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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 Maybituin, D/P Alexander Dalayday, SPO2 Jorge Roxas, SPO1 Jaime Tumpalan, D/P Roger Roxas, PO1 Ernesto Barbareja, Joel de Jesus, SPO1 Rodolfo Madriaga, Lorenzo de los Santos and D/P Gene Rosete).” These two separate out-of-court identification is not only characterized by suggestiveness as Freddie Alejo was brought along by police operatives specifically to pinpoint Joel de Jesus whose picture has already been shown to him prior to the identification but also by irregularities as the alleged police line-up was conducted with no other civilian individuals in the line-up except for Joel de Jesus and Lorenzo delos Santos whom the witness was asked to identify. Since the alleged line-up was done in a police headquarters, necessarily, these police officers would be in their proper uniforms. How, then, can anyone be mistaken in singling out suspects in a police line-up when the other persons they are lined-up with are all police officers? Is this how our police officers understand a police line-up: that policemen be lined up with the suspects to be identified? “This Court has held in People vs. Salguero that this kind of identification, where the attention of the witness is directed to a lone suspect, is suggestive. Also, in People vs. Niño, this Court described this type of out-of-court identification as being “pointedly suggestive, generated confidence where there was none, activated visual imagination, and, all told, subverted their reliability as eye-witnesses.” Going now to the evidence on record, when asked about the appearance of the four persons he saw shot at the victim, Freddie Alejo answered: “Iyong tumutok sa akin ay naka-asul na t-shirt, edad 30- 35, 5’5” – 5’6” ang taas, katamtaman ang katawan, maikli ang buhok, kayumanggi. Ang baril niya ay tipong 45 o 9 mm na pistola. Iyong sumakal sa biktima at nang-agaw ng clutch bag nito ay 25 – 30 ang edad, payat, mahaba ang buhok na nakatali, maitim, may taas na 5’5” – 5’6”, maiksi din ang baril niya at naka-puting polo. Iyong iba ay maaaring makilala ko kung makikita ko uli.” (Exhibit L-1) The witness was only able to describe two of the four suspects when the police investigator took his sworn statement barely five hours after the incident occurred. With Page 42 of 127 42
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 the description given by the witness, it can be safely claimed, that the witness was only able to provide a basis for future identification of two of the four suspects. This alone is already a clear indicator that this particular witness does not have much recollection of the appearances of the suspects. And naturally so. The swiftness with which the ambush was staged, the relative positions of the suspects in relation to the witness, and the concurrence of several startling events happening all at the same time would make it impossible for anyone to recall all the perpetrators. This was even compounded by the fact that the witness’ life was also threatened at that time by the suspect who pointed a gun at him which necessarily focused the witness’ attention to this particular suspect. It would have been different if the witness knew the identities of the suspects all along. But in this case, the witness, having no previous association or acquaintance with the suspects, saw them for the first time when the shooting incident happened. What was stored in the memory of this witness were fleeting impressions of the appearances of the suspects that could have been easily erased and replaced with the numerous other new faces (including police investigators and bystanders) he encountered on that day that the incident occurred. Based on the order by which the incident occurred as narrated by the witness in his sworn statement, it would have been natural for the witness to recall first the suspect who opened the car, took the clutch bag, choked the victim, took the victim out of the car and shot at the victim again because he did a lot of things that stuck to the witness mind. Yet, from among the four persons he saw shooting at the victim, he readily recalled the one who pointed a gun at him. This is explainable as it is but natural for human memory to give more importance to events that has personal significance. The other suspects are not as significant to the witness as the suspect who pointed a gun at him because the three other suspects did not do anything that attaches personal significance to the life of the witness at that moment. Page 43 of 127 43
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