Republic of Philippines
SUPREME COURT

Manila
 

En Banc  

PEOPLE OF THE PHILIPPINES,
                                Appellee,

                 - versus -                                                                                  G.R. Nos. 138874-75


FRANCISCO JUAN LARRAŅAGA, et. al.,
                         Accused‑Appellants. 

x -------------------------------------------------------- x

MOTION FOR
RECONSIDERATION
CUM REQUEST FOR
ORAL ARGUMENT

          Accused-Appellant  FRANCISCO JUAN (Paco) LARRAŅAGA, by undersigned counsel, respectfully seeks the reconsideration of this Honorable Court's 03 February 2004 Decision, copy of which he received on 18 February 2004.

                                                                        PREFATORY  

          There is an old saying that "hard cases make for bad law." There is no more profound example of this maxim than in this case. Inflamed passions, deficient investigative methods, questionable police tactics, misplaced prosecutorial zeal, and

PAGE 2
opprobrious Court rulings distorted not only the judgment in this case, but the legal process itself. We submit that in the case at bar, a case described by this Court as Cebu's "trial of the century," the criminal justice system was so influenced by the gruesome allegations, the attendant publicity, the inevitable politics, and so many other untold, factors, that the judge molded the facts and law to reach a publicly acceptable, but unfair and unjust, result.

          Hard cases not only make for bad law, it can produce great tragedies. We are on the last leg of the race to avert this tragedy. We stand before this Court with a simple appeal. Before sending Paco Larraņaga to his death, grant him the benefit of an open mind and a doubting disposition. In this Motion, we urge this Court to review the following hard facts:

          (1)     The trial Court barred accused Larraņaga from testifying. Appellant openly declared that he wanted to testify. His counsel insisted that his client should be given the opportunity to testify. But the judge would have none of it and closed the evidence for the defense. This fact alone would have merited a mistrial. For 

PAGE 3
indeed, no trial can be called fair or impartial where the accused is denied the right to stand as witness for himself. Paco Larraņaga was deprived of this most basic of all rights. He was not allowed to personally answer the charges laid against. him. He. was not allowed to reply to any question material to his case.

            (2)     The Prosecution objected to the presentation of NBI Regional Director Florencio 0. Villarin as a witness for the defense obviously because the facts unearthed by the National Bureau of Investigation would hurt its case. The trial Court went along with the Prosecution's objection and prohibited his testimony on the grounds of alleged "immateriality and irrelevance."' Had Atty. Villarin been allowed to testify, he would have punched serious holes in the prosecution's story. The NBI's investigation showed, among others, that: (a) On 16 July 1997, the house where the rape purportedly occurred was a boarding house and it was then occupied by several residents, including a Canadian couple; (b) Atty. Villarin had

PAGE 4
previously interviewed Sheila Singson, the witness who claimed to have seen Paco Larraņaga talking to
the Chiong sisters before their abduction. Singson never mentioned seeing Paco Larraņaga when the NBI questioned her; (c) Singson gave a cartographic sketch of a suspicious person hanging around their workplace and she did not refer to Paco Larraņaga; (d) The NBI was approached by Mr. & Mrs. Chiong when their 2 daughters went missing, and when asked for the identity of any of their daughters' admirers or jilted suitors, they never mentioned Paco Larraņaga. Later on, Mrs. Chiong wove a story about her daughter being pursued and threatened by Paco Larraņaga; (e) The NBI doubted Davidson Rusia's testimony and he asked that the NBI be allowed to interview the witness. He also asked that Rusia be subjected to a lie detector test, a standard law enforcement tool. Both requests were inexplicably denied; and (f) At the start of the investigation, the NBI was the lead agency the investigation of the case.    

PAGE 5
          (3)     Policemen wantonly and brazenly planted evidence against the accused. The Cebu police were found (by a separate trial Court trying the illegal possession charges) to have planted a firearm on accused Rowen Adlawan to justify his arrest in the Chiong murder case. Accused Josman Aznar, together with his brother Matthew Aznar, found themselves in the very same situation. The complaint for illegal possession against the Aznar brothers was likewise thrown out by another Court. Moreover, had the trial Court allowed the introduction of forensic testimony, the defense would have proven that the fingerprint allegedly found in the computer diskette recovered in the ravine had also been planted. Given the police penchant for fabricating evidence, does it not stand to reason that the charges against the accused had been trumped up?

          (4)      Accused-Appellant Paco Larraņaga proved his alibi. However, it became next to impossible to satisfy the trial Court's standard for reasonable doubt since the

PAGE 6
Court had, as borne by the transcripts, prejudged the case. 

          (5)     In the course of trial, the Court would either (a) exclude material and relevant testimony, or (b) sweep aside solid evidence with pure conjecture. Key evidence favorable to the accused could not be introduced because of the Court's unjust and unreasonable rulings.

          (6)      The trial Court made known its misgivings about the identity of the corpse in the ravine but it: (a) shunned forensic evidence that would have cleared its own doubts, and (b) made declarations that the identity of the corpse would not have any bearing on the case. Certainly, if the corpse does not belong to Marijoy, then Davidson Rusia would be proved a liar. There would a1so'be no corpus delicti. These obvious facts intriguingly escaped the trial Court. 

          (7)     Rusia was coached to construct a story that matched the clues, facts, and physical evidence then known to the authorities. His story was not supported by

PAGE 7
independent evidence, as this Court is wont to believe, it was tailored to correspond and give slant to the existing evidence.

          (8)     The members of Paco Larraņaga's cooking class, without a single exception, were willing to attest to Paco's presence in Manila, and hence the impossibility of his being in Cebu on 16 July 1997. Paco entered the Center for Culinary Arts only on 16 June 1997, or one month before the incident. Why would young and presumably idealistic students perjure for a classmate they have known for hardly a month? This is a cooking school, not a fraternity. If one were to create an alibi involving a grisly and ghastly crime, the most dim­witted move is to claim that one is attending a class full of students. A single classmate would have easily debunked such an alibi. Yet, the prosecutors cannot produce anyone from the class to state otherwise. Moreover, why would the parents of these students allow their children to testify in Paco's behalf if they were not convinced of their own children's story? This

P
AGE 8
is a crime involving murder and rape, no parent would allow his child to lie in behalf of a criminal. Yet, in this case, we have parents asserting that their children are not lying. These parents openly support their children's quest for the truth. The truth is out there, but it is certainly not found in the Decision of the trial Court.

          (9)     Likewise, the testimonial and documentary evidence provided by airline personnel, airport officials, and a fellow passenger who was with Paco Larraņaga on the 17 July 1997 late afternoon flight from Manila to Cebu is not only compelling but, impossible to contrive. It does not deserve the scant importance and short shrift it got from the trial Court. If we are to believe the prosecution's presentation, accused Larraņaga was very visible, tremendously sloppy, and exceedingly careless when he committed what was supposed to be a pre-meditated crime, then he turned into a genius at cover-up a few hours after committing the heinous act. Surely, the evidence Larraņaga presented could not

PAGE 9
have been marshaled if he were not telling the simple truth.

 DISCUSSION  

I.  Accused-Appellant Was Barred From 
Testifying In His Own Defense

          1.     This Court stated "'Appellant, Francisco Juan Larraņaga was supposed to testify on his defense of alibi but the prosecution and the defense, through a stipulation approved by the trial Court., dispensed with his testimony."1  The records will show this finding to be totally untrue. Instead, what the transcripts reveal is a judge who bullied the defense and who insisted on his ruling with the oft repeated challenge that his orders be taken to the Supreme Court or the Court of Appeals.

          2.     A reading of the transcripts of 01 February 1999 bares the true story. Trial on that day started at 2:10 p.m. The PAO lawyers assisting accused Caņo and Balansag were supposed to present their witness. However, their witness failed to show up and the PAO lawyers asked for a recess. The Court suspended session at 2:25 p.m. and resumed at 2:40 p.m. The witness for Caņo still has not arrived.

          3.     Thereafter, Larraņaga's counsel, Atty. Teodoro Villarmia, Jr., asked that he be allowed to present a representative from PAGASA to testify that it rained heavily in
______________________________
1    
Decision, page 5.

PAGE 10
Cebu on 16 and 17 July 1997. The Court disallowed the testimony with this Order,2  and we quote:

                         At the continuation of the trial of this case today, the defense panel wanted to present the representative from PAGASA, to prove that it was raining all over Cebu on July 16 and 17. Whereupon, the Court ruled that such testimony is irrelevant and immaterial to the issue of kidnapping of the Chiong sisters. 

            4.     The Court then ruled that the defense panel was now deemed to have waived further presentation of their evidence.

          5.     Larraņaga`s counsel protested the ruling saying that he was still going to present the accused himself. This was the exchange as shown by Pages 20 to 24 of the TSN of 1 February 1999, and we quote:

          ATTY. T. VILLARMIA JR.
                    Your Honor, please.

          COURT
                        Sit down, sit down, sit down. The Court further ruled that it is now the turn of the Prosecution to present their rebuttal evidence.
                    SO ORDERED.

          COURT
                    Are you ready now to present your rebuttal evidence?

          ATTY. T. VILLARMIA JR.
                         Your Honor, please, may we ask for reconsideration?

          COURT 
                    NO! DENIED! DENIED!

            ATTY. T. VILLARMIA JR. 
                   
As you can see, Your Honor, the Court ...

          COURT
                         You go to the Supreme Court, di ba? (why not?) You can always go to the Court of Appeals. Go to the Court of Appeals or the Supreme Court.

          ATTY. VILLARMIA JR. 
                     We can still present other witnesses ...

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).
______________________________
2   Order dated 1 February 1999

PAGE 11
         
COURT
                    Alright there's a ruling already, ha? There's a ruling already ha? May ruling na! (We already have a ruling!) You go to the Supreme Court or the Court of Appeals.

          6.     After a few more exchanges, the Judge announced that his decision was final and that he was going to adjourn the session. Atty. Villarmia stood up to declare:

          ATTY. T. VILLARMIA 
                    Your Honor, we would like to make a manifestation, Your Honor...

          COURT 
                    Yes

          ATTY. T. VILLARMIA JR. 
                   
We would like to make of record, Your Honor, that accused Paco Larraņaga was ready all the time and was waiting for us to present ... but the Court did not hear us. I would like to make that of record.

            COURT 
                    You made a manifestation that you are not ready.

          ATTY. T. VILLARMIA, JR.
                    No, because, Your Honor....

          COURT 
                    That is why I ruled that..
Oh papano? Oh papano? (So what now? So what now?)

          ATTY. T. VILLARMIA, JR.
                    Your Honor, because of the impression. Your Honor, that the other defense lawyers will present their witness.

          COURT 
                    Wala na tayong kataposan.. (We have no more ending..) every time you want to present somebody....you made a manifestation already that ... na Wala na kayong epresent, (that you have no more to present,) you are unable to present ... I have already made a ruling. Oh papano yon? (So what now?) I have instructed the Prosecution to present their rebuttal evidence,
ha? Alright, that is FINAL! Session adjourn.

          SESSION ADJOURNED: 2:55 p.m.

          7.      As the records clearly show, it was barely 3:00 p.m. when the Court adjourned its hearing. It was easy enough to allow Paco Larraņaga to testify but the judge was adamant. Larraņaga's counsel had argued that on that day's hearing, it was

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 12
the PAO lawyer's turn to present their evidence. The PAO witness, however, failed to show up. Nevertheless, Atty. Villarmia was ready with an alternate witness, Mario Alesna, the PAGASA representative. The Court did not allow the testimony of the weather specialist because the judge deemed it irrelevant. After that, he declared the defense to have waived its right to present their evidence. Atty. Villarmia remonstrated and told the Court that' he was going to call Larraņaga to the stand. The accused also raised and waved his hand to express his desire to testify. The Court did not relent and refused to hear his testimony. Judge Martin Ocampo would not allow accused Larraņaga his time of day. 

          8.     A newspaper covering the trial printed a picture showing Larraņaga raising his hands and reported the incident in this manner:

                         "I can testify anytime", Larraņaga said. As defense lawyers argued about Ocampo's ruling, Larraņaga waved his hand twice to signal he wanted to testify. But the judge overlooked him and his lawyer failed to acknowledge him." (Sun Star Daily, 2 February 1999, photocopy of which is attached as our Annex "A")

          9.      The next day, 2 February 1999, the trial Court maintained its refusal to allow Paco Larraņaga to sit on the witness stand with the following reasoning, and we quote:3
          
         
COURT
                    In your case I don't see what is your problem. You had already presented 14 witnesses and I'm sure Paco would not want to contradict. Will he say something different from what his witnesses said that they were with him on
______________________________
3
   TSN dated 2 February 1999, page 13.

