EN BANC

[G.R. No. 149889. December 2, 2003.]

THE PEOPLE OF THE PHILIPPINES, appellee, vs. RUEL

BACONGUIS y INSON, appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

DECISION

CARPIO MORALES, J : p

On automatic review is the Decision of July 11, 2001 promulgated by

the Regional Trial Court of Cagayan de Oro City, Branch 18, convicting Ruel
Baconguis y Inson (appellant) of murder and sentencing him to death.
To the charge of murder allegedly committed as follows,

That on or about June 23, 2000 at 2:04 early in the morning at

Phase 3, Block 21, Lot 9, Villa Trinitas Subd., Bugo, Cagayan de Oro
City, and within the jurisdiction of this Honorable Court, the above-
named accused, with treachery and with intent to kill, attacked one
Roberto C. Mercado with the use of an undetermined caliber of a gun
thereby inflicting mortal wounds which is the cause of his immediate
death.

Contrary to Article 248 of the Revised Penal Code, in relation to

RA 7659, as amended. 1

appellant pleaded not guilty during his arraignment on July 27, 2000. 2
Culled from the evidence for the prosecution is its following version of
the case:
On June 23, 2000, at around 2:40 a.m., while Lydia Mercado-Lledo was
sleeping in her 3-bedroom one storey house, she was awakened by the
sound of a gunshot. She immediately looked out of her bedroom window and
saw to her right a tall man some five meters away from her 3 leave her
house and jump over the 2½ – 3 meters high bamboo fence. 4 Before the
man who was wearing khaki short pants and a white T-shirt jumped, he
turned his face to the left, thus enabling her to see his slim face and tall
nose. 5
Lydia soon heard someone moaning. She thus repaired to the sala
where she found her younger brother, taxi-driver 24-year old Roberto
Mercado (the victim), sprawled and bleeding on the floor. He was brought to
the hospital but he died on the way due to severe hemorrhage resulting
from a gunshot wound at the left chest. Aside from the chest, the victim also
suffered gunshot wounds on his left forearm. 6
The investigating officers found that the description of the man seen
leaving Lydia's house matched that of herein appellant Ruel Baconguis who
was a suspect in several cases of theft and robbery.
In the afternoon of the incident, the police arrested appellant in the
house of his in-laws at Purok 2-B, Gusa, Cagayan de Oro City. 7 At about
noon of the following day or on June 24, 2000, appellant was paraffin-tested
and was found positive for gunpowder nitrates on both hands. 8
Lydia was accordingly informed by her other brother, policeman Adolfo
Mercado, that the suspect had been arrested. In the early afternoon of June
24, 2000, she was brought to the cell of the police station where appellant
was detained and was informed that the lone detainee therein was the
suspect. 9 On seeing appellant, she declared that he was the man she saw
leaving her house and jumping over the fence. 10
The defense, on the other hand, denied the accusation.
Proffering alibi, appellant claimed that on the night of June 22, 2000, he
took a walk along Limketkai with his common-law-wife Liezel Sacala, child,
mother-in-law and sister-in-law after which they returned to the house of his
in-laws; and at the time of the incident, he was fast asleep. 11
Liezel corroborated appellant's claim, adding that on the night of the
incident she woke up twice to give milk to their 2-year old baby, and
appellant never left the house following their return from the walk. 12
Crediting Lydia's positive identification of appellant as the man she saw
leaving her house and jumping over the fence and the results of the paraffin
test, the trial court convicted appellant by the decision on review, 13 the
dispositive portion of which reads:

WHEREFORE, finding accused RUEL BACONGUIS y INSON GUILTY

beyond reasonable doubt of the crime of MURDER punishable under
Article 248 of the Revised Penal Code in relation to R.A. 7659, and after
taking into account the presence of one generic aggravating
circumstance of dwelling, without any mitigating, the said accused is
hereby sentenced to suffer the supreme penalty of DEATH by lethal
injection. He is further directed to indemnify the heirs the amount of
FIFTY THOUSAND PESOS as damages for the death of the victim,
another FIFTY THOUSAND PESOS as exemplary damages, actual
expenses in the amount of THIRTY FOUR THOUSAND PESOS, plus to
pay the costs. Pursuant to section 22 of R.A. 7659 and section 10 of
Rule 122 of the Rules of Court, let the entire record of this case be
forwarded to the Supreme Court for automatic review. ITCHSa

SO ORDERED. 14

In his brief, appellant proffers the following assignment of errors:

I.
 THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE
CRIME CHARGED DESPITE FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT .

II.

