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Republic of the Philippines SUPREME COURT

Manila

En Banc Copy No. ___

LENIDO LUMANOG and AUGUSTO SANTOS, Petitioners, G.R. No. 182555

- versus – (CA-G.R. CR HC No. 00667, ABADILLA MURDER CASE) PEOPLE OF THE PHILIPPINES, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - -x CESAR FORTUNA,

Petitioner, - versus - G.R. No. 185123 PEOPLE OF THE PHILIPPINES, Respondent. x- - - - - - - - - - - - - - - - - - - - - - - -x PEOPLE OF THE PHILIPPINES,

Plaintiff-Appellee, - versus - G.R. No. 187745 SPO2 CESAR FORTUNA y ABUDO, RAMESES DE JESUS y CALMA, LENIDO LUMANOG y LUISTRO, JOEL DE JESUS y VALDEZ and AUGUSTO SANTOS y GALANG,

Accused, RAMESES DE JESUS y CALMA and JOEL DE JESUS y VALDEZ,

Accused-Appellants. x -----------------------------------------x

SUPPLEMENT TO THE MOTION FOR RECONSIDERATION

If a human life must be taken to pay a debt to society, let not a wrong man, ever, be made to account for it. The trek to Justice is not a game of chance or skill but a quest for truth, the only path by which the righteous end can be reached.1

1 People v. SPO1 Faustino, G.R. No. 129220, September 6, 2000

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PETITIONERS LENIDO LUMANOG and AUGUSTO SANTOS, thru

counsel, hereby supplement their Motion for Reconsideration and submit the

following:

A. TIMELINESS OF FILING THE MOTION FOR RECONSIDERATION

Petitioners submit that the Motion for Reconsideration supplemented

by this pleading was seasonably filed on October 8, 2010, fifteen (15) days

from September 23, 2010, the date when counsel received from the Supreme

Court a copy of the questioned decision.

B. ADDITIONAL ASSIGNMENT OF ERRORS

The Honorable Supreme Court (in its main decision) erred in

I. Ruling that the discrepancies in Alejo’s affidavit and his testimony do

not discredit the witness. II. Brushing aside the fact that the trial court, by acquitting Lorenzo delos

Santos, directly impugned the credibility of witness Freddie Alejo. III. Ruling that “it was possible that different firearms were used by them

in shooting Abadilla.” IV. Holding that “since the identity of the assailant has been sufficiently

established, a ballistic report on the slugs can be dispensed with in proving petitioner’s guilt beyond reasonable doubt;”

V. Ruling that “Even if another weapon was in fact actually used in

killing the victim, still, appellants Fortuna and Lumanog cannot escape criminal liability therefor, as they were positively identified by eyewitness Freddie Alejo as the ones who shot Abadilla to death.”

VI. Dismissing the ballistics evidence that points to the ABB as the

perpetrators of the crime.

The Concurring Opinion, on the other hand, erred in VII. Ruling that “The concern about the slug extracted from the victim

being ballistically similar to the slug extracted from a known victim of the ABB is devoid of factual justification and deserves no consideration.”

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VIII. Dismissing the non-affiliation of the accused appellants with the ABB

by holding that “While the records do not indicate that accused were ABB operatives, the same records do not bear that they are not.”

The Supreme Court, including the justices who dissented, erred in IX. Not recognizing that Alejo’s testimony, as the sole basis of the

judgment of conviction, is capable of two opposing but equally defensible interpretations, and thus, calls for the application of the equipoise rule that mandates the acquittal of all accused-appellants.

DISCUSSION OF ERRORS I. The Supreme Court erred in ruling that the discrepancies in Alejo’s affidavit and his testimony do not discredit the witness.

Despite the inconsistencies between Alejo’s statement and testimony

the Court ruled that these discrepancies do not affect the credibility of the

witness, and held:

It is settled that affidavits, being ex-parte, are almost always incomplete and often inaccurate, but do not really detract from the credibility of witnesses. The discrepancies between a sworn statement and testimony in court do not outrightly justify the acquittal of an accused, as testimonial evidence carries more weight than an affidavit.

To support its ruling, the Court cited the cases of People v. Silvano2,

People v. Gallo3, and People v. Mendoza4

.

In People v. Silvano5

, however, the witness was the victim’s wife.

Emotional stress attended the taking of her affidavit a day after her husband

was killed:

Whatever vagueness there may have been in the contents of her affidavit was sufficiently clarified by Leonarda on the witness stand when she explained that at the time of the execution of her affidavit she was not yet

2 G.R. No. 125923. January 31, 2001. 3 G.R. No. 133002. October 19, 2001. 4 G.R. No. 142654. November 16, 2001. 5 Supra, footnote 2.

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in her normal state of mind due to the killing of her husband on April 14, 1993.6

Such emotional stress could not have attended Alejo’s voluntary

statement given directly to the police investigators and formally transcribed

in a form of a Sinumpaang Salaysay as he is not in any way related to the

victim.

In People v. Gallo7, the “alleged inconsistencies in the testimony and

sworn statement […] refer to immaterial and insignificant details.”8 In the

instant case, the contradictions and omission refer to material and significant

details that warrant the Court’s careful scrutiny before applying the rule that

“The discrepancies between a sworn statement and testimony in court do not

outrightly justify the acquittal of an accused.”9

In People v. Mendoza10

, the alleged inconsistencies are of minor

import as found by the Court:

Appellant attempts to muddle the events by alleging that the statements of Mariquit contained inconsistencies. Those inconsistencies, however, appear to touch merely on the order of the events as they transpired. These are of minor import and do not shatter altogether the credibility or the testimony of this witness. The fact that he met appellant and his co-accused after the stabbing did not mean that he could not have witnessed the stabbing. One event necessarily comes after the next.11

Thus, the ruling of the Court was justified with cases the factual

circumstances of which are not on four-squares with the factual

circumstances of the instant case.

Alejo could not have been as emotionally affected as the victim’s wife

in People v. Silvano, and neither do the discrepancies between his earlier

statement and testimony refer to immaterial or insignificant details. The

omission in Alejo’s earlier statement and the addition of details about the

6 Id. 7 Supra, footnote 3. 8 Id. 9 Supra, footnote 3, 367 SCRA 662, 668 10 Supra, footnote 4. 11 Id.

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two (2) lookouts in his testimony cannot be said to be of minor import so as

to justify the Court’s ruling that such discrepancies do not affect Alejo’s

credibility as a witness.

While this Court has, in a line of decisions, generally held that

“discrepancies between the statements of the witness in his affidavit and

those he makes on the witness stand do not necessarily discredit him[,]”12

this general rule, however, admits of exceptions:

The exceptions thereto, which impair the credibility of the witness, are: (1) when the narration in the sworn statement substantially contradicts the testimony in court, or (2) when the omission in the affidavit refers to a very important detail of the incident that one relating the incident as an eyewitness cannot be expected to fail to mention.13

How substantial should the contradiction be? What degree of

importance should attach to an omitted fact before such omission is held to

impair the credibility of a witness?

These qualitative measures must be addressed before brushing aside

any contradiction or omission as irrelevant. And as this Court has

pronounced, “The point of inquiry is whether the contradictions are

important and substantial.”14

A contradiction that pertains to the number of assailants cannot be

considered irrelevant. The number of assailants is a very important matter in

any criminal case. Upon that number hinges the determination of how many

persons must be made to answer for the criminal and civil liability.

On the other hand, the omission of detailed accounts of two (2) men

“loitering around” the area before the incident, and, as found by the trial

court, the contradiction in the number of persons who pointed a gun at the 12 People v. Narvaez, et. al., G. R. No. 140759, January 24, 2002; People v. Castillo, 261 SCRA 493, citing People v. Calegan, G. R. NO. 93846, June 30, 1994, 233 SCRA 537 13 Id. 14 Id.

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witness, are material points in the testimony of the witness that must not

simply be considered by the court as “making much of a few

inconsistencies.”

How many criminals did Freddie Alejo see in the ambush-slay of the

Col. Rolando N. Abadilla on June 13, 1996? Is it four (4) or six (6)?

This question must be answered clearly and unequivocally to ensure

that no innocent person ever is deprived of liberty or made to answer for a

crime he/she did not commit. Failing to establish the exact number of

perpetrators leaves a hanging doubt whether the number of persons made

accountable to answer for the murder matches the actual number of persons

who really committed the crime.

All the other witnesses (Minella Alarcon, Merlito Herbas, Aurora

Urbano, Cesar Espiritu, and Freddie Alejo himself) who gave their

statements to the police right after the incident are one in saying that they

saw four (4) men and not six (6) involved in the ambush-slay.

