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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 In the case at bar, there was other evidence indicative of the truthfulness of the ABB’s repeated and consistent claims of responsibility for the Abadilla killing, such as those already outlined above. Any fair and impartial tribunal would not have missed it. But the trial court had its “eyes wide shut.” It allowed “technical procedure, unreasoned rules of evidence… to overcome the truth” when it ruled that “The requisites on the applicability of the rule on declaration against interest, as an exception to the hearsay rule, were not convincingly shown before this court as being present in such alleged press statements of the ABB.” The January 26, 2000 hearing, revealed that the trial court was referring to the requirement of “unable to testify”, i.e. ABB leaders or spokespersons were not unable but only unwilling to testify. (TSN, 1/26/03, 14-16) But the reason of unwillingness is practically tantamount to inability in the face of what may be likened to the justifying circumstance of “avoidance of greater evil” (Revised Penal Code, Art. 11[4]) – in this case an ABB leader or member who takes the witness stand to claim command or direct responsibility for the murder of Col. Abadilla faces the very real risk of lethal retaliation from friends and supporters of the late Colonel, as well as that of arrest, detention, prosecution, conviction, imprisonment and execution under the criminal justice system. It is a matter of self-preservation, considered a supreme law of necessity. If “avoidance of greater evil” can justify an act which would otherwise be felony, including grave ones, then with more reason can it justify the omission of not taking the witness stand. The trial court then reversed the proper order of things when it stated “While the records do not indicate that accused were ABB operatives, the same records do not bear that they are not.” The trial court imposed on the accused the burden of proving that they were not ABB operatives! In the first place, the accused were not charged with a political offense such as rebellion, which would have favored them. But the truth of the matter is that they were/are not rebels. Page 116 of 127 116
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 For example, at the time of their arrests in June 1996, accused Fortuna was an SPO2 with the PNP Traffic Management Command (see his Exhs. 81 & 83) while accused Lumanog was a businessman with several enterprises in Fairview, Quezon City, including a security agency, with the usual police and military links (see the separate Affidavits of spouses Marilou Tiglao-Lumanog and Lenido Lumanog, Exhs. K & L, attached to accused-appellant Lenido Lumanog’s “Motion for New Trial and Related Relief” dated 26 April 2002 in this automatic review). At any rate, the trial court itself admits that “the records do not indicate that accused were ABB operatives.” Coupled with additional evidence on the ABB angle in the Abadilla killing, this should lead to the acquittal of the accused on at least reasonable doubt. Speaking of burden of proof, the defense does not have the burden of proving the guilt beyond reasonable doubt of the ABB for the Abadilla killing. That is the job of the prosecution. As it is, they have shirked from their sworn duty to prosecute “all persons who appear to be responsible for the offense involved” (Rules of Court, Rule 110, Sec. 2). It has taken the defense to ferret out the ABB angle. But the defense does this not to go after anybody but rather to save the innocent accused. The defense knows with moral certainty that the accused are innocent beyond reasonable doubt. But its burden is only to establish reasonable doubt about their guilt to entitle them to an acquittal (Rules of Court, Rule 133, Sec. 2). The proposed additional evidence on the ABB angle serves this purpose and is sufficient in itself to tilt the balance against the trial court’s finding five accused guilty beyond reasonable doubt on the basis of their “positive identification” by one security guard “eye witness”. The latest marshalling of proposed additional evidence on the ABB angle in the case at bar is found in accused-appellant Lenido Lumanog’s “Motion for New Trial and Related Relief” dated 26 April 2002 with 10 pages of argument and discussion plus 21 exhibits and 21 annexes submitted during this automatic review stage in accordance with the Revised Rules of Criminal Procedure, Rule 124, Sec. 14 in relation to Rule 125, Sec. Page 117 of 127 117
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