PAGE 13                   
                    the night of July 16? Naturally he will say the same thing, di ba? (wouldn't he?) And what's the use? I have already ordered that it be placed on record that we are admitting, the Court is admitting that Paco would testify to that effect. E, ano, pang gusto nyo? (So, what else do you want?)
                    
                    

          ATTY. VILLARMIA 
                    Thank you, Your Honor.

          COURT 
                    Without testifying but without admitting the truth because even if he testify here, it's the same. We cannot admit the truth, di ba? (isn't it?) If you mean that he is telling the truth because he testifies in open Court. We are admitting that he would have testified to that effect. Ano pa? (What for?)

          10.     Clearly, the trial Court drew an unfair and adverse inference against Larraņaga. This did not only smack of prejudice, it was an outright denial of due process. The judge was not interested in what Paco had to say. He was not even concerned about observing his demeanor on the stand. He had made up his mind on what weight he will give Larraņaga's testimony even before he heard it and despite the fact that he did not hear it.

          11.     By refusing to hear the testimony of the accused in this case, the trial Court effectively ousted itself of its jurisdiction over the case.

II. The Trial Court Barred Evidence and 
Testimony Favorable to the Accused

          12.     The first government agency to investigate the disappearance of Marijoy and Jacqueline Chiong was the National Bureau of Investigation. At that time, the R6`gional Director of the Cebu Branch was Atty. Florencio 0. Villarin. The

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 14
Court, however, prohibited him from being a witness on the argument that his testimony was immaterial and irrelevant.
 

         13.     Consider the following exchange that led to the exclusion Villarin's testimony as culled from the transcripts of stenographic notes on 25 January 1999,4 and we quote:

          COURT
                    NBI? To bring the result of their gathering of witnesses and evidences from the missing Chiong sisters. Are they capable of doing that?

          ATTY ANDALES 
                    We heard that there were 20 suspects, Your Honor, and there were cartographic sketch prepared and made by personnel of the NBI, that is why we wanted to know ----

          COURT 
                    NBI here or in Manila? 

          ATTY. ANDALES 
                    Here in Cebu, Region 7. 

          PROS. GALANIDA
                    So, in other words, Your Honor, they are calling Villarin as a hostile witness because the NBI, Your Honor, just like the prosecution service is under the Department of Justice and the NBI is not the lead agency of the Chiong sisters abduction case.

          COURT. 
                    So what do you say?

          PROS. GALANIDA
                    Irrelevant and immaterial, Your Honor. Whatever would be the list of Villarin does not follow anymore because there are now suspects that are already been charged before this Honorable Court and these are the accused now who are in Court. That is why ---

          COURT 
                    0, material ba yong --- (So, is that material ---) 

          PROS. GALANIDA
                    What is the materiality, Your Honor?

          COURT 
                    So, it was not the NBI. The NBI merely gathered these evidences and they were not the ones who chose whom to prosecute because that is not the duty of the NBI. Paņero. (My fellow lawyer)

______________________________
4   Pages 39 to 46.

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 15
          ATTY. ANDALES  
                    We want to know --

          COURT 
                    That is the legal practice xxx are you suppose to ask the police why they did not accuse somebody else or other people?

          ATTY. ANDALES 
                    Well, we have a theory to that effect, Your Honor. May we be allowed to because that would be again suppression of evidence. Lets get the NBI first.

          PROS. GALANIDA 
                    What suppression of evidence are you talking about?

          COURT
                   
That is not suppression of evidence.

xxx

          14.     After further discussion, the Court ruled that the purpose for Villarin's testimony was irrelevant and immaterial to the case. Judge Ocampo then dictated the following Order,5 the relevant portion of which is herein reproduced:

                         The Prosecution questioned the relevance and materiality of the evidence or testimonies and report of the NBI that Atty. Andales wants to present before this Court and the Court opined and ruled that such testimony and report of the NBI would be irrelevant and immaterial to these cases because it was not the NBI that filed the indictment or information against the accused in these cases who chose them or singled them out for the prosecution and not to charge other suspects but it was the Office of the City Prosecutor of Cebu who prepared such information or indictments against the eight (8) accused in these cases including Rusia and therefore the NBI cannot be held or cannot be questioned about it, about the charging of the accused in these cases because they merely gathered the evidence and did not select who are to be indicted or accused in these two (2) cases. For which reason, the Court ruled that Atty. Villarin need not be subpoenaed anymore or need not be compelled to honor the subpoena of this Court because the said report is irrelevant and immaterial.
______________________________
5   Order dated 25 January 1999.

PAGE 16
          15.     Turning to the defense lawyers, judge Ocampo gave his usual challenge,
6  and we cite:

                         You may appeal that ruling to the higher Court.

          16.     In short, this judge considered reports on criminal investigations conducted by government agencies to be irrelevant and immaterial when that case has already been elevated to the Court by the prosecution. This is pure heresy. No civilized Court can justify such a ruling. The investigation and work undertaken by police authorities on a criminal case is not only relevant and material, any lawyer worth his salt will deem a review thereof as an imperative. The Court's ruling, in effect, deprived the accused Larraņaga the opportunity to use evidence that is favorable to him. It allowed the Prosecution to hide that evidence. Such actuations are a breeding ground for fraud and fabrication. The defense was clearly robbed of the opportunity to present exculpatory evidence which was in the possession of the National Bureau of Investigation. If Atty. Villarin had been allowed to testify, the following facts, positive to accused Larraņaga, would have surfaced:

          16.1.     The NBI had inspected the house in Guadalupe, Cebu City, which Rusia claimed was the place where the Chiong sisters were raped. It was a boarding house! On that fateful night, the house was inhabited by several tenants. The boarders included a Caucasian couple said to be of Canadian nationality, a certain Edwin Bustillo,
______________________________
6   TSN dated 25 Januarv 1999.

PAGE 17
Bustillo's sisters, and a Maricar & Millany Tizon. This information was relayed to the NBI by Dogan Gurkan who had leased space to these occupants. This house is no mansion. It is small enough for people to see and sense each other. An abduction and gang rape, as described by Rusia in his statements, would have caught the attention of its numerous residents.

          16.2.     A few days after Marijoy and Jacqueline disappeared, Mr. Dionisio Chiong and Mrs. Thelma Chiong, parents of the two girls, approached the NBI for assistance. Atty. Villarin interviewed the couple and asked the standard background questions. He queried the Chiongs about admirers, boyfriends, and/or rejected suitors of their children. The Chiongs never mentioned the name of Paco Larraņaga. However, when the government started to build a case against Accused-Appellant, Mrs. Chiong started telling stories about Paco being an ardent suitor of Marijoy, even testifying that Paco had threatened and frightened the girl. Obviously, tales were being made up as the trial went along;

          16.3.     The NBI conducted interviews of employees of Global Village Learning Center where Jacqueline Chiong was employed. Again, there was no mention that the two girls had been seen with Paco Larraņaga. The NBI in fact, made a cartographic sketch based on the description given by Sheila Singson of someone she depicted as suspicious. However, when the case went to trial, two Global

PAGE 18
employees (particularly Analie Konahap and Sheila Singson) suddenly began telling stories about Paco Larraņaga being seen with the Chiong sisters.

      16.4.     Rusia was a known drug user and Atty. Villarin gravely doubted his testimony. He asked the police to allow the NBI to question Rusia and subject him to a lie detector test. Lie detector tests are standard tools of police investigators and is extremely useful when they evaluate their witnesses. Moreover, the machine tends to intimidate potential liars. However, this request was turned down by the police and the prosecutors.

          17.     Attached as Annex "B" hereof is an affidavit executed by Atty. Florencio 0. Villarin attesting to his qualifications as an investigator and narrating the facts and circumstances of the NBI's investigation of the Chiong case. We are reproducing the relevant parts of his affidavit as follows:

                         As NBI Regional Director for Central Visayas, I investigated major crimes and it was our office that first investigated the disappearance of Jacqueline and Marijoy Chiong upon the request of their parents, Mrs. Thelma Chiong and Dionisio Chiong, on July 18,1997.

                         Considering the serious nature of the crime committed, I closely supervised the investigation of this case, which I assigned to a team of agents under Supervising Agency Romulo Manapsal, and I personally interviewed Mrs. Thelma Chiong in the presence of her husband to get the facts surrounding & disappearance of their daughters;

                              From her statement during the interview, we learned that their daughters Jacqueline, working at the Ayala Business Center, and her sister Marijoy, who were last seen alive leaving the Global Village, the employer of Jacqueline, by witnesses, among them was Sheila Singson, a co-worker, were missing.

PAGE 19                      
                         In cases of this nature, it is a matter of course for a criminal investigator to ask the complainant, Mrs. Chiong in this case, basic questions, such as the names of boy friends of suitors, if any, witnesses and close friends of the persons reported missing so that they could be interviewed to provide us with more vital information to help us locate Jacqueline and Marijoy;

  
                          
And during the interview, Mrs. Chiong disclosed to us a certain Mutya from Tacloban City but residing in Labangon, Cebu City, as the only one courting Jacqueline or Marijoy but she never mentioned to us the name of Francisco Larraņaga as one of those courting any of her daughters, and neither did she mention the names of the other accused in this case;

                         Sheila Singson was also interviewed but, like Mrs. Chiong, she never mentioned to us the name of Francisco Larraņaga and the names of the other accused in this case. Ms. Singson, ' however, alleged that she saw somebody who appeared suspicious passing by the Global Village, where she and Jacqueline worked, on the evening of the victims' disappearance; hence a cartographic sketch was drawn by our artist based on the description she furnished us but said sketch was not clear;

xxx xxx xxx

                                Davidson Rusia, a drug addict, was also apprehended by the police as a suspect in this case. In his confession executed op May 12, 1998, he alleged that after the abduction, they brought the victims to a certain house in Guadalupe, Cebu City, where they were sexually abused by his co-accused but he denied having raped the victims.

                                  In my 38 years in law enforcement and until now, 1 have yet to meet a drug addict who is not a liar; thus, I asked Senior Supt. Alejandro Lapinid, the new Director of the Cebu City Police Station, to request Supt. Estiles to allow us to interview Rusia and subject him to a polygraph test because, after I interviewed the lessee of the house where the victims were allegedly raped, I found ' the allegation that the victims were raped in a house in Guadalupe, Cebu City to be unbelievable.

                            I interviewed Dogan Gurkan, a Turkish national and the lessee of the house which he partitioned into several rooms for rent where the victims were allegedly sexually abused. According to him, one room was leased to Edwin Bustillo and another was occupied by the Bustillo sisters and Maricar and Milany Tizon; he declared that it was not possible that the rape could took place in his boarding house because the adjoining room of the Bustillo sisters was also occupied by a Canadian couple. Besides, his caretaker, Ms. Seno, was present at the time the incident allegedly happened and his boarding house was located in a densely populated area, which is true because I saw the place myself, therefore, there          

PAGE 20
was more compelling reason to further interview Rusia and require him to undergo a polygraph test,  a tool we usually used in aid of our investigation.

          18.     In the leading case of Brady v. 'Maryland,7  the United States Supreme Court through Justice Brennan explained, society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.8  In fact, under the Brady doctrine, the prosecution has a constitutional obligation to turn material exculpatory evidence over to the defendant. This obligation is independent of any specific request by defendant for such information.

          19.     In the case at bar the prosecutors refused to allow Atty. Villarin to testify. The prosecution obviously knew that the NBI had information detrimental to their cause. They chose to hide it. They successfully blocked efforts to unearth it. They prosecuted to secure conviction, without regard to the truth. This is nothing short of prosecutorial misconduct. We submit that if the evidence possessed by the NBI had been disclosed to the defense, there is a reasonable probability that the result of the proceeding would have been different. Moreover, we submit that the loose ends in the evidence of the prosecution are sufficient to engender reasonable doubt that the charges against an accused may have been trumped up.9
______________________________
7   373 US 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
8   Webb vs. Raul de Leon, GR No. 121234, 23 August 1995.
9   People vs. Archie Distrito, GR No. 95540,18 September 1992.

PAGE 21

III. No Alibi Would Have Satisfied 
the Trial Court

          20.     This High Court based its Decision affirming the conviction of the Accused-Appellant on the finding of the trial Court that there was no "physical, impossibility"' for Paco to have been at the scene of the crime at the time of its commission, his alibi notwithstanding.

          21.     We respectfully submit that Judge Ocampo imposed a standard where any alibi, no matter how strong, credible, or truthful, was effectively ruled-out as a defense.

