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APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 Lumanog – when it takes his non-testifying as a point against him (p. 29, fifth paragraph): In addition, and this is with respect to accused Lumanog only, said accused did not testify despite the specific accusation and evidence implication him to the Murder at bench. Such silence, pursuant to the ruling in People vs. Dolmendo (296 SCRA 371, Sept. 25, 1998) justifies an inference that the accused is not innocent and may be regarded as a quasiconfession. Co-related with our first point, the trial court apparently thought that, because he did not testify, his defense was not substantial enough to present along with those of the other accused who all testified. But even worse, the trial court took it against him “as a quasi-confession.” To support this “inference,” the trial court cites People vs. Delmendo (not Dolmendo, 296 SCRA 371). But this Second Division ruling is of doubtful constitutionality, and the Court sitting en banc should set things right and reverse that Delmendo doctrine, in accordance with the Const., Art. VIII, Sec. 4(3). It clearly offends against the constitutional right to remain silent (Const., Art. III, Sec. 12[1]). Against the implementing rule of criminal procedure which specifically provides that “His silence shall not in any manner prejudice him.” (Rules of Court, Rule 115, Sec. 1[d], italics supplied) And against other Supreme Court rulings as recapitulated in People vs. Arciaga, et al. (G.R. No. L-38179, June 16, 1980): No inference of guilt may also be drawn against an accused upon his failure to make a statement of any sort. The neglect or refusal of the accused to be a witness shall not in any manner prejudice or be used against him. Most importantly, both under the 1935 and 1973 Constitutions, an accused has the right to remain silent. Such silence cannot be used as presumption of his guilt. Only recently, in People vs. Gargoles, 83 SCRA 282, this Court held, citing People vs. Esmundo, 27 Phil. 554, that an accused has the right to decline to testify at the trial without having any inference of guilt drawn from his failure to go on the witness stand. We likewise held therein that a verdict of conviction on the basis solely or mainly, of the failure or refusal of the accused to take the witness stand to deny the charges against him is a judicial heresy which cannot be countenanced. Moreover, the foregoing is in consonance with the rule that an accused should be convicted on the strength of the evidence Page 94 of 127 94
APPELLANTS’ BRIEF People of the Philippines vs. Fortuna, et. al. S. C. G. R. No. 141660-64 presented by the prosecution and not on the weakness of his defense. Relevant also are the constitutional rights against self-incrimination (Const., Art. III, Sec. 17; also ICCPR, Art. 14[3][g]; and Rules of Court, Rule 115, Sec. 1[e]) and the presumption of innocence (Const., Art. III, Sec. 14[2]; also Universal Declaration of Human Rights, Art. 11; ICCPR, Art. 15[2]; and Rules of Court, Rule 115, Sec. 1[a]). In fact the latter presumption is the basis for the rule “chiseled in our jurisprudence… that the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt.” (People vs. Lucero, 244 SCRA 425, at 435) It is a more paramount constitutional presumption compared to ordinary presumptions like the presumptio hominis that a young Filipina will not charge a person with rape if it is not true. (People vs. Godoy, 250 SCRA 676). It bears noting that, perhaps in like manner that accused Lumanog did not testify, neither also did he (unlike some of his co-accused) sign any extra-judicial confession incriminating himself and others under severe duress, including torture. Silence can also be a measure of strength, integrity and self-confidence. Beyond the doubtful constitutionality of the Delmendo doctrine invoked by the trial court in its appealed Joint Decision, particularly against accused Lumanog, is his life now at stake because he exercised his constitutional right to remain silent. It is no wonder, therefore, that accused-appellant Lumanog in paragraph 2 of his Affidavit dated 22 April 2002 (Exh. L) appended to his “Motion for New Trial and Related Relief” dated 26 April 2002, in this automatic review before the Supreme Court, said: In the judgment of conviction promulgated on August 11, 1999 by Judge Jaime N. Salazar, Jr. of the Regional Trial Court of Quezon City Branch 103 in Crim. Case No. 96-66684, my not testifying during the trial was taken against me as “an inference that the accused is not innocent and may be regarded as a quasi-confession” (Joint Decision dated July 30, 1999, page 29), contrary to the constitutional rights of an accused to remain silent, against self-incrimination and to presumption of innocence. My not testifying during the trial was a judgment call by my then defense counsel based on his assessment of the relative balance between the evidence for the prosecution and for the defense. Well, I have nothing to lose now but my life and I Page 95 of 127 95
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