 4, pp. 330-338).
[17]
Id., at p. 165 (339); TSN, October 16, 1995, pp. 33-35 (Records, Vol.
4, pp. 586-588); TSN, October 24, 1995, pp. 98-100 (Records, Vols. 5, 6
& 7, pp. 528-530); TSN, February 29, 1996, pp. 42-64.
[18] TSN, October 10, 1995, pp. 36-53 (Records, Vol. 4, pp. 589-607).
[19]
Id., at pp. 40-72, 75-76 (Id., at pp. 593-625, 628 to 628-A); TSN,
January 25, 1996, pp. 14-15; TSN, February 26, 1996, pp. 104-106.
[20] TSN, October 10, 1995, pp. 76-97 (Records, Vol. 4, pp. 628-A to 649); May 22, 1995 Affidavit, Records, Vol. l, p. 96.
[21] Id., at pp. 97-104 (Id. at pp. 649-656); TSN, February 19, 1996, pp. 6-39; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.
[22]
Id., at pp. 111-112, 121-142 (Id. at pp. 663-664, 673-694); TSN,
February 27, 1996, pp. 38, 50-51; TSN, February 8, 1996, pp. 50, 55,
60-81; May 22, 1995 Affidavit, Records, Vol. 1, pp. 97-98.
[23] Exhibits "G" to "G-2", "Q" to "R", "V", "W" and "X", Records, Vol. 8, pp. 308-310, 323-324, 328-330.
[24] Exhibits "H" to "K", Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp.
64, 67-91; TSN, January 31, 1996, pp. 7-8.
[25] Exhibit "Y" to "BB", Records, Vol. 8, pp. 456-459; TSN, January 31, 1996, pp. 59-75.
[26] Exhibits "M" to "U", Records, Vol. 8, pp. 319-322; TSN, January 31, 1996, pp. 8-10, 13-20.
[27] TSN, January 31, 1996, pp. 7, 17-18 and 74.
[28] TSN, March 25, 1996, pp. 8-14, 17-34.
[29] Id., at pp. 21-22, 34-55; TSN, May 2, 1996, pp. 63-64.
[30] TSN, March 25, 1996, pp. 57-69.
[31] Id., at pp. 70-79.
[32] Id., at pp. 79-109.
[33] TSN, March 14, 1996, pp. 12, 15-25, 41-45, 48, 51-54, 63-64; TSN, March 18, 1996, pp. 88-97.
[34] TSN, March 14, 1996, pp. 79-89, 103-104.
[35] Id., at pp. 104-106; TSN, March 18, 1996, pp. 20-22.
[36] Employment Contract of Gaviola, Exhibit "C", Records, Vol. 8, p. 304.
[37] TSN, December 5, 1995, pp. 21-65.
[38] TSN, December 6, 1995, p. 19; TSN, December 13, 1995, pp. 88-89.
[39] TSN, April 16, 1996, pp. 18-38, 79.
[40] Id., at pp. 38-56.
[41] Id., at pp. 55-66; TSN, April 23, 1996, pp. 12-13.
[42] TSN, April 16, 1996, pp. 66-86.
[43] Id., at pp. 96-104.
[44] TSN, February 11, 1997, pp. 14-19, 24-28, 31.
[45] Id., at pp. 48-49, 53-72, 82-102; Exhibits "SSSS" and "TTTT", Records, Vol. 12, pp. 790-795.
[46] Id., at pp. 80-82, 103-105.
[47] See page 4 of CA Decision,
rollo (G.R. No. 176389)
, p. 121.
[48] TSN, August 14, 1997, pp. 11-19
.[49]
TSN, July 8, 1997, pp. 15-23, 61-62; TSN, June 9, 1997, pp. 9-10,
20-26; TSN, July 3, 1997, pp. 9-19; TSN, June 19, 1997, pp. 9-12,
29-36, 53-54; TSN, July 1, 1997, pp. 25-27.
[50] Id., at pp. 28-73.
[51]
TSN, September 1, 1997, pp. 5-79; Exhibits "223" to "295", Records,
Vol. 21, pp. 11-25, 26, 31, 203, 207; Exhibits "79", "319", "331",
"234", "295", "346", "305", "306", "307" and "244" to "246".
[52] Id., at pp. 81-86.
[53] Id., at pp. 90-91.
[54] TSN, April 30, 1997, pp. 73-74.
[55] TSN, April 23, 1997, pp. 128-129, 134-148.
[56] TSN, June 2, 1997, pp. 51-64, 75-78.
[57] TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84.
[58] TSN, July 16, 1997, pp. 37-42, 46-51, 58-62.
[59] Id., at pp. 65-70.
[60] TSN, June 26, 1997, pp. 13-28.
[61] TSN, May 9, 1996, pp. 26-32, 37, 44-57.
[62] TSN, July 29, 1997, pp. 54-58.
[63] TSN, July 7, 1997, pp. 19-35.
[64] TSN, July 2, 1997, pp 33-37.
[65] TSN, June 3, 1997, pp. 14-33.
[66] TSN, August 12, 1997, pp. 9-12, 28-30.
[67] Exhibit "331".
[68] Exhibit "337-B".
[69] Exhibit "349", Records, Vol. 21, p. 116 (Vol. 3), 29-32 (Vol. 4).
[70] Exhibit "348".
[71] Exhibit "319-A".
[72] Exhibits "323", "325", "326".
[73] Exhibit "344".
[74] Exhibit "346".
[75] Exhibit "309", "309-A" and submarkings.
[76] Exhibit "347" and submarkings.
[77] Exhibit "338".
[78] Exhibits "341" and "342", Records, Vol. 21, pp. 6-9, 40, 63-65, 112, 140, 141-145 (Vol. 3).
[79] Exhibits "369" and "364", Records, Vol. 21, pp. 24, 104-142 (Vol. 4).
[80] Exhibits "207" to"219".
[81] Exhibit "207-B".
[82] Exhibit "212-D", Records, Vol. 21, p. 265 (Vol. 1).
[83] Exhibit "260".
[84] Exhibit "261".
[85] Exhibit "262".
[86] Exhibit "192", Records, Vol. 21, pp. 253-279 (Vol. 1), 1-7, 157, 158, 169 (Vol. 2), 194 (Vol. 1).
[87] Exhibit "215" "215-B" "215-C", Records, Vol. 21, pp. 254-256, 272-274 (Vol. 1).
[88] Exhibit "216"; TSN, April 15-17, 1997.
[89] TSN, October 9, 1997, pp. 39-64.
[90] TSN, February 4, 1998, pp. 6-7, 17-30.
[91] TSN, February 9, 1998, pp. 18-19, 21-62.
[92] TSN, January 21, 1998, pp. 14, 39-56.
[93] TSN, February 16, 1998 and February 19, 1998.
[94] TSN, January 22, 1998, pp. 18-21, 40-44.
[95] TSN, January 26, 1998, pp. 91-92, 104-121.
[96] TSN, February 3, 1998, pp. 10-11, 29-42.
[97] TSN, January 14, 1998, pp. 6-7, 9-26, 38-41, 43-47.
[98] TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-157; Exhibits "274" and "275".
[99] TSN, November 12, 1997, pp. 7-8, 17-19, 38-43, 55-72.
[100] TSN, November 17, 1997, pp. 43-73.
[101]Id., at pp. 78-125.
[102] TSN, November 12, 1997, pp. 37-39, 51-52, 91-94.
[103] TSN, November 18, 1997, pp. 37-44.
[104] Records, Vol. 25, pp. 1-171. Penned by Judge Amelita G. Tolentino (now an Associate Justice of the Court of Appeals).
[105] Records, Vol. 25, pp. 170-171.
[106] CA
rollo, Vol. IV, pp. 3478-3479.
[107]Justices Renato C. Dacudao and Lucenito N. Tagle dissented. See Dissenting Opinion, CA
rollo Vol. IV.
[108] Rollo (G.R. No. 176864), pp. 266-267.
[109] Id., at pp. 356-358.
[110] Id., at pp. 402-404.
[111] People v. Comanda, G.R. No. 175880, July 6, 2007, 526 SCRA 689.
[112] People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828.
[113] People v. De Guzman, G.R. No. 173197, April 24, 2007, 522 SCRA 207.
[114] See photographs, Exhibits "GGGG-1" and "GGGG-4", Records, Vol. 12, pp. 742-746.
[115] People v. Comiling, G.R. No. 140405, March 4, 1004, 424 SCRA 698, 719, citing Francisco, Evidence, Vol. VII, 1990 ed., p. 743.
[116] People v. Simon, G.R. No. 130531, May 27, 2004, 429 SCRA 330, 352, citing
People v. Rostata, G.R. No. 91482, February 9, 1993, 218 SCRA 657.
[117] People v. Zinampan, G.R. No. 126781, September 13, 2000, 340 SCRA 189, 200.
