In the very fresh EN BANC cases of the “ABADILLA 5”, i.e., G.R. No. 182555: LENIDO LUMANOG and AUGUSTO SANTOS, petitioners, v. PEOPLE OF THE PHILIPPINES, respondent; G.R. No. 185123: CESAR FORTUNA, petitioner, v. PEOPLE OF THE PHILIPPINES, respondent; G.R. No. 187745: PEOPLE OF THE PHILIPPINES, plaintiff-appellee, v. 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, all dated September 7, 2010, Assoc. Justice A. Carpio’s very strong and persuasive dissenting opinion earned the respect of the intelligent sectors of Philippine society, especially the mass media, for its wisdom and common sense, for which reason, I wish to quote its salient doctrinal parts, e.g., in re: defective identification of the accused, tainted police lineup, right to counsel, media exposure, and presumption of innocence, to wit:
1. An accused has the right to be presumed innocent unless proven guilty beyond reasonable doubt. No less than the fundamental law guarantees such human right. Section 14(2), Article III of the Constitution mandates that “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.” Reinforcing this right, Section 2, Rule 134 of the Rules of Court specifically provides that “In a criminal case, the accused is entitled to an acquittal, unless his guilt is shown beyond reasonable doubt.”
2. The “presumption of innocence” serves to emphasize that the prosecution has the obligation to prove not only each element of the offense beyond reasonable doubt but also the identity of the accused as the perpetrator. The accused, on the other hand, bears no burden of proof. The prosecution evidence must stand or fall on its own weight and cannot draw strength from the weakness of the defense.
3. As the majority found, “when appellants (accused) were arrested they were already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC squad to Fairview on June 19, 1996, x x x.” In other words, insofar as the police was concerned, Joel was already a suspect even before Alejo went with them to “identify” Joel. In fact, before Alejo pinpointed Joel as one of the suspects, the police showed Alejo a photograph of Joel, supporting the fact that the police focused on Joel as a suspect in the Abadilla killing.
4. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’ opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at the time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and (6) the suggestiveness of the identification procedure. (Emphasis supplied)
5. Hence, in an out-of-court identification, among the factors to be considered is the suggestiveness of the procedure. In this case, the police resorted to a photographic identification of Joel, who was the first suspect to be apprehended and who provided the identities of the other accused.
6. Although showing mug shots of suspects is one of the established methods of identifying criminals, the procedure used in this case is unacceptable. The first rule in proper photographic identification procedure is that a series of photographs must be shown, and not merely that of the suspect. The second rule directs that when a witness is shown a group of pictures, their arrangement and display should in no way suggest which one of the pictures pertains to the suspect.
7. Where a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’s recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified." A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph. (Emphasis supplied)
8. Similarly, in this case, Alejo was first shown a photograph of Joel before Alejo pinpointed Joel as one of the suspects. The police showed only one photograph, that of Joel’s, highlighting the fact that the police primed and conditioned Alejo to identify Joel as one of the murderers of Abadilla. The police focused on Joel as one of the suspects, prior to Alejo’s identification. The police did not show Alejo any other photograph, only that of Joel’s. Assuming Alejo refused to glance at Joel’s photograph, which is quited unbelievable, the fact that he was shown only one photograph violates standard operating procedures in criminal investigations. Clearly, the police, in showing Alejo only a photograph of Joel, instead of a series of photographs arranged in an unsuspicious manner, breached the recognized rules in photographic identification. Undoubtedly, this procedure seriously corrupted the identification process with impermissible suggestion.
9. In People v. Rodrigo, the Court, speaking thru Justice Arturo Brion, acquitted the accused for failure of the prosecution to identify the accused as the perpetrator of the crime, which identification is extremely crucial to the prosecution’s burden of proof. Stressing the importance of a proper identification of the accused, most especially “when the identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification,” just like in this case, the Court held:
The greatest care should be taken in considering the identification of the accused especially, when this identification is made by a sole witness and the judgment in the case totally depends on the reliability of the identification. This level of care and circumspection applies with greater vigor when, as in the present case, the issue goes beyond pure credibility into constitutional dimensions arising from the due process rights of the accused.
x x x x
That a single photograph, not a series, was shown to Rosita is admitted by Rosita herself in her testimony.
x x x x
We hold it highly likely, based on the above considerations, that Rosita’s photographic identification was attended by an impermissible suggestion that tainted her in-court identification of Rodrigo as one of the three robbers. We rule too that based on the other indicators of unreliability we discussed above, Rosita’s identification cannot be considered as proof beyond reasonable doubt of the identity of Rodrigo as one of the perpetrators of the crime.