Alejo’s statement in open court pointing to six (6) men as the authors

of the crime he witnessed on June 13, 1996 directly contradicts his statement

to the police officers on the day of the shooting incident itself and those of

the other witnesses that they saw (4) men involved in the ambush-slay.

Appellants are not making much of this inconsistency. Appellants are

pointing out to this Court that this inconsistency pertains to a very material

contradiction and that such contradiction erodes the credibility of the

witness.

When a conviction is based solely on eyewitness testimony, the

credibility of the witness plays a major role in such conviction. Any

question, then, about the witness’ credibility should pass through the strictest

scrutiny for dependent upon it is the loss of life or liberty of the accused.

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By simply saying that “such inconsistencies have already been

explained by Alejo during cross-examination by correcting his earlier

statement in using number four (4) to refer to those persons actually standing

around the car and two (2) more persons as lookouts”15

the Court is naively

accepting the narrations of the witness without analyzing whether such

explanation establishes the truth about the matter.

A textual analysis of Freddie Alejo’s responses to the questions

interposed by the police investigator during the formal taking of his

statement shows that he can not be referring to suspects other than the four

he saw surrounding the car of the victim.

12. T - Sino naman ang bumaril sa biktima na ito, kung kilala mo?

S - Apat na hindi kilalang lalaki sir na armado ng baril. […] 16. T - Ano pa ang sumunod na nangyari, kung mayroon?

S - Isa sa suspect na nasa tapat ko ay tinutukan ako ng kanyang baril at sinigawan ako ng “BABA!” Pinapababa niya ako sa guardhouse.

17. T - Ano ang ginawa mo, kung mayroon nuong utusan ka na bumaba?

S - Dahil sa nerbiyos ko ay hindi ako nakagalaw. Dito ay sumigaw uli ang suspect na “BABA” … walang makikialam … at sa takot ko ay dumapa ako sa guardhouse.

18. T - Ano pa ang sumunod na nangyari, kung mayroon?

S - Napakabilis po ang pangyayari nuong bumangon ako sa pagkakadapa ilang Segundo lang ay tigil na ang putukan at wala na rin ang mga suspect. Nakatakbo na sila.

[…]

21. T - Ano ba ang itsura ng mga suspect? S - Iyong tumutok sa akin ay naka-asul na t-shirt, edad 30-35, 5’5” –

5’6” ang taas, katamtaman ang katawan, maikli ang buhok, kayumanggi.16

By starting his answer to question 16 with “Isa sa suspect na nasa

tapat ko” in referring to the person who pointed a gun at him and shouted to

15 Decision, page __. 16 Exhibit L, Sinumpaang Salaysay ni Freddie Alejo, page 2

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him BABA!, the witness could not be referring to another person other than

the four suspects he earlier mentioned in response to question 12.

His answer to question 17 saying “Dito sumigaw uli ang suspect,”

means that it is the same person who shouted again at him when he did not

move the first time he was shouted “BABA” because of fear.

In fact, on cross-examination, the witness admitted that these orders

came from one and the same person:

ATTY. BAGATSING

Q Were the utterances and orders mentioned in Question and

Answer Number 16 and Number 17, of your statement

emanated and came from one and the same person?

[…]

A Yes, sir, one and the same person. 17

This admission, on cross-examination, that the orders came from one

and the same person necessarily puts this person as one among the four

suspects who shot at the victim, based on his sworn statement.

Yet, in court, Freddie Alejo added the two men aside from the four he

referred to in his affidavit and attributed the command “BABA!” to one of

the additional two he referred to as lookouts.

This testimonial attribution of the command “BABA!” to another

person directly contradicts the contents of the sinumpaang salaysay where

Freddie Alejo attributed the command “BABA!” to one of the four suspects

he mentioned to the police officers.

This major contradiction between the testimony and the contents of

the affidavit was never explained.

17 T.S.N. August 22, 1996, pages 140 – 141.

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This contradiction in the testimony of the witness erodes his

credibility as it shows that he is not telling the truth. To put it the other way

around, and more directly, Freddie Alejo was lying.

When a witness lies, the whole testimony crumbles. Even just a single

lie weakens the strong chain needed for conviction. The links of evidence

provide that strong chain that hangs the conviction of a felon but such chain,

when built solely upon the testimony of a lying witness, necessarily breaks

upon its own weakness, and sets free even an accused who, otherwise, would

have been found guilty had it not been for the perjured testimony.

Lies are ropes of sands18

nobody can hold on to, much less rely on for

convicting a criminal. They have no place in the quest for justice that draws

its essence from truth.

The earlier statements made by Alejo and the other witnesses

interrogated by the police officers all point to four persons and not six

suspects.

If indeed there were six (6) men involved, as Freddie Alejo claims, if

indeed two (2) of those six (6) were already loitering around the area as

early as 8:00 o’clock in the morning, if indeed those two lookouts were the

same suspects who each pointed their guns at the witness, and if indeed

those two lookouts barked orders at the witness one after the other, then

Freddie Alejo would not have failed to relate these events to the police

officer who interrogated him just after the incident.

That Freddie Alejo failed to mention these detailed accounts about the

two alleged lookouts point to the possibility that all the details pertaining to

the additional two (2) men are mere parroted afterthoughts fed to Alejo to fit

18 To borrow the Tagalog metaphor “naglulubid ng buhangin” to refer to lying.

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the prosecution’s theory that there were more than four people involved in

the crime.

If these details about the two lookouts, on the other hand, were really

witnessed by Freddie Alejo on June 13, 1996, they pertain to very material

details which Alejo omitted in giving his statement to the police. Such

material omission of events which any witness could not have simply missed

when narrating the incident to the police investigators right after the incident

precisely falls under the exceptions laid down by the Court in People v.

Narvaez and other precedent cases19

and directly discredits Alejo as a

witness.

These details which Freddie Alejo failed to mention include:

b) he already saw two (2) men walking to and fro in front of his

guard post as early as 8:00 a.m.;

c) these two men each pointed their guns at him, one after the

other; and

d) these two men both shouted at him, one after the other.

Any witness who has seen these series of details obviously connected

with the crime cannot and would not fail to mention these to police

investigators right after the incident.

Omitting these details directly connected with the witnessed crime in

the narration to the investigators just right after the incident while

emphatically testifying to these details in court prevents the application of

the general rule that “discrepancies between the statements of the witness in

his affidavit and those he makes on the witness stand do not necessarily

discredit him.”20

Instead, Alejo’s failure to mention in his affidavit the graphic details

he testified to in court calls for the application of the exceptions to the 19 Supra, note 12. 20 Id.

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general rule. Indeed, such omission and material contradictions directly

impeach the credibility of the witness.

Both the exceptions laid down by this Court apply. Not only did

witness Alejo omit the graphic details about the two men walking to and fro

in front of him prior to the shooting incident in his affidavit, his narration in

the sworn statement that there were four (4) suspects also directly

contradicts his testimony in court that increased the number of perpetrators

to six (6). Likewise, his testimony that one of the two lookouts shouted at

him twice directly contradicts the contents of his sinumpaang salaysay that

one of the four suspects he saw shooting at the victim shouted at him twice.

These omissions and contradictions are not insignificant points. They

are substantial and important, the import being directly connected to the

determination of the number of persons involved in the crime, and the

graphic details of the testimony about two (2) men walking to and fro in

front of the witness’ guard post substantially altered the account of the

incident as narrated by the witness to the police officers right after the

incident.

How do we explain these discrepancies in Alejo’s statement and

testimony? Two scenarios are possible: either Alejo have seen the two (2)

additional men or he did not.

If he did see those two lookouts prior to the incident, his omission of

such material fact to the police investigators directly impaired his credibility

as a witness. If, on the other hand, there were no lookouts, Alejo must have

just added these two upon the prodding of the prosecution to tie up neatly

with their pre-established story given that the police apprehended more than

the number of suspects as narrated to by the witnesses to the incident.

Either way, Alejo’s credibility is greatly tarnished by these two

possible scenarios: (1) he omitted the material fact in his narration to the

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police that aside from the four suspects he saw surrounding the victim’s car,

there were two other persons he saw earlier and these two persons each

pointed their guns at him and shouted at him or (2) that he simply added the

details about these two men to fit perfectly to the prosecution’s theory that

there were more than four people involved in the killing.

In fact, the trial court used this discrepancy as a basis for acquitting

Lorenzo delos Santos as the discussion of the next assignment of error

shows.

