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Dissenting Opinion on The Vizconde Case

Dissenting Opinion on The Vizconde Case

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EN BANC

G.R. No. 176389 - ANTONIO LEJANO, petitioner, versus PEOPLE OF THE PHILIPPINES, respondent. G.R. No. 176864 - PEOPLE OF THE PHILIPPINES, plaintiff-appellee, versus HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA AND GERARDO BIONG, accused-appellants; ARTEMIO VENTURA, JOEY FILART AND JOHN DOES (At-Large), accused.

Promulgated: December 14, 2010
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DISSENTING OPINION
VILLARAMA, JR., J.: With all due respect to my colleagues, I dissent from the majority decision acquitting all the accused-appellants. In the middle part of 1991, the gruesome deaths of 19-year old Carmela Vizconde, her mother Estrellita and 7-year old sister Jennifer in the hands of unknown assailants inside their home in a private subdivision shocked our countrymen and alarmed the authorities of the rise in heinous crimes, particularly those committed by individuals under the influence of drugs. Investigations conducted by the police and other bodies including the Senate, and even the arrest of two (2) sets of suspects (³akyat-bahay´ gang and former contractor/workers of the Vizcondes), failed to unravel the truth behind the brutal killings ± until an alleged eyewitness surfaced four (4) years later. The ensuing courtroom saga involving sons of prominent families had become one (1) of the most controversial cases in recent history as the entire nation awaited its long-delayed closure.

The Case

Subject of review is the Decision dated December 15, 2005 of the Court of Appeals (CA) in CA-G.R. CR H.C. No. 00336 affirming with modifications the Decision dated January 4, 2000 of the Regional Trial Court (RTC) of Parañaque City, Branch 274 finding the accused-appellants Hubert Jeffrey P. Webb, Antonio ³Tony Boy´ Lejano, Michael A. Gatchalian, Hospicio ³Pyke´ Fernandez, Peter Estrada and Miguel ³Ging´ Rodriguez guilty beyond reasonable doubt as principals, and accusedappellant Gerardo Biong as accessory, of the crime of Rape with Homicide. The petition for review on certiorari filed earlier by accused Lejano (G.R. No. 176389) is hereby treated as an appeal, considering that said accused had in fact filed a notice of appeal with the CA. In view of the judgment of the CA imposing the penalty of reclusion perpetua, such appeal by notice of appeal is in accord with A.M. No. 00-5-03-SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases) which provides under Rule 124 (c):
(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.

Accordingly, G.R. No. 176389 was consolidated with the present appeal by all accused (G.R. No. 176864) except Artemio Ventura and Joey Filart who are still at large. Only Webb and Gatchalian filed their respective supplemental briefs in compliance with our April 10, 2007 Resolution.

The Facts

The Information filed on August 10, 1995 reads:
That on or about the evening of June 29 up to the early morning of June 30, 1991, in the municipality of Parañaque, province of Rizal, Philippines, and within the jurisdiction of this Honorable Court, accused Hubert Jeffrey P. Webb conspiring and confederating with accused Antonio ³Tony Boy´ Lejano, Artemio ³Dong´ Ventura, Michael Gatchalian y Adviento, Hospicio ³Pyke´ Fernandez, Peter Estrada, Miguel ³Ging´ Rodriguez and Joey Filart, mutually helping one another, while armed with bladed instruments, with the use of force and intimidation, with lewd design, with abuse of superior strength, nighttime and with the use of motor vehicle, wilfully, unlawfully and feloniously have carnal knowledge of the person of Carmela Vizconde against her will and consent. That by reason or on the occasion of the aforesaid rape or immediately thereafter, the above-named accused with intent to kill, conspiring and confederating together, mutually helping one another, did then and there, and with evident premeditation, abuse of superior strength, nighttime, with the use of motor vehicle, assault and stab with bladed instruments Carmela Vizconde, Estrellita Vizconde and Jennifer Vizconde, thereby inflicting upon them numerous stab wounds in different parts of their bodies which caused their instantaneous death. That accused GERARDO BIONG and JOHN DOES having knowledge after the commission of the above-mentioned crime, and without having participated therein as principals or accomplices, took part subsequent to its commission by assisting, with abuse of authority as a police officer, the above-named principal accused, to conceal or destroy the effects or instruments thereof by failing to preserve the physical evidence and allowing their destruction in order to prevent the discovery of the crime. CONTRARY TO LAW.