          22.     The trial Judge's pronouncements in open Court clearly show he had made up his mind. He imposed a standard that no one using the defense of alibi would be able to attain. Under his norm, it would be sheer waste of time for an accused to present alibi. The judge thought of all possible (even improbable) scenarios and conjured up speculative situations to douse cold water on accused appellant's defense. Observe the Court's ready answer to evidence supporting accused Larraņaga's alibi,10  thus:

          COURT 
                    If, none of the commercial airlines records show that Larraņaga took a flight from Manila to Cebu on July 15 and 16, will that prove that Larraņaga, it was impossible for Larraņaga to be at the Ayala Center of Cebu at 10:30 PM of July 16? What do you say?

xxx

          COURT 
                    Considering that he belongs to a millionaire family. He could have taken a private plane anytime or he could have taken a private boat.

xxx  

______________________________
10   TSN dated 18 January 1999, pages 24 to 35.

PAGE 22
         
COURT
                    Because your witnesses - the testimonies may not prove
anything at all. It will not prove that it was impossible for Paco to have been at the Ayala Center at 10:30PM of July 16. The fact that the records of the PAL now do not show. If it is true, we are assuming it is true that the records have been tampered with, that it is true that he did not take any flight in this date because he could have used another name in coming back to Cebu, di ba? (why not?) E, papano? (So, how now?) The record do not show there was one Paco Larraņaga who took the flight. But suppose he was using Juan dela Cruz, o, papano yan? (So, how now?) So, are we sure now that Paco was not or could not have taken a flight from Manila to Cebu on July 15 with the use of the name of Juan dela Cruz? That's the problem, Paņero. (My fellow lawyer).

 
xxx

          COURT 
                   
lygn nga ang doubt ko. (That's what I  doubt). The testimony of your witnesses to the effect that Paco was not in one of the flights, commercial flights on the 15th and 16th of July, will that prove that it was impossible for Paco to be in Cebu at 10:30PM on July 16? No, because he could have used another name or he could have taken a private plane or he could have taken a boat or he could have been in Cebu before July 15. That's the problem. So, what is this crime? Di ba? (Isn't it?) Iyon lang and hinala ko (that's the only thing I can think about) that you may not be 'proving anything with all these witnesses from the airlines. Useless lang. (It will only be useless.)

xxx

          COURT 
                    Because it does not make it impossible. That's the word of the Supreme Court. Impossible for him to be there not improbable, ha, but impossible. Does it make it  impossible just because these airlines states he was not or his name was not among the passenger list of July 15 and 16. 0, papano yan? (So, how is that?) Suppose he used another name
nga o
, papano yon? (Suppose he used another name, how is that?) Can they identify him through his looks? Mahirap yata yon, di ba? (That would be hard, wouldn't it?)

xxx

          COURT  
                   
To be of any value your alibi must prove that it was impossible for the accused to be there at 10:30 PM of July 16. Now, could he have taken a private plane considering that he belongs to a millionaire family. (Kaya) nya mag-operate nang helicopter or private plane, di ba? (He can even operate a helicopter or private plane, can't he?) To go  there. or take a seacraft, speedboat. So, it is not impossible for him even if he did not take any of the commercial flights. Also, he could have used another name to go to Cebu.
0, papano? (So, how is that?)
                                                                                    xxx

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 23
            COURT
                    That it must be impossible, that/s the ruling of the Supreme Court and we are now under public criticism. The trial of these cases began on August 12 and it is now January 18. E, ilang months na iyon? (So how many months are that?) More than five (5) months, di ba? (isn't it?) From the beginning of the trial. We are suppose to expedite the trial of these cases and you are to present these witnesses from various commercial airlines. How long will it take? Paco might have come to Cebu by using another name, by taking a private aircraft or seacraft. So, if you want to appeal that ruling to a higher Court, but as of now I'm disallowing such witnesses.

xxx     

          COURT 
                    Because that would be a waste of time and it would not prove that it was impossible for Paco to have come to Cebu at 10:30PM on July 16. That is a waste to time and violation of Supreme Court Administrative Order to finish the trial within sixty (60) days or as soon as possible. You will present all these witnesses, how many months will that take? Ikaw lang ang pakikinggan natin dito. (You will only be the ones now we will be hearing from.) That we do not know that so and so airlines did not have the name of Paco, Alright, so and so airlines or private airline companies; did not transport Paco to Cebu. How many witnesses will you present and that will not prove anything anyway because he could have used another name. He could have used a private airplane of his friends or whoever and he could have used a seacraft. 0, papano yan? (So, how is that?) Because it will not be impossible for him to, for Paco to have come to Cebu even if you present all these witnesses it will only be a waste of time of the Court. Therefore we are disallowing it. You can appeal that ruling to the higher Court on the ground that we are disallowing it on the ground that this is irrelevant and immaterial and waste of time of this Court and on the Administrative Order to expedite the trial of these cases - heinous crimes cases.

          23.     The High Tribunal does not impose such stringent or near impossible norms.

          23.1.      In the case of People vs. Sayana,11  this Court upheld the defense of alibi where
the accused was home in
______________________________
11   G.R. Nos. 142553-54, 1 July 2003.

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 24
the province Bataan while the crime was perpetrated in Manila.

          23.2.     In the case of People vs. Obedo,12 this Court accepted the alibi that the accused was at a neighboring town when the crime, occurred.

          23.3.     In the case of People vs. Ola,13  this Court accepted the alibi that the accused was
in his house just 2 1/2 kilometers from the scene of the crime, even in the face of positive identification.  

IV. Accused-Appellant Proved His
Alibi and His Alibi More
Than
Satisfies
Reasonable Doubt

Standards
 

          24.     Considered together, the totality of the evidence14  presented by accused Larraņaga, intertwine and support the requirements of alibi. Unfortunately, while the trial Court allowed the prosecution to present witnesses supposedly situating Paco in Cebu a few hours before and a few hours after the alleged crime, the Presiding Judge denied the accused a similar opportunity to present such evidence as was necessary to prove that, he was in Quezon City at those times.

          25.     To set the record straight, the herein Accused-Appellant came to Quezon City from Cebu on 8 June 1997,15  to pursue a Diploma in Culinary Arts & Technology Management at the
______________________________
12   G.R. No. 123054, 10 June 2003.
13   G.R. No. L747147, 3 July 1987.
14   Estrada vs. Desierto, et. al., G.R. No. 146710-15 & 146738, 21 March 2001.
15    TSN dated 24 November 1998.

PAGE 25
Center for Culinary Arts (CCA) in Katipunan Avenue, Quezon City.
16

          25.1.     He was enrolled at CCA for the First Term beginning 16 June to 7 August 1997,17 as shown by the check payment covering tuition,18  official receipt evidencing such payment,19 and receipt for uniforms payment.20  A certificate of Paco's enrollment was likewise presented in evidence.21

          25.2.     He was staying in a condominium unit at nearby Loyola Heights which was on a year-long lease until 1 June 1998 as confirmed by a contract,22 a receipt evidencing payment,23 and several post-dated checks to cover the monthly payments until the end of the lease.24

          26.     For the entire day of 16 July 1997, Paco was in Quezon City.

          26.1.     From 8am to 11am of the said day, he was at the CCA attending a lecture in Applied Mathematics, as attested by his teacher, Chef Rowena Bautista.25 This
______________________________
16   Exhibit 24.    G.R. No. L747147, 3 July 1987.
17   Exhibits 22, 23 and 25.
18   Exhibit 26.
19   Exhibit 27. 
20   Exhibit 28.
21  
Exhibit 35. 
22   Exhibit 10.
23  
Exhibit 11.
24   Exhibits 12 to 21
25   TSN dated 4 January 1999, pages 49-50.

PAGE 26
testimony is confirmed by the check mark on the column "7-16" in the teacher's class attendance sheet.26

          26.2.     Confirming the Chef Rowena testimony is the joint Affidavit of 14 of Paco's classmates at CCA.27

          26.2.1.     One such classmate, Carmina Esguerra, was able to confirm to the Court that she and Paco, along with , many other classmates, attended a lecture that morning in school.28

          26.2.2.     Other classmates Felipe Deus & Carlos Santiago came to Court to attest to the same fact, but their proposed testimonies were cast aside for allegedly being irrelevant.29

          26.2.3.     The rest of the members of the class were likewise ready and willing to testify on Paco's whereabouts from 8am to 11am, but they were all disallowed by the Court to testify.

          26.3.     From 1pm to 3:30pm of that 16 July 1997, Paco took his mid-term examinations in Fundamentals of Cookery together with his classmates at CCA.30

          26.3.1.     Classmate Carmina Esguerra confirmed that she and Paco took this test along with
______________________________
26   Exhibit 52.
27   Exhibits 103-U to 103-W.
28   TSN dated 6 January 1999, page 5.
29   TSN dated 25 January 1999, page 35.
30   Exhibits 33-E to 33-H.

PAGE 27 
their other classmates on the said afternoon.31  Her mid-term examination test paper,32  and that of Paco,33  clearly certify that the said exam was taken on 16 July 1997.34

         26.3.2.     The Class Record for Fundamentals of Cookery teacher Chef Jose Amadeo S. Gimenez,35  and Paco's final grades sheet,36  attest that Paco took the said mid-term examination in Fundamentals of Cookery on 16 July 1997. This fact is likewise backed up by the Certification issued by their teacher, Chef Menoy.37

          26.4.     From 4:00pm to 6:00pm of 16 July 1997, Paco went for a couple of. drinks at the Tia Maria's Restaurant in Katipunan Avenue Quezon City with Richard Anthony Antonio and Limneo San Gaspar. Richard Antonio narrated that after their drinking session, they passed by CCA to get his car before they proceeded to Paco's condo.38  Paco's presence at the CCA at about 6:30pm was confirmed by Chef Rowena who testified that she saw him and Jose Antonio as she was leaving the school that night.39
______________________________
31   TSN dated 6 January 1999, page 5.
32   Exhibit 31.
33   Exhibit 30.
34   Exhibit 31-G.
35  
Exhibit 33, inclusive.
36   Exhibit 32; inclusive.
37  
Exhibit 29.
38   TSN dated 25 September 1998, pages 57-58.
39  
TSN dated 4 January 1999, page 49-51.

PAGE 28
        26.5.     At about 7:00pm of that 16 July 1997, Paco and Richard Antonio arrived at his condominium unit in Loyola Heights Quezon City.40  After a while, Leah Montalvan joined them in the unit,41  and Paco made a long distance call to his mother in Cebu using Richard Antonio's cellular telephone at past 8 pm.42  Thereafter at about 8:30pm, Charmaine Flores also came to chit-chat for about an hour.43

        26.6.     At about 10:00pm that same night, Paco and Leah Montalvan were picked up by Ann Fonacier and they proceeded to R & R Restaurant in Katipunan Avenue Quezon City, after passing for Maharlika Schulze.44

          26.6.1.     Leah Montalvan,45  Ann Fonacier,46  and Maharlika Schulze,47  came to Court to attest to this gathering, which they attended until midnight. They all confirmed that at the time they left, Paco stayed behind with the rest of their friends.

          26.6.2.     Sebastian Seno,48  Francisco Jarque,49  Maitina del Gallego,50  and Raymund Garcia,51
______________________________
40   TSN dated 25 September 1998.
41  
TSN dated 18 and 19 January 1998; TSN dated 25 November 1998.
42   Exhibit 36; TSN dated 25 November 1998.
43  TSN dated 24 September 1998, pages 71 et. seq. and TSN dated 25 September 1998, pages 4-51.
44 
TSN dated 18 November 1998; TSN dated 2 December 1998; TSN dated 3 December 1998.
45  TSN dated 18 November 1998.
46  
TSN dated 3 December 1998.
47   TSN dated 2 December 1998.
48  
TSN dated 1 December 1998.
49
   TSN dated 7 December 1998.
50  
TSN dated 8 December 1998.
51   TSN dated 14 and 15 December 1998.

PAGE 29
likewise came to Court to attest to this get-together and confirmed that they left the said restaurant at about 1:00am of 17 July 1997 with Monalisa and Marianne del Gallego, while Paco stayed behind with the others.

         26.6.3.     Paolo Manguerra,52  and Paolo Celso,53  would have also come to Court to testify that they, together with Marjorie Aznar, were those who stayed behind at R&R with Paco.54  

          26.6.4.     Several pictures of the said gathering at R&R,55  were presented to corroborate the above testimonies and they were identified by Paolo Manguerra,56  Paolo Celso,57  and Raymond Garcia.58

          26.6.5.     As shown by the entry in the security guard logbook of the Loyola Heights Condominium Paco arrived at his condo sometime before 3:00am.59  Noteworthy also is the entry appearing in the same logbook that Leah Montalvan came back to the building from that get-together at R&R Restaurant at 12:10am.60
______________________________
52   TSN dated 18 January 1999, pages 9-11.
53   TSN dated 5 January 1999.
54  TSN dated 5 January 1999, page 21.
55 
Exhibits 39, 40, 41 & 48.
56  TSN dated 18 January 1999, page 12.
57  
TSN dated 5 January 1999, page 20.
58   TSN dated 14 December 1998.
59  
Exhibit 66-IIII-3.
60
   Exhibit 66-IIII-2

.          

