My art of exposing false witnesses
My art of exposing false witnesses
In all the cases I am handling, perhaps the most difficult to deal with is when you are cross-examining witnesses who you know are false witnesses but are clever to answer questions.
In one case, the policeman sitting at the witness stand of the court was trying to convince the court that their unit did not plant the grenade as evidence against my client during the implementation of the search warrant that this police officer's team secured from the court using false witnesses.
In the end, I succeeded in making him tell the court: (a) that he conducted the search without reading the search warrant; (b) that he violated the Rules of Court on who should be witnesses because he admitted that his team did not use the occupants of the house as witnesses to the conduct of the search inside that house; (c) that he conducted the search right away without first making sure whether the occupants of the house were shown a copy of the search warrant and had read the same search warrant; and (d) that the actual grenade that was submitted to the court was a smooth (Apple-shaped) grenade while the one in the photographs of evidence was a rough (atis-shaped) grenade.
And before discovering the same, I first destroyed the composure of the police witness by asking him two questions: (1) What made him decide that to seize the thing that looked like a grenade and his answer was because it had a pin; (2) Had he subjected the same grenade to a test to know whether it was a toy grenade or a genuine grenade, which elicited chuckles from all lawyers and laymen inside the court, and his answer was he did not subject the same to test; and (3) Had he opened the grenade or subjected the same to testing to know if it had powder explosive inside, again eliciting chuckles from lawyers and laymen listening to the cross-examination, and his answer was he did not do so.
The next questions I threw were those questions inquiring whether he had read the search warrant before he implemented the same, whether he showed the copy of the search warrant to the occupants of the house and had the same occupants read the same search warrant, and who were witnesses they used to witness the search.
I used the same technique of destroying first the composure of the witnesses before asking questions delving on substantive matters in all other cases I had, including this one at the RTC of General Santos City where the witness was a false witness testifying that he saw the happening of the crime of murder.
And because this General Santos case was for a petition for bail, I just chose which among my strong points to asked of my own witnesses in the direct-examination in order to shorten the presentation, enabling me to present two witnesses in one hearing. Thereafter, I asked the RTC judge to allow me to submit a memorandum brief where I detailed the very important and very substantive facts that I succeeded in establishing through the art of cross-examination that I employed with the purpose of convincing the judge that the evidence of the prosecutor is not strong or even there was absolute lack of probable cause.
So I wrote this long memorandum brief that I am now posting for others to read and be informed on how they would argue, would know how to apply the law, and know some laws that are germane in this particular case.
I purposely remove the name of the accused and the branch of the RTC as well as the case number if only to protect the identity of the accused.
The memorandum is here below if you would read:
Republic of the Philippines
Eleventh Judicial Region
Regional Trial
Court
General Santos City
Branch PP
PEOPLE OF THE PHILIPPINES,
Plaintiff,
- versus - CRIMINAL CASE NO. ZZZZZ
For: MURDER
RYAN XXXXX @XXX XXXX,
YYYYY YYYY and TWO (2)
JOHN DOES,
Accused.
x--------------------------------------x
Memorandum
for
the Petition for
Bail
Accused
Ryan XXXX y XXXXX and accused YYYYY YYYY, by the undersigned law firm, respectfully
file this Memorandum on the issue of whether or not the evidence of guilt is
weak to grant them the right to post bail.
On the hearing of 01 December 2016, the
accused presented themselves as witnesses for their petition for bail.
Thereafter, the Honorable Court ordered for
the parties to submit in fifteen (15) days their respective memoranda to
finally argue on why the accused be allowed to post bail in the amount fixed by
the Court.
On 16 December 2016, supposed to be the last
day of the same fifteen (15) days, the accused through counsel filed a motion
for extension of time of new fifteen (15) days ending 31 December 2016 to file
their memorandum.
However, 31 December 2016 fell on Saturday, a
non-office day.
Under the Rules, if the last day falls on a
non-office day, the last day is deemed to be the first following office day,
which in this case is 3 January 2017 because 1 January 2017 and 2 January 2017
are holidays, the latter day was proclaimed by President Rodrigo Roa Duterte as
non-working day.
The Position of
the Accused
The
position of the two accused is that it is very clear that there is no probable
cause.
It is primarily because MR. MMMMM MMMM, the
LONE WITNESS PRESENTED by the prosecution, is clearly a PERJURED WITNESS.
In truth, as his allegations during the
delivery of his testimonies are clear enough to tell the Court and the whole
world that he did not witness how victim NNNN NNNNN Jr. was killed, did not
witness who were the persons who killed NNNNN, and did not witness when and
where NNNNN was killed.
