April 2010 - Philippine Supreme Court Resolutions
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[G.R. No. 176389 : April 20, 2010] ANTONIO LEJANO, PETITIONER VERSUS PEOPLE OF THE PHILIPPINES, RESPONDENT.
[G.R. NO. 176864]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE VERSUS HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA AND GERARDO BIONG, ACCUSED-APPELLANTS; ARTEMIO VENTURA, JOEY FILART AND JOHN DOES (AT-LARGE), ACCUSED. :
EN BANC
[G.R. No. 176389 : April 20, 2010]
ANTONIO LEJANO, PETITIONER VERSUS PEOPLE OF THE PHILIPPINES, RESPONDENT.
[G.R. NO. 176864]
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE VERSUS HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA AND GERARDO BIONG, ACCUSED-APPELLANTS; ARTEMIO VENTURA, JOEY FILART AND JOHN DOES (AT-LARGE), ACCUSED.
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of the Court En Banc dated April 20, 2010
G.R. No. 176389 - Antonio Lejano, petitioner versus People of the Philippines, respondent.
G.R. No. 176864 - People of the Philippines, plaintiff-appellee versus Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong, accused-appellants; Artemio Ventura, Joey Filart and John Does (At-Large), accused.
On appeal is the Decision[1] dated December 15, 2005 of the Court of (CA) Appeals in CA-G.R. CR H.C. No. 00336, the dispositive portion of which reads:
Appellants were charged with rape with homicide on August 10, 1995 before the Regional Trial Court of Para�aque City, with Webb, Lejano, Gatchalian, Fernandez, Estrada, Ventura, Rodriguez and Filart as co-principals, and Biong as accessory for the rape-slay of Carmela Vizconde and the killing of her mother Estrellita Vizconde and sister Jennifer Vizconde inside their house at No. 80 Vinzons St., Pitong Daan Subdivision, BF Homes, Para�aque City between midnight of June 29, 1991 to early morning of June 30, 1991. Upon their arraignment, Fernandez, Estrada and Rodriguez pleaded not guilty. On the other hand, Webb, Lejano, Gatchalian and Biong refused to plead and thus, the trial court entered for each of them a plea of not guilty.
Two (2) sets of suspects, allegedly members of an akyat-bahay gang and former contractor/workers of the Vizcondes, were presented by the police in October 1991 and June 1993. But they were subsequently released due to insufficient evidence. It was not until the emergence in May 1995 of Jessica Alfaro, a confessed former drug dependent, who claimed to have been with the group of Webb (appellants) on the date of the killings that the
prosecution was able to build up a case, which led to the arrest and trial of the appellants. The media extensively covered the preliminary investigation and trial proceedings, the case of the "Vizconde Massacre" having become sensational with the involvement of sons of rich and influential families.
In convicting the appellants, the trial court gave full faith and credence to the testimony of the prosecution's star witness, Alfaro, who testified that she together with Estrada joined Webb's group when he met Ventura, from whom she ordered shabu, at the parking lot of the Ayala Alabang Commercial Center early evening of June 29, 1991. After having a shabu session (the first of their three [3] sessions on the same night), their three (3)-vehicle convoy entered Pitong Daan Subdivision three (3) times as the first two (2) attempts of Webb to see Carmela were unsuccessful. It was Webb, apparently angered by Alfaro's report that she saw Carmela dropping off her car a man at a nearby road, who plotted the gang-rape of Carmela, in which Lejano, Gatchalian, Ventura, Fernandez, Estrada, Filart and Rodriguez concurred. Returning to Pitong Daan Subdivision for the third time at close to midnight, Alfaro together with Webb, Lejano and Ventura, finally were able to enter the Vizconde house as the gate was intentionally left open by Carmela, and passed through the opened grill door of the dirty kitchen where they were met by Carmela. The rest of the group waited outside and acted as lookouts. Alfaro left the house to smoke but later went back inside and it was then she was able to see Webb in the act of raping Carmela while her mother and sister lay bloodied on the bed. Thereafter, Alfaro, Webb, Ventura and Lejano rushed out of the house and they drove away. Inside a fenced house at the BF Executive Homes where the group retreated, Webb and Ventura started blaming each other and it was then that Alfaro learned how the Vizconde women were killed. Webb summoned a policeman, appellant Biong, who was instructed to "clean the Vizconde residence". After Webb gave his parting words to them, Alfaro and Estrada left the place. For a long period, Alfaro kept to herself what she had witnessed for fear of her life and that of her daughter, especially after she had by chance saw Webb's group again in a discotheque on two (2)occasions wherein she was threatened and told to shut up. Her spiritual awakening sometime in 1994 and drug rehabilitation gave her the courage to come out in the open and reveal what she knows about the grisly murders of the Vizconde women.
