LANSANG VS.

GARCIA [42 SCRA 448; L-33964; 11 Dec 1971]

Monday, February 09, 2009 Posted by Coffeeholic Writes

Labels: Case Digests, Political Law

Facts: In the evening of August 21, 1971, at about 9 p.m., while the Liberal Party of the Philippines was holding a public meeting at Plaza Miranda, Manila, for the presentation of its candidates in the general elections scheduled for November 8, 1971, two hand grenades were thrown at the platform where said candidates and other persons were. Eight persons were killed and many more injured. Proclamation889 was issued by the President suspending privilege of writ of habeas corpus stating that there is a conspiracy of rebellion and insurrection in order to forcibly seize political power. Petitions for writ of habeas corpus were filed by persons (13) who have been arrested without a warrant. It was stated that one of the safeguards of the proclamation was that it is to be applied to persons caught in flagrante delicto. Incidentally, Proc. 889-A was issued as an amendment, inserting the word actually staging. Proc. 889-B was also issued lifting the suspension of privilege in 27 provinces, 3 sub-provinces and 26 cities. Proc. 889-C was issued restoring the suspension in 13 provinces and cities(mostly in Mindanao). Proc. 889-D further lifted the suspension in 7 provinces and 4 cities. Only 18 provinces and sub-provinces and 2 cities whose privilege was suspended. Petitioners maintained that Proclamation No. 889 did not declare the existence of actual "invasion insurrection or rebellion or imminent danger thereof, however it became moot and academic since it was amended. Petitioners further contend that public safety did not require the issuance of proclamations stating: (a) that there is no rebellion; (b) that, prior to and at the time of the suspension of the privilege, the Government was functioning normally, as were the courts; (c) that no untoward incident, confirmatory of analleged JulyAugust Plan, has actually taken place after August 21, 1971; (d) that the President's alleged apprehension, because of said plan, is nonexistent and unjustified; and (e) that the Communist forces in the Philippines are too small and weak to jeopardize public safety to such extent as to require the suspension of the privilege of the writ of habeas corpus. A resolution was issued by majority of the Court having tentatively arrived at a consensus that it may inquire in order to satisfy itself of the existence of the factual bases for the proclamations. Now the Court resolves after conclusive decision reached by majority. Issues: (1) Whether or Not the authority to decide whether the exigency has arisen requiring suspension (of the privilege of the writ of habeas corpus) belongs to the President and his decision is final and conclusive upon the courts and upon all other persons. (2) Whether or Not public safety require the suspension of the privilege of the writ of habeas corpus decreed in Proclamation No. 889-A. Held: The President has authority however it is subject to judicial review. Two conditions must concur for the valid exercise of the authority to suspend the privilege to the writ (a) there must be "invasion, insurrection, or rebellion" or "imminent danger thereof," and (b) "public safety" must require the suspension of the privilege. President has three (3) courses of action: (a) to call out the armed forces; (b) to suspend the privilege of the writ of habeas corpus; and (c) to place the Philippines or any part thereof under martial law. He had, already, called out the armed forces, proved inadequate. Of the two other alternatives, the suspension of the privilege is the least harsh. Petitioners contention that CPP-NPA has no ability, is negatived by the killing of 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater ManilaArea in 1970. CPP has managed to infiltrate or establish and control nine major labor organizations; has exploited the (11) major student or youth organizations; about thirty (30) mass organizations actively advancing the CPP.

Lansang vs. Garcia 42 SCRA 448

labels: constitutional law

Facts: On the evening of August 21, 1971, two grenades were thrown at the miting the avance of the Liberal Party killing 8 persons and injuring many. Thus, on August 23 then President Marcos issued proclamation 889, the suspension of the writ of habeas corpus. Herein petitioners were apprehended by members of the Philippine Constabulary having invoked the said proclamation. In effect the proclamation implies that the authority to decide whether the exigency has arisen requiring suspension of the writ belongs to the President and it expressly states that such declaration is deemed final and conclusive upon the courts and all other persons August 30: the president issued proclamation 889-A, amending the previous proclamation. September 18: proclamation 889-B issued; lifting the suspension on selected provinces/cities. September 25: proclamation 889-C issued; lifting the suspension on selected provinces/cities. October 4: proclamation 889-D issued; same as 889-C on selected areas. In view thereof, 18 provinces, 2 sub-provinces and 18 cities are still under the suspension of writ of habeas corpus Issue: Whether the court would adhere to its previous decision in Barcelon vs. Baker and Montenegro vs. Castaneda? Held: First, Proclamation 889-A superseded the original proclamation and that flaws attributed thereto are formal in nature. Which actually emphasize the actuality of the intent to rise in arms. Second, The court intervention: In Sterling vs. Constantin, Chief Justice Hughes declared that when there is a substantial showing that the exertion of state power has overridden private rights sec ured by the Constitution, the subject is necessarily one for judicial review. Thus, the grant of power to suspend the privilege of writ is neither absolut e or unqualified

The declaration of a rebellion as argued by the petitioners need not to be a wide-scale event, it may be declared even if it only involves a small part of the country. The president decision to suspend the writ was by fact constitutional hence VALID, as he has three available courses to suppress rebellion. First, to call out the military, second to suspend the privilege of writ and lastly to declare martial law. Petitions DENIED; the CFI is directed to conduct preliminary investigations

People of the Philippines, Plaintiff-Appellee v. Leo Echegaray y Pilo, Defendant Appellant

Per Curiam Doctrine: Neither excessive fines nor cruel, degrading or inhuman punishment Date: February 7, 1997 Ponente: As it is a Per curiam decision, the court is acting collectively & anonymously. Facts: The SC rendered a decision in the instant case affirming the conviction of the accused-appellant for the crime of raping his ten-year old daughter. The crime having been committed sometime in April, 1994, during which time Republic Act (R.A.) No. 7659, commonly known as the Death Penalty Law, was already in effect, accused-appellant was inevitably meted out the supreme penalty of death. The accused-appellant timely filed a Motion for Reconsideration which focused on the sinister motive of the victim's grandmother that precipitated the filing of the alleged false accusation of rape against the accused. The motion was dismissed as the SC found no substantial arguments on the said motion that can disturb the verdict. On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R. Vitug, and retained the services of the Anti-Death Penalty Task Force of the Free Legal Assistance Group of the Philippines. (FLAG) A supplemental Motion for Reconsideration prepared by the FLAG on behalf of accused-appellant aiming for the reversal of the death sentence. In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1) mixed factual and legal matters relating to the trial proceedings and findings; (2) alleged incompetence of accused-appellant's former counsel; and (3) purely legal question of the constitutionality of R.A. No. 7659.

Issue/s: WON the death penalty law (RA no. 7659) is unconstitutional Held: No.
Wherefore, the motion for reconsideration & supplemental motion for reconsideration are denied for lack of merit. Ratio: Accused-appellant first claims that the death penalty is per se a cruel, degrading or inhuman punishment as ruled by the United States (U.S.) Supreme Court in Furman v. Georgia. To state, however, that the U.S. Supreme Court, in Furman, categorically ruled that the death penalty is a cruel, degrading or inhuman punishment, is misleading and inaccurate. The issue in Furman was not so much death penalty itself but the arbitrariness pervading the procedures by which the death penalty was imposed on the accused by the sentencing jury. Thus, the defense theory in Furman centered not so much on the nature of the death penalty as a criminal sanction but on the discrimination against the black accused who is meted out the death penalty by a white jury that is given the unconditional discretion to determine whether or not to impose the death penalty. Furman, thus, did not outlaw the death penalty because it was cruel and unusual per se. While the U.S. Supreme Court nullified all discretionary death penalty statutes in Furman, it did so because the discretion which these statutes vested in the trial judges and sentencing juries was uncontrolled and without any parameters, guidelines, or standards intended to lessen, if not altogether eliminate, the intervention of personal biases, prejudices and discriminatory acts on the part of the trial judges and sentencing juries. accused-appellant asseverates that the death penalty is a cruel, inhuman or degrading punishment for the crime of rape mainly because the latter, unlike murder, does not involve the taking of life. In support of his contention, accused-appellant largely relies on the ruling of the U.S. Supreme Court in Coker v. Georgia:: "Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability' x x x is an excessive penalty for the rapist who, as such, does not take human life" The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the public has manifested its rejection of the death penalty as a proper punishment for the crime of rape through the willful omission by the state legislatures to include rape in their new death penalty statutes in the aftermath of Furman; Phil. SC: Anent the first ground, we fail to see how this could have any bearing on the Philippine experience and in the context of our own culture. second, that rape, while concededly a dastardly contemptuous violation of a woman's spiritual integrity, physical privacy, and psychological balance, does not involve the taking of life.

Phil. SC: we disagree with the court's predicate that the gauge of whether or not a crime warrants the death penalty or not, is the attendance of the circumstance of death on the part of the victim. Such a premise is in fact an ennobling of the biblical notion of retributive justice of "an eye for an eye, a tooth for a tooth". The Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence with the enemy during times of war, qualified piracy, parricide, murder, infanticide, kidnapping, rape with homicide or with the use of deadly weapon or by two or more persons resulting in insanity, robbery with homicide, and arson resulting in death. The opposition to the death penalty uniformly took the form of a constitutional question of whether or not the death penalty is a cruel, unjust, excessive or unusual punishment in violation of the constitutional proscription against cruel and unusual punishment Harden v. Director of Prison- "The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life. People v. Limaco- "x x x there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions," Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for compelling reasons involving heinous crimes, may re-impose the death penalty. Nothing in the said provision imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society what R.A. No. 7659 states is that "the Congress, in the interest of justice, public order and rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes. Heinous crime is an act or series of acts which, by the flagrantly violent manner in which the same was committed or by the reason of its inherent viciousness, shows a patent disregard and mockery of the law, public peace and order, or public morals. It is an offense whose essential and inherent viciousness and atrocity are repugnant and outrageous to a civilized society and hence, shock the moral self of a people. The right of a person is not only to live but to live a quality life, and this means that the rest of society is obligated to respect his or her individual personality, the integrity and the sanctity of his or her own physical body, and the value he or she puts in his or her own spiritual, psychological, material and social preferences and needs. Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death, and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. SC: the death penalty is imposed in heinous crimes because: the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government, they must be permanently prevented from doing so People v. Cristobal: "Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act xxx an outrage upon decency and dignity that hurts not only the victim but the society itself.

PEOPLE V. LAVALLE , 3 N.Y.3d 88, 817 N.E.2d 341, 783 N.Y.S.2d 485 Decided June 24, 2004 More than 200 years after Marbury v. Madison, judicial review remains a controversial matter. The controversy is most intense when it involves the court overturning contentious and emotional policies like the death penalty. In this case, Stephen LaValle was given the death penalty for raping and murdering Cynthia Quinn on May 31, 1997. Quinn was jogging near her home in Yaphank, New York early that morning when she came upon LaValle urinating by the side of the road. LaValle became angry when Quinn yelled at him and he followed her into the woods, raped her and stabbed her 73 times with a screwdriver that he took away from her. LaValle was arrested two days later. DNA samples taken from Quinns body and clothing matched LaValle. He was convicted of the murder and sentenced to death under New York States death penalty law.

