PEOPLE OF THE PHILIPPINES, APPELLEE, VS. ADONES ABATAYO, APPELLANT.

People versus Abatayo

The Case

People versus Abatayo is a criminal appeal in which the People of the Philippines prosecuted Adones Abatayo for the killing of two brothers, Teofredo Basalan and Dominador Basalan, with a galvanized iron pipe at a construction site in Mandaue City. The trial court convicted him of two counts of murder and sentenced him to reclusion perpetua for each count. The case matters to a reviewee for three reasons: it teaches when an accused is deemed to have waived the right to complete his cross-examination of a prosecution witness, it shows how treachery and evident premeditation must be proved rather than presumed, and it reminds us that a judgment of conviction must state the aggravating or mitigating circumstances so that the proper penalty may be fixed.

Procedural History

An Information for double murder was filed against the appellant, and upon arraignment, assisted by counsel, he pleaded not guilty. The prosecution presented its witnesses, including Juanito Gutang, the lone eyewitness. His direct examination was completed, and defense counsel began cross-examining him but asked for a resetting because he still had many questions. When the trial resumed, Juanito did not appear because of fever, and the trial court deferred his further cross-examination and allowed the prosecution to present its second witness. The court warned the prosecutor that if Juanito did not appear on the next trial date, his testimony would be stricken from the record, but that warning was not contained in the order issued that day. The prosecution later presented its other witnesses, the parties stipulated on the authenticity of the necropsy report, and the prosecution rested its case. The defense then presented the appellant, his neighbor, and his mother.

The Regional Trial Court of Mandaue City, Branch 56, rendered judgment finding the appellant guilty beyond reasonable doubt of two counts of murder, sentencing him to reclusion perpetua for each count, and ordering him to reimburse actual expenses and to pay damages plus costs. The appellant appealed directly to the Supreme Court, assigning as errors the trial court's failure to strike out Juanito's testimony, its reliance on that testimony, and its finding of guilt despite the claimed failure of proof beyond reasonable doubt.

Facts

Teofredo and Dominador Basalan, aged twenty-four and twenty-six, were stay-in construction workers at the Gaisano FCDC construction site in Ibabao, Mandaue City. At around seven in the evening of September 9, 1993, after a day's work, laborers Juanito Gutang, Apolonio Quilag, Pedro Esconia, and an unidentified co-worker retired early in their quarters. The night before the killings, the victims had an acrimonious quarrel with the appellant over some misplaced construction tools which were later recovered, and the incident was recorded in the police blotter with the appellant as the prime suspect.

At around three in the morning of September 10, 1993, Juanito was awakened by an unusual thud, like someone striking somebody. He got up and, from about three meters away, saw the appellant hitting Teofredo and Dominador with a lead pipe. He woke his co-workers, and Apolonio saw the victims already lying in a pool of blood. They reported the incident to the security guards, who called the Mandaue City police. The appellant hurriedly left the job site, bringing his personal belongings. The police investigator found the bloodied corpses with their heads smashed and recovered the galvanized iron pipe used in the killing. The necropsy report stated that the victims died of cardio respiratory arrest due to shock and hemorrhage secondary to injuries to the head.

The appellant's defense was alibi and denial. He claimed he left the job site at around seven in the evening, hitched a ride home, and arrived at about nine. The next morning, he accompanied his uncle to the fiesta in Carcar, Cebu, then went to Bohol, returning home in December 1993. He was arrested in August 1994. His neighbor and his mother corroborated his account. The trial court rejected the alibi and relied on Juanito's positive identification.

Issues

• Whether or not the appellant waived his right to further cross-examine the prosecution eyewitness Juanito Gutang, and whether or not the trial court erred in not striking out his testimony.
• Whether or not the trial court erred in giving probative value to the unfinished testimony of Juanito Gutang and in disregarding the evidence for the defense.
• Whether or not the appellant's guilt was proven beyond reasonable doubt, and whether or not treachery and evident premeditation were proven to qualify the killings to murder.

