DE TORRES, RECHEL T.

1F Republic of the Philippines SUPREME COURT Manila EN BANC THE PEOPLE OF THE PHILIPPINES - Plaintiff ______Versus_____ 176864 ANTONIO LEJANO, HUBERT JEFFREY P. WEBB, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO BIONG -Defendants X--------------------------------------------------------------------------------------------X G. R. NO. 176389, G.R. NO.

MOTION FOR RECONSIDERATION COMES NOW, the defendants thru their undersigned counsel and to this Honorable Court respectfully moves for the reconsideration of the Decision of this Honorable Curt dated December 14, 2010 on the ground that: BASED ON THE FACTS AND RECORDS, WHICH SHOWS THE CREDEBILITY OF THE TESTIMONY OF PRINCIPAL WITNESS JESSICA ALFARO CORROBORATED BY THE TESTIMONIES OF SECONDARY WITNESSES.

BRIEF BACKGROUND Estrellita Vizconde and her daughters Carmela, nineteen (19) years old and Jennifer, seven (7) years old were brutally killed on June 30, 1991 at their home at Paranaque City. An intense investigation was conducted by the police and arrested a group of suspects of who gave detailed confessions. The trial court doubted these confessions and smelled a frame-up. Eventually the release was ordered thus the real perpetrators identities remained to be a mystery especially to the public whose curiosity were aroused by the details tagging the case as Vizconde massacre. The National Bureau of Investigation or NBI announced that they already solved the crime four years later in 1995. The institution presented its star witness in the persona of Jessica Alfaro, one of its agents/informers who claimed to witness the crime. She named Hubert Jeffrey Webb, Antonio Tony Boy Lejano, Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez and Joey Filart as the culprits who were responsible for the crime. She also tagged accused police officer, Gerardo Biong, as an accessory for destroying the body of the crime. The public prosecutors charged information for rape with homicide against Webb, et al on August 10, 1995 relying primarily on the testimony of Alfaro. Judge Amelita G. Tolentino presided over the Regional Trail Court of Paranaque City, Branch 274. The RTC tried only seven (7) of the accused since Artemio Ventura and Joey Filart remained at large. The prosecution presented Jessica Alfaro as its principal witness and others supporting her testimony. These include Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims and testified on the wounds they sustained and the presence of semen in Carmelas genitalia, indicating that she had been raped, the security guards of Pitong Daan Subdivision where the Vizcode live, the former laundrywoman of the Webb

household, police officer Biongs former girlfriend and Lauro Vizconde, Estrellitas husband. On the part of the accused, some of them deny their participation saying that they were somewhere when the crime took place. Webbs alibi appears to be the strongest since he claimed to be overseas particularly in the United States. He then presented documents, as well as testimonies of witness and object evidence to prove his alibi. In addition the defense present witnesses to reveal Alfaros bad reputation and that her testimony are incredible. The trial court found a credible witness in Alfaro and was impressed by her detailed narration of the events that happened during the crime was committed. The court gave her credit for her categorical, straightforward, spontaneous and frank testimony undamaged by exhausting cross-examinations. The court accepted Alfaros explanation on the discrepancies of her testimony on April 28 and May 22, 1995, that she wanted to protect her former boyfriend, accused Estrada and a distant relative, accused Gatchalian; that no lawyer assisted her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt unsure if she would get the support and security she needed once she disclosed all about the Vizconde killings. On the contrary, the RTC gave little weight of the denials and alibis that Webb, Lejano, Rodriguez and Gatchalian prepare for their defense. According to the Court, they paled compared to Alfaros testimony that other witnesses and physical evidence corroborated. Thus after four years of comprehensive hearing, on January 4, 2000, the RTC rendered a judgment, finding all the accused guilty beyond reasonable doubt imposing a penalty of reclusion perpetua except for accused Biong who was imposed by an indeterminate prison term of eleven years, four months and one day to twelve years. Lauro Vizconde on the other hand was awarded damages.

On appeal, The Court of Appeals or CA affirmed the RTCs decision modifying the penalty imposed on Biog to six years minimum and twelve years maximum and increasing the award of damages to Lauro Vizconde. The CA did not agree that the accused were tried by publicity or that the trial court judge was biased. It found sufficient evidence that rendered the accused guilty. On the motion for reconsideration by the accused the CAs Special Division of five members voted by the majority of three against two to deny the motion, hence the appeal. On April 20, 2010, as result of its initial deliberation in this case, the Court issued a Resolution granting the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which specimen was then believed still under the safekeeping NBI. The Court granted request pursuant to section 4 of the Rule on DNA Evidence to give the accused and prosecution access to scientific evidence that they might want to avail themselves of leading to a correct decision in the case. Unfortunately, on April 27, 2010 the NBI informed the court that it no longer has custody of the specimen, the same having been turned over to the trial court. The trial record shows, however, that the specimen was not among the object evidence that the prosecution offered in evidence in the case. The outcome however prompted to defense of accused Webb to file an urgent motion to acquit him on the ground that the government s failure to preserve such vital evidence has resulted in the denial of his right to due process.

