G.R. No.

114812 June 19, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RODEL Z. SAHAGUN @ "ROD SAKSAK", ERNESTO F. VILLAREAL @ "WONG" and FERNANDO
BONIFACIO @ "KISKIS" (At Large), accused-appellants.

PUNO, J.:

This is an appeal from the Decision 1 dated January 31, 1994, of the Regional Trial
Court, Branch 121, Caloocan City, convicting RODEL Z. SAHAGUN @ "ROD SAKSAK" and
ERNESTO F. VILLAREAL @ "WONG" of the crime of Murder under an Information which
reads as follows:

That on or about August 1, 1993, in the city of Kalookan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, 2 conspiring and
confederating with one another, did then and there willfully, unlawfully and
feloniously, with intent to kill and taking advantage of superior strength and with
evident premeditation, attack, assault and use personal violence upon the person of
one Michelle Avendaño y Agapito, by then and there suddenly dropping a concrete
slab on her face and thereafter stabbing her with a bladed weapon on different
parts of her body, thereby inflicting upon her mortal wounds which were the direct
and immediate cause of her death.

CONTRARY TO LAW.

When arraigned, accused Villareal and Sahagun pleaded not guilty. Trial ensued and
the two accused were convicted principally on the basis of the testimony of
eyewitness Joselito dela Cruz. They were sentenced to suffer the penalty of
reclusion perpetua and ordered to pay jointly and severally the heirs of Michelle
Avendaño the following amounts: a) fifty thousand pesos (P50,000.00) as indemnity
for her death; b) twenty thousand pesos (P20,000.00) as moral damages and c)
eighteen thousand eight hundred pesos (P18,800.00) as actual damages.

The prosecution evidence shows that in the afternoon of August 1, 1993, Ernesto
Villareal alias "Wong" and Fernando Bonifacio alias "Kiskis" were having a drinking
spree in the house of Rodel Sahagun alias "Saksak". At about 2:30 p.m., Joselito
dela Cruz joined the three accused after he was invited by them. During their
drinking spree, dela Cruz heard the three talk about their plan to get a girl whose
name was not mentioned. At about 5 o'clock p.m., they all left Sahagun's house and
decided to go to the Caltex gasoline station, some twenty (20) meters away. They
boarded a tricycle owned by the brother of Bonifacio. While inside the tricycle,
Sahagun confided to dela Cruz that they (the three accused) would abduct, rape and
kill Michelle Avendaño. 3 Sahagun revealed to dela Cruz that he had a long standing
feud with Michelle. It started when she drove him away when he parked his tricycle
in front of the Santos School Supply where she was then working as a saleslady.
Dela Cruz thought of breaking away from the group but he was warned by Sahagun that
he would be implicated if he did not join their plan. Dela Cruz was struck by fear
for he knew that Sahagun would carry out his threat. 4 After three hours at the
gasoline station, they saw Michelle arrive at the Santos School Supply. They
proceeded to Basilio Street, some thirty (30) meters from the store, on board the
tricycle driven by Bonifacio. Bonifacio positioned the tricycle in the parking lot
for tricycles. Sahagun posted himself near the store of Aling Binay, Villareal
stayed near the parking lot for tricycles while dela Cruz stood beside a jeep
parked at the Petron gasoline station. Bonifacio continued to serve as driver of
the tricycle. 5

Michelle Avendaño came out of the Santos School Supply at about 8:30 in the
evening. She saw that the other tricycles in the parking area had no drivers so she
chose to take the tricycle driven by Bonifacio. As soon as she got inside the
tricycle, Sahagun, Villareal and dela Cruz boarded it. Sahagun sat beside her while
Villareal and dela Cruz sat behind Bonifacio. Michelle protested but Sahagun
threatened her with harm. The tricycle sped off and stopped at Maria Clara
Elementary School on 8th Avenue, Caloocan City. Sahagun covered Michelle's mouth
with her left hand and bodily carried her. Bonifacio and Villareal entered the
school premises through a hole in the concrete wall. Sahagun passed Michelle to
Bonifacio and Villareal before passing through the hole. Dela Cruz joined them but
Sahagun ordered him to act as their look-out. Once inside, the three accused
forcibly laid down Michelle on the ground; Villareal held her legs while Bonifacio
held her arms. Michelle shouted and struggled. Irritated by Michelle's scream,
Sahagun picked up an adobe rock and dropped it on her head. Thereafter, Villareal
and Bonifacio stabbed Michelle on different parts of her body. Dela Cruz, who was
then five (5) meters away from the scene, hurriedly left as he could not endure the
sight of the crime being perpetrated by the accused. 6