Alfaro's testimony was corroborated by security guards Normal E. White, Jr. and Justo Cabanacan who were on duty at the entrance gate of the Pitong Daan Subdivision, Mila Gaviola who worked as a laundrywoman for the Webb family, and Lolita Birrer who was Biong's former live-in partner. White, Jr. testified that he initially flagged down the convoy of Webb and his friends on the night of June 29, 1991 but nevertheless allowed them to
enter because Gatchalian, son of a homeowner, accompanied the group. He had seen them earlier standing at Vinzons St. near the Gatchalian residence. Cabanacan, on the other hand, testified that he saw Webb between the last week of May and first week of June 1991 and came to know Webb when the latter tried to enter the subdivision without the local car sticker. His security guard, Edgar Mendez, also reported to him that on the night of June 29, 1991, Webb's group repeatedly entered and exited the subdivision. Gaviola testified that in the morning of June 30, 1991, she had washed Webb's shirt and found fresh blood stains on it. She also saw Webb inside his room pacing the floor and looking worried, left the house at around 1:00 p.m. and was back at the house by 4:00 p.m. She further testified seeing Senator Webb reading a newspaper at the sala of their house that same morning.
Appellants' common defense was alibi, particularly Webb who presented voluminous evidence consisting of his passport and travel documents, US-INS certifications, video clips, photographs, and corroborative testimonies of more than eighty witnesses, in support of his claim that he departed for U.S.A. on March 9, 1991 (his parents also went there to visit him at the time the Vizconde killings took place) and came back to the Philippines only on October 26, 1992. Gatchalian did not testify but presented nine (9) witnesses in support of his claims that (1) he and Lejano spent the night of June 29, 1991 until early morning of June 30, 1991 watching video tapes at the house of Carlos Syap at Ayala Alabang Village; and (2)the NBI and DOJ actually talked him into turning state witness, which offer he refused. On his part, Rodriguez presented two (2) witnesses to show that he was at home at the time of the incident and he was simply mistakenly identified by Alfaro. Biong denied that he was a driver-bodyguard of the Webbs and justified his acts during the investigation he conducted at the Vizconde residence in the morning of June 30, 1991, when he supposedly destroyed physical evidence, including bloodied bedsheets, carpets, clothing and other items at the crime scene. He denied the claims of Birrer, who testified that Biong indeed was fetched by a taxi and proceeded to BF Homes after receiving a telephone call between 1:00 and 2:00 a.m. on June 30, 1991, mangled the initial investigation at the Vizconde residence at around 8:30 that same morning, took items such as jewelries belonging to the Vizcondes which he later pawned, and received money from someone at a certain house she later recognized from a newsflash on television as the residence of former Senator Freddie Webb. All the appellants, except Estrada, denied having met Alfaro at any time.
However, the trial court ruled that the appellants failed to establish their defense of alibi, which cannot prevail over the positive identification of appellants by Alfaro as the persons who conspired in the rape-slay of Carmela and fatal stabbing of Estrellita and Jennifer. It declared that Alfaro gave a clear, positive and convincing testimony which was sufficiently corroborated on its material points by the testimonies of other witnesses and confirmed by the physical evidence on record.
The case was brought to this Court on appeal but conformably with our ruling in the case of People v. Mateo promulgated on July 7, 2004 (G.R. Nos. 147678-87), it was transferred to the CA for intermediate review.[3]
By Decision dated December 15, 2005, the CA sustained the trial court's findings and affirmed the conviction of appellants. Appellants filed motions for reconsideration. The CA's Special Division of Five, voting 3-2, affirmed the December 15, 2005 Decision in its Resolution dated January 26, 2007.[4] The majority reiterated that it has fully explained in its Decision why the US-INS Certifications submitted by appellant Webb deserve little weight. It stressed that it is a case of positive identification versus alibi founded on documentary evidence. On the basis of the rule that alibi is accepted only upon the clearest proof that the accused was not and could not have been at the crime scene when it was committed, the CA in resolving the appeal considered the weight of documentary evidence in light of testimonial evidence - an eyewitness account that the accused was the principal malefactor. As to the issue of apparent inconsistencies between the two (2) affidavits executed by Alfaro, the CA said this is a settled matter, citing the Joint Decision in CA-G.R. SP No. 42285 and CA-G.R. SP No. 42673 entitled "Rodriguez v. Tolentino" and "Webb, et al. v. Tolentino, et al" respectively, which had long become final.