A first significant point to us is that Rosita did not identify a person whom she had known or seen in the past. The robbers were total strangers whom she saw very briefly. It is unfortunate that there is no direct evidence of how long the actual robbery and the accompanying homicide lasted. But the crime, as described, could not have taken long, certainly not more than a quarter of an hour at its longest. This time element alone raises the question of whether Rosita had sufficiently focused on Rodrigo to remember him, and whether there could have been a reliable independent recall of Rodrigo’s identity.
We also find it significant that three robbers were involved, all three brandishing guns, who immediately announced a holdup. This is an unusual event that ordinarily would have left a person in the scene nervous, confused, or in common parlance, "rattled." To this already uncommon event was added the shooting of Rosita’s husband who charged the robbers with a "bangko" and was promptly shot, not once but three times. These factors add up to our conclusion of the unlikelihood of an independent and reliable identification. (Emphasis supplied)
10. The clear import of Rodrigo is that an out-of-court identification, made by the lone witness, who was subjected to impermissible photographic suggestion, fatally tainted the subsequent in-court identification made by the same witness. Accordingly, the testimony of such witness on the identification of the accused, by itself, cannot be considered as proof beyond reasonable doubt of the identity of the perpetrator of the crime. Without proof beyond reasonable doubt of the identity of the perpetrator, the accused deserves an acquittal.
11. Inasmuch as the present case involves the alleged positive identification by a lone eyewitness and the entire case depends on such identification, the Rodrigo case squarely applies here. Moreover, similar to this case, the witness in Rodrigo was initially shown a single photograph of the accused. Applying Rodrigo to this case, the sole eyewitness Alejo’s out-of-court identification which proceeded from impermissible suggestion tainted his in-court identification of Joel as one of the perpetrators of the crime. As a result, Alejo’s corrupted testimony on the identification of Joel cannot be considered as proof beyond reasonable doubt of the identity of Joel as one of the perpetrators. Without such proof, Joel must be acquitted.
12. Further, it must be emphasized that a highly suggestive identification results in a denial of the accused’s right to due process since it effectively and necessarily deprives the accused of a fair trial. In Rodrigo, the Court stated:
The initial photographic identification in this case carries serious constitutional law implications in terms of the possible violation of the due process rights of the accused as it may deny him his rights to a fair trial to the extent that his in-court identification proceeded from and was influenced by impermissible suggestions in the earlier photographic identification. In the context of this case, the investigators might not have been fair to Rodrigo if they themselves, purposely or unwittingly, fixed in the mind of Rosita, or at least actively prepared her mind to, the thought that Rodrigo was one of the robbers. Effectively, this act is no different from coercing a witness in identifying an accused, varying only with respect to the means used. Either way, the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.
13. In Pineda, the Court pointed out the dangers a photographic identification spawns: an impermissible suggestion and the risk that the eyewitness would identify the person he saw in the photograph and not the person he saw actually committing the crime. Citing Patrick M. Wall, the Court stated:
[W]here a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’ recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to attempt a corporeal identification of a person whose photograph he previously identified may say, "That’s the man that did it," what he may actually mean is, "That’s the man whose photograph I identified."
x x x x
A recognition of this psychological phenomenon leads logically to the conclusion that where a witness has made a photographic identification of a person, his subsequent corporeal identification of that same person is somewhat impaired in value, and its accuracy must be evaluated in light of the fact that he first saw a photograph.
14. Due process dictates that the photographic identification must be devoid of any impermissible suggestions in order to prevent a miscarriage of justice. In People v. Alcantara, the Court declared:
Due process demands that identification procedure of criminal suspects must be free from impermissible suggestions. As appropriately held in US vs. Wade, “the influence of improper suggestion upon identifying witness probably accounts for more miscarriages of justice than any other single factor.” (Emphasis supplied)
15. Therefore, the police’s act of showing a single photograph to Alejo, prior to “identifying” Joel as a suspect, corrupted the identification procedure with impermissible suggestion. Through this illegal procedure, the police, purposely or otherwise, suggested and implanted on Alejo’s mind that Joel was one of the perpetrators, thereby violating Joel’s right as an accused to due process. Not only did the police disregard recognized and accepted rules in photographic identification, they likewise transgressed the clear mandate of the Constitution that “No person shall be deprived of life, liberty, or property without due process of law.” More particularly, the police violated Section 14(1) of the Constitution which provides: “No person shall be held to answer for a criminal offense without due process of law.”
