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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 paragraph (fourth paragraph, p. 14) of the appealed Joint Decision of July 30, 1999 (Annex A). The trial court actually prefaces the said paragraph with the phrase “In passing.” Even then, the trial court sorely missed the more important point or conclusion about the ballistics examinations. It focused on the two handguns brought by accused SPO2 Cesar Fortuna to gunsmith Dante Montevirgen and the finding that “the bullets and bullet shells found in the crime scene at bench (sic) did not come from any of said firearms” which turned out to belong to two of Fortuna’s fellow police officers (Joint Decision, p. 14, second to fourth paragraphs) Incidentally, one of these firearms had been positively, but it turned out later mistakenly, identified by Rolando Abadilla, Jr. during the June 26, 1999 press conference as the firearm his father was carrying at the time of his murder. The trial court completely missed the conclusions of several ballistics reports that the fired bullets and cartridge cases in the Abadilla murder “were fired from one and the same firearm” in the killings of Leonardo Ty, Nestor Encarnacion and Suseso de Dios, as shown by accused Cesar Fortuna’s Exhs. 2-4, 71-75 and derivative exhibits under his Formal Offer of Evidence dated April 19, 1999. The trial court also failed to note and pursue the relevant angle on this indicated in accused Fortuna’s formal offer of Exh. 71, which was stated in p.12 (RTC record, p. 96 of one folder) as follows: Exh. 71 - Memorandum dated June 24, 1996 requesting ballistics examination of the submitted specimen firearm to determine if the same was used in the ambush in the killing of several personalities by members of the ABB. (italics supplied) (Purpose) – Offered to prove the propriety and regularity of the ballistics examination conducted by the witness on the subject firearm suspected to be the one used in the ambush of several personalities by members of the ABB. Likewise offered as part of the testimony of the witness [de Guzman]. (italics supplied) Parenthetically, it must be noted that, despite the implications of the ballistics evidence, the accused were never charged or even investigated for the killings of Ty, Page 108 of 127 108
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 Encarnacion and de Dios. Their “role” it seems was only to be charged for the Abadilla murder. As for the ABB angle of this murder, this is important as additional evidence to establish the innocence of all the accused, none of whom are ABB members. We shall discuss this more extensively under the last two assignment of errors. For now, we deal mainly with the probative value of the ballistics evidence, including vis-à-vis the so- called positive identification by the lone security guard eyewitness for the prosecution, Freddie Alejo. The prosecution had characterized the ballistics reports in the case at bar as “inconclusive and cannot exculpate the accused from liability, considering they were positively identified by Alejo…” (Opposition dated October 25, 1999, p. 6). The trial court for its part, in its appealed Order of January 25, 2000 (Annex B, p. 8) stated: “In considering the testimony of expert witness Firearm Examiner Reynaldo de Guzman, this court found no sufficient reason to render as incompetent and incredible the testimony of the eyewitness by the alleged finding or conclusion that the bullets and cartridge cases in the Abadilla murder match those in killings with a link to the ABB.” Note the trial court’s bias or weak appreciation of ballistics evidence by referring to the ballistics finding or conclusion as merely “alleged” when in fact it was the actual finding or conclusion. It, therefore, becomes necessary to rebut these with authorities. All courts, including the Supreme Court no less, are familiar with the experience stated in Salomon vs. IAC (185 SCRA 352, 361-62), to the effect that “witnesses may forget or exaggerate what they really know, saw, heard or did; they may be biased and therefore tell only half-truths to mislead the court or favor one party to the prejudice of the other.” This is why the Supreme Court directs that trial courts should not ignore physical evidence because “physical evidence is of the highest order. It speaks more eloquently than a hundred witnesses” (People vs. Bardaje, 99 SCRA 399). Page 109 of 127 109
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