Saturday, December 31, 2016

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:


TSN 2013-06-13 Page 19.jpg
           
           
            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:


TSN 2013-06-13 Page 20.jpg

            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:


 TSN 2013-06-13 Page 21.jpg


            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:


TSN 2013-06-13 Page 22.jpg
            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:


TSN 2013-06-13 Page 23.jpg
            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:


TSN 2013-06-13 Page 24.jpg



            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:


TSN 2013-06-13 Page 3.jpg

           
            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:


TSN 2013-06-13 Page 4.jpg 


            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.


TSN 2013-06-13 Page 27.jpg



            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:


TSN 2013-06-13 Page 28.jpg

           
             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:


TSN 2013-06-13 Page 29.jpg
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:


TSN 2013-06-13 Page 11.jpg



TSN 2013-06-13 Page 12.jpg



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:


TSN 2013-06-13 Page 32.jpg



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
Email addresses: berteni.causing@gmail.comtotocausing@yahoo.com; Tel/Fax: 3105521
  
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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