On August 3, 1993, the body of Michelle was found inside the premises of Maria
Clara Elementary School. Michelle's mother, Ursula Avendaño, testified that her
family incurred P212,000.00 for the funeral services (Exhibits "N" and "O"). They
also paid P4,000.00 to International Funeral Homes (Exhibit "P"). During the wake,
they spent P75.00 for the tape (Exhibit "Q"), P2,325.00 for the chairs (Exhibit
"R") and P400.00 for the mass (Exhibit "S"). She further testified that when she
learned of her daughter's death, she became nervous and cried a lot. Her husband
also suffered a shock when he saw the place where Michelle was killed. He underwent
medical treatment and had to stay in his sister's house in Navotas to recover. 7

Joselito dela Cruz voluntarily surrendered to the Malabon Police on August 17,
1993. He gave two sworn statements dated August 18, 1993 and August 20, 1993,
respectively, to the National Bureau of Investigation (NBI) regarding the murder of
Michelle. He implicated Villareal, and Villareal was arrested on August 18, 1993.
Villareal and dela Cruz pointed to Sahagun as one of their companions in the brutal
slaying of Michelle. Sahagun was investigated on August 20, 1993.

The defense was one of denial. Villareal testified that on August 1, 1993, he was
in the house of Aling Tessie, a jeepney operator, fixing the jeep he was assigned
to drive. Said house was 30-minute drive from Maria Clara Elementary School, 2-
minute walk from his house, 5-minute drive from Bayan-bayanan, Malabon, and 5-
minute drive from Santos School Supply. After working on the jeep from 9 o'clock in
the morning to 5 o'clock in the afternoon, he went home. He was already asleep in
his house at about 9 o'clock in the evening. He admitted knowing Sahagun and
Villareal for they were his neighbors but denied being their close friend. He
likewise admitted knowing dela Cruz, the latter being the son of the godchild of
his mother. He denied knowing Michelle. He only learned of Michelle's death from
the newspapers.

He was brought to the NBI office on August 18, 1993. There, he learned that he was
implicated by dela Cruz. The NBI agents started torturing him on August 18 at 7
o'clock in the evening during which he was not blindfolded. He was told by the NBI
agents to admit killing Michelle and cooperate with them. He was brought to the
rooftop of the NBI office on August 19, where he was tortured from 10 o'clock in
the evening until 5 o'clock in the morning of the following day. He was blindfolded
when he was slapped, kicked, placed under water ("tinubig"), and bullets were
inserted between his fingers by the NBI agents. They spat inside his mouth. He lost
consciousness until a doctor arrived and examined him. He was then allowed to rest.
After torturing him, he was made to sign a document which turned out to be his
extra-judicial confession. Atty. Florante Dizon was not present at that time. Five
hours later, he was presented to the press people who failed to notice any sign
that he was mauled. On August 20, 1993, at about 10 o'clock in the morning, he met
Atty. Dizon for the first time. He told Atty. Dizon that he signed the document
because he could no longer endure the torture. Atty. Dizon then advised him of his
constitutional rights. He agreed to have Atty. Dizon to be his lawyer for the
meantime as it was necessary during the investigation. Atty. Dizon later on
accompanied him to the Department of Justice (DOJ) building. State Prosecutor
Macapagal asked him if Atty. Dizon was his counsel of choice and he answered that
Atty. Dizon was just given to him by the NBI agents on August 20, 1993. When he
informed State Prosecutor Macapagal that he was tortured by the NBI agents, he saw
her and the agents present thereat wink their eyes. On August 21, 1993, he was
brought to the Maria Clara Elementary School by the NBI agents for the re-enactment
of the crime upon their order. Atty. Dizon was not with them at that time. 8

