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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 from any suggestion and with certainty. This raises a doubt as to whether Joel de Jesus was indeed at the crime scene. For if he was indeed in the crime scene and was among those who perpetrated the crime, he should have been one of the four suspects situated around the victim’s car. Yet, in the testimony of the lone eyewitness presented in open court, Joel de Jesus was not among the four who were around the victim’s car. The doubt is even greater since another eyewitness who was not presented by the prosecution but was presented by defense testified that he did not see any of the accused at the crime scene. The prosecution’s over reliance to a single eyewitness when there were other eyewitnesses who came forward during the investigation and who expressed their willingness to testify raises suspicion as to the reliability of the eyewitness presented in court. It is the prosecution’s duty to prove the guilt of the accused beyond reasonable doubt. It is their duty to present the other eyewitnesses to make sure that no mistake in identification of the accused is committed to the prejudice of innocent individuals. Yet, the prosecution never bothered to corroborate Alejo’s testimony and identification with the other eyewitnesses. Such attitude of the prosecution in not presenting the other eyewitnesses calls for the operation of Rule 131 Sec 3(e) of the Revised Rules of Court which states that: “The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence: (3) That evidence willfully suppressed would be adverse if produced.” In fact, if Merlito Herbas’ testimony is any indication, there is a great likelihood that the other eyewitnesses would also testify that the accused are not those they saw at the crime scene. Page 62 of 127 62
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 The trial court, in ruling that the presence of Joel de Jesus at the crime scene does appear on the record, relied on the identification made by Freddie Alejo and Merlito Herbas identifying Joel de Jesus in a police line-up. We have already assailed the manner in which police investigators made Freddie Alejo identify Joel de Jesus as it was through a show-up where the witness was shown pictures of Joel de Jesus and was brought to Fairview to identify Joel just before police officers effected the latter’s arrest. Likewise, the identification made by Herbas was not freely executed as it was done not only with police interference but with direct suggestion and prodding by Major Rodolfo to point to a particular person. In both instances, therefore, the identification of Joel de Jesus was not an independent identification made by the witness but were suggested by the police officers. Herbas testified that he identified Joel de Jesus on the suggestion of Major Rodolfo who pointed Joel de Jesus to him. (TSN, Testimony of Merlito Herbas, March 27, 1998, pp. 22-23, May 27, 1998, pp. 4-6). But the court dismissed Herbas’ testimony saying that Herbas appears to be a disgruntled witness whose need for job and money did color his perception and attitude. The trial court noted that Herbas, together with Alejo, were offered sanctuary by the family of the victim. But despite this notice and admittance of the fact that Freddie Alejo was likewise given free living quarters in a compound owned by the victim’s family, the trial court failed to consider this as a factor that could likewise color Freddie Alejo’s perception and attitude. Thus, while the trial court viewed Herbas as an interested witness it failed to see Alejo in same way. Both security guards were housed in the Libis compound of the Abadilla family after the incident. But the Court prefers to dwell on Herbas’ apparent disgruntledness about the Abadilla family’s promises of salary and witness protection – that this “did color his perception and attitude” (p. 25, fourth to eighth paragraphs). Page 63 of 127 63
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