PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CHRISTOPHER ESPANOLA y PAQUINGAN alias "Langga" or "Cocoy", JIMMY
PAQUINGAN y BATILO alias "Jimmy" and JEOFFREY ABELLO y SALADO alias
"Beroy," accused-appellants.

PUNO, J.:
This is an appeal from the decision 1 dated November 21, 1994, of the Regional
Trial Court of Lanao Del Norte, 12th Judicial Region, Branch 5, City of Iligan,
finding the accused-appellants Christopher Espanola y Paquingan, Jimmy
Paquingan y Batilo and Jeoffrey Abello y Salado guilty beyond reasonable doubt as
principals for the murder of Jessette Tarroza in Criminal Case No. 3773. The three
accused were meted a prison term of reclusion perpetua with the accessory
penalties provided by law. They were ordered to indemnify jointly and severally
the heirs of the victim Jessette Tarroza the amount of P50,000.00 as actual
damages, P50,000.00 as compensatory damages, P50,000.00 as moral damages
and P25,000.00 as exemplary damages.
The Amended Information charging the accused-appellants with the crime of
Murder and indicting another accused in the person of Joel Gonzales reads:
AMENDED INFORMATION
The undersigned City Prosecutor of Iligan accuses CHRISTOPHER ESPANOLA y
Paquingan alias "Langga" JIMMY PAQUINGAN y Batilo, JEOFFREY ABELLO y Salado
alias "Beroy" and JOEL GONZALES alias "Awing" alias "Wingwing" of the crime of
MURDER, committed as follows:
That on or about November 16, 1991, in the City of Iligan, Philippines, and within
the jurisdiction of this Honorable Court, the said accused, who were all under the
influence of drugs (Marijuana), conspiring and confederating together and
mutually helping each other with intent to kill and by means of treachery and
with abuse of superior strength, did then and there willfully, unlawfully and
feloniously attack, assault, stab and hit one Jessette Tarroza, thereby inflicting
upon the said Jessette Tarroza the following physical injuries, to wit:
— Incised wound 2.5 cms in length, lateral border of (R) ala nasi
— Triangular stab wound, neck (R) side, 4 cms x 3 cms x 5.5 cms
— Incised wound, anterior neck, 6 cms x 4 cms x 3.5 cms which traversed thru the
trachea, external jugular vein and 3/4 of the esophagus
— Stab wound, anterior neck, (R) supraclavicular area, 2.5 cms x 1 cm x 4 cms
— Stab wound, (L) anterior chest, midclavicular line 1.5 cms 1 cm x 2.5 cms
— Stab wound, (R) anterior chest, 4 cms x 2 cms with fracture of the 4th and 5th
rib with lung tissue out
— Stab wound, (R) anterior chest, level of axilla, 2 cms x 1 cm x 5 cms
— Stab wound, (R) anterior chest, 3rd ICS, midclavicular line 2.5 x 1.4 cms
— C-shaped stab wound, (R) anterior chest, midclavicular line, 3.5 cms x 2 cms x 3
cms, 2nd ICS
— Stab wound, (R) anterior chest, 2nd ICS, (R) parasteal line, 2.5 cms x 1.5 cms x 4
cms
— Confluent abrasion (R) elbow joint, anteromedial aspect 3 cms in diameter
— Multiple punctured wounds (5), back, (R) side
— Confluent abrasion 10 cms by 3 cms, back, lumbar area
and as a result thereof the said Jessette Tarroza died; that immediately after
inflicting fatal injuries on the said Jessette Tarroza the, herein accused took turns
in having sexual intercourse with the victim.
Contrary to and in violation of Article 248 of the Revised Penal Code with the
aggravating circumstances of: (1) treachery and abuse of superior strength; (2)
cruelty in all (sic) ignominy; (3) that the accused were under the influence of
drugs at the time of the commission of the offense and (4) outraging or scoffing of
(sic) the corpse of the victim.
City of Iligan, November 29, 1991.
The facts of the case show that Jessette Tarroza went to work at the Mercy
Community Clinic, Camague, Iligan City, as a medical technologist at about 3
o'clock in the afternoon of November 16, 1991. Her tour of duty was from 3
o'clock in the afternoon to eleven o'clock in the evening. 2 After working for eight
hours, she left the clinic at about 11:15 p.m., with Claro Liquigan, a co-employee.
When they reached the junction road leading to her house at about 11:30 p.m.,
Claro offered to escort Jessette to her house but she refused saying that she knew
the people in the area. She then walked towards her house while Claro rode his
bicycle and went home. When they parted ways, Claro noticed four (4) persons in
the pathway leading to Jessette's house. They were about 60 to 70 meters away
from him and he did not recognize whether they were male or female. 3
Jessette Tarroza failed to come home that fateful evening. She was found dead.
