Child witnesses may testify in a narrative form and leading questions may be allowed by the trial court

Facts: Cañete was convicted of the crime of rape. Cañete appealed, alleging that the presiding judge was biased and partial to the prosecution. He averred that when the prosecution tried to elicit from the offended party how his penis could have been inserted into her vagina with his pants still on and the his counsel objected to the question, the presiding judge himself took the cudgels for the prosecution and propounded questions on the private complainant. Worse, the presiding judge posed leading questions to the private complainant. May child witnesses testify in narrative form?

Held: Yes. Under Sections 19 to 21 of the Rule on Examination of a Child Witness which took effect on December 15, 2000, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child:

Sec. 19.  Mode of questioning. – The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. 

The court may allow the child witness to testify in a narrative form.

[People of the Philippines vs Kakingcio Cañete, G.R. No. 142930, March 28, 2003]

A descendant is not incompetent or disqualified to testify against an ascendant

A descendant is not incompetent or disqualified to testify against an ascendant; filial privilege can be invoked or waived like other privileges

Facts: Appellant Artemio was charged with the the crime of rape committed against his 16-year child. One of the witnesses of the prosecution was Elven, the 8-year-old son of Artemio with his second common-law wife. The trial court convicted Artemio. On appeal, he attacks the competency and credibility of Elven as a witness. He argues that Elven, as his son, should have been disqualified as a witness against him under Section 20(c), Rule 130 of the Rules of Court.

Held: The competency of Elven to testify is not affected by Section 25, Rule 130 of the Rules of Court, otherwise known as the rule on “filial privilege.” This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio.  Elven declared that he was testifying as a witness against his father of his own accord and only “to tell the truth.” [People of the Philippines vs Artemio Invencion y Soriano, G.R. No. 142930, March 28, 2003]

Extrajudicial confession before a mayor is inadmissible in evidence

A municipal mayor cannot be an independent counsel as required by the Constitution; extra-judicial confession before him is inadmissible.

Facts: Barangay tanods and officials of Barangay Tikay, Municipality of Malolos arrested appellant Crispin Velarde while he was selling balut on the night of May 11, 1997. He was subsequently brought to the Malolos Police Station, where he was initially incarcerated and allegedly mauled. On May 14, 1997, his case was referred by the Malolos police to the incumbent mayor of Malolos, Bulacan, Atty. Danilo Domingo, who asked that appellant be brought to him. Upon the advice of the mayor, Velarde’s written extrajudicial confession was taken. During the investigation, appellant was assisted by the mayor as counsel. Armed police officers were also present during the investigation. The trial court found Velarde guilty beyond reasonable doubt of rape with homicide. On appeal, Velarde that the trial court erred in finding and declaring that there was nothing irregular or objectionable in Atty. Domingo's representation who is a lawyer of good standing and being the local chief executive of Malolos, Bulacan, to serve as counsel for the accused. Is the extrajudicial confession of accused admissible in evidence?

Held: No. Under the circumstances, Atty. Domingo cannot be considered as an independent counsel. He was the mayor of Malolos at the time. As such, he exercised “operational supervision and control” over the PNP unit in that municipality. His powers included the utilization of the elements thereof for the maintenance of peace and order, the prevention of crimes, the arrest of criminal offenders and the bringing of offenders to justice.

As mayor of Malolos, his duties were inconsistent with those of his responsibilities to appellant, who was already incarcerated and tagged as the main suspect in the rape-slay case. Serving as counsel of appellant placed him in direct conflict with his duty of “operational supervision and control” over the police. “What the Constitution requires in Article III Section 12 (1) is the presence of competent and independent counsel, one who will effectively undertake his client’s defense without any intervening conflict of interest.” Evidently Atty. Domingo, being the mayor of the place where the investigation was taken, could not act as counsel, independent or otherwise, of appellant.

Furthermore, the right to counsel is a fundamental right and contemplates not just the mere presence of a lawyer beside the accused. The competent and independent lawyer so engaged should be present “at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview. The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing questioning.  If the advice given is so cursory as to be useless, voluntariness is impaired.”

During the investigation, Atty. Domingo failed to act as the independent and competent counsel envisioned by the Constitution. He failed to give any meaningful advice to protect the rights of appellant.  The former did not even bother to inform the latter of the consequences of an extrajudicial confession. It is clear that appellant was not assisted by a competent and independent counsel during the custodial investigation and the taking of his extra-judicial confession. Hence, the Court is duty-bound to disregard it. [People of the Philippines vs Crispin Velarde y Bandojo, G.R. No. 139333 July 18, 2002]

Extrajudicial confession before a municipal attorney is inadmissible in evidence

Municipal attorney cannot be an independent counsel as required by the constitution; extra-judicial confession before him is inadmissible in evidence.

Facts: Culala was charged with the crime of Robbery with Homicide. During trial, the prosecution introduced in evidence the extra-judicial confession of the Culala admitting the commission of the crime, alleged to have been obtained in the presence and with the assistance of the municipal attorney, who testified that he apprised the accused of his constitutional rights. Culala placed reliance on the defense of denial and alibi. He pointed out that the extra-judicial confession executed by him suffered from constitutional infirmities and consequently, inadmissible as evidence because it was extracted under duress, force and intimidation and was only countersigned later by the Municipal Attorney. After trial, the court convicted and sentenced Culala of death penalty. Is the extrajudicial confession of accused admissible in evidence?

