Wednesday, May 13, 1999 issue

PART 18 

           

   
"THE turning point that strengthened the case for the prosecution was the testimony of its state witness Davidson Valiente Rusia....," Ocampo said. The judge, however, did not believe Rusia's testimony that Adlawan and Balansag pushed Marijoy off the cliff at Tan-awan, Carcar when he expressed serious doubt as to her identity.

     "It could be that of an earlier victim of the same gang," he said-a statement without any factual basis. Ocampo, though was quick to add that "not the entire Rusia testimony is false."

     As the credit due to a witness is founded on general experience of human veracity, it follows that a witness who gives false testimony as to one particular fact 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. (Starkie, Evidence, 973)

     Since the court depended heavily upon the testimony of Rusia, it should have scrutinized it deeper, especially on the following points:

     1) That while Aznar was driving the car, Adlawan was seated beside him so when Rusia boarded the car, he must have sat at the back. 

     2) Rusia was "shocked (at Aznar and Adlawan's forced taking of the sisters into the car) and did not expect such a development." It is safe to assume he remained at the backseat. He was not part of the criminal plan and design.

     However, common sense dictates that in illegal operations by a group, the driver always remains at the wheel to facilitate easy escape from the scene. I find this portion of Rusia's testimony baffling and against natural occurrences. 

     Why would Aznar leave the wheel to personally abduct the Chiong sisters if the backup red car boarded by Larraņaga and the Uy brothers was jut behind? If the three were part of the conspiracy, was it not logical for one or two of them to grab and force one of the Chiongs into their red car and the other into the white car to assure better success in their abduction in the shortest time? 

     3) No explanation was given why Aznar stopped the car some 14 meters from the waiting shed, allowing Jacqueline to run, only to be chased and brought back by Aznar. I find it puzzling why it was Aznar who chased Jacqueline when he had companions tailing them and backing them up.

     I also find it illogical that both sisters were forcibly boarded in the white car, leaving Adlawan alone to overcome their efforts to struggle (since Rusia was a mere "shocked" observer) while the red car was not doing anything except follow.

     If prosecution witness Rolando Dacillo indeed saw, as he claimed, the commotion, why did he not take note of the plate numbers of the cars or report the crime to the authorities? 

     (As of Atty. Dalawampu's writing, it was not yet known that Dacillo was in truth and in fact already a police asset at the time he "witnessed" the alleged abducting. A fact he kept from the court.   ......M. del Gallego).

     In the entire testimony of Rusia, he also did not mention the plate numbers of the white car driven by Aznar and the red car driven by Larraņaga. Why? No one among the prosecution witnesses also ever mentioned the plate numbers, which would have sufficiently established the participation of the accused.

     4) The decision said "Rusia took a packaging tape underneath the front seat where he was seated and gave it to Adlawan, who taped their mouths and handcuffed the sisters."

     Since Rusia was already assumed to be at the backseat, when did he transfer to the front seat? The only logical time of transfer was when Marijoy and Jacqueline were grabbed and forced inside the white car. Was he not one of the two men who forcibly pushed the Chiong sisters inside the white car?

     Why wasn't one of the Chiong sisters able to get out of the white car and run away as soon as Aznar went back to the wheel, inasmuch as Adlawan could only handle one of the sisters since Rusia was not of any assistance? The white car appeared to be without a power or automatic lock. Baffling me more is Rusia's testimony that each of the Chiong girls was seated by a window where escape could be facile while Adlawan was between them. This is very unlikely in a kidnap operation.

     There is no showing that Aznar nor Adlawan used any firearm, bladed weapon or any drug to subdue the sisters. Adlawan was only using his bare hands against the two Chiong sisters who put up a fierce fight.

     5) Benjamin Colina testified that Adlawan and Rusia wanted to hire a self-driven van but he refused. With this, I find Rusia not a "shocked" observer, but an active participant. Besides, was it not inconvenient for Adlawan, who was "sandwiched" between the two sisters in the white car, to disembark? and unlikely for him to leave his victims alone at the backseat? Colina also did not mention the plate numbers of the red and white cars.