Her father, Romeo Tarroza, rushed to the place where her body was discovered. 4
He was shocked to see Jessette lying in a grassy area more or less fifty (50) meters
from their home and only fifteen (15) meters from the pathway. Her body bore
stab wounds. Her red blouse was wide open and her pants removed. Her panty
was likewise removed while her bra 5 was cut. The red blouse 6 was torn with
three (3) holes at the back, ten (10) holes on the front and six (6) holes on the left
sleeve. Her blouse, bra and shoes were stained with blood. Her panty, found
about two (2) feet away from her cadaver, had blood on the front portion. A light
green T-shirt with the print "Midwifery" at the back and "ICC" on the front 7 was
also found near the shoes of the victim. The T-shirt was not hers. 8
The law enforcement officers of Iligan City immediately conducted an
investigation. They found blood stains along the pathway which was
approximately fifteen (15) meters away from the place where the victim was
found. There was a sign of struggle as the plants and bushes at the scene of the
crime were destroyed and flattened. They extended their investigation to the
neighboring sitios and purok of Kilumco but found no lead as to the perpetrators
of the crime. 9
In the morning of November 19, 1991, SPO 4 Ruperto Neri received an
anonymous telephone call suggesting that a certain "Wing-wing" 10 be
investigated as he has knowledge of the crime. Antonio Lubang, Chief of the
Homicide Section, Intelligence and Investigation Division of the Iligan City Police
Station, and his men looked for "Wing-wing". Lubang knew "Wing-wing" as the
latter frequently roamed around the public plaza. They learned that the real name
of "Wing-wing" is Joel Gonzales. They then saw Gonzales at his house and invited
him to the police station. At the police station, Gonzales confessed that he was
present when the crime was committed and that he knew its perpetrators. He
identified them as "Beroy", "Langga" and "Jimmy". He informed that the three
stabbed and raped Jessette Tarroza. Gonzales, however, did not give the
surnames of the three suspects. The policemen asked Romeo Tarroza whether he
knew the suspects. Romeo Tarroza declared that they were his neighbors. He
identified "Jimmy" as Jimmy Paquingan, "Langga" as Christopher Espanola and
"Beroy" as Jeoffrey Abello. 11 On the same day, Gonzales was detained at the
police station.
In the early morning of November 21, 1991, Chief Lubang invited Jimmy
Paquingan, Christopher Espanola and Jeoffrey Abello to the police station where
they were investigated. All denied the story of Gonzales. A police line-up of
twelve (12) persons which included the three accused-appellants was then made
in the police station. Gonzales was called and he pointed to Paquingan, Espanola
and Abello as his companions in the killing and rape of Jessette Tarroza. After the
line-up, the three suspects were brought to the City Health Office for check-up
because the policemen saw that they had bruises and scratches on their faces,
foreheads and breasts. 12 They were examined by Dr. Livey J. Villarin. With
respect to Paquingan, the medical certificate (Exhibit "I") showed that he had
scratch abrasions on the right mandibular area (jaw), on the left side of the neck
and on the right mid-axillary (chest). Dr. Villarin testified that the abrasions could
have been caused by any sharp object or possibly fingernails. The medical
certificate issued to Espanola (Exhibit "J") showed that he had contusions on the
right shoulder and hematoma. Dr. Villarin testified that the injuries could have
been effected by a jab or sharp blow. The medical certificate issued to Abello
(Exhibit "K") showed that he sustained abrasion and contusion at the right deltoid
area which according to Dr. Villarin, could have been caused by a sharp or hard
object or a fist blow that hit that particular area of the body. 13
On the same day, an information for rape with homicide 14 was filed against
Paquingan, Espanola and Abello. They were committed to the city jail after their
warrant of arrest was issued by Executive Judge Federico V. Noel. 15
In the afternoon of November 25, 1991, Chief Lubang brought Jimmy Paquingan
to the City Prosecutor's Office for the taking of his confession after he manifested
to the jail warden his intention to confess. City Prosecutor Ulysses V. Lagcao
asked Paquingan if he would avail the services of counsel and he answered in the
affirmative. When asked if he had a counsel of his own choice, he answered in the
negative. He was provided with the services of Atty. Leo Cahanap, the legal
counsel of the City Mayor's Office, and Atty. Susan Echavez, a representative of
the IBP Legal Aid, Iligan City Chapter. They were given time to confer with him. 16
Paquingan then confessed. However, when asked to sign the stenographic notes,
Paquingan refused saying he would wait for his mother first. 17 The sworn
statement of Paquingan (Exhibit "L") was transcribed on November 29, 1991, but
signed only by the two lawyers. According to the statement, Abello slashed the
neck of Jessette. Jessette fell down and was brought to a bushy area where she
was sexually abused. The first to have sexual intercourse with the victim was
Abello. Paquingan then followed him. Espanola had his turn next; and Gonzales
was the last. 18
Upon review of the records of the case, Fiscal Lagcao discovered that the victim
was sexually abused after she was murdered. Thus, he filed an Amended
Information on November 29, 1991, charging the three accused with the crime of
murder and indicting Joel Gonzales as the fourth accused. 19 A warrant for the
arrest of Gonzales was issued on the same date by Executive Judge Federico V.