THE LOWER COURT ERRED IN DISREGARDING THE TESTIMONIES OF

THE ACCUSED AND DEFENSE WITNESSES AND IN RELYING HEAVILY ON
THE TESTIMONY OF THE PROSECUTION WITNESSES .

III.

THE LOWER COURT ERRED IN APPRECIATING THE FACT THAT THE

ACCUSED WAS NOT ASSISTED BY A LAWYER DURING THE CUSTODIAL
INVESTIGATION IN VIOLATION OF HIS BASIC CONSTITUTIONAL RIGHT .

IV.

THE LOWER COURT ERRED IN APPRECIATING THE PRESENCE OF THE

GENERIC AGGRAVATING CIRCUMSTANCE OF DWELLING DESPITE THE
FACT THAT IT WAS NOT ALLEGED IN THE INFORMATION . (Emphasis
supplied)

Appellant questions his arrest as bereft of a valid warrant. Having,

however, submitted to the jurisdiction of the trial court when he entered his
plea 15 and actively participated in the trial of the case, any infirmity in his
arrest was deemed cured. 16
Appellant likewise questions his subjection to custodial interrogation
without the assistance of counsel. There was, however, nothing inculpatory
or exculpatory obtained from him by the police during his custodial
investigation.

While it cannot be denied that accused-appellant was deprived of

his right to be informed of his rights to remain silent and to have
competent and independent counsel, he has not shown that, as a
result of his custodial interrogation, the police obtained any statement
from him — whether inculpatory or exculpatory — which was used in
evidence against him. The records do not show that he had given one
or that, in finding him guilty, the trial court relied on such statement . .
. In other words, no uncounseled statement was obtained from
accused-appellant which should have been excluded as evidence
against him. 17

It bears noting that the evidence relied upon by the prosecution is

circumstantial.
It is settled that for circumstantial evidence to suffice to convict, the
following requisites must be met: 1) there is more than one circumstance; 2)
the facts from which the inferences are derived are proven; and 3) the
combination of all circumstances is such as to produce a conviction beyond
reasonable doubt. 18
The first circumstance which the prosecution sought to prove is that
appellant was seen leaving the house where the victim lay bleeding of
gunshot wounds not long after a gunshot was heard.
Prosecution witness Lydia identified appellant, then alone in the
detention cell, and in open court as the person she saw leaving the house.
The value of the in-court identification made by Lydia, however, is
largely dependent upon the out-of-court identification she made while
appellant was in the custody of the police. In People v. Teehankee, Jr ., 19 this
Court held that corruption of out-of-court identification contaminates the
integrity of in-court identification during the trial of the case.

In resolving the admissibility of and relying on out-of-court

identification of suspects, courts have adopted the totality of
circumstances test where they consider the following factors, viz: (1)
the witness' opportunity to view the criminal at the time of the crime;
(2) the witness' degree of attention at that time; (3) the accuracy of
any prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length of
time between the crime and the identification; and, (6) the
suggestiveness of the identification procedure. 20 (Emphasis supplied)

T h e totality of circumstances test has been fashioned to assure

fairness as well as compliance with constitutional requirements of due
process in regard to out-of-court identification. 21
Applying the above-said test, there are nagging doubts if Lydia had a
good opportunity to view the man she saw leaving her house. For by her
claim, after hearing a gunshot, she stood up and "opened" the 3-panel
jalousied and grilled bedroom window upon which she saw a tall, slim man
who was about 5 meters away at the "right side of the window"; 22 and the
man turned his face to the left, glancing at the terrace 23 which terrace she
could not see from where she was, but which was lighted by an 18-watt "
[n]ot quite dim" but "more yellow" bulb "attached to the road (sic)." 24
If Lydia could not see the terrace 25 which was five meters away from
where she was, how could the suspect, who was by her account also five
meters away from the terrace, glance at the terrace by merely turning his
whole face to the left, given the logical location of the terrace to be obliquely
behind (to his right) him.
If before appellant jumped he was, by Lydia's claim, about three
meters away from the light bulb "attached to the road" which light
illuminated the terrace, how could Lydia have clearly seen the face of the
man turning his face to the left?
As for the circumstances surrounding the identification process, they
were clearly tainted by improper suggestion. While there is no law requiring
a police line-up as essential to a proper identification, as even without it
there could still be proper identification as long as the police did not suggest
the identification to the witness, 26 the police in the case at bar did even
more than suggest to Lydia.
Thus, by Lydia's own account, the following transpired after she arrived
at the cell where appellant was detained.
Â

Pros. Nolasco:

 On June 24, that is the following day, where were you?

A Â I was in our house.

Q Â In the afternoon or morning?

