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PEOPLE OF THE PHILIPPINES,

HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER

, ESTRADA, and GERARDO BIONG.

CA-G.R. CR H.C. NO. 00336 SPECIAL DIVISION OF FIVE

The Court of Appeals' Special Division of Five which was created to

resolve the Motion for Reconsideration filed by the Accused in the Vizconde case

voted 3-2 to deny the Motion for Reconsideration. Justices Rodrigo Cosico

(Chairrnan), Regalado Maambong and Normandie Pizarro constituted the

majority of three (3) which voted to deny the Motion for Reconsideration.

Justices Renato Dacudao and Lucenito Tagle comprised the minority of two (2)

who filed their separate dissenting opinions in favor of reconsideration and the

acquittal of all the Accused.

Under the Rules of the Court of Appeals, each Division is composed of

three (3) members who must concur unanimously in rendering a decision or in

resolving motions. If the unanimous vote of three (3) members cannot: be

obtained, a division of five is constituted by adding two (2) justices whose

inclusion shall be determined by way of a raffle conducted by the Raffle

Committee, chosen from arnong the other members of the Court of Appeals. The

Decision in this case was rendered, and the Motion for Reconsideration was first

deliberated upon by Justices Cosico, laambong and Tagle. Since Justice Tagle voted to grant the Motion, the Special Division of Five was created, resulting in the inclusion of Justices Dacudao and Pizarro in the disposition of the Motion for Reconsiders tion.

Justices Cosico, Maambong and Pizarro denied the Motion for Reconsideration mainly on the arguments that (i) the defense of alibi is the weakest defense and yields to the positive identification of the Accused by witness Jessica Alfaro; (ii) the duty of appreciating the credibility of witnesses rests upon the trial court judge, who had the opportunity to observe the conduct and demeanor of the witnesses testifying before the trial court; therefore, great weight or reliance is placed upon the trial court's findings of fact and rulings involving the creditability of witnesses; and (iii) essentially, the Accused Hubert Webb failed to prove that it was physically impossible for him to commit the crime. In other words, even assuming that the evidence proves that the Accused Webb left the Philippines on March 9, 1991, and returned on October 26, 1992, the defense failed to prove that it was impossible for him to return to the Philippines and commit the crime in between those two (2) dates, and return to the United States without a trace or public record, considering modern modes of travel and the resources of the influential Webb Family.

On December 18, 2006, Justice Rodrigo Cosico voluntarily inhibited himself from the case for reasons stated in his letter addressed to Court of

Appeals Presiding Justice Ruben T. Reyes. The Rules of the Court of Appeals allow a justice to voluntarily inhibit himself from sitting in a case for just or valid reasons. In that event, he shall notify in writing the Raffle Committee and the members of his Division. Apparently, despite his voluntary inhibition the vote

of Justice Rodrigo Cosico denying the Motion for Reconsideration was counted as part of the majority ruling against the Accused. At no time 'in the history of the Court of Appeals has the vote of a Justice who voluntarily inhibited himself been counted in the disposition of a case or a pending Motion for Reconsidera tion.

In criminal cases, a conviction must be predicated on proof of guilt beyond reasonable doubt. This requires moral certainty on the part of a reasonable and fair jurist possessed of an unprejudiced mind that indeed the crime was committed by the Accused. The fact that the Justices who comprised the Special Division of Five voted 3-2 to deny the Motion for Reconsideration by itself speaks volumes of the serious doubts entertained by the Court of Appeals on the supposed guHt of the Accused. Such doubts can be greater appreciated if one would consider the separate dissenting \ opinions filed by Justices Renato Dacudao and Lucenito Tagle.

HIGBJJGJ-ffS OF THE

SEl' ARATE DISSENTING OPINION - J. Renato Dacudao

1. "The prosecution's case is inherently weak, built as it is upon

the flagrantly improbable and incredible story woven by a shifty and

shuffling 80vernrnent star witness: and second, because the defense was

able to prove convincingly that it was physically impossible for the

accused-appellant Hubert Webb to have been at the scene of the crime at

the time of its commission." (pages 1 and 2, Dacudao);

2. The Philippine passport, two (2) certifications and computer

print out issued by the US-INS and other documentary and testimonial

evidence presented by Accused Hubert Webb "irresistibly point to the fact

that he was not in the Philippines at the time the crime was committed."