Noel. 20
All the accused pleaded "not guilty" when arraigned. After presenting several
witnesses, the prosecution filed on June 17, 1992, a motion to discharge accused
Joel Gonzales as a state witness 21 in accordance with Section 9, Rule 119 of the
Rules of Court, alleging:
1. That accused Joel Gonzales has intimated to the undersigned City Prosecutor
that he is willing to testify for the prosecution as state witness;
2. That there is absolute necessity for the testimony of accused Joel Gonzales
considering that the evidence for the prosecution in this case is mainly
circumstantial;
3. That the testimony of accused Joel Gonzales can be substantially corroborated
in its material points;
4. That the said accused does not appear to be the most guilty; and
5. That he has not at any time been convicted of any offense involving moral
turpitude.
In traversing the motion, the defense asserted:
1. That there is no showing in the face of said motion that Joel Gonzales agrees to
be utilized as state witness;
2. That Joel Gonzales appears to be the most guilty as he alone among the
accused has executed a confession regarding the killing of Jessette Tarroza.
In an Order 22 dated June 26, 1992, the trial court discharged Gonzales as a state
witness.
In the course of the trial, Dr. Chito Rey Gomez, Medico-Legal Officer of the Iligan
City Health Office, testified that he conducted a post mortem examination on the
cadaver of Jessette Tarroza. He issued a Death Certificate (Exhibit "E") which
indicated that the cause of death was cardiorespiratory arrest due to
pneumohemathorax of the right chest. He also prepared a Necropsy Report
(Exhibit "F") after the examination. He found five (5) stab wounds at the back of
the victim and ten (10) stab wounds at the front, consisting of an incised wound
at the lateral border of the ala nasi, right; triangular stab wounds on the right side
of the neck and lower neck; an incised wound which traversed through the
trachea external jugular vein and three-fourths (3/4) of the esophagus; a C-
shaped stab wound that penetrated the thorax cavity and a stab wound above
the breast near the axilla. He testified further that the wounds inflicted must have
reached some vital organs of the body, possibly the lungs and blood vessels, and
that the wounds were probably caused by three (3) different instruments. He
likewise conducted a vaginal examination on the victim and noted that there was
a fresh complete hymenal laceration at 3 o'clock and fresh complete lacerations
at 7 o'clock and 8 o'clock, which could have been caused by a finger or a sex organ
inserted into the vagina. When asked if the victim was sexually molested, he
answered in the affirmative. 23
Another witness for the prosecution was Dr. Tomas P. Refe, Medico-Legal Officer
III of the National Bureau of Investigation, Central Visayas Regional Office. He
testified that he conducted an autopsy examination on the cadaver of Jessette
Tarroza and prepared Autopsy Report No. 91-27 (Exhibit "H"). He found abrasions
and thirteen (13) stab wounds on the front part of the chest, right side, and at the
back of the victim's chest. He also found an incised wound at the region of the
nose involving the upper portion of the right side of the mouth, an incised wound
on the front part of the neck cutting the trachea and partially the esophagus and
an incised wound at the anterior aspect right side of the neck. 24 He declared that
death was caused by the incised wounds and multiple stab wounds. The fatal
wounds were wound nos. 2, 3, 4, 5, 7, 9 and 10 (Exhibits "H", "H-1"). He likewise
examined the vagina of the victim and found the hymen moderately thick and
narrow with lacerations complete at 3 o'clock and 6 o'clock, deep at 7 o'clock, 9
o'clock, 10 o'clock and 11 o'clock, and the edges of the lacerations were sharp and
coaptable. He opined that there could have been a sexual intercourse committed
after the death of the victim considering that the lacerations did not show any
evidence of vital reaction which is commonly found in lacerations during lifetime.
25
The prosecution also presented Joel Gonzales who turned state witness. On the
basis of the demeanor of Gonzales and the manner he answered
the questions, the trial court gathered the impression that he was mentally
retarded. 26 Gonzales did not know how to read and write. 27 In any event, he
was able to testify that on the night of November 16, 1991, he went to Baybay,
Camague, Iligan City, to witness a dance. His companions were "Beroy", "Jimmy"
and "Cocoy". He identified Jeoffrey Abello as "Beroy", Christopher Espanola as
"Cocoy" or "Langga" and Jimmy Paquingan as "Jimmy".
At the dance, they drank one (1) bottle of Tanduay and smoked one (1) stick of
marijuana each. After the dance, he and his three (3) companions proceeded to
Bacayo. While on their way, they met a woman whom Beroy, Cocoy and Jimmy
followed. They brought the woman to a nipa hut and slept ("gidulgan") right
beside the woman.
When asked who killed the victim on the night of November 16, 1991, at Kilumco,
Camague, Iligan City, he answered "sila", referring to herein appellants. He further
testified that Beroy slashed the neck of Jessette Tarroza, Langga slashed her
breast, and Paquingan stabbed her at the back. The victim resisted by scratching
her attackers. 28 After she died, they carried her to a bushy area and all of them
sexually molested her. Beroy was first; Gonzales was second; Cocoy was third and
Jeoffrey was the last. Gonzales likewise identified the T-shirt worn by Jeoffrey
Abello that night as "That one Mercy." He declared that the brownish
discoloration on the T-shirt was caused by the blood of Jessette Tarroza. 29
On cross-examination, Gonzales said that Jessette Tarroza was not the one
brought to the nipa hut, but a woman from Tambacan who went home later on.