II. The Supreme Court erred in brushing aside the fact that the trial court, by acquitting Lorenzo delos Santos, directly impugned the credibility of witness Freddie Alejo. The subsequent acquittal of Lorenzo delos Santos, one of the two (2)

men pointed to by witness Alejo as the suspects who walked to and fro in

front of his guard post prior to the shooting incident, and as one of those

who pointed a gun at him, directly impugns Alejo’s ability to identify the

real culprits of the crime.

In fact, the trial court acquitted Lorenzo delos Santos: The situation of Lorenzo delos Santos, however, is different. First, his alibi -- that on June 13, 1996, in the morning he reported to his Binondo, Manila office as usual -- is corroborated by an independent source – Miss Edith Lingan who is employed in an office adjacent to that of Lorenzo. Ms. Lingan is not in any way dependent on Lorenzo as she works in a firm from which Lorenzo asks favor to enable him to earn a living as Lorenzo is not a licensed customs broker. Second, in the sworn statement executed before police investigators by SG Alejo on June 13, 1996 at 1:55 in the afternoon and which consisted of three (3) pages, SG Alejo mentioned only of one (1) person who ordered him to “Baba.…”. In fact, when asked next what he did, SG Alejo said “sumigaw uli ang suspect ng baba…. walang makikialam…… at sa takot ko ay dumapa ako sa guardhouse.” (Emphasis supplied). The shooting incident at bench took place at around 8:40 in the morning. By 9:00 a.m., policemen were already swarming in the crime scene in interviewing likely witnesses including SG Alejo. In the process SG Alejo must have been repeatedly telling (alone or with others) various persons -- police and civilian alike -- his observations on what happened that

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morning. The typewriter recording of SG Alejo’s salaysay is but the culmination of a long process of oral interviews and conversation so that the results thereof can be put in systematic order. Additionally, at that period in time, SG Alejo’s recollection is still very recent and he appears to be solely in touch with police investigators who came to know of the ambush that same morning. His court testimony, therefore, given at a much later date (August 1996) after the arrest of Lorenzo delos Santos wherein SG Alejo narrated that there were two (2) men loitering about near his post and that one after the other those two men barked at or ordered him is weakened by what he had earlier told police investigators disclosing that only one (1) person shouted orders to him. In view of this, the court finds the alibi of Lorenzo to have been correspondingly strengthened as to put in doubt the prosecution’s case against this particular accused.21

(Emphasis supplied).

In the words of the judge who penned the decision, the court

testimony of Alejo, is “weakened by what he had earlier told police

investigators disclosing that only one (1) person shouted orders to him.”

What does this make of Alejo as a witness? Does it not affect his

credibility?

If indeed, Freddie Alejo already saw the person of Lorenzo delos

Santos “loitering around,” as the trial court described it, in front of his guard

post even prior to the shooting incident, then Alejo must have seen Lorenzo

delos Santos for a longer period and not just for a single fleeting moment.

That Edith Lingan, a disinterested witness, corroborated Lorenzo’s

testimony that he could not be at the crime scene at the time when the

shooting incident was happening – does this not make Alejo’s testimony

false?

In the light of contradictory evidence showing Lorenzo delos Santos

elsewhere at the time the shooting incident was happening, does this not

render Alejo’s court testimony a perjured one?

That witness Freddie Alejo was mistaken in pointing to Lorenzo delos

Santos, a person whom he allegedly saw earlier prior to the shooting incident

and who pointed a gun and shouted at him, can the same witness be not 21 Joint Decision penned by Judge Salazar, pages 29-30

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mistaken in identifying the other suspects whom he saw for only a fleeting

moment under life-threatening circumstances?

The Court seems to lose sight of the fact that the mistake in pointing

to Lorenzo delos Santos is a crucial and telling indicator that Freddie Alejo,

as a witness, cannot be relied upon when it comes to identifying the other

persons who perpetrated the act of shooting the victim.

If Freddie Alejo can be mistaken in identifying a person whom he

allegedly saw walking to and fro several times in front of his guardpost

earlier that morning when the shooting incident happened, how can he not be

mistaken in identifying the other suspects whose faces he saw only for a

brief moment (less than a minute)?

On the other hand, if the mistake in pointing to Lorenzo delos Santos

is because of the fact that Freddie Alejo did not actually see two (2) men

walking earlier, then it becomes even a grievous error to accept his

testimony given that he added material details that did not actually happen,

making him a lying witness.

More so, while Alejo might have narrated the details of the incident

correctly to the police investigators, and testified to the details of the

incident (adding questionable details in his testimony), the act of narrating

these details is totally separate and distinct from the act of identifying the

perpetrators.

The mistaken identification of Lorenzo delos Santos points to witness’

erroneous recollection of the identity of the perpetrators. Such weakness in

recalling the identity of the real culprits pulverizes the much-daunted

“positive” identification made by the witness - the very foundation upon

which the conviction is made to stand.

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III. The Supreme Court erred in ruling that “The fact that ballistic examination revealed that the empty shells and slug were fired from another firearm does not disprove appellants’ guilt, as it was possible that different firearms were used by them in shooting Abadilla.”

The Court cited the case of Maandal v. People22

In said case, the Court pronounced:

to support its ruling.

Petitioner's service firearm was not necessarily the one he used to shoot the victim. The fact that the ballistic examination revealed that the empty shells and slug were fired from another armalite rifle does not disprove petitioner's guilt. As a member of the PNP, petitioner could have easily used a different armalite rifle. It was also possible that he surrendered to the police a firearm different from the one he actually used to kill the victim.23

Maandal v. People, however, cannot be applied to the instant case. In

the Maandal case, “Petitioner eventually surrendered himself as well as the

M16 armalite rifle issued to him.”24

The instant case, on the other hand, the

firearms were seized by the police officers from the accused.

Aside from this, the justification that “it was also possible that he

surrendered to the police a firearm different from the one he actually used to

kill the victim,” is nothing but a statement of mere possibilities that should

not even be resorted to by the Court in explaining its ruling in a criminal

case where the required proof is beyond reasonable doubt.

The ballistics examination reveals that the firearms seized from the

accused-appellants were not the ones used in shooting Abadilla.

The Court cannot simply justify that “it was possible that different

firearms were used by them in shooting Abadilla”25

and pounce on the guilt

of the accused.

22 G.R. No. 144113, June 28, 2001 23 Id. 24 Id. 25 Decision, page

16

To justify a ruling that accused are guilty because “it was possible that

different firearms were used by them,”26 is to rule without any evidence. It is

to rule based on possibilities and not on established facts. It violates the rule

that the truth respecting a matter of fact must be ascertained in a judicial

proceeding by means of evidence.27

Likewise, the ruling that “[t]he fact that the ballistic examination

revealed that the empty shells and slug were fired from another firearm does

not disprove petitioner's guilt,”28

taken, without the qualifying statement and

justification that “it was possible that different firearms were used by them

in shooting Abadilla,” is an incomplete statement as we shall show.

The statement, “The fact that the ballistic examination revealed that

the empty shells and slug were fired from another firearm does not disprove

petitioner's guilt” can be broken into two sentences:

1. The ballistic examination revealed that the empty shells and slug

were fired from another firearm; and

2. The fact does not disprove petitioner's guilt.

When these two sentences are taken without the qualifying phrase “as

it was possible that different firearms were used by them in shooting

Abadilla,” a different conclusion will be arrived at, given the facts

established in the case.

It was not established that accused possessed the gun that was used in

killing the victim. It was not established, even, that they have other guns

aside from the ones seized by the police officers from them.

Facts established include:

26 Id. 27 Rule 128, Section 1. Revised Rules of Court. 28 Decision, page __

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1. Guns were seized from the accused;

2. Empty shells were recovered from the crime scene;

3. Slug was recovered from the body of the victim;

4. The guns seized from the accused were subjected to ballistics

examination;

5. The empty shells and slug were also subjected to ballistics

examination; and

6. The results of the ballistics examination showed that the empty

shells and slug were fired from different firearms.

7. The result of the ballistics examination showed that the markings

on the slug recovered from the body of the victim matches with the

markings on the slugs recovered from other ABB victims, namely:

Suseso de Dios and Leonardo Ty.

Based on these facts, the Court came up with the conclusion that “The

fact that ballistic examination revealed that the empty shells and slug were

fired from another firearm does not disprove appellants’ guilt.”