[118] Fukuzume v. People, G.R. No. 143647, November 11, 2005
, 474 SCRA 570.
[119]G.R. No. 121039-45, January 25, 1999, 302 SCRA 21.
[120]Id., at p. 50.
[121]TSN,
October 17, 1995, pp.12-15, 23, 40-41, 139, 152, 161; TSN, October 18,
1995, p. 180; TSN, July 2, 1996 , pp. 74, 82-86; TSN, July 11, 1996,
pp. 43-52.
[122] People v. Pineda, G.R. No. 141644, May 27, 2004, 429 SCRA 478, 495, citing
People v. Quima, No. L-74669, 14 April 1988, 159 SCRA 613 citing
People v. Alto, 135 Phil. 136 (1968).
[123] People v. Rodrigo, G.R. No. 176159, September 11, 2008, 564 SCRA 584, 597.
[124] People v. Meneses, G.R. No. 11742, March 26, 1998,
288 SCRA 95, 97, citing
People v. Teehankee, Jr., 319 Phil. 128, 179 (1995).
[125] People v. Magallanes, G.R. No. 136299, August 29, 2003, 410 SCRA 183, 197.
[126] People v. Rodrigo, supra
at p. 596.
[127] People v. Mosquerra, G.R. No. 129209, August 9, 2001, 362 SCRA 441, 450, citing
People v. Batidor, G.R. No. 126027, February 18, 1999, 303 SCRA 335, 350;
People v. Realin, G.R. No. 126051, January 21, 1999,
301 SCRA 495, 512;
People v. Tulop, G.R. No. 124829, November 21, 1998, 289 SCRA 316, 333.
[128]Id., at p. 450, citing
People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46;
People v. Reduca, G.R. Nos. 126094-95, January 21, 1999,
301 SCRA 516, 534; and
People v. De Labajan, G.R. Nos. 129968-69, October 27, 1999,
317 SCRA 566, 575.
[129] Id., at p. 451, citing
People v. Hillado, G.R.
No. 122838, May 24, 1999,
307 SCRA 535, 553 and
People v. Balmoria, G.R. Nos. 120620-21, March 20, 1998,
287 SCRA 687, 708.
[130] People v. Florentino Bracamonte, G.R. No. 95939, June 17, 1996, as cited in
People v. Aňonuevo, G.R. No. 112989, September 18, 1996, 262 SCRA 22, 36.
[131] G.R. Nos. 138874-75, February 3, 2004, 421 SCRA 530.
[132] En Banc Resolution, July 21, 2005, 463 SCRA 654, 662-664.
[133] Records, Vol. 25, pp. 122-124.
[134]CA
rollo, Vol. IV, pp. 3455-3463.
[135] Bastian v. Court of Appeals, G.R. No. 160811, April 14, 2008, citing
People v. Benito, G.R. No. 128072, February 19, 1999, 303 SCRA 468;
People v. Canada, No. L-63728, September 15, 1986, 144 SCRA 121;
People v. Luces, G.R. No. L-60744, November 25, 1983, 125 SCRA 813;
People v. Demeterio, No. L-48255, September 10, 1983, 124 SCRA 914;
People v. Romero, No. L-38786, December 15, 1982, 119 SCRA 234; and
People v. Zabala, 86 Phil. 251 (1950).
[136] Rollo (G.R. No. 176864)
, pp. 288-299.
[137] TSN, August 12, 1997, pp. 9-12, 28-30.
[138]Vide:
People v. Tagun, G.R. No. 137745, February 15, 2002, 377 SCRA 154, 169.
[139] People v. Malones, G.R. No. 124388-90, March 11, 2004, 425 SCRA 318, 339-340, citing
People v. Aliposa, G.R. No. 97935, October 23, 1996, 263 SCRA 471.
[140] Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 605.
[141] Fernan, Jr. v. People, G.R. No. 145927, August 24, 2007, 531 SCRA 1, 31, citing
People v. Balacano, G.R. No, 127156, July 31, 2000, 336 SCRA 615, 621.
[142] Sourced from Internet --
http://www.pinoymoneytalk.com/forum/index.php?topic=5848.0;
See also "Passport-reading Machine Uncovers Fake Documents" by Tina
Santos, Philippine Daily Inquirer, first posted 03:29:00 06/15/2008 at
website --
http://newsinfo.inquirer.net/breakingnews/nation/view/20080615-142790/Passport-reading-machine-
uncovers-fake-documents;
"DFA-RP Passport Exposes Filipinos to Discrimination" by Venorica Uy,
inquirer.net, Last Updated 07-05pm (Mla time) 03/13/2007 sourced from
http://www.pinoymoneytalk.com/forum/index.php?topic=5848.0[143] Exhibits "YY", "DDD" and "213-1-D", Records, Vol. 9, pp. 1142, 1147 and Records, Vol. 26, p. 270.
[144] Exhibits "XX" and "LLL", Records, Vol. 9, pp. 1141 and 1157.
[145] Exhibits "30", "33" and "34", Records, Vol. 9, pp. 708, 711-713.
[146]Cited by reference in Exhibit III, Records, Vol. 9, p. 1154.
You
were informed by the San Francisco District Office of the Immigration
and Naturalization Service that no records responsive to you request
could be located in its file. It has been determined that this response
is correct. For your information, the INS normally does not maintain
records on individuals who are entering the country as visitors rather
than as immigrants. A notation concerning the entry of a visitor may be
made in the Nonimmigrant Information System (NIIS), but
many visitors are not entered into this system. The NIIS was searched, and no records pertaining to Mr. Webb are found. I
am informed by the San Francisco District Office that this matter is
still pending in that office and that a formal response to your request
will be issued shortly.
It is possible that either the State
Department or the United States Customs Service might have information
concerning Mr. Webb's entry into the country. I suggest you write to
those agencies to request the information you seek.
[147] Vide:
Soriano v. People, G.R. No. 148123, June 30, 2008, 556 SCRA 595, 604.
[148] Exhibit "42-M", Records, Vol. 9, p. 440.
[149] Records, Vols. 24 & 25, pp. 98-109.
[150] CA
rollo, Vol. IV, pp. 2684-2687.
[151] Records, Vol. 25, pp. 143-153.
[152] CA
rollo, Vol. IV, pp. 3564-3566.
[153] Id., at p. 3564.
[154] People v. Ortiz, G.R. No. 133814, July 17, 2001, 361 SCRA 274, citing
People v. Sumaoy, G.R. No. 105961, October 22, 1996, 263 SCRA 460 and
People v. Padao, G.R. No. 104400, January 28, 1997, 267 SCRA 64.
[155] TSN, October 10, 1995, pp. 97-98
[156] Id., at pp. 129-131.
[157] CA
rollo, Vol. IV, pp. 3542-3550.
[158] TSN, October 10, 1995, p. 81.
[159] Id., at p. 88.
[160] Id., at p. 97.
[161] TSN, October 16, 1995, pp. 117-119.
[162] TSN, October 17, 1995, pp. 72-79, 95.
[163] People v. Watiwat, G.R. No. 139400, September 3, 2003, 410 SCRA 324, 335.
[164]Article 8, The Revised Penal Code, as amended;
People v. Amodia, G.R. No. 173791, April 7, 2009, 584 SCRA 518, citing
People v. Pelopero, G.R. No. 126119, October 15, 2003, 413 SCRA 397, 410.
[165] People v. Lagarto, G.R. Nos. 118828 & 119371, February 29, 2000, 326 SCRA 693, 748, citing
People v. Layno, G.R. No. 110833, November 21, 1996, 264 SCRA 558;
People v. Sumalpong, G.R. No. 124705, January 20, 1998,
284 SCRA 229;
People v. Obello, G.R. No. 108772, January 14, 1998, 284 SCRA 79;
People v. Pulusan, G.R. No. 10037, May 21, 1998, 290 SCRA 353;
People v. Medina, G.R. No. 127157, July 10, 1998, 292 SCRA 436; and
People v. Chua, G.R. No. 121792, October 7, 1998,
297 SCRA 229.
[166] People v. Sicad, G.R. No. 133833, October 15, 2002, 391 SCRA 19, 34, citing
People v. Diaz, G.R. No. 110829, April 18, 1997, 271 SCRA 504, 515 and
People v. Abordo, G.R. No. 107245, December 17, 1999,
321 SCRA 23, 39 .
[167] CA
rollo, Vol. IV, p. 3081.
[168] People v. Antonio, G.R. No. 128900, July 14, 2000, 335 SCRA 646, 677, citing
People v. Malvenda, G.R. No. 115351, March 27, 1998, 288 SCRA 225.
[169] People v. Magana, G.R. No. 105673, July 26, 1996, 259 SCRA 381, 402.
[170] A.M. No. 06-11-5-SC.
[171] Id.,
Sec. 4.
