PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ERNESTO LUVENDINO Y COTAS, ACCUSED-APPELLANT.

On the morning of 17 January 1983, 18-year old Rowena Capcap left
her home at Deva Village, Tambak, Taguig, Metro Manila to attend classes at the
University of Manila where she was a sophomore commerce student. She would usually be home by 7:30 to 8:00 on
school evenings,^[1]
but on that tragic day, she would not reach home alive. On that particular evening, her father
Panfilo Capcap arriving home from work at around 7:30 p.m., noted her absence
and was told by his wife and other children that Rowena was not yet home from
school. Later, a younger brother of
Rowena, sent on an errand, arrived home carrying Rowena’s bag which he had
found dropped in the middle of a street in the village.^[2]

Panfilo Capcap lost no time in seeking the help of the barangay
captain of Hagonoy, Taguig. Not being
satisfied with the latter’s promise to send for a “tanod” to
help locate his missing daughter, Panfilo went to the Taguig Police Station to
report his daughter as missing. The
desk officer there advised him that a search party would be mounted presently.^[3]

Panfilo returned home and, with the help of some neighbors,
launched a search party for the missing Rowena. The search ended in a grassy vacant lot within the Deva Village
Subdivision, only about 70 to 80 meters from the Capcap residence, where lay
the apparently lifeless body of Rowena, her pants pulled down to her knees and
her blouse rolled up to her breasts. Her underwear was blood-stained and there were bloody fingerprint marks
on her neck. Rowena, her body still
warm, was rushed to a hospital in Taguig, where on arrival she was pronounced
dead.^[4]

An autopsy was conducted on the following day by the National
Bureau of Investigation and the autopsy report disclosed the following:

“Cyanosis, lips and fingernail beds with pupils dilated and
bloody froths coming out of nostrils.

Abrasions, 1.0 x 3.0 cm., area of the buttocks, left side; 1.5 x
3.0 cm., area of right elbow.

Contused-abrasions, 3.0 x 8.0 cm., area of the lateral aspect of
the right chest; 4.0 x 5.0 cm., area of the antero-lateral aspect, middle
third, left arm.

Contusion, 7.0 x 13.0 cm., area of the anterior aspect of the neck
from left to right in varying sizes and shapes.

Interstitial hemorrhages among the muscles and soft tissues in the
anterior aspect of the neck with petechial hemorrhages noted and severe
congestion of the pharynx with subpleural, subpericardial puntiform
hemorrhages.

Fracture, laryngeal cartilage.

Lungs, presence of multiple petechial hemorrhages along the surface
of both lungs; cut sections showed severe congestion.

Heart, covered with moderate amount of adipose tissues with right
chamber distended with dark fluid blood.

Brain and other visceral organs are congested.

Stomach, one-third filled with digested food materials.

CAUSE OF DEATH:

Asphyxia by manual strangulation (throttling).

REMARKS:

Genital examination revealed the presence of an old healed hymenal
laceration at 6:00 o’clock position corresponding to the face of the watch,
edges rounded, base retracted and non-coaptable. Smears taken for presence of spermatozoa yield a positive
result.”^[5]

The autopsy report also stated that the multiple injuries
indicated the victim had struggled vigorously with her attacker(s); that the
presence of spermatozoa showed that the victim had sexual intercourse prior to
death; and that death was due to asphyxia by manual strangulation.^[6]

By 5 March 1984, an information had been filed in the trial court
charging Ernesto C. Luvendino, Cesar Borca alias “Cesar Putol” and
Ricardo de Guzman alias “Ric” with the crime of rape with murder
committed as follows:

“That on or about the 17th day of January, 1983, in the
Municipality of Taguig, Metro Manila, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have
carnal knowledge of one Rowena Capcap y Talana, against her will and consent;
that by reason or on the occasion thereof, the said accused in pursuance of
their conspiracy, with intent to kill and treachery and taking advantage of
their superior strength, did then and there willfully, unlawfully and
feloniously attack, assault, hit and strangulate the said Rowena Capcap y
Talana which directly caused her death.