In other words, the totality of the testimonies
of Mr. MMMMM MMMM clearly showed that he had not seen what actually happened in
the death of victim NNNN NNNNN Jr.
In
other words, if he did not witness how NNNNN was killed, it cannot be said that
the victim, NNNN NNNNN Jr. was murdered.
In
fact, the prosecution subpoenaed two more persons to testify and in fact the
subpoenas are in the records of this case.
When
the two more witnesses did not appear in court, the prosecution through former
prosecutor-now-judge Jerry Langrio Fulgar caused the issuance of warrants for
the arrest of these unwilling witnesses.
These
two witnesses were arrested. They were
brought to this Court. But then, this
Court ordered the release of the two witnesses, because they insisted that they
did not witness how NNNN NNNNN Jr. was killed.
One
of the two witnesses here was the alleged live-in partner of MMMMM MMMM who MMMM
alleged as the one who slept inside their store and who MMMM alleged as having
gone out of the store to watch the body of NNNN NNNNN Jr. being loaded to the
alleged tricycle that MMMMM Claimed rushed the victim to a hospital.
It
is also noted that the mother of the victim has not been seated to
testify. She was set to be presented but
she voluntarily withdrew.
So
that the totality of the allegations of MMMMM MMMM and the other circumstances
not involving MMMM point to a reasonable conclusion that indeed there is absolutely
lack of probable cause.
At
any rate, although it now appears that there is no probable cause, the accused
is still willing to give the prosecution a chance to prove its case during the
presentation of its evidence-in-chief.
So
that this is clear: it has been established that the evidence of the
prosecution is weak to warrant for the accused to post bail for their temporary
liberty.
The Discussions
Summary
In
sum, all the highly improbable claims, the material inconsistencies, and
material contradictions of his own statements are clearly telling to show that
it was highly improbable for the witness himself, MMMMM MMMM, to have witnessed
the killing of NNNN G. NNNNN Jr.
At
any rate, the prosecution also failed to present any proof to substantiate any
attendant circumstance to upgrade the crime from homicide to murder.
Any
of these two reasons is sufficient to warrant the grant of the right to bail
for the temporary liberty of the accused.
Liberty is indispensable to the accused
because their respective families are now wallowing in poverty.
The accused being the patriarch of their
respective families must be given the opportunity to be free and work to be
productive again to raise their children who have already quit schooling
because no one has been working to give food on their table and money for the
education of the kids.
Lack of proof of existence of circumstance
to say that the case was qualified to murder
While
the information filed by the prosecutor alleged that the information was for
murder, the witness presented and the other evidence showed that there is no
proof or weak evidence to show that a circumstance exist to qualify the case to
murder.
Let
us review what the law, Article 248 of the Revised Penal Code, says about
murder, to wit:
Art. 248. Murder.
— Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal
in its maximum period to death, if committed with any of the following
attendant circumstances:
1. With
treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or
afford impunity.
2. In
consideration of a price, reward, or promise.
3. By means of
inundation, fire, poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great
waste and ruin.
4. On occasion of
any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic or other
public calamity.
5. With evident
premeditation.
6. With cruelty,
by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
Mr.
MMMMM MMMM was the only witness presented by the prosecution in its attempt to
prove that the evidence of guilt is not weak.
Unfortunately,
Mr. MMMMM MMMM is now deceased.
The
prosecution, during the time of Assistant City Prosecutor Jerry Langrio Fulgar,
asked the Court to issue a subpoena to two other persons to testify.
These persons so subpoenaed failed to
appear. So that the prosecution then
moved for the Court to issue a warrant for the arrest of these two persons they
wanted to testify to prove their cause for murder.
The records of the case will show that these
persons were arrested and brought to court.
But the prosecutor decided not to use these persons because these
persons told them that they did not witness the incident so that they cannot be
witnesses.
One of the two witnesses was the live-in
partner of Mr. MMMMM MMMM that he was talking about as the one sleeping below
the “papag” or “lawting” where MMMMM claimed he was lying when his attention
was caught by voices of the victim, NNNN NNNNN, Jr.
So that if the live-in partner professed she
did not know anything about the killing of NNNN NNNNN Jr. and that this is
contrary to what MMMMM MMMM said that his live-in partner went out of the store
below the “papag” to go to the crime scene, then this is a substantive proof
against the supposed reputation of MMMMM MMMM for honesty.
To conclude the discussion on the existence
or non-existence of the circumstance aggravating to murder, let us now analyze
the testimonies of MMMM assuming them to be true for the purposes only of this
discussion.