     6) Miguel Vergara, a dispatcher and owner of a rolling store at the South Bus Terminal, testified that Adlawan asked him where they could hire a vehicle. He pointed to a van bearing Plate GGC-491 with Alberto Caņo as driver and Ariel Balansag as conductor. He further testified that he saw two mestizo-looking youths holding two young girls by the waist but didn't say that the girls' mouth were taped and their hands handcuffed. His testimony showed that the two girls were conscious. There was no sign of resistance. He also did not mention the plate number of the white car.

How did Rusia, Adlawan and Wangwang go to the South Bus Terminal as only the white car was seen? Did Aznar, Larraņaga, Adlawan, Wangwang and Em-em, together with Marijoy and Jacqueline-all EIGHT of them-(fit) into the white car? Where was the red car? Why did they still hire another vehicle when they all could be accommodated in two cars?

     7) Alfredo Duarte, a driver and a resident of Awayan, Carcar, identified the van and Adlawan as the man who bought barbecue at the store. He did not mention the white car.

     I find it unusual and unnatural for Aznar, Larraņaga, Adlawan, Wangwang and Em-em, with their victims inside the vehicles-the white car and the van, later-to make a several stops, for a considerable length of time at each stop, leaving their criminal prints which could betray their identification.


     First, they all went to the Park Place Hotel to negotiate for a van-for-hire; then, at the South Bus Terminal to hire the white van; later, at a store to buy barbecue and liquor in Carcar; and, finally, at a cliff in Tan-awan where they hang out for several hours.

High on drugs? The only evidence was the testimony of Rusia of a pot session of marijuana he himself brought. There is no evidence that Larranaga,

Larraņaga, Aznar, Adlawan, Wangwang and Em-em are drug addicts. Judge Ocampo's findings that the accused are victims of our drug culture is not substantiated by evidence except with respect to Rusia.

    "Marijuana does not cause aggressive behavior. The pacifying effect of marijuana makes the individual non-aggressive rather than cause violent crime." Marijuana Problem by W.R. McGlothin, The Marijuana Paper, AmJ of Psychiatry, 125, 370, 1958 cited by Solis, Legal Medicine p. 671)

     "There is no evidence that marijuana leads to sexual debauchery. Marijuana is not an aphrodisiac..." (Cannabis by W.H. McGlothin, The Marijuana Paper, Indianapolis, 411, 1966)

     8) Mario Miņoza, a tricycle driver, testified he saw a woman with Chinese-looking eyes running on the road. At 4 a.m., can Miņoza, who did not stop to intently look at the features of the woman, make such a distinction? If he could observe the van with Plate GGC-491, why did he not mention the white car and its plate number, which was also parked nearby per Rusia's testimony?

     Manuel Camingao, also a tricycle driver, only identified the van and took down its plate number but did not testify regarding the white car.

     Neither did Rosendo Rio.

     In sum, nobody testified as to the plate numbers of the white and red cars. Not even Rusia. Nobody also testified seeing the white car at Tan-awan.

     Judge Ocampo did not believe Rusia's testimony as to the identity of the woman found at the bottom of the cliff, hence, there is no evidence as to the killing. There is also no evidence of rape except that committed by Rusia on Jacqueline. Necessarily the, the rest Rusia's testimony becomes doubtful and must necessarily fail.

     Judge Ocampo found the testimony of Rusia was substantially corroborated by the 10 prosecution witnesses "almost every step of the way from Ayala Center to Carcar." I beg to disagree as shown by the following circumstances:

     1) Dacillo claimed to see Aznar, whom he had not known or even seen before the incident.

     2) Colina identified only Adlawan. He identified Caņo and Balansag as the driver and conductor, respectively, of the van with plate GGC-491.

     4) Miņoza and Cami-ngao did not identify any of the accused. They only saw the van.

     5) Duarte identified only Adlawan and saw only the van.

     7) Rio identified Aznar and Larraņaga, but I seriously doubt this because he just passed them while driving a motorcycle while it was still dark. How could he identify them in a split of a second?