(page 2, Dacudao):

"By contrast, the prosecution dismally failed to present convincing

countervailing evidence to show that in between the period of March 9.

1991 to October 26, 1992 the accused-appellant returned to the Philippines.

Neither was it able to prove that the various pieces of documentary

evidence presented by this accused-appellant to support his alibi were

falsified, or that these were acquired by the accused-appellant with the use

of luoney, power, influence, or connections, as the trial court seemed to

suggest." (page 4, Dacudao);

3. The history of drug addiction of star witness Jessica Alfaro,

the consistencies, contradictions and improbabilities in her testimonies, plus the fact that it took her four (4) years to come forward and testify, render her testimony untruthful and untrustworthy. (page 5, Dacudao) ;

4. Jessica Alfaro's narration of the events of the case was "in

many points uncannily similar to that set forth in the extrajudicial confessions of the II Akyat Bahay Gang" of the Barroso Group," who comprised the first batch of suspects arrested and indicted for the Vizconde Massacre. (page 12, Dacudao);

lilt is not at all improbable that the government's "star lwitness" Jessica Alfaro gajned access to the details of the 'crime' upon which she patterned her own version of the story that now constitutes the mainstay of the prosecution's evidence." (page 18, Dacudao);

"This leads to the conclusion that the prosecution's star witness had been tutored before going to the witness box ... Ms. Alfaro's testimony puts too severe a strain on the credulity of this Court. I think it takes the faith of twenty (/.0) men to believe her extraordinary tale." (page 19, Dacudao); and finally

5. The Decisions of the Court of Appeals and the trial court

failed to take into account the "testimony of former presidential legal counsel A tty. Antonio Tirol Carpio - against whom no bias, interest, or prejudice has been imputed - in regard to his overseas conversation with

former Senator Freddie Webb on June 29, 1991 between the hours of 10:00 and 11:00 A.M. Philippine time (or some 12 hours before the commissiPB of thecrime}, which showed that the accused appellant Hubert Webb was at the time, in the United States (at 532 S. Avenida Faro, Anaheirn, California 9)80'7) with his parents; and that Hubert was looking for a job there. Why must this testimony that came from the lips of a former presidential counsel who is now a member of the Supreme Court be ignored offhand?" (page 30, Dacudao)

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2. "Notably, no evidence was adduced by the prosecution to controvert the

genuineness of the aforesaid certifications as well as the entries in Webb's passport. To disregard these unrebutted documentary evidence is tantamount to accusing a U.S. agency of complicity in helping Webb ensure his freedom. And, undoubtedly, such accusation is blatantly groundless having no evidence to buttress it.'

'Significantly, both certifications were requested by no less than the Government of the Republic of the Philippines and not by the accused or his family. To make insinuations of any participation on the part of the family of the accused regarding the contents of the certifications as well as the erroneous data reflected on the first certification, to my mind, is such a huge leap. These certifications are official documents that should be accorded full faith on its face absent any evidence of impropriety on the part of the officials responsible in its execution and submission. For us to reject the subsequent certifications simply because of the issuance of the first certification which turned out to be erroneous, would go against the very essence of justice and fair playas we are unwittingly ascribing infallibility on the part of the INS. Besides, since when have we began to disregard the presumption of regularity in the performance of official duties based on the supposition that the accused involved in a case belongs to an "influential family?" (pages 6 and 7, Tagle)

HIGHLIGHTS OF THE DISSENTING OPINION - J. LUCERITO TAGLE

1. The Philippine Passport of Appellant Webb bears the departure stamp mark

of May 9, 1991 and the arrival stamp mark of October 27, 1992. These were confirmed by the two (2) immigration officials who testified that these stamp marks were authentic and accurate. They, in fact, dovetailed with the arrival stamp of the U.S. Immigration officials regarding the entry and exit from the U.S. of Accused Hubert Webb. (pages 3 and 4).