Contrary to law.”^[7]

Warrants of arrest were issued against all the above accused but
only accused-appellant Ernesto Luvendino was actually apprehended; the other
two (2) have remained at large. At
arraignment, Luvendino assisted by his counsel, Atty. Luisito Sardillo, pleaded
not guilty and then proceeded to trial.

On 12 December 1984, the trial court rendered a decision finding
Luvendino guilty, sentencing him to death, and requiring him to indemnify the
heirs of the victim Rowena in the amount of P50,000.00 for the damages suffered
as a result of her death.

Appellant Luvendino contends that the trial court committed
grievous error in —

“I

x x x having required Atty. Luisito Sardillo to continue as counsel
of the accused-appellant notwithstanding his [Sardillo’s] express mental
reservations.

II

x x x believing the insidious machinations of third persons and
witness Salvador B. Cemitara surrounding the alleged threats [against]
Cemitara, including Exhibit ‘D.’

III

x x x admitting and giving credence to the evidence of re-enactment
and admission of guilt, both of which were uncounseled.

IV

x x x giving credence and weight to the identification of appellant
Ernesto Luvendino by witness Cemitara.

V

x x x finding appellant Luvendino guilty of rape with murder.“^[8]

The above assignments of error may be condensed to three (3),
that is, whether or not the trial court erred in: (1) not holding that his “demonstration” or re-­enactment
of the crime as well as his subsequent written admission of guilt as
inadmissible for having been made without the benefit of counsel; (2) according
credence to the identification and other statements made by prosecution witness
Cemitara; and (3) allowing Luvendino’s counsel before the trial court to
continue as such notwithstanding such counsel’s express mental reservations.

Under his first assignment of error, appellant Luvendino contends
that the “demonstration” or re-enactment and his extrajudicial
confession were effected and secured in the absence of a valid waiver by him of
his constitutional rights and that the re-enactment and the confession should
be held inadmissible in evidence because they had been involuntarily made.

We turn first to the admissibility of the testimony (of Panfilo
Capcap) relating to the contents of the demonstration or re-enactment of the
crime. The decision of the trial court
had the following to say about the re­-enactment:

“For sometime, the suspects had not been known. As a
matter of fact, in the January 22 and 23, 1983 issues of TEMPO, a
newspaper of general circulation in Metro Manila, it was reported that the
group of men who waylaid her were still unidentified, (Exhs. C & R). However, Panfilo Capcap stated that at
about midnight of February 10, 1983, he was awakened by the police at their
residence. They went to the vacant lot
where they found the dead body of Rowena. A police officer, whom he later knew to be Sgt. Birxo, told him they had
arrested Ernesto Luvendino, alias ‘Joey.’ The accused was then demonstrating
how they brought the girl to the vacant lot. While Luvendino was re-enacting the events that transpired in the
evening of January 17, pictures were taken by a photographer brought by the
police officers. As the re-enactment
was going on, Capcap said he heard the accused said that he and his companion
boxed her in the stomach, dragged her to the lot and raped her there. The accused allegedly admitted he and Cesar
Borca had strangled Rowena and he likewise admitted he had abused her. Capcap stressed that in the course of the
demonstration Luvendino remarked: ‘Inaamin ko po na kasama ko si Cesar Borca sa pag re-rape kay Rowena.’
Luvendino allegedly demonstrated how she was boxed, dragged and abused and
pointed to the place where they had left her remains. Capcap drew a sketch of the scene (Exh. I). He also narrated that after the
re-enactment, he and Luvendino were taken to the Eastern Police District in
Pasig and were investigated separately. He likewise testified that sometime before the apprehension of Luvendino
he was informed by Ernesto Uy that a certain
Bayani Cemitara had seen Rowena with several men by the entrance of Deva
Village in the early evening of January 17, 1983.