PAGE 30   
          27.     Continuing on the date 17 July 1997, Paco was still in Metro Manila, until he left for Cebu at 5:00pm.

          27.1.     Carmina Esguerra testified that she saw Paco from 8:00am until 3:30pm of 17 July 1997 in school at Quezon City.61

          27.2.     Aurora Malvar,62  Jose Carlo Santiago,63  Felipe Deus,64  came to Court on various dates to testify that they too were With Paco during those times of 17 July 1997 at the CCA, attending their Fundamentals of Cooking mid­term practical exams,65  on knife skills.66

          27.3.     Again, the Class Record of Fundamentals of Cookery teacher Chef Jose Amadeo S. Gimenez,67  and Paco's final grades sheet,68  attest that Paco took the said practical mid-term examination in Fundamentals of Cookery on 17 July 1997. This fact is likewise backed up by the very same Certification issued by Chef Menoy.69

          27.4     At about 4:30pm,Paco was at the Manila Domestic Terminal of the Philippines Airlines in Pasay city, hoping to board an earlier flight to Cebu than his scheduled 7pm flight.70
______________________________
61    TSN dated 6 January 1999, page 9.
62   
Exhibits 60 and 112.
63    Exhibit 109.
64   Exhibit 108,
65 
  Exhibits 103-X to 103-Y.
66   Exhibit 33-I.
67  
Exhibit 33, inclusive.
68   Exhibit 32, inclusive.
69  
Exhibit 29.
70   TSN dated 23 November 1998; TSN dated 12 January 1999.

          

PAGE 31  
          27.5.     Paco was able to take the 5:00pm flight to Cebu with one Carlos Noel on 17 July 1997,
71  and it was already 7:00pm when they arrived at the Mactan Airport, on board Philippine Airlines flight PR-833.72

          27.6.     Thereafter, Paco brought home Carlos Noel whom he saw unable to flag down a taxi at the Mactan airport and then at about 9:00pm, he finally proceeded home.73

          28.     Clearly, the alibi presented by the herein Accused-Appellant satisfies the requirements of time and place as laid down by this High Court and discussed above. It bears remembering that "Courts should not at once look with disfavor at the defense of alibi ... When an accused puts up the defense of alibi, the court should not at once have a mental prejudice against him. For, taken in the light of all the evidence on record, it may be sufficient to acquit him...74

a.    It is not true that only 
       biased witnesses supported 
       the Paco's alibi.

          29.     Many disinterested witnesses, whose only motivation is to prevent an injustice, came forward to do their civic part.

          29.1.     CCA teachers Chef Rowena and Chef Menoy were prepared to testify on the whereabouts of Paco on 16
______________________________
71   TSN dated 12 January 1999.
72  
Exhibits 37 and 38.
73   TSN dated 23 November 1999, Exhibit 64.
74  People vs. Medardo Castelo, GR No. L-48070 26 December 1984 citing People vs. Tabayoyong, 104 SCR~ 753 and People vs.
     Villacorte
, et al., 55 SCRA 640. 655

PAGE 32
and 17 July 1997 despite the threats and harassment made on them by Mrs. Chiong.75

          29.2.     Paco only met witness Carlos Noel in the afternoon of 17 July 1997, yet this witness came to Court to testify.

          29.3.     Four personnel from various airlines came to testify on the flight passenger
manifests of all their Manila-Cebu/Cebu­Manila flights on 15,16 and 17 July 1997.

          29.4.     Mactan Airport personnel also came to testify on the chartered flights which left and landed in their airport on 15, 16, and 17 July 1997.

          30.     As such, if is unfair to, state that the alibi presented by the herein Accused-Appellant
is corroborated only by friends and relatives.

          31.     Nevertheless, even if alibi testimony came from interested witnesses, that alone is not ground for rejecting it as long as there is nothing in the testimony or the testimony of another witness, or any part of said witnesses, or any physical fact which casts doubt or suspicion upon the truthfulness of the testimony. Interest on the part of a witness does not necessarily render his testimony incredible.76
______________________________
75   Exhibits 102.
76   B.W. Jones, THE LAW ON EVIDENCE CIVIL AND CRIMINAL, vol. 4, 1991, page 1866 (51h ed.)

PAGE 33
b.    The Court excluded 
testimonies that are 
relevant and material.
 


32.     The trial Court insisted that the testimonies of several witnesses concerning Paco's
whereabouts at hours other than 10:30pm of 16 July 1.996 are irrelevant to his alibi. 

            33.     The Court refused to listen to the Chef Rowena testimony,77

          COURT
                    As I said the testimony of this witness is not very material because she did not say that
                she saw the accused at 10:30 or around 10:30 PM, the time of the commission of the
                crime.

          ATTY. HERMOSISIMA
                    I will have ---

          COURT
                     So, it does not support the alibi anyway.

          34.     The Court also refused to hear Carmina Esguerra.78

          COURT
                    If this witness testifies that she saw Larraņaga in the morning you will not prove
                    anything. You will prove only that Larraņaga was there in the morning but the offense
                    was committed at 10:30 at night. So, it was possible for him to come to Cebu anytime
                    which would take only one (1) hour by plane. So, what will you prove by the testimony
                    of this witness? You are only wasting the time of this Court.

          35.     The Court curtly dismissed the offered testimony of Carlos Noel as being immaterial and irrelevant, even before he could sit on the stand.79
______________________________
77   TSN dated 4 January 1999, page 127. 
78  
TSN dated 6 January 1999, page 6.
79   TSN dated 12 January 1999.

PAGE 34
         
COURT
                     It will not also amount to a valid defense for Paco because as we said the law on alibi
                     requires that it is physically impossible for the accused to be at the scene, date and
                     time of the crime. So, if you establish an alibi as in that Abiabi case, Oco had an alibi
                     but he could not establish where he was at the exact time of the commission of the
                     crime. He could not establish his whereabouts and it took only about five (5) minutes
                     to the scene of the crime to the place whore he allegedly was without value and it
                     could not stand because it was not physically impossible for him to go to the scene of
                     the crime at 9:30, di ba, (Isn't it so)  and participated the killing of Abiabi and then go
                     back to where he came from, di ba? (Isn't it so?) It's only a matter of five (5) minutes.
                     0, papano, kagayd din nito?  (So, how, isn't it the same as this?) He will say that he
                     with Paco at 4:30 PM of July 17. E, tapos na ang commission of the crime (the crime
                     has already been committed)
and there
were even witnesses who said that they saw
                    Paco at 8:OOAM of that same day July 17. E, ito much later pa (So this is much later
                    yet.)
So, we will only be wasting our time.
80

            36.     We submit that such testimonies are not only relevant, they are crucial because they situate Paco at a place which, even by the fastest means of transport would place him far from the crime scene.

          36.1.     Prosecution witnesses Analie Konahap, Shiela Singson and Willard Redobles testified that Paco was at the Ayala Cebu mall in the evening of 16 July 1997. Clearly, evidence to be presented to show that he was actually in Quezon City at those precise times are and should be relevant.

          36.2.      Tricycle driver Rosendo Rio testified that Paco was allegedly at Carcar Cebu at 3:30am of 17 July 1997. Because of this, evidence showing that he was in Quezon  City at that precise time, should have been heard.
______________________________
80   Ibid., page 10.

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 35     
          37.     Likewise, evidence pointing to the unreliability of the positive identification made by the alleged eyewitnesses against Paco failed to see the light of day.

         37.1.     As previously discussed, Judge Ocampo did not allow the NBI to give its report and therefore the defense was unable to cast doubt on the testimonies of the employees of Global Village.

          37.2.     The Court also turned-away defense witness Mario Alesna of the Meteorological Office of Pag-Asa Cebu who came to Court three (3) times to attest to the inclement weather in Cebu on 16 and 17 July 1997, a weather condition which could have raised issue as to the circumstances and accuracy of the identification.81

          38.     Parenthetically, evidence that establishes actual impossibility to travel from Cebu to Quezon City in such lightning speed, was refused.

          38.1.     Captain Romeo Lisondra, Operations Manager of Mactan International Airport, came to Court on 28 January 1999 to testify that airport regulations prohibit the take-off of private aircrafts from Mactan after 6:00pm and before 5:00am.82 This testimony would have undoubtedly established that Paco could not have smuggled himself in or out of Cebu at the crucial times of the crime, just to perfect his alibi.
______________________________
81   Exhibits 107,108 and 110.
82  
TSN dated 28 January 1999, page 9.           

PAGE 36
         
38.2.     The trial Court easily dismissed such evidence on the belief that a plane trip from Pasay City to Cebu takes only an hour.83 Consider, however, car travel from Quezon City to the airport at Pasay City on a weeknight, the time required for check-in and boarding at the airport, time consumed by check-out and disembarking at Mactan airport, plus travel time from said airport to Ayala Cebu Mall where Paco allegedly met up with state witness Rusia. Surely, such evidence would be relevant insofar as it established the alibi of the accused.

          39.     The defense intended to satisfy the requirement of time and place in alibi, hence it sought to prove that Paco did not take any flight from Pasay City, the nearest airport to Quezon City where he was then studying, to Cebu where the crime was committed.  

          40.     The defense subpoenaed witnesses to prove that the accused was not on board any of the regular commercial flights plying the Manila-Cebu route in order for him to be in Cebu at the time he was allegedly sighted by the four (4) prosecution witnesses.  

          40.1.     Ivy Ortega of Cebu Pacific and Jesus Trinidad of Grand Air came to Court on 20 January 1999,84  to testify that based on their flight manifests, Paco was not on any of their Cebu-Manila/Manila-Cebu flights on 15, 16 and 17
______________________________
83   TSN dated 6 January 1999, page 14.  
84  
Exhibits 69 and 71, respectively.  

PAGE 37
July 1997.85 Rommel Gonzales of Air Philippines came to Court on 26 January 1999,86   bringing their flight manifests for the same dates and showing that Paco was not on board any of the said flights.87

          41.     Armin Tamayo of PAL came to Court on 18 January 1999,88  to testify that Paco was not on board any of their Cebu­Manila/ Manila-Cebu flights on 15 and 16 July 1997. He would have also confirmed that the name Francisco Larraņaga appears in the passenger manifest for the afternoon flight on 17 July 1997.  

          42.     The defense likewise subpoenaed government witnesses Captain Lisondra and Rolando Tabaņera,89  to attest that the accused did not charter any flight to or from Cebu and from or to Manila, on any of those dates. The said witnesses brought with them the general aviation and industrial logbook for July 1997 indicating all flights out of Cebu,90  the summary of flight plans for the month,91  the Aircraft Movement report for the dates 15, 16 and 17 July showing all flights out of Mactan airport,92   the Aircraft Operations logs for Mactan Tower which showed all flights out on said dates,93  and the Flight Plans for all chartered flights from Mactan for the' dates 15, 16 and 17 July 1997.94  All  
______________________________
85   Exhibits 94 to 99, inclusive and Exhibit 74, respectively.  
86    Exhibit 70. 
87    Exhibits 75 and 88 to 93, inclusive.  
88   Exhibit 67,
89 
  Exhibits 105 and 106.
90   Exhibit 77.
91  
Exhibit 78.
92   Exhibits 82 to 82-B, inclusive.
93  
Exhibits 82 to 84-B, inclusive.
94   Exhibits 85 to 87-J, inclusive.

PAGE 38 
these documents indicate that Paco did not charter any flight which left from 'or landed at the Mactan Airport.

          43.     All these proposed testimonies were brushed aside as being immaterial and were summarily described by the trial judge as a waste of time.95

c.   It is not possible that the 
alibi was just well 
orchestrated.

          44.     The trial Judge worked on the assumption that herein accused carefully and meticulously crafted his alibi to hide his crimes.96

          COURT
                   
Because the law on alibi in order to be - to have probative value it must have been
                    impossible for the accused to have been present at the scene, date and time of the
                    commission of the offense. But if it was not physically impossible and Paco could
                    have come over to Cebu that night of July 16 and than after the commission of
                    the crime flown back to Manila and in time for this witness to see him at 8:00am:

          45.However, by the prosecution witnesses' own narration, the presence of the victims at the Ayala mall that night was purely incidental.

          45.1. It was Jacqueline's first day-off on a Wednesday because usually, her day-off at work is Sundays.97
______________________________
95   TSN dated 27 January 1999, page 8.
96   
TSN dated 6 January 1999, page 10.
97    TSN dated 18 August 1998, page 57.