[172] Rollo (G.R. No. 176389)
, pp. 531-542.
[173] Id., at pp. 543-554.
[174] Id., at pp. 560-563.
[175] Id., at pp. 580-585.
[176] 373 U.S. 83 (1963).
[177] Rollo (G.R. No. 176389), pp. 586-592.
[178] See
City Prosecution Office of General Santos City v. Bersales, A.M. No. MTJ-04-1552, June 9, 2004, 431 SCRA 430, 436.
[179] Id., pp.
[180] 149 Misc. 2d 844, 570 N.Y.S. 2d 765 (Sup. Ct. Westchester Co. 1990).
[181] 467 U.S. 479 (1984).
[182] 373 U.S. 83 (1963).
[183] Id.
[184] Supra note 180.
[185] Supra note 181,
[186] Matter of Dabbs v. Vergari, supra.
[187] G.R. No. 150224, May 19, 2004, 428 SCRA 504.
[188] Id., at pp. 514-517.
[189]
A Litigator's Guide to DNA From the Laboratory to the Courtroom by Ron
C. Michaelis, Robert G. Flanders, Jr. and Paula H. Wulff, 2008
published by Elsevier Inc., p. 370.
[190] 488 U.S. 51 (1988), 102 L Ed 281, 109 S Ct 333.
[191] People v. Bato, G.R. No. 134939, February 16, 2000, 325 SCRA 671, 678, citing
People v. Juntilla, G.R. No. 130604, September 16, 1999, 314 SCRA 568, 583;
People v. Sacapaño, G.R. No. 130525, September 3, 1999, 313 SCRA 650, 659; and
People v. Manuel, G.R. No. 121539, October 21, 1998, 298 SCRA 184.
[192] People v. Pascual, G.R. No. 172326, January 19, 2009, 576 SCRA 242, 260, citing
People v. Sevilleno, G.R. No. 152954, March 10, 2004, 425 SCRA 247, 257.
[193] Nueva España v. People, G.R. No. 163351, June 21, 2005, 460 SCRA 547, 555-556, citing
People v. Opuran, G.R. Nos. 147674-75, March 17, 2004, 425 SCRA 654, 673.
[194] G.R. No. 166723, August 2, 2007, 529 SCRA 109, 118.
[195] People v. Arellano, G.R. No. 176640, August 22, 2008, 563 SCRA 181, 189.
[196] Id.
[197] People v. Pascual, supra at 260-261.
[198] Nueva España v. People, supra at 558.
SUPPLEMENTAL OPINION
BRION, J.:
In addition to my vote and independently of the merits of the present case, I write this opinion to point out the growing disregard and non-observance of the sub judice rule, to the detriment of the rights of the accused, the integrity of the courts, and, ultimately, the administration of justice. I seize this opportunity fully aware that the present case - dubbed in the news media as the Vizconde Massacre - is one of the most sensational criminal cases in Philippine history in terms of the mode of commission of the crime and the personalities involved. From the time the charges were filed, the case has captured the public's interest that an unusual amount of air time and print space have been devoted to it. Of late, with the public's renewed interest after the case was submitted for decision, key personalities have again been unabashedly publicizing their opinions and commenting even on the merits of the case before various forms of media. A Senior Justice of this Court, who was a witness in the case (while he was in private law practice) and who consequently inhibited himself from participation, was even publicly maligned in the print and broadcast media through unsupported speculations about his intervention in the case. That was how bad and how low comments about the case had been.
In essence, the sub judice rule restricts comments and disclosures pertaining to pending judicial proceedings. The restriction applies not only to participants in the pending case, i.e., to members of the bar and bench, and to litigants and witnesses, but also to the public in general, which necessarily includes the media. Although the Rules of Court does not contain a specific provision imposing the sub judice rule, it supports the observance of the restriction by punishing its violation as indirect contempt under Section 3(d) of Rule 71:
Section 3. Indirect contempt to be punished after charge and hearing. - x x x a person guilty of any of the following acts may be punished for indirect contempt:
x x x x
(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice[.]
Persons facing charges for indirect contempt for violation of the sub judice rule often invoke as defense their right to free speech and claim that the citation for contempt constitutes a form of impermissible subsequent punishment.
We have long recognized in this jurisdiction that the freedom of speech under Section 4, Article III of the Constitution is not absolute. A very literal construction of the provision, as espoused by US Supreme Court Justice Hugo Black,[1] may lead to the disregard of other equally compelling constitutional rights and principles. In Vicente v. Majaducon,[2] this Court declared that "[the freedom of speech] needs on occasion to be adjusted to and accommodated with the requirements of equally important public interests such as the maintenance of the integrity of courts and orderly functioning of the administration of justice." Courts, both within and outside this jurisdiction, have long grappled with the dilemma of balancing the public's right to free speech and the government's duty to administer fair and impartial justice. While the sub judice rule may be considered as a curtailment of the right to free speech, it is "necessary to ensure the proper administration of justice and the right of an accused to a fair trial."[3] Both these latter concerns are equally paramount and cannot lightly be disregarded.
Before proceeding with this line of thought, however, let me clarify that the sub judice rule is not imposed on all forms of speech. In so far as criminal proceedings are concerned, two classes of publicized speech made during the pendency of the proceedings can be considered as contemptuous: first, comments on the merits of the case, and second, intemperate and unreasonable comments on the conduct of the courts with respect to the case. Publicized speech should be understood to be limited to those aired or printed in the various forms of media such as television, radio, newspapers, magazines, and internet, and excludes discussions, in public or in private, between and among ordinary citizens. The Constitution simply gives the citizens the right to speech, not the right to unrestricted publicized speech.
Comments on the merits of the case may refer to the credibility of witnesses, the character of the accused, the soundness of the alibis offered, the relevance of the evidence presented, and generally any other comment bearing on the guilt or innocence of the accused.[4] The danger posed by this class of speech is the undue influence it may directly exert on the court in the resolution of the criminal case, or indirectly through the public opinion it may generate against the accused and the adverse impact this public opinion may have during the trial. The significance of the sub judice rule is highlighted in criminal cases, as the possibility of undue influence prejudices the accused's right to a fair trial. "The principal purpose of the sub judice rule is to preserve the impartiality of the judicial system by protecting it from undue influence."[5] Public opinion has no place in a criminal trial. We ruled that -
it is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and law should be immune from every extraneous influence; that facts should be decided upon evidence produced in court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies.[6]
The right to a fair trial is an adjunct of the accused's right to due process which "guarantees [him] a presumption of innocence until the contrary is proved in a trial x x x where the conclusions reached are induced not by any outside force or influence but only by evidence and argument given in open court, where fitting dignity and calm ambiance is demanded."[7]
In foreign jurisdictions, the courts do not hesitate to exercise their power to punish for contempt where necessary to dispose of judicial business unhampered by publications that tend to impair the impartiality of verdicts.[8]
If the media publish prejudicial material, they can appear to urge, or may in fact be urging, a particular finding: the media can "wage a campaign" against one of the parties to proceedings. If the jury decides in accordance with an outcome promoted by the media, it will appear as if the jurors were swayed by the media. By the same token, if the jury's decision does not accord with media opinion, it may appear as if they were deliberately reacting against it. Either way, it may appear that the jury's decision was not impartial and based on the evidence presented in court, even if it was.[9]
The accused must be assured of a fair trial notwithstanding the prejudicial publicity;[10] he has a constitutional right to have his cause tried fairly by an impartial tribunal, uninfluenced by publication or public clamor.[11] "The sub judice doctrine protects against the appearance of decisions having been influenced by published material."[12]
As may be observed from the cited material, the sub judice rule is used by foreign courts to insulate members of the jury from being influenced by prejudicial publicity. But the fact that the jury system is not adopted in this jurisdiction is not an argument against our observance of the sub judice rule; justices and judges are no different from members of the jury, they are not immune from the pervasive effects of media. "It might be farcical to build around them an impregnable armor against the influence of the most powerful media of public opinion."[13] As I said in another case, in a slightly different context, even those who are determined, in their conscious minds, to avoid bias may be affected.[14]
Also, it is not necessary that the publicity actually influenced the court's disposition of the case; "the actual impact of prejudicial publicity is not relevant to liability for sub judice contempt."[15] In several cases, the Court has noted the
enormous effect of media in stirring public sentience x x x Even while it may be difficult to quantify the influence, or pressure that media can bring to bear on [witnesses and judges] directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed, it does so in so many ways and in varying degrees. The conscious or unconscious effect that such a coverage may have on the testimony of witnesses and the decision of judges cannot be evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield to it.[16]
Comment on the conduct of the courts with respect to the case becomes subject to a contempt proceeding when it is intemperate, is contumacious, and unduly impairs upon the dignity of the court. A comment that impairs of the dignity of the court "excites in the mind of the people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them[.]"[17] If the speech tends to undermine the confidence of the people in the honesty and integrity of the court and its members, and lowers or degrades the administration of justice, then the speech constitutes contempt.[18] "Unwarranted attacks on the dignity of the courts cannot be disguised as free speech, for the exercise of said right cannot be used to impair the independence and efficiency of courts or public respect therefore and confidence therein."[19] Without the sub judice rule and the contempt power, the courts will be powerless to protect their integrity and independence that are essential in the orderly and effective dispensation and administration of justice.