Aside from presenting documentary and testimonial evidence during the trial, it may be recalled that the defense had requested to avail of DNA testing. Records showed that on October 6, 1997, Webb through counsel filed a "Motion to Direct NBI to Submit Semen Specimen to DNA Analysis." Attached to the motion is the letter dated April 23, 1997 from the NBI Medico-Legal Division signed by Dr. Renato C. Bautista, in reply to the query of Webb's counsel stating that "the specimen gathered is still existing and in the custody of the Bureau, preserved on slides ...taken from the private part of Carmela Vizconde as part of the procedure when the autopsy was conducted."[5] Webb thus argued:
The prosecution opposed the motion on the following grounds: (1) The presence of spermatozoa in the body of the deceased Carmela Vizconde was not the sole basis of the prosecution in concluding that the crime of rape was committed; nor was the said specimen attributed solely to the accused-movant Webb so as to justify the undertaking of a selective DNA examination; (2) Contrary to accused-movant Webb's contention, DNA testing has not been accorded official recognition by Philippine courts; and (3) Granting arguendo that DNA testing has been officially recognized by Philippine courts, accused-movant Webb has not shown that the semen specimen recovered from the body of Carmela and presently in the possession of the NBI was properly extracted and duly preserved for purposes of DNA examination.[7]
In his Reply, Webb asserted that there is no point in including the other accused who allegedly "had access" to Carmela; the DNA examination of the spermatozoa evidence obtained from her body can prove that Webb was not the source of the semen. The prosecution's concerns on the proper extraction and preservation of the semen for purposes of DNA testing and correct handling of the evidence can only be addressed at the early stages of the DNA testing itself. It is also recognized in the US that DNA analysis can handle evidence even if decades old.[8]
The prosecution filed a Rejoinder in which it argued that contrary to Webb's claim, its statement that "three (3) of the eight (8) accused had access to Carmela during the commission of the crime" is not a mere speculation. Alfaro's testimony established that she together with Webb, Lejano and Ventura entered the Vizconde house while the rest served as lookouts. After seeing Webb pumping Carmela inside the bedroom, there was an appreciable lapse of time - judging from what Alfaro did thereafter -before Webb, Lejano and Ventura got out of the Vizconde residence. This is significant in relation to the earlier expression of assent by Lejano ("Ako ang susunod") to Webb's statement that "Pipilahan natin si Carmela, pero ako ang mauuna." The prosecution further disagreed with Webb in brushing aside the prosecution argument on the need to establish, among others, a rigid chain of custody of the semen specimen prior to any DNA testing. There is no proof that the science of DNA testing has been standardized in accordance with the criterion laid down by the US Supreme Court in Daubert v. Merrel Dow Pharmaceuticals (509 U.S. 579) so as to determine with certainty and a high degree of accuracy the viability of a specimen for DNA testing. There is also scientific evidence that improper handling of specimen during transport or storage may lead to incorrect results. Lastly, there was no need to undertake any DNA examination of the semen specimen considering that the identification of Webb as one (1) of the accused in this case was never an issue for the prosecution - it being a fact that he was positively identified by Alfaro in open court.[9]
In his Sur-Reply, Webb addressed the allusion of the prosecution to a possible "contamination" by pointing out the documentary evidence and testimony of Dr. Prospero Cabanayan which indubitably showed that the semen specimen from day one (1) has been with the custody of the NBI and up to this date. The prosecution's allegation of possible tampering by outside forces is obviously unfounded and malicious, and it is "jumping the gun" when it argued that the DNA testing should be disallowed since there is no proof of the chain of custody, method of extraction and preservation of the collected semen evidence. Such documentation of the chain of custody and determination of the appropriateness of the specimen for DNA typing is part of the DNA evaluation.[10]
On November 25, 1997, the trial court denied the motion for DNA testing of the semen specimen. The trial court, citing latest jurisprudence at that time (Raymond Pe Lim v. Court of Appeals, et al, G.R. No. 112229, March 18, 1997), stated that this Court then declared that DNA being a relatively new science, has not as yet been accorded official recognition by our courts. It also considered the more than six (6) years that have already elapsed since the commission of the crime in June 1991; there is thus no assurance that the semen specimen has not been tampered with or contaminated. Neither has Webb convincingly shown that the proper procedure for the extraction and preservation of the semen specimen has been rigidly and duly complied with. The trial court was of the belief that the proposed DNA examination will not serve the ends of justice but instead will only lead to complication and confusion of the issues of the case.[11]
In his Dissenting Opinion, Justice Lucenito N. Tagle assailed the trial court's denial of the motion for DNA analysis of the semen specimen as unjust, as it should not have ruled on the possibility of tampering of evidence based on mere conjecture and in total disregard of the presumption of regularity in the performance of official duty. Citing the ruling in People v. Yatar,[12] it was stressed that DNA print or identification technology has been advanced as a uniquely effective means to link a suspect, where a biological evidence has been left, and is a fertile source of both inculpatory and exculpatory evidence. Justice Tagle opined that a DNA examination could have determined whether Webb and/or Lejano did the bestial act or not and an independent and unbiased medical examiner could have ascertained whether the specimen semen was compromised or not; it would also have put an end to the question of whether Webb was really in the country or not.[13]
Appellant Gatchalian in his Supplemental Brief dated July 27, 2007, raised the denial of the motion for DNA analysis as among the reversible errors committed by the trial court, quoting from Justice Tagle's Dissenting Opinion.
After serious deliberation, and in view of the promulgation of the Rule on DNA Evidence on October 2, 2007,[14] this Court resolves to order a DNA testing on the semen specimen as previously requested by Webb before the trial court, pursuant to Sec. 4 thereof:
In Estate of Rogelio G. Ong v. Diaz,[15] a case involving the issue of paternity of a child whose father died during the pendency of the action for compulsory recognition with prayer for support pendente lite, we affirmed the decision of the CA remanding the case to the trial court for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor, upon consultation and coordination with laboratories and experts on the field of DNA analysis. We thus held -
To be sure, the present case does not involve paternity issue but the alleged commission of the rape by Webb, who believes that a DNA examination yielding negative result, that is, that the DNA profile which can be generated from the semen specimen taken from the deceased Carmela Vizconde did not match his own DNA, would not only negate the finding that he had raped said victim, but also prove his absence at the crime scene, consistent with his defense of alibi that he was at the time in the US. Nonetheless, it is now clear that the present Rule on DNA Evidence allows the conduct of DNA analysis notwithstanding that the biological sample is to be taken, or as in this case, had been obtained from a person who had already died (Carmela had just been dead 12 hours when the autopsy was conducted). While technically, the biological sample collected from the cadaver of the deceased victim did not really belong to the latter, the objective is to generate a DNA profile that will identify the source of the semen and thus aid the court in determining the identity of the assailant. Despite the lapse of time, the semen specimen might still be found viable for DNA profiling. On the other hand, the prosecution's objection based on concerns regarding possible contamination and proper preservation of the evidence in the custody of the NBI, would still have to be addressed as the Rule on DNA Evidence requires a showing, among others, not only of the existence of the biological sample, but also the existence of other factors which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.