          

PAGE 39     
          45.2.     The Chiong sisters were waiting there because they were expecting their father to pick them up.
98

           45.3.     The rain was unexpected and it became more difficult to find a ride home.99

          46.      Even Rusia's narration on how the crime was committed showed lack of planning.

          46.1.     The masterminds purportedly chatted for 2-hours with the two (2) victims in full view
of the malling public.
100

          46.2.     It was only after they had "kidnapped"" the girls that they started looking for a van for
hire
.
101  Since they did not find any, they proceeded to the Guadalupe house and raped the sisters there.102

          46.3.     After having raped the girls already, they continued in their search for a self-driven van for hire,103  but had to settle for a van with a driver and conductor.104

          46.4.     With captives in tow, they stopped for barbeque and wine. 

          47.     From, Rusia's narration, it would appear that the accused did their damn best to be seen by as many people as
______________________________
98    TSN dated 3 September 1998, page 25.
99
    TSN dated 18 August 1998, page 58.  
100    TSN dated. 3 September 1998; TSN dated 7 September 1998; TSN dated 10 September 1998.
101   TSN dated 12 August 1998, page 56.
102 
  TSN dated 12 August 1998, pages 59 to 62.
103   TSN dated 12 August 1998, pages 60 to 62.
104   TSN dated 12 August 1998, page 74.

PAGE 40
possible. Nothing could be more silly, but the Court bought this story hook, line, and sinker.

          48.     Accused Larraņaga was depicted by the prosecution as a devil, an evil incarnate capable of vile rape and viler murder. Yet, his alibi was supported by many people who would not think twice about distancing themselves from an alleged killer cum rapist. They testified out of conviction, out of a passion for truth. Larraņaga's alibi was likewise buttressed, by relevant documents (airline records, school reports, tickets, and the like).

It was an alibi, if false, would have been easy to disprove. It was much too extensive, far too intertwined, much too complex, with far too many witnesses to have been contrived. Instead of seeing the alibi for what it is, the simple truth, the Court chose to weave a complex web of plots and sub-plots --- all intended to give rhyme to the Court's view that it was a false and well thought of alibi. Yet, by the Court's own narration of what it perceives to be the facts the criminals who perpetrated the crime were as bumbling, as careless, as clumsy, as stupid, and as, sloppy as the Keystone Cops.

d. It is not possible that the 
events testified on by these 
alibi witnesses could have 
occurred on any day other 
than the 16th and 17th of July 
1997.

          49.     During her testimony, Chef Rowena affirmed that the date "7-16"" referred to in her attendance sheet as the date Paco

PAGE 41         
attended her Applied Mathematics lecture at CCA could not have referred to any year other than 1997.

          49.1.     It could not have been earlier than 1997 because Paco had only enrolled at CCA that year, based on his student number.105

          49.2.     Likewise, considering that Paco had since been detained on the same year, (1997), the date in the attendance sheet could not have been any other year thereafter.106

          50.     Richard Antonio confirmed that indeed, it could not have been any other date when he went drinking with Paco and San Gaspar because he clearly remembers that it was the first day of their mid-terms. Besides, he recalls that on 16 July 1997, he was requested to bring home the school's foreign guest to the University of the Philippines campus before he went drinking at Tia Maria in the afternoon.107

          Q     So, you could particularly remember that July 16, 1997. Now, can you tell this
                  Honorable Court why you could significantly remember July 16, 1997 and not 
                  in any other date?

          A     At first July 16 is the day of our first mid-term exam. Secondly, a foreign guest 
                 speaker arrived --­  

          Q     And you can not be mistaken about the date?  

          ATTY. VILLARMIA     The witness is still answering, Your Honor.  

          COURT      Alright he is still answering.  

          PROS. GALANIDA  
______________________________
105   TSN dated 4 January 1999, pages 47-48. 
106   Ibid.   
107   TSN dated 25 November 1998, page 52, et. seq.; TSN dated 26 November 1998, page 4, et. seq.  

PAGE 42
              
I'm sorry.

          WITNESS     --- and it was recorded in our school office.108

          51.     Chef Rowena was very clear about the date (16 July) when she saw Paco and Richard Antonio at about 6:30pm at the school.  

          WITNESS     Yes, sir. "he reason why I remember that date because there were
                                 circumstances around that date. That date they had an exam, So, I knew 
                                 that there was a Fundamentals exam and when they came down after seeing
                                 them they said "Hi!" to me
, "Good evening" and they asked me why said I was
                                 there and I said because I was waiting for someone to fetch me that's the
                                 reason why I was there downstairs. And I asked them, I inquired about their
                                 exams, they said "it was okey," and then they just said "Okey, we will go now
                                 I'll see you tomorrow."
109 

          52.     0ther evidence likewise confirm that the get‑together at L~&R could not have been on any other day but 16 July 1997.  

          52.1.     The negatives of the pictures of the get-together,110  clearly indicated from the series of shots, that the same were taken after Garcia's speech at the University of Asia and the Pacific in Pasig City that afternoon of 16 July 1997.111

          52.27     Marianne del Gallego, who was in those pictures,112  only arrived from Cebu that afternoon as shown by the PAL passenger manifest.113
______________________________
108   TSN dated 26 November 1998, page 37. 
109   TSN dated 4 January 1999, page 125
110   Exhibits 48 to 50.
111   Exhibit 44.
112
   Exhibit 39-D.
113   Exhibit 104.  
 

PAGE 43
         
52.3.     Carlos Noel brought with him to Court his ticket & boarding pass for that 17 July 1997 trip,114 
his souvenir umbrella,115  and pictures and documents related to the seminar he attended which shows he took the flight from Manila to Cebu with Paco Larraņaga on 17 July 1997 and not on any other date.116

          53.     Clearly, these pieces of evidence establish that the alibi witnesses could not have lying
and could not have been mistaken about the date when they were with
  accused Paco in Quezon City.  

e.   It is not true that testimony
of Chef Rowena is 
inconsistent with the 
statements of Paco's 
classmates.
 

          54.     When Chef Rowena testified in Court, she clarified what appeared to be an apparent conflict between her direct testimony and the students' affidavit, a minor and adequately explained inconsistency.117

          PROS, GALANIDA
                   
And in fact according to you, you conducted a lecture in that school?

            A     Yes, Mam.

          Q     What time was it when you allegedly conducted the lecture?

          A     On what date, Mam?

          Q     On July 16,1997?

          A     From 8:00 o'clock in the morning to about 11:30.
______________________________
114   Exhibit 65.
115   Exhibit 61.
116   Exhibits 62 & 63.
117   TSN dated 4 January 1999, page 76.

PAGE 44
         Q     And what subject was it that you were lecturing about?

          A     A part of it was Applied Mathematics and since the students had an examination in the
               afternoon I also helped them, out in the questions that might be asked about the
              
Fundamentals of Cookery.

          55.     Witness Carmina Esguerra began testifying that she and Paco were classmates and that they were taking both Applied Mathematics and Fundamentals of Cookery during the same Term.118  However, she was stopped by the Court from testifying even before she was able to explain which of the two subjects they attended in the morning and which they attended in the afternoon. Had she been allowed, she would have confirmed Chef Rowena's statements.119

          56.     Chef Menoy would have likewise clarified that the mid-term examinations which he gave in Fundamentals of Cookery was from 1:00pm to 3:00pm of 16 July 1997 while the practical knife-skills test was given the next day, 17 July 1997.120

          57.The discussion of Wharton on alibi as a defense is instructive.121

                         The presence of the defendant at the scene of the crime at the time it was committed
                    is obviously an essential element of the prosecutor's case, and the ultimate burden rests
                    upon the prosecutor to prove such presence.

                         If the subject raises an alibi, he is in effect denying the claim if the prosecutor that he
                    was present at the scene of the crime at the time it was committed. He is neither
                    expressly or impliedly admitting the averments of the prosecution and, therefore, need
                    not set forth matter which would avoid the criminal liability that an admission would entail.
                    Instead, by asserting that he was at another place at the time when the
______________________________
118   TSN dated 6 January 1999, page 6.
119   TSN dated 6 January 1999, pages 6 to 19.
120   Exhibit 29.
121   WHARTON'S CRIMINAL EVIDENCE, vol. 1, ~&22, page 56-60 (14th ed., 1986).

PAGE 45
                    alleged crime was committed, the defendant is denying by necessary implication, if not
                    expressly, the allegations set forth in the charge.

                         Although defendant in the first instance must produce evidence in support of his claim
                     of alibi, the persuasion-burden of proving beyond a reasonable doubt the presence of
                     defendant at the scene of the crime at the time of its commission is upon the
                     prosecutor. It follows that the defendant may succeed simply by raising a
                     reasonable doubt of his presence at the scene of the crime at the time it was
                     committed. It is not necessary for the defendant to prove his alibi beyond a
                     reasonable doubt, nor even by a
preponderance of the evidence.

          58.     The cited evidence excluded by the trial Judge is therefore not immaterial to the defense of alibi, as the trial Judge would have this Court believe. Wharton ends, '^(t)hus even though the evidence of alibi may be insufficient of itself to establish the defense if, when considered with all the other evidence in the case, it raises a reasonable doubt, the defendant must be acquitted.122  

V. The Weakness of the Prosecution's
Evidence

          59.     It cannot be denied that the defense of alibi assumes importance and becomes crucial in negating criminal liability when the prosecution's case is weak.123 

          59.1.     In the case of. People vs. Medardo Castelo,124   this Court ruled that in the face of the highly incredible testimonies of the prosecution witnesses, the alibi of the accused acquits.
______________________________
122   See Id. at &22, page 61,
123  People vs. Noel Diaz, GR . No. 130652, 21 June 1999 citing People vs. Adofina, 239 SCRA 67, December 8,1994.
124   GR No. L-48070 26 December 1984.

          

PAGE 46  
          59.2.     Same with the case of People vs. Argawanon,
125  alibi was given greater weight vis-a-vis eyewitness testimony which lacks detail and credibility.

          60.     Such is the situation at bar.

          61.     The prosecution's case rests principally on the tale woven by state witness Davidson Valiente Rusia.

          62.     The oft-repeated pronouncement of this Court is that the testimony of a co-accused turned state witness should be received with great caution and should be carefully scrutinized,126 coming as it does from a polluted source.127  And when the witness has given inconsistent testimonies on a material point, his word should not be accepted and given credence.128

          63.     As such, the credibility of Rusia as a witness is material to the determination of the strength of the prosecution's evidence. As often said, a testimony to be believed must be credible and must come from the mouth of a credible witness.129
______________________________

125   G.R. No. 89543,13 November 1992. 
126   People vs. Pedro Bariquit; GR No. 122733; 2 October '2000 citing Ramos vs. Sandiganbayan, 191 SCRA 671 [1990].
127   People vs. Antonio Gongora; GR Nos. L-14030-31; 31 July 1963.
1
28   Escano vs. Sandiganbayan, GR No. L-53208-53333,15 Apri.14,998.
129   People vs. Dedace, 328 SCRA 679 (2000).

PAGE 47
a. Rusia is not a credible 
witness

          64.     Who is Davidson Valiente Rusia a.k.a. David Florido,130  a.k.a. Tisoy Tagalog,131 a.k.a. David Rusia, a.k.a. Ian Rusia and Mouse Rusia?132

          64.1.     He is a convicted felon of crimes involving moral turpitude, such as burglary,133  and stealing from an incompetent by forging a check and offering the same for encashment.134

          64.2.     He is likewise a confessed thief, having secretly encashed the paycheck of his friend and taking the proceeds for himself.135

          64.3.     He admitted receiving monetary support from the Chiongs as a consequence of his having helped with the case, and now claims they have abandoned him. Mr. Dionisio Chiong himself referred to Rusia as a hustler.136

          65.     Verily, he is one person who will not hesitate to carry out a crime or commit perjury to further his personal cause.
______________________________
130   TSN dated 13 August 1998, pages 53 to 54. 
131   TSN dated 13 August 1998, page 52,
132   TSN dated 17 August 1998, page 13. 
133   Exhibit 3, inclusive. 
134   Exhibits 4-E, inclusive.
135   TSN dated 17 August 1998, page 19.
136   SUN STAR CEBU, 28 January 2003.

PAGE 48   
          65.1.     He perjured when he stated under oath for purposes of qualifying as a state witness, that he has never been convicted of any crime, moral turpitude or not.
137

          65.2.     He maintained this pretense of not having been convicted of crimes of moral turpitude,138  until he was confronted with documents on cross-examination.139

          65.3.     Based on Vandory Cuico's narration, Rusia made a deal with the police and the Chiong family about testifying even though he knew absolutely nothing about the case. Cuico averred that the deal was in exchange for special treatment while in detention and ultimately, a criminal discharge.140

          66.     The trial Court dismissed the protestations of the defense against Rusia's discharge on the misapplication of the principle of territoriality of criminal law. The Court opined that the conviction of a crime involving moral turpitude must be made in Philippine jurisdiction to matter.141

          67.     Accused-Appellant is not asking the Court to sanction Rusia for offenses he committed outside its territorial jurisdiction. Rather, he divulged Rusia's criminal records to show that the state's witness is far from credible and that he is, by law, considered a polluted source.142 The law itself presumes
______________________________
137   Exhibit 5-F.
138   TSN dated 12 August 1998.
139   TSN dated 13 and 17 August 1998.
140   Exhibit 117. 
141   Order dated 12 November 1998, page 5.
142   WHARTON'S CRIMINAL EVIDENCE, vol. 2 &439, page 768 (14th 4d., 1986).