This conclusion reached by the Court is equally true of the opposite

formulation: The fact that ballistics examination revealed that the empty

shells and slug were fired from another firearm does not prove appellants’

guilt.

Thus, the ballistics evidence pertaining to the guns seized from the

accused is capable of two exactly opposite interpretations.

The more precise statement of the ruling should have been: The fact

that ballistics examination revealed that the empty shells and slug were

fired from another firearm neither proves nor disproves appellants’

guilt.

18

This calls for the application of the equipoise rule.29

With the application of the equipoise rule, the constitutionally

guaranteed principle of presumption of innocence then comes into operation

and this should point to the logical judicial conclusion that, based on this

point, the accused-appellants are not guilty.

Tied up with the other established fact that the markings of the slugs

recovered from the body of the victim match the markings of slugs

recovered from other known ABB victims, namely, Suseso de Dios and

Leonardo Ty, the ballistics evidence presented in court calls for the

determination of whether the accused are ABB operatives or not.

To prove their guilt, the prosecution must present proof that the

accused are ABB operatives. No proof on this matter was ever presented.

IV. The Supreme Court erred in holding that “since the identity of the assailant has been sufficiently established, a ballistic report on the slugs can be dispensed with in proving petitioner’s guilt beyond reasonable doubt.” Again, this holding by the Court is premised on the fact that the

identity of the assailant has been sufficiently established. In so ruling, the

Court cites the case of Velasco v. People,30

29 The rule states that "if the inculpatory facts and circumstances are capable of two or more explanations, one of which is inconsistent with the innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction." cited in the cases of People vs. Lagnas, 222 SCRA 745; 762; People vs. Maongco, 230 SCRA 562, 572; People vs. Ramilla, 227 SCRA 583.

a case where the victim himself

who survived the murder attempt identified the criminal. Likewise, the

testimony of the victim in said case was corroborated by the driver of the

tricycle that the criminal rode in going to the house of the victim.

30 G.R. No. 166479, February 28, 2006, 483 SCRA 649, 666-667

19

Private complainant saw petitioner alight from the tricycle of Armando Maramba before he successively shot at him at a distance of about four meters while chasing him for 25 to 30 meters. Armando Maramba witnessed the shooting because he was the driver of the tricycle in which petitioner rode in going to the house of private complainant and in leaving the crime scene. After the shooting incident, private complainant went to the City Jail and identified petitioner as the person who shot him. At the Dagupan City Police Station, Armando Maramba pointed to petitioner as the assailant not because he saw a man wearing a chaleco, but because it was he whom he saw shoot the private complainant.

[…]

Nothing in the record shows that there was any inconsistency as regards the identity of the assailant. Both private complainant and Armando Maramba were one in pointing to petitioner as the culprit.

[T]he victim himself identified petitioner as his attacker which statement was corroborated by Armando Maramba. […]

In the instant case, the attempted killing was witnessed by Armando Maramba, the driver of the tricycle which petitioner rode in going to, and in leaving, the crime scene.31

Clearly, this case cannot apply to the instant case where the identity of

the assassins is in question.

The identification of the criminal in Velasco v. People is unassailable

whereas the identification made by witness Alejo of the five accused-

appellants in this case is highly questionable.

Alejo’s pointing to the accused appellants based only on the relative

positions of the murderers without any other basis why persons #1, #2, #3,

#4, #5, and #6 cannot be any other male persons (of similar build and profile

as the real perpetrators of the crime) is a foolproof formula for mistaken

identities and wrongful convictions.

In fact, given the way the Court justified the discrepancies of the prior

descriptions of the two men given by Alejo to the police right after the

incident with the actual appearances of Joel de Jesus and Lenido Lumanog, 31 Id.

20

any six (6) male persons, within the age range and of the same body build as

the assailants, who will be presented in court for identification and pointed

to by Alejo thru the assignment of the numbers based on relative positions,

any judge will likely rule that there is positive in-court identification. There

is no basis whatsoever to aid any judge in determining whether Alejo indeed

identifies the real culprits of the crime. There will be no difference at all in

the outcome so long as Alejo points to each of whoever six (6) men

presented in court.

This is a substitution test where no matter who will be presented to the

witness for identification, the same guilty verdict will be arrived at by any

trial judge because there is no way of telling whether the witness is saying

the truth or not. And we challenge the reviewing Magistrates to apply this

test to the instant case and convince themselves whether they will still arrive

at the same moral certainty in concluding that the accused-appellants are

guilty beyond reasonable doubt.

Applying this substitution test, will, at least, aid the reviewing

Magistrates in ensuring that there will be no wrongful conviction in this case

and in the other similar cases involving doubtful identification of the

accused by a single witness elevated to them for review.

Thus, the ruling that “a ballistic report on the slugs can be dispensed

with in proving petitioner’s guilt beyond reasonable doubt”32

cannot apply to

the instant case where the identification of the accused by the witness is

doubtful and highly susceptible for mistaken identities.

The Court cannot simply dispense with the ballistics evidence,

especially so when such evidence, tied up with the other facts, point to the

innocence of the accused. To disregard the same is to deny accused-

appellants their right to be acquitted when material object evidence

presented to the Court points to their non-involvement in the crime.

32 Id.

21

V. The Supreme Court erred in ruling that “Even if another weapon was in fact actually used in killing the victim, still, appellants Fortuna and Lumanog cannot escape criminal liability therefor, as they were positively identified by eyewitness Freddie Alejo as the ones who shot Abadilla to death.” Again, this ruling of the Court is premised on the positive

identification of the criminal. The Court applies its ruling in People v.

Belaro33 in holding that even if another weapon was used, the accused

cannot escape criminal liability because of the positive identification by the

eyewitness.34

It must be stressed that People v. Belaro involves a witness that

cannot be mistaken as to the identity of the accused and, therefore, is far

from the factual circumstances of Alejo, the witness who barely know the

assassins and has seen four strangers and yet identified six accused in court.

The Court in People v. Belaro pronounced:

She was well acquainted with the accused and therefore could not have been mistaken as to his identity.

Furthermore, there is no possibility that she could have been mistaken in the identity of the accused for, apart from being at the scene of the crime, she also knew the accused very well as in the past the latter would go to the house of the former to ask for fish. In fact, the accused also admitted having known the victim and his wife since childhood.

She was able to see and identify appellant's weapon. The armalite rifle itself which was identified by Myrna Azur-Pastor to have been used in shooting to death her husband was brought to court and the description of said rifle by her tallied with the rifle itself as it had a crack and the hole on it was filled up with an epoxy resin.

Her testimony was corroborated by other evidence, namely, (a) the necropsy report, (b) the shells and bullet found at the scene of the crime, and (c) the paraffin tests conducted on appellant.35

33 G. R. No. 99869, May 26, 1999, 307 SCRA 591. 34 Id. 35 Id.

22

Applying the ruling in People v. Belaro to the instant case is to

disregard the fact that Alejo was never acquainted with the murderers such

that he could not be infallible in his recollection of their faces and features.

The fact that the testimony in the Belaro case was corroborated by other

evidence also precludes the application of the ruling in the instant case

where no corroborating evidence exists.

Positive identification must not leave any doubt with regard to the

identity of the persons pointed to by the witness. The reliability of the

identification process depends on several factors, foremost of which is the

familiarity gained by the witness of the appearances of the culprits.

When the witness is familiar with the criminals and has known them

prior to the commission of the crime, there is a higher degree of reliance on

the identification made by such witness. When a witness, however, sees

complete strangers commit a crime, the reliability of correctly identifying

these strangers significantly dips. Such reliability becomes even more highly

suspect when the prosecution and the witness fails to present any basis in

identifying the criminals except their relative positions at the crime scene.

VI. The Supreme Court erred in dismissing the ballistics evidence that points to the ABB as the perpetrators of the crime.

The real import of the ballistics evidence is that it points to the Alex

Boncayao Brigade (ABB) as the authors of the crime.

By showing that the markings of the slug recovered from the victim

matches with the markings of the slug recovered from the bodies of Suseso

de Dios and Leonardo Ty, known ABB victims, it is established that

Abadilla, like de Dios and Ty, was also gunned down by the ABB. The

ballistics evidence establishes that the gun used in killing Suseso de Dios

and Leonardo Ty was also the gun used in killing Rolando Abadilla. The

23

admission of ABB of the ambush-slay of Abadilla takes away the

responsibility from the accused-appellants absent any showing that they are,

in any way, related to the ABB.

A more thorough discussion of this point follows in the next

assignment of error.