This, of course, is not meant to stifle all forms of criticism against the court. As the third branch of the government, the courts remain accountable to the people. The people's freedom to criticize the government includes the right to criticize the courts, their proceedings and decisions. This is the principle of open justice, which is fundamental to our democratic society and ensures that (a) there is a safeguard against judicial arbitrariness or idiosyncrasy, and that (b) the public's confidence in the administration of justice is maintained.[20] The criticism must, however, be fair, made in good faith, and "not spill over the walls of decency and propriety."[21] And to enhance the open court principle and allow the people to make fair and reasoned criticism of the courts, the sub judice rule excludes from its coverage fair and accurate reports (without comment) of what have actually taken place in open court.
In sum, the court, in a pending litigation, must be shielded from embarrassment or influence in its all-important duty of deciding the case.[22] Any publication pending a suit, reflecting upon the court, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is contempt of court and is punishable. The resulting (but temporary) curtailment of speech because of the sub judice rule is necessary and justified by the more compelling interests to uphold the rights of the accused and promote the fair and orderly administration of justice.
If we do not apply at all the sub judice rule to the present case, the reason is obvious to those who have followed the case in the media - both parties are in pari delicto as both have apparently gone to the media to campaign for the merits of their respective causes. Thus, the egregious action of one has been cancelled by a similar action by the other. It is in this sense that this Supplemental Opinion is independent of the merits of the case. Their common action, however, cannot have their prejudicial effects on both; whatever the results may be, doubts will linger about the real merits of the case due to the inordinate media campaign that transpired.
Lest we be misunderstood, our application of the sub judice rule to this case cannot serve as a precedent for similar future violations. Precisely, this Supplemental Opinion is a signal to all that this Court has not forgotten, and is in fact keenly aware of, the limits of what can be publicly ventilated on the merits of a case while sub judice, and on the comments on the conduct of the courts with respect to the case. This Court will not standby idly and helplessly as its integrity as an institution and its processes are shamelessly brought to disrepute.
[1] See Justice Black's concurring opinion in Smith v. California, 361 U.S. 147 (1959), part of which reads:
Certainly the First Amendment's language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that "Congress shall make no law . . . abridging the freedom of speech, or of the press." I read "no law . . . abridging" to mean no law abridging. The First Amendment, which is the supreme law of the land, has thus fixed its own value on freedom of speech and press by putting these freedoms wholly "beyond the reach" of federal power to abridge. No other provision of the Constitution purports to dilute the scope of these unequivocal commands of the First Amendment. Consequently, I do not believe that any federal agencies, including Congress and this Court, have power or authority to subordinate speech and press to what they think are "more important interests." The contrary notion is, in my judgment, court-made, not Constitution-made. (361 U.S. 147, 157-159).
[2] A.M. No. RTJ-02-1698, June 23, 2005, 461 SCRA 12, 24-25, citing Choa v. Chiongson, A.M. No. MTJ-95-1063, August 9, 1996, 260 SCRA 477, 484-485.
[3] Law Reform Commission - New South Wales, Discussion Paper 43 (2000) - Contempt by Publication, http://www.lawlink.nsw.gov.au/lrc.nsf/pages/dp43chp02, last visited December 9, 2010.
[4] Ibid.; the Discussion Paper 43 (2000) of the Law Reform Commission of New South Wales has identified some "high-risk publications" against which the sub judice rule applies. These include:
a. A photograph of the accused where identity is likely to be an issue;
b. Suggestions that the accused has previous criminal convictions, has been previously charged for committing an offense and/or previously acquitted, or has been involved in other criminal activity;
c. Suggestions that the accused has confessed to committing the crime in question;
d. Suggestions that the accused has confessed to committing the crime in question;
e. Suggestions that the accused is guilty or innocent of the crime for which he or she is charged, or that the jury should convict or acquit the accused; and
f. Comments which engender sympathy or antipathy for the accused and/or which disparage the prosecution, or which make favorable or unfavorable references to the character or credibility of the accused or a witness.
[5] Ibid.
[6] Nestle v. Sanchez, Nos. L-75209 and 78791, September 30, 1987, 154 SCRA 542, 546.
[7] Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada, A.M. No. 01-4-03-SC, June 29, 2001, 360 SCRA 248, 259-260.
[8] People v. Godoy, G.R. Nos. 115908-09, March 29, 1995, 243 SCRA 64, 81, citing U.S. v. Sullen, 36 F. 2d 220.
[9] Supra note 3.
[10] See Wayne Overbeck, Major Principles in Media Law, p. 298.
[11] Supra note 6, at 546.
[12] Supra note 3.
[13] Supra note 7, at 260.
[14] Separate Opinion of the author in Louis "Barok" C. Biraogo v. The Philippine Truth Commission of 2010, G.R. Nos. 192935 & 193036, December 7, 2010, part of which reads:
Where the government simply wants to tell its story, already labeled as true, well ahead of any court proceedings, and judicial notice is taken of the kind of publicity and the ferment in public opinion that news of government scandals generate, it does not require a leap of faith to conclude that an accused brought to court against overwhelming public opinion starts his case with less than equal chance of acquittal. The presumption of innocence notwithstanding, the playing field cannot but be uneven in a criminal trial when the accused enters trial with a government-sponsored badge of guilty on his forehead. The presumption of innocence in law cannot serve an accused in a biased atmosphere pointing to guilt in fact because the government and public opinion have spoken against the accused. [Citations omitted]
[15] Supra note 3.
[16] Supra note 7, at 259-260.
[17] Supra note 8, at 82, citing J. Perfecto's dissenting opinion in In re Francisco Brillantes, 42 O.G. 59.
[18] Id. at 94.
[19] In the Matter of the Allegations Contained in the Columns of Mr. Amado P. Macasaet Published in Malaya Dated September 18, 19, 20, and 21, 2007, A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA 395, 448, citing Roxas v. Zuzuarregui, G.R. Nos. 152072 & 152104, July 12, 2007, 527 SCRA 446.
[20] Id.at 434.
[21] Tiongco v. Savillo, A.M. No. RTJ-02-1719, March 31, 2006, 486 SCRA 48, 64, citing In re Almacen, infra note 22.
[22] In re Almacen, No. L-27654, February 18, 1970, 31 SCRA 562.
SEPARATE CONCURRING OPINION
SERENO, J.:
The duty of the prosecution is not merely to secure a conviction, but to secure a just conviction.
This highly publicized case became the center of the nation's attention owing to the public outrage over the atrocious nature of the crime committed in what was then thought to be a relatively secure neighborhood. Worse, it brought inconsolable grief to a husband and father who lost his entire family to senseless violence while he was working overseas. Events soon after the occurrence of the crime on 30 June 1991 would only help fuel civic indignation. Just two days thereafter, or on 2 July 1991, La Salle Engineering student Eldon Maguan was gunned down in cold blood by businessman Rolito Go over a parking skirmish in San Juan.[1] After the lapse of only 11 days, young Maureen Hultman and Roland John Chapman were fatally shot by Claudio Teehankee, Jr. in Dasmarinas Village after a minor scuffle.[2]
The vehement outcry to find and punish those responsible for the Vizconde horror initially led, four months after, to the arrest and eventual filing by the prosecution of Information for two counts of robbery with homicide and one count of robbery with rape against six named and an undetermined number of unnamed persons touted as members of the Akyat Bahay gang. In view of the illegal arrests of the accused and noncompliance with the requirements for conducting custodial investigation, including evidence of torture in extracting confessions from the accused, the trial court in its 1993 Decision[3] pronounced the accused not guilty of the charges. During the same year (1993), another set of suspects (apparently former contractors/workers of the Vizcondes) was identified, only to be released later on due to insufficiency of evidence.[4]
Almost four years after the crime was committed, self-confessed drug user Jessica Alfaro (Alfaro) named young men from wealthy and powerful families as perpetrators of the crime, which she claimed to have witnessed, thereby tantalizing a sympathetic public with ideal visions of justice - of morally depraved offenders finally caught and no longer able to wreck random havoc on the lives of law-abiding citizens; of privileged perpetrators subjected to the rule of law no matter how high and mighty; of bereaved families brought a measure of comfort for the vindication of wasted young lives.