After conviction and before sentencing, the jury was given the following instruction (a so-called deadlock instruction) as required by New Yorks death penalty law: [I]n the event the jury fails to reach unanimous agreement with respect to the sentence, the c ourt will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty -five years and a maximum term of life. The jury sentenced LaValle to death. The issue on appeal to the New York State Court of Appeals was whether the deadlock instruction, which raises the possibility that a person like LaValle might be released after twenty years or less (with parole), unconstitutionally coerced jurors to agree to the death penalty. In a 4-3 decision, the New York State Court of Appeals invalidated New Yorks death penalty and LaValles death sentence.[1] It held the instruction unconstitutional under the New York State Constitutions Due Process Clause because of the unacceptable risk that it may result in a coercive, and thus arbitrary and unreliable sentence. The Court believed that the deadlock instruction would make the jurors fear that if they do not reach unanimity, the defendant may be paroled in 20 years and pose a threat to so ciety in the future. By interjecting future dangerousness, the deadlock instruction gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 ye ars will join jurors favoring death in order to avoid the deadlock sentence. The decision explained that the goal of any jury instruction is to encourage unanimity while promoting reliability. This can be a delicate balance. If the jury fails to reach a unanimous agreement, the system has failed. [2] At the same time, New York State law requires that the death sentence be based on a determination that death as a punishment fits the crime, not on defendants future dangerousness or fear that he/she may be parole-eligible. Death is qualitatively different from other forms of punishment and therefore there is a greater need for reliability in the determination that death is the appropriate punishment in a specific case. Although the United States Supreme Court has never considered a deadlock instruction like New Yorks under the U.S. Constitut ion, in Jones v. United States (527 U.S. 373) it held that the U.S. Constitution does not require the jury to be instructed about the consequences of their failure to agree. So long as the jury instruction is accurate it need not be balanced. The New York State Court of Appeals decided that New Yorks Constitution is more protective of due process than the United States Constitution in this instance and requires a he ightened standard of reliability in death penalty sentencing. The LaValle court held that the New York State Constitution requires jurors to be instructed about the consequences of their failure to agree and the instruction must be balanced and non-coercive.

Background of the case [edit] Stephen LaValle, who raped and murdered (stabbed seventy-three times with a screwdriver) high-school track coach Cynthia Quinn during her Sunday morning jog was convicted by a lower court of murder in the first degree and of rape. The Supreme Court of Suffolk County sentenced him to death. LaValle largely argued the case himself (despite a complete lack of legal training), after a falling out between him and his two attorneys; they wanted to take the case in a separate direction. The case was eventually appealed to the highest court in New York State. Court of Appeals decision [edit] LaValle argued that his death sentence had been improperly imposed on two grounds. First, he alleged that one of the jurors (juror 16) had been biased against him from the beginning, and that during voir dire the juror had expressed an inclination towards assigning the death penalty to rapists and murderers. LaValle also argued that the emotional testimony of Quinn's husband was largely irrelevant to the case, and served only to earn him a harsher sentence from the jury. While the court upheld LaValle's conviction, citing "overwhelming evidence of guilt" to support it (largely based on LaValle's own confession as well aseyewitness testimony), the court did invalidate the death sentence, on the grounds that it violated Article 1, Section 6 of the New York Constitution. The Court held that Section 400.27(10) [2] of the New York Criminal Procedure Law was unconstitutional. That section addressed what would happen if jury deadlockedthat is could not agreeon the penalty to be imposed: life without the possibility of parole, or death. In that circumstance the trial judge would be empowered to sentence the defendant to as little as 20 years to life or as much as life without parole. Moreover, the statute required the judge to instruct the jury as to what would occur if they deadlocked. The Court found that such an instruction could have a coercive effect on jurors who believed life without parole was the appropriate sentence, but feared that if they stuck to their vote and a deadlock resulted the defendant could be eligible for parole in as little as twenty years. This potential for coercion violated the Due Process Clause of the New York State Constitution. The court further held that some instruction as to the consequence of deadlock was required by the due process clause of the New York State Constitution, but that it was for the legislature, not the court to provide a new instruction. Effects [edit] The court remanded the case to the Supreme Court of Suffolk County with instructions that a new sentence be imposed: either 20 or 25 years to life, or life imprisonment without eligibility forparole. The death sentences of New York's other two death-row inmates were also invalidated. In April 2007, there were talks by state officials of the Republican Party, notably former State Senate Majority Leader Joseph Bruno, to reinstate a state death penalty that permits its usage for "cop-killers." Former governor Eliot Spitzer expressed agreement with the intention of the legislation, but did not actually express support for passing it. Former governor David Paterson did not take a position, but according to state senator Liz Krueger, Paterson has always been against capital [1] punishment. [2] In October 2007 The New York Court of Appeals decided People v. John Taylor which involved the last inmate on New York's Death Row (see Wendy's Massacre). In that case, the District Attorney of Queens County sought to carve an exception to Lavalle, but the court rejected that effort.

PEOPLE VS. DESALISA

Nature: Appeal from a decision of RTC Sorsogon. 1994. FACTS: Emmanuel Desalisa, a 22-yr old farmer, lived w/ his 18-yr old legal wife, Norma, who was then 5 mos pregnant and their 2-yr old daughter in a small nipa hse on a hill at Pinaductan, Sorsogon. The whole neighborhood consists of 3 houses. The other 2 houses are about 150 meters away: the house of his parents-in-law and the house of Carlito Dichoso. The view of the houses is obstructed by the many fruit trees and shrubs prevalent in the area. On Oct 9, 1983, Vicente Dioneda, the father-in-law of the accused, testified that the latter went to their house and left his 2 yr-old. The next day, at about 6 or 7AM, Vicente went to the house of the accused only to find plates scattered on the floor, the kettle w/ cooked rice untouched, and the other rope holding the hammock missing. He went out of the house and noticed the couples pig to be hungry. He thought of feeding it w/ coconut meat from the tree w/c was nearby. He saw the back of the body of his daughter. He called her and touched her back. However, her body swayed. It was only then that he realized that she was hanging from a branch of the jackfruit tree. Her neck was suspended about 4 inches above the ground. Her neck was tied w/ the missing rope of the hammock. There were no eyewitnesses to the incident. Accused-appellant often manhandled his daughter because he suspected her of having a paramour and that the baby in her womb was not his. He believed that one Ariate was courting his wife. Desalisa invokes the defense of denial. He speculates that it was his wife who was jealous. She suspected him of having an affair w/ the daughter of Manoy Charito. HELD: The accused has the opportunity to commit the crime. The house where they lived is up a hill and isolated. The whole neighborhood consists only of 3 houses. No one can go up the hill to visit w/o being known to the neighbor. Moreover, the motive of jealousy is evident for what can be more humiliating to a man aside from a wife being unfaithful to be refused entry to ones very home? Although the accused did not flee after the crime, there is no case law holding that non-flight is conclusive of proof of innocence. The aggravating circumstance of evident premeditation can not be appreciated against accused-appellant absent any proof as to how and when the plan to kill was hatched or what time elapsed before it was carried out. Neither may the aggr circumstance of nighttime be appreciated against him because there is no proof that it was purposely sought or taken advantage of or that it facilitated the commission of the crime. However, the aggr circumstance of uninhabited place is present. The uninhabitedness of a place is determined not by the distance of the nearest house to the scene of the crime but WON there was reasonable possibility of the victim receiving some help in the place of commission. Considering that the killing was done during nighttime and many fruit trees and shrubs obstructed the view of the neighbors and passersby, there was no reasonable possibility for the victim to receive any assistance. Accused-appellant is found guilty beyond reasonable doubt of the complex crime of parricide w/ unintentional abortion and sentenced to suffer the penalty of reclusion perpetua and to pay civil indemnity of PhP50K. Being a single indivisible penalty, reclusion perpetua is imposed regardless of any mitigating or aggr circumstances.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION August 27, 1953 G.R. No. L-5793 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO ESTOISTA, defendant-appellant. Ramon Diokno and Jose W. Diokno for appellant. First Assistant Solicitor General Ruperto Kapunan Jr. and Acting Solicitor Antonio Consing for appellee. , J.: Prosecuted in the Court of First Instance of Lanao for homicide through reckless imprudence and illegal possession of firearm under one information, the appellant was acquitted of the first offense and found guilty of the second, for which he was sentenced to one year imprisonment. This appeal is from that sentence raising factual legal and constitutional questions. The constitutional question, set up after the submission of the briefs, has to do with the objection that the penalty from 5 to 10 years of imprisonment and fines provided by Republic Act No. 4 is cruel and unusual. As to the facts. The firearms with which the appellant was charged with having in his possession was a rifle and belonged to his father, Bruno Estoista, who held a legal permit for it. Father and son lived in the same house, a little distance from a 27-hectare estate belonging to the family which was partly covered with cogon grass, tall weeds and second growth trees. From a spot in the plantation 100 to 120 meters from the house, the defendant took a shot at a wild rooster and hit Diragon Dima a laborer of the family who was setting a trap for wild chicken and whose presence was not perceived by the accused. The evidence is somewhat conflicting on whether the owner of the rifle was with the accused at the time of the accidental killing. Bruno Estoista testified that on the morning of the accident, February 10, 1949, his son told him that there were wild chickens on the plantation scratching palay and corn plants and asked if he might shoot them; that Bruno told his son to wait, got the rifl e from the house or locker, handed it over to Alberto who is a sharp-shooter and shoots better, and walked about 20 meters behind the young man; that Bruno was that far from Alberto when the latter fired and accidentally wounded their servant. The defendants key testimony is: When I heard wild rooster crowing I told my father about the said wild rooster crowing near our house and he told me to shoot the said wild rooster, so I went to shoot it. Brunos testimony at the trial is in direct contradiction to his and his sons statements at the Constabulary headquarters on the same morning of the shooting, and sworn to by them before the justice of the peace soon after. Bruno related on that occasion that Alberto went to hunt for wild rooster; that later on my son Alberto came to info rm me that he had accidentally hit our laborer; Queried who was with Alberto when he went out hunting, Bruno replied, He was alone. On his part, the defendant declared on the same occasion that Diragon Dima, after being shot, requested to be taken to his (Dimas) house; that as the accused was able to carry the wounded man only about 50 meters, Dima asked the defendant to call Bruno who was i n the house which Alberto did. To the question who his companion was when he shot at a rooster, Alberto sai d, I was alone. There is not the slightest ground to believe that these affidavits contained anything but the truth, especially that part reg arding Brunos whereabouts when the defendant used the rifle. Both affiants are very intelligent, the affidavits were executed immediately upon their arrival at the Constabulary headquarters, there is no hint of any undue pressure brought to bear upon either of them, and, above all, they stood to gain nothing from the statement that the accused was unaccompanied. In contrast, Brunos testimony in court was interested, given with his sons acquittal in view. And especially is the fathers veracity in court to be distrusted because by Albertos unso licited admission, he had been in the habit of going out hunting in other places and for target practices, and because by Brunos unwitting admission, his son, who had no gun of his own, is a sharpshooter and shoots better. It being established that the defendant was alone when he walked to the plantation with his fathers gun , the next question that presents itself is: Does this evidence support conviction as a matter of law? In United States vs. Samson (16 Phil. 323), cited by defense counsel, it was held that carrying a gun by order of the owner does not constitute illegal possession of firearm. The facts in that case were that a shotgun and nine cartridges which belonged to one Pablo Padilla, who had a proper permit to possess them, were seized by the police from Samson while walking in the town of Santa Rosa, Nueva Ecija. Padilla was to use the shotgun in hunting that day and, as he was coming along on horseback, sent Samson on ahead. Republic Act No. 4, amending section 2692 of the Revised Administrative Code, in it pertinent provision is directed against any person who possesses any firearm, ammunition therefor, etc. A point to consider in this connection is the meaning of the word possesses. It goes without saying that this word was employed in its broad sense as to include carries and holds. This has to be to is the manifest intent of the Act is to be effective. The same evils, the same perils to public security, which the Act penalizes exist whether the unlicensed holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law the proprietary concept of the possession can have no bearing whatever. Ownership of the weapon is necessary only insofar as the ownership may tend to establish the guilt or intention of the accused. It is remarkable that in the United States, where the right to bear arms for defense is ensured by the federal and many state constitutions, legislation has been very generally enacted severely restricting the carrying of deadly weapons, and the power of state legislatures to do so has been upheld. In the light of these considerations, it is a mistake to point to United States vs. Samson, supra, as authority for the appellants plea for acquittal. The implied holding in that case that the intention to possess is an essential element of a violation of the Firearms Law was not intended to imply title or right to the weapon to the exclusion of everyone else. The court did not mean only intention to own but also