VII. The Dissenting Opinion erred in ruling that “The concern about the slug extracted from the victim being ballistically similar to the slug extracted from a known victim of the ABB is devoid of factual justification and deserves no consideration.”

What factual justification is necessary to raise this concern? Is it not

sufficient that ballistics reports were offered in evidence together with the

testimony of the ballistics expert?

When a ballistics report identifies suspects in one of the killings as

“ABB Members”, is it not sufficient to raise the concern that the accused-

appellants are wrongfully accused of a crime committed by somebody else?

To say that this “concern about the slug extracted from the victim

being ballistically similar to the slug extracted from a known victim of the

ABB is devoid of factual justification and deserves no consideration” is to

disregard the facts and conclusions that can be drawn from the examination

of the object evidence summarized in the ballistics reports presented in

court. These ballistics reports show ABB’s hands pulling the trigger of the

gun used in shooting Leonardy Ty, Nestor Encarnacion, Suseso de Dios, and

Rolando Abadilla.

The following Ballistics Reports were submitted36

36 Formal Offer of Evidence [For the Accused SPO2 CESAR FORTUNA]

by accused-

appellant Cesar Fortuna and were adopted by the other accused-appellants:

24

Ref. Ballistics Report Specimen Examined Findings Conclusions Exhibit 2

Ballistics Report Number: B-107-96-A Case: Shooting Incident Suspects: Unidentified Victims: Leonardo Ty Nestor Encarnacion Rolando N Abadilla Suseso de Dios Clara Cena-Llagas and four (4) others

1. One (1) caliber .45 deformed fired bullet marked “LT-2” recovered by P/INSP EDUARDO G TUAZON JR of the PNP Crime Laboratory from the Mercedez Benz car with plate number TTL-807 ridden by Leonardo Ty and Nestor Encarnacion when they were gunned down. 2. Three (3) caliber .45 fired bullets marked “RA”, “OJ-12” and “CBF” covered under Ballistics Case No. B-107-96. 3. One (1) cartridge case marked “OJ-6” recovered by CPDC personnel on 13 June 1996 (Ref. Ballistics Report No. B-104-96). 4. Two (2) caliber 9mm fired cartridge cases marked “FP-6” and “FP-9” submitted by Novaliches Police Station (Ref. B-238-95)

1. Microscopic examination and comparison of the caliber .45 fired bullets marked “LT-2”, “RA”, “OJ-12” and “CBF” revealed the same individual characteristics with one another. 2. Microscopic examination and comparison of the caliber 9mm fired cartridge cases marked “OJ-6”, “FP-6” and “FP-9” revealed the same individual characteristics with one another.

1. The above-mentioned caliber .45 fired bullets marked “LT-2”, “RA”, “OJ-12” and “CBF” were fired from one and the same firearm. 2. The above-mentioned caliber 9mm fired cartridge cases marked “OJ-6”, “FP-6” and “FP-9” were fired from one and the same firearm.

Exhibit 3

Ballistics Report Number: B-107-96 Case: Shooting Incident Suspects: FOUR UNIDENTIFIED MEN Victim/s: Rolando N Abadilla

1. One (1) caliber .45 fired bullet marked “RA”, recovered by the Medico Legal Officer of PNPCL from the body of the victim during autopsy (Refs. M-902-96 and B-103-96). 2. One (1) caliber .45 deformed fired bullet marked “OJ-12”, submitted by the Chief, SOCO, PNPCL on 13 June 1996 (Ref. B-104-96) 3. One (1) caliber .45 deformed fired bullet marked “CBF”, recovered by the Medico Legal Officer of PHPCL CCL, NPDC from the body of “Suseso de Dios” during autopsy (Rev. M-0563-96)

Microscopic examination and comparison of the caliber .45 fired bullets marked “RA”, “OJ-12” and “CBF” revealed the same individual characteristics with one another.

The above-mentioned caliber .45 fired bullets marked “RA”, “OJ-12” and “CBF” were fired from one and the same firearm.

Exhibit 75

Ballistics Report Number: B-107-96-B Case: Shooting Incident Suspects: UNIDENTIFIED Victim/s: Rolando N Abadilla Leonardy Ty Nestor Encarnacion

1. Five (5) caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11”, recovered by personnel of CPDC at Katipunan Avenue, Quezon City on 13 June 1996, where “ROLANDO ABADILLA” was gunned down (Ref. Ballistics Report No. B-104-96) 2. Four (4) caliber .45 fired cartridge cases marked “CF-

Microscopic examination and comparison of the caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” and “CF-1” to “CF-4” revealed the same individual characteristics with one another.

The above-mentioned caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” and “CF-1” to “CF-4” were fired from one and the same firearm.

25

1” to “CF-4” recovered by personnel of Police Station 3, District II (West ), CPDC, at Tandang Sora Avenue, Barangay Sangandaan, Quezon City on 11 December 1995, where “LEONARDO TY” and “NESTOR ENCARNACION” were gunned down. (Ref. Ballistics Report No. B-237-95).

Exhibit 74

Ballistics Report Number: B-109-96-A Case: Shooting Incident Suspect/s: ABB Members Victim/s: Leonardy Ty Nestor Encarnacion

1. One (1) caliber .45 Remington pistol with Serial Number 762810, covered under Ballistics Report No. B-109-96. 2. Two (2) caliber .45 fired bullets marked “CF-1” and “CF-2”. 3. One (1) caliber .45 metallic jacket marked “CF-3”. 4. One (1) metallic fragment marked “LT-I-A”. 5. Twelve (12) caliber .45 fired cartridge cases marked “CF-1” to “CF-12” 6. Five (5) caliber .45 fired bullets marked “LT-1” to “LT-5”

Microscopic examination and comparison of the caliber .45 fired bullets marked “LT-3”, “LT-4” and the caliber .45 fired cartridge cases marked “CF-5” to “CF-11” revealed the same individual characteristics with the test bullets and test cartridge cases respectively fired from the submitted firearm.

The above-mentioned caliber .45 fired bullets marked “LT-3”, “LT-4” and the caliber .45 cartridge cases marked “CF-5” to “CF-11” were fired from the Submitted firearm.

Exhibit 73

Ballistics Report Number: B-109-96 Case: Shooting Incident Suspects: NOT MENTIONED Victim/s: Rolando Abadilla

1. One (1) caliber .45 Remington pistol with Serial Number 762810. 2. Five (5) caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” recovered on the concrete pavement of Katipunan Avenue, Quezon City on 13 June 1996 (Reference: Ballistics Report Number B-104-96) 3. One (1) caliber .45 deformed fired bullet marked “OJ-12” recovered from the victim’s car along Katipunan Avenue, Quezon City on 13 June 1996 (Reference: Ballistics Report Number B-104-96) 4. One (1) caliber .45 fired bullet marked “RA”, recovered by the Medico Legal Officer of PNPCL from the body of the victim during autopsy (Refs. M-902-96 and B-103-96).

1. Microscopic examination and comparison of the caliber .45 fired bullets marked “OJ-12” and “RA” revealed different individual characteristics from the test bullets fired from the submitted firearm. 2. Microscopic examination and comparison of the caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” revealed different individual characteristics from the test cartridge cases fired from the submitted firearm.

The above-mentioned caliber .45 fired bullets marked “OJ-12” and “RA” and the caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” were not fired from the submitted firearm.

26

Exhibit 2-f21

Ballistics Report Number: B-103-96 Case: Not Mentioned Suspect/s: Not Mentioned Victim/s: Rolando Abadilla

One (1) fired bullet marked “RA”, covered under Medico Legal Case No. M-902-96.

Physical examination and comparison of the specimen marked “RA” revealed the same class characteristics with bullets fired from a caliber .45 and pistol type firearm having six (6) lands and six (6) grooves twisted to the left, the groove is wider than the width of the land.

The above-mentioned specimen marked “RA” is of caliber .45 fired bullet and was fired from a caliber .45 pistol having six (6) lands and six (6) grooves twisted to the left, the groove is wider than the width of the land.

Exhibit 2-f

Ballistics Report Number: B-104-96 Case: Shooting Incident Suspects: NOT MENTIONED Victim/s: Rolando Abadilla

1. Three (3) caliber 9mm deformed fired bullets marked “RNA”, “RNA-1” and “OJ-13”. 2. Six (6) caliber 9mm fired cartridge cases marked “OJ-1” to “OJ-6”. 3. Five (5) caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11”. 4. One (1) caliber .45 deformed fired bullet marked “OJ-12”. 5. One (1) caliber .45 fired bullet marked “RA”, recovered by the Medico Legal Officer of PNPCL during autopsy and covered under Medico Legal Case No. M-902-96.