He then reiterated that after their encounter with the unnamed woman, they
went to the school, met and followed Jessette Tarroza to a dark place. They
encountered her on the road. He affirmed that it was Beroy who slashed the neck
of the victim while Cocoy, also known as Langga, was the one who slashed her
breasts. 30
For their defense, all the appellants took the witness stand. Jimmy Paquingan
narrated that at about 6 o'clock to 9 o'clock in the evening of November 16, 1991,
he watched "beta" (movie) in the house of Sima Ybanez at Kilumco, Camague.
Thereafter, he went to the house of his grandmother located at the same
barangay and slept there. He did not go out again and woke up at 6 o'clock in the
morning of November 17, 1991. His testimony was corroborated by Emma Mingo
who testified that at about 6 o'clock in the evening of November 16, 1991, she
viewed "beta" in her residence at Kilumco, Camague, with her daughter and
accused Christopher Espanola. At about 9:30 in the evening, the film ended and
Christopher left. At about the same time, Jimmy Paquingan, her nephew, came
and proceeded to his room downstairs. As she waited for her husband to come
home, she continuously stayed at the porch until 1:30 in the early morning of
November 17, 1991. In her long wait, she did not see Jimmy leave his room. 31
Christopher Espanola alleged that he was at home in the evening of November
16, 1991. He went out to view a "beta" in the house of Sima Ybanez. From there,
he proceeded to a disco. On his way, he passed by the house of Carmencita
Gatase who was then with Jeoffrey Abello. They went to the disco together. At
the disco, he joined the group of Lito Moraira and Titing Mingo and drank with
them. There was no occasion that he left the disco place until after 1 o'clock in
the early morning of November 17, 1991, when they went home. He woke up at 7
o'clock the following morning and proceeded to the house of his grandmother to
fetch water. 32
Jeoffrey Abello narrated that in the early evening of November 16, 1991, he was
at their house in Kilumco, Camague. He left their house to watch a "beta" in the
house of Sima Ybanez. However, he was invited by Carmencita Gatase to go to a
disco in Baybay, Camague. He acceded and went to Gatase's house. Christopher
Espanola joined them on their way to the disco. They arrived at the disco at about
10 o'clock in the evening. He saw there a group of persons including Joel Gonzales
and Titing Mingo. While he saw Christopher at about 11 o'clock that evening, he
did not see Jimmy Paquingan. At about 1 o'clock in the early morning of
November 17, 1991, he and Carmencita left ahead of Christopher. They then
proceeded to the house of Carmencita where they
slept. 33
In her testimony, Carmencita Gatase identified the three (3) accused as her
neighbors and long-time acquaintances. At about 8 o'clock in the evening of
November 16, 1991, Jeoffrey Abello went to her house. At 9:30 in the evening,
she asked Jeoffrey and Christopher Espanola, who was then downstairs, to go
with her to the disco. They reached the place at about 10 o'clock. Christopher
then asked permission to join the group of his Uncle Mingo. She and Jeoffrey
remained conversing and standing at the side of the disco. They left the dancing
area at 1:30 in the early morning of November 17, 1991, not noticing the
whereabouts of Christopher. On their way home, the two of them passed by the
basketball court which was only eighty (80) meters from their house. They did not
notice anything unusual. Jeoffrey then slept in her house. 34
After considering the opposing versions of the parties, the trial court gave
credence to the evidence presented by the prosecution, particularly the
testimony of state witness Joel Gonzales. It found that Jessette Tarroza was killed
by the accused Christopher Espanola, Jimmy Paquingan and Jeoffrey Abello. It
rejected the defense of the accused as unnatural, incredible and riddled with
inconsistencies. The three accused were convicted of the crime of Murder as the
killing was attended by the aggravating circumstance of treachery. They were
sentenced to suffer the penalty of reclusion perpetua and to pay a total amount of
One Hundred Seventy Five Thousand pesos (P175,000.00) as damages to the heirs
of the victim.
Hence, this appeal where accused-appellants contend:
1. THAT THE LOWER COURT SERIOUSLY ERRED IN CONVICTING ACCUSED-
APPELLANTS ON THE BASIS OF THE TESTIMONY OF JOEL GONZALES WHO WAS AN
ADDITIONAL ACCUSED IN THE AMENDED INFORMATION OF (sic) MURDER AND
WHOSE DISCHARGE WAS SOUGHT BY THE PROSECUTION AND GRANTED BY SAID
COURT, INSPITE AND DESPITE OPPOSITION BY THE DEFENSE.
2. THAT THE LOWER COURT ERRED IN NOT GIVING WEIGHT TO THE TESTIMONY
OF ACCUSED-APPELLANT PAQUINGAN THAT THE TAKING OF HIS AFFIDAVIT OF
CONFESSION BY CITY PROSECUTOR LAGCAO WAS NOT VOLUNTARY, AND IN FACT,
HE REFUSED TO SIGN THE SAME, CONTRARY TO THE STATEMENT OF SAID
PROSECUTOR THAT IT WAS VOLUNTARILY GIVEN BY THE SAID ACCUSED-
APPELLANT.