intention to use. From the very nature of the subject matter of the prohibition control or dominion of the use of the weapon by the holder regardless of ownership is, of necessity, the essential factor. The terms control and dominion themselves are relative terms not susceptible of exact definition, and opinions on the deg ree and character of control or dominion sufficient to constitute a violation vary. The rule laid down by United States courts rule which we here adopt is that temporary, incidental, casual or harmless possession or control of a firearm is not a violation of a statute prohibiting the possessing or carrying of this kind of weapon. A typical example of such possession is where a person picks up a weapon or hands it to another to examine or hold for a moment, or to shoot at some object. (Sanderson vs. State, 5 S.W., 138; C.J., 22) Appellants case does not meet the above test. His holding or carrying of his fathers gun was not incidental, casual, temporary or harml ess. Away from his fathers sight and control, he carried the gun for the only purpose of using it, as in fact he did, with fatal consequences. Incidentally, herein lies a fundamental difference between the case at bar and the Samson case. Although Samson had physical control of his employers shotgun and cartridges, his possession thereof was undoubtedly harmless and innocent, as evidenced by the fact that, apparently, he bore them in full view of the people he met and of the authorities. Unlike the appellant herein, Samson carried the gun solely in obedience to its owners order or request without any inferable intention to use it as a weapon. It is of interest to note that even in the United States where, as stated, the right to bear arms as a means of defense is guaranteed, possession such as that by Samson is by the weight of authority considered a violation of similar statutes. Without deciding whether the prohibition of the Constitution against infliction of cruel and unusual punishment applies both to the form of the penalty and the duration of imprisonment, it is our opinion that confinement from 5 to 10 years for possessing of carrying firearm is not cruel or unusual, having due regard to the prevalent conditions which the law proposes to suppress or curb. The rampant lawlessness against property, person, and even the very security of the Government, directly traceable in large measure to promiscuous carrying and use of powerful weapons, justify imprisonment which in normal circumstances might appear excessive. If imprisonment from 5 to 10 years is out of proportion to the present case in view of certain circumstances, the law is not to be declared unconstitutional for this reason. The constitutionality of an act of the legislature is not to be judged in the light of exceptional cases. Small transgressors for which the heavy net was not spread are like small fishes, bound to be caught, and it is to meet such a situation as this that courts are advised to make a recommendation to the Chief Executive for clemency or reduction of the penalty. (Art. 5, Revised Penal Code; People vs. De la Cruz, 92 Phil. 906.) The sentence imposed by the lower court is much below the penalty authorized by Republic Act No. 4. The judgment is therefore modified so as to sentence the accused to imprisonment for five years. However, considering the degree of malice of the defendant, application of the law to its full extent would be too harsh and, accordingly, it is ordered that copy of this decision be furnished to the President, thru the Secretary of Justice, with the recommendation that the imprisonment herein imposed be reduced to six months. the appellant will pay the costs of both instances. Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo, and Labrador, JJ., concur. RESOLUTION December 3, 1953 TUASON, J.: The constitutionality if Republic Act No. 4, with reference to the penalty therein provided, was carefully considered. In branding imprisonment for five years too harsh and out of proportion in this case, we had in mind that six months was commensurate and just for the appellants offense, taking into consideration his intention and the degree of his malice, rather than that it infringes the constitutional prohibition against the infliction of cruel and unusual punishment. It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty t o be obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not make it cruel and unusual. (24 C.J.S., 1187 -1188.) Expressed in other terms, it has been held that to come under the ban, the punishment must be flagrantly and plainly oppressive, wholly disproportionate to the nature of the offense as to shock the moral sense of the community. ( Idem.) Having in mind the necessity for a radical measure and the public interest at stake, we do not believe that five years confinement for possessing firearms, even as applied to appellants and similar case, can be said to be cruel and unusual, barbarous, or excessive to the extent of being shocking to public conscience. It is of interest to note that the validity on constitutional grounds of the Act in question was contested neither at the trial nor in the elaborate printed brief for the appellant; it was raised for the first time in the course of the oral argument in the Court of Appeals. It is also noteworthy, as possible gauge of popular and judicial reaction to the duration of the imprisonment stipulated in the statute, that some members of the court at first expressed opposition to any recommendation for executive clemency for the appellant, believing that he deserved imprisonment within the prescribed range. The sufficiency of the evidence for appellants conviction under Republic Act No. 4 likewise had received close attention and study. There is no need on our part to add anything to what has been said, exce pt to point out for clarification that the references to defendants previous uses of his fathers gun and the fatal consequences of his last use of it, were made simply to emphasize that his possession of the prohibited weapon was not casual, incidental, or harmless. His previous conduct was relevant in determining his motive and intention, and to disprove the claim that his father followed his son so as not to lose control of the firearm. It was far from the thought of the court to condemn the appellant for acts with which he had not been charged or of which he had been pronounced innocent. The confiscation of the gun is, in our opinion, in accordance with section 1 of the Republic Act No. 4, which reads: SECTION 1. Section twenty-six hundred and ninety-two of the Revised Administrative Code, as amended by Commonwealth Act Numbered fifty-six, is hereby further amended to read as follows: SEC. 2692. Unlawful manufacture, dealing in, acquisition, disposition, or possession of firearms, or ammunition therefor, or instrument used or intended to be used in the manufacture of firearms or ammunition. Any person who manufactures, deals in, acquires, disposes, or possesses, any firearm, parts of firearms, or ammunition therefor, or instrument or implement used or intended to be used in the manufacture of firearms or ammunition in violation of any provision of sections eight hundred and seventy-seven to nine hundred and six,

inclusive, of this Code, as amended, shall, upon conviction, be punished by imprisonment for a period of not less than a year and one day nor more than five years, or both such imprisonment and a fine of not less than one thousand pesos nor more than five thousand pesos, in the discretion of the court. If the article illegally possessed is a rifle, carbine, grease gun, bazooka, machine gun, submachine gun, hand grenade, bomb, artillery of any kind or ammunition exclusively intended for such weapons, such period of imprisonment shall not be less than five years nor more than ten years. A conviction under this section shall carry with it the forfeiture of the prohibited article or articles to the Philippine Government. The possession of any instrument or implement which is directly useful in the manufacture of firearms or ammunition on the part of any person whose business or employment does not deal with such instrument or implement shall be prima facie proof that such article is intended to be used in the manufacture of firearms or ammunition. This provision does not say that firearms unlawfully possessed or carried are to be confiscated only if they belong to the defendant, nor is such intention deducible from the language of the act. We are inclined to, and do, believe that, except perhaps where the lawful owner was innocent of, or without fault in, the use of his property by another, confiscation accords with the legislative intent. We can foresee the objection that such legislation deprives one of his property without due process of law. The answer to this is that ownership or possession of firearms is not a natural right protected by the Constitution. Above the right to own property is the inherent attribute of sovereignty the police power of the state to protect its citizens and to provide for the safety and good order of society. (16 C.J.S., 539, 540.) pursuant to the exercise of police power, the right to private property may be limited, restricted and impaired so as to promote the general welfare, public order and safety. (Id., 611.) The power of the legislature to prohibit the possession of deadly weapon carries with it the power to provide for the confiscation or forfeiture of weapons unlawfully used or allowed by the licensed owner to be used. The motion for reconsideration is therefore denied. Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo, and Labrador, JJ., concur.