PAGE 49   
         
that one who is convicted of an offense involving moral turpitude can not sit as a state witness. The reason is obvious, his testimony can not be relied upon. Yet, Rusia was allowed to sit as witness. Rusia was allowed to be discharged.

         68.     Does the Court believe that a person guilty of a crime involving moral turpitude in the United States immediately regains credibility by merely crossing the Pacific Ocean and entering the Philippines?

          69.      Are we laying down legal principle that if, by some chicanery, a witness is able to get himself discharged as a state witness despite having been previously convicted of crimes involving moral turpitude, the Court is bound by his testimony because his discharge cannot be undone?

          70.1     Indeed, even if the Presiding Judge had ruled that Rusia's confession was voluntary, the question of weight and credibility is a different matter altogether.143

          71.     The larger question is, are we going to send six young men to the death chamber on the say-so of a drug addict and a convicted criminal? Is the trial Court correct in placing greater weight on Rusia"s word over that of an entire class of law-abiding students who vouched for accused-appellant's presence in their cooking school in Quezon City? Rusia swindled a mentally retarded individual, he broke into a computer store and took money from its cash register, he fooled his steady girlfriend
______________________________
143   B.W. Jones, supra, vol. 2, &402, page 747 (5th ed.)

PAGE 50 
for self-gain, he filched his own friend's paycheck. He was the consummate con man. He lied to survive. He stole without remorse. Now, he is stealing lives because this Court has ruled that his lies can kill.

          72.     We submit that the Court should have observed the rule that a witness conviction of a crime involving moral turpitude may be shown on, cross-examination to affect credibility.144  In fact, judgment of a foreign Court, if properly proved, may be given weight to affect the credibility of the witness.145

b. Rusia's tales are incredible.

          73.Consider the following ---

          73.1.     Sometime in March 1998, Rusia and his father sought the help of long-time family friend Vandory Cuico regarding his desire to clear his name in the Chiong case. At the time, Rusia swore he had no knowledge about the crime.146

          73.2.     In the early evening of 8 May 1998, Cuico saw Rusia inside the PNP jail in Cebu. Rusia again swore he had no knowledge about the Chiong case.147

          73.3.     The next morning, Rusia told Cuico and his father that he was forced at gunpoint by elements of the
______________________________
144   See Id, at vol. 3, &753, page 1400. 
145   See Id. at &754, page 1402.
146   Exhibit 117, paragraph.4. 
147   Exhibit 117, paragraph.4. 

PAGE 51
CIG to sign an affidavit confessing and implicating the herein accused.148

          73.4.     That evening, Rusia confessed to Cuico that he was made to "'point" to the ravine at Carcar where a body was found months back and claim that is where they threw one of the Chiong sisters.149

          73.5.     On 11 May 1998, Rusia executed a statement confessing to the kidnapping and murder of the Chiong sisters.150 In this version, he denied having raped any of the girls.151

          73.6.     On 7 August 1998, Rusia executed a Sworn Statement attesting that he had never been convicted of any crime, moral. turpitude or not.152  He affirmed the truthfulness and veracity of this statement in Court.153

          73.7.     On 12 August 1998, Rusia stated under oath that he raped the Chiong girls.154

          73.8.     It was only on 13 August 1998 when Rusia finally admitted having been convicted of burglary by the Minnesota State Court in the United States.155
______________________________
148    Exhibit 117, paragraph 6.
149    Exhibit 117, paragraph 6.
150   Exhibits 5 to 5-E. 
151   5-B, Q&A Nos. 17 to 19.
152  
Exhibit 5-F.
153   TSN dated 13 August 1998, page 58 to 59. 
154   TSN dated 12 August 1998, page 76 to 77. 
155  
TSN dated 13 August 1998, pages 72 and 75 to 78.

PAGE 52
          73.9.     On 17 August 1998, Rusia admitted that he had also been, convicted of and sentenced for forging and offering a forged check in the US.156

          74.     Even his own defense counsel intimated to the Court that Rusia lied.157

          COURT

                    He withheld vital informations? You mean he did not tell the truth?

          ATTY. GUBALANE
                   
No, Your Honor. When I talked to him yesterday he did not inform me that he raped
                    Jacqueline Chiong and nowhere in his affidavit did I read about such incident, Your
                    Honor please ---

          75.     In the light of all these conflicting, and untruthful testimonies given by Rusia, the doctrine of falsus in uno, falsus in omnibus is called into application. The import of this precept is that a witness who has been found to swear falsely as to one matter is not worthy of belief in other matters.158

          The reason for this rule, according to Starkie, is that, "as the credit due' to a witness is founded in the first instance on general experience of human veracity, it follows that a witness who gives false testimony as to one particular cannot be credited as to any ... The presumption that the witness will declare the truth ceases as soon as it manifestly appears that he is capable of perjury. Faith in a witness' reputation cannot be partial or fractional. xxx What ground of judicial belief can there be left when the party has shown such gross insensibility to the difference between right and wrong, between truth and falsehood?"159
______________________________
156   TSN dated 17 August 1998, pages 27-28.
157  TSN dated 13 August 1998, page 15.
158   B.W. Jones; THE LAW ON EVIDENCE CIVIL AND CRIMINAL, vol. 4, &994, page 1873 to 1874 (5th ed.) citing Schmidt v. Barr, 
       333 III 494, 165 NE
131 ALR 1, Truelsch v. Northwestern
Mut. L. Ins. Co., 186 Wis 239, 202 NW 352,38 ALR 914.
159   Ibid. citing The Santissima Trinidad, 7 Wheat (US) 339, 5 L ED  455, etc.

PAGE 53   
          76.     It must be stressed that the purpose for Cuico's testimony referred to earlier was not only to demonstrate that Rusia was coerced by the police to testify. More importantly, the defense would have established by his testimony that Rusia lied to the Court.

          77.     In fact, the trial Court itself expressed disbelief over Rusia's testimony. As discussed earlier, Judge Ocampo did not believe that the body found at the foot of the ravine in Carcar belongs to Marijoy Chiong's.

          78.     Indeed, there were manly implausibility in the Rusia testimony.160

          78.1.     Why was Aznar the only "'active"" participant in the entire abduction - he was the driver of white car, he was the one who grabbed Jacqueline, and he was still the one who run after her when she escaped - despite the fact that supposedly Rusia and Rowen were with him in the car and Larraņaga and the Uy brothers were allegedly in the back-up red car? If he had cohorts, why was he acting like a one-man operation?

          78.2.     Is it logical for the abductors to place the sisters on either side of their only "'guard'" Rowen at the backseat thereby giving each one free access to the car doors, when Rusia was just seated in the front and three (3y more
______________________________
160   Prescinding from the observations of Atty. Gloria Lasti4iiosa‑Dalawanpu, SUN STAR DAILY, 13 May 2002.

PAGE 54
members of their gang were just following behind on board the red car?

          78.3.     Why was there a need to hire a van when they already had two (2) vehicles? Did they need an additional car to perform their deeds? This is one "illogic"' which never bothered the Court.

          78.4.     What was the logic of the ad hoc recruitment of a driver (Caņo) and conductor (Balansag) in the middle of committing the crime? These two were unknown to the accused,, yet Rusia wants us to believe that they were immediately welcomed into the criminal circle, were taken into their confidence, then allowed to molest the sisters? Would one conspire to commit a heinous crime with virtual strangers?

          78.5.     Why will the abductors risk being seen in the company of their victims, described by Rusia to be almost unconscious from being raped and beaten, driving around to stop at the Park Place Hotel, then at the South Bus terminal, and then at a barbeque stand and liquor store? Then they decide to hang out for several hours at that very cliff edge from where they later decide to dump one of the victims?

          78.6.     Why was Rusia not able to give any more details about the incident than what was already known to the police and reported in the press by the time he came out, other than the names of his alleged gang-mates?

PAGE 55   
          79.     Considering the above, how then do we know which parts of Rusia's story is true and which ones are false? Rusia did not come forward because he was bothered by his conscience or that he had bad dreams,
161  HE WAS ARRESTED! Rusia did not offer his testimony voluntarily, his story evolved only after the police detained him.162

          80.     Wigmore points out that the inherent lack of trustworthiness of confessions lies in the fact that this type of statement or utterance is especially susceptible of being made "under the direct and palpable pressure of an inducement to substitute something else than the truth.163  Jones explains that these pressures include threats or promises made to induce the giving of the confession.164

c.   Rusia's tale was actually 
crafted to conform to the 
physical evidence on hand.

      81.     Rusia's confession came out almost 10 months after the alleged kidnapping incident.165  By 11 May 1998, the date of his Affidavit, everyone knew about the body thrown into the Carcar ravine.166

          82.     He then tailored his confession to conform with the physical evidence. It was meant to add credibility to an
______________________________
161   TSN dated 12 August 1998, page 92 to 93.
162  
Exhibits 5-A, Q&A No, 7.
163   BW Jones, supra., vol. 2, & 400, page 743 (5th ed.) citing WIGMORE ON EVIDENCE, 3d. ed. &  815.
164   Id.
165  
Exhibits 118, 119,120 and 121.
166   Exhibits 5 to 5-E.

PAGE 56     
incredible witness. The police certainly satisfied the public clamor to "solve" Cebu's crime of the century. Rusia, on the other hand, managed to shield himself from prosecution.

          83.     In fact, if not for the insistence of the police, even Mrs. Chiong did not believe the body in Carcar is Marijoy's.167  Marijoy's own' brother, who saw the body. at the funeral parlor commented that the hair on the corpse was longer than that of his sister's.168 Clearly, this Court was misled into thinking that the body was positively identified by the victims" family to be Marijoy's.

          84.     The trial Court, when it examined the evidence, repeatedly expressed doubts over the identity of the corpse.

          85.     During trial, the Court noted the suspicious failure of the Police to present pictures of the face of the cadaver that was found in the ravine,169 thus -

          COURT
                    Well, as you can see, I am still waiting for the examination of the exhibits myself,
                    particularly, of the photographs of that corpse that was allegedly found at the bottom
                    of the ravine at Sitio Tanawan, Carcar. And I would like to share my observation with
                    you to hear your own views on the matter because it seems to me that there is
                    something strange about this photographs that was taken by the police.

                    The photographs were all taken at an angle. There is no full face photograph, no
                    full face close up photograph of that corpse and the question that comes to
                    my mind,
why did not the police take any close up frontal photograph of that corpse.
                    The only photograph earlier were all -- angular shots and I remember that photographs
                    in the funeral parlor was taken from the corpse of Marijoy or
______________________________
167   TSN dated 11 January 1999, page 7; Exhibit 115. 
168
   SUN STAR dated 23 July 1997.
169   TSN dated 11 January 1999, pages 3 to 4.

PAGE 57
                    allegedly Marijoy that shows only her chin and nose and no frontal shot, as if there was
                    an intention to hide the identity of that corpse or to prevent or to frustrate people
                    who knew Marijoy's life to say or to confirm whether or not that corpse was
                    really of Marijoy
. Parang ayaw nila ipakita yong mukha. Bakit ganoon. (As if  they are
                    intentionally hiding the face of the lady. Why is it like that?
) That is surprising. You look
                    at these photographs.

          ATTY. S. ANDALES
                    That was the observation. That was also in my mind, Your Honor, please, that is why I
                    was vehement, your Honor, to really identify the said dead woman at Carcar because
                    we believed that, that is not the body of Marijoy Chiong.

          COURT
                    Yon na nga ... if (That's why...) 
I'm correct there why are all those photographs
                     angular?

          ATTY. S. ANDALES
                    At a distance also.

          COURT
                    There were front shots, nakatakip naman yong mukha. (but the face was covered.)
                   
There were also shots at the back, likod naman ang nakikita. (but only the back is
                    seen.)
Those where the face is showing, does not show also the face. It is not
                    decomposed.
It is clearly visible and recognizable, identifiable, only they
                    choose that, they forgot the face of the corpse.