1. Microscopic examination and comparison of the specimens marked “RNA”, “RNA-1” and “OJ-13” revealed the same individual characteristics with one another. 2. Microscopic examination and comparison of the specimens marked “OJ-1” to “OJ-5” revealed the same individual characteristics with one another, while “OJ-6” revealed another. 3. Microscopic examination and comparison of the specimens marked “OJ-12” and “RA” revealed the same individual characteristics with each other.

1. The specimens marked “RNA”, “RNA-1” and “OJ-13” were fired from the same firearm. 2. The specimens marked “OJ-1” to “OJ-5” were fired from the same firearm, while “OJ-6” was fired from another firearm. 3. The specimens marked “OJ-7” to “OJ-11” were fired from one and the same firearm. 4. The specimens marked “OJ-12” and “RA” were fired from one and the same firearm.

Exhibit 2-f12

Ballistics Report Number: B-116-96 Case: Shooting Incident Suspect/s: SPO2 Cesar Fortuna y Abudo and several others Victim/s: Rolando Abadilla y Nolasco

1. One (1) caliber .45 pistol marked “COLT MK IV SERIES 70 GOLD CUP” with Serial Number 647048. 2. One (1) caliber .45 Colt pistol with Serial Number 66BS574, without Firing pin and spring, extractor, slide stop, Plunger tube, pin and spring, recoil spring, barrel

Microscopic examination and comparison of the caliber .45 fired bullets marked “OJ-12”, “RA”, and “CBF” and the caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” revealed

The caliber .45 fired bullets marked “OJ-12”, “RA”, and “CBF” and the caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” were not fired from the

27

ling and pin and hammer block. 3. One (1) caliber .38 Armscor revolver with Serial Number P14482. 4. One (1) caliber .38 Armscor revolver with Serial Number 21907. 5. One (1) caliber .38 Smith and Wesson revolver with Serial Number 647048. 6. One (1) caliber .38 Smith and Wesson revolver with Serial Number 980974. 7. One (1) caliber .45 deformed fired bullet marked “OJ-12” recovered from Rolando Abadilla’s car along Katipunan Avenue, Quezon City on 13 June 1996 (Reference: Ballistics Report No. B-104-96) 8. One (1) caliber .45 fired bullet marked “RA”, recovered by the Medico Legal Officer of PNP Crime Laboratory from the body of “Rolando Abadilla” during autopsy (References: and Ballistics Report No. B-103-96 and Medico Legal Case No. M-902-96). 9. One (1) caliber .45 deformed fired bullet marked “CBF” recovered by the Medico Legal Officer of PNPCL CCL, NPDC from the body of “SUSESO DE DIOS” during autopsy (References: Ballistics Report No. B-107-96 and Medico Legal Case No. M-0563-96). 10. Five (5) caliber .45 fired cartridge cases marked “OJ-7” to “OJ-11” recovered on the concrete pavement of Katipunan Avenue, Quezon City on 13 June 1996 (Reference: Ballistics Report Number B-104-96)

different individual characteristics from the test bullets and cartridge cases respectively, fired from the caliber .45 with Serial Number 647048.

above-mentioned caliber .45 pistol marked “COLT MK IV SERIES 70 GOLD CUP” with Serial Number 647048.

28

Ballistics Reports No. B-109-96-A reveals the following:

1. The following specimen were among those recovered from the

shooting incident of victims Leonardo Ty and Nestor Encarnacion and

submitted for laboratory examination:

a. Five (12) bullets marked “LT-1” to “LT-5”;

b. Twelve (12) cartridge cases marked “CF-1” to “CF-12”;

c. One (1) caliber .45 Remington pistol with Serial Number

762810;

2. Results of the microscopic examination and comparison showed that

the bullets marked “LT-3” and LT-4” and cartridge cases marked

“CF-5” to “CF-11” were fired from the caliber .45 Remington pistol

with Serial Number 762810;

These facts, findings, and conclusion leads to the analysis that:

3. Three other bullets (marked “LT-1”, “LT-2”, and “LT-5”) and five

other cartridge cases (marked “CF-1” to “CF-4” and “CF-12”)

submitted for examination were fired from another gun.

This Ballistics Report lists “ABB Members” as the suspects in this

particular shooting incident.

Additionally, Ballistics Reports numbered B-107-96, B-107-96-A,

and B-107-96-B, taken together, reveal, among others, the following:

1. Calibre .45 fired bullets marked “LT-2”, “RA”, “OJ-12” and “CBF”

were fired from one and the same firearm;

2. Bullet marked “LT-2” was recovered by P/INSP EDUARDO G

TUAZON JR of the PNP Crime Laboratory from the Mercedez Benz

car with plate number TTL-807 ridden by Leonardo Ty and Nestor

Encarnacion when they were gunned down;

29

3. Bullet marked “RA” was recovered by the Medico Legal Officer of

PNPCL from the body of the victim, Rolando Abadilla, during

autopsy;

4. Bullet marked “OJ-12” was submitted by the Chief, SOCO, PNPCL

on 13 June 1996;

5. Bullet marked “CBF” was recovered by the Medico Legal Officer of

the PNPCL CCL, NPDC from the body of “Suseso de Dios” during

autopsy;

6. Nine (9) caliber .45 cartridge cases marked “OJ-7” to “OJ-11” and

“CF-1” to “CF-4” were fired from one and the same firearm;

7. Cartridge cases marked “CF-1” to “CF-4” were recovered by

personnel of Police Station 3, District II (West) CPDC, at Tandang

Sora Avenue, Barangay Sangandaan, Quezon City on 11 December

1995, where “LEONARDO TY” and “NESTOR ENCARNACION”

were gunned down;

8. Cartridge cases marked “OJ-7” to “OJ-11”, on the other hand, were

recovered by personnel of CPDC at Katipunan Avenue, Quezon City

on 13 June 1996, where “ROLANDO ABADILLA” was gunned

down.

Further analysis of these evidence shows:

The police knew that ABB Members were behind the shooting of

Leonardo Ty and Nestor Encarnacion on December 11, 1995. The fact that a

gun (caliber .45 Remington pistol with Serial Number 762810) was

recovered by the police and the ballistics examination showed that some of

the bullets and cartridge cases recovered from the crime scene were fired

from this same firearm bolsters the conclusion that the police was able to

confirm this killing as perpetrated by the ABB such that by June 1996 when

they requested for the ballistics examination they indicated that the suspects

in this particular shooting incident were “ABB Members”.

30

The fact that there were three bullets (“LT-1”, “LT-2”, and “LT-5”)

and five cartridge cases (marked “CF-1”, “CF-2”, “CF-3”, “CF-4” and “CF-

12”) that did not match the gun recovered by the police indicates that there

was another firearm, still on the loose, used by the ABB in shooting

Leonardy Ty and Nestor Encarnacion.

On April 8, 1996, Suseso de Dios was fatally shot at the gate of La

Vista Subdivision along Katipunan Avenue, Bgy. Panso, Quezon City37

and

on June 13, 1996, Rolando Abadilla was ambushed in Katipunan.

Ballistics reports conclude that the bullets recovered from the bodies

of Suseso De Dios (marked “CBF”) and Rolando Abadilla (marked “RA”)

were fired from the same firearm that was used in shooting Leonardo Ty and

Nestor Encarnacion.38

That the ABB pulled the trigger on Ty and

Encarnacion points to the conclusion that it is the same group that pulled the

trigger on De Dios and Abadilla. The ABB gun has thus claimed two more

lives in the persons of De Dios and Abadilla.

These conclusions are drawn from the results of the ballistics

examination contained in Report No. B-107-96-A. Bullet marked “LT-2”

recovered from the Mercedes Benz ridden by Ty and Encarnacion when they

were gunned down, bullet marked “RA” recovered from the body of

Rolando Abadilla during the autopsy39

, bullet marked “OJ-12” recovered

from the crime scene in Katipunan Avenue, and another bullet marked

“CBF”, recovered from the body of Suseso de Dios during the autopsy, were

all fired from the same firearm.

Aside from the bullets, cartridge cases marked “CF-1” to “CF-4”,

recovered by personnel of Police Station 3, District II (West) CPDC, at

Tandang Sora Avenue, Barangay Sangandaan, Quezon City on 11 December

37 Exhibit 4 and 2-f19 38 Exhibits 2, 3, 73, 74, and 75 39 Exhibit 3

31

1995, where “LEONARDO TY” and “NESTOR ENCARNACION” were

gunned down revealed the same individual characteristics with the cartridge

cases marked “OJ-7” to “OJ-11” recovered by personnel of CPDC at

Katipunan Avenue, Quezon City on 13 June 1996, where “ROLANDO

ABADILLA” was gunned down.