3. "With respect to the lower court's ruling that 'it was not physically

impossible for the accused Webb to have returned to the Philippines, perpetrate the criminal act, and travel back to the United States, this, to my mind, is pure conjecture and speculation. In fact, it is patently loaded with bias and can not serve as basis for a conclusion that accused-appellant was 'smuggled' into the Philippines on or about the time of the commission of the offense.'

, Yet , no evidence whatsoever was adduced showing that appellant Webb was smuggled into the country around the time of the commission of the offense.' (page 9, Tagle).

'Corollary, there is no proof that 'human smuggling' occurs in the United States.

And, for that matter, there is no evidence showing that appellant Webb was smuggled outside the United States.'

'Absent any competent evidence showing that he was able to enter and exit the Philippines undetected and without any trace, it was error on our part to affirm the lower court's finding that it was not physically impossible for appellant Webb to have been in the country, perpetrate the crime and then, head back to the United States. Said conclusion of the lower court is pure guesswork." (page 10, Tagle).

4. "No less than a Supreme Court Justice, Antonio T. Carpio testified in open

court that in the morning of June 29, 1991, he had an overseas conversation with Congressman Webb. It was during this conversation that he was informed that the said Congressman, along with his wife and son, Hubert were in the Unites States." (page 14, Tagle; testimony of witness Antonio Carpio is quoted on page 14).

5. "This Court in agreement with the trial court banked upon the presence of

the accused-appellants at the crime scene as well as their alleged utterances in ruling that conspiracy was extant. The finding of conspiracy is actually founded on circumstantial evidence." (page 17, Tagle).

3. "With respect to the lower court's ruling that 'it was not physically

impossible for the accused Webb to have returned to the Philippines, perpetrate the criminal act, and travel back to the United States, this, to my mind, is pure conjecture and speculation. In fact, it is patently loaded with bias and can not serve as basis for a conclusion that accused-appellant was 'smuggled' into the Philippines on or about the time of the commission of the offense.'

'Yet, no evidence whatsoever was adduced showing that appellant Webb was smuggled into the country around the time of the commission of the offense.' (page 9, Tagle).

'Corollary, there is no proof that 'human smuggling' occurs in the United States.

And, for that matter, there is no evidence showing that appellant Webb was smuggled outside the United States.'

'Absent any competent evidence showing that he was able to enter and exit the Philippines undetected and without any trace, it was error on our part to affirm the lower court's finding that it was not physically impossible for appellant Webb to have been in the country, perpetrate the crime and then, head back to the United States. Said conclusion of the lower court is pure guesswork." (page 10, Tagle).

4. "No less than a Supreme Court Justice, Antonio T. Carpio testified in open

court that in the morning of June 29, 1991, he had an overseas conversation with Congressman Webb. It was during this conversation that he was informed that the said Congressman, along with his wife and son, Hubert were in the Unites States." (page 14, Tagle; testimony of witness Antonio Carpio is quoted on page 14).

5. "This Court in agreement with the trial court banked upon the presence of

the accused-appellants at the crime scene as well as their alleged utterances in ruling that conspiracy was extant. The finding of conspiracy is actually founded on circumstantial evidence." (page 17, Tagle).

6. In his dissenting Opinion, Justice Tagle also found the evidence of

conspiracy against the Accused Michael Gatchalian, Pyke Fernandez, Peter Estrada and Tony Boy Lejano as a weak, incredible and therefore unreliable (pages 28, 29, 32, 35 and 36, Tagle); and finally,

7. Justice Tagle found it unjust that the motions of Accused Lejano and Webb

for a DNA test were "denied by the RTC ratiocinating that at that time, there is no one in the country who had the necessary knowledge and expertise to testify on DNA examination. Also, the Order of denial predicated on the presumption that the specimen semen found on Carmela's body may have already been tampered with or contaminated is grossly erroneous. That the specimen semen was tampered with is not conclusive in the light of the certification issued by the NBI that the specimen semen remained .intacj:. Hence, the trial court should have not ruled on such matter based on a mere conjecture and in total disregard of the presumption of regularity in the performance of official duty." (pages 33-34, Tagle).

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