The legal issued involved in the motion are proof beyond reasonable doubt as the mandatory quantum of evidence needed to convict an accused, the righta to due process/equal protection of the law, and the gross negligence of counsel.
“OMNIBUS
MOTION
(1) FOR NEW
TRIAL/RECONSIDERATION;
OR, IN THE
ALTERNATIVE,
(2)
TO REOPEN THE CASE
THE ACCUSED xxxx, assisted by his
newly retained defense counsel, respectfully states:
I.
SUBJECT MATTER
OF THIS
OMNIBUS MOTION
The
subject matter of this omnibus motion is the DECISION, dated xxx, which was promulgated
on xxx. (See Order, xxx, allowing
the accused provisional liberty under
the same bond for purposes of appeal).
This
omnibus motion is VERIFIED. The accused adopts the full body of this motion as
his AFFIDAVIT OF MERIT in support of his motion.
II.
MATERIAL DATES
The
said Decision having been promulgated on xxx in the presence of the accused and
his former counsel, Atty. Xxx, the 15th
day of the accused to file this omnibus motion would expire on xxx. This
motion is intended to be filed by the undersigned counsel on xxx after the
proper final review and editing procedures.
III.
GROUNDS FOR THE OMNIBUS MOTION
The
accused seeks a RECONSIDERATION of the Decision on the following grounds:
1.
The prosecution
evidence has failed to prove the guilt of the accused beyond reasonable doubt.
2.
With all due
respect, the Honorable Court has grossly misappreciated
and misinterpreted the evidence on record resulting in a grave miscarriage
of justice.
3.
The former
defense counsel, Atty. Xxx, had committed gross negligence resulting in a grave
miscarriage of justice and in a grave violation of the fundamental constitutional
rights of the accused to:
(a)
procedural and substantive due process of law,
(b)
to equal protection of the law, and
(c)
to competent and independent counsel,
all
of which warrants a RE-OPENING of the case to
enable the accused, in the interest of truth and justice, to present crucial
exculpating evidence discussed hereinbelow, which evidence, if admitted,
would result in his ACQUITTAL.
In
the alternative, the accused seeks the RE-OPENING of the instant case to enable
him and his newly retained counsel to present crucial exculpating evidence which his former counsel, by his gross negligence, failed to introduce in
his defense to prove his innocence, i.e.,
the Mission Order (Appointment),
Memorandum Receipt, and other related documents, which are discussed
hereinbelow, issued by the xxx Service of the Armed Forces of the
Philippines, of which he is a duly appointed xxx with the official
authority to possess a firearm and to
carry the same outside his residence in such official capacity.
The
crucial exculpating evidence referred to above are as follows:
1.
Annex “A”. –
CERTIFICATION, dated xxx, issued by xxx, xxx Commander, xxx, xxx Service, Armed
Forces of the Philippines.
It
certifies that the accused Xxx was a xxx of xxx, with authority to carry a Cal.
.45 Xxx Pistol.
2.
Annex “B”.
- AFFIDAVIT, dated xxx, executed by the
accused, stating that he was the owner of
a firearm described as: Xxx Pistol,
Caliber .45, Model 1911, and with Serial No. 1108548; and that he had donated the same to the xxx Group xxx, xxxAFP.
The
affidavit, is signed, by way of acceptance
of the said donation, by xxx, responsible xxx Officer.
3.
Annex “C”. –
MISSION ORDER (APPOINTMENT), dated xxx, described as “AZxxx” and with “CN: xxx”,
issued by xxx, xxx Commander, xxx, xxx
Service, Armed Forces of the Philippines, appointing the accused as a xxx of
xxxAFP until xxx.
It
states that his mission area covers the following regions: NCR, CAR, CARAGA, ARMM, REGION 1 to REGION 12.
It
further states that by virtue of his Mission Order, the accused was being
issued “Government-owned firearms and
radio for use in the performance of (his) official duties”.
4.