Let us quote again what Article 248 states,
to wit:
Art. 248. Murder.
— Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion temporal
in its maximum period to death, if committed with any of the following attendant
circumstances:
1. With
treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or
afford impunity.
2. In
consideration of a price, reward, or promise.
3. By means of
inundation, fire, poison, explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or locomotive, fall of an airship, by
means of motor vehicles, or with the use of any other means involving great
waste and ruin.
4. On occasion of
any of the calamities enumerated in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive cyclone, epidemic or other
public calamity.
5. With evident
premeditation.
6. With cruelty,
by deliberately and inhumanly augmenting the suffering of the victim, or
outraging or scoffing at his person or corpse.
Circumstances No. 2, No. 3, No. 4, No. 5 and
No. 6 do not obviously apply in this case.
Let us then closely look at Circumstance No.
1 whether there is a strong evidence to say that there is great probable cause
that this Circumstance No. 1 exists.
Let us
closely look at Circumstance No. 1 and re-state the same, to wit:
1. With
treachery, taking advantage of superior strength, with the aid of armed men, or
employing means to weaken the defense or of means or persons to insure or
afford impunity.
The
ultimate question here is very obvious: HAVE THE ALLEGATIONS OF THE LONE
WITNESS PROVED IN THE DEGREE OF GREAT PROBABLE CAUSE ANY OF THE MATTER IN THIS
GROUP?
Assuming
the allegations of MMMMM MMMM to be true, can we say that there is great
probable cause for treachery?
Treachery
is defined by the Philippine Jurisprudence, as stated in People vs Dolorido, GR
No. 191721, January 21, 2011, as follows:
In order for treachery to be properly appreciated, two elements must be
present: (1) at the time of the attack, the victim was not in a position to
defend himself; and (2) the accused consciously and deliberately adopted the
particular means, methods or forms of attack employed by him. The
essence of treachery is the sudden and unexpected attack by an aggressor on the
unsuspecting victim, depriving the latter of any chance to defend himself
and thereby ensuring its commission without risk of himself.
In Miguel
Cirera y Ustelo vs People of the Philippines, GR No. 181843, July 14,
2014, Justice Leonen said:
Treachery as a qualifying circumstance must be deliberately sought to ensure the safety of the accused
from the defensive acts of the victim. Unexpectedness of the attack does not
always equate to treachery.
In
this case, it is very clear that even if we were to believe in the allegations
of Mario MMMM, the best that can be said is that the probable cause of a crime
is only for a crime of HOMICIDE and not murder.
Despite
the repeated battery of questions thrown by the undersigned counsel on Mario MMMM
whether he personally knew what acts were done by the accused before the time MMMM
saw the victims being stabbed.
What
happened was that MMMM gave vacillating answer to a simple question of what he
saw before the victim was being stabbed?
First,
MMMM said in his “judicial-affidavit” as follows:
Q3: Please narrate to this investigation, the circumstances that
surround this particular incident?
A3: Yes sir. On the aforementioned place, time and date, I was
awaken(ed) by the voice of the victim (NNNN NNNNN Jr) so that I stood up and
looked outside my house and then and there, I saw the victim who was lying on
the ground being stabbed by Ryan XXXXX alias XXX XXXXX while YYYYY YYYY was
firmly holding both shoulder(s) of the victim. I saw also another two (2)
persons nearby, acted as look out (sic) or back up (sic) while the barbaric act
was being executed.
If
it were to believe in the allegations in this “judicial-affidavit”, then it is
CLEAR THAT MMMM DID NOT SEE WHAT HAPPENED BEFORE THE SCENE THAT YYYY WAS FIRMLY
HOLDING THE SHOULDERS OF THE VICTIM WHILE RYAN XXXXX WAS STABBING THE SAME
VICTIM.
So
that if this is the only proof of the prosecution, then it cannot be said that
there was treachery or evidence premeditation.
The
repeated battery of questions the undersigned asked of MMMM showed that MMMM
maintaining that the first time he saw the victim was that he saw NNNN NNNNN
Jr. only at the point when NNNN NNNNN Jr. was being stabbed and was being held
firmly on the shoulders.
That
is, although at one time MMMM said he first saw the victim already wounded
before the victim was stabbed by Ryan XXXXX.
This opposite departure that is material in this case because it will
spell the difference between murder and homicide is in itself also a good proof
that MMMM was only fabricating a story.
Nevertheless,
what is common among all his statements in the “judicial-affidavit” and in his
testimonies is the fact that THERE WAS NO TESTIMONY WHAT HAPPENED BEFORE THE
STABBING.