However, there was little objective forensic evidence obtained from the crime scene due to deplorable missteps taken by the investigating police officers. Consequently, Senior Police Officer 1 Gerardo Biong and some John Does were charged as accessories to the crime for "conceal[ing] and destroy[ing] the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime."[5]
A review of the proceedings during preliminary investigation and trial showed that the prosecution did not fare much better, for it committed acts of prosecutorial misconduct that effectively deprived the accused of their constitutionally guaranteed right to due process.
At the outset, it cannot be overemphasized that the prosecuting officer "is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."[6]
In the words of Richard Refshauge: "The adversarial system ... is rooted in the notion of a contest with winners and losers, yet the prosecutor is ethically forbidden from embracing that notion. The question then, is not what will make the prospect of a conviction more certain, but what is fair and what will contribute to justice."[7]
Thus, a criminal trial is not about personal redress for the victims, but about determining the guilt and the just punishment of the accused.[8] What is in truth referred to when expanding on the concept of "fair trial" is that the rights of the accused are protected, to the extent necessary to ensure fairness for him. Rights of the victim are not ignored, but they are respected only to the extent that they are consistent with the fairness of the trial for the accused.[9]
In Allado V. Diokno,[10] we also elucidated this delicate balancing of interests in the following manner:
The sovereign power has the inherent right to protect itself and its people from vicious acts which endanger the proper administration of justice; hence, the State has every right to prosecute and punish violators of the law. This is essential for its self-preservation, nay, its very existence. But this does not confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte blanche for government agents to defy and disregard the rights of its citizens under the Constitution. Confinement, regardless of duration, is too high a price to pay for reckless and impulsive prosecution. Hence, even if we apply in this case the "multifactor balancing test" which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed and the circumstances attending the incident, still we cannot see probable cause to order the detention of petitioners.
The purpose of the Bill of Rights is to protect the people against arbitrary and discriminatory use of political power. This bundle of rights guarantees the preservation of our natural rights which include personal liberty and security against invasion by the government or any of its branches or instrumentalities. Certainly, in the hierarchy of rights, the Bill of Rights takes precedence over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt towards the former. Thus, relief may be availed of to stop the purported enforcement of criminal law where it is necessary to provide for an orderly administration of justice, to prevent the use of the strong arm of the law in an oppressive and vindictive manner, and to afford adequate protection to constitutional rights.
Let this then be a constant reminder to judges, prosecutors and other government agents tasked with the enforcement of the law that in the performance of their duties they must act with circumspection, lest their thoughtless ways, methods and practices cause a disservice to their office and maim their countrymen they are sworn to serve and protect. We thus caution government agents, particularly the law enforcers, to be more prudent in the prosecution of cases and not to be oblivious of human rights protected by the fundamental law. While we greatly applaud their determined efforts to weed society of felons, let not their impetuous eagerness violate constitutional precepts which circumscribe the structure of a civilized community.
Indeed, at the core of our criminal justice system is the presumption of innocence of the accused until proven guilty. Lip service to this ideal is not enough, as our people are well acquainted with the painful reality that the rights of the accused to a fair trial were violated with impunity by an unchecked authority in our not so distant history. In response, the rights of the accused were enshrined in no less than the 1987 Constitution, particularly Article III thereof. They are further bolstered by the Rules of Court, related legislation, general rules on evidence, and rules on ethical conduct.
The said rights of the accused come with the corresponding duties, nay, guarantees on the part of the State, the prosecution in particular. The prosecution's disregard of these standards amounts to prosecutorial misconduct.
Some examples of prosecutorial misconduct would be the intimidation of defense witnesses, the obstruction of defense lawyers' access to prosecution witnesses, the coercion of confession from the accused, the issuance of prejudicial comments about the accused, the mishandling and/or withholding of evidence, and the failure to preserve evidence.[11]
Issuance of Prejudicial Comments
About the Accused
Section 14(2), Article III of the 1987 Constitution emphatically mandates:
Section 14. (1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. (Underscoring supplied.)
The presumption of innocence of the accused is at the center of our criminal justice system - the cornerstone, as it were, of all the other rights accorded to the accused, including the right to due process of law. In pronouncing the presumption of innocence of the accused and their right to due process, the Constitution declares that the risk of letting the guilty walk free would be error on the side of justice. This outcome is infinitely better than imprisoning an innocent person.
Because the accused must be presumed innocent, and because they are entitled to due process of law, it is the duty of the prosecution not to issue prejudicial statements about them while the trial is being conducted. This standard applies with even more force to the trial judge who must at all times not only be impartial, but also appear to be so.[12]
Allegations of issuance of prejudicial comments about the accused in this case pertained to the acts of the trial judge, and not the prosecution. When allegations of instances of the trial judge's bias were first brought to this Court, it was understandable that the Court would accord the judge the presumption of regularity in the performance of her duties. Her subsequent acts, however, as well as her Decision - taken together - showed a pattern now recognizable in retrospect as bias against the accused, amounting to denial of due process.
In Webb, et al. v. People,[13] the accused assailed the Court of Appeals for denying their Petition for the inhibition from the case of Judge Amelita Tolentino, the presiding judge of Branch 274 of the Regional Trial Court of Paranaque.
Webb's first Motion for the disqualification of Judge Tolentino, filed prior to their arraignment, was anchored on the ground that the said judge had allegedly told the media that "failure of the accused to surrender following the issuance of the warrant of arrest is an indication of guilt." This motion was denied by Judge Tolentino. Two days later, Webb filed a second motion to disqualify her. Allegedly, she had further told the media that the accused "should not expect the comforts of home," pending the resolution of his Motion to be committed to the custody of the Philippine National Police at Camp Ricardo Papa, Bicutan, Paranaque. The judge again denied the Motion. Gerardo Biong also filed a motion to disqualify her on the ground of bias and partiality, but this Motion was also denied.
Thereafter, at the hearing for the accused's Petitions for bail during which the prosecution presented Jessica Alfaro, Judge Tolentino issued an Order. The judge ruled that Alfaro could not be cross-examined on the contents of the latter's April 28 Affidavit. The affidavit was held to be inadmissible in evidence, as it was allegedly not executed in the presence of a counsel.
Alfaro was asked about her brother Patrick Alfaro and her uncle Robert Alfaro. She admitted that her brother was a drug addict and had been arrested by the National Bureau of Investigation (NBI) for illegal drug possession. She further claimed that her brother was now in the United States. The prosecution objected to further questions regarding the arrest and departure of Alfaro's brother on the ground that it was irrelevant, immaterial and impertinent for cross-examination. Despite the defense counsel's explanation that the questions were for the purpose of establishing Alfaro's bias and motive for testifying against the accused, the trial court sustained the objection.
Similar objections on the ground of irrelevance, immateriality and impertinence were sustained by the trial court when the defense counsel cross-examined Alfaro on her educational attainment. Prior to the cross-examination, Alfaro was shown her transcript of records indicating her completion of only one academic year, thus earning nine units of college.
Accused then filed a Motion to disqualify Judge Tolentino or inhibit herself from the case due to bias and prejudice, but she denied the Motion.
The accused thus assailed before this Court [1] the Order of judge Tolentino denying Webb's motion for hospitalization; and [2] the Order of Judge Tolentino disallowing the defense to cross-examine Alfaro on the contents of her April 28 affidavit.
Accused later filed with this Court a Supplemental Petition to set aside Judge Tolentino's Order denying their Motion for inhibition.
This Court resolved to refer the petitions to the Court of Appeals for proper disposition.
In the meantime, the hearing on the accused's Petitions for bail continued, with petitioner Webb filing a motion for deposition of witnesses residing in the United States, who would testify on his presence in that country on the date of the commission of the crime. This Petition was denied by Judge Tolentino on the ground that petitioner failed to allege that the witnesses did not have the means to go to the place of the trial. Petitioner Webb filed another Supplemental Petition to the Court of Appeals challenging the said Order.
The defense made their Formal Offer of Evidence upon conclusion of the hearings on the Petitions for bail. The prosecution filed its Comment/Objection to the Formal Offer of Evidence. Judge Tolentino ruled on the accused's formal offer of evidence, admitting only ten [10] out of the one hundred forty-two [142] exhibits offered by the defense. Subsequently, the judge denied the accused's Petitions for bail.
The Court of Appeals rendered its Decision on the various Petitions and Supplemental Petitions, reversing Judge Tolentino's refusal to admit Alfaro's April 28 Affidavit. The appellate court, however, denied all the other reliefs prayed for. The accused thus elevated the matter to this Court.
They subsequently filed a Supplemental Petition, alleging, among others, that during the trial on the merits, Judge Tolentino had allowed prosecution witness Atty. Pedro Rivera to testify on the character of the accused, although the defense had not put his character in issue; that the judge disallowed the defense to impeach the credibility of Atty. Rivera by the presentation of an earlier statement executed by him, on the ground that his statement was immaterial; and that, after ruling that the proffer of oral evidence made by defense counsel Atty. Vitaliano Aguirre was improper on cross-examination, Judge Tolentino struck the proffer from the record.