The ordinary procedure under the Rule is to remand this case to the trial court for reception of DNA evidence. However, in view of the circumstances of this case and to prevent any further delay in the resolution of the issue of identity of the source of the human spermatozoa extracted from the deceased Carmela Vizconde, this Court, hereby resolves to immediately direct the parties to avail of the services of the University of the Philippines Natural Science Research Institute, in coordination with the National Bureau of Investigation. All expenses for such services shall be shouldered by Webb. They are further enjoined to observe the requirements of confidentiality and preservation of the DNA evidence in accordance with Sections 11 and 12 of the Rule.
Upon completion of the DNA testing procedure and submission of the findings of the UP-NSRI forensic experts, the latter are hereby directed to immediately transmit to this Court their official and final report, which shall also contain a concise discussion of the methodology used and other relevant data to facilitate this Court's assessment of the probative value of DNA evidence and reliability of DNA testing methodology in accordance with Sections 7 and 8 of the Rule.
It is well to remind the parties that a flawed procedure in the conduct of DNA analysis of the semen specimen on the slides used during the trial for microscopic examination of human spermatozoa may yield an inconclusive result and thus will not entitle the accused to an acquittal.[16] More important, allowing Webb to utilize the latest available DNA technology does not automatically guarantee an exculpatory DNA evidence, but simply to afford appellant Webb the fullest extent of his constitutional right to due process.
WHEREFORE, in the higher interest of justice, the request of appellant Webb to submit for DNA analysis the semen specimen taken from the cadaver of Carmela Vizconde under the custody of the National Bureau of Investigation is hereby GRANTED. The NBI is ORDERED to ASSIST the parties in facilitating the submission of said specimen to the UP-Natural Science and Research Institute, Diliman, Quezon City and they (NBI and UP-NSRI) are further ORDERED to REPORT to this Court within fifteen (15) days from notice hereof regarding compliance with and implementation of this Resolution.
* JJ. Carpio and Velasco, Jr., no part.
G.R. No. 176389 - Antonio Lejano, petitioner versus People of the Philippines, respondent.
G.R. No. 176864 - People of the Philippines, plaintiff-appellee versus Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong, accused-appellants; Artemio Ventura, Joey Filart and John Does (At-Large), accused.
On appeal is the Decision[1] dated December 15, 2005 of the Court of (CA) Appeals in CA-G.R. CR H.C. No. 00336, the dispositive portion of which reads:
WHEREFORE, premises considered, the Decision of the Regional Trial Court, Branch 274 of Para�aque City in Criminal Case No. 95-404, finding accused-appellants Hubert "Jeffrey" Webb y Pagaspas, Antonio "Tony Boy" Lejano, Michael Gatchalian y Adviento, Hospicio "Pyke" Fernandez, Peter Estrada, Miguel "Ging" Rodriguez GUILTY BEYOND REASONABLE DOUBT as principals, and Gerardo Biong as accessory, of the crime of RAPE with HOMICIDE, is AFFIRMED with MODIFICATION, as indicated:1). WE AFFIRM the sentence of accused-appellants Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez to suffer the penalty of reclusion perpetua and its corresponding accessory penalties under Article 41 of the Revised Penal Code;
2). We MODIFY the penalty of Gerardo Biong who is an accessory to the crime. Accused-appellant Biong is sentenced to an indeterminate prison term of six (6) years of prision correctional, as minimum, to twelve (12) years of prision mayor, as maximum, and absolute perpetual disqualification under Article 58 of the Revised Penal Code; and
3). We MODIFY the civil indemnity. Accused-appellants Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez are ORDERED to pay jointly and severally the surviving heir of the victims, Mr. Lauro Visconde, the amounts of P200,000.00 as civil indemnity, P762,450.00 as actual damages, P2,000,000.00 as moral damages and P97,404.55 as attorney's fees, with the corresponding subsidiary liability against accused-appellant Biong pursuant to Article 110, paragraph 2 of the Revised Penal Code.
SO ORDERED.[2]
Appellants were charged with rape with homicide on August 10, 1995 before the Regional Trial Court of Para�aque City, with Webb, Lejano, Gatchalian, Fernandez, Estrada, Ventura, Rodriguez and Filart as co-principals, and Biong as accessory for the rape-slay of Carmela Vizconde and the killing of her mother Estrellita Vizconde and sister Jennifer Vizconde inside their house at No. 80 Vinzons St., Pitong Daan Subdivision, BF Homes, Para�aque City between midnight of June 29, 1991 to early morning of June 30, 1991. Upon their arraignment, Fernandez, Estrada and Rodriguez pleaded not guilty. On the other hand, Webb, Lejano, Gatchalian and Biong refused to plead and thus, the trial court entered for each of them a plea of not guilty.