If there is no evidence to know what
happened before the stabbing, then it cannot be said with great probable cause
that there was either evident premeditation or treachery, that the accused took
advantage of superior strength, that the accused committed the crime with the
aid of armed men, that the accused employed means to weaken the defense of the
victim, or that the accused employed means or persons to insure or afford
impunity.
What
about the claim of MMMM that he saw YYYYY YYYY holding firmly the shoulders of NNNN
NNNNN Jr.?
Does this alone qualify the killing to murder
even assuming that it was true that YYYY firmly held the shoulders of the
victim for the sake of argument?
It
is submitted that this statement, even if true, that YYYYY YYYY held firmly the
shoulders of NNNN NNNNN, Jr., is not sufficient to qualify the killing to
murder.
That
is because it cannot be known what happened prior to the time YYYYY YYYY was
seen firmly holding the shoulders of NNNN NNNNN, Jr.
Remember, it was possible that what happened
was that NNNN NNNNN Jr. was already stabbed without any help from anyone before
MMMM saw YYYYY holding the victim firmly on the shoulders.
It was also possible that what happened was
that NNNN NNNNN Jr. had an opportunity to defend self before he was allegedly seen
by MMMM being stabbed and held on the shoulders.
It was also possible that what happened was
that NNNN NNNNN Jr. committed acts of unlawful aggression before he was seen to
be being held on the shoulders and being stabbed.
It was also possible that there was no
premeditation to kill NNNN NNNNN Jr. before he was seen actually being stabbed.
To establish whether there was premeditation
or treachery or that there was employment of means to insure impunity or the
aid of armed men, the undersigned counsel battered the alleged sole witness MMMM
with questions to know what happened before he saw the accused being stabbed.
MMMM repeatedly said he did not see what
happened before the time he saw that the victim was being stabbed and being
held firmly on the shoulders.
But it is a mystery that MMMM also said at
once that he saw NNNN NNNNN Jr. already wounded before being stabbed.
MMMM even said he heard the voice of the
victim, which voice was moaning voice not reflected in the Transcript of
Stenographic Notes (TSN). He described
the voice in Cebuano dialect as “ungol.”
This means that most likely than not a
previous stab already took place before MMMM saw NNNN NNNNN Jr. being stabbed
and firmly held on the shoulders.
So that it is now very clear, even without
discussing all others for the purpose of determining whether or not the accused
must be allowed to post bail, it shows that there is no proof to show that
there is great probable cause that any of the circumstance existed to qualify
the case to murder.
So that it is now unavoidable that the
conclusion is that it is clear and convincing that there is no proof of any
circumstance to qualify the case to murder.
If there is no such proof, it cannot be said
there is great probable cause of murder or of the existence of any circumstance
of murder.
On
this score, let the photo shot of the bottom part of Page 19 of the Transcript of Stenographic Notes (TSN) of June 13, 2013,
where the undersigned counsel questioned MMMM what he saw just before he saw
the victim being stabbed. This photo is pasted
below, to wit:
Here,
MMMM answer the undersigned that before he saw NNNNN being stabbed, he saw NNNNN
first as wounded.
This
now confirmed that assault acts occurred before the time MMMM allegedly saw the
victim being stabbed.
And
it only confirmed that the assault that occurred before this was now known how
it happened, whether a circumstance attended to qualify the act into murder.
This
alone is sufficient for the Court to grant bail because the evidence at hand,
if believed, tends only to prove that NNNN NNNNN Jr. was being stabbed and
being held on his shoulders firmly and nothing more.
Then,
MMMM changed his answer. This time, he insisted that he saw the victim only as
being stabbed; impliedly withdrawing the original sworn statement that the
first time he saw the victim was that the victim was already wounded.
To
show these testimonies, a photo shot of Page
20 of the TSN of June 13, 2013 is hereby pasted:
The
undersigned counsel still tried to elicit from MMMM what happened before the
time he saw the victim being stabbed and held on the shoulders but he stood
firm, as seen in the photo shot of Page
21 of the TSN of June 13, 2013, to wit:
Still,
in the continuation of the barrage of questions that the undersigned threw at MMMM,
he now maintained that what he saw was only the act of stabbing and act of
firmly holding the shoulders of the victim, as shown by Page 22 of the TSN of
June 13, 2013, to wit:
The
undersigned counsel wanted to make it sure there was no evidence as to what
happened before the time MMMM allegedly saw the stabbing of the victim and the
holding firmly of his shoulders. So that
again the undersigned ventured into more questions, as shown by the photo shot
of Page 23 of the TSN of June 13, 2013,
being pasted here, to wit:
For
the last time, the undersigned counsel still tried to firm up from MMMM that he
did not see what happened before he saw that victim allegedly being stabbed and
being held firmly on the shoulders, and to show this a photo shot of Page 24 of
the TSN of June 13, 2013, it is pasted:
Then,
MMMMM MMMM continued his saga of lying during the ocular inspection in the
afternoon of August 2, 2013 at the murder scene. However, there were no more
questions about what happened before the time he saw the victim being stabbed
and being held firmly on the shoulders.