3. THAT THE LOWER COURT ERRED IN NOT CONSIDERING THE CONSTITUTIONAL
RIGHT OF ACCUSED-APPELLANT PAQUINGAN TO COUNSEL OF HIS OWN CHOICE,
PREMISED FROM (sic) THE TAKING OF THE AFFIDAVIT OF CONFESSION BY
PROSECUTOR LAGCAO, AGAINST HIS PENAL INTEREST. IN FACT HE TESTIFIED THAT
SAID LAWYERS, ATTYS. LEO CAHANAP, THE CITY LEGAL OFFICER OF ILIGAN, AND
SUSAN ECHAVEZ, WERE NOT THE COUNSELS OF HIS OWN CHOICE AND WERE
MERELY SUPPLIED BY THE PROSECUTOR.
4. THAT THE LOWER COURT ERRED IN UTILIZING THE GROUND OF ALIBI WHEN IT
SAID THAT THE ACCUSED-APPELLANTS ADVANCED IT AS A MATTER OF DEFENSE.
THE ACCUSED-APPELLANTS DID NOT CLING TO IT AS A MATTER OF DEFENSE. THEY
MERELY STATED WHAT WAS TRUE AND FACTUAL IN SO FAR AS THEY WERE
CONCERNED, AND IT WAS AN ERROR ON THE PART OF THE LOWER COURT TO
RULE ON THE ISSUE AS ALIBI, WHICH PRECISELY, IN MANY DECISIONS OF THE
HONORABLE SUPREME COURT, (sic) THAT ALIBI NEED NOT BE INQUIRED INTO
WHERE THE PROSECUTION'S EVIDENCE IS WEAK, AS IN THE CASE AT BAR.
5. THAT THE LOWER COURT ERRED IN GIVING WEIGHT TO THE TESTIMONY OF
JOEL GONZALES NOTWITHSTANDING THE IMPROPRIETIES OF HIS DISCHARGE AS
AN ACCUSED ON THE AMENDED INFORMATION OF (sic) MURDER, MORE SO, ON
THE MATERIAL INCONSISTENCIES OF HIS TESTIMONIES, AS BORNE OUT BY THE
TRANSCRIPT OF STENOGRAPHIC NOTES, AND MOST ESPECIALLY ON HIS MENTAL
INCAPACITY, WHERE HIS TESTIMONIES WERE RUMBLING. (sic)
6. THAT THE LOWER COURT, AT THE INSTANCE OF HON. MOSLEMEN
MACARAMBON ERRED IN METING A PENALTY OF RECLUSION PERPETUA AS
AGAINST ACCUSED-APPELLANTS, THE LATTER, (sic) BEING A DETAILED JUDGE IN
RTC, BRANCH V, ILIGAN CITY, WAS THE ONE WHO PREPARED AND RENDERED THE
DECISION, NOTWITHSTANDING THAT HE WAS NOT ABLE TO HEAR A SINGLE
HEARING AND HAD NOT OBSERVED THE DEMEANOR AND CHARACTER TRAITS OF
WITNESSES AND ACCUSED IN SAID CASE, AND INSPITE OF THE FACT THAT THE
JUDGE WHO TOTALLY HEARD THE CASE OF RTC, BRANCH V, ILIGAN CITY, (sic)
STILL CONNECTED WITH THE JUDICIARY, BUT MERELY DETAILED IN ONE OF THE
SALAS OF THE REGIONAL TRIAL COURT, DAVAO CITY, AND HENCE, NOT RETIRED
OR FOR (sic) OTHERWISE, AND APPROPRIATELY, THE RECORDS OF THE CASE
SHOULD HAVE BEEN SENT TO HIM, FOR HIM TO PREPARE THE DECISION AND TO
(sic) SEND THE SAME TO THE CLERK OF COURT OF RTC, BRANCH V, ILIGAN CITY,
FOR PROMULGATION, AND THUS WAS (sic) THE JUDGMENT OF CONVICTION BY
JUDGE MACARAMBON WAS NULL AND VOID.
We find the appeal unmeritorious.
We shall first discuss assigned errors numbers 1 and 5, in view of their inter-
relationship.
The appellants contend that the trial court violated the rule in discharging
Gonzales as a state witness. They claim that Gonzales was the only one who
executed an affidavit of confession, hence, he was the most guilty of the accused
and cannot be used as a state witness. To be discharged as state witness, Section
9, Rule 119 of the Revised Rules of Court requires that:
1. the discharge must be with the consent of the accused concerned;
2. his testimony must be absolutely necessary;
3. there is no other direct evidence available for the proper prosecution of the
offense committed;
4. his testimony can be substantially corroborated in its material points;
5. he does not appear to be the most guilty; and
6. he has not at any time been convicted of any offense involving moral turpitude.
We do not agree that Gonzales is the most guilty of the accused. From the
evidence, it appears that Gonzales is mentally retarded. He could not have been a
leader of the group for he was intellectually wanting. He did not inflict any of the
fatal wounds that led to the death of the victim. The trial court's assessment that
he is not the most guilty is well-grounded.
