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REPUBLIC
OF THE FRANCISCO
JUAN LARRAÑAGA OMNIBUS
ORDER For
consideration of the Court are several motions, to wit:
1. Notices of Appeal filed by Atty. Eric S. Carin on behalf of the
convicts James Andrew and James Anthony S. Uy, and by Atty. Sisinio M.
Andales, on behalf of convict Josman Aznar, appealing to the Honorable
Supreme Court the Judgment of this Court in these cases.
2. Motion filed by Atty. Alfonso dela Cerna - on behalf of Simplicio
Paghinayan, the registered owner of the motor vehicle (van) allegedly
used in the commission of the crimes in these cases - for the release of
said vehicle.
3. Motions to transfer their respective convicted clients to the New
Bilibid Prisons in Muntilupa, Rizal, and include them among the
prisoners to be transferred from the BBRC to the National Penitentiary
on Friday, May 14, 1999, filed by Attys. Teodoro C. Villarmia, Jr., Eric
S. Carin, and Atty. Anacleto G. Debalucos for the Public Attorney's
Office.
4. Motion for Partial Reconsideration of the Judgment in these cases
filed by Private Prosecutors Attys. Honorato D. Hermosisima, Jr. and
Joshua N. Dacunos with the written conformity of Cebu City Prosecutor
Primo C. Miro, praying that said Judgment "be reconsidered and
another one be issued sentencing the accused to two death penalties
each."
The Court shall now resolve these pending motions in seriatim as
follows:
1. The aforesaid Notices of Appeal - having been filed within the
reglementary period, are hereby given due course.
2. The Motion to release motor vehicle filed by Atty. de la Cerna is
hereby referred to the Cebu City Prosecutor's Office for comment and
recommendation. page
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3. On the aforesaid Motions to transfer the convicts in these cases -
the same being requested by all the convicts (we understand that Josman
Aznar is also requesting such transfer) - and being unopposed by the
Prosecution - are hereby granted. The Bureau of Jail Management and
Penology is, therefore, hereby ordered to effect such transfer of the
convicts in these cases from the
4. As regards the Motion for Partial Reconsideration filed by the
Prosecution, Rule 120, Section 7, of the Rules on Criminal Procedure
pertinently provides:
"Modification of Judgment - A judgment of conviction may, upon
motion of the accused, be modified or set aside by the court rendering
it before the judgment has become final or appeal has been perfected. A
judgment in a criminal case becomes final after the lapse of the period
for perfecting the appeal, or when the sentence has been partiality or
totally satisfied or served, or the accused expressly waived in writing
his right to appeal, or the accused has applied for probation."
According to the abovecited Rule, only the accused may move for the
modification of a judgment of conviction before it becomes final or
before appeal is perfected. The subject Motion was filed by the
Prosecution, hence, the Court does not see how its Judgment could still
be modified - so as to impose the Death Penalty on the accused instead
of Reclusions Perpetua. That would clearly be violative of the
abovecited provision, and the rule of law must perforce be observed.
Moreover, this Court is now even more convinced
of the righteousness of its ruling that the death penalty should not be
imposed in these cases - because there are very serious doubts in the
mind of this Court as to the identity of the corpse found at Sitio Tan-awan,
Carcar, Cebu.
In the view of the Court, there appears to have
been deliberate intent on the part of the Police and the Prosecution not
to present frontal, close-up pictures of the face of the said corpse -
which surely must have been taken or photographed both at the ravine
were the corpse was found at about 10 A.M. of July 18, 1997 (per the
testimony of Policemen Arturo Unabia of the Carcar Police) and at the
Tupaz Funeral Parlor where the corpse was immediately brought
thereafter. That woman had been dead for only about 30 hours and her
face was perfectly intact and recognizable - as shown by the distant
angular photos of said corpse submitted to the Court. It is unthinkable
and unbelievable that the Police had not taken frontal, close-up photos
of the face page
3 of
that still undecomposed corpse - which is the most logical thing to do
in cases of unidentified dead bodies. But, lo, the Police took
photographs (or they submitted only photographs) of that corpse in
different positions but excluding the frontal of her face. There is a
frontal, close-up photo of her face - but then her face appears to be
covered with a towel or something - so that her face is not visible - as
if the Police did not want people especially friends of Marijoy to see
the face of that corpse. Why?