M. V. appellants. No appearance for appellee. Johnson, J.: The facts in this case have been stipulated by the respective parties. The stipulation is as follows: 1. That the plaintiff was appointed election inspector of the precinct of Daraga, municipality of Albay, on the 13th day of September, 1909, and did qualify and act as such election inspector in the general elections held in this province on November 2, 1909. 2. That on February 26, 1910, the plaintiff presented to the municipal council of Albay his written resignation from the office of election inspector. 3. That the municipality council of Albay, at its session of March 7, 1910, accepted the resignation tendered by the plaintiff. 4. That on March 21, 1910, at the session held by the municipal council of Albay, the municipal president of the said municipality appointed the plaintiff lieutenant of police of Albay, which appointment was unanimously approved by the council; and on the following day, March 22, 1910, the municipal president issued to the said plaintiff the proper certificate of appointment. 5. That on March 22, 1910, the plaintiff legally qualified for, and took possession of, the office of lieutenant of police of the municipality of Albay. 6. That on March 26, 1910, the municipal president of Albay, acting in pursuance of an order received from the provincial governor, suspended the plaintiffs appointment and summoned the latter to appear before the provincial board of Albay on the 29th of M arch, 1910, for the purpose of deciding upon the legality of his appointment as such lieutenant of police, in view of his having discharged the duties of election inspector in the last election. 7. That on March 29, 1910, the plaintiff, through his attorney, appeared before the provincial board and demanded that it abstain from passing any resolution with respect to the legality of the said appointment, alleging that the said board lack both the power and the jurisdiction so to do; but that the board did, notwithstanding, disapprove the resolution passed by the municipal council of Albay on March 21, 1910. 8. That on March 26, 1910, the plaintiff ceased to discharge the duties of the office of lieutenant of police of Albay, and, by the aforecited resolution of the provincial board, is prevented from holding the said office in the future. 9. That the municipal council of Albay resolved not to appeal, and did not appeal, administratively to the Honorable Governor-General from the resolution of the provincial board, and the said council does not permit nor will it permit the plaintiff to occupy or again to take possession of the said office. 10. That the municipal board is disposed to carry out its resolution disapproving the appointment of the plaintiff, and to prevent the latter from continuing in the discharge of the duties of the office of lieutenant of police. 11. Both parties agree, furthermore, that the court admit and consider the following documents, attached hereto and marked as Exhibits A, B, C, D, E, F, G, H, and I. Section 15 of the Election Law ( Act No. 1582) contains the provision for the appointment of inspectors of elections, among other things. Said section also provides that: Said inspectors shall be ineligible to be elected or appointed to any other office during their term of office. Said section further provides that the inspectors of elections . . . shall hold office for two years, from the date of thei r appointment. From the stipulated facts above quoted, it will be seen that the plaintiff was appointed as election inspector on the 13th of September, 1909, and resigned on the 26th of February, 1910, and was appointed by the municipal president as teniente de policia on the 21st of March, 1910, which appointment was approved by the municipal council on the 22nd of March, 1910. It will thus be seen that the plaintiff accepted an appointive position within the period of two years from the date of his appointment as election inspector. The provincial board, upon receiving notice of the appointment as teniente de policia, immediately ordered the municipal council to revoke the appoint ment, relying upon the provisions of section 15 above referred to. Immediately upon the revocation of said appointment, the plaintiff presented a petition for a writ of prohibition against the provincial board as well as the municipal council, to prevent them from carrying into effect the said revocation. The lower court issued said writ. From that order the defendants appealed to this court. Several questions are presented by the brief filed by the Attorney-General. The plaintiff presented no brief. In our opinion the only question which it is necessary to discuss in the present case is whether or not that provision of section 15 which provides that said inspectors shall be ineligible to be elected or appointed to any other office during their term of office, renders ineligible an inspector of elections from accepting an appointive office after the acceptance of his resignation and within his term of office (two years). Of course what is said here with reference to the acceptance of an appointive office will also be applicable to the acceptance of an elective office. The lower court reached the conclusion that said provision did not apply after the resignation of the inspector, and cited in support of that conclusion the case of Barnum vs. Gilman (27 Minn., 466, decided March 29, 1881). The constitution of the State of Minnesota, among other things, provides that ? No senator or representative (state) shall, during the time for which he is elected, hold any office under the authority of the United States, or the State of Minnesota, except that of postmaster.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION November 20, 1917 G.R. No. L-18619 GEORGE H. GANAWAY, petitioner, vs. J. W. QUILLEN, Warden of Bilibid Prison, respondent. del Rosario for

In that case (Barnum vs. Gilman) the respondent was elected as lieutenant-governor of the State of Minnesota in the year 1879, for the term commencing January 1, 1880; at the time of his nomination he was holding the office of representative in the legislature, under an election for the term extending to the 1st of January, 1881; but prior to the said state election he resigned his office as representative and his resignation was duly accepted. Mr. Justice Cornell, in writing the opinion in that case for the majority of the court, said: When he ceases to be such (senator or representative) whether by the lapse of time, resignation or otherwise, the disability terminates. The clause, during the time for which he is elected can not properly be construed as enlarging the scope of the prohibition so as to include persons not in fact members of the legislature. This case (Barnum vs. Gilman) has been cited in support of the proposition that after the resignation of officers included in the provisions of the constitution, and the resignation is accepted, such persons are no longer bound by such provisions. We find, however, that this same question came before the supreme court of the State of Minnesota again in the case of State vs. Sutton (63 Minn., 147, decided December 12, 1895). The supreme court of Minnesota, referring to the case of Barnum vs. Gilman, said: We must regard what was there said in reference to the constitutional provision here under consideration as mere obiter. In the case of State vs. Sutton, supra, the supreme court (of Minnesota) held that under this constitutional provision, the disability of a member of the legislature to hold office does not cease until the expiration of the full period of time for which he was elected. Even granting that the decision in the case of Barnum vs. Gilman decided that a senator or representative might be relieved from the operation of the constitutional provision by resigning, the same is expressly overruled in the case of State vs. Sutton, supra. In the latter case Mr. Sutton was elected to the office of representative on the 16th of November, 1894, for the term commencing on the first Monday of January, 1895, and ending on the first Monday of January, 1897. Pursuant to his election he duly qualified and entered upon the discharge of his duties as such member and served until the 2nd of May, 1895. On the 4th of May, 1895, Mr. Sutton was appointed to the public office of inspector of boilers for the fourth congressional district, and qualified and entered upon the performance of the duties of that office. Proceedings were commenced to oust him of his office and the court in deciding the case said: We are of the opinion that the respondent, in holding the office of inspector of boilers, as charged in the writ of quo warranto, comes within the prohibition of the constitution (art. 4, sec. 9), and it is therefore adjudged that said respondent, John B. Sutton, is guilty of unlawfully holding and exercising the office of inspector of boilers for the fourth congressional district in this state. And it is further ordered and adjudged that said John B. Sutton be ousted and excluded from said office of inspector of boilers and that judgment be entered accordingly. The question which we are discussing here came before the supreme court of the State of Michigan in the case of Ellis vs. Lennon (86 Mich., 468, decided June term, 1891). In Michigan the general law for the incorporation of cities contains the following provision: No alderman shall be elected or appointed to any other office in the city during the term for which he was elected as alderman, nor appointed to any other office in the city within one year thereafter. The constitution of the State of Michigan also provides the following: No person elected a member of the legislature shall receive any civil appointment within this State, or to the Senate of the United States, from the governor, the governor and senate, from the legislature, or any other State authority, during the term for which he is elected. In the said case of Ellis vs. Lennon supra, a member of the city council resigned his position and was appointed chief of police. Quo warranto proceedings were commenced against him. The supreme court decided that: An Alderman, . . ., can not, by resigning his office prior to the expiration of the term for which he was elected, render himself eligible to receive the appointment of chief of police. In the case of Waldo vs. Wallace (12 Ind., 569) it appears that Wallace was mayor of the city of Indianapolis and that during the continuance of his term of office as such he resigned, became a candidate and received the highest number of votes for the office of sheriff of his country. His right to hold the office of sheriff was presented to the courts. The court held that he could not exercise the duties of the office of sheriff, for the reason that his election to the latter office occurred during the continuance of his term as mayor. See also Gulick vs. New, 14 Ind., 93.) Provisions similar to that contained in said section 15 of Act No. 1582 are found in the constitutions of many of the States of the United States. It is common provision of municipal charters. The purpose of such provision is to guard against trafficking in office and the further purpose is to remove from the incumbent of the office any inducement for causing a vacancy. (Ellis vs. Lennon, 86 Mich., 468; Waldo vs. Wallace, 12 Ind., 569; Shellby vs. Alcorn, 36 Miss., 273; Sublett vs. Bedwell, 47 Miss., 266; Smith vs. Moore, 90 Ind., 294; Story on Constitutional Law, sections 867-969.) Another purpose for the existence of such constitutional or statutory provisions is to prevent officers from using their official positions in the creation of offices for themselves, or for the appointment of themselves to other more lucrative positions. The law of course recognizes the right of an official to resign under certain circumstances, but the policy of the law as announced in said section 15 of Act No. 1582 is to take away from public officials all inducements to the vacation of their office. The provision of said section 15 seems to be clear. It says that said inspectors shall be ineligible to be elected or appointed during their term of office. The time included within the phrase during their term of office is easy to compute. Laws should be given their natural interpretation. Had the legislature intended that said inspectors should be ineligible to be elected or appointed simply during the time which they held the office of an inspector, the language of the statute would have been different. The statute naturally would have read: During the time they continue to hold the office of inspector. The statute, however, is broader. It used the phrase during their term of office.1 In reading said section it will be noted that inspect ors of elections are appointed for a term of two years. Statutes should be construed so as to give every word and phrase used its common and approved meaning. If it had been the intention of the Legislature to limit the prohibition to the term of actual service, or simply to make inspectors of elections ineligible to other offices during the term of actual service, the phrase during their term of office would have been subst ituted by the phrase during the term of actual service. For the foregoing reasons we are fully persuaded that inspectors of elections are ineligible to be elected or appointed to any other office during their term of office, and this prohibition is not limited to their term of actual service. The judgment of the lower court is therefore hereby reversed and the defendants are absolved from any liability under the petition presented in the lower court for the writ of prohibition, with costs against the plaintiff.

[G.R. No. 117472. February 7, 1997] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accused-appellant. RESOLUTION PER CURIAM: On June 25, 1996, we rendered our decision in the instant case affirming the conviction of the accused-appellant for the crime of raping his ten-year old daughter. The crime having been committed sometime in April, 1994, during which time Republic Act (R.A.) No. 7659, commonly known as the Death Penalty Law, was already in effect, accused-appellant was inevitably meted out the supreme penalty of death. On July 9, 1996, the accused-appellant timely filed a Motion for Reconsideration which focused on the sinister motive of the victim's grandmother that precipitated the filing of the alleged false accusation of rape against the accused. We find no substantial arguments on the said motion that can disturb our verdict. On August 6, 1996, accused-appellant discharged the defense counsel, Atty. Julian R. Vitug, and retained the services of the Anti-Death Penalty Task Force of the Free Legal Assistance Group of the Philippines (FLAG). On August 23, 1996, we received the Supplemental Motion for Reconsideration prepared by the FLAG on behalf of accused-appellant. The motion raises the following grounds for the reversal of the death sentence: "[1] Accused-appellant should not have been prosecuted since the pardon by the offended party and her mother before the filing of the complaint acted as a bar to his criminal prosecution. [2] The lack of a definite allegation of the date of the commission of the offense in the Complaint and throughout trial prevented the accusedappellant from preparing an adequate defense. [3] The guilt of the accused was not proved beyond a reasonable doubt. [4] The Honorable Court erred in finding that the accused-appellant was the father or stepfather of the complainant and in affirming the sentence of death against him on this basis. [5] The trial court denied the accused-appellant of due process and manifested bias in the conduct of the trial. [6] The accused-appellant was denied his constitutional right to effective assistance of counsel and to due process, due to the incompetence of counsel. [7] R.A. [No.] 7659, reimposing the death penalty is unconstitutional per se: a. For crimes where no death results from the offense, the death penalty is a severe and excessive penalty in violation of Article III, Sec. 19 ( I ) of the 1987 Constitution. b. The death penalty is cruel and unusual punishment in violation of Article III, Sec. 11 of the 1987 Constitution." In sum, the Supplemental Motion for Reconsideration raises three (3) main issues: (1) mixed factual and legal matters relating to the trial proceedings and findings; (2) alleged incompetence of accused-appellant's former counsel; and (3) purely legal question of the constitutionality of R.A. No. 7659. I. It is a rudimentary principle of law that matters neither alleged in the pleadings nor raised during the proceedings below cannot be ventilated for the first time on appeal before the Supreme Court. Moreover, as we have stated in our Resolution in Manila Bay Club Corporation v. [1] Court of Appeals: "If well-recognized jurisprudence precludes raising an issue only for the first time on appeal proper, with more reason should such issue be disallowed or disregarded when initially raised only in a motion for reconsideration of the decision of the appellate court." It is to be remembered that during the proceedings of the rape case against the accused-appellant before the sala of then presiding Judge xxx, the defense attempted to prove that: a) the rape case was motivated by greed, hence, a mere concoction of the alleged victim's maternal grandmother; b) the accused is not the real father of the complainant; c) the size of the penis of the accused cannot have possibly penetrated the alleged victim's private part; and d) the accused was in xxx during the time of the alleged rape. In his Brief before us when the rape case was elevated for automatic review, the accused-appellant reiterated as grounds for exculpation: a) the ill-motive of the victim's maternal grandmother in prompting her grandchild to file the rape case; b) the defense of denial relative to the size of his penis which could not have caused the healed hymenal lacerations of the victim; and c) the defense of alibi. Thus, a second hard look at the issues raised by the new counsel of the accused-appellant reveals that in their messianic appeal for a reversal of our judgment of conviction, we are asked to consider for the first time, by way of a Supplemental Motion for Reconsideration, the following matters: a) the affidavit of desistance written by the victim which acted as a bar to the criminal prosecution for rape against the accused-appellant; b) the vagueness attributed to the date of the commission of the offense in the Complaint which deprived the accused-appellant from adequately defending himself; c) the failure of this Court to clearly establish the qualifying circumstance that placed the accused-appellant within the coverage of the Death Penalty Law; d) the denial of due process and the manifest bias exhibited by the trial court during the trial of the rape case. Apparently, after a careful scrutiny of the foregoing points for reconsideration, the only legitimate issue that We can tackle relates to the Affidavit of Desistance which touches on the lack of jurisdiction of the trial court to have proceeded with the prosecution of the accused[2] appellant considering that the issue of jurisdiction over the subject matter may be raised at any time, even during appeal. It must be stressed that during the trial proceedings of the rape case against the accused-appellant, it appeared that despite the admission made by the victim herself in open court that she had signed an Affidavit of Desistance, she, nevertheless, "strongly pointed out that she is [3] not withdrawing the charge against the accused because the latter might do the same sexual assaults to other women." Thus, this is one