Two (2) sets of suspects, allegedly members of an akyat-bahay gang and former contractor/workers of the Vizcondes, were presented by the police in October 1991 and June 1993. But they were subsequently released due to insufficient evidence. It was not until the emergence in May 1995 of Jessica Alfaro, a confessed former drug dependent, who claimed to have been with the group of Webb (appellants) on the date of the killings that the
prosecution was able to build up a case, which led to the arrest and trial of the appellants. The media extensively covered the preliminary investigation and trial proceedings, the case of the "Vizconde Massacre" having become sensational with the involvement of sons of rich and influential families.
In convicting the appellants, the trial court gave full faith and credence to the testimony of the prosecution's star witness, Alfaro, who testified that she together with Estrada joined Webb's group when he met Ventura, from whom she ordered shabu, at the parking lot of the Ayala Alabang Commercial Center early evening of June 29, 1991. After having a shabu session (the first of their three [3] sessions on the same night), their three (3)-vehicle convoy entered Pitong Daan Subdivision three (3) times as the first two (2) attempts of Webb to see Carmela were unsuccessful. It was Webb, apparently angered by Alfaro's report that she saw Carmela dropping off her car a man at a nearby road, who plotted the gang-rape of Carmela, in which Lejano, Gatchalian, Ventura, Fernandez, Estrada, Filart and Rodriguez concurred. Returning to Pitong Daan Subdivision for the third time at close to midnight, Alfaro together with Webb, Lejano and Ventura, finally were able to enter the Vizconde house as the gate was intentionally left open by Carmela, and passed through the opened grill door of the dirty kitchen where they were met by Carmela. The rest of the group waited outside and acted as lookouts. Alfaro left the house to smoke but later went back inside and it was then she was able to see Webb in the act of raping Carmela while her mother and sister lay bloodied on the bed. Thereafter, Alfaro, Webb, Ventura and Lejano rushed out of the house and they drove away. Inside a fenced house at the BF Executive Homes where the group retreated, Webb and Ventura started blaming each other and it was then that Alfaro learned how the Vizconde women were killed. Webb summoned a policeman, appellant Biong, who was instructed to "clean the Vizconde residence". After Webb gave his parting words to them, Alfaro and Estrada left the place. For a long period, Alfaro kept to herself what she had witnessed for fear of her life and that of her daughter, especially after she had by chance saw Webb's group again in a discotheque on two (2)occasions wherein she was threatened and told to shut up. Her spiritual awakening sometime in 1994 and drug rehabilitation gave her the courage to come out in the open and reveal what she knows about the grisly murders of the Vizconde women.
Alfaro's testimony was corroborated by security guards Normal E. White, Jr. and Justo Cabanacan who were on duty at the entrance gate of the Pitong Daan Subdivision, Mila Gaviola who worked as a laundrywoman for the Webb family, and Lolita Birrer who was Biong's former live-in partner. White, Jr. testified that he initially flagged down the convoy of Webb and his friends on the night of June 29, 1991 but nevertheless allowed them to
enter because Gatchalian, son of a homeowner, accompanied the group. He had seen them earlier standing at Vinzons St. near the Gatchalian residence. Cabanacan, on the other hand, testified that he saw Webb between the last week of May and first week of June 1991 and came to know Webb when the latter tried to enter the subdivision without the local car sticker. His security guard, Edgar Mendez, also reported to him that on the night of June 29, 1991, Webb's group repeatedly entered and exited the subdivision. Gaviola testified that in the morning of June 30, 1991, she had washed Webb's shirt and found fresh blood stains on it. She also saw Webb inside his room pacing the floor and looking worried, left the house at around 1:00 p.m. and was back at the house by 4:00 p.m. She further testified seeing Senator Webb reading a newspaper at the sala of their house that same morning.
Appellants' common defense was alibi, particularly Webb who presented voluminous evidence consisting of his passport and travel documents, US-INS certifications, video clips, photographs, and corroborative testimonies of more than eighty witnesses, in support of his claim that he departed for U.S.A. on March 9, 1991 (his parents also went there to visit him at the time the Vizconde killings took place) and came back to the Philippines only on October 26, 1992. Gatchalian did not testify but presented nine (9) witnesses in support of his claims that (1) he and Lejano spent the night of June 29, 1991 until early morning of June 30, 1991 watching video tapes at the house of Carlos Syap at Ayala Alabang Village; and (2)the NBI and DOJ actually talked him into turning state witness, which offer he refused. On his part, Rodriguez presented two (2) witnesses to show that he was at home at the time of the incident and he was simply mistakenly identified by Alfaro. Biong denied that he was a driver-bodyguard of the Webbs and justified his acts during the investigation he conducted at the Vizconde residence in the morning of June 30, 1991, when he supposedly destroyed physical evidence, including bloodied bedsheets, carpets, clothing and other items at the crime scene. He denied the claims of Birrer, who testified that Biong indeed was fetched by a taxi and proceeded to BF Homes after receiving a telephone call between 1:00 and 2:00 a.m. on June 30, 1991, mangled the initial investigation at the Vizconde residence at around 8:30 that same morning, took items such as jewelries belonging to the Vizcondes which he later pawned, and received money from someone at a certain house she later recognized from a newsflash on television as the residence of former Senator Freddie Webb. All the appellants, except Estrada, denied having met Alfaro at any time.