The
alleged witness, MMMMM MMMM, said there were two persons who according to him
acted as if they were lookouts.
But
MMMMM MMMM never said he saw those two persons as being armed. So that the circumstance of employing the aid
of armed men cannot apply.
MMMMM
MMMM also said about YYYYY YYYY holding the shoulders of the victim, NNNN NNNNN,
Jr. However, as explained above that
there is no evidence submitted by the prosecution to show what happened before MMMM
allegedly saw the stabbing of the victim, NNNN NNNNN Jr. and the holding of his
shoulders by YYYYY YYYY, it cannot be said that the act of holding the
shoulders can be interpreted to mean as an act used to ensure impunity so that
the victim cannot defend himself.
Of
course, it was possible that the holding of the shoulders of NNNN NNNNN, Jr.
was preceded by an act that there was no firm pinning down of the shoulders.
This
possibility alone is sufficient to conclude that this is not a case of murder,
if ever, but a case of Homicide.
ERGO,
with this fact alone that there is no testimony or other evidence offered to
show what happened before the alleged stabbing and the alleged holding of the
shoulders of the victim, it is sufficient that the two accused must be ALLOWED
TO POST BAIL BECAUSE THE TESTIMONIAL EVIDENCE PRESENTED, EVEN IF TRUE, WOULD
ONLY WARRANT THE CHARGE OF HOMICIDE.
Because
there is no evidence to say what happened when the voice of the accused was
heard, the doctrine of IN DUBIO PRO REO, in doubt for the accused, applies to
interpret that the only probable cause, if at all, is homicide, which is
bailable.
Nevertheless,
as will be argued next, there is actually ABSOLUTELY LACK OF PROBABLE CAUSE
even for homicide or murder.
Absolute lack of probable cause
To
repeat, the material inconsistencies, material contradictions of his own
statements, and improbability when gauged against the law of nature all
combined to show that it was highly improbable for the witness himself, MMMMM MMMM,
to have witnessed the killing of NNNN G. NNNNN Jr.
In
other words, his own testimonies betrayed MMMMM MMMM to reveal him as no more
than a false witness.
Let
the following justifications be enumerated to show that there is absolute
absence of probable.
The first:
Tremendous
fear to testify
First,
it is on record that when MMMMM MMMM was called in by the prosecution to
testify, he cannot now be found inside the court room.
Just before the case was called by the Court,
MMMM was present.
But MMMMM MMMM suddenly disappeared when his
name was called.
He became nowhere to be found.
The disappearance compelled the Court to call
a recess.
It took more than twenty (20) minutes before MMMMM
MMMM was found.
To this, the undersigned manifested to make
this hesitance to testify away recorded in the Transcript of Stenographic Notes
(TSN) of June 13, 2013.
To show this manifestation, this photo shot
of Page 3 of the TSN of June 13, 2013,
hereby is posted:
Anyway,
what was important is that Prosecutor Fulgar admitted tacitly the existence of
the fact that MMMMM MMMM disappeared and it took the Court, the prosecutor and
this counsel more than 20 minutes TO find MMMMM MMMM.
Anyway,
the prosecutor again admitted the existence of the hesitation to testify on the
part of MMMMM MMMM, and a photo shot of Page
4 of the TSN of June 13, 2013 where Prosecutor Fulgar said is hereby
reproduced, to wit:
Despite
the fact that Prosecutor Fulgar was aware of the fact of hesitance to testify,
the prosecutor did not ask MMMMM MMMM to explain why he hesitated to testify.
This
failure of the prosecutor to ask MMMMM MMMM to explain why the latter
disappeared from the court when his name was called to go to the witness stand
is fatal to the cause of the prosecution.
Hesitance
or even the disappearance of Marcia MMMM means only one thing: HE WAS AFRAID TO
TESTIFY.
And
why he is afraid to testify?