Annex “D”. -
MISSION ORDER (APPOINTMENT), dated xxx, described as “AZxxx” and with “CN: x x x”,
issued by xxx, xxx Commander, xxx, xxx
Service, Armed Forces of the Philippines, appointing the accused as a xxx of
xxxAFP until xxx.
It
states that his mission area covers the following regions: NCR, CAR, CARAGA, ARMM, REGION 1 to REGION 12.
It
further states that by virtue of his Mission Order, the accused was being
issued “Government-owned firearms and
radio for use in the performance of (his) official duties”.
5.
Annex “E”. –
xxxAFP ACKNOWLEDGMENT RECEIPT FOR EQUIPMENT (MEMORANDUM RECEIPT), with Serial
No. xxx, valid up to xxx, covering a firearm and ammunitions described as
follows: One (1) unit Pistol, Cal. .45, xxx, with Serial No. xxx; Three (3)
Units Magazines for Cal. .45 -- the same
to be possessed, carried outside of
residence, and used by the accused as xxx in the performance of his official
duties.
The firearm and ammunitions were issued
on xxx by xxx, responsible xxx Officer, to the accused Xxx
as a xxx, who received the same also on xxx.
IV.
DISCUSSION
A. The accused
respectfully submits that the prosecution evidence has failed to prove the
guilt of the accused beyond reasonable
doubt and that, with all due respect, the Honorable Court has grossly misappreciated and misinterpreted
the evidence on record resulting in a grave miscarriage of justice.
The
Information, dated xxx, charged the
accused with “violation of P.D. No. 1866, as amended by R.A. No. 8294”, i.e., “possess(ing), (having) custody
(of), and control(ling)” the subject firearm and ammunitions, “without justifiable cause”, and “without the necessary license or permit to
possess the same”.
The
incident that gave rise to the instant case was an NBI “entrapment operation” on xxx.
As
of such date (xxx), the accused had an existing license for his subject
firearm, as confirmed by a CERTIFICATION, dated xxx, issued by the PNP Firearms
and Explosive Office, which was presented to the Court by xxx, which
Certification showed that the accused was a “x x x licensed /registered firearm holder of a Pistol, Caliber . 45, Xxx, with Serial No. xxx, issued/approved on xxx,
with expiry date xxx x x x.” (Decision, page 2, par. 5).
The
license/permit of the accused was issued/approved on xxx, or three (3) days before the entrapment operation.
The
original license/permit had an expiry date of xxx.
The
accused had actually shown to the arresting NBI agents his expired license/permit when he was arrested on xxx. He had later referred
them to the FEO Certification, supra, showing that he was a licensed
firearm owner/holder, the same having been subsequently
issued/approved (renewed) on xxx. It was unfortunate, though, that his
FEO-issued license/permit was not in his possession as of the time of his
arrest on xxx. However, he had subsequently presented the same after the
preliminary investigation. (Decision,
page 4, par. 2).
His
minor inadvertence, in good faith, i.e., his innocent act of forgetting to
bring with him the renewed license/permit as of the time of the entrapment on xxx,
should not be taken against him as to deprive him of his ultimate freedom and
liberty as a citizen, considering that he had subsequently produced and
explained the same to the authorities to prove the fact that his firearm was
duly licensed as of the time of his arrest on xxx.
What
is clear, though, was that on xxx, or
three (3) days before the arrest of the accused on xxx, his license/permit
had already been officially issued by the FEO, although the said renewed
license/permit was still at the FEO records/release section as of xxx, which
explains why the accused, at the time of his arrest on xxx, was carrying only an expired license/permit.
The
evidence shows that the actual Firearm License Card was issued by the FEO on xxx, which was the also
entrapment date, while the actual renewal of the license/permit
actually took place on xxx, or three (3) days earlier.
There
is no prosecution evidence that contradicts such fact.
With
all due respect, the Court grossly misinterpreted the difference between xxx (License renewal date) and xxx
(date of the License Card) as
an inculpating proof of guilt, which
was erroneous, considering that there is always
a lag time between the License
papers renewal process and the printing and issuance process for the License Card itself.