occasion where an affidavit of desistance must be regarded with disfavor inasmuch as the victim, in her tender age, manifested in court that she was pursuing the rape charges against the accused-appellant. [4] We have explained in the case of People v. Gerry Ballabare, that: "As pointed out in People v. Lim (24 190 SCRA 706 [1990], which is also cited by the accused-appellant, an affidavit of desistance is merely an additional ground to buttress the accused's defenses, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge."[5] In the case at bar, all that the accused-appellant offered as defenses mainly consisted of denial and alibi which cannot outweigh the positive identification and convincing testimonies given by the prosecution. Hence, the affidavit of desistance, which the victim herself intended to disregard as earlier discussed, must have no bearing on the criminal prosecution against the accused-appellant, particularly on the trial court's jurisdiction over the case. II [6] The settled rule is that the client is bound by the negligence or mistakes of his counsel. One of the recognized exceptions to this rule is gross [7] incompetency in a way that the defendant is highly prejudiced and prevented, in effect, from having his day in court to defend himself. In the instant case, we believe that the former counsel of the accused-appellant to whom the FLAG lawyers now impute incompetency had amply exercised the required ordinary diligence or that reasonable decree of care and skill expected of him relative to his client's defense. As the rape case was being tried on the merits, Atty. Vitug, from the time he was assigned to handle the case, dutifully attended the hearings thereof. Moreover, he had seasonably submitted the Accused-Appellant's Brief and the Motion for Reconsideration of our June 25, 1996 Decision with extensive discussion in support of his line of defense. There is no indication of gross incompetency that could have resulted from a failure to present any argument or any witness to defend his client. Neither has he acted haphazardly in the preparation of his case against the prosecution evidence. The main reason for his failure to exculpate his client, the accused-appellant, is the overwhelming evidence of the prosecution. The alleged errors committed by the previous counsel as enumerated by the new counsel could not have overturned the judgment of conviction against the accused-appellant. III Although its origins seem lost in obscurity, the imposition of death as punishment for violation of law or custom, religious or secular, is an ancient practice. We do know that our forefathers killed to avenge themselves and their kin and that initially, the criminal law was used to compensate for a wrong done to a private party or his family, not to punish in the name of the state. The dawning of civilization brought with it both the increasing sensitization throughout the later generations against past barbarity and the institutionalization of state power under the rule of law. Today every man or woman is both an individual person with inherent human rights recognized and protected by the state and a citizen with the duty to serve the common weal and defend and preserve society. One of the indispensable powers of the state is the power to secure society against threatened and actual evil. Pursuant to this, the legislative arm of government enacts criminal laws that define and punish illegal acts that may be committed by its own subjects, the executive agencies enforce these laws, and the judiciary tries and sentences the criminals in accordance with these laws. Although penologists, throughout history, have not stopped debating on the causes of criminal behavior and the purposes of criminal punishment, our criminal laws have been perceived as relatively stable and functional since the enforcement of the Revised Penal Code on January 1, 1932, this notwithstanding occasional opposition to the death penalty provisions therein. The Revised Penal Code, as it was originally promulgated, provided for the death penalty in specified crimes under specific circumstances. As early as 1886, though, capital punishment had entered our legal system through the old Penal Code, which was a modified version of the Spanish Penal Code of 1870. The opposition to the death penalty uniformly took the form of a constitutional question of whether or not the death penalty is a cruel, unjust, excessive or unusual punishment in violation of the constitutional proscription against cruel and unusual punishments. We [8] [9] unchangingly answered this question in the negative in the cases of Harden v. Director of Prison, People v. Limaco, People v. [10] [11] [12] Camano, People v. Puda and People v. Marcos, In Harden, we ruled: "The penalty complained of is neither cruel, unjust nor excessive. In Ex-parte Kemmler, 136 U.S., 436, the United States Supreme Court said that 'punishments are cruel when they involve torture or a lingering death, but the punishment of death is not cruel, within the meaning of that word as used in the constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life.'" [13] Consequently, we have time and again emphasized that our courts are not the fora for a protracted debate on the morality or propriety of the death sentence where the law itself provides therefor in specific and well-defined criminal acts. Thus we had ruled in the 1951 case of Limacothat: "x x x there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions," [14] [15] and this we have reiterated in the 1995 case of People v. Veneracion. Under the Revised Penal Code, death is the penalty for the crimes of treason, correspondence with the enemy during times of war, qualified piracy, parricide, murder, infanticide, kidnapping, rape with homicide or with the use of deadly weapon or by two or more persons resulting in insanity, robbery with homicide, and arson resulting in death. The list of capital offenses lengthened as the legislature responded to the emergencies of the times. In 1941, Commonwealth Act (C.A.) No. 616 added espionage to the list. In the 1950s, at the height of the Huk rebellion, the government enacted Republic Act (R.A.) No. 1700, otherwise known as the Anti-Subversion Law, which carried the death penalty for leaders of the rebellion. From 1971 to 1972, more capital offenses were created by more laws, among them, the Anti-Hijacking Law, the Dangerous Drugs Act, and the Anti-Carnapping Law. During martial law, Presidential Decree (P.D.) No. 1866 was enacted penalizing with death, among others, crimes involving homicide committed with an unlicensed firearm. In the aftermath of the 1986 revolution that dismantled the Marcos regime and led to the nullification of the 1973 Constitution, a Constitutional Commission was convened following appointments thereto by Corazon Aquino who was catapulted to power by the people.

Tasked with formulating a charter that echoes the new found freedom of a rejuvenated people, the Constitutional Commissioners grouped themselves into working committees among which is the Bill of Rights Committee with Jose B. Laurel, Jr. As Chairman and Father Joaquin G. Bernas, S.J., as Vice-Chairman. On July 17, 1986, Father Bernas presented the committee draft of the proposed bill of rights to the rest of the commission. What is now Article III, Section 19 (1) of the 1987 Constitution was first denominated as Section 22 and was originally worded as follows: "Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment, or the death penalty inflicted. Death penalty already imposed shall be commuted to reclusion perpetua." Father Bernas explained that the foregoing provision was the result of a consensus among the members of the Bill of Rights Committee that the death penalty should be abolished. Having agreed to abolish the death penalty, they proceeded to deliberate on how the abolition was to be done -- whether the abolition should be done by the Constitution or by the legislature -- and the majority voted for a constitutional abolition of the death penalty. Father Bernas explained: "x x x [T]here was a division in the Committee not on whether the death penalty should be abolished or not, but rather on whether the abolition should be done by the Constitution -- in which case it cannot be restored by the legislature -- or left to the legislature. The majority voted for the constitutional abolition of the death penalty. And the reason is that capital punishment is inhuman for the convict and his family who are traumatized by the waiting, even if it is never carried out. There is no evidence that the death penalty deterred deadly criminals, hence, life should not be destroyed just in the hope that other lives might be saved. Assuming mastery over the life of another man is just too presumptuous for any man. The fact that the death penalty as an institution has been there from time immemorial should not deter us from reviewing it. Human life is more valuable than an institution intended precisely to serve human life. So, basically, this is the summary of the reasons which were presented in support of the constitutional abolition of the death penalty". [16] The original wording of Article III, Section 19 (1), however, did not survive the debate that it instigated. Commissioner Napoleon G. Rama first pointed out that "never in our history has there been a higher incidence of crime" and that "criminality was at its zenith during the last [17] decade". Ultimately, the dissent defined itself to an unwillingness to absolutely excise the death penalty from our legal system and leave society helpless in the face of a future upsurge of crimes or other similar emergencies. As Commissioner Rustico F. de los Reyes, Jr. suggested, "although we abolish the death penalty in the Constitution, we should afford some amount of flexibility to future [18] legislation," and his concern was amplified by the interpellatory remarks of Commissioner Lugum L. Commissioner and now Associate Justice Florenz Regalado, Commissioner Crispino M. de Castro, Commissioner Ambrosio B. Padilla, Commissioner Christian Monsod, Commissioner Francisco A. Rodrigo, and Commissioner Ricardo Romulo. Commissioner Padilla put it succinctly in the following exchange with Commissioner Teodoro C. Bacani: "BISHOP BACANI. x x x At present, they explicitly make it clear that the church has never condemned the right of the state to inflict capital punishment. MR. PADILLA. x x x So it is granted that the state is not deprived of the right even from a moral standpoint of imposing or prescribing capital punishment. BISHOP BACANI. Yes. What I am saying is that from the Catholic point of view, that right of the state is not forbidden. MR. PADILLA. In fact x x x we have to accept that the state has the delegated authority from the Creator to impose the death penalty under certain circumstances. BISHOP BACANI. The state has the delegation from God for it to do what is needed for the sake of the common good, but the issue at stake is whether or not under the present circumstances that will be for the common good. MR. PADILLA. But the delegated power of the state cannot be denied. BISHOP BACANI. Yes, the state can be delegated by God at a particular stage in history, but it is not clear whether or not that delegation is forever under all circumstances MR. PADILLA. So this matter should be left to the legislature to determine, under certain specified conditions or circumstances, whether the retention of the death penalty or its abolition would be for the common good. I do not believe this Commission can a priori, and as was remarked within a few days or even a month, determine a positive provision in the Constitution that would prohibit even the legislature to prescribe the death penalty for the most heinous crimes, the most grievous offenses attended by many qualifying and aggravating circumstances."[19] What followed, thus, were proposed amendments to the beleaguered provision. The move to add the phrase, "unless for compelling reasons involving heinous crimes, the national assembly provides for the death penalty," came from Commissioners Monsod, Jose E. Suarez and de los Reyes. Commissioner Rodrigo, however, expressed reservations even as regards the proposed amendment. He said: "x x x [T]he issue here is whether or not we should provide this matter in the Constitution or leave it to the discretion of our legislature. Arguments pro and con have been given x x x. But my stand is, we should leave this to the discretion of the legislature. The proposed amendment is halfhearted. It is awkward because we will, in effect, repeal by our Constitution a piece of legislation and after repealing this piece of legislation, tell the legislature that we have repealed the law and that the legislature can go ahead and enact it again. I think this is not worthy of a constitutional body like ours. If we will leave the matter of the death penalty to the legislature, let us leave it completely to the discretion of the legislature, but let us not have this half-baked provision. We have many provisions in the Revised Penal Code imposing the death penalty. We will now revoke or repeal these pieces of legislation by means of the Constitution, but at the same time say that it is up to the legislature to impose this again. x x x The temper and condition of the times change x x x and so we, I think we should leave this matter to the legislature to enact statutes depending on the changing needs of the times. Let us entrust this completely to the legislature composed of representatives elected by the people. I do not say that we are not competent. But we have to admit the fact that we are not elected by the people and if we are going to entrust this to the legislature, let us not be half-baked nor half-hearted about it. Let us entrust it to the legislature 100 percent."[20] Nonetheless, the proposed amendment was approved with twenty-three (23) commissioners voting in favor of the amendment and twelve (12) voting against it, followed by more revisions, hence the present wording of Article III, Section 19 (1) of the 1987 Constitution in the following tenor:

"Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua." The implications of the foregoing provision on the effectivity of the death penalty provisions in the Revised Penal Code and certain special criminal laws and the state of the scale of penalties thereunder, were tremendous. [21] The immediate problem pertained to the applicable penalty for what used to be capital crimes. In People v. Gavarra, we stated that "in view of the abolition of the death penalty under Section 19, Article III of the 1987 Constitution, the penalty that may be imposed for murder [22] isreclusion temporal in its maximum period to reclusion perpetua" thereby eliminating death as the original maximum period. The constitutional abolition of the death penalty, it seemed, limited the penalty for murder to only the remaining periods, to wit, the minimum [23] [24] [25] and the medium, which we then, in People v. Masangkay, People v. Atencio and People v. Intino divided into three new periods, to wit, the lower half of reclusion temporal maximum as the minimum; the upper half of reclusion temporal maximum as the medium; and reclusion perpetua as the maximum, in keeping with the three-grade scheme under the Revised Penal Code. In People v. [26] Munoz, however, we reconsidered these aforecited cases and after extended discussion, we concluded that the doctrine announced therein did not reflect the intention of the framers. The crux of the issue was whether or not Article III, Section 19 (1) absolutely abolished the death penalty, for if it did, then, the aforementioned new three-grade penalty should replace the old one where the death penalty constituted the maximum period. But if no total abolition can be read from said constitutional provision and the death penalty is only suspended, it cannot as yet be negated by the institution of a new three-grade penalty premised on the total inexistence of the death penalty in our statute books. We thus ruled in Munoz: "The advocates of the Masangkay ruling argue that the Constitution abolished the death penalty and thereby limited the penalty for murder to the remaining periods, to wit, the minimum and the medium. These should now be divided into three new periods in keeping with the threegrade scheme intended by the legislature. Those who disagree feel that Article III, Section 19 (1) merely prohibits the imposition of the death penalty and has not, by reducing it to reclusion perpetua, also correspondingly reduced the remaining penalties. These should be maintained intact. A reading of Section 19 (1) of Article III will readily show that there is really nothing therein which expressly declares the abolition of the death penalty. The provision merely says that the death penalty shall not be imposed unless for compelling reasons involving heinous crimes the Congress hereafter provides for it and, if already imposed, shall be reduced to reclusion perpetua. The language, while rather awkward, is still plain enough".[27] Nothing is more defining of the true content of Article III, Section 19 (1) of the 1987 Constitution than the form in which the legislature took the initiative in re-imposing the death penalty. The Senate never doubted its power as vested in it by the constitution, to enact legislation re-imposing the death penalty for compelling reasons involving heinous crimes. Pursuant to this constitutional mandate, the Senate proceeded to a two-step process consisting of: first, the decision, as a matter of policy, to re-impose the death penalty or not; and second, the vote to pass on the third reading the bill reimposing the death penalty for compelling reasons involving heinous crimes. On February 15, 1993, after a fierce and fiery exchange of arguments for and against capital punishment, the Members of the Senate voted on the policy issue of death penalty. The vote was explained, thus: "SUSPENSION OF THE RULES Upon motion of Senator Romulo, there being no objection, the Body suspended the Rules of the Senate. Thereafter, upon motion of Senator Romulo, there being no objection, the Chair directed that a nominal voting be conducted on the policy issue of death penalty. INQUIRY OF SENATOR TOLENTINO Asked by Senator Tolentino on how the Members of the Senate would vote on this policy question, Senator Romulo stated that a vote of Yes would mean a vote in favor of death as a penalty to be reincorporated in the scale of penalties as provided in the Revised Penal Code, and a vote of No would be a vote against the reincorporation of death penalty in the scale of penalties in the Revised Penal Code. INQUIRY OF SENATOR ALVAREZ xxx The Chair explained that it was agreed upon that the Body would first decide the question whether or not death penalty should be reimposed, and thereafter, a seven-man committee would be formed to draft the compromise bill in accordance with the result of the voting. If the Body decides in favor of the death penalty, the Chair said that the committee would specify the crimes on which death penalty would be imposed. It affirmed that a vote of Yes in the nominal voting would mean a vote in favor of death penalty on at least one crime, and that certain refinements on how the penalty would be imposed would be left to the discretion of the seven-man committee. xxx INQUIRY OF SENATOR TAADA In reply to Senator Taada's query, the Chair affirmed that even if a senator would vote 'yes' on the basic policy issue, he could still vote 'no' on the imposition of the death penalty on a particular crime. REMARKS OF SENATOR TOLENTINO Senator Tolentino observed that the Body would be voting on the basic policy issue of whether or not the death penalty would be included in the scale of penalties found in Article 27 of the Revised Penal Code, so that if it is voted down, the Body would discontinue discussing Senate Bill No. 891 pursuant to the Rules, but if approved, a special committee, as agreed upon in the caucus, is going to be appointed and whatever course it will take will depend upon the mandate given to it by the Body later on. The Chair affirmed Senator Tolentino's observations. REMARKS OF SENATOR ROCO Senator Roco stated that the Body would vote whether or not death as a penalty will be reincorporated in the scale of penalties provided by the Revised Penal Code. However, he pointed out that if the Body decides in favor of death penalty, the Body would still have to address two issues: 1) Is the crime for which the death penalty is supposed to be imposed heinous pursuant to the constitutional mandate? 2) And, if so, is

there a compelling reason to impose the death penalty for it? The death penalty, he stressed, cannot be imposed simply because the crime is heinous."[28] With seventeen (17) affirmative votes and seven (7) negative votes and no abstention, the Chair declared that the Senate has voted to reincorporate death as a penalty in the scale of penalties as provided in the Revised Penal Code. A nine-person committee was subsequently created to draft the compromise bill pursuant to said vote. The mandate of the committee was to retain the death penalty, while the main debate in the committee would be the determination of the crimes to be considered heinous. On March 17, 1993, Senator Arturo Tolentino, Chairman of the Special Committee on the Death Penalty, delivered his Sponsorship Speech. He began with an explanation as to why the Senate Bill No. 891 re-imposes the death penalty by amending the Revised Penal Code and other special penal laws and includes provisions that do not define or punish crimes but serve purposes allied to the reimposition of the death penalty. Senator Tolentino stated: x x x [W]hen the Senate approved the policy of reimposing the death penalty on heinous crimes and delegated to the Special Committee the work of drafting a bill, a compromise bill that would be the subject for future deliberations of this Body, the Committee had to consider that the death penalty was imposed originally in the Revised Penal Code. So, when the Constitution was approved in order to do away with the death penalty, unless Congress should, for compelling reasons reimpose that penalty on heinous crimes, it was obvious that it was the Revised Penal Code that was affected by that provision of the Constitution. The death penalty, as provided in the Revised Penal Code, would be considered as having been repealed -- all provisions on the death penalty would be considered as having been repealed by the Constitution, until Congress should, for compelling reasons, reimpose such penalty on heinous crimes. Therefore, it was not only one article but many articles of the Revised Penal Code that were actually affected by the Constitution. And it is in consideration of this consequence of the constitutional provision that our Special Committee had to consider the Revised Penal Code itself in making this compromise bill or text of the bill. That is why, in the proposed draft now under consideration which we are sponsoring, the specific provisions of the Revised Penal Code are actually either reenacted or amended or both. Because by the effect of the Constitution, some provisions were totally repealed, and they had to be reenacted so that the provisions could be retained. And some of them had to be amended because the Committee thought that amendments were proper." [29] In response to a query by Senator Gloria Macapagal-Arroyo as to whether or not it would have been better if the Senate were to enact a special law which merely defined and imposed the death penalty for heinous crimes, Senator Tolentino explicated, thus: "x x x [T]hat may be a way presenting the bill. But we must bear in mind that the death penalty is imposed in the Revised Penal Code. Therefore, when the Constitution abolished the death penalty, it actually was amending the Revised Penal Code to such an extent that the Constitution provides that where the death penalty has already been imposed but not yet carried out, then the penalty shall be reclusion perpetua, that is the penalty in the Revised Penal Code. So we thought that it would be best to just amend the provisions of the Revised Penal Code, restoring the death penalty for some crimes that may be considered as heinous. That is why the bill is in this form amending the provisions of the Revised Penal Code. Of course, if some people want to present a special bill . . . the whole trouble is, when a special bill is presented and we want to punish in the special bill the case of murder, for instance, we will have to reproduce the provisions of the Revised Penal Code on murder in order to define the crime for which the death penalty shall be imposed. Or if we want to impose the death penalty in the case of kidnapping which is punished in the Revised Penal Code, we will do the same -- merely reproduce. Why will we do that? So we just followed the simpler method of keeping the definition of the crime as the same and merely adding some aggravating circumstances and reimposing the death penalty in these offenses originally punished in the Revised Penal Code."[30] From March 17, 1993, when the death penalty bill was presented for discussion until August 16, 1993, the Members of the Senate debated on its provisions. The stiffest opposition thereto was bannered by Senator Lina who kept prodding the sponsors of the bill to state the compelling reason for each and every crime for which the supreme penalty of death was sought. Zeroing in on the statement in the preamble of the death penalty bill that the same is warranted in the face of "the alarming upsurge of [heinous] crimes", Senator Lina demanded for solid statistics showing that in the case of each and every crime in the death penalty bill, there was a significantly higher incidence of each crime after the suspension of the death penalty on February 2, 1987 when the 1987 Constitution was ratified by the majority of the Filipino people, than before such [31] ratification. Inasmuch as the re-impositionists could not satisfy the abolitionists with sufficient statistical data for the latter to accept the alarming upsurge of heinous crimes as a compelling reason justifying the reimposition of the death penalty, Senator Lina concluded that there were, in fact, no compelling reasons therefor. In the alternative, Senator Lina argued that the compelling reason required by the constitution was that "the State has done everything in its command so that it can be justified to use an inhuman punishment called death [32] penalty". The problem, Senator Lina emphasized, was that even the re-impositionists admit that there were still numerous reforms in the criminal justice system that may and must be put in place, and so clearly, the recourse to the enactment of a death penalty bill was not in the nature of a last resort, hence, unconstitutional in the absence of compelling reasons. As an initial reaction to Senator Lina's contentions, Senator Tolentino explained that the statement in the preamble is a general one and refers to all the crimes covered by the bill and not to specific crimes. He added that one crime may not have the same degree of increase in incidence as the other crimes and that the public [33] demand to impose the death penalty is enough compelling reason. Equally fit to the task was Senator Wigberto Taada to whom the battle lines were clearly drawn. He put to issue two things: first, the definition of "heinous crimes" as provided for in the death penalty bill; and second, the statement of compelling reasons for each and every capital crime. His interpellation of Senator Tolentino clearly showed his objections to the bill: "Senator Taada. x x x But what would make crimes heinous, Mr. President? Are crimes heinous by their nature or elements as they are described in the bill or are crimes heinous because they are punished by death, as bribery and malversation are proposed to be punished in the bill? Senator Tolentino. They are heinous by their nature, Mr. President, but that is not supposed to be the exclusive criterion. The nature of the offense is the most important element in considering it heinous but, at the same time, we should consider the relation of the offense to society in order to have a complete idea of the heinous nature of these offenses.