It is also established that there was no eyewitness to the crime or other direct
evidence. The testimony of Gonzales was absolutely necessary for the proper
prosecution of the case against appellants. This was the decision of the
prosecution itself when it moved for the discharge of Gonzales as a state witness.
Part of prosecutorial discretion is the determination of who should be used as a
state witness to bolster the successful prosecution of criminal offenses. Unless
done in violation of the Rules, this determination should be given great weight by
our courts.
The records will also show that while Gonzales rambled in some parts of his
testimony in view of his low intellect, nonetheless, his testimony was substantially
corroborated in its material points. His declaration that the victim resisted and
used her bare hands in scratching her attackers is confirmed by the findings of Dr.
Villarin in Exhibits "I", "J" and "K". His statement that Beroy slashed the neck of
the victim, Langga slashed her breast and Jimmy stabbed her at the back finds
support in the result of the autopsy of the victim's cadaver by Dr. Refe and Dr.
Gomez showing incised wounds and numerous stab wounds on the front and
back of the victim and incised wounds on her trachea and esophagus. His
assertion that he and the appellants sexually abused the victim after her death is
corroborated by the lacerations found in the private part of the victim as
determined by Dr. Gomez and Dr. Refe.
Lastly, there is no showing that Gonzales has been convicted of an offense
involving moral turpitude. Gonzales also gave his consent to be utilized as state
witness. 35 In sum, all the requirements of Section 9, Rule 119 of the Revised
Rules of Court were satisfied by the prosecution and the trial court did not err in
discharging Gonzales as state witness.
Appellants also assail the testimony of Gonzales on the ground of his alleged
mental incapacity. Section 20 of Rule 130 provides that "except as provided in the
next succeeding section, all persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses." Section 21, inter alia,
disqualifies as witnesses, "those whose mental condition, at the time of their
production for examination, is such that they are incapable of intelligently making
known their perception to others." A mental retardate is not therefore, per se,
disqualified from being a witness. As long as his senses can perceive facts and if
he can convey his perceptions in court, he can be a
witness. 36 In the case at bar, we find that Gonzales had a tendency to be
repetitious and at times had to be asked leading questions, but he was not
unintelligible to be beyond understanding. He was clear and unyielding in
identifying the appellants as the perpetrators of the crime. On the whole, his
account of the crime was coherent enough to shed light on the guilt or innocence
of the accused. To be sure, modern rules on evidence have downgraded mental
incapacity as a ground to disqualify a witness. 37 As observed by McCormick, the
remedy of excluding such a witness who may be the only person available who
knows the facts, seems inept and primitive. 38 Our rules follow the modern trend
of evidence.
Nor can the alleged inconsistencies between the sworn statement of Gonzales
and his testimony in court affect his credibility. Gonzales' testimony jibes on
material points. His inconsistencies on minor details of the crime are not
earmarks of falsehoods. On the contrary, they show that his testimony is honest
and unrehearsed. 39 Moreover, it is a well-settled rule that affidavits should not
be considered as the final and full repository of truth. Affidavits are usually taken
ex-parte. They are oftentimes incomplete and inaccurate. Ordinarily in a question-
and-answer form, they are usually and routinely prepared in police precincts by
police investigators. Not infrequently, the investigator propounds questions
merely to elicit a general picture of the subject matter under investigation. 40
Thus, the fact that the sworn statement of Gonzales (Exhibit "M") did not mention
a woman from Tambacan whom they met and brought to a nipa hut and slept
with on the night of November 16, 1991, is attributable to the fact that he was
not asked about women other than Jessette Tarroza. His line of questioning was
as follows:
xxx xxx xxx
FISCAL LAGCAO:
Q: After 11:00 o'clock that night, where did you and your companions go?
A: We went to a grassy place in Camague, Iligan City to wait for a certain Jessette
Tarroza.
Q: Whose idea was it that you will wait for Jessette Tarroza in that secluded place
at Camague, Iligan City?
A: Beroy, sir.
Q: And eventually, did you see this Jessette?
A: Yes, sir.
xxx xxx xxx
The presence of another woman came out only in response to questions
propounded to him during his cross-examination, viz:
xxx xxx xxx
ATTY. FLORES:
Q: Who was that woman killed?
A: Jessette Tarroza.
Q: The same woman brought to the nipa hut?
FISCAL LAGCAO:
I object, your Honor. . .
COURT:
Witness may answer, let him answer.
A: No.
COURT:
Proceed.
ATTY. FLORES:
Q: You want to tell the Honorable Court, Mr. Witness that there was another
woman in the nipa hut?
A: Yes.
Q: Who was the woman in the nipa hut?
FISCAL LAGCAO:
Immaterial . . .
COURT:
Witness may answer.
A: She is from Tambacan.
Q: Do you know her name.
A: No.
COURT:
In other words, for the Court's clarification, there were two (2) women during
that night that you found in the nipa hut that you mentioned?
A: Yes.
COURT:
The other woman was killed — Jessette Tarroza?
A: Yes.
COURT:
The other woman was not killed?
A: No.
Q: And this was not known to the authorities, the one that was not killed?