The
printing and issuance of the Card itself
follows only after the processing and approval of the renewal of the License document had been
completed.
Such
minor bureaucratic and administrative delay on the part of the FEO is fair and reasonable
considering the thousands of applications for License renewal and the printing of thousands of License Cards that the FEO has to attend
to on a daily basis.
Besides,
the accused had no control over the internal procedures and internal rules and
policies of the FEO as an ordinary citizen.
Such
minor and reasonable delay (i.e., the difference between the date of the
License renewal, which was xxx, and the date of the actual [subsequent] issuance
of the License Card itself,
which was xxx) should not be taken against the accused.
The
Certification of the FEO as testified to by FEO
PSI xxx should be interpreted as an exculpating
evidence to support the innocence of the accused in relation to the offense
charged in the Information, notwithstanding the minor doubts that the aforecited delay and other related matters
might have created in the mind of the Court, for the substance and spirit of
Criminal Law is one of LIBERALITY in
favor of the accused in case of the existence of a reasonable doubt.
A. – 1. Jurisprudence. - In other words, when there is equilibrium in the evidence presented by both
sides, the CONSTITUTIONAL PRESUMPTIOM OF INNOCENCE should tilt the balance of
the scale in favor of the acquittal of
the accused, for, in such a situation, the offense has not been proven beyond reasonable doubt, which is the quantum of evidence required to
convict an accused.
Suspicion
alone is insufficient, the required quantum of evidence being proof beyond
reasonable doubt. [People v. Gargar, 300 SCRA 542 (1998). See also: En Banc,
Justice Mendoza, THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL
ABRENICA CUBCUBIN, JR., accused-appellant, G.R. No. 136267. July 10, 2001].
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Only by proof
beyond reasonable doubt, which requires moral
certainty, may the presumption of innocence be overcome (People vs. Custodio, 47 SCRA 289 [ 1972]).
Moral
certainty
has been defined as "a certainty that convinces and satisfies the reason
and conscience of those who are to act upon it" (People vs. Lavarias, 23 SCRA 1301 [1967]).
Absent the moral certainty that
accused-appellant caused the death of the victim, acquittal perforce follows.
Proof beyond reasonable doubt is needed to
overcome the presumption of Innocence (People
vs. Reyes, 60 SCRA 126 [1974]).
Accused-appellant’s guilt must be proved beyond
reasonable doubt (People vs. Maliwanag,
58 SCRA 323 [ 1974]); otherwise, the Court would be left without any other
recourse but to rule for acquittal. Courts should be guided by the principle
that it
would be better to set free ten men who might be probably guilty of the crime
charged than to convict one innocent man for a crime he did not commit. [En Banc, Melo, People v. Tagudar [G.R. No.
130588. June 8, 2000].
B. Gross Negligence of the Former Defense Counsel. - The
accused respectfully submits that his former defense counsel, Atty. Xxx Xxx,
had committed gross negligence resulting in a grave miscarriage of justice and
in a grave violation of the fundamental constitutional rights of the accused
to: (a) procedural and substantive due process of law, (b) to equal protection
of the law, and (c) to competent and independent counsel -- all of which warrants a RE-OPENING of the
case to enable the accused, in the interest of truth and justice, to present
crucial exculpating evidence discussed hereinbelow, which evidence, if admitted,
would result in his ACQUITTAL.
The gross negligence and
failure of the former counsel for the accused to introduce and present the
evidence referred to in Pars. 3.3., supra, has resulted in a grave
miscarriage of justice and in a grave violation of the fundamental
constitutional rights of the accused to: (a) procedural and substantive due
process of law, (b) to equal protection of the law, and (c) to competent and
independent counsel -- all of which
warrants a RE-OPENING of the case to
enable the accused, in the interest of truth and justice, to present crucial
exculpating evidence discussed hereinbelow, which evidence, if admitted,
would result in his ACQUITTAL, to wit:
X x x.