          86.     Judge Ocampo repeated his manifestation regarding his doubt as to the identity of the corpse and the consequent effect that will have on the Rusia testimony.170

      COURT
                   
Well, you all now have a copy of today's Order and as you would see I had been
                    expressing doubt as to credibility of the witnesses not only with respect to defense
                    witnesses but also with respect to prosecution witnesses. I am not partial to any
                    matter. In fact, I agreed with the defense when I said there was doubt as to the
                    identity of that corpse found in Carcar, Cebu,
because there were no pictures of
                    the face parang gusto nilang itago, di ba, yong mukha. 0 papano? (as if they
                    wanted to hide the face. So, what then?)
So, I agreed with you that if it is proven that
                    that is not Marijoy Chiong's corpse, then alam ninyo ang (and you know the) logical
                    conclusion noon (then.) Can we say that these police substituted the corpse? Hindi
                    naman siguro. (maybe not for sure.)  Why will the police do that? Gusto ba nilang
                    maniwala ang tao na si (Do they want the people to believe that was) Marijoy yon,
                    di ba? (Isn't it?) (So why will they substitute another

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).
______________________________
170   TSN dated 14 January 1999, pages 3 to 4.

PAGE 58
                   
corpse? Also, will the accused do that? Substitute with another corpse. You mean
                    after they dumped Marijoy they went , down to the ravine, get another corpse and
                    substituted it with Marijoy corpse? E, lalong mahirap paniwalaan,yon, di ba? (that's
                    harder to believe, isn't it?)
So, what is the logical conclusion you can make if it is
                    proven that corpse is not Marijoy's corpse? The only logical conclusion is that
                    Rusia did not tell the truth when he said that Marijoy was dumped by two (2) of the
                    accused in the ravine, di ba? (isn't it?) That is the only logical conclusion. If you think I
                    am wrong, well, argue, refute my reasoning, di ba? (why don't you) We are all here to
                    reason out, di ba? (aren't we?) The truth by reasoning that this is the only logical
                    conclusion inferable if in case it is proven that the corpse was not Marijoy's. 0
                    papano? (how then?) Rusia did not tell the truth, di ba? (didn't jhe?) As far as that
                    aspect is concerned that they threw off the cliff. E,papano? (So, how?) Ano ba ang
                    conclusion doon? (What's the conclusion there?) Hindi man maaring sila ang nag
                   
substitute, polis naman sila. (It cannot be possible that they subsituted the body,
                    they are policemen.)
We are not stupid, di ba? (Aren't we?) We are rational human
                    beings. So, huwag sasama ang loob ninyo (so do not feel offended) if I question the
                    credibility of your witness because that is my purpose to encourage discussion
                    because truth is best reached by free trade in ideas. The best test of truth is the
                    power of the thought to get itself accepted in the competition of the market. Iyon ang
                    sabi ni what Justice Oliver. (Thats what Justice Oliver said.)  There should be open
                    competition for truth or reason out. E, papano kung tahimik tayong lahat, walang
                    magsasalita, o papano yan? (What if all of us keeps quiet, nobody will speak
                    out, what then?)
How will we know the truth? Iyan nga ang objective natin dito, (thats
                    our objective here)
this is a trial, We are trying to find out the truth kaya nga nag-trial,
                   
e, di ba? (thats why we have a trial, isn't this so?)   If we keep quiet at my doubts
                    tayo bakit ganoon hindi natin sasabihin (why will we not say it) and there will be no
                    discussion, how will we arrive the truth, di ba? (So, how?) E, de, saying ang panahon
                    natin dito. (So our time is just wasted here.) You are here, the prosecution is here
                    also for that purpose to cooperate in ascertaining the truth, discussion and let the
                    people know, the press, ano ba yan, tama ba yon, di ba, Atty. Andales? (why is that,
                    am I correct, am I not, Atty. Andales?)
If that is proven that is not the corpse of
                    Marijoy, that Rusia did not tell the truth, tama ba yon? (Is that correct?) Let them
                    know it. Think for themselves baka tama yon, di ba? (it might be correct, can't it?)

          87.     Consistent with the doubts he raised during trial, judge Ocampo made a finding in his Decision that the body at the foot of the ravine was not Marijoy's.171

                    xxx It is possible that the kidnappers buried or disposed of the bodies of the two (2)
                    sisters together and that the corpse found in Carcar was that of another woman
                    victim. xxx

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).
______________________________
171   Judgment dated 5 May 1999, page 11.

PAGE 59    
          88.   Because of these doubts, the defense asked that a forensic examination be conducted on the cadaver. Professor Jerome Bailen of the Laboratory of Physical Anthropology of the University of the Philippines was engaged to study the case. However, this Report (a, copy of which is hereto attached as Annex "C"') was refused admission by the Court.

          89.     After reviewing the methods, materials and findings of the prosecution's expert witnesses, Prof. Bailen made the following conclusion ---

                         I could not definitely rule out, at this point that the body of a female friend at
           the bottom of a ravine in Bgy. Tanawan, Carcar, Cebu, given the above
           consideration, could be that of Marijoy Chiong.
On the other hand, I also feel that the
           available and requisite methods of Human Identification procedures that should generate
           the kinds of adequate and incontrovertible findings leading to a positive identification have
           not been sufficiently harnessed towards a definite resolution of this problem.

                         A compelling adequacy and level of certainty in the positive identification of the
          said body is all the more necessary as the place where it was found has been noted by
          the police and the local inhabitants in the area as a frequent dumping ground of
          victims of summary, extrajudicial killings, dating back to Martial Law days and
          where alleged suicide victims are still frequently recovered
.
172

          90.     The Bailen Report likewise considered Rusia's story.

          90.1.     On the claim that they gang-raped the Chiong sisters, the finding by Prof. Bailen is noteworthy,173

                    It is also hard to conclude from the physical evidence alone that the woman
           was raped.
The presented simple --- findings of hymenal lacerations are very insufficient
           to come
-
______________________________
172    A Review of the Prosecution Experts' Identification. of the Female Cadaver Found in Tanawan, Carcar, Cebu, July 18, 1997,
       
page 7.
173
   Review of Evidences Submitted by the Prosecution Particularly  as these Relate to the Cause and Manner of Death, pages 11 
        to 12.

PAGE 60
                    up with an unquestionable conclusion that the victim was raped a few hours before or
                    around the time of her death, particularly when no other injuries were noted in the
                    areas near or around the female genitalia or in the medial (inner) surface of both thighs
                    and no tearing shown on the panty and the brasier which were shown to be still
                    properly in place in the body of the female corpse. This is specially so when the
                    alleged identity of the female corpse is that of someone whose personal history
                    included a long-term relationship. with a boyfriend as testified to by the mother.

          90.2.     On the claim that they pushed Marijoy from the cliff alive, Prof. Bailen has this to
say,
174

                         Documented soft tissue injuries are apparently consistent with the noted tearings of
                    the clothings. These soft tissue injuries are claimed by the prosecution expert as
                    having showed vital tissue reactions. However, signs of hemorrhage are not that
                    prominent. This could indicate that active flow (expected of a living person) has
                    ceased just prior to or at the same time that these injuries and fractures were
                    sustained. Temporal relations of the injuries could not be determined. It is hard to
                    claim that all the tissue injuries were sustained during the alleged falling
                    incident. Some of these injuries may be older.

                         The sustained fractures and other injuries may not be incompatible with
                    the fall theory.
However, the prosecution expert would concede it could be due to
                    other forms of blunt force injuries, it could be established at this point, based on
                    the presented evidences whether the body was thrown or pushed into the
                    ravine already dead or still alive. Aside from the4 state witness testimony, it could
                    not be discounted earlier that the woman run toward or jumped off the cliff on her own
                    volition to escape her tormentors. The theory that the dead body was dumped to that
                    area from the base of the cliff where she could have fallen could not be overlooked.
                    xxx

          91.     Again disregarding the rights of the accused, the Presiding Judge refused to receive
                    Bailen's report as evidence.
175 
When the defense attempted to call on Professor
                    Bailen during
sur-rebuttal "in order to unlock the mystery on the identity of
______________________________
174   Ibid., at page 11.
175   TSN dated 2 February 1999, page 3.

PAGE 61  
this woman,"  the Court barred the same on the procedural technicality that, the prosecution did not touch on the body's identity on rebuttal.176

          92.     The Court was of the puzzling view that it did not matter even if the defense can prove that the body did not belong to Marijoy. The judge would still believe Rusia's story because the defense would only prove that he lied about the corpse found in Carcar. It did not matter to the judge that the most crucial part of Rusia's testimony would have fallen apart. It did not matter to the judge that there was no corpus delicti. The judge argues that Rusia might have his reasons for lying (i.e., Rusia might have been involved in the killing of the woman in the ravine) and this should not affect the other parts of his testimony. From this discussion alone, it is crystal clear that the trial Court was bent on convicting all the accused - even if the walls supporting Rusia's testimony crumble. There was no room for reasonable doubt with this Judge. Such was the state in which all the accused found themselves. They were not facing an impartial Court. This incredible reasoning can be found in the transcript of 20 January 1999 which saw Judge Ocampo lecturing to the lawyers as follows,177  and we quote:

                         So even if the defense is able to prove that the corpse is not Marijoy, e tuloy pa rin
                    itong kasong ito. (we will still continue this trial.) And the accused will still be convicted.
                    Now, what will that prove if that is not the corpse of Marijoy? Well, it would prove that
                    Rusia lied with respect to that fact that he saw the accused dumped the body
                    of Marijoy into that ravine. But that does not mean that his entire testimony is
                    a falsehood.
That is the law. See? Falsus in uno falsus in omnibus. That
______________________________
176
   TSN dated 4 February 1999, pages 11 to 12.
177  
At page 13.

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 62
               
is not an absolute rule not because a witness testifies to a false part his entire testimony
                is already incredible or falsehood.    xxx That is why I determined not to allow
                exhumation of the body because that is desecration of the dead and besides as I
                said the identity of the corpse is not an essential element of the crime of
                kidnapping and serous illegal detention. Alright - and besides, that would only
                prove that Rusia lied as regards to the dumping of Marijoy's body but it will not
                prove that his entire testimony is a lie
, di ba? Iyon lang. (wouldn't it so? That's all.)  

d.   The testimonies of the so -
called corroborative 
witnesses were made
to fit 
the Rusia statement.

          93.     The record shows that not one of these so-called corroborative eyewitnesses executed a sworn statement of their alleged "sighting"' of Paco in Cebu on the evening of 16 July 1997 and early morning of 17 July 1997. It was only after fourteen months  of being exposed to constant and emotional media reportage of the crime and its investigation, and four (4) months after the exposure of the Rusia "'confession"" in media, that these witnesses popped up to dredge their memories and narrate their suddenly recalled stories.

          94.     It cannot be discounted therefore that their "recollection", more than one (1) year after the fact, were induced and suggested by the police and made to fit the Rusia tale.

          95.     The legal system has often relied on the testimony of eyewitnesses. Nowhere is this more true than in criminal prosecutions. Although the evidence eyewitnesses provide can be tremendously helpful in developing leads, identifying

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 63  
criminals, and exonerating the innocent, these evidence is not infallible. Even honest and well-meaning witnesses can make errors, such as identifying the wrong person or failing to identify the perpetrator of a crime.
178  Consider these statistics gathered from the United States. From 1993 to 2003, about one hundred twenty three (123) individuals have been exonerated through the use of post-conviction DNA testing, and more individuals are being exonerated weekly.179  Almost all these convictions were based on so-called eye witness testimony. Consider this other example, the Philadelphia Inquirer reported about the case of John Petaccio.180  He was charged with raping four teenage girls on separate occasions in Philadelphia. At a preliminary hearing, All four victims identified him as the perpetrator. Pettaccio's counsel pressed for a DNA examination. After spending 18 months in jail, he was exonerated by DNA test results.

          96.     We refer once more to the findings of Dr. Elizabeth F. Loftus in her years, of scientific research that it is possible that eyewitness testimonies are not necessarily accurate.181

          96.1.     She states that stored information is highly malleable and subject to change and distortion by events (such as misleading questions, overheard conversations, etc.) occurring during the retention stage.
______________________________
178
   Eyewitness Evidence A Guide for Law Enforcement, A Research Report prepared by the US Department of justice, 
       Office of Justice Programs, National Institute of Justice, October
1999, page 1,
179  
Kathy Sweedlow, A State by State Review of "Post Conviction DNA Testing" Statutes published by the Journal of justice
       Studies, January, 2003.  
180   27 June 2002. 
181   E.F. Loftus, Eyewitness Testimony,  Harvard University Press, 1996.

PAGE 64      
          96.2.     She adds, people are less accurate and complete in their eyewitness accounts after a long retention interval than after a short one.

          97.     Thus Dr. Loftus concludes that "casually mentioning a nonexistent object during a course of questioning can increase the likelihood that a person will later report having seen that nonexistent object.182

VI. Police Planted Evidence From the
Very Start
 

          98.     Accused Rowen Adlawan was arrested on 8 September 1997 and charged with illegal possession of firearms before Branch 2 of the Municipal Trial Court of Cebu City.183 However, in a Decision dated April 23, 1999, the said Court dismissed the case upon the finding that the firearm was planted by the police on Adlawan in order to validly detain him in connection with the instant case.