We affirmed the Court of Appeals' disposition, explaining as follows:
A critical component of due process is a hearing before an impartial and disinterested tribunal [and] every litigant is entitled to nothing less than the cold neutrality of an impartial judge for all the other elements of due process, like notice and hearing, would be meaningless if the ultimate decision would come from a partial and biased judge.[However, t]his right must be weighed with the duty of a judge to decide cases without fear of repression. Hence, to disqualify a judge on the ground of bias and prejudice the movant must prove the same by clear and convincing evidence. ...
As a general rule, repeated rulings against a litigant, no matter how erroneous and vigorously and consistently expressed, are not a basis for disqualification of a judge on grounds of bias and prejudice. Extrinsic evidence is required to establish bias, bad faith, malice or corrupt purpose, in addition to the palpable error which may be inferred from the decision or order itself. Although the decision may seem so erroneous as to raise doubts concerning a judge's integrity, absent extrinsic evidence, the decision itself would be insufficient to establish a case against the judge. The only exception to the rule is when the error is so gross and patent as to produce an ineluctable inference of bad faith or malice.
A perusal of the records will reveal that petitioners failed to adduce any extrinsic evidence to prove that respondent judge was motivated by malice or bad faith in issuing the assailed rulings. Petitioners simply lean on the alleged series of adverse rulings of the respondent judge which they characterized as palpable errors. This is not enough. We note that respondent judge's rulings resolving the various motions filed by petitioners were all made after considering the arguments raised by all the parties. It is true that the respondent judge erred in some of her rulings such as her rejection of petitioners' one hundred thirty two pieces of evidence. It appears, however, that respondent judge reversed this erroneous ruling and already admitted these 132 pieces of evidence after finding that "the defects in [their] admissibility have been cured through the introduction of additional evidence during the trial on the merits." This correction diminishes the strength of petitioners' charge that respondent judge is hopelessly biased against them. ...
... There is still another reason why we should observe caution in disqualifying respondent judge. The trial of the petitioners is about to end and to assign a new judge to determine the guilt or innocence of petitioners will not be for the best interest of justice. The records of the case at bar run into volumes. These voluminous records cannot capture in print the complete credibility of witnesses when they testified in court. As the respondent judge observed the demeanor of witnesses while in the witness chair, she is in the best position to calibrate their credibility. The task of evaluating the credibility of witnesses includes interpreting their body language and their meaningful nuances are not expressed in the transcripts of their testimonies.
We hasten to stress that a party aggrieved by erroneous interlocutory rulings in the course of a trial is not without remedy. The range of remedy is provided in our Rules of Court and we need not make an elongated discourse on the subject. But certainly, the remedy for erroneous rulings, absent any extrinsic evidence of malice or bad faith, is not the outright disqualification of the judge. For there is yet to come a judge with the omniscience to issue rulings that are always infallible. The courts will close shop if we disqualify judges who err for we all err.
Mishandling and/or
Withholding of Evidence
The rights of the accused to have compulsory process to secure the production of evidence on their behalf is a right enshrined in no less than our Constitution, particularly Article III, Section 14 thereof, to wit:
Section 14:
(1)No person shall be held to answer for a criminal offense without due process of law.
(2)In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. Xxx (Underscoring supplied.)
This right is echoed and further fleshed out in the Rules of Criminal Procedure. Rule 115, Section 1 thereof, provides:
SECTION 1. Rights of accused at the trial.--In all criminal prosecutions, the accused shall be entitled to the following rights:
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his tail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law. (Underscoring supplied.)
Section 10, Rule 116 of the Rules of Criminal Procedure, in fact further mandates:
SEC. 10. Production or inspection of material evidence in possession of prosecution.--Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in possession or under the control of the prosecution, police, or other law investigating agencies. (Underscoring supplied.)
Thus, the accused's right of access to evidence requires the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it.
Applying this standard to the present case, it is notable that during preliminary investigation, the NBI presented to the Department of Justice (DOJ) Panel, among others, the Sworn Statement of their principal witness, Alfaro, dated 22 May 1995. Before submitting his Counter-Affidavit, Webb filed with the DOJ Panel a Motion for Production and Examination of Evidence and Documents for the NBI to produce, among others, any other written statements of Alfaro.
The DOJ Panel granted the Motion, and the NBI submitted a mere photocopy of an earlier Sworn Statement of Alfaro dated 28 April 1995. The Statement did not appear to be signed by Alfaro's counsel of choice, named as Atty. Arturo Mercader, Jr.. in the same document. In this earlier Sworn Statement, Alfaro declared that she had never met Carmela before that fateful night; that she did not know why the accused wanted to enter the Vizconde house, except that they were after Carmela; that the accused entered the premises by jumping over the fence; that she did not know how the accused were able to enter the house, as she was about ten (10) meters away from the kitchen door; that she did not know who opened that door for the accused, but hinted that one of the maids must have done it since Estrellita and Carmela were tied; and that she had no idea what transpired in the house until they left the area.
This Statement contradicted salient points in Alfaro's 22 May 1995 Sworn Statement, which was the basis of the NBI's complaint. In her 22 May 1995 Sworn Statement, Alfaro claimed to have known Carmela since February 1991; that the group decided to rape Carmela when Alfaro informed Webb that Carmela had dropped off a man who appeared to be her boyfriend; that Carmela left open the gate through which they entered the premises freely; that Alfaro led the group in entering the kitchen door; that she witnessed the rape of Carmela by Webb and also saw the bodies of Estrellita and Jennifer piled up on the bed.
The NBI explained that they produced a mere photocopy of the 28 April 1995 Sworn Statement, because the original was lost. When the DOJ Panel refused to issue a subpoena duces tecum to Atty. Mercader, the accused filed a case with the Regional Trial Court of Makati, Branch 63, to obtain the original of the first Sworn Statement. Atty. Mercader then appeared and produced before the trial court the original Sworn Statement of Alfaro dated 28 April 1995, which also contained his signature. Webb retained a certified true copy of the first Sworn Statement (certified by Assistant State Prosecutor Jovencito Zuno), while the duplicate original copy thereof was submitted to the DOJ Panel.
The DOJ Panel still found probable cause to charge the accused and on 10 August 1995, an Information for Rape with Homicide was filed with the Regional Trial Court of Paranaque against Webb, et al. It was raffled to Branch 274, presided by Judge Amelita Tolentino, who thereupon issued warrants for their arrest.
Webb et al. came to this Court to assail the DOJ Panel's finding and the trial court's issuance of warrants for their arrest. We upheld the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor:
Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial.
This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in Section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . . ."
In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan which laid down the proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. The rationale is well put by Justice Brennan in Brady -- "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. (Citations omitted.)
Nevertheless, we ruled that with the production of the first Sworn Statement, "(p)etitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion."
It appeared, however, that the prosecution would continue to suppress Alfaro's first Sworn Statement. When bail hearings commenced on 9 October 1995, the prosecution started with a presentation of the testimony of Alfaro. On 16 October 1995, Alfaro was allowed by the trial court to testify on the circumstances surrounding the execution of the two Sworn Statements, notwithstanding that said statements were not presented for proper identification and marking. On cross-examination, Alfaro admitted that in the first Sworn Statement were answers that were not hers, but were only supplied by the NBI agents then present during the statement-taking. For instance, she stated that the answer to question number 8 is not true, because she only finished second year and was not actually a college graduate.
On the third day of Alfaro's cross-examination, the prosecution objected to questions referring to the first Sworn Statement on the ground that it was made without the assistance of counsel. The trial court sustained the objection.[14] The accused's counsel orally sought reconsideration, but this was denied.[15] When counsel moved for reconsideration, the trial court denied the motion "with finality."[16] The accused's counsel then showed the trial court their copy of the first Sworn Statement containing Atty. Mercader's signature and certified as a true copy by Asst. Prosecutor Zuno. In turn, Assitant Prosecutor Atty. Zuno, who had the duplicate original thereof, failed or refused to produce the statement despite repeated requests from the accused Webb. (It was produced only on 24 October 1995.) Alfaro's cross-examination continued, with no question pertaining to the first Sworn Statement allowed.
On 8 November 1995, the trial court issued its Order dated 30 October 1995[17] in open court. The Court rejected the admissibility of the first Sworn Statement and barred its use for the purpose of impeaching Alfaro's credibility or for refuting her subsequent statements. All previous questions and answers connected with the said Sworn Statement were also ordered expunged from the records. The trial court reasoned that the said Sworn Statement was an "illegally obtained evidence, and therefore, cannot be used either directly or indirectly against Alfaro." Citing Section 12, Article III of the Constitution, the trial court concluded that "Alfaro could not be cross-examined by the defense on the contents of the said affidavit in order to discredit her statement dated May 22, 1995 and her testimony in open court."[18]
This Order led accused Webb et al. to seek Judge Tolentino's inhibition and to incorporate the above instance as part of their proof of the trial judge's bias. The Court of Appeals denied the Petition, and we affirmed the denial in the manner laid out in the preceding discussion.