The RTC and CA concurred in their factual findings based mainly on the testimony of the prosecution¶s principal witness, Jessica M. Alfaro who is a confessed former drug user, the declarations of four (4) other witnesses and documentary exhibits. Alfaro testified that on June 29, 1991 at around 8:30 in the evening, she drove her Mitsubishi Lancer and, with her then boyfriend Peter Estrada, went to the Ayala Alabang Commercial Center parking lot to get her order of one (1) gram of shabu from Artemio ³Dong´ Ventura. There she met and

was introduced to Ventura¶s friends: Hubert Jeffrey P. Webb, Antonio ³Tony Boy´ Lejano, Miguel ³Ging´ Rodriguez, Hospicio ³Pyke´ Fernandez, Michael Gatchalian and Joey Filart (she had previously seen them in a shabu house located in Parañaque which they frequented as early as January 1991, while she had known Ventura since December 1990). After paying for her shabu and while she was smoking it, Webb approached her and requested a favor for her to relay a message to a certain girl who happened to be Carmela, to which she agreed. After the group finished their shabu session, they proceeded to Carmela¶s place at No. 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Parañaque City. She and Estrada in her car followed the two (2) vehicles: Webb, Lejano, Ventura, Fernandez and Gatchalian on board a Nissan Patrol car; while Filart and Rodriguez rode a Mazda pick-up. Upon reaching the area, Alfaro parked her car along Vinzons St. and approached the gate of the house pointed to by Webb. She pressed the buzzer and when a woman came out, she asked for Carmela. When she was able to talk to Carmela (an acquaintance she had met only twice in January 1991), Alfaro relayed Webb¶s message that he was around. However, Carmela said she cannot make it as she had just arrived home and told Alfaro to come back after twenty (20) minutes. She relayed the answer of Carmela to Webb who then instructed the group to return to Ayala Alabang Commercial Center. At the same parking lot, the group had another shabu session before proceeding again to Carmela¶s residence in a convoy. Alfaro went to Vinzons St. alone while the Nissan Patrol and Mazda parked somewhere along Aguirre Avenue. Upon seeing Carmela who was at their garden, Alfaro was approached by Carmela saying she was going out for a while. Carmela told Alfaro that they come back before 12:00 midnight and she would just leave the pedestrian gate, as well as the iron grill gate leading to the kitchen door, open and unlocked. Carmela further instructed Alfaro to blink her car¶s headlights twice before reaching the pedestrian gate to signal

her arrival. Alfaro returned to her car but waited for Carmela¶s car to get out of the gate. Carmela drove ahead and Alfaro likewise left Vinzons St. Upon reaching the main road, Aguirre Avenue, she saw Carmela drop off the man who was with her in the car (whom she thought to be her boyfriend). Alfaro looked for the group and relayed Carmela¶s instructions to Webb. Thereafter, they all went back to the Ayala Alabang Commercial Center. At the parking lot, Alfaro relayed to the group what transpired during her last conversation with Carmela. She also told Webb about Carmela¶s male companion; this changed his mood for the rest of the evening (³bad trip´ already). Webb then gave out complimentary cocaine and all of them used shabu and/or cocaine. After about 40 to 45 minutes, Webb decided it was time to leave, declaring: ³Pipilahan natin siya [Carmela] at ako ang mauuna.´ Lejano said: ³Ako ang susunod´ and the others responded ³Okay, okay.´ They all left the parking lot and their convoy of three (3) vehicles entered Pitong Daan Subdivision for the third time. They arrived at the Vizconde residence between 11:45 to 11:55 p.m. Alfaro parked her car in between the Vizconde house and its adjacent house. While waiting for the rest of the group to alight from their cars, Fernandez approached her suggesting that they blow up the transformer near the pedestrian gate of the Vizconde residence in order to cause a brownout (³Pasabugin kaya natin ang transformer na ito´). She shrugged off the idea and told Fernandez ³Malakas lang ang tama mo.´ When Webb, Lejano and Ventura were already standing infront of the Vizconde residence, Webb repeated to the boys that they will line up for Carmela but he will be the first, and the others said, ³O sige, dito lang kami, magbabantay lang kami.´ Alfaro entered first the pedestrian gate which was left open, followed by Webb, Lejano and Ventura. At the garage, Ventura pulled out a chair to get on top of the hood of the Vizcondes¶ Nissan Sentra car and loosened the electric bulb (³para daw walang ilaw´). They proceeded to the iron grill gate which was likewise left open, and passed through the dirty kitchen. It