                         xxx This zeal on the part of the police, promted them to "plant" evidence in the
                    body of accused so he would remain under custody until the evidence of the Chiong
                    case be~brnes airtight not only to create a prima facie case but ultimately sustain the
                    conviction of the accused involved therein. xxx

          99.     Likewise, accused Josman Aznar was also arrested and charged with illegal
possession of a firearm during a raid in his Lahug residence where police claimed to have seized a .38 caliber pistol This charge was likewise dismissed by the Municipal Trial
______________________________
182
   Ibid., pages 54-60.
183  
Criminal Case No. 77776-R.

PAGE 65 
Court of Cebu City Branch 4,
184  after 5 years, or on 8 July 2002, because police witnesses did not show up in Court.

          100.     The Bailen Report also points to a probable planting of the supposed fingerprint of Aznar in the computer diskette found at the crime' scene. As found by Prof. Bailen, it was "surprising that the Police managed to preserve and still develop and lift a fingerprint from the flat, prominent, smooth metallic part of the diskette" considering that "almost three (3) months have passed since the alleged date of recovery of the diskette and after so many handlings by different PNP personnel and referrals to many officers."185

                    Conclusion:
                         1. The characteristics of the alleged left thumbprint developed and lifted from the
                             diskette are more similar to that of the rolled on fingerprint of the same finger
                             rather than the plain (or dabbed/touch on) print of the analogous.

                         2. As the rolled on fingerprint is typically not the kind of print one leaves while
                             casually touching an object, but must be definitely printed (i.e. rolled on) on a
                             plain surface, the other conclusion would be that the rolled on fingerprint
                             allegedly lifted and developed from the diskette must have been
                             produced by one and who consciously rolled a finger on that flat surface.

                         3. It is highly unlikely that the person claimed by the PNP fingerprint
                             examiner said to be the source of that thumbprint could have left that
                             latent print by simply casually touching that diskette.
186

          101.     Moreover, it was raining hard all over Cebu on 16 and 17 July 1997, as would have been attested to by the weather
______________________________
1
84   Crim. Case No. 45039 R.
185  
Supplemental Report on Further Analysis of the Questioned Print Marked as "Q" and the Left Thumbmark of Josman Aznar
       Marked as "S-2" in Relation to Other Fingerprints Collected from Josman Aznar and Other Accused When Arrested,
page 1. 

186   Ibid. at page 4.

PAGE 66
specialist whose testimony was also disallowed by Judge Ocampo. No fingerprint on a diskette would have survived the rains that attended the area where it was allegedly recovered. Obviously, the police planted the fingerprint on the diskette to support their case. They, of course, failed to realize, that forensic evidence alongside the weather would prove their planting. Unfortunately, they had on their side a judge who refused to allow this evidence. One other surprising point, the prosecution never disclosed the contents of the diskette to anyone.  

VII. Barring of Available Exculpatory
Evidence

a. The Dr. Lancauan testimony

          102.     Police witness Edgardo Lenizo testified that when his Medical Team responded to the request for medical examination of the body found at the foot of the Carcar ravine, he was with Dr. Nestor Sator and their dentist Dr. Lancauan.187

          Q     After that was done, what next happened there at the Tupas Funeral Parlor?
     
          A     The dental officer, Dr. Lancauan immediately conducted a dental examination on the
                  dead woman.

          103.     Dr. Lancauan had conducted a dental examination of the cadaver.188 However, the
Prosecution chose not to disclose the findings of the dentist and never presented the same in Court. Dr. Lancauan was never called to testify.

______________________________
1
87   TSN dated 22 September 1998, pages 31 to 32.
188  
Ibid. at page 33.
       

PAGE 67
          104.     Cebu newspapers, however, secured reports indicating that the initial medico-legal report on the dental examination on the cadaver did not match the samples of the victims.
189

          105.     What was being hidden by the Prosecution? What was behind their vehement
opposition to the presentation of the dentist?
190

          106.     As discussed above, the Bailen report repeatedly raised issue on why the results of the dental examination were not submitted to the Court. Accordingly, such test would have easily addressed doubts on the identity of the body or confirmed the findings of the fingerprint examiner.

b. Mishandling of evidence

          107.     The Bailen Report is replete with commentaries on how the police mishandled the evidence.

          108.     At the onset, Prof. Bailen raised questions about the accuracy of the police identification of the body as being that of Marijoy Chiong's.191

          108.1     He first questioned "'(t)he failure of the PNP Forensic Team to locate the obviously easy to spot mole on the nose as Marijoys "identifying trait, she herself noted down in her COMELEC Voter's Record." He viewed this as
______________________________
1
89   Exhibit 115.
190  
TSN dated 22 September 1998, pages 33 to 34.
191
   A Review of the Prosecution Experts' Identification of the Female Cadaver Found in Tanawan, Carcar, Cebu, July 18, 1997, 
       page 6
.

       

PAGE 68
relevant considering the contrary observation of the victims' brother that the head hair on the cadaver was too long to be that of Marijoy.
192

          108.2.     Accordingly, such "'traits being intrinsic to the body, instead of being occasionally put on (as for instance clothing and other transferable or mass-produced items) only add to our reasonable doubt that the body has been definitively and positively identified as that of Marijoy Chiong."

          108.3.     Specifically referring to blue Guess jeans and orange Giordano collared T-shirt allegedly last worn by Marijoy and the cadaver, he commented that "'clothing or items occasionally worn by the individual that are mass-produced, readily available in popular sizes in many supermarkets, not only here but elsewhere can only add points to a presumptive but not definitive identification of a body."

          109.     On the identification of the body by virtue of fingerprint matching, Prof. Bailen questioned the procedure employed in the sampling and the standard print used to make the match.193

          109.1     He first noted that "the skin sample allegedly taken from the thumb of the cadaver shows a inadequacies" because it shows ""loss of epidermal surface
______________________________
1
92   SUN STAR dated 23 July 1997.
193  
Ibid., pages 4 to 6.
       

PAGE 69
tissue" and there are "cuts and large tears on the epidermal surface, resulting from careless scraping of the underlying tissues."

          109.2     He commented that embalming of the body "wrinkles the 'epidermal surface"' and wondered why the "fingers were not reconstituted (injected with suitable substance to inflate the fingertips so it could assume its normal convex shape for easier ink-print collection)" or why "only the thumb skins were excised."

          110.     Prof. Bailen had reservations about police reliance on only one method (of identification) based on very limited and not so informative material such as a single and poorly printed right thumbprint and a badly prepared tight thumb skin preparation."

          111.     The question is, did the Medical Team really forgo the dental matching? Inspector Lenizo testified that Dr. Lancauan examined the dead body after him. Where are the results of the supposed dental examination? Why were they not presented in Court?

          112.     The Bailen Report also criticized the manner by which evidence was collected and preserved, particularly the specimens taken from the cadaver, the T-shirt, maong (denim) pants, bra, and panty. Accordingly, one article was even wrapped in a

(NOTE: For the benefit of our foreign readers, blue wordings is our translation from Tagalog (Philippine language) to English ...the webmaster).

PAGE 70
newspaper.194 While this kind of mishandling and contamination may be dismissed as pure incompetence, there will always be the suspicion that it 'was deliberately done to fudge the truth.

CLOSING

          113.     In this Motion, we have outlined the reasons why the Court should take a second look at its Decision sentencing accused Larraņaga to his death. We have summarized our cause in our Prefatory and fleshed them out in our Discussion. We hammered on the strength of Larraņaga's alibi and the weakness, inconsistency, and unreliability of the prosecution's evidence. We lamented the deprivation of opportunity to fully ventilate our defense. We decried the suppression, the disallowance, the concealment of vital evidence which would have proven Paco Larraņaga's innocence. We recorded the multiple instances where important witnesses were not allowed to testify. We protested the instances where evidence (including forensics) were not allowed to be introduced.

          114.     We also maintain that Paco Larraņaga's conviction is the unconstitutional result of police and prosecutorial misconduct. We maintain that accused Larraņaga was tried by a Court that disregarded the basic rules of fairness, that denied him access to favorable evidence, that convicted him even before he presented his defense. We maintain that criminal trials are not games of "hide and seek", where the prosecutors may hide
______________________________
1
94   Review of Evidences Submitted by the Prosecution Particularly as these Relate to the Cause of and Manner of death,
      
Laboratory Examination Report by Prf Paz V. Abis, MS Chem., page 2. 

PAGE 71
evidence and the defendant must seek them. We maintain that the actions of the police, the prosecutors, and the trial Court is not tenable in a system constitutionally bound to accord defendants due process. We ask that this Court deliver a well-deserved rebuke to the authors of this travesty.

          115.     Accused Larraņaga was tried under abnormal circumstances. Previous to his trial, there was a media circus that played on for several months. The continuous stream of propaganda produced an ocean of speculation, of rumor, and of opinion. The Prosecution rode on the tide media created. The trial Court was swept by it. Theories were being tossed, minds were being shaped, and emotions were being frayed. There were assumptions, there were presumptions. There was a call for blood. Reputations were destroyed and/or placed in disrepute long before the first witness took the stand. Everyone, including the so called independent prosecution witnesses were affected by these media vollies. Such is the. disadvantage that any accused in high profile and widely publicized cases face. Such was the situation where accused Paco Larraņaga found himself. Almost everyone wanted to believe the worst of him. Almost everyone except those who were with him in Quezon City on the evening of 16 July 1997. We must point out that the witnesses that the Prosecution presented never executed affidavits against Paco Larraņaga in the early stages of this drama. They surfaced only after more than a year of media bombardment -- after their minds were conditioned and after their prejudices were formed.

PAGE 72
          116. On the basis of the foregoing, we submit that accused Larraņaga should be acquitted and set free. We submit that, at the very least, he deserves a retrial under fair and impartial circumstances. We look upon the teachings of this Court when it asserted ---

                         "Given the gravity of the offense charged and the severity of the sentence
                    imposed, even a mere shadow of doubt in this case might vitiate the result reached
                    below. Hence, we are favorably disposed to make sure that every piece of pertinent
                    material evidence be adduced before the trial Court.", As well said in People vs.
                    Ebias,
195
  "we cannot in good conscience convict accused-appellant and impose
                    upon him the death penalty when evidence which would possibly exonerate him may
                    be presented by him in a new trial."
196
 

PRAYER

WHEREFORE premises considered it is respectfully prayed that the High Court --­

A.     Allow the Accused-Appelant-Movant to orally argue his case as herein stated; and     

         B.     Thereafter, RECONSIDER its Decision dated 3 February 2004 and in lieu thereof render
                  a decision of ACQUITTAL on the ground of innocence and/or reasonable doubt, or
______________________________
1
95   SCRA 675, 690 (2000).
196   People vs. Romeo Datu, GR No. 136796,19 February 2003.

PAGE 73

         C.     In the alternative, declare the proceedings before Judge Martin A. Ocampo a MISTRIAL
    and REMAND the case back to the Regional Trial Court of Cebu for RE-TRIAL.

Other reliefs just and equitable under the premises are likewise prayed for.  

Pasig City for Manila ; 02 March 2004.

 

signed:   ARROYO CHUA & CAEDO 
Law Offices 
        
      G/F Cedar Mansion
                   Escriva Drive
, Ortigas Center  
   Pasig City 1605       

By:                        

            signed:   WILLIAM T. CHUA                        
      Roll No. 32769         
                     IBP No. 607016/Q.C./1-12-04
                            PTR No. O397117/ Pasig/ 1-07-04

                                        signed:   SANDRA MARIE OLASO-CORONEL                    
       Roll No. 40316         
                      IBP No. 607019/Rizal/1-12-04
                            PTR No. O397117/ Pasig/ 1-07-04


Copy Furnished:
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street 
Legaspi Village
Makati City 1229


PAGE 74

REQUEST

 

The Clerk of Court
Supreme Court

GREETINGS:

          Please include the foregoing Motion for Reconsideration in the agenda of the Court En Banc for oral argument as soon as the calendar of the High Court will allow.

                                                                      signed:   SANDRA MARIE OLASO-CORONEL


NOTICE

SG Alfredo S. Benipayo
Office of the Solicitor General  

GREETINGS:

          Please note that the foregoing Motion for Reconsideration is requested to be placed in the agenda of the Court En Banc for oral argument as soon as the calendar of the High Court will allow.

                                                                                      signed:   SANDRA MARIE OLASO-CORONEL

NOTE:   THE ABOVE TEXT IS THE FAITHFUL REPRODUCTION OF THE ORIGINAL
        DOCUMENT REFORMATTED FOR  CLEARER APPRECIATION.              

                 HOME     INDEX