Sahagun testified that on August 1, 1993, at about 8 o'clock in the morning, he

brought his youngest child to his mother in Buendia, Pasig. They spent the rest of
the day at the Grand Central, Caloocan City. They went home at about 6 o'clock in
the evening and had dinner at about 7 o'clock. Thereafter, he watched the
television with his wife and children and some of his tenants. At about 8 o'clock,
he went to sleep. He admitted knowing Villareal, Fernando and dela Cruz but denied
being their close friend. He was arrested by the Caloocan police on August 5, 1993.
The policemen asked him about the killing of a child whose name he did not even
know. They handcuffed him, ordered him to lie flat on the bench, tied him, kicked
him on his face, boxed his chest, put a cloth inside his mouth, poured water on his
face and threatened to kill him if he did not admit the killing of Michelle. He
refused to admit anything saying they could shoot him in the head because he was
already tired. They also asked about his tricycle which he sold to Arthur Esteban
on May 22, 1993 for P22,000.00 (Exh. "14") and which was alleged by the policemen
to have been used by him in committing the crime. They tortured him again.
Subsequently, he was brought to the warrant section of the police station where his
brother's criminal case was imputed to him. He was detained from August 5 to August
12, 1993.

On August 13, 1993, he was released after his brother posted a bond for him. A week
later, he was again arrested by the Malabon policemen and NBI agents on August 20,
1993 at 5 o'clock in the morning. After being detained for a few minutes at the
Malabon headquarters, he was transferred to the NBI (Manila) office where he was
tortured and forced to admit the killing of Michelle. They inserted bullets between
his fingers and poked an icepick at his chest while they asked him to confess. When
he refused, they slammed his head on the table. The NBI agents did not inform him
of his right to counsel, thus, when they requested him to sign a waiver, he agreed
without a lawyer assisting him. When they offered him a lawyer, he refused to
accept his services because he did not know the legal procedure considering that he
only finished grade one. He learned in the NBI office that Villareal and dela Cruz
implicated him in the murder of Michelle. 9

As aforestated, the trial court convicted the duo. In this appeal, accused-
appellant Sahagun contends that:

I. THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONIES OF THE PROSECUTION
WITNESSES AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE.

II. THE TRIAL COURT ERRED IN FINDING ACCUSED RODEL SAHAGUN GUILTY BEYOND REASONABLE
DOUBT OF THE CRIME OF MURDER.

For his part, accused-appellant Villareal contends that:

THE TRIAL COURT ERRED IN COMING UP WITH A JUDGMENT OF CONVICTION AGAINST HEREIN
ACCUSED.

We affirm.
In questioning the decision of the trial court, appellants Sahagun and Villareal
assail the credibility of prosecution eyewitness dela Cruz. Additionally, appellant
Villareal disputes the admissibility of his extra-judicial confessions on the
ground that his right to counsel was violated.

We shall first resolve Villareal's claim that his extra-judicial confessions are
inadmissible as his right to counsel was violated. It must be abundantly clear from
the evidence that the right to counsel of a person under custodial investigation
has not been violated. The facts show that on August 17, 1993, de la Cruz confessed
to the NBI about his participation in the crime. He also implicated Villareal and
Sahagun. The next day, August 18, Villareal surrendered to the Malabon police and
was promptly turned over to the NBI. Again, the next day, August 19, Villareal
admitted his complicity in an extra-judicial confession taken by NBI agent Paterno
Reserva. The following day, August 20, Villareal executed another extra-judicial
statement before agent Reserva. In this second statement, Villareal pointed to
Sahagun as a participant in the crime. He also identified the tricycle they used in
the crime. Atty. Florante Dizon allegedly served as counsel of Villareal when he
gave his two confessions. Atty. Dizon was supplied by the NBI. Villareal, however,
averred that Atty. Dizon assisted him only on August 20. He said that his August 19
confession was coerced. He also declared that he was not assisted by any counsel
when he was made to re-enact the crime on August 21.