was Carmela who opened the aluminum screen door of the kitchen for them to enter. Carmela and Webb for a moment looked at each other in the eye, and then proceeded towards the dining area. As she lost sight of Carmela and Webb, Alfaro decided to go out of the house. Lejano asked where she was going and she told him she will smoke outside. On her way to the screen door, she saw Ventura pulling a drawer in the kitchen. At the garden area, she smoked a cigarette. After about twenty (20) minutes, she was surprised upon hearing a female voice uttered ³Sino yan?´ and she immediately walked out towards her car. She found the others still outside around her car and Estrada who was inside the car said: ³Okay ba?´ After staying in her car for about ten (10) minutes, she returned to the house passing through the same iron grill gate and dirty kitchen. While it was dark inside the house, there was light coming from outside. In the kitchen, she saw Ventura searching a lady¶s bag on top of the dining table. When she asked Ventura what was it he was looking for, he said: ³Ikaw na nga dito, maghanap ka ng susi.´ She asked him what particular key and he replied: ³Basta maghanap ka ng susi ng main door pati na rin ng susi ng kotse.´ When she found a bunch of keys in the bag, she tried them on the main door of the house but none of them fitted the lock; she also did not find any car key. Unable to open the main door, Alfaro walked back towards the kitchen but upon reaching the spot leading to the dining area, she heard a very loud static sound (like that coming from a television which had signed off). Out of curiosity, she went to the door of the master¶s bedroom where the sound was coming from and peeped inside. She pushed the slightly ajar door with her fingers and the sound grew even louder. After pushing the door wider, she walked into the room. There she saw a man on top of Carmela who was lying on the floor, two (2) bloodied bodies on top of the bed and Lejano who was at the foot of the bed about to wear his jacket. She turned her eyes on Carmela who was gagged, moaning and in tears while Webb was pumping her, his bare buttocks exposed. Webb gave her a look and she immediately left the room. At the dining area, she met Ventura who told her: ³Prepare an

escape. Aalis na tayo.´ Shocked by what she saw, Alfaro rushed out of the house and found the rest of the group outside, in her car and on the sidewalk. Alfaro boarded her car and started the engine but did not know where to proceed. She saw Webb, Lejano and Ventura leaving the house already. Webb suddenly picked up a stone and threw it to the main door, breaking its glass frame. When the three (3) were near the pedestrian gate, Webb told Ventura that he left behind his jacket. But Ventura said they cannot make it anymore as the iron grills were already locked. They all rode in their cars and drove away until they reached Aguirre Avenue. Near an old hotel in the Tropical Palace area, Alfaro saw the Nissan Patrol slow down and something thrown out into a cogonal area. They went to a large house with high walls and concrete fence, steel gate and long driveway located at BF Executive Village. They parked their cars inside the compound and gathered in the lawn area where the ³blaming session´ took place. It was only at this point that Alfaro and the others came to know fully what happened at the Vizconde house. The mother was the first one (1) killed, then Jennifer and the last, Carmela. Ventura was blaming Webb telling him: ³Bakit naman pati yung bata?´ According to Webb, the girl was awakened and upon seeing him molesting Carmela, she jumped on him, bit his shoulders and pulled his hair. Webb got mad and grabbed the girl, pushed her to the wall and