A: No.
Q: What was only mentioned to the authorities was the one that was killed?
A: Yes.
xxx xxx xxx 41
Indeed, there is no rule of evidence that would stop an affiant from elaborating
his prior sworn statement at the trial itself. 42 Testimonies given during trials are
more exact and elaborate for their accuracy is tested by the process of cross-
examination where the truth is distilled from half truths and the total lies.
The appellants also contend that Gonzales mixed-up his identification of
appellants. In his sworn statement, he mentioned "Beroy, Jimmy and Langga" as
his companions on the night of November 16, 1991, and as the ones who killed
Jessette Tarroza, while in his direct testimony, he named and pointed at Beroy,
Cocoy and Jimmy. A reading of his testimony, however, will reveal the fact that he
consistently referred to appellant Jeoffrey Abello as "Beroy", Jimmy Paquingan as
"Jimmy" and Christopher Espanola as "Cocoy" or "Langga", viz:
xxx xxx xxx
FISCAL LAGCAO:
Q: Mr. Witness, do you know a certain Beroy?
A: Yes.
Q: If this Beroy is in court, will you please identify him by pointing at him?
A: Yes, sir.
Q: Please point to him if he is around.
A: (Witness pointing to a person who when asked identified himself as Jeoffrey
Abello.)
Q: Do you know a certain Langga?
A: Yes.
Q: If he is around, will you please identify him by pointing at him?
A: Yes.
Q: Please point at him.
A: (Witness pointing to a person who identified himself as Christopher Espanola.)
Q: Do you know a certain Jimmy?
A: Yes.
Q: If he is around, will you please point to him?
A: (Witness pointing to a person who identified himself as Jimmy Paquingan).
xxx xxx xxx
FISCAL LAGCAO:
Q: Now, this Cocoy which you are referring to, is he in the courtroom at present?
A: Yes, he is around.
Q: Please identify him if he is around.
A: (Witness pointing to a person who when asked to identify himself answered
that he is Christopher Espanola.)
xxx xxx xxx 43
The foregoing testimony of Gonzales clearly shows that appellant Christopher
Espanola is "Cocoy" or "Langga".
We are not also prepared to disbelieve Gonzales simply because of his
inconsistent statement as to the correct sequence the victim was sexually abused
by the appellants. It matters little that Gonzales was tentative on who molested
the victim first, second, third and last. What matters is that all the appellants
molested the dead Tarroza.
The appellants also capitalize on the discrepancy in the identification of the print
on the T-shirt worn by appellant Jeoffrey Abello. When asked to recall the clothes
worn by Abello that fateful night, Gonzales stated "That one Mercy." In contrast,
prosecution witness Romeo Tarroza testified that the light green T-shirt found
near the shoes of the victim was printed with "Midwifery" and "ICC". This was
corroborated by the testimony of Georgie Tarroza that he recalled having seen
Abello wearing that night a green T-shirt printed with "Midwifery" at the back and
"ICC" on the front. We uphold the explanation of the trial court that the
discrepancy could be attributed to the fact that Gonzales does not know how to
read and write.
We now discuss assigned errors numbers 2 and 3. Appellants contend that the
trial court erred when it ruled that the sworn statement of Jimmy Paquingan was
voluntarily given by him though he refused to sign the same. Under the
Constitution and existing law and jurisprudence, a confession to be admissible
must satisfy the following requirements: 1) the confession must be voluntary; 2)
the confession must be made with the assistance of competent and independent
counsel; 3) the confession must be express; and 4) the confession must be in
writing. 44 In People v. Bandula, 45 we ruled that an extra-judicial confession
must be rejected where there is doubt as to its voluntariness. The fact that
appellant Paquingan did not sign his sworn statement casts serious doubt as to
the voluntariness of its execution. It is inadmissible evidence.
Additionally, the claim of appellant Paquingan that he was not assisted by a
counsel of his own choice when his affidavit of confession was taken is worth
noting. Paquingan's sworn statement was taken on November 25, 1991, at 3
o'clock in the afternoon. At that time, an information for rape with homicide had
already been filed against him and his co-appellants. Hence, when Paquingan
gave his confession, Paquingan was no longer under custodial investigation 46
since he was already charged in court. Nonetheless, the right to counsel applies in
certain pretrial proceedings that can be considered "critical stages" in the criminal
process. 47 Custodial interrogation before or after charges have been filed and
non-custodial interrogations after the accused has been formally charged are
considered to be critical pretrial stages. 48 The investigation by Fiscal Lagcao of
Paquingan after the latter has been formally charged with the crime of rape with
homicide, is a critical pretrial stage during which the right to counsel applies. The
right to counsel means right to competent and independent counsel preferably of
his own choice. 49 It is doubtful whether the councels given to Paquingan were of
his own choice. In her rebuttal testimony, Rosita L. Abapo, declared to wit:
xxx xxx xxx
ATTY. FLORES:
xxx xxx xxx
Q: In other words, you want to tell this Honorable Court as you stated earlier that
it was Fiscal Lagcao who called up for these lawyers? Do you want to tell the
Honorable Court that these lawyers were not the counsel of choice of Jimmy
Paquingan at that time? They were not the counsel of choice of Mr. Paquingan at
that time?