Why did the Police and the Prosecution
deliberately not present frontal, close-up photos of the face of that
corpse? Which any person with average intelligence would assume must
surely have been taken by the police investigators? Why did they decide
to not present or in effect suppress such facial photos? Because the
pictures would show that the dead woman was not Marijoy? There is legal
presumption "that evidence willfully suppressed would be adverse if
produced" (Rule 131, Sec. 3.e).
Further, a July 20, 1997 clipping of the
Sun-Star Daily was identified in open court, submitted by Atty. Fidel
Gonzales, reporting "that the Homicide Section Chief Florencio Diaz
declared that the body of a girl found at Sitio Tan-awan does not belong
to one of the missing Chiong girls." (TSN Aug. 19, 1998, p. 122).
Is this the reason why the Police chose not to present the frontal
close-up photos of the face of that corpse? - because the face
photographed does not belong to one of the missing Chiong girls?
Further, in her testimony before this Court,
Mrs. Thelma Chiong herself admitted that she did not actually see that
corpse after it was retrieved from the ravine at Carcar.
"COURT STENOGRAPHER: (Repeating the question)
WITNESS:
ATTY. TELERON:
page 4
COURT:
A Because when my husband
showed me the pictures, deep in my heart I knew it
(Witness is crying)"
The question that thus mystifies the Court is:
Is it normal and logical for the mother of girl - who was reportedly
kidnapped, raped and murdered - not to even want to see the face of her
dead daughter two days after, she was allegedly dumped into a ravine in
order to verify if it was really her daughter? It was already July 24 (8
days after the kidnapping and 5 days after Mrs. Chiong learned from her
relatives that the corpse was Marijoy) that Mrs. Chiong finally came to
accept the identify of the corpse as Marijoy's - because the police then
allegedly told her that the fingerprint matched. But why would a mother
not even want to see if the body recovered was that of her kidnapped
daughter - immediately after recovery or at least a reasonable time
thereafter? (TSN Aug. 19, 1998, p. 60).
According to her testimony, it was on July 19,
1997 that Mrs. Chiong learned from her son Dennis and her two (2)
brothers and auntie that the girl found at the bottom of the ravine at
Tan-awan - whom they saw lying at the Tupaz Funeral Parlor - was
Marijoy. Inspite of this knowledge, Mrs. Chiong did not think of going
to that Funeral Parlor herself to look at the face and
page 5 remains
of her daughter. (TSN Aug. 18, 1998 p. 62). In her recent statement to
the press (Sun-Star May 12, 1999) Mrs. Thelma Chiong is reported to have
said: "What frontal view is he (Judge Ocampo) asking when her
(Marijoy's) body had decomposed, her face was black and blue, her body
bloated. Her face was not recognizable." But Marijoy was allegedly
pushed off that cliff on July 17, 1997 - her body was found at about 10
A.M. of July 18 and immediately brought to the Funeral Parlor. And the
Chiongs learned that the body was Marijoy and already in the Funeral
Parlor on July 19, 1997. Contrary to what Mrs. Chiong now says, the
distant angular photographs submitted to the Court show that the face of
that corpse was perfectly recognizable. How could a body decompose in
just a matter of about 30 hours? If it was truly decomposed as Mrs.
Chiong now says, then that only further proves that the corpse was not
Marijoy's.
Further, the following portions of the testimony of Mrs. Chiong are
self-explanatory:
"ATTY. TELERON:
WITNESS:
Q Did you
happen to read the SunStar newspaper dated July 23, 1997, wherein
A Yes, May I explain why he said
that?
COURT:
ATTY. TELERON:
COURT:
page
6 WITNESS:
COURT:
A Dennis, Your Honor.
COURT:
Q You mean that is the reason
why Dennis denied before the media
that body
A Yes, Your Honor". (TSN
Aug. 19, 1998, p. 57).
The Court finds Mrs. Chiong's above testimony
intriguing because - if even
The Court cannot just rely blindly on the
testimony of P/Insp. Edgardo Lenizo
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Marijoy. While there is no doubt that said corpse had been raped
As for "dehumanizing treatment" the Court is not inclined to
regard the act of the accused of making Jacqueline dance while they sat
around her in a circle (absent sufficient proof of rape and/or homicide)
- as "dehumanizing treatment" - enough to warrant imposition
of the death penalty.
WHEREOF, the aforesaid Motion for Partial Reconsideration is hereby
DENIED.
Given in open court this 13th day of May 1999 at
(NOTE:
1. RED COLOR OURS FOR EMPHASIS.
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