A Â In the morning, Adolfo Mercado went to my house and informed

me that they already arrested a suspect last June 23.

Q Â And what did you do with that information?

A Â At 1:00 o'clock in the afternoon, June 24, I went together with

my brother to Puerto Police Station.

Q Â What did you do?

A Â They let me see the suspect.

Q Â Were you able to see the suspect?

A Â Yes, sir.

Q Â What was your reaction upon seeing the suspect?

A Â I was so mad because the person whom I saw at that time was
the same person. 27

xxx xxx xxx

Atty. Azis [defense counsel]:

 You said that at about 8:00 o'clock of the same morning there
were operative[s] from the Puerto Police Station and you said
they investigated you about the incident? EHTSCD

A Â Yes, ma'am.

Q Â Who among the police officer[s]?

A Â PO3 [Eddie] Akut, PO3 Ruben and PO3 Achas.

Q Â You only described to them what you saw, the description of the
suspect?

A Â Yes, ma'am.

Q Â About his being slim built?

A Â Yes, ma'am.

Q Â You could not determine whether he is a fair skin[ned] or dark

person?
A Â I could not determine.

Q Â In fact you could not determine whether there is mark on his

face?

A Â Yes, ma'am.

Q Â You said that on June 24, 2000 you were informed that there
was already a suspect arrested by the police?

A Â Yes, ma'am.

Q Â But you were not or you did not accompany the police officer
where that suspect was arrested?

A Â No ma'am.

Q Â So it was not you who pointed to the suspect in order for him to
be arrested?

A Â No ma'am.

Q Â And when you went to the Puerto Police Station they introduced
to you the suspect?

A Â Yes ma'am.

Q Â When did you first know his name?

A Â From my brother.

Q Â When?

A Â When he went to the house on June 24 in the morning.

Q Â Where did you see the suspect inside the police station?

A Â He was still inside the cell when they let me see.

Q Â In other words, when you saw him he was inside the cell?

A Â Yes, ma'am.

Q Â But he was alone at the time?

A Â Yes, ma'am.

Q Â And the police officer pointed to you that that is Ruel

Baconguis ?

A Â Yes, ma'am.

Q Â And after pointing to you they told you that he was the suspect?

A Â Yes, ma'am.

Q Â And because of that, you were convinced that he was the one?
 A Â I was convinced because his face is the same person whom I
saw [jump] over the fence. 28 (Emphasis and italics supplied)

A showup, such as what was undertaken by the police in the

identification of appellant by Lydia, has been held to be an underhanded
mode of identification for "being pointedly suggestive, generating confidence
where there was none, activating visual imagination, and, all told, subverting
their reliability as an eyewitness." 29 Lydia knew that she was going to
identify a suspect, whose name had priorly been furnished by her brother-
policeman, when she went to the police station. And the police pointed
appellant to her, and told her that he was the suspect, while he was behind
bars, alone. 30
The unusual, coarse and highly singular method of identification, which
revolts against accepted principles of scientific crime detection, alienates
the esteem of every just man, and commands neither respect nor
acceptance. 31
I n People v. Acosta , 32 this Court rejected the identification by a
witness of the accused while the latter was alone in his detention cell. There,
this Court held that the identification of the suspect, which was tainted by
the suggestiveness of having the witness identify him while he was
incarcerated with no one else with him with whom he might be compared by
the witness, was less than objective to thus impair the trustworthiness of
their identification. 33
Under the circumstances attendant to the identification of appellant,
this Court is not prepared to hold that the prosecution had established that
appellant was the man seen leaving the house-scene of the crime soon after
a gunshot was heard.
As for the positive paraffin findings on appellant, it is well settled that
nitrates are also found in substances other than gunpowder. 34 Thus, in a
number of cases, 32 the Court acquitted the accused despite the finding of
gunpowder nitrates on his hand, noting that:

[S]cientific experts concur in the view that the result of a paraffin

test is not conclusive. While it can establish the presence of nitrates or
nitrites on the hand, it does not always indubitably show that said
nitrates or nitrites were caused by the discharge of firearm. The person
tested may have handled one or more of a number of substances
which give the same positive reaction for nitrates or nitrites, such as
explosives, fireworks, pharmaceuticals, and leguminous plants such as
peas, beans, and alfalfa. A person who uses tobacco may also have
nitrate or nitrite deposits on his hands since these substances are
present in the products of combustion of tobacco. The presence of
nitrates, therefore, should be taken only as an indication of a possibility
but not of infallibility that the person tested has fired a gun. 33