Held: On the admissibility of subject extra-judicial confession of accused-appellant, it is worthy to note that during the custodial investigation he was assisted by Atty. Celso E. Santamaria, Municipal Attorney of Valenzuela, Metro Manila.  In People vs. Bandula, it was held that a Municipal Attorney cannot be an independent counsel as required by the Constitution. As a legal officer of the municipality, he provides legal assistance and support to the mayor and the municipality in carrying out the delivery of basic services to the people, including the maintenance of peace and order.  It is therefore seriously doubted whether he can effectively undertake the defense of the accused without running into conflict of interests. He is no better than a fiscal or a prosecutor who cannot represent the accused during custodial investigations. Consequently, for being violative of the Constitution, the extrajudicial confession of accused-appellant is inadmissible. [People of the Philippines vs Elizalde Culala y Bognot, G.R. No. 83466, October 13, 1999]

The failure to allege accurately the relationship between the appellant and his victim bars his conviction in the qualified form

The failure to allege accurately the relationship between the appellant and his victim bars his conviction in the qualified form.

Facts: 

Poñado is charged with three counts of rape under Art. 335 of the Revised Penal Code as amended by R.A. 7659. In all three informations the victim, 13-year old Mariner Bombales, has been stated to be the stepdaughter of the accused; yet, the evidence show that Reynaldo Poñado is but a "live-in partner" of the victim's mother, the latter being, in fact, lawfully married to one Marcelino Bombales. The trial court convicted the accused of the crime of qualified rape and sentenced him to the penalty of death.

Issue:

Whether or not the accused should be convicted of qualified rape.

Held: 

The accused should not be convicted of qualified rape. In qualified rape, both the fact of minority of the victim and the actual relationship between the parties must be alleged in the information. Unlike a generic aggravating circumstance, a qualifying aggravating cannot be proved as such unless alleged in the information.

In the case at bar, the failure to allege accurately the relationship between the appellant and his victim bars his conviction in the qualified form that is punishable by death. The technical flaw is a matter that cannot be ignored. It constrains the Court to reduce the penalty of death imposed by the trial court to that of reclusion perpetua. [People of the Philippines vs. Reynaldo Poñado, G.R. No. 131334, July 28, 1999 - En Banc Vitug, J.]

Note: The Information should have stated that the accused is the common-law spouse of the parent of the victim. 

Both minority and relationship of the minor to the offender must be alleged in the Information before an accused can be convicted of qualified rape

Where victim is a minor and related to the offender, both facts must be alleged in the Information before an accused can be convicted of qualified rape

Facts: 

Demetrio Nuñez was charged with raping his 14-year old daughter. However, the minority of the victim is not stated in the Information. What was alleged therein was only the relationship of the offended party as the daughter of the offender. The trial court convicted Nuñez with the crime of qualified rape, and sentenced him to suffer the penalty of death.

Issue:

Whether or not Nuñez could be convicted of the crime of qualified rape.

Held: 

Under Section 11 of Republic Act No. 7659, the death penalty shall be imposed if the crime of rape is committed with any of the following attendant circumstances: 1.  When the victim is under eighteen (18) years of age and the offender is a parent, x x x. Jurisprudence dictates that these twin facts be alleged in the Information or Complaint before the death penalty can properly be imposed. Indeed, this Court has consistently held that the seven attendant circumstances under Section 11 of RA 7659 are in the nature of qualifying circumstances which, unlike generic aggravating circumstances that may be proved even if not alleged, cannot be proved as such unless alleged in the Information. Thus, there being no allegation of minority in the Information under which accused was arraigned and tried in the case at bench, he cannot be convicted of qualified rape.

Penalty of Nuñez was reduced to reclusion perpetua. [People vs. Nuñez, G.R. No. 128875, 08 July 1999]

The remedy against a defect in the averment as to the time of the commission of the crime charged is a motion for a bill of particulars

A defect in the averment as to the time of the commission of the crime charged is not a ground for a motion to quash; the right remedy is a motion for a bill of particulars.

Facts: Rocaberte and two others were charged with the crime of theft. The Information states:

That on or about the period from 1977 to December 28, 1983 at the off offshore of West Canayaon, municipal of Garcia-Hernandez, province of Bohol, Philippines, the above-named accused, conspiring, confederating and helping each other, with intent to gain and without the consent of the owner, did then and there, willfully, unlawfully and feloniously take, steal and carry away the following properties...

Rocaberte moved to quash the information, alleging that the statement of the time of commission of the felony charged, "from 1977 to December 1983, a period of 7 years," or "about 2,551 days," was fatally defective; there was "so great a gap as to defy approximation in the commission of one and the same offense"; "the variance is certainly unfair to the accused for it violates their constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves. The trial court denied the motion. Hence, the appeal.

Held: The rules of criminal procedure declare that a complaint or information is sufficient if it states the approximate time of the commission of the offense. Where, however, the statement of the time of the commission of the offense is so general as to span a number of years, i.e., "between October, 1910 to August, 1912," it has been held to be fatally defective because it deprives the accused an opportunity to prepare his defense.

A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment.

The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for a bill of particulars.

The information against Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed. [Felicisimo Rocaberte vs People of the Philippines, G.R. No. 165879, G.R. No. 72994, January 23, 1991]