x x x x x x            x
x x

x x x. The records indicate
that immediately after his apprehension, the police officers brought him to
the Deva Subdivision where he demonstrated how the victim was boxed, dragged
and taken to the vacant lot where she was raped and throttled to death. According to the evidence for the
prosecution, Luvendino in the re-enactment, had not only admitted his
presence in the commission of the crime but had likewise admitted he was with
Borca in abusing Rowena. Signifi­cantly,
the evidence for the prosecution in this regard was not rebutted nor denied by
the accused.

x x x  x x x      x x x”^[9]

(Underscoring
supplied)

Clearly, the trial court took into
account the testimony given by Panfilo Capcap on what had occurred during the
re-­enactment of the crime by Luvendino. We note that the re-­enactment was apparently staged promptly upon
apprehension of Luvendino and even prior to his formal investigation at the
police station.^[10]
The decision of the trial court found that the accused was informed of his
constitutional rights “before he was investigated by Sgt. Galang in
the police headquarters” and cited the “Salaysay“^[11]
of appellant Luvendino.^[12]
The decision itself, however, states that the re-enactment took place before
Luvendino was brought to the police station. Thus, it is not clear from the record that before the
re-enactment was staged by Luvendino, he had been informed of his
constitutional rights including, specifically, his right to counsel and that he
had waived such right before proceeding with the demonstration. Under these circumstances, we must decline
to uphold the admissibility of evidence relating to that re-enactment.^[13]

We consider next the extrajudicial confession of appellant
Luvendino. Luvendino claimed first of
all that the extrajudicial confession had been extracted from him by means of a
beating administered by many policemen at the police station and that a chain
had been wrapped around his neck. The
trial court disposed of this claim in the following manner:

“In an extra-judicial confession, the confessant carries the
burden of convincing the court that his admissions are involuntary and
untrue. (People v. Manabo, 18 SCRA
30). This Luvendino had failed to
do. He claimed he was given fist blows
by many policemen and his neck was strangled with a chain when he refused to
admit guilt at the Eastern Police District and then later given the ‘7-up
treatment’ in another place. Although
he said he sustained injuries, no proof was submitted to that effect except his
bare and uncorroborated testimony. He
admitted that his mother and Atty. [Eustacio] Flores were present when he
subscribed before the fiscal the next day, but he did not say that he had told
them about the torture employed on him. If it were really true that he was abused in the manner he described it,
tale-tell signs of the maltreatment could have been visible the following
morning and would not escape the notice of his mother and his lawyer and
appropriate steps could have been taken so that he may be examined by a
competent physician. It is interesting
to note that Atty. Flores made no mention of such injuries when he was called
as a defense witness.”^[14]

The trial court disbelieved and rejected
Luvendino’s claim that he had been beaten into making his confession. Appellant has given us no basis for
overturning this conclusion of fact. The presumption of the law is one of spontaneity and voluntariness of an
extrajudicial confession of an accused in a criminal case, for no person of
normal mind would deliberately and knowingly confess to being the perpetrator
of a crime, especially a heinous crime, unless prompted by truth and
conscience.^[15]
Thus the Court has ruled that where the confessant failed to present any
evidence of compulsion or duress or violence on his person for purposes of
extracting a confession; where he failed
to complain to the officers who administered the oaths, such as the Fiscal in
this case; where he did not institute any criminal or administrative action
against his alleged intimidators for maltreatment; where he did not have
himself examined by a reputable physician to buttress his claim of
maltreatment; and where the assailed confession is replete with details which
could not have been known to the police officers if they merely concocted the
confession, since the statements were inculpatory in character, the
extrajudicial confession may be admitted, the above circumstances being
considered as factors indicating voluntariness.^[16]