That police listed “ABB Members” as the suspects in the shooting

incident involving Leonardo Ty and Nestor Encarnacion raises the fact that

these same group (ABB) are behind the shooting incident involving Suseso

de Dios and Rolando Abadilla.

These ballistics reports serve as accused-appellants’ basis in raising

not just the concern but the fact that bullets and cartridge cases recovered

from the scenes involving three different incidents (Ty, de Dios, and

Abadilla) were fired from the same firearm. That gun was used in the

incident where police named ABB Members as the suspects.40 That Ty and

Encarnacion were gunned down by the ABB is in fact, in the judicial

records.41

If Leonardy Ty and Nestor Encarnacion were gunned down by ABB

members and the bullets and cartridge cases recovered from Suseso de Dios

and Rolando Abadilla matched the characteristics of the bullet and cartridge

cases in the Ty and Encarnacion slay, it follows, then, that Suseso de Dios

and Rolando Abadilla were also gunned down by the ABB.

Thus, the concurring opinion erred in saying that this concern is

“devoid of factual justification and deserves no consideration.”

40 Exhibit 74. 41 When the six armed men sat (sic) that the passengers of the blue Mercedes Benz were already dead, they shouted “Mabuhay ang ABB!”, Lopez, Jr. and Bondalian, Jr. v. People of the Philippines, G.R. No. 181758, July 28, 2008, accessed thru the Supreme Court e-library on November 4, 2010. http://elibrary.judiciary.gov.ph/resolutions.php?doctype=Minute%20Resolutions&docid=12235996921818834361 and in People vs. Ruperto Lopez, Jr. and Orlando Bondalian, Jr., CA-G.R. CR HC No. 01734, October 30, 2007, at p. 4.

32

In fact, it deserves the highest attention by the Honorable Supreme

Court in the reconsideration of its decision in this case for it is not true that

“the transference of responsibility to the ABB for the ambush-slay of the

victim is based on alleged news reports,”42 as, in fact, the ABB

responsibility angle has always been in the records submitted before the

court.43

From the very start, documentary as well as object evidence already

point to the ABB as the authors of the crime. These are borne by the records

of police investigations and ballistics reports submitted by the accused-

appellants but the courts (from the trial court to the appellate courts) fail to

appreciate these records that point to the ABB as the ones ultimately

responsible for the murder of Rolando Abadilla.

Exhibit 71 in the Offer of Evidence for accused SPO2 Cesar Fortuna

is a “Memorandum dated June 24, 1996 requesting ballistic examination of

the submitted specimen firearm to determine if the same was used in the

ambush in the killing of several personalities by members of the ABB.” This

document is “offered to prove the propriety and regularity of the ballistic

examination conducted by the witness on the subject firearm suspected to be

the one used in the ambush of several personalities by members of the

ABB.” Specifically, the Memorandum states:

2. ICOW the Pistol Cal.45 with Serial Number 762810 submitted by this Command for Ballistic Examination, request that further examination be conducted if said firearm was used in the ambush/killing of C,INSP JOE PRING, C,INSP TIMOTEO ZARCAL, Businessman Leonardo Ty and his driver Nestor Encarnacion, and other personalities allegedly executed by the dreaded Alex Buncayao Brigade (ABB).

That police knew that the ABB was behind the ambush-slay, that

police records indicate ABB members as the suspects in the Ty-Encarnacion 42 Supra, note 27. 43 Exhibits 72 and 74, Offered to prove that even after the arrests of the accused in this instant case, the PNP operatives were still “on a fishing expedition” of another set of “suspects” in the Abadilla murder case, this time members of the Alex Boncayao Brigade. (Formal Offer of Evidence [For the Accused SPO2 Cesar Fortuna]), p. 11

33

twin slay, that the object evidence (bullets and cartridge cases) in three

different shooting incidents reveal that the same firearm (Cal.45 with Serial

No. 762810) was used in these three different shooting incidents, that

records of these facts were submitted as evidence at the trial – all these

should have prompted the prosecution to prove that the accused-appellants

are ABB members if the State is to point the ultimate responsibility to and

pin down the accused-appellants as the culprits of the crime. The

prosecution, however, failed to offer any evidence linking the accused-

appellants to this well-known urban communist hit squad.

So too did the Court fail to see this non-affiliation of the accused-

appellants with the ABB as an exculpatory circumstance. Instead, this

Honorable Court, thru the Concurring Opinion, agreed with the trial court’s

erroneous reasoning as discussed in the next assignment of error.

VIII. The Dissenting Opinion erred in dismissing the non-affiliation of the accused appellants with the ABB as exculpatory of any guilt by holding that “While the records do not indicate that accused were ABB operatives, the same records do not bear that they are not.” 44

To dismiss the non-affiliation of accused-appellants with the ABB, the

notorious communist hit squad, by saying that “[w]hile the records do not

indicate that accused were ABB operatives, the same records do not bear

that they are not”45

is to shift the burden of presenting evidence from

proving guilt to proving innocence. It amounts to requiring the accused to

present evidence that they are not ABB operatives.

Said statement highlights the fact that the prosecution failed to

establish that accused-appellants are ABB operatives. It is not, however, for

the defense to establish that they are not. To hold so is to cast the same

44 Order, January 25, 2000, page 6, reiterated in the Concurring Opinion. 45 Id.

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burden of proof on the prosecution and the accused, contrary to the legal

maxim ei incumbit probatio qui dicit, non qui negat (the burden of proof

rests on who asserts, not on who denies).

It is the prosecution that asserts that the accused are the criminals.

Ballistics evidence points to the ABB as the criminals. It is then incumbent

upon the prosecution to prove that accused are either members of the ABB

or are ABB operatives. This, the prosecution failed to do.

Thus, failing to establish that accused-appellants are in any way

connected to the ABB who claimed responsibility for the ambush-slay and to

whom the ballistics evidence point to as the authors of the crime, the court

must acquit.

IX. The Court erred in not recognizing that Alejo’s testimony, as the sole basis of the judgment of conviction, is capable of two opposing but equally defensible interpretations, and thus, calls for the application of the equipoise rule that mandates and necessitates the acquittal of all accused-appellants.

This Honorable Court affirmed the trial court’s judgment “as the

testimonial and documentary evidence on record have established the guilt

of appellants beyond reasonable doubt.” 46

The conviction, however, is

based solely on the testimony of the single eyewitness presented in court,

Freddie Alejo, whose credibility is weakened by contradictions and material

omissions in his affidavit and the impossibility of portions of his testimony

upon which the alleged positive identification of the accused-appellants was

based. These factors impugn Alejo’s credibility as they are highly indicative

that the witness was lying.

46 Decision, promulgated September 7, 2010.

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The fact that the Supreme Court justices are not unanimous in its

interpretation of Freddie Alejo’s testimony is enough reason for acquittal.

The main decision, in enumerating the evidence for the prosecution

includes the following statements:

Alejo recounted… Another man (No. 5 in Exhibit “H”[51]) shouted: “Dapa…walang makikialam!” and the rest of the four (4) men (marked as Nos. 2, 3 and 4 in Exhibit “H”[52]) faced him (witness Alejo). Next, the companion of No. 5, who was earlier walking back and forth infront of him (marked as No. 6 in Exhibit “H”[53]), pointed a gun at him. This time, he did come down, lowering his body and bowing his head inside the guardhouse. On cross-examination, Alejo described… The second man who pointed a gun at him shouted “Dapa!” and thereupon his companions (the ones at the right rear side, left rear side, and front right side) faced him for less than a minute. Because at that precise moment the gun was not yet poked at him, he was able to recognize their faces. When finally the gun was pointed at him, he became nervous and bowed down his head inside the guard house.