16. More importantly, the police denied Joel his right to counsel during the line-up, contrary to Section 12(1) of the Constitution which provides:
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
17. In People v. Escordial, the Court pertinently ruled:
As a rule, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of the custodial inquest. However, the cases at bar are different inasmuch as accused-appellant, having been the focus of attention by the police after he had been pointed to by a certain Ramie as the possible perpetrator of the crime, was already under custodial investigation when these out-of-court identifications were conducted by the police.
An out-of-court identification of an accused can be made in various ways. In a show-up, the accused alone is brought face to face with the witness for identification, while in a police line-up, the suspect is identified by a witness from a group of persons gathered for that purpose. During custodial investigation, these types of identification have been recognized as “critical confrontations of the accused by the prosecution” which necessitate the presence of counsel for the accused. This is because the results of these pre-trial proceedings “might well settle the accused’s fate and reduce the trial itself to a mere formality.” We have thus ruled that any identification of an uncounseled accused made in a police line-up, or in a show-up for that matter, after the start of the custodial investigation is inadmissible as evidence against him. (Emphasis supplied)
18. As stated in Escordial, generally, an accused is not entitled to the assistance of counsel in a police line-up considering that such is usually not a part of custodial investigation. An exception to this rule is when the accused had been the focus of police attention at the start of the investigation. The line-up in this case squarely falls under this exception. It was established that Joel was already a suspect prior to the police line-up. In fact, even before Joel’s apprehension, the police had already zeroed in on Joel as one of Abadilla’s killers. As such, Joel was entitled to counsel during the police line-up.
However, there is no question that Joel was not assisted by counsel, whether of his own choice or provided by the police, during the line up. As Joel’s identification was uncounseled, it cannot be admitted in evidence for grossly violating Joel’s right to counsel under Section 12(1) of the Constitution.
19. Further, the Court held in Escordial that the testimony of the witness regarding the inadmissible identification cannot be admitted as well, thus:
Here, accused-appellant was identified by Michelle Darunda in a show-up on January 3, 1997 and by Erma Blanca, Ma. Teresa Gellaver, Jason Joniega, and Mark Esmeralda in a police line-up on various dates after his arrest. Having been made when accused-appellant did not have the assistance of counsel, these out-of-court identifications are inadmissible in evidence against him. Consequently, the testimonies of these witnesses regarding these identifications should have been held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’”
20. Citing Patrick M. Wall, the majority enumerated the danger signals which give warning that the identification may be erroneous even though the method used is proper. 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.
21. The majority’s explanation is purely speculative. There was no evidence presented to prove (1) that Joel plied his tricycle everyday during daytime; (2) the amount of Joel’s exposure to sunlight; and (3) such exposure was excessive as to result to premature aging of the facial skin. Moreover, Joel’s height is 5’9” whereas the man whom Alejo described as lookout was about 5’5”-5’6” tall. There was no explanation offered as to the disparity in the height. To repeat, Alejo described only one lookout in his sworn statement, contrary to his testimony that there were two lookouts.
22. We agree with the accused that the swiftness by which the crime was committed and the physical impossibility of memorizing the faces of all the perpetrators of the crime whom the witness saw for the first time and only for a brief moment under life-threatening and stressful circumstances incite disturbing doubts as to whether the witness could accurately remember the identity of the perpetrators of the crime.
23. The crime took place on 13 June 1996, while Alejo testified in August 1996. Alejo was never made to identify Lumanog, Santos, Rameses, and Fortuna prior to their arrest until their in-court identification was made. Two months had elapsed between Alejo’s view of the criminals and his identification of the accused in open court. Alejo’s memory, just like any other human’s, is frail. In fact, as noted by the trial court, Alejo’s recollection at the time he gave his statement before the police investigators was more recent and fresher than when Alejo testified in court. Accordingly, the trial court gave more credence to Alejo’s sworn statement than his testimony in acquitting Delos Santos.
24. The police did not posses any description or prior identification of these accused. There was no leading information, or any piece of reliable information for that matter, on the identity of the killers, except Joel’s illegally extracted extrajudicial confession. Neither did the police have any evidence linking the other accused to the crime. To repeat, Joel provided the police, through a coerced confession, with the identities of his supposed co-conspirators and where they could be found. Clearly, “the police investigators are the real actors in the identification of the accused; evidence of identification is effectively created when none really exists.”