Applicable Provisions

Article III, Section 14, paragraph 2 of the 1987 Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to be heard personally and by counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.

This is the constitutional source of the right of confrontation that the appellant claims was impaired.

Rule 115, Section 1, paragraph f of the Rules of Court provides:

To confront and cross-examine the witnesses against him at the trial, either by himself or counsel, except when the witness is already dead or unable to testify, and the right of the accused to waive his right to be present at the trial.

This is the procedural right to cross-examine, which the Court holds is personal and waivable.

Article 14 of the Revised Penal Code provides:

There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.

This defines the qualifying circumstance that the trial court failed to establish, so the killings could not be qualified to murder.

Ruling

On the first issue, the Court held that the appellant waived his right to further cross-examine Juanito. The right of confrontation and cross-examination is a personal one, not absolute, and may be waived expressly or impliedly by conduct amounting to a renunciation. The Court quoted its earlier ruling:

However, the right is a personal one which may be waived, expressly or impliedly, by conduct amounting to a renunciation of the right of cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record.

The Court stressed that the burden of recalling a witness for cross-examination rests on the party who wishes to exercise the right. Here, the appellant did not object to the deferment of the cross-examination, did not object to the presentation of the other prosecution witnesses, did not remind the court that his cross-examination was unfinished, did not ask that Juanito's testimony be stricken, and did not object to the offer of Juanito's affidavit. From this conduct, the Court inferred that counsel considered the initial cross-examination adequate.

On the second issue, the Court upheld the credibility of Juanito's testimony as clear, straightforward, categorical, and consistent. No improper motive was imputed to him, and the appellant admitted there was no bad blood between them. The Court also deferred to the trial court's calibration of credibility, absent any overlooked fact of substance.

On the third issue, the Court held that treachery and evident premeditation were not proven. The lone eyewitness did not see how the assault started, and the fact that the killing happened at around three in the morning did not prove the victims were sleeping. The Court quoted the definition of treachery and held that it requires the concurrence of two conditions: the employment of means of execution that gives the person attacked no opportunity to defend himself, and the deliberate or conscious adoption of those means. Circumstances which qualify criminal responsibility cannot rest on mere conjectures. Evident premeditation likewise requires clear and positive evidence of the time the accused determined to commit the crime, an act manifestly indicating that he clung to that determination, and a sufficient lapse of time to reflect. The prior quarrel recorded in the police blotter was not enough. The Court also rejected the alibi and denial, which cannot prevail over positive identification, and treated the appellant's flight as an indication of guilt. Because the trial court failed to state the qualifying circumstances in its judgment, the Court modified the conviction to homicide.

Doctrine

The right of confrontation and cross-examination under Article III, Section 14 of the Constitution and Rule 115, Section 1 of the Rules of Court is personal and waivable, expressly or impliedly. Where the accused had the opportunity to cross-examine a witness but failed to avail himself of it for reasons attributable to himself alone, he forfeits the right, and the testimony given on direct examination remains in the record. The task of recalling a witness for cross-examination is imposed on the party who wishes to exercise that right.

Treachery under Article 14 of the Revised Penal Code cannot be presumed; it must be proved by clear and convincing evidence, or as conclusively as the killing itself. When the lone eyewitness did not see how the attack commenced, treachery cannot be deduced from mere conjectures, even if the killing occurred in the early hours of the morning. Evident premeditation likewise requires clear and positive proof of its three elements.

Alibi and denial are inherently weak defenses that cannot prevail over positive identification by a credible witness with no improper motive to testify falsely. Flight of the accused from the scene of the crime is a circumstance highly indicative of guilt.

Disposition

The Supreme Court affirmed the conviction but modified it, finding the appellant guilty only of homicide rather than murder, and imposed the corresponding penalty for homicide with the appropriate damages.

Remember This

The single line worth memorizing is that the right to cross-examine is personal and waivable, and treachery cannot be presumed but must be proved as conclusively as the killing itself. Examiners like to use this case on the waiver of the right of confrontation and on the requisites of treachery and evident premeditation.