B-1. JURISPRUDENCE. - The accused is aware of the jurisprudence that, as
a general rule, “a client is bound by the mistakes of his counsel”. (Villa Rhecar Bus vs. Dela Cruz, No. L-78936, January
7, 1988, 157 SCRA 13).
However,
jurisprudence allows an exception, that it, “x x x when the negligence of the counsel is so gross, reckless and
inexcusable that the client is deprived of his day in court”.
In
such instance, “the remedy is to reopen the case and allow the
party who was denied his day in court to adduce evidence”. (Producers Bank of the Philippines vs. Court
of Appeals, G.R. No. 126620, April 17, 2002, 381 SCRA 185, 192).
Further,
in this regard, the accused hereby quotes extensively the ruling of the Supreme
Court in the case of CALLANGAN VS.
PEOPLE, G.R. NO. 153414, , June 27, 2006,where it held, inter alia, that:
“The rule that the negligence of counsel binds the client admits of exceptions:
(1)
where reckless or gross negligence of counsel deprives the client of due
process of law,
(2)
when its application will result in outright deprivation of the client’s
liberty or property or
(3) where the interests of justice so require.”
THUS:
“x x x.
However,
in view of the circumstances of this case, outright deprivation of liberty will
be the consequence of petitioner’s criminal conviction based solely on the
evidence for the prosecution. Thus, to prevent a miscarriage of justice and to
give meaning to the due process clause of the Constitution, the Court deems it
wise to allow petitioner to present evidence in her defense.
The
rule that the negligence of counsel binds the client admits of exceptions. The
recognized exceptions are: (1) where reckless or gross negligence of counsel
deprives the client of due process of law, (2) when its application will result
in outright deprivation of the client’s liberty or property or (3) where the
interests of justice so require. In such cases, courts must step in and
accord relief to a party-litigant.
The
omissions of petitioner’s counsel amounted to an abandonment or total disregard
of her case. They show conscious indifference to or utter disregard of the
possible repercussions to his client. Thus, the chronic inaction of
petitioner’s counsel on important incidents and stages of the criminal
proceedings constituted gross negligence.
X
x x.
In
criminal cases, the right of the accused to be assisted by counsel is
immutable. Otherwise, there will be a grave denial of due
process. The right to counsel proceeds from the fundamental principle of
due process which basically means that a person must be heard before being
condemned.
In People
v. Ferrer, the essence of the right to counsel was enunciated:
The right to counsel means that the accused is amply
accorded legal assistance extended by a counsel who commits himself to the
cause for the defense and acts accordingly. The right assumes an active
involvement by the lawyer in the proceedings, particularly at the
trial of the case, his bearing constantly in mind of the basic rights of the
accused, his being well-versed on the case, and his knowing the fundamental
procedures, essential laws and existing jurisprudence. The right of an accused
to counsel finds substance in the performance by the lawyer of his
sworn duty of fidelity to his client. Tersely put, it means an efficient
and truly decisive legal assistance and not a simple perfunctory
representation. (Emphasis supplied)
Petitioner
was accorded grossly insufficient legal assistance by a counsel who did not
devote himself to the defense of her cause. Counsel’s utter lack of action
after the prosecution rested its case revealed an extreme shortcoming on his
part. Such inaction definitely proved infidelity to and abandonment of
petitioner’s cause.
Considering
that this case involved personal liberty, the gross negligence of counsel
shocks our sense of justice. It should not be allowed to prejudice petitioner’s
constitutional right to be heard. The Court’s pronouncement in Reyes
v. Court of Appeals, applies strongly in this case:
The judicial conscience certainly cannot rest easy on
a conviction based solely on the evidence of the prosecution just because the
presentation of the defense evidence had been barred by technicality. Rigid
application of rules must yield to the duty of
courts to render justice where justice is due – to
secure to every individual all possible legal means to prove his innocence of a
crime with which he or she might be charged.