ARGUMENT
In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the

accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to ones inner being, like a piece of meet lodged immovable between teeth. Will the court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take role of the witness to the Vizconde massacre that the she could not produce? Under this theory and after considering the presentation of evidence this Honorable Court rendered a decision on December 14, 2010 which reads: WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. The body of the Decision, however, does not reflect the totality of evidence, which established the guilt of the defendants beyond reasonable doubt.

Credibility of Prosecution Witnesses

The determination of the credibility of witnesses lies on the trial court primarily because it has the peculiar position to observed the witness behavior on the stand while testifying. It is fundamental rule that the findings of the trial courts which are factual in nature and which involve credibility are accorded respect when no gross errors, misrepresentation, concealment of facts and speculative, arbitrary and unsupported conclusions can be gathered from such findings. It must be noted that the primary witness Alfaro underwent exhaustive and intense cross-examination by eight (8) defense lawyers. In the said process she revealed such details and observations, which only a person with a sound mind and who was actually with the perpetrators during the commission of the crime could, have known. Furthermore her testimony was corroborated by the other witnesses and evidence in the crime scene. Alfaros ability to recollect events that occurred fours (4) ago with her mental condition on the night of the perpetration of the crime, she admitted that she took shabu three (3) times and even sniffed cocaine was likewise questioned by the defendants but on the cross-examination Alfaro positively stated that while indeed she was under the influenced of prohibited drugs nevertheless her perception of persons and events around her was not diminished. Her faculties were unimpaired enabling her to vividly recall what transpired the whole time she was with the defendants. Alfaro even stated that she has not yet reached the state of being paranoid. It was also her first time to sniffed cocaine and she described its initial effects as being stoned but lasting only five (5) to seven (7) minutes. However she did not fall asleep since shabu and coke are not downers. She further explained her apathy and indifference in not dissuading Webb and his group from carrying out their evil plan as a result numbing effect of drugs, which also enabled her to dislodge from her mind the tormenting images of the killings for

quite sometime. On the other hand the discrepancies on Alfaros testimony did not tainted her credibility as witness. It is but natural for any person to fear not only for her life but also the lives of her loved ones plus the fact that admittedly she said that she was protecting her former boyfriend and distant relative, which also consider to be expected.

Defendants Alibi and Denial

The defendants alibi particularly Webbs alibi that he was in the U.S, the court cases that they are physically impossible to be in the place where the crime was committed but in People vs. Larranaga, the court found that it wasnt impossible for the accused to be in Cebu because of the presence of commercial flights with the travel distance of one (1) hour from Manila to Cebu and there are four companies with the said commercial flight. In the case at bar, During the long span of time between March 1991 to October 1992, it was not physically impossible for the accused Webb to have returned to the Philippines secretly, perpetrate the criminal act and travel back to the United States. It must be noted that the accused Webb is a son of influential, rich and politically rich family with the financial capacity to afford to travel back and forth from the Philippines to the United States. He could very well afford the price of the plane tickets and with the modern capacity of travel; the approximate period of travel would be eighteen (18) hours to reach the Philippines from the United States. The Court seriously doubts that evidentiary weight could be ascribes to the August 31, 1995 and October 13, 195 Certifications of the U.S INS and computer print-out of the Nonimmigrant

Information System (NIIS) which allegedly established Webbs entry to and exist from the United States. This is due to the fallibility demonstrated by the US INS with regard to the certifications that the said office issued regarding the basic information under its direct control and custody. Remember that Webb as part of his evidence presented the explanation of one Steven P. Bucher Acting Chief of Records Services Branch of the U.S INS, who admitted that the U.S INS had previously reported on August 10, 1995, erroneously, that it had no record of the arrival and departure of Webb to and from the United States. The said office later on admitted that it failed to exhaustively study all information available to it. As pointed out by the Office of the Solicitor General in its appeal brief, how it became possible for the U.S INS Archives in Washington, which is supposed to merely download and copy the information given by the San Francisco INS, to have an entry on the accused Webb when the said port of entry had no such record was never sufficiently addressed by the defense. Furthermore the accused Webb s Philippine passport

produced as evidence offer little support of Webbs alibi. It must be noted that what appear on the records are merely photocopy of the pages of Webbs passport. The Court can only rely on the application of the trials court authenticity of the passport and the marking thereon, since the trial court had the exclusive opportunity to view it first hand and decide whether or not should have given more weight. There are also the non alignment of the serial number of Webbs passport which cannot be explained by the accused and why some of the pages of his passport appears to be smudged or untidy as compared to his mothers which is well preserved considering of the frequent use. On the matters of video tapes and pictures, with the

technology at hand it must not be given more weight because there is the possibility that it has been tampered therefore the accused appears to be at some place else when the crime was committed. WHEREFORE, it is respectfully prayed that the Decision of this Honorable Court be reconsidered and that the accused be convicted of the crime rape with homicide and sentenced to reclusion perpetua. Manila, February 17, 2011 DE TORRES &ASSOCIATES Counsel for the Prosecution By: RECHEL DE TORRES