The
cause of fear may be the possibility that his lies will be unraveled, that
somebody must have threatened him not to testify and that threat was real and
sufficient to strike fear in the heart of the witness, that the witness fears
that his or her loved ones would be put in a harm’s way, or that the person
against whom the testimonies will be given is relative of the witness in delay.
At
any rate, the hesitance to testify must be explained. This is the rule already solid in the
Philippine jurisprudence.
If
the delay is not explained, the credibility of the said witness is reduced to
zero because the presumption of unexplained hesitance or delay in delivery of
the testimony is that the witness has no credibility at all.
At
any rate, the jurisprudence on delay does not measure the length of delay but
in the reason or absence of reason.
This
hesitance to testify is the same in substance as the delay in testimony which
when not explained will be treated as nothing but as having no evidentiary
weight.
That
is so because hesitance for 20 minutes to appear in court when already called
to testify is not less than the delay in giving testimonies or in reporting a
crime.
The
leading cases in the Philippine jurisprudence are many, including People
vs Natividad (GR No. 138017)
In People v. Bautista, cited by appellant, this Court stated the rule
on the effect of delay of a witness in divulging what he or she knows about the
commission of the crime, to wit:
The rule is ordinarily to the effect that delay by a witness in
divulging what he or she knows about the commission of a crime, such as the
identity of the offender, is not by itself a setback to the evidentiary value
of such a witness testimony. The courts, however, have been quick to deny
evidentiary weight where such delay is not sufficiently justified by any
acceptable explanation.
In its Brief, the Office of the Solicitor General opines that the
silence of the witnesses for four (4) years was satisfactorily explained
because the records reveal that the witnesses were cowed into silence by
appellant who admittedly was an influential man being then the municipal mayor
of the place. The appellant municipal
mayor exercised moral dominance and influence over these police officers. In
addition, he was able to easily intimidate them with his ten (10) bodyguards
around him. We find the explanation of
the trial court to be enlightening, to wit:
It may be asked Why did the witnesses come forward only after about
four years from the date of the incident? The accused Natividad is the town
mayor of Ramos, Tarlac. The way the offense being attributed to him was
committed will surely instill fear on the citizens, the policemen who are
witnesses in this case included. There is no plausible reason why the Court
should not believe them. No ill motivation was shown as to why they will
falsely impute to the accused Natividad the commission of a heinous crime if it
is not true.
In People
vs Berondo, GR No. 177827, March 30, 2009, the Supreme Court clearly
stated that delay impairs the credibility of the witness unless there is
sufficient explanation given.
It
means that the burden of proof of explaining for the delay rests in the party
seeking to be benefited by the witness who delayed in the reporting of the
criminal incident.
So
that People
vs Berondo said:
Delay in revealing the identity of
the perpetrators of a crime does not necessarily impair the credibility of a
witness, especially where sufficient explanation is given. No standard form of behavior can be expected
from people who had witnessed a strange or frightful experience. Jurisprudence recognizes that witnesses are
naturally reluctant to volunteer information about a criminal case or are
unwilling to be involved in criminal investigations because of varied
reasons. Some fear for their lives and
that of their family; while others shy away when those involved in the crime
are their relatives or townmates. And where there is delay, it is more
important to consider the reason for the delay, which must be
sufficient or well-grounded, and not the length of delay.
In
this case, there is no dispute that witness MMMMM MMMM delayed his appearance
at the witness stand by at least twenty (20) minutes.
The
prosecution had to employ the assistance of court personnel and police officers
to look for MMMMM MMMM.
Then
Prosecutor Jerry Langrio Fulgar (who is now a judge in the RTC of Sarangani)
admitted the existence of the hesitance caused by the disappearance of MMMMM MMMM.
The
fact remained that the Prosecution failed to ask MMMM to explain.
And
because the prosecution has the burden of explaining and it failed to discharge
that burden, the presumption now is THAT THERE IS NO EVIDENTIARY WEIGHT THAT
CAN BE GIVEN TO MMMMM MMMM BECAUSE OF HIS HESITANCE OR DISAPPEARANCE FOR MORE THAN
20 MINUTES AFTER HIS NAME WAS CALLED BY THE COURT.
Another delay of
MMMMM MMMM
Now,
it is established that the death of NNNN NNNNN Jr. occurred in the early
morning of 30 September 2012.
The
“Judicial-Affidavit” of MMMMM MMMM showed that it was executed on 20 January
2013.
The
total number of days that passed by before MMMM executed his
“judicial-affidavit” alleging that he saw accused Ryan XXXXX XXXX and YYYYY YYYY
were 112 days.
In
other words there was a clear delay as a fact.