In the case of malversation or bribery, for instance, these offenses by themselves connected with the effect upon society and the government have made them fall under the classification of heinous crimes. The compelling reason for imposing the death penalty is when the offenses of malversation and bribery becomes so grave and so serious as indicated in the substitute bill itself, then there is a compelling reason for the death penalty. Senator Taada. With respect to the compelling reasons, Mr. President, does the Gentleman believe that these compelling reasons, which would call for the reimposition of the death penalty, should be separately, distinctly and clearly stated for each crime so that it will be very clear to one and all that not only are these crimes heinous but also one can see the compelling reasons for the reimposition of the death penalty therefor? Senator Tolentino. Mr. President, that matter was actually considered by the Committee. But the decision of the Committee was to avoid stating the compelling reason for each and every offense that is included in the substitute measure. That is why in the preamble, general statements were made to show these compelling reasons. And that, we believe, included in the bill, when converted into law, would be sufficient notice as to what were considered compelling reasons by the Congress, in providing the death penalty for these different offenses. If a matter like this is questioned before the Supreme Court, I would suppose that with the preamble already in general terms, the Supreme Court would feel that it was the sense of Congress that this preamble would be applicable to each and every offense described or punishable in the measure. So we felt that it was not necessary to repeat these compelling reasons for each and every offense. Senator Taada. Mr. President, I am thinking about the constitutional limitations upon the power of Congress to enact criminal legislation, especially the provisions on the Bill of Rights, particularly the one which says that no person shall be held to answer for a criminal offense without due process of law. Can we not say that under this provision, it is required that the compelling reasons be so stated in the bill so that the bill, when it becomes a law, will clearly define the acts and the omissions punished as crimes? Senator Tolentino. Mr. President, I believe that in itself, as substantive law, this is sufficient. The question of whether there is due process will more or less be a matter of procedure in the compliance with the requirements of the Constitution with respect to due process itself which is a separate matter from the substantive law as to the definition and penalty for crimes. Senator Taada. Under the Constitution, Mr. President, it appears that the reimposition of the death penalty is subject to three conditions and these are: 1. Congress should so provide such reimposition of the death penalty; 2. There are compelling reasons; and 3. These involve heinous crimes. Under these provision of the Constitution, paragraph 1, Section 13, does the distinguished Gentleman not feel that Congress is bound to state clearly the compelling reasons for the reimposition of the death penalty for each crime, as well as the elements that make each of the crimes heinous included in the bill? Senator Tolentino. Mr. President, that is a matter of opinion already. I believe that whether we state the compelling reasons or not, whether we state why a certain offense is heinous, is not very important. If the question is raised in the Supreme Court, it is not what we say in the bill that will be controlling but what the Supreme Court will fell as a sufficient compelling reason or as to the heinous nature whether the crime is heinous or not. The accused can certainly raise the matter of constitutionality but it will not go into the matter of due process. It will go into the very power of Congress to enact a bill imposing the death penalty. So that would be entirely separate from the matter of due process." [34] Senator Francisco Tatad, on his part, pointed out that the death penalty bill violated our international commitment in support of the worldwide abolition of capital punishment, the Philippines being a signatory to the International Covenant on Civil and Political Rights and its Second Optional Protocol. Senator Ernesto Herrera clarified, however, that in the United Nations, subject matters are submitted to the different committees which vote on them for consideration in the plenary session. He stressed that unless approved in the plenary session, a declaration would have no binding effect on signatory countries. In this respect, the Philippines cannot be deemed irrevocably bound by said [35] covenant and protocol considering that these agreements have reached only the committee level. After the protracted debate, the Members of the Senate voted on Senate Bill No. 891 on third reading. With seventeen (17) affirmative votes, four (4) negative votes, and one abstention, the death penalty bill was approved on third reading on August 16, 1993. The Senate's vote to pass Senate Bill No. 891 on third reading on August 16, 1993 was a vindication of, the House of Representatives. The House had, in the Eight Congress, earlier approved on third reading House Bill No. 295 on the restoration of the death penalty for certain heinous crimes. The House was in effect rebuffed by the Senate when the Senate killed House Bill No. 295 along with other bills coming from the House. House Bill No. 295 was resurrected during the Ninth Congress in the form of House Bill No. 62 which was introduced by twenty one (21) Members of the House of Representatives on October 27, 1992. House Bill No. 62 was a merger of House Bill Nos. 125, 187, 411, 764, 506, 781, 955, 1565, 1586, 2206, 3238, 3576 and 3632 authored by various Members of the Lower House. In his Sponsorship Speech, Representative Manuel R. Sanchez of Rizal ably essayed the constitutional vesting in Congress of the power to reimpose the death penalty for compelling reasons invoking heinous crimes as well as the nature of this constitutional pre-requisite to the exercise of such power. "Mr. Speaker, in Article III, Section 19(1) of Constitution reads, a I quote: 'Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress shall thereafter provide for it . . .' The phrase 'unless, for compelling reasons involving heinous crimes, the Congress shall thereafter provide for it was introduced as an amendment by then Comm. Christian Monsod. The import of this amendment is unmistakable. By this amendment, the death penalty was not completely abolished by the 1987 Constitution. Rather, it merely suspended the death penalty and gave Congress the discretion to review it at the propitious time. Arguing for the inclusion of said amendment in the fine provision, Comm. Ricardo Romulo said, and I quote: "'The people should have the final say on the subject, because, at some future time, the people might want to restore death penalty through initiative and referendum.

Commissioner Monsod further argued, and I quote: We cannot presume to have the wisdom of the ages. Therefore, it is entirely possible in the future that circumstances may arise which we should not preclude today. xxx xxx xxx I believe that [there] are enough compelling reasons that merit the reimposition of the capital punishment. The violent manner and the viciousness in which crimes are now committed with alarming regularity, show very clearly a patent disregard of the law and a mockery of public peace and order. In the public gallery section today are the relatives of the victims of heinous crimes the Hultmans, the Maguans, the Vizcondes, the Castanoses, and many more, and they are all crying for justice. We ought to listen to them because their lives, their hopes, their dreams, their future have fallen asunder by the cruel and vicious criminality of a few who put their selfish interest above that of society. Heinous crime is an act or series of acts which, by the flagrantly violent manner in which the same was committed or by the reason of its inherent viciousness, shows a patent disregard and mockery of the law, public peace and order, or public morals. It is an offense whose essential and inherent viciousness and atrocity are repugnant and outrageous to a civilized society and hence, shock the moral self of a people. Of late, we are witness to such kind of barbaric crimes. The Vizconde massacre that took the lives of a mother and her two lovely daughters, will stand in the people's memory for many long years as the epitome of viciousness and atrocity that are repugnant to civilized society. The senseless murder of Eldon Maguan, and up-and-coming young business executive, was and still is an outrage that shocks the moral self of our people. The mind-boggling death of Maureen Hultmann, a comely 16 year-old high school student who dreamt of becoming a commercial model someday, at the hands of a crazed man was so repulsive, so brutal that it offends the sensibilities of Christians and non-Christians alike The cold-blooded double murder of Cochise Bernabe and Beebom Castanos, the lovely and promising couple from the University of the Philippines, is eternally lodged in the recesses of our minds and still makes our stomach turn in utter disgust. xxx xxx xxx The seriousness of the situation is such that if no radical action is taken by this body in restoring death penalty as a positive response to the overwhelming clamor of the people, then, as Professor Esteban Bautista of the Philippine Law Center said, and I quote: 'When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they deserve, there are sown the seeds of anarchy of self-help, of vigilante justice and lynch law. The people will take the law upon their hands and exact vengeance in the nature of personal vendetta.' It is for this reason, Mr. Speaker, that I stand here and support House Bill No. 62. As duly elected Representatives of our people, collectively, we ought to listen to our constituents and heed their plea a plea for life, liberty and pursuit of their happiness under a regime of justice and democracy, and without threat that their loves ones will be kidnapped, raped or butchered. But if such a misfortune befalls them, there is the law they could rely on for justice. A law that will exact retribution for the victims. A law that will deter future animalistic behavior of the criminal who take their selfish interest over and above that of society. A law that will deal a deathblow upon all heinous crimes. Mr. Speaker, my distinguished colleagues, for the preservation of all that we hold dear and sacred, let us restore the death penalty." [36] A studious comparison of the legislative proceedings in the Senate and in the House of Representatives reveals that, while both Chambers were not wanting of oppositors to the death penalty, the Lower House seemed less quarrelsome about the form of the death penalty bill as a special law specifying certain heinous crimes without regard to the provisions of the Revised Penal Code and more unified in the perception of what crimes are heinous and that the fact of their very heinousness involves the compulsion and the imperative to suppress, if not completely eradicate, their occurrence. Be it the foregoing general statement of Representative Sanchez or the following details of the nature of the heinous crimes enumerated in House Bill No. 62 by Representative Miguel L. Romero of Negros Oriental, there was clearly, among the hundred or so re-impositionists in the Lower House, no doubt as to their cause: "My friends, this bill provides for the imposition of the death penalty not only for the importation, manufacture and sale of dangerous drugs, but also for other heinous crimes such as reason; parricide; murder; kidnapping; robbery; rape as defined by the Revised Penal Code with or without additionally defined circumstances; plunder, as defined in R.A. 7080; piracy, as defined under Section 2 of PD 532; carnapping, as defined in Section 2 of RA 6539, when the owner, driver or occupant is killed; hijacking, as defined in xxx RA 6235; and arson resulting in the death of any occupants. All these crimes have a common denominator which qualifies them to the level of heinous crimes. A heinous crime is one which, by reason of its inherent or manifest wickedness, viciousness, atrocity or perversity, is repugnant and outrageous to the common standards of decency and morality in a just and civilized society. For instance, the crime of treason is defined as a breach of allegiance to a government, committed by a person who owes allegiance to it (U.S. v. Abad 1 Phil. 437). By the 'allegiance' is meant the obligation of fidelity and obedience which individuals owe to the government under which they live or to their sovereign in return for the protection which they receive (52 Am Jur 797). In kidnapping, the though alone of one's loved one being held against his or her own will in some unidentified xxx house by a group of scoundrels who are strangers is enough terrify and send shivers of fear through the spine of any person, even scoundrels themselves. In robbery accompanied by rape, intentional mutilation or arson, what is being punished by death is the fact that the perpetrator, at the time of the commission of the crime, thinks nothing of the other crime he commits and sees it merely as a form of self-amusement. When a homicide is committed by reason of the robbery, the culprits are perceived as willing to take human life in exchange for money or other personal property.