Luvendino next claimed that he had not been informed of his
constitutional rights before his confession was given by him or extracted from
him. In the first place, Police Sgt.
Galang testified as prosecution witness that he had indeed informed Luvendino
of the latter’s constitutional rights before he commenced investigating
Luvendino at the police headquarters.^[17]
In the second place, the written extrajudicial confession itself stated that
Luvendino was informed of his constitutional rights and that he was waiving
those rights.^[18]
In the third place, according to Luvendino himself, he first signed his
extrajudicial statement, which also set out a separately signed waiver of his
rights, at the police department and that later, when he was brought to the
office of Provincial Fiscal Mateo, he subscribed to or signed once more the
same document, this time under oath. As
already noted from the trial court’s decision, when Luvendino subscribed under
oath to his extrajudicial confession in the presence of the Provincial Fiscal,
his mother and Atty. Eustacio Flores were also present. Said the trial court:

“But even as he had waived the right to counsel while
interrogated by Sgt. Galang, the accused was nevertheless assisted by one
before he signed the ‘Salaysay’, Exhibit ‘L,’. From the narration of the accused himself it can be gathered that he was
brought to the Fiscal’s Office in Pasig
in the morning of February 10, 1983. At
that office, he was at first aided by a lawyer from the CLAO. He did not sign the statement for he wanted to talk to his mother. He was returned to the police station where
his mother saw him in the afternoon. In
the headquarters, they requested that they be allowed to engage a lawyer of
their choice and their request was granted. The mother called for Atty. Flores who arrived when the accused was
already back in the Office of the Fiscal. In the presence of Atty. Flores and his mother, the accused was investigated
by the fiscal after which, also in the presence of his mother and
assisted by Atty. Flores, the accused signed Exhibit ‘L.‘^[19]
(Underscoring supplied)

Although Atty. Eustacio Flores, a former Mayor of Pateros, did
not serve as defense counsel during the trial, it is clear that Luvendino and his
mother regarded Atty. Flores as Luvendino’s counsel at least in respect of that
specific occasion in the Fiscal’s office, and that Atty. Flores did so act as
counsel of Luvendino.

It is, however, claimed by appellant Luvendino that at the time
he had first signed his extrajudicial confession at the police headquarters, he
was without counsel. Luvendino thus
apparently seeks to distinguish the initial signing of his “Salaysay”
(Exhibit “L”) at the police headquarters from his subsequent
subscribing thereto under oath in the Office of the Provincial Fiscal of
Rizal. There is no question that on
the latter occasion, Luvendino was questioned or investigated by the Fiscal in
the presence of his mother while Luvendino was assisted by Atty. Eustacio
Flores.

In People v. Burgos,^[20]
the Court did make the following general statements:

“The trial court validly rejected the extra­-judicial
confession of the accused as inadmissible in evidence. The court stated that the appellant’s having
been exhaustively subjected to physical terror, violence, and third degree
measures may not have been supported by reliable evidence but the failure to
present the investigator who conducted the investigation gives rise to the
‘provocative presumption’ that indeed torture and physical violence may have
been committed as stated.

The accused-appellant was not accorded his constitutional right to
be assisted by counsel during the custodial interrogation. The lower court correctly pointed out
that the securing of counsel, Atty. Anyog, to help the accused when he
subscribed under oath to his statement at the Fiscal’s Office was too
late. It could have no palliative
effect. It cannot cure the absence of
counsel at the time of the custodial investigation when the extrajudicial
statement was being taken.”^[21]
(Underscoring supplied)