However, the trial court ruled that the appellants failed to establish their defense of alibi, which cannot prevail over the positive identification of appellants by Alfaro as the persons who conspired in the rape-slay of Carmela and fatal stabbing of Estrellita and Jennifer. It declared that Alfaro gave a clear, positive and convincing testimony which was sufficiently corroborated on its material points by the testimonies of other witnesses and confirmed by the physical evidence on record.
The case was brought to this Court on appeal but conformably with our ruling in the case of People v. Mateo promulgated on July 7, 2004 (G.R. Nos. 147678-87), it was transferred to the CA for intermediate review.[3]
By Decision dated December 15, 2005, the CA sustained the trial court's findings and affirmed the conviction of appellants. Appellants filed motions for reconsideration. The CA's Special Division of Five, voting 3-2, affirmed the December 15, 2005 Decision in its Resolution dated January 26, 2007.[4] The majority reiterated that it has fully explained in its Decision why the US-INS Certifications submitted by appellant Webb deserve little weight. It stressed that it is a case of positive identification versus alibi founded on documentary evidence. On the basis of the rule that alibi is accepted only upon the clearest proof that the accused was not and could not have been at the crime scene when it was committed, the CA in resolving the appeal considered the weight of documentary evidence in light of testimonial evidence - an eyewitness account that the accused was the principal malefactor. As to the issue of apparent inconsistencies between the two (2) affidavits executed by Alfaro, the CA said this is a settled matter, citing the Joint Decision in CA-G.R. SP No. 42285 and CA-G.R. SP No. 42673 entitled "Rodriguez v. Tolentino" and "Webb, et al. v. Tolentino, et al" respectively, which had long become final.
Aside from presenting documentary and testimonial evidence during the trial, it may be recalled that the defense had requested to avail of DNA testing. Records showed that on October 6, 1997, Webb through counsel filed a "Motion to Direct NBI to Submit Semen Specimen to DNA Analysis." Attached to the motion is the letter dated April 23, 1997 from the NBI Medico-Legal Division signed by Dr. Renato C. Bautista, in reply to the query of Webb's counsel stating that "the specimen gathered is still existing and in the custody of the Bureau, preserved on slides ...taken from the private part of Carmela Vizconde as part of the procedure when the autopsy was conducted."[5] Webb thus argued:
4. If we are to follow the Prosecution's theory that the semen extracted from Carmela's body came from her assailant, then the specimen semen should be subjected to a DNA analysis to establish the identity of its source. If we are also to follow the Prosecution's theory that the semen found in Carmela's body is proof of her rape by the accused, the identity of the accused Webb should be imprinted on the DNA pattern of the semen evidence. In other words, if the Prosecution is correct in its accusations that Hubert Webb raped Carmela Vizconde, the spermatozoa should be shown to belong to accused Hubert Webb. But alibi is and has been the defense of accused Webb which makes his participation and presence at the crime scene impossible. And accused Webb's innocence can be established through a DNA typing of the sperm specimen.
x x x
7. Since the semen specimen is still in the custody and possession of the NBI, accused Webb moves for the submission of the semen evidence to a DNA analysis by a US-government or US government accredited forensic laboratory, preferably the Federal Bureau of Investigation, Washington, D.C. If granted, accused Webb reserves his right to be presented at all stages of the DNA typing process and to have access to the results thereof.