     It is clear then that no prosecution witness supported the identification of the accused brothers-James Anthony Uy and James Andrew Uy. The identification of Larraņaga by Rio is doubtful as earlier discussed. The identification of Aznar by Rio and Dacillo is also not sufficient. Only Adlawan was identified by two witnesses. The evidence only established that the van with plate GGC-491 was at Tan-awan, Carcar with Caņo and Balansag.

     Shiela Singson said that at 8 p.m. of July 16, 1997, she saw Larraņaga approach the Chiong sisters. Analie Konahap said she saw Larraņaga and Aznar talk with the sisters at 9 p.m. Williard Redobles also testified that he saw the two men talk with the sisters at 10 p.m., thereby showing that they talked with the sisters from 8 to 10 that night.

     However, taking the testimony of Thelma Chiong that Larraņaga, an unwanted suitor, had threatened Marijoy a month before the incident, I find it surprising that the Chiong sisters would talk with Larraņaga and Aznar for two hours or more. They could have gone back to Global Village, which closes as late as 11:30 p.m., to wait for their father.

     In his decision, Judge Ocampo found conspiracy among all the accused. How could he when their participation in the commission of the offense is doubtful? Only Adlawan's identity was established. Only the presence of the van with plate GGC-491 was established, with Caņo and Balansag as driver and conductor.

     There is no evidence that prior to July 17, 1997, Caņo and Balansag were known to their co-accused.

     Likewise, Rusia did not say why they still had to hire the van at the bus terminal when they already had two cars. Why would they take in Caņo and Balansag, total strangers, then allow them to molest the Chiong sisters?

     I have serious doubts that Rusia only scripted his testimony to establish a logical relation to the presence of the van at Tan-awan, which fact was already established prior to the arrest of the other accused for his own convenience and to qualify him as a state witness. It must not be overlooked that Caņo and Balansag were first arrested, then released.

     Conspiracy must be proved as the crime itself. (People v. Jose, et al. L-35280, Aug. 30, 1983, 124 SCRA 86) But, in the instant case, the People failed.

     Kidnapping and serious illegal detention is punished by the penalty of reclusion perpetua to death. When the victim was killed or raped, or is subjected to torture or dehumanizing acts, the maximum penalty of death must be imposed. (Art. 267, RPC as amended by RA 7659)

     Judge Ocampo, however, imposed only a penalty for two reclusion perpetua because he doubts the body found at the bottom of the cliff was Marijoy's. The body, when found on July 18, 1997, only 24 hours after the incident, had maggots on the mouth and nostrils and bloated stomach, changes occurring only after 48 hours from death. (p. 143, Solis, Legal Medicine). The approximate time of death can be inferred from the degree of decomposition.

     There were also no findings as to the duration of the physical injuries sustained by the woman to correspond to the alleged date of commission. (p. 507, supra). Although Dr. Sator found deep and shallow hymenal lacerations, he did not testify as to the duration of these lacerations. The cervix and uterus were also not examined to determine the presence of spermatozoa which are motile up to 17 days. It should have been determined also if the seminal fluid found by Jude Daniel Mendoza belonged to only one male.

      Judge Ocampo did not find any evidence of rape because Rusia said he did not see any of his co-accused rape the victims; albeit, he did rape Jacqueline.

     Since Judge Ocampo did not believe in the testimony of Rusia as to the identity of Marijoy, which is the most solid evidence to support the testimony of Rusia, then all other portions of Rusia's testimony must necessarily fail.

     To my mind, Judge Ocampo was not morally certain on the guilt of the accused. Thus, he imposed a lower penalty. He considered circumstances of age, poverty, lack of education and drug addiction as mitigating circumstances which did not find support in law. Only the Uys, both below 18 years old at the time of the crime, are entitled to the mitigating circumstance of minority. On the contrary, too, drug addiction is aggravating.

     Had Judge Ocampo been convinced of the veracity and truthfulness of the testimony of Rusia, then, finding all the accused guilty, he would have imposed the penalty of death on all of them.

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