The above statements in Burgos
were not, however, intended to establish a rigid and automatic rule that the
subsequent presence of and assistance by counsel of the accused prior to and
during the subscribing under oath of an extrajudicial confession and an
accompanying waiver of right to counsel, cannot have any legal effect at
all. For one thing, under the factual
circumstances of People v. Burgos — where the trial court believed the
statements of the accused that he had been “exhaustively subjected to
physical terror, violence and third degree measures” and where the
investigating officer was not presented as a witness by the prosecution — the
above statements were clearly appropriate. In the case at bar, Police Sgt. Galang who had interrogated Luvendino at
the police station was, as already pointed out, presented as a witness by the
prosecution and had testified in extenso, that Luvendino had been
informed by him (Police Sgt. Galang) of his constitutional rights, that
Luvendino had waived his rights voluntarily and intelligently, being convinced
that he did not need the assistance of a lawyer and could, by himself, clarify
what had taken place. Moreover,
Luvendino in the Office of the Provincial Fiscal in Pasig, had initially been
assisted by a Citizens Legal Aid Office (CLAO) lawyer. But he at that time nonetheless declined to
swear to Exhibit “L” and later, together with his mother, insisted
that he be allowed to retain a lawyer of their own choice, which request was
honored. Moreover, and perhaps more
importantly, the trial court in the instant case did not accord any credence to
Luvendino’s claim that he had been physically beaten up by the police officers
at the Taguig police station. In the
afternoon of the same day, Luvendino had every opportunity in the presence of
his mother and his own chosen counsel, Atty. Eustacio Flores, to denounce to
the Provincial Fiscal at the latter’s office any maltreatment that the police
officers might have earlier in the day administered to him, to abjure the
extrajudicial confession or the waiver of his right to counsel there
incorporated as non-voluntary or non-­intelligent and to refuse to sign once
more under oath his “Salaysay“. He did not do so; Atty. Flores did not do so either then and
there or when he testified as a defense witness. Their failure to do so deprives his contention before this Court
of any real force. Luvendino may be deemed
to have in effect ratified, before the Fiscal and with the aid of counsel,
the extrajudicial confession and waiver of the right to counsel which he had
earlier signed without the presence of counsel in the police station.

But even if appellant Luvendino’s contention were to be accepted
at face value (and we do not so accept it), the same result must be
reached. The doctrine that an
uncounseled waiver of the right to counsel is not to be given legal effect was
initially a judge-made one and was first announced on 26 April 1983 in Morales
v. Enrile^[22]
and reiterated on 20 March 1985 in People v. Galit.^[23]
In Morales, the Court explained that Section 20, Article IV of the 1973
Constitution required that:

“7. At the time a person is arrested, it shall
be the duty of the arresting officer to inform him of the reason for the arrest
and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain
silent and to counsel, and that any statement he might make could be used
against him. The person arrested shall
have the right to communicate with his lawyer, a relative, or anyone he choses
by the most expedient means — by telephone if possible — or by letter or
messenger. It shall be the
responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or
in part, shall be inadmissible in evidence.” (Underscoring supplied).

While the Morales-Galit doctrine eventually became part of
Section 12 (1) of the 1987 Constitution, that doctrine affords no comfort to
appellant Luvendino for the requirements and restrictions outlined in Morales
and Galit have no retroactive effect and do not reach waivers made prior
to 26 April 1983, the date of promulgation of Morales.

In People v. Nabaluna,^[24]
the Court upheld the validity of the waiver of the right to counsel which had
been made on 5 December 1977, that is, prior to 26 April 1983, which waiver had
been made without the assistance of counsel, for the reason that at the time
such waiver was made, there was no rule or doctrine or guideline requiring that
waiver of the right to counsel should itself be made only in the presence and with
the assistance of counsel. The trial
court admitted in evidence the extrajudicial statements made by appellant
Nabaluna and found the accused guilty of robbery with homicide in a decision
rendered on 26 September 1981. In
affirming the decision of the trial court, the Court said:

“The Court is mindful of the strictures and pronouncements
found in the case of Morales v. Ponce Enrile, G.R. Nos. 61106 and 61107,
promulgated on April 26, 1983, 121 SCRA 538, quoted and reiterated in the case
of People v. Galit, L-51770, March 20, 1985 and in the case of People v.
Pascual, 109 SCRA 197, promulgated on November 12, 1981, particularly as to the
requisite steps before a person under custodial investigation may be deemed to
have properly waived his right to counsel, such as a counsel being present to
assist him when the accused manifests such waiver. However, the stated requirements were laid down in the said
cases, to serve as governing guidelines, only after the judgment in this case
had already been rendered by the trial court. Consequently, no error should attach to the admission by the trial court
of the extra-judicial statements given by the accused as evidence in this
case. The trial court was then
sufficiently convinced that the accused had waived assistance of counsel and there
was at that time no pronounced guidelines requiring that the waiver of counsel
by accused can be properly made only with he presence and assistance of a
counsel. x x x.”^[25]
(Underscoring supplied)