x x x[6]
The prosecution opposed the motion on the following grounds: (1) The presence of spermatozoa in the body of the deceased Carmela Vizconde was not the sole basis of the prosecution in concluding that the crime of rape was committed; nor was the said specimen attributed solely to the accused-movant Webb so as to justify the undertaking of a selective DNA examination; (2) Contrary to accused-movant Webb's contention, DNA testing has not been accorded official recognition by Philippine courts; and (3) Granting arguendo that DNA testing has been officially recognized by Philippine courts, accused-movant Webb has not shown that the semen specimen recovered from the body of Carmela and presently in the possession of the NBI was properly extracted and duly preserved for purposes of DNA examination.[7]
In his Reply, Webb asserted that there is no point in including the other accused who allegedly "had access" to Carmela; the DNA examination of the spermatozoa evidence obtained from her body can prove that Webb was not the source of the semen. The prosecution's concerns on the proper extraction and preservation of the semen for purposes of DNA testing and correct handling of the evidence can only be addressed at the early stages of the DNA testing itself. It is also recognized in the US that DNA analysis can handle evidence even if decades old.[8]
The prosecution filed a Rejoinder in which it argued that contrary to Webb's claim, its statement that "three (3) of the eight (8) accused had access to Carmela during the commission of the crime" is not a mere speculation. Alfaro's testimony established that she together with Webb, Lejano and Ventura entered the Vizconde house while the rest served as lookouts. After seeing Webb pumping Carmela inside the bedroom, there was an appreciable lapse of time - judging from what Alfaro did thereafter -before Webb, Lejano and Ventura got out of the Vizconde residence. This is significant in relation to the earlier expression of assent by Lejano ("Ako ang susunod") to Webb's statement that "Pipilahan natin si Carmela, pero ako ang mauuna." The prosecution further disagreed with Webb in brushing aside the prosecution argument on the need to establish, among others, a rigid chain of custody of the semen specimen prior to any DNA testing. There is no proof that the science of DNA testing has been standardized in accordance with the criterion laid down by the US Supreme Court in Daubert v. Merrel Dow Pharmaceuticals (509 U.S. 579) so as to determine with certainty and a high degree of accuracy the viability of a specimen for DNA testing. There is also scientific evidence that improper handling of specimen during transport or storage may lead to incorrect results. Lastly, there was no need to undertake any DNA examination of the semen specimen considering that the identification of Webb as one (1) of the accused in this case was never an issue for the prosecution - it being a fact that he was positively identified by Alfaro in open court.[9]
In his Sur-Reply, Webb addressed the allusion of the prosecution to a possible "contamination" by pointing out the documentary evidence and testimony of Dr. Prospero Cabanayan which indubitably showed that the semen specimen from day one (1) has been with the custody of the NBI and up to this date. The prosecution's allegation of possible tampering by outside forces is obviously unfounded and malicious, and it is "jumping the gun" when it argued that the DNA testing should be disallowed since there is no proof of the chain of custody, method of extraction and preservation of the collected semen evidence. Such documentation of the chain of custody and determination of the appropriateness of the specimen for DNA typing is part of the DNA evaluation.[10]
On November 25, 1997, the trial court denied the motion for DNA testing of the semen specimen. The trial court, citing latest jurisprudence at that time (Raymond Pe Lim v. Court of Appeals, et al, G.R. No. 112229, March 18, 1997), stated that this Court then declared that DNA being a relatively new science, has not as yet been accorded official recognition by our courts. It also considered the more than six (6) years that have already elapsed since the commission of the crime in June 1991; there is thus no assurance that the semen specimen has not been tampered with or contaminated. Neither has Webb convincingly shown that the proper procedure for the extraction and preservation of the semen specimen has been rigidly and duly complied with. The trial court was of the belief that the proposed DNA examination will not serve the ends of justice but instead will only lead to complication and confusion of the issues of the case.[11]
In his Dissenting Opinion, Justice Lucenito N. Tagle assailed the trial court's denial of the motion for DNA analysis of the semen specimen as unjust, as it should not have ruled on the possibility of tampering of evidence based on mere conjecture and in total disregard of the presumption of regularity in the performance of official duty. Citing the ruling in People v. Yatar,[12] it was stressed that DNA print or identification technology has been advanced as a uniquely effective means to link a suspect, where a biological evidence has been left, and is a fertile source of both inculpatory and exculpatory evidence. Justice Tagle opined that a DNA examination could have determined whether Webb and/or Lejano did the bestial act or not and an independent and unbiased medical examiner could have ascertained whether the specimen semen was compromised or not; it would also have put an end to the question of whether Webb was really in the country or not.[13]
Appellant Gatchalian in his Supplemental Brief dated July 27, 2007, raised the denial of the motion for DNA analysis as among the reversible errors committed by the trial court, quoting from Justice Tagle's Dissenting Opinion.
After serious deliberation, and in view of the promulgation of the Rule on DNA Evidence on October 2, 2007,[14] this Court resolves to order a DNA testing on the semen specimen as previously requested by Webb before the trial court, pursuant to Sec. 4 thereof:
SEC. 4. Application for DNA Testing Order. - The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter of litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following:(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.
This Rule shall not preclude a DNA testing, without the need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.
In Estate of Rogelio G. Ong v. Diaz,[15] a case involving the issue of paternity of a child whose father died during the pendency of the action for compulsory recognition with prayer for support pendente lite, we affirmed the decision of the CA remanding the case to the trial court for the issuance of an order directing the parties to make arrangements for DNA analysis for the purpose of determining the paternity of plaintiff minor, upon consultation and coordination with laboratories and experts on the field of DNA analysis. We thus held -
Coming now to the issue of remand of the case to the trial court, petitioner questions the appropriateness of the order by the Court of Appeals directing the remand of the case to the RTC for DNA testing given that petitioner has already died. Petitioner argues that a remand of the case to the RTC for DNA analysis is no longer feasible due to the death of Rogeiio. To our mind, the alleged impossibility of complying with the order of remand for purposes of DNA testing is more ostensible than real. Petitioner's argument is without basis especially as the New Rules on DNA Evidence allows the conduct of DNA testing, either motu proprio or upon application of any person who has a legal interest in the matter in litigation, thus:
x x x
From the foregoing, it can be said that the death of the petitioner does not ipso facto negate the application of DNA testing for as long as there exist appropriate biological samples of his DNA.
As defined above, the term "biological sample" means any organic material originating from a person's body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva, and other body fluids, tissues, hairs and bones.