COURT:
Mr. Counsel, this witness does not know what is a counsel of choice. Make it
clearer. It was not Mr. Paquingan who asked that Atty. Dalisay, Atty. Echavez and
Atty. Cahanap be called to represent him?
WITNESS:
A: Yes, sir.
xxx xxx xxx 50
Moreover, we hold that Atty. Cahanap cannot qualify as an independent counsel,
he being a Legal Officer of Iligan City. An independent counsel cannot be
burdened by any task antithetical to the interest of an accused. As a legal officer
of the city, Atty. Cahanap provides legal assistance and support to the mayor and
the city in carrying out the delivery of basic services to the people, including the
maintenance of peace and order. His office is akin to a prosecutor who
undoubtedly cannot represent the accused during custodial investigation due to
conflict of interest. 51 Assigned errors numbered 2 and 3 are therefore ruled in
favor of the appellants.
As to the fourth assignment of error, we subscribe to the finding of the trial court
that the evidence of the accused-appellants proffers the defense of alibi. Time
and again, we have ruled that both denial and alibi are weak defenses which
cannot prevail where there is positive identification of the accused by the
prosecution witnesses. 52 For alibi to prosper, it is not enough to prove that the
accused is somewhere else when the crime was committed but he must likewise
demonstrate that he could not have been physically present at the place of the
crime or in its immediate vicinity at the time of its commission. 53 In the case at
bar, it was not physically impossible for the appellants to be at the crime scene
considering the proximity of the place where they claimed they were and the spot
where Jessette Tarroza was brutally murdered.
We also reject appellants' claim that the decision of the trial court is void on the
ground that the judge who penned the decision, Judge Moslemen T.
Macarambon, was not the one who heard and tried the case. We have ruled in
People v. Rayray, 241 SCRA 1 [1995], that the fact that the judge who heard the
evidence is not himself the one who prepared, signed and promulgated the
decision constitutes no compelling reason to jettison his findings and conclusions,
and does not per se render his decision void. While it is true that the trial judge
who conducted the hearing would be in a better position to ascertain the truth or
falsity of the testimonies of the witnesses, it does not necessarily follow that a
judge who was not present during the trial cannot render a valid and just
decision. 54 For a judge who was not present during the trial can rely on the
transcript of stenographic notes taken during the trial as basis of his decision. 55
Such reliance does not violate substantive and procedural due process of law.
We now review the award of damages to the heirs of Jessette Tarroza. When
death occurs as a result of a crime, the heirs of the deceased are entitled to the
amount of P50,000.00 as indemnity for the death of the victim without need of
any evidence or proof of damages. 56 Accordingly, we award P50,000.00 to the
heirs of Jessette Tarroza for her death. As for actual damages, we find the award
of P50,000.00 proper considering that Romeo Tarroza spent more or less the
same amount for the interment and burial of his deceased daughter. 57
We have also awarded indemnity for the loss of earning capacity of the deceased
— an amount to be fixed by the court considering the victim's actual income at
the time of death and his probable life expectancy. 58 The trial court awarded
P50,000.00 as compensatory damages. We find the same inadequate considering
that Jessette, who was twenty-four (24) years old at the time of her death, was
employed as a medical technologist earning P99.00 per day. 59 To compute the
award for Jessette's loss of earning capacity, her annual income should be fixed at
P39,146.25. 60 Allowing for reasonable and necessary expenses in the amount of
P15,600.00 per annum, her net income per annum would amount to P23,546.25.
Hence, using the formula repeatedly adopted by this court: (2/3 x [80 - age of
victim at time of death]) x a reasonable portion of the net income which would
have been received by the heirs for support, 61 we fix the award for loss of
earning capacity of deceased Jessette Tarroza at P659,294.50.
We also find the award of P50,000.00 as moral damages proper considering the
mental anguish suffered by the parents of the victim on account of her brutal
murder. We likewise uphold the award of P25,000.00 as exemplary damages
considering that the killing of Jessette Tarroza was attended by treachery. She
was also raped while already lifeless. All these are shocking to conscience. The
imposition of exemplary damages against the appellants will hopefully deter
others from perpetrating the same evil deed.
IN VIEW WHEREOF, we AFFIRM WITH MODIFICATION the assailed Decision dated
November 21, 1994, of the Regional Trial Court (Branch 5) of Lanao del Norte,
Iligan City, in Criminal Case No. 3773. Accordingly, the monetary awards granted
in favor of the heirs of Jessette Tarroza are modified as follows:
a) Fifty Thousand (P50,000.00) pesos as indemnity for her death;
b) Fifty Thousand (P50,000.00) pesos as actual damages;
c) Six Hundred Fifty Nine Thousand Two Hundred Ninety Four pesos and Fifty
centavos (P659,294.50) for loss of earning capacity of said deceased;
d) Fifty Thousand (P50,000.00) pesos as moral damages; and
e) Twenty Five Thousand pesos (P25,000.00) as exemplary damages.
Costs against appellants.
SO ORDERED.