It may be recalled that even before Nabaluna, the Court
had already determined that Section 20, Article IV of the 1973 Constitution,
was to be given prospective effect only. In Magtoto v. Manguera,^[26]
the Court sustained the admission in evidence of an extrajudicial confession
which had incorporated an uncounseled waiver by the confessant of his
constitutional rights during custodial investigation established in Section 20,
Article IV of the 1973 Constitution, upon the ground that such confession and
waiver had been executed before the effectivity of the 1973 Constitution.^[27]
The decision in Magtoto v. Manguera was not unanimous, but the majority
decision has been reiterated many times^[28]
and it is much too late in the day to consider re-examining the doctrine there
laid down.

Applying Nabaluna to the case at bar, we believe and so
hold that appellant Luvendino validly waived his right to counsel so far as his
extrajudicial confession was concerned, although he was not assisted by counsel
when he initially signed his confession at the police headquarters
(disregarding for present purposes only, the subsequent events in the office of
the Provincial Fiscal). At the time the
extrajudicial confession and waiver were first executed (i.e., 10 February
1983), there was no rule or doctrine prescribing that waiver of the right to
counsel may be validly made only with the assistance of counsel. It is scarcely necessary to add that we are
here referring only to extrajudicial confessions and waivers which were made voluntarily
and intelligently.

Coming now to the second error assigned by appellant Luvendino —
that the trial court had erred grievously in believing the testimony of
prosecution witness Cemitara — ­the Court finds no reason to depart from the
well-settled rule that the assessments by a trial court of the credibility and
sincerity of the witnesses who testified before it, are to be accorded great
respect by appellate courts. The trial
court gave full faith and credence to the testimony of prosecution witness
Salvador Cemitara in view of the straightforward character of his
testimony. We need only to note that
appellant Luvendino presented no evidence to show any personal grudge on the
part of Cemitara against Luvendino, nor any evidence of any ill motive weighty
enough to have moved Cemitara falsely to testify for the prosecution. Indeed, there was nothing to show that
Cemitara was in the least bit acquainted with appellant Luvendino before the
events which culminated in the slaying of Rowena Capcap.

Luvendino asserts, as his third principal assignment of error,
that he had been deprived of due process because he was represented, or
continued to be represented, by a lawyer who had manifested mental
reservations. Neither Luvendino nor his
counsel — Atty. Sardillo — had indicated what precisely the latter’s mental
reservations were. We assume that those
mental reservations consisted of private doubts as to the innocence of
Luvendino of the crime with which he was charged. Atty. Sardillo was Luvendino’s choice as defense counsel. Atty. Sardillo had appeared in at least two
(2) previous hearings and had cross-examined prosecution witness Cemitara
before he (Sardillo) offered in open court to withdraw as defense counsel on 14
November 1983. The trial court could
scarcely be faulted for declining Atty. Sardillo’s offer to withdraw,
considering that such offer had been made without the conformity or permission
of Luvendino. Atty. Sardillo himself
did not insist on withdrawing as defense counsel. If appellant Luvendino in truth had entertained substantial
doubts as to the sincerity or capability or impartiality of his lawyer, he
could have easily terminated the services of that counsel and retained a new
one or sought from the trial court the appointment of counsel de officio. Instead, Luvendino continued to retain the
services of Atty. Sardillo until the trial court rendered its decision. In any event, an examination of the record
will show that Atty. Sardillo continued to represent appellant Luvendino as defense
counsel with reasonable competence.