Failure to Preserve Evidence
As discussed in the preceding section, the accused's right to access to evidence necessitates in the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. When the prosecution is called upon not to suppress or alter evidence in its possession that may benefit the accused, it is also necessarily obliged to preserve the said evidence. To hold otherwise would be to render illusory the existence of such right.
The advent of DNA technology prompted this Court's promulgation of the New Rules for DNA Evidence.[19] As DNA evidence provides objective proof of identification and may be obtained from evidence left in the scene of the crime or in the victim's person, it also gives new meaning to the above duty of the prosecution.
The prosecution did not fare well when measured against this standard.
Alfaro testified that the group had earlier agreed that Webb would be the first to rape Carmela. When Alfaro said she saw Webb pumping Carmela, while two bloodied bodies were on top of the bed, the former was so shocked that she "stepped back and turned around to go outside." On her way out, she met Ventura near the door. He said, "Prepare escape." Things had apparently gone awry, so they left the place. The NBI proclaimed that the semen samples they had collected from Carmela were preserved in slides and remained intact. Thus, in order for the prosecution's theory to be consistent, pursuant to the quantum required in criminal cases, the DNA evidence in the slides must positively match that from accused Webb.
Based on the foregoing circumstances, the defense counsel accordingly filed a Motion to Direct NBI to Submit Semen Specimen to DNA Analysis during the course of the trial. Several exchanges of pleadings on the matter were filed before the trial court, and at no time was the timeliness of the filing of the Motion at issue. It could not have been, considering that the Motion was timely filed during the course of the trial. While the Motion was filed six years after the crime was committed, the trial of the accused herein did not start until more than four years after the commission of the crime.
The trial court denied the Motion on 25 November 1997, holding that since more than six (6) years had lapsed since the commission of the crime, there was no assurance that the semen specimen remained uncontaminated. Also, the trial court held that Webb was not able to show that the proper procedure for the extraction and preservation of the semen sample had been complied with. Finally, the trial court held that a DNA test would only lead to confusion of the issues.
However, as correctly held by Justice Lucenito Tagle in his Dissenting Opinion, the trial judge's objections to the DNA testing were based on mere conjectures that ran against the presumption of regularity in the performance of official duty.
Meanwhile, the idea that a negative DNA test result would not have necessarily exculpated Webb, because previous sexual congress by Carmela with another man prior to the crime could not be discounted, would unrealistically raise the bar of evidence - and for the wrong party, i.e., for the part of the defense, instead of for the prosecution. If a negative DNA test result could not be considered as providing certainty that Webb did not commit the crime, would it not have at least cast a reasonable doubt that he committed it?
Moreover, the argument against the relevance of the semen sample - that the presence of semen was not necessary to prove that rape was committed - is not in point. What the defense was after when it sought DNA testing was neither to prove nor to disprove the commission of rape, but to pinpoint the identity of the assailant. In this case, semen with spermatozoa was in fact obtained, and it did possess exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals,[20] we held that "courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress." Hence, it is the constitutional duty of the trial judge to afford all possible means to both the NBI and the counsel for accused, in order that such evidence may be scrutinized in open court. The Court held in People v. Yatar:
DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case.
DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, o saliva which can be left on the victim's body or at the crime scene. Hair and fiber from clothing, carpets, bedding or furniture could also be transferred to the victim's body during the assault. Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.[21]
Thus, when the present case reached this Court and a similar Motion was filed, we resolved to grant[22] petitioner's motion to allow DNA testing of the semen sample collected from the victim in order to compare it with Webb's DNA. Unfortunately, said semen sample appears to have been lost by the NBI, which had custody thereof.
Does the prosecution's loss of this potentially exculpatory evidence result in a fundamentally unfair trial of the accused that entitles him to a judgment of acquittal?
In resolving this question in the negative, the Dissent cites Youngblood v. Arizona,[23] a United States Supreme Court Decision, which held that the prosecution's failure to keep intact a piece of potentially exculpatory evidence does not result in a due process violation, unless the accused is able to show that the prosecution acted in bad faith.
However, reliance on Youngblood is ill-advised.
First, Youngblood was promulgated more than two decades ago, in 1988, when DNA testing was still in its infancy. Since then, the technology has grown by leaps and bounds.[24] In the United States, there are now only eight (8) states that have not adopted statutes allowing post-conviction DNA testing[25], with some requiring the correlative duty to preserve DNA evidence. So far, 261 convicts in the United States have been exonerated as a result of post-conviction DNA testing.[26]
Second, Youngblood was not a product of a unanimous Decision. The majority opinion in Youngblood was penned by Justice Rehnquist and concurred in by Justices White, O'Connor, Scalia and Kennedy, with Justice Stevens concurring with the result and writing a Separate Opinion. Justice Blackmun wrote a strong Dissent, which was joined in by Justices Brennan and Marshall.
A critique[27] of the Youngblood decision points out that there are two competing due process interests therein. On the one hand is adjudicative fairness, which "seeks to ensure that the accused receives meaningful protection in court, in other words, reliable fact finding and a fair trial. ... [and which] manifests itself in an assessment of the materiality of evidence and prejudice to the accused ...[as] paramount in determining whether a due process violation has occurred." On the other hand is instrumentalism, which seeks "to impose restraints on the state. ...[by] punishing the state for police and prosecutorial misconduct. ... to deter future misconduct and to create a prophylactic effect. In measuring the misconduct, one examines the subjective intent of the officer and whether the officer acted in good faith or bad faith. Under this approach, the focus is on the state, not the individual. Moreover, the focus on the state and on deterring official misconduct invites an examination of the costs of providing additional process."
The majority opinion in Youngblood focused on the state of mind of the police officer rather than on materiality and fairness to the accused. However, in his Separate Opinion wherein he registered his reservation to the bad faith standard being laid out by the majority, Justice Stevens recognized that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair."
While the earlier case Brady v. Maryland[28] held that due process violation could be committed even without bad faith,[29] the majority distinguished Youngblood from Brady by holding that the evidence in Brady was clearly favorable to the accused, while that in Youngblood was only potentially exculpatory.
Justice Blackmun opined, though, that it was impossible for the accused to prove that a particular piece of evidence was exculpatory when, precisely, it was no longer in existence. Justice Blackmun also disapproved of the bad-faith standard, because "(a)part from the inherent difficulty a defendant would have in obtaining evidence to show a lack of good faith, the line between `good faith' and `bad faith' is anything but bright, and the majority's formulation may well create more questions than it answers."
Justice Blackmun proposed the following alternative to the bad-faith standard:
Rather than allow a State's ineptitude to saddle a defendant with an impossible burden, a court should focus on the type of evidence, the possibility it might prove exculpatory, and the existence of other evidence going to the same point of contention in determining whether the failure to preserve the evidence in question violated due process. To put it succinctly, where no comparable evidence is likely to be available to the defendant, police must preserve physical evidence of a type that they reasonably should know has the potential, if tested, to reveal immutable characteristics of the criminal, and hence to exculpate a defendant charged with the crime.
Justice Blackmun then gave his opinion on how to balance the defendant's rights and the duty imposed upon the law enforcement to preserve evidence:
Due process must also take into account the burdens that the preservation of evidence places on the police. Law enforcement officers must be provided the option, as is implicit in Trombetta, of performing the proper tests on physical evidence and then discarding it. Once a suspect has been arrested, the police, after a reasonable time, may inform defense counsel of plans to discard the evidence. When the defense has been informed of the existence of the evidence, after a reasonable time, the burden of preservation may shift to the defense. There should also be flexibility to deal with evidence that is unusually dangerous or difficult to store.
Third, it is not amiss to note that in the year 2000, the injustice of the Youngblood decision was brought into sharp relief when more sophisticated DNA technology was used on the degraded evidence. The technology yielded a DNA profile that (1) exonerated Larry Youngblood of the crime charged (child molestation, sexual assault and kidnapping) and (2) enabled the police to find the real offender. Excerpts from the website of The Innocence Project, an organization advocating the use of DNA evidence, are as follows:
Larry Youngblood was convicted in 1985 of child molestation, sexual assault, and kidnapping. He was sentenced to ten years and six months in prison. In October 1983, a ten year old boy was abducted from a carnival in Pima County, Arizona, and molested and sodomized repeatedly for over an hour by a middle aged man. The victim was taken to a hospital, where the staff collected semen samples from his rectum as well as the clothing he was wearing at the time of the assault.