Thus, even if Rogelio already died, any of the biological samples as enumerated above as may be available, may be used for DNA testing. In this case, petitioner has not shown the impossibility of obtaining an appropriate biological sample that can be utilized for the conduct of DNA testing.
And even the death of Rogelio cannot bar the conduct of DNA testing. In People v. Umanito, citing Tecson v. Commission on Elections, this Court held:
The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3 March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA testing in our jurisdiction in this wise: "[i]n case proof of filiation or paternity would be unlikely to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the long dead parent could be resorted to." [ADDITIONAL EMPHASIS SUPPLIED.]
To be sure, the present case does not involve paternity issue but the alleged commission of the rape by Webb, who believes that a DNA examination yielding negative result, that is, that the DNA profile which can be generated from the semen specimen taken from the deceased Carmela Vizconde did not match his own DNA, would not only negate the finding that he had raped said victim, but also prove his absence at the crime scene, consistent with his defense of alibi that he was at the time in the US. Nonetheless, it is now clear that the present Rule on DNA Evidence allows the conduct of DNA analysis notwithstanding that the biological sample is to be taken, or as in this case, had been obtained from a person who had already died (Carmela had just been dead 12 hours when the autopsy was conducted). While technically, the biological sample collected from the cadaver of the deceased victim did not really belong to the latter, the objective is to generate a DNA profile that will identify the source of the semen and thus aid the court in determining the identity of the assailant. Despite the lapse of time, the semen specimen might still be found viable for DNA profiling. On the other hand, the prosecution's objection based on concerns regarding possible contamination and proper preservation of the evidence in the custody of the NBI, would still have to be addressed as the Rule on DNA Evidence requires a showing, among others, not only of the existence of the biological sample, but also the existence of other factors which the court may consider as potentially affecting the accuracy or integrity of the DNA testing.
The ordinary procedure under the Rule is to remand this case to the trial court for reception of DNA evidence. However, in view of the circumstances of this case and to prevent any further delay in the resolution of the issue of identity of the source of the human spermatozoa extracted from the deceased Carmela Vizconde, this Court, hereby resolves to immediately direct the parties to avail of the services of the University of the Philippines Natural Science Research Institute, in coordination with the National Bureau of Investigation. All expenses for such services shall be shouldered by Webb. They are further enjoined to observe the requirements of confidentiality and preservation of the DNA evidence in accordance with Sections 11 and 12 of the Rule.
Upon completion of the DNA testing procedure and submission of the findings of the UP-NSRI forensic experts, the latter are hereby directed to immediately transmit to this Court their official and final report, which shall also contain a concise discussion of the methodology used and other relevant data to facilitate this Court's assessment of the probative value of DNA evidence and reliability of DNA testing methodology in accordance with Sections 7 and 8 of the Rule.
It is well to remind the parties that a flawed procedure in the conduct of DNA analysis of the semen specimen on the slides used during the trial for microscopic examination of human spermatozoa may yield an inconclusive result and thus will not entitle the accused to an acquittal.[16] More important, allowing Webb to utilize the latest available DNA technology does not automatically guarantee an exculpatory DNA evidence, but simply to afford appellant Webb the fullest extent of his constitutional right to due process.
WHEREFORE, in the higher interest of justice, the request of appellant Webb to submit for DNA analysis the semen specimen taken from the cadaver of Carmela Vizconde under the custody of the National Bureau of Investigation is hereby GRANTED. The NBI is ORDERED to ASSIST the parties in facilitating the submission of said specimen to the UP-Natural Science and Research Institute, Diliman, Quezon City and they (NBI and UP-NSRI) are further ORDERED to REPORT to this Court within fifteen (15) days from notice hereof regarding compliance with and implementation of this Resolution.
Very truly yours,
(Sgd) MA. LUISA D. V1LLARAMA
Clerk of Court
(Sgd) MA. LUISA D. V1LLARAMA
Clerk of Court
* JJ. Carpio and Velasco, Jr., no part.
Endnotes:
[1] CA rollo Vol. IV, pp. 3404-3479. Penned by Associate Justice Rodrigo V. Cosico and concurred in by Associate Justices Regalado E. Maambong and Lucenito N. Tagle.
[2] Id., pp. 3478-3479.
[3] Per Resolution dated September 6, 2004, CA rollo, Vol. IV, p. 3370.
[4] Rollo (G.R. No. 176389), pp. 197-214. Justices Renato C. Dacudao and Lucenito N. Tagle dissented. See Dissenting Opinions, Rollo (G.R. No. 176389), pp. 215-285.
[5] Records, Vol. 17, p. 192.
[6] Id., pp. 187-188.
[7] Records, Vol. 17, pp. 502-515.
[8] Id., pp. 545-549.
[9] Id, pp. 560-566.
[10] Id., pp. 579-582.
[11] Records, Vol. 17, pp. 256-259.
[12] 428 SCRA 504 (2004).
[13] Rollo (G.R. No. 176389), pp. 14-52.
[14] A.M. No. 06-11-5-SC effective October 15, 2007.
[15] G.R. No. 171713, December 17, 2007, 540 SCRA 480.
[16] See People v. Pascual, G.R. No. 172326, January 19, 2009, 576 SCRA 242, 260.