We would note, finally, that doubts on the part of a lawyer as to
the ultimate innocence of a client accused of a serious felony do not, in
themselves, constitute bases for claiming miscarriage of justice or failure of
due process assailing the professional work done by the lawyer. Of course, complete confidence in the
innocence of one’s client may lend added sincerity and even passion to the
lawyer’s pleading and argumentation. It
is, however, precisely one of the demanding requirements of the legal profession
that the lawyer must present all the defenses and arguments allowed by the law
to a person accused of crime, without regard to the lawyer’s private beliefs or
suspicions as to his client’s guilt.

Appellant Luvendino’s principal defense on the merits was that of
alibi. It is too well-settled to
require documentation that, for the defense of alibi to prosper, the accused
must not only prove that he was somewhere else during the approximate time of
the commission of the crime; he must further prove that it was physically
impossible for him to have been at the scene of the crime during its
commission. Luvendino testified that on
or about the time the rape with homicide was committed, he was at his house in
Pateros, recuperating from a wound allegedly sustained from a beating inflicted
upon him by one Romy Boy. Except for
his own uncorroborated testimony, however. Luvendino failed to present any evidence showing that he was medically
incapacitated to be at the scene of the crime during its commission. He filed no complaint against his alleged
assailant “Romy Boy.” Besides, Pateros and Taguig are neighboring
municipalities with public transport readily and quickly available between the
two (2) locales; there was simply no showing that Luvendino could not have been
in Taguig during the time the crime was committed.

Finally, in respect
of the civil liability aspects of the crime, the Court considers that the
amount of P4,500.00 representing funeral expenses actually incurred by the family
of Rowena Capcap, should be awarded to them as actual damages.^[29]
Further, given the circumstances obtaining in the instant case, especially the
ruthless and mindless slaying of Rowena after she had been raped, the Court
believes that the amount of P30,000.00 should be awarded to Rowena’s heirs as
moral damages, over and above the civil indemnity of P50,000.00 which was
awarded by the trial court.

WHEREFORE, the decision of the trial court in Criminal
Case No. 54537 is hereby MODIFIED by changing the enforceable penalty from
death to reclusion perpetua and by requiring appellant Ernesto C.
Luvendino to pay the heirs of Rowena Capcap the amount of P4,500.00 as actual
damages and P30,000.00 as moral damages, in addition to the civil indemnity of
P50,000.00 awarded by the trial court. In all other respects, the decision of the trial court is AFFIRMED. Costs against accused-appellant.

SO ORDERED.

Gutierrez Jr., Paras,
Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide Jr., Nocon, and Bellosillo, JJ., concur.

Narvasa, C.J., in the result.

Cruz, J., see separate concurring and dissenting opinion.

Romero, J., see concurring opinion.

---

^[1]
TSN, 7 December 1983, pp. 15-16.

^[2]
Id., pp. 3-5.

^[3]
Id., pp. 6-7.

^[4]
Id., pp. 8-11.

^[5]
Folder of Exhibits, p. 8.

^[6]
TSN, 8 February 1974, pp. 9–14.

^[7]
Rollo, p. 5.

^[8]
Brief for the appellant, pp. 1-2; Rollo, p. 47.

^[9]
Decision of the trial court, pp. 3-4 and 14; Rollo, pp. 11-12 and 14.

^[10]
Notwithstanding the portions of the trial court’s decision quoted above, the
brief of the Solicitor General made the following singular statements:

“x x x. The re-enactment was done subsequently at
about mid-night of February 10, 1983 after appellant had already given
his extrajudicial confession earlier in the same morning of the same day to
police investigator as an aid in their criminal investigation to verify certain
details of their previous findings and/or declarations of the suspects. This police investigative aid or procedure
may or may not be introduced in evidence in court. It is not evidence of the commission of the crime itself. Instead, it is what it really is: a mere re?enactment of the
crime by a suspect.” (Rollo, p. 78)

^[11]
Exhibit “L”, Folder of Exhibits.

^[12]
See testimonies of Panfilo Capcap (TSN, 7, 14 & 28 December 1983) and of
P/Sgt. Aquino Galang (TSN, 11 January 1984).