Based on the boy's description of the assailant as a man with one disfigured eye, Youngblood was charged with the crime. He maintained his innocence at trial, but the jury convicted him, based largely on the eyewitness identification of the victim. No serological tests were conducted before trial, as the police improperly stored the evidence and it had degraded. Expert witnesses at trial stated that, had the evidence been stored correctly, test results might have demonstrated conclusively Youngblood's innocence.
Larry Youngblood appealed his conviction, claiming the destruction of potentially exculpatory evidence violated his due process rights, and the Arizona Court of Appeals set aside his conviction. He was released from prison, three years into his sentence, but in 1988, the Supreme Court reversed the lower court's ruling, and his conviction was reinstated (Arizona v. Youngblood, 488 U.S. 51). Youngblood remained free as the case made its way through the Arizona appellate court system a second time, but returned to prison in 1993, when the Arizona Supreme Court reinstated his conviction.
In 1998, Youngblood was released on parole, but was sent back to prison in 1999 for failing to register his new address, as required by Arizona sex offender laws. In 2000, upon request from his attorneys, the police department tested the degraded evidence using new, sophisticated DNA technology. Those results exonerated Youngblood, and he was released from prison in August 2000. The district attorney's office dismissed the charges against Larry Youngblood that year.
Shortly thereafter, the DNA profile from the evidence was entered into the national convicted offender databases. In early 2001, officials got a hit, matching the profile of Walter Cruise, who is blind in one eye and currently serving time in Texas on unrelated charges. In August 2002, Cruise was convicted of the crime and sentenced to twenty-four years in prison.[30]
In view of all the foregoing salient objections to Youngblood, it should not be adopted in this jurisdiction.
While it is a laudable objective to inquire into the state of mind of the prosecution and punish it when it has committed prosecutorial misconduct, there are times when, undoubtedly, whether through malice or plain ineptitude, its act or omission results in plain injustice to the accused.
In our various decisions relating to interlucotory orders and incidents pertaining to this case, this court's adherence to instrumentalism has led to our finding in each instance that there was no due process violation committed against petitioner, because bad faith was not shown by the prosecution or the trial judge.
However, since "the task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who appear before or are brought to the bar of justice are afforded a fair opportunity to present their side,"[31] the measure of whether the accused herein has been deprived of due process of law should not be limited to the state of mind of the prosecution, but should include fundamental principles of fair play. Hence, as we write finis to this case, it is time we evaluate the total picture that the prosecution's acts or omissions have wrought upon the accused's rights with each seemingly innocuous stroke, whatever its intention may have been.
The various violations of the accused's rights have resulted in his failure to secure a just trial. As such, the judgment of conviction cannot stand.
[1] Go v. Court of Appeals, G.R. No. 101837, 11 February 1992, 206 SCRA 138.
[2] People v. Teehankee, Jr., G.R. Nos. 111206-08, 6 October 1995, 319 Phil.128 (1995).
[3] Decision dated 13 September 1993 issued by the Regional Trial Court of Makati, Branch 63 in Criminal Case Nos. 91-7135 to 37.
[4] Lejano v. People, G.R. Nos. 176389 and 176864, 20 April 2010.
[5] Information, Regional Trial Court rollo, vol. 1, p. 34.
[6] Tan v. Gallardo, G.R. Nos. L-41213-14 October 5, 1976, 73 SCRA 306, citing Suarez v. Platon, et al., 69 Phil. 556 (1940).
[7] The Prosecution Role in Upholding the Right to a Fair Trial and Responding to Victims/ Witnesses, The Prosecutor Papers, November 2005 at 10.
[8] R v. Boucher, (1954) S.C.R. 16.
[9] Stuart, Don, CHARTER JUSTICE IN CANADIAN CRIMINAL LAW, 2001.p.7.
[10] G.R. No. 113630, 5 May 1994, 232 SCRA 192.
[11] Cramm, Paul, D. The Perils of Prosecutorial Misconduct, http://www.24-7pressrelease.com/press-release/theperils-of-prosecutorial-misconduct-102380.php accessed on 10 December 2010.
[12] Montemayor v. Bermejo, Jr., A.M. No. MTJ-04-1535, 12 March 2004, 425 SCRA 403.
[13] G.R. No.127262, 24 July 1997, 276 SCRA 243, 342 Phil. 206.
[14] TSN, 19 October 1995, pp. 23-24.
[15] Id., pp. 25-33.
[16] Id., pp. 33-45.
[17] Order, Regional Trial Court rollo, vol. 1, pp. 852-860.
[18] Id. at pp. 7-8.
[19] A.M. No. 06-11-5-SC effective 15 October 2007.
[20] G.R. No. 125901, 8 March 2001, 406 Phil. 449.
[21] G.R. No. 150224, 19 May 2004, 428 SCRA 504.
[22] Resolution dated 20 April 2010.
[23] 488 U.S. 51 (1988).
[24] In his Article, OLD BLOOD, BAD BLOOD, AND YOUNGBLOOD: DUE PROCESS, LOST EVIDENCE, AND THE LIMITS OF BAD FAITH, 86 Wash. U. L. Rev. 241, Norman C. Bay reported (pp. 282-283):
Forensic DNA typing was not developed until 1985, when Dr. Alec Jeffreys, an English scientist, used the technique to exonerate one suspect in the sexual assault and murder of two young girls and to inculpate another. Three years later, in 1988, the same year Youngblood was decided, the FBI began testing DNA. That same year, for the first time, a state appellate court upheld the admission of DNA evidence in a criminal case. The crime at issue in Youngblood occurred well before the advent of DNA testing, and the Supreme Court decided the case when DNA testing was in its infancy, still embroiled in litigation over its reliability and admissibility.
In the two decades since it was first used, forensic DNA typing has continued to progress. At this point, scientists have developed three generations of tests. The current, dominant generation of technology is the polymerase chain reaction (PCR). This approach analyzes DNA taken from the nucleus of a cell. PCR allows the DNA in a biological sample to be replicated; only a minute amount of DNA is needed and the sample from which it comes can be highly degraded. Only a few cells are required for reliable results. Usable DNA can be recovered from a myriad of items, including computer keyboards, hats, bandannas, eyeglasses, facial tissue, cotton swabs, dirty laundry, toothpicks, chewing gum, cigarette butts, envelope seals, the mouths of bottles, the rims of glasses, or urine stains.
PCR is usually followed by short tandem repeat (STR) testing, which compares thirteen specific regions, or loci, found on nuclear DNA. The odds that two unrelated individuals will share the same thirteen-loci DNA profile can be as high as one in a billion or more. Thus, PCR-STR analysis is both highly sensitive and discriminating. It is sensitive in that small amounts of biological material can be tested. It is discriminating in that the results of a thirteen-loci comparison generate unique DNA profiles that can establish guilt or innocence to a practical certainty in certain types of cases.
Yet another powerful forensic DNA tool has emerged: mitochondrial DNA (mtDNA) testing. Unlike STR analysis, this technique examines the DNA contained in the mitochondria of a cell, not its nucleus. This is important because some biological material, including hair shafts, bones, and teeth, lack nuclei, but possess mitochondria. In some cases, especially those involving decomposed tissue, only teeth or bones may remain. Mitochondrial DNA testing allows for the study and comparison of DNA in such material. One drawback to mtDNA is that it is not as discriminating as STR. Mitochondrial DNA is passed maternally; consequently, siblings and maternal relatives have the same mtDNA, and the test cannot distinguish among them. Nonetheless, mtDNA provides a powerful supplement to STR and may allow for analysis when none is otherwise available. Among other things, mtDNA has identified one of the unknown soldiers in the Tomb of the Unknown Soldier in Arlington National Cemetery, the remains of Czar Nicholas II and his family, and the likely offspring of Thomas Jefferson and Sally Heming.
Since 1985, the field of forensic DNA typing has continued to progress. Emerging Y-chromosome analysis focuses on variations in male genetic material; it may prove to be helpful in sexual assault cases involving multiple male perpetrators. Hand-held or portable devices with "labs-on-a-chip" may be developed that allow for rapid DNA testing at a crime scene. Robotic systems are already being used to help process DNA samples. Similarly, computer software compares and interprets STR data. In short, forensic DNA typing will continue to become increasingly automated, faster, cheaper, and more accurate. This, in turn, ought to affect the due process calculus when the state loses or destroys potentially exculpatory evidence. The context in which such problems arise today is entirely different than when Youngblood was decided." (Citations omitted.)
[25] 98 J. Crim. L. & Criminology 329
[26] The Innocence Project. accessed on 12 December 2010.
[27] 86 Wash. U. L. Rev. 241.
[28] 373 U.S. 83 (1963).
[29] The Court in Brady held: "The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
[30] The Innocence Project - Know the Cases: Browse Profiles: Larry Youngblood, accessed on 12/13/2010
[31] Tan v. People, G.R. No. 173637, 21 April 2009, 586 SCRA 139.