Now,
applying the jurisprudence established in People vs Bautista and People
vs Natividad stated above, the
prosecution must explain why MMMMM MMMM took 112 days before coming out
with his affidavit to charge the accused.
Instead
of explaining, the undersigned counsel took it upon himself to ask MMMM to
explain why it took him 112 days before coming out to report that accused XXXX
and YYYY were the ones who murdered NNNN NNNNN Jr.
Despite
the opportunity given to MMMM, he failed to sufficiently explain his long
delay.
The
most that MMMM could say to explain why he delayed for 112 days was that he
claimed he was hospitalized on 09 October 2012.
First, MMMM did not explain why he did
not report the crime from September 30, 2012 up to October 8, 2012.
The eight days that lapsed were more than
sufficient for him to go to the police and file a report about the crime and
the criminals.
But he never did.
Second, MMMM or the
prosecution did not submit evidence that indeed he was hospitalized on 09
October 2012.
It was a mere claim not supported by any
document or medical certificate.
Third, one week after the crime was
committed, or seven (7) days after the crime was committed, MMMM himself
claimed that he saw accused XXXX and YYYY working for their employer.
Another
week later, or another seven (7) days, that should also already be 14 October
2012, MMMM said he saw once again accused Ryan XXXXX XXXX and YYYYY YYYY.
That means that it was not true that MMMM was
not hospitalized or that he was hospitalized but that he was already discharged
from the hospital that he met the accused on the 14th day from the
day NNNNN was killed.
So
that MMMM had plenty of time to spare for reporting the incident.
Fourth, no less than MMMM
claimed that he saw the two accused, XXXX and YYYY, during the day NNNN NNNNN
Jr. was buried.
Imagine how traumatic it would be for MMMM to
face again the killers if indeed XXXX and YYYY were the ones who killed
considering that he claimed he was afraid of XXXX and YYYY?
Fifth, it was
un-believable for MMMM to claim he feared reprisals from XXXX and YYYY if he
were to report the two to the police.
That un-believability is because MMMM even
showed he was courageous and brave in shouting that NNNNN was stabbed while the
accused were allegedly still in the act of stabbing NNNNN.
So that in all, there was no indication that MMMM
had nothing to fear if indeed he was a genuine witness to a murder incident.
To clearly understand the arguments above,
let these photo shot from Page 27 of the
TSN of June 13, 2013 be posted here.
Now,
MMMM was asked by the undersigned counsel for an explanation why he failed to
report the criminals from September 30, 2012 up to October 8, 2012; where he answered
he was afraid of XXXX and YYYY, as shown by Page 28 of the same TSN of June 13, 2013, to wit:
Then, MMMM claimed he saw the accused in their
purok, Purok San Miguel, a week later; and he did not say what he did in order
to remedy his fear if indeed it were true that he feared the accused.
Page 29 of the TSN of June 13, 2013 is:
MMMM made two clashing
claims on material matter:
first he said he was awakened
by the voice of the victim, but
claimed later he failed to sleep
In
his “judicial-affidavit” he claimed that he was awakened by the voice of the
victim, NNNN NNNNN Jr., so that was the reason he saw NNNN NNNNN Jr. being
stabbed and being held by YYYYY YYYY on the shoulders.
However, this declaration in his
“judicial-affidavit” collapsed into a reputation that it is false after MMMM
himself testified in open court that he was actually awake.
The issue of whether he was awake or not was
material to the issue at hand.
If he say later he failed to sleep, then he
was lying and this act becomes powerfully proving he was lying when paired with
the fact that he disappeared for at least 20 minutes when his name was called
to testify in open court.
And if he was awake, he should have seen the
incidents that occurred before he allegedly saw.
So that if he were awake he could have
testified what happened before he allegedly saw the victim being stabbed and
being held firmly by the shoulders.
But because he said he did not see what
happened before he saw the victim being stabbed and being held by the
shoulders, then the conclusion is he was only lying and did not witness the
killing.
To prove the existence of this material clash
of claims of facts, a copy of the photo shot of Pages 11 and 12 of the TSN of June 13, 2013 is hereby posted:
MMMMM
saw the
accused
at the burial
No less than MMMMM MMMM said that he
saw XXXX and YYYY attending the burial of NNNN NNNNN Jr.
MMMM said he saw XXXX and YYYY only
once at the wake.
This is understandable if indeed it
were true that MMMMM attended only once at NNNN NNNNN Jr.’s wake and it was
only during the burial ceremonies already.
And what is the essence in the fact
that the accused were present during the burial of the victim?
That means that XXXX and YYYY were not
the ones who killed the victim because it is a habit of life or a natural law
of life that there is no ordinary killer who would come to the wake or the
burial of the person he killed.