In fact, prosecution witness Police Superintendent Liza Madeja Sabong,

who conducted the paraffin test on appellant, testified that a person who
fires a gun can transfer gunpowder from his hands to someone standing very
near him even if the second person did not fire a gun himself. 34
 But even assuming arguendo that appellant's being positive for
gunpowder may be credited as circumstantial evidence indicating his
culpability, that is only one circumstance, and since no other circumstance
was established by the prosecution, the first requirement for circumstantial
evidence to warrant conviction of appellant has not been met.
The prosecution having failed to discharge its burden of proving the
guilt of appellant beyond reasonable doubt, he must be acquitted.
WHEREFORE, the appealed decision of the Regional Trial Court,
Branch 18, Cagayan de Oro City finding appellant RUEL BACONGUIS y INSON
guilty of murder is hereby REVERSED AND SET ASIDE and appellant is
ACQUITTED thereof. He is ordered IMMEDIATELY RELEASED from
confinement unless he is being held for some other legal cause.
The Director of Prisons is DIRECTED to forthwith implement this
Decision immediately and to inform this Court within five days from receipt
hereof of the date appellant shall have actually been released from
confinement. TAScID

SO ORDERED.
Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr.,
Azcuna and Tinga, JJ ., concur.
Â
Footnotes

1. Â Information, Rollo at 8.

2. Â Records at 27.

3. Â TSN, September 19, 2000 at 28.

4. Â Id.

5. Â Id. at 18.

6.  Exhibit "A", Records at 163; TSN, September 14, 2000 at 6–13.

7.  TSN, May 7, 2001 at 78–79.

8. Â Exhibit "E", Chemistry Report No. C-55-2000, Records at 166.

9.  TSN, September 19, 2000 at 33–34.

10. Â Ibid.

11.  TSN, May 7, 2001 at 78–79, 98–99.

12. Â TSN, March 14, 2001 at 64-71; TSN, March 19, 2001 at 35-38.

13. Â Decision, Rollo at 19-33.

14. Â Id. at 33.

15. Â Records at 27.

16. Â People v. Lapitaje , G.R. No. 132042, February 19, 2003; People v. Lagarto,
G.R. No. 118828, February 29, 2000, 326 SCRA 693, 749; People v. Nitcha,
G.R. No. 113517, January 19, 1995, 240 SCRA 283, 294; People v. Nazareno,
G.R. No. 103964, August 1, 1996, 260 SCRA 256; People v. Llenaresas , G.R.
No. 100462, September 29, 1995, 248 SCRA 629; People v. Manzano , G.R.
No. 108293, September 15, 1995, 248 SCRA 239.

17. Â People v. Escordial, G.R. Nos. 138934-35, January 16, 2002, 373 SCRA
585, 606.

18. Â Rule 133, Sec. 4, Revised Rules of Court.

19. Â People v. Teehankee, Jr ., G.R. Nos. 111206-08, October 6, 1995, 249 SCRA
54.

20. Â Id. at 95.

21. Â People v. Gamer, G.R. No. 115984, February 29, 2000, 326 SCRA 660,
672.

22.  TSN, September 19, 2000 at 27–31.

23. Â Id. at 29.

24.  Id. at 29–30.

25.  Id. at 27–28.

26. Â People v. Perez, G.R. No. 142556, February 5, 2003; People v. Piedad , G.R.
No. 131923, December 5, 2002; Tapdasan v. People , G.R. No. 141344,
November 21, 2002; People v. Lubong, G.R. No. 132295, May 31, 2000, 332
SCRA 672; People v. Salazar , G.R. No. 109943, September 20, 1995, 248
SCRA 460.

27. Â TSN, September 19, 2000 at 22-24.

28. Â Id. at 32-34.

29. Â People v. Escordial, supra at 612; People v. Niño, G.R. No. 121629, May
19, 1998, 290 SCRA 155; People v. Salguero , G.R. No. 89117, June 19, 1991,
198 SCRA 357; People v. Cruz, G.R. No. L-24424, March 30, 1970, 32 SCRA
181.

30. Â TSN, September 19, 2000 at 34.

31. Â People v. Cruz, supra, at 186; Natividad v. Court of Appeals, supra.

32. Â People v. Acosta , G.R. No. 70133, July 2, 1990, 187 SCRA 39; vide People
v. Cruz, supra.

33. Â Id. at 43.

34. Â People v. Teehankee, supra at 103.

32. Â People v. De Guzman, G.R. No. 116730, November 16, 1995, 250 SCRA
118; People v. Abellanosa , G.R. No. 121195, November 27, 1996, 264 SCRA
722.

33. Â People v. Melchor, G.R. No. 124301, May 18, 1999, 307 SCRA 177,
187–188.

34. Â TSN, October 9, 2000 at 12-13.