stabbed her several times. Lejano excused himself and used the telephone inside the house, while Webb called up someone on his cellular phone. At around 2:00 in the morning, Gerardo Biong arrived and talked to Webb who ordered him to clean up the Vizconde house, and said ³Pera lang ang katapat nyan.´ Biong answered ³Okay lang.´ Webb addressed the group and gave his final instructions: ³We don¶t know each other. We haven¶t seen each other...baka maulit yan.´ She and Estrada then departed and went to her father¶s house. Dr. Prospero A. Cabanayan, medico-legal officer of the National

Bureau of Investigation (NBI), who conducted the autopsy on the cadavers of the victims, testified on his findings as stated in the autopsy reports he submitted to the court. The bodies were photographed showing their condition before the start of the post-mortem examination. Considering that they were almost in complete rigor mortis, the victims must have been dead for twelve (12) hours. Carmela¶s hands were on her back hogtied with an electric cord and her mouth gagged with a pillow case. She had contusions on her right forearm and thighs, ligature marks on her wrists and nine (9) stab wounds on her chest (five [5] wounds are ³connecting´ or reaching to the back of the body). Further, specimen taken from her genitalia tested positive for the presence of human spermatozoa, which is indicative of complete penetration plus ejaculation of the male sex organ into the female sex organ. The contusions on her thighs were probably due to the application of blunt force such as a fist blow. Dr. Cabanayan further testified that Estrellita was also hogtied from behind and her wrists bore ligature marks from an electric cord with a plug. She sustained twelve (12) stab wounds, eight (8) of which are ³communicating´ or perforating (through and through stab wounds) which are fatal since vital organs are involved. As to Jennifer, her stab wounds, nineteen (19) in all, had the characteristics of one (1) which is extremely blunt, the other extremely sharp. These wounds are located in different parts of her body, most of which are on the left anterior chest. But unlike Carmela and Estrellita, Jennifer had two (2) stab wounds on her back and incise wounds on her left and right forearms, the latter usually referred to as defense wounds. Seven (7) of the nine (9) stab wounds on her chest were perforating, hence fatal wounds. Judging from the characteristics of the stab wounds sustained by the victims, Dr. Cabanayan concluded that they could have been inflicted using sharp-edged, pointed and single-bladed instruments such as a kitchen knife. Normal E. White, Jr., one (1) of four (4) security guards assigned at Pitong Daan Subdivision which is part of the United BF Homes, testified

that he and Edgar Mendez were the guards on duty on the night of June 29, 1991, starting at 7:00 o¶clock in the evening until 7:00 o¶clock in the morning of June 30, 1991. On June 30, 1991, at around 6:00 a.m., a homeowner called his attention on the incident the previous night at the Vizconde house. He immediately proceeded to said house where there were already many people. The housemaids of the Vizcondes led him to the entrance at the kitchen and pointed to the master¶s bedroom. Upon entering the room, he saw the bloodied bodies of the victims: two (2) were on top of the bed, and one (1) lying down on the floor. He is familiar with Mrs. Vizconde, Carmela and Jennifer because they were kind to the guards and usually greeted them. Mrs. Vizconde was gagged and her hands tied, while Jennifer was also lying on top of the bed. Carmela was lying on her back with one (1) of her legs raised, her dress pulled up and her genitals exposed. He also noticed that the TV was still on with loud sound. He went out to call the police but he met their Security Chief whom he informed about the killings at the Vizconde house. He then proceeded directly to the entrance/guard post of the subdivision and was told by Mendez that there were already policemen who had arrived. Having been apprised of the arrival of the police, White, Jr. returned to the Vizconde house to observe what was going on. He saw the policemen already investigating the crime scene and one (1) of them he later came to know as Gerardo Biong. There was also a woman who was with Biong when he was conducting the investigation inside the Vizconde premises at the garage area. The maids were being asked if they were able to hear the breaking of the main door¶s glass frame, and he saw Biong in the act of further breaking the remaining glass.

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