Let us read Page 32 of the TSN for
June 13, 2013 where MMMM said he saw the accused during the burial, to wit:
This fact only validated the
testimonies of Ryan XXXXX XXXX and YYYYY YYYY that they attended all the days
of the wake for NNNN NNNNN Jr. to cook foods and coffee for the visitors.
And the main reason given by XXXX and YYYY
why they dedicated their time every day was that NNNN NNNNN Jr. was their very
close godson of their children and who was very kind to them because JR as XXXX
and YYYY fondly called him was so kind to them and their family.
For this, the Court is invited to the
TSNs of XXXX and YYYY of their testimonies given on December 1, 2016.
There is no real witness
who shouts when witnessing
traumatic events like murder
The
shocking power is overpowering for any incident that suddenly appears to the
eyes of one witness when no other persons can be presumed to be present as it
was a wee hour of the morning was powerfully traumatic.
Given
that natural shocking power, any witness ordinarily is shocked upon witnessing
a very startling occurrence like stabbing to death somebody.
There
is no person who is alone witnessing a crime who would shout he saw the
stabbing incident while he is too close to the killers, considering the
powerful shocking effect of the fact that the killers were more than one
person.
So
that it was dishonesty for MMMMM MMMM to claim that he shouted “Si JR
gindunggab” while seeing the act of stabbing done by more than one person.
Considering
that they were neighbors in San Miguel, Calumpang, General Santos City, MMMMM MMMM
certainly knew that XXXX and YYYY knew him personally.
And
if so, then it is reasonable to conclude that XXXX and YYYY recognized the
voice of MMMMM MMMM.
Additionally,
it is presumed that being neighbors, XXXX and YYYY knew that the house of MMMM
was in front where NNNN NNNNN Jr. was stabbed dead.
So
that if indeed MMMM was fearful of XXXX and YYYY, MMMM could have not shouted
because the latter two would only assault him at his house.
If
indeed it was true that MMMM witnessed the killing and he shouted, then XXXX
and YYYY could have pestered MMMM no end from the first day on September 30,
2016.
To
shout “Si JR gindunggab” is a courageous act and to claim that it
took MMMM 112 days to report the criminals because he feared XXXX and YYYY is a
cowardice act.
Lying on the ground
versus
Sitting position
Here
is another material clash of claims of facts.
In
the “judicial-affidavit” MMMMM MMMM claimed that NNNN NNNNN Jr. was lying on
the ground while being attacked.
In
the testimonies, MMMMM MMMM now testified that he saw Rodolf NNNNN Jr. was
sitting when being stabbed to death.
Additionally,
MMMMM MMMM would make another claim that NNNN NNNNN Jr. was using his left arm
in keeping his body in the sitting position.
This
is inconsistent with the other claim that NNNN NNNNN Jr. was being held firmly
on the shoulders when he saw the victim.
How
can one being held by the shoulder still manage to use his left arm as the pole
upon which the body of NNNNN can lean on while sitting?
Now,
if NNNNN was lying on the ground, how can he be stabbed at the same time being
held on shoulders, considering that his back was already flat on the ground?
The Conclusion
Having
presented clear and convincing arguments above, the position now of the accsued
is that they have sufficient justifications for the Court to grant them bail
for their temporary liberty.
The Prayer
WHEREFORE, it is respectfully prayed of
the Honorable Court to GRANT THE PETITION FOR BAIL in the amount small enough
for the poor accused who are only pro bono clients of the undersigned.
Other
reliefs just and equitable under the circumstances are also prayed for. 31 December 2016. Manila for General Santos City.
CAUSING SABARRE CASTRO Pelagio
Mailing Address: Unit No. 1, # 2368 JB
Roxas St., corner Leon Guinto St., Malate, Manila
By:
BERTENI
CATALUÑA CAUSING, C.E.
IBP
No. 972694/ 04-12-2015 / Manila IV
PTR
No. 4889732 / 04-12-2015 / Manila
Roll No. 60944
MCLE No. IV –
0007338 issued 10 August 2012
(Valid from 15
April 2013 until 14 April 2016)
MCLE No. V –
0013036 issued 13 January 2016
(Valid from 15 April 2016 until 14 April
2019)
Cc:
Office
of the City Prosecutor
Hall of Justice, General Santos City
OO-OOOO-NNNNN
Private complainant
EXPLANATION
Lack of manpower and distance compelled the service and
filing of this Memorandum by registered mails.
BERTENI CATALUÑA CAUSING, CE
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