The majority decision, in its interpretation of the facts, states:

In giving full credence to the eyewitness testimony of security guard Alejo, the trial judge took into account his proximity to the spot where the shooting occurred, his elevated position from his guardhouse, his opportunity to view frontally all the perpetrators for a brief time -- enough for him to remember their faces (when the two [2] lookouts he had earlier noticed walking back and forth infront of his guard post pointed their guns at him one [1] after the other, and later when the four [4] armed men standing around the victim’s car momentarily looked at him as he was approached at the guardhouse by the second lookout), and his positive identification in the courtroom of appellants as the six (6) persons whom he saw acting together in the fatal shooting of Abadilla on June 13, 1996. The clear view that Alejo had at the time of the incident was verified by Judge Jose Catral Mendoza (now an Associate Justice of this Court) during the ocular inspection conducted in the presence of the prosecutors, defense counsel, court personnel, and witnesses Alejo and Maj. Villena. The trial judge also found that Alejo did not waver in his detailed account of how the assailants shot Abadilla who was inside his car, the relative positions of the gunmen and lookouts, and his opportunity to look at them in the face. Alejo immediately gave his statement before the police authorities just hours after the incident took place.

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The Concurring Opinion likewise states:

That Alejo had the full opportunity to take in the circumstances of the killing of the victim and should be accorded the highest reliance is beyond question. He had a close proximity to the vehicle of the victim and to the accused. His vantage point from his elevated position inside the guardhouse gave him a frontal view of the commission of the crime. The circumstances played out like a scene from an action-packed movie right before his very eyes, as confirmed by the trial court’s ocular inspection of the scene of the crime. His boldness in looking at what was happening in his presence until finally forced at gunpoint to look away was made plausible by his being a security guard then on duty in that area. The insinuation that Alejo could not have observed enough and thus could not reliably recall the persons and events in view of the fleeting character of the encounter was at best speculative. We should not ignore that Alejo was a security guard who had undergone some professional training that included how to respond to a crime committed within his area of responsibility. With his training investing him an appreciation of the crucial importance of identification and discernment, he was not likely affected by the excitement of the startling situation, unlike an untrained observer. […] Next, to insist that Alejo could not have noticed where the four assailants had stood in relation to the car of the victim due to his (Alejo) attention being already focused on De Jesus and the gun that De Jesus had poked at Alejo's face was, again, to speculate. The records do not contain any factual foundation for such insistence. Instead, the sequence of events indicated that Alejo had the ample opportunity to commit to memory the facial descriptions of the perpetrators. Moreover, it is noted that Alejo had first noticed the presence of the two strangers walking to and fro nearly an hour prior to the shooting of the victim, which means that his observation of them was ample enough. This belied the unsupported claim that he had only a mere fleeting glance of De Jesus and his cohorts. It is also clear that Alejo continued to watch the unfolding scene and the various persons involved. He had ignored the first shouted command for him to get down (dapa) and had continued to observe until the second command for him to get down, with the gun poked directly in his face, was harshly shouted at him.

Thus, the majority and concurring opinions are one in saying that

Freddie Alejo is a credible witness whose testimony is enough to secure a

judgment of conviction.

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On the point that assailants faced him simultaneously when one of the

suspects shouted at him, the main decision and the concurring opinion

accepted such testimony as basis for holding that Alejo had the opportunity

to view the assailants enough for him to commit to memory the faces and

features of the criminals.

The dissenting opinion of Justice Antonio T. Carpio, on the other

hand, states:

Contrary to the majority, some of these danger signals are present in this case: (1) a serious discrepancy exists between the identifying witness’ original description and the actual description of the accused; (2) the limited opportunity on the part of the witness to see the accused before the commission of the crime; (3) a considerable time elapsed between the witness’ view of the criminal and his identification of the accused; and (4) several persons committed the crime. […]

The grave disparity between the description of the gunman in Alejo’s sworn statement and in his testimony greatly undermines Alejo’s credibility in identifying the perpetrators of the gruesome crime. […] It is quite unbelievable that Alejo, whose life was threatened by at least one of the suspects, focused his attention on all six suspects, looked at them at the same time, and memorized their faces and features in less than a minute. […] The physical impossibility of looking at the faces of six different men at the same time points to the incredibility of Alejo’s testimony, certain details of which clearly run counter to human nature and experience. […]

and concludes:

In this case, the identification of the accused as the perpetrators of the crime was not clearly and convincingly established raising reasonable doubt on the accused’s guilt for the crime charged. […]

38

To repeat, the prosecution failed to discharge its burden of proof, specifically to prove the identity of the perpetrators of the crime beyond reasonable doubt.

Justice Roberto A. Abad in his dissent, raised the following questions: How could Alejo see which of four other accused stood at what side of Colonel Abadilla’s car when his attention was at Joel de Jesus who was threatening to shoot him if he did not come out of his outpost? […] Alejo testified that when Joel de Jesus, one of the two men on the sidewalk, pointed a gun at him and cried out: “Dapa, walang makikialam!” all four men who fired their guns at Colonel Abadilla turned their faces towards Alejo on the sidewalk, enabling the latter to see their faces clearly. But this is a strained scenario. How could Alejo in such infinitesimal second pay attention to de Jesus pointing a gun at him ad commanding him to go out of his guard post and lie face down on the ground and at the same time examine the faces of each of the four men surrounding Colonel Abadilla’s car, one after the other, to remember their identities?

and concluded:

I have more than reasonable doubt for not being taken in by Alejo’s testimony. Those who saw the daylight shooting of Colonel Abadilla did not know the assassins by face. How the police got to identify and pick up the particular accused in this case from their homes or places of work to be shown to the witnesses as their prime suspects is a mystery that the prosecution did not bother to tell the trial court. I can only assume that this is the handy work of police informers, those who made a living of snitching on criminals and saving the police from the shame of having another crime, a crime called to such tremendous public attention because of the identity of the slain victim, left unsolved.

Thus, Alejo’s testimony, upon which the conviction stands, is

susceptible of opposing interpretations. Particularly, Alejo’s ability to

memorize the faces and features of the assailants and the length of time that

enabled Alejo to view their faces, are not only interpreted differently by the

Court but were debated, questioned and doubted rather than believed and

accepted as establishing the fact that Freddie Alejo was indeed able to see

and memorize the faces of the assailants. This particular fact of having had the opportunity to see the faces of

the assailants is the crucial inculpatory fact that establishes whether Alejo

can indeed identify the assailants based on his unaided recollection.

39

That the testimony of the witness on this particular point is not

unanimously accepted by the Court, but instead, resulted in directly

opposing interpretations, results in a situation that calls for the application of

the equipoise rule.

The equipoise rule finds application if the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt, for then the evidence does not fulfill the test of moral certainty, and does not suffice to produce a conviction.47

Thus, taking Alejo’s testimony as the sole basis for the Court’s

affirmation of the conviction, it clearly appears from the reasoned

discussions in the decision and the concurring and dissenting opinions, that

said testimony is susceptible of two directly opposing interpretations such

that no clear conclusion can be reached as to whether the accused-appellants

are guilty or not. In such a situation, the Court must inevitably acquit all

accused-appellants.

C. RELIEF

WHEREFORE, in view of all the foregoing and the earlier submission

in the Motion for Reconsideration supplemented by this pleading, it is

respectfully prayed of this Honorable Supreme Court to acquit all accused-

appellants as the State thru the prosecution, has failed to prove their guilt

beyond reasonable doubt.

47 People vs. Cawaling, 293 SCRA 267, 307 (1998). Also, see Note 29.

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Quezon City for Manila, 5 November 2009.

VICENTE DANTE P. ADAN Counsel for Petitioners Lumanog and Santos

59 C. Salvador St. Varsity Hills Subd.

Loyola Heights, Quezon City Roll No. 47976

MCLE No.III - 0019102 IPB OR No. 798056

Camarines Sur – 1/07/10 PTR No. 851396

San Jose, Cam. Sur – 1/07/10

COPY FURNISHED:

The SOLICITOR GENERAL Reg. Receipt No.____ 134 Amorsolo St. Legaspi Village, Makati City ATTY. ARLENE G. LAPUZ-URETA Reg. Receipt No.____ GIMENEZ LAW OFFICE Counsel for Petitioners in G.R. No. 185123 Suite 2311 Cityland 10 Tower 2 H.V. dela Costa St., 1200 Makati City THE LAW OFFICE OF DANTE S. DAVID Reg. Receipt No.____ Unit 212 The Burgundy Place Condo. 174 B. Gonzales cor. Katipunan Ave. Loyola Heights, Quezon City ATTY. HECTOR P. CORPUS Reg. Receipt No.____ M.M. Lazaro & Associates 19th Flr., Chatham House Bldg. 116 Valero cor. V.A. Rufino Sts. Salcedo Village, 1227 Makati City PUBLIC ATTORNEY’S OFFICE Reg. Receipt No.____ Department of Justice DOJ Agencies Bldg., NIA Road, Cor. East Avenue, Diliman Quezon City