We rule that the counseling given by Atty. Dizon to Villareal was not sufficiently
protective of Villareal's rights as an accused as contemplated by the Constitution.
To start with, Atty. Dizon is not really known to Villareal. He was requested to
act as counsel because he happened to be at the NBI following-up a client's case.
Given that circumstance, it cannot be expected that Atty. Dizon would give an
advice to Villareal that would offend the agent conducting the investigation. Thus,
it appears that Atty. Dizon did no more than recite to Villareal his constitutional
rights. He made no independent effort to determine whether Villareal's confessions
were free and voluntary. He swallowed hook, line and sinker, Villareal's story that
he was ready to confess oblivious of the fact that they were then inside the NBI
office and before an agent or in an atmosphere hostile to a crime suspect. He did
not inquire from Villareal how he was treated in the last 24-hours. He did not seek
any of Villareal's relatives or friends to find out if he has any defense which
Villareal was not free to disclose due to his confinement. He did not even assist
Villareal when the latter was made to re-enact the crime at bar.

Atty. Dizon's lack of vigilance as a counsel is likewise underscored by the fact

that he himself testified that Villareal gave his confessions under the impression
that he was only a witness and not an accused in the case. He declared:

xxx xxx xxx

Q: Did you come to know the reason why Ernesto Villareal gave statement before the
NBI?

A: Yes, per his reason and according to him, he voluntarily executed that document,
because what he know was he was to be asked and to give his statement to the NBI,
because according to him, he was merely a witness to the incident, mam, although he
was with the group wherein they took the lady from a certain place where the crime
was committed, mam. 10

This revelation should have jolted Atty. Dizon and should have driven him to exert
extra efforts to find out whether Villareal was tricked in making his confession.
11 Again, he did not take that extra effort.

It further appears that Atty. Dizon likewise acted as counsel of de la Cruz when he
confessed to the NBI. De la Cruz' confession implicated Villareal. Later, de la
Cruz was used as a witness by the prosecution. This turn of events created a
conflict of interests between de la Cruz and Villareal. A tested trial lawyer could
have anticipated this strategy of the prosecution. Atty. Dizon's foresight failed
to make this discernment. Thus, he was placed in an unenviable position of having
counselled two parties with irreconcilable versions of how and who perpetrated the
crime at bar. A lawyer torn by a conflict of interest cannot be an effective
counsel.

We hold that the evidence is not clear and convincing that Villareal's right to
counsel was duly protected. Hence, his confessions given without the benefit of an
effective, vigilant and independent counsel are inadmissible in evidence.

But even without Villareal's confessions, the prosecution evidence is sufficient to

convict the accused-appellants. After a careful scrutiny of the evidence, we rule
that De la Cruz' testimony cannot be successfully assailed. First, it is too late
in the day to question the use of de la Cruz as a witness for the prosecution. It
is true that de la Cruz was not first included as an accused in the case and later
discharged as a state witness by the trial court. The records, however, show that
accused-appellants did not object when de la Cruz was called as a prosecution
witness. They are now estopped from assailing this procedure followed by the trial
court. Secondly, the attempt of accused-appellants to downgrade the testimony of de
la Cruz is puny. The discrepancies they find in his testimony are insignificant and
not unusual to be committed by witnesses to startling and shocking crimes. We are
guided by the jurisprudence borne from experience that perfect testimonies cannot
be expected from imperfect senses. For instance, the failure to prove blood in the
adobe dropped on the victim does not disprove her murder considering the totality
of evidence. De la Cruz was able to describe how the accused-appellants planned the
crime and its execution, and a lapse or two in the narration of its details will
not suffice to dismiss his testimony as a falsehood. Similarly unimpressive is
accused-appellants' contention that it is incredible for the crime at bar to be
committed in a school site. It is contended that the screams and struggle of the
parties could not but attract the attention of people. Accused-appellants
conveniently forgot that they were extremely drunk when they committed the crime at
bar. Drunks are irrational and cannot be expected to plan a perfect crime. Suffice
to state that crimes are now committed in the most unexpected places and in brazen
disregard of our authorities.

IN VIEW WHEREOF, the Decision dated January 31, 1994 of the Regional Trial Court of
Caloocan City, Branch 121, convicting accused-appellants is AFFIRMED. Cost against
appellants.

SO ORDERED.