Otherwise,
the likelihood of convicting and punishing an innocent man and of inflicting a
serious injustice on him becomes great.
In Reyes,
the Court, after finding that the conviction of Zenaida Reyes had
been caused by the gross negligence of her counsel, reconsidered its earlier
resolution which denied the petition for review of the decision of the Court of
Appeals affirming her conviction. The case was remanded to the trial court for
the purpose of allowing Reyes to present evidence in her defense.
In De
Guzman v. Sandiganbayan, the Court also set aside its decision
affirming Domingo de Guzman’s conviction by the Sandiganbayan, after being
shown that his conviction had been brought about by his counsel’s gross
ignorance of law and procedure. The case was then ordered remanded to the
Sandiganbayan for reception and appreciation of petitioner’s evidence.
Therefore,
in consonance with the demands of justice and to prevent any outright
deprivation of liberty, the Court deems it best to give petitioner a chance to
present evidence in her defense. The case should be remanded to the MTC for
acceptance and appraisal of petitioner’s evidence.
Petitioner
does not seek her exoneration but the opportunity to present evidence in her
defense. Considering the gross negligence of her counsel on whom she reposed
her trust to protect her rights, justice demands that she be given that chance.
In
sum, it is better to allow petitioner another occasion to present her evidence
than to let her conviction stand based solely on the evidence of the
prosecution. In accordance with Rule 121, Section 6 of the Rules of Court,
the evidence of the prosecution shall be understood preserved, subject to the
right of the prosecution to supplement it and/or to rebut the evidence which
petitioner may present.
X
x x.”
C. RULES OF
COURT. – Sec. 24, Rule 119 of the
Rules of Criminal Procedure provides that “at any time before finality of
the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen
the proceedings to avoid a miscarriage of justice”.
The proceedings shall be terminated “within thirty (30) days from the order granting
it.”
In the case at bar, the decision therein has not yet become final and executory as of
the filing of this omnibus motion.
V.
RELIEF
WHEREFORE, premises considered, it is respectfully prayed that
the Decision, dated xxx and promulgated
on xxx, be RECONSIDERED AND SET ASIDE and a new one be entered ACQUITTING
the accused; or, in the alternative,
that an order be issued RE-OPENING the trial of the instant case, as explained
above, to enable the accused to introduce crucial exculpating evidence that his
former counsel had grossly neglected to introduce.
Las Pinas City, xx x.
LASERNA CUEVA-MERCADER
LAW OFFICES
Counsel
for Accused Xxx B. Xxx
Unit
15, Star Arcade, CV Starr Ave.
Philamlife
Village, Las Pinas City 1740
Tel.
Nos. 8725443 & 8462539
MANUEL LASERNA JR.
Roll
No. 33640, 4/27/85
IBP
Lifetime Member No. 1907
IBP
Leyte Chapter
MCLE
Compliance No. IV-1326, 2/3/11
PTR
No. 10448581, 1/3/13, Las Pinas
NOTICE OF
HEARING
1.
Branch Clerk of Court
RTC
111
Pasay
City
2.
Office of the City Prosecutor
Pasay
City
3.
Atty. Xxx
Private
Prosecutor
Mabuhay:
The
undersigned defense counsel shall present the foregoing omnibus motion to the
Honorable Court, for its kind consideration and approval, on xxx, xxx, 8:30 AM (motion day). Thank you.
Manuel
J. Laserna Jr.
Cc:
OFFICE OF THE CITY PROSECUTOR
Hall
of Justice
Pasay
City Hall, FB Harrison St.
Pasay
City
(personal delivery)
Atty. xxx
Private
Prosecutor
xxx
Reg. Rec. No. ________________
Date ________________ P.O. ___________
EXPLANATION
A copy of this omnibus motion is served on
the private prosecutor via registered
mail due to the distance of his law office address in x x x City and the due to
the urgency of filing the same.
Manuel J. Laserna Jr.
x x x."