^[13]
See, in this connection, People v. Novoc, 143 SCRA 513 (1986) and People
v. Olvis, 154 SCRA 513 (1987).

^[14]
Decision of the trial court, p. 13; Rollo, p. 21.

^[15]
People v. Ribadajo, 142 SCRA 637 (1986); People v. Zea, 130 SCRA
77 (1984).

^[16]
People v. Damaso, 190 SCRA 595, 609 (1990); Belvis III v. Court
of Appeals, 167 SCRA 324 (1988); People v. Villanueva, 128 SCRA 488, 501
(1984); People v. Balane, 123 SCRA 614 (1983); People v.
Mada-I-Santalani, 93 SCRA 317 (1979); People v. Feliciano, 58 SCRA 383,
391 (1974); People v. Paras, 56 SCRA 248, 262 (1974).

^[17]
TSN, 11 January 1984, p. 5.

^[18]
Exhibit “L,” Folder of Exhibits, Criminal Case No. 54537.

^[19]
Decision of the trial court, p. 15, Rollo, p. 23.

^[20]
144 SCRA 1 (1986).

^[21]
144 SCRA at 18.

^[22]
121 SCRA 538 (1983).

^[23]
135 SCRA 465 (1985).

^[24]
142 SCRA 446 (1986).

^[25]
142 SCRA at 455. Reiterated in People v.
Ponce, 197 SCRA 746 (1991); People v. Seranilla, 161 SCRA 193
(1988). Some cases subsequent to Nabaluna,
e.g., People v. Marquez, 153 SCRA 700 (1987); People v. Albofera,
152 SCRA 123 (1987) and People v. Decierdo, 149 SCRA 496 (1987) appear
to have overlooked Nabaluna, but, never examined or re-examined nor
expressly overruled Nabaluna. In
People v. Dacoycoy (G.R. No. 71662, 8 May 1992), the Court
through Narvasa, C.J., noted the above quoted excerpt from Nabaluna,
but declined to follow Nabaluna.

^[26]
63 SCRA 5 (1975).

^[27]
The Court said:

“We hold that this specific
portion of this constitutional mandate [Section 20, Article IV of the 1973
Constitution] has and should be given a prospective and not a retrospective effect. Consequently, a confession obtained from a
person under investigation for the commission of an offense, who has not been
informed of his right (to silence and) to counsel, is inadmissible in evidence
if the same had been obtained after the effectivity of the New Constitution on
January 17, 1973. Conversely, such
confession is admissible in evidence against the accused, if the same had been
obtained before the effectivity of the New Constitution, even if presented
after January 17, 1973, and even if he had not been informed of his right to counsel,
since no law gave the accused the right to be so informed before that date.”

x x x  x x x       x x x

Section 20, Article IV of the New
Constitution granted, for the first time, to a person under investigation for
the commission of an offense, the right to counsel and to be informed of such
right. And the last sentence thereof
which, in effect, means that any confession obtained in violation of this right
shall be inadmissible in evidence, can and should be given effect only when the
right already existed and had been violated. Consequently, because the confessions of the accused in
G.R. Nos. L-37201-01, 37424 and 38929 were taken before the effectivity of
the New Constitution in accordance with the rules then in force, no
right had been violated as to render them inadmissible in evidence although
they were not informed of ‘their right to remain silent and to counsel,’ ‘and
to be informed of such right,’ because, We repeat, no such right
exited at the time.” (63 SCRA at 12-13) (Underscoring supplied)

^[28]
E.g., People v. Aspili, 191 SCRA 530 (1990); Belvis III v. Court
of Appeals, 167 SCRA 324 (1988); Cortez v. Court of Appeals, 163 SCRA
139 (1988); People v. Veloso, 148 SCRA 60 (1987); People v.
Ribadajo, 142 SCRA 637 (1986).

^[29]
Exhibits “H” and “H-1;” Folder of Exhibits, pp. 11-12.

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105

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3

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