25. In Escordial, the Court stated that the testimonies of the witnesses on the identification of the accused should be held inadmissible for being “the direct result of the illegal lineup ‘come at by exploitation of [the primary] illegality.’” Here, being a direct result of an illegal police activity, that is the coerced extraction of a confession from Joel, the subsequent in-court identification by Alejo of Lumanog, Rameses, Fortuna and Santos must be rejected. The testimony of Alejo on the identification of the accused as perpetrators of the crime cannot be given any weight. Alejo’s in-court identification of Lumanog, Rameses, Fortuna, and Santos was fatally tainted because the identity of the suspects came from a coerced confession of Joel, who himself was identified as a suspect through a fatally defective impermissible suggestion to Alejo. In short, Alejo’s identification of Joel was fatally defective; Alejo’s identification of Lumanog, Rameses, Fortuna and Santos was also fatally defective. Both identification directly emanated from illegal police activities – impermissible suggestion and coerced confession.
26. After the police investigators had illegally extracted from Joel the identities and locations of the other suspects, and after they had arrested Lumanog, Rameses, Fortuna and Santos, the police proudly declared: “crime solved” and “case closed.” With this remarkable development, the accused were presented before the media in a press conference in Camp Crame on 24 June 1996 or 11 days after the killing. The accused were photographed by mediamen and interviewed by members of the press. During the press conference, the accused were made to squat on the floor, their names written on boards dangling from their necks.
Indisputably, the police extracted the identities of the accused from a coerced confession of Joel. Then the police arrested the accused, and allowed the media to take their pictures with their names written on boards around their necks. The media promptly published these pictures in several newspapers. Thus, at that time, the faces of the accused were regularly splashed all over the newspapers and on television screens in news reports. Alejo could not have missed seeing the faces of the accused before he identified them in court. To rule otherwise strains credulity.
27. Alejo, as the star witness in this case, must naturally be interested to look, or even stare, at the faces of the alleged killers to make sure he identifies them in court. Assuming Alejo failed to personally see the faces of the accused in the newspapers or television, which is highly improbable, if not totally impossible, his family and friends, if not the police, would have provided him with photographs of the accused from the newspapers for easier identification later in court. Surely, Alejo had ample time to memorize and familiarize himself with the faces of the accused before he testified in court and identified Lumanog, Santos, Rameses, Joel, and Fortuna as the killers of Abadilla.
To give credence to Alejo’s in-court identification of the accused is to admit and give probative value to the coerced confession of Joel. Clearly, the publication of the pictures of the accused in the newspapers and television came directly from the coerced confession of Joel. Alejo would not have been able to identify the accused without the pictures of the accused that were taken by media as a result of the coerced confession of Joel.
28. Inexplicably, the majority fails to consider this extensive media exposure of the accused in ascertaining the reliability and admissibility of Alejo’s testimony on the identities of the accused. The majority ignores the fact that Alejo had seen the accused in print and on television, guaranteeing Alejo’s in-court identification of the accused as the perpetrators of the crime. The media exposure of the accused casts serious doubts on the integrity of Alejo’s testimony on the identification of the murderers. Such doubts are sufficient to rule that Alejo’s in-court identification of the accused as the perpetrators of the crime is neither positive nor credible. “It is not merely any identification which would suffice for conviction of the accused. It must be positive identification made by a credible witness, in order to attain the level of acceptability and credibility to sustain moral certainty concerning the person of the offender.”
29. The police arrested Joel, without any warrant, on 19 June 1996 or six days after the killing. Six days is definitely more than enough to secure an arrest warrant, and yet the police opted to arrest Joel and the other accused, without any warrant, claiming that it was conducted in “hot pursuit.” In law enforcement, “hot pursuit” can refer to an immediate pursuit by the police such as a car chase. Certainly, the warrantless arrrest of Joel, made six days after the murder, does not fall within the ambit of “hot pursuit.” The question now is whether the successive warrantless arrests of the accused are legal. The pertinent provisions of Rule 113 of the Rules on Criminal Procedure on warrantless arrest provide:
Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and
c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
30. None of the above instances is present in this case: (1) the accused were not arrested in flagrante delicto; (2) the arrest was not based on personal knowledge of the arresting officers that there is probable cause that the accused were the authors of the crime which had just been committed; (3) the accused were not prisoners who have escaped from custody serving final judgment or temporarily confined while their case is pending. There is no question that all the accused were apprehended several days after the crime while doing ordinary and unsuspicious activities. There is also no question that the police had no personal knowledge of probable cause that the accused were responsible for the crime which had been committed. The third situation is inapplicable since the accused are not prison escapees. Considering these facts, there is indeed no justification for the warrantless arrests effected by the police in their so-called “hot pursuit.” Such warrantless arrest, therefore, amounts to a violation of Section 2, Article III of the Constitution, which provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
31. The police investigation work in this case, which led to the unlawful warrantless arrest of the accused, is nothing but sloppy: (1) they chose to rely solely on the sworn statement of one eyewitness (Alejo); (2) they failed to obtain any description of the suspects from other eyewitnesses, including the owner of the Kia Pride which was forcefully obtained by the suspects as a get-away car; (3) they showed Alejo a picture of Joel to assist him in identifying the “suspect”; and (4) they arrested the other accused based entirely on the illegally extracted extrajudicial confession of Joel.
32. Worse than their illegal warrantless arrest, the accused reportedly underwent unspeakable torture in the hands of the police. While the Commission on Human Rights, “in its Resolution dated July 16, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the police authorities, the CHR found prima facie evidence that the police officers could have violated Republic Act No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary detention, x x x.”
33. The speedy resolution of a crime is never a license for the police to apprehend any person and beat him to admit his participation in a gruesome crime. In this case, without any credible evidence linking the accused to the murder, the police blindly resorted to careless investigation and unlawful apprehension of innocent men. Worse, the police apparently tortured the accused to answer for the brutal slaying of Abadilla.
34. Indisputably, torturing the accused to extract incriminating confessions is repugnant to the Constitution. Section 12(2), Article III of the Constitution expressly provides “[n]o torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against [an accused].” The blatant and unacceptable transgression of the accused’s constitutional rights, for the sake of delivering speedy, but false, justice to the aggrieved, can never be countenanced. This Court can never tolerate official abuses and perpetuate the gross violation of these rights. The presumption that a public officer had regularly performed his official duty can at no instance prevail over the presumption of innocence.
35. In reviewing criminal cases, the Court must carefully determine and establish “first, the identification of the accused as perpetrator of the crime, taking into account the credibility of the prosecution witness who made the identification as well as the prosecution’s compliance with legal and constitutional standards; and second, all the elements constituting the crime were duly proven by the prosecution to be present.” The inexistence of any of these two factors compels us to acquit the accused.
36. It devolves upon the police authorities, as law enforcers, to ensure the proper and strict implementation of the laws, most specially, the fundamental law of the land. Lamentably, the present case showcases the dark reality in our country, where the police at times assumes the role of law offenders. The policemen, boasting of solving a highly sensationalized crime, flagrantly disregarded the accused’s constitutional rights. These men in uniform openly defiled the Constitution, which they are bound to observe and respect, by infringing upon the accused’s rights guaranteed under (1) Section 1, Article III; (2) Section 14(1); (3) Section 12(1); (4) Section 12 (2); and (5) Section 2, Article III of the Constitution. Such violations simply cannot be countenanced. Instead, they deserve utmost condemnation. As the Court declared emphatically in Alcantara:
The records show that [the police] illegally arrested appellant, arbitrarily detained, physically abused and coerced him to confess to a crime penalized by nothing less than reclusion perpetua. Too often, our law
enforcers, in their haste to solve crimes, strip people accused of serious
offenses of the sanctity of their constitutional rights. It is again time to pound on these law enforcers with the crania of cavern men that the guarantees of the rights of an accused in the Constitution are not mere saccharine statements but the bedrock of our liberty. If we allow a meltdown of these guarantees, our democracy will be a delusion. (Emphasis supplied)
37. In view of the gross violations of the accused’s constitutional rights as well as the seriously flawed identification of the accused as the perpetrators of the crime, there is sufficient reason to doubt the accused’s guilt for the crime charged. 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. Accordingly, the presumption of innocence in favor of the accused prevails. The accused need not even raise the defenses of denial and alibi as the burden of proof never shifted to the defense. “Any consideration of the merits of these defenses is rendered moot and will serve no useful purpose.” Therefore, the accused are entitled to an acquittal.