In the crime of rape, not only do we speak of the pain and agony of the parents over the personal shock and suffering of their child but the stigma of the traumatic and degrading incident which has shattered the victim's life and permanently destroyed her reputation, not to mention the ordeal of having to undergo the shameful experience of police interrogation and court hearings. Piracy, which is merely a higher form of robbery, is punished for the universal hostility of the perpetrators against their victims who are passengers and complement of the vessel, and because of the fact that, in the high seas, no one may be expected to be able to come to the rescue of the helpless victims. For the same reason, Mr. Speaker, the crime of air piracy is punished due to the evil motive of the hijackers in making unreasonable demands upon the sovereignty of an entire nation or nations, coupled with the attendant circumstance of subjecting the passengers to terrorism." [37] The debate on House Bill No. 62 lasted from October 27, 1992 to February 11, 1993. On February 11, 1993, the Members of the House of Representatives overwhelmingly approved the death penalty bill on second reading. On February 23, 1993, after explaining their votes, the Members of the House of Representatives cast their vote on House Bill No. 62 when it [38] was up for consideration on third reading. The results were 123 votes in favor, 26 votes against, and 2 abstentions After the approval on third reading of House Bill No. 62 on February 23, 1993 and of Senate Bill No. 891 on August 16, 1993, the Bicameral Conference Committee convened to incorporate and consolidate them. On December 31, 1993, Republic Act (R.A.) No. 7659, entitled, "An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending for [39] that Purpose the Revised Penal Code, as Amended, Other Special Penal Laws, and for Other Purposes," took effect. Between December 31, 1993, when R.A. No. 7659 took effect, and the present time, criminal offenders have been prosecuted under said law, and one of them, herein accused-appellant, has been, pursuant to said law, meted out the supreme penalty of death for raping his ten-year old daughter. Upon his conviction, his case was elevated to us on automatic review. On June 25, 1996, we affirmed his conviction and the death sentence. Now, accused-appellant comes to us in the heels of this court's affirmation of his death sentence and raises for the first time the issue of the constitutionality of R.A. 7659. His thesis is two-fold: (1) that the death penalty law is unconstitutional per se for having been enacted in the absence of compelling reasons therefor; and (2) that the death penalty for rape is a cruel, excessive and inhuman punishment in violation of the constitutional proscription against punishment of such nature. We reject accused-appellant's proposition. Three justices interposed their dissent hereto, agreeing with accused-appellant's view that Congress enacted R.A. No. 7659 without complying with the twin requirements of compelling reasons and heinous crimes. At this juncture, the detailed events leading to the enactment of R.A. No. 7659 as unfurled in the beginning of this disquisition, necessarily provide the context for the following analysis. Article III, Section 19 (1) of the 1987 Constitution plainly vests in Congress the power to re-impose the death penalty "for compelling reasons involving heinous crimes". This power is not subsumed in the plenary legislative power of Congress, for it is subject to a clear showing of "compelling reasons involving heinous crimes." The constitutional exercise of this limited power to re-impose the death penalty entails (1) that Congress define or describe what is meant by heinous crimes; (2) that Congress specify and penalize by death, only crimes that qualify as heinous in accordance with the definition or description set in the death penalty bill and/or designate crimes punishable by reclusion perpetua to death in which latter case, death can only be imposed upon the attendance of circumstances duly proven in court that characterize the crime to be heinous in accordance with the definition or description set in the death penalty bill; and (3) that Congress, in enacting this death penalty bill be singularly motivated by "compelling reasons involving heinous crimes." In the second whereas clause of the preamble of R.A. No. 7659, we find the definition or description of heinous crimes. Said clause provides that "x x x the crimes punishable by death under this Act are heinous for being grievous, odious and hateful offenses and which, by reason of their inherent or manifest wickedness, viciousness, atrocity and perversity are repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society." [40] Justice Santiago Kapunan, in his dissenting opinion in People v. Alicando, traced the etymological root of the word "heinous" to the Early Spartans' word, "haineus", meaning, hateful and abominable, which, in turn, was from the Greek prefix "haton", denoting acts so hatefully or shockingly evil. We find the foregoing definition or description to be a sufficient criterion of what is to be considered a heinous crime. This criterion is deliberately undetailed as to the circumstances of the victim, the accused, place, time, the manner of commission of crime, its proximate consequences and effects on the victim as well as on society, to afford the sentencing authority sufficient leeway to exercise his discretion in imposing the appropriate penalty in cases where R.A. No. 7659 imposes not a mandatory penalty of death but the more flexible penalty of reclusion perpetua to death. During the debates on the proposed death penalty bill, Senators Lina and Taada grilled the sponsors of the bill as regards what they perceived as a mere enumeration of capital crimes without a specification of the elements that make them heinous. They were oblivious to the fact that there were two types of crimes in the death penalty bill: first, there were crimes penalized by reclusion perpetua to death; and second, there were crimes penalized by mandatory capital punishment upon the attendance of certain specified qualifying circumstances. Under R.A. No. 7659, the following crimes are penalized by reclusion perpetua to death: (1) Treason (Sec. 2); (2) Qualified piracy (Sec. 3); (3) Parricide (Sec. 5); (4) Murder (Sec. 6); (5) Infanticide (Sec. 7);

(6) Kidnapping and serious illegal detention if attended by any of the following four circumstances: (a) the victim was detained for more than three days; (b) it was committed simulating public authority; (c) serious physical injuries were inflicted on the victim or threats to kill him were made; and (d) if the victim is a minor, except when the accused is any of the parents, female or a public officer (Sec. 8); (7) Robbery with homicide, rape or intentional mutilation (Sec. 9); (8) Destructive arson if what is burned is (a) one or more buildings or edifice; (b) a building where people usually gather; (c) a train, ship or airplane for public use; (d) a building or factory in the service of public utilities; (e) a building for the purpose of concealing or destroying evidence Or a crime; (f) an arsenal, fireworks factory, or government museum; and (g) a storehouse or factory of explosive materials located in an inhabited place; or regardless of what is burned, if the arson is perpetrated by two or more persons (Sec. 10); (9) Rape attended by any of the following circumstances: (a) the rape is committed with a deadly weapon; (b) the rape is committed by two or more persons; and (c) the rape is attempted or frustrated and committed with homicide (Sec. 11); (10) Plunder involving at least P50 million (Sec. 12); (11) Importation of prohibited drugs (Sec. 13); (12) Sale, administration, delivery, distribution, and transportation of prohibited drugs (id.); (13) Maintenance of den, dive or resort for users of prohibited drugs (id.); (14) Manufacture of prohibited drugs (id.); (15) Possession or use of prohibited drugs in certain specified amounts (id.); (16) Cultivation of plants which are sources of prohibited drugs (id.) (17) Importation of regulated drugs (Sec. 14); (18) Manufacture of regulated drugs (id.); (19) Sale, administration, dispensation, delivery, transportation, and distribution of regulated drugs (id.); (20) Maintenance of den, dive, or resort for users of regulated drugs (Sec. 15); (21) Possession or use of regulated drugs in specified amounts (Sec. 16); (22) Misappropriation, misapplication or failure to account dangerous drugs confiscated by the arresting officer (Sec. 17); (23) Planting evidence of dangerous drugs in person or immediate vicinity of another to implicate the latter (Sec. 19); and (24) Carnapping where the owner, driver or occupant of the carnapped motor vehicle is killed or raped (Sec. 20). All the foregoing crimes are not capital crimes per se, the uniform penalty for all of them being not mandatory death but the flexible penalty of reclusion perpetua to death. In other words, it is premature to demand for a specification of the heinous elements in each of foregoing crimes because they are not anyway mandatorily penalized with death. The elements that call for the imposition of the supreme penalty of death in these crimes, would only be relevant when the trial court, given the prerogative to impose reclusion perpetua, instead actually imposes the death penalty because it has, in appreciating the evidence proffered before it, found the attendance of certain circumstances in the manner by which the crime was committed, or in the person of the accused on his own or in relation to the victim, or in any other matter of significance to the commission of the crime or its effects on the victim or on society, which circumstances characterize the criminal acts as grievous, odious, or hateful, or inherently or manifestly wicked, vicious, atrocious or perverse as to be repugnant and outrageous to the common standards and norms of decency and morality in a just, civilized and ordered society. On the other hand, under R.A. No. 7659, the mandatory penalty of death is imposed in the following crimes: (1) Qualified bribery "If any public officer is entrusted with law enforcement and he refrains from arresting or prosecuting an offender who has committed a crime punishable by reclusion perpetua and/or death in consideration of any offer, promise, gift or present, he shall suffer the penalty for the offense which was not prosecuted. If it is the public officer who asks or demands such gift or present, he shall suffer the penalty of death." (Sec. 4) (2) Kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured or subjected to dehumanizing acts "The penalty shall be death where the kidnapping or detention was committed for the purpose of ransom from the victim or any other person, even if none of the circumstances above-mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subject to torture or dehumanizing acts, the maximum penalty [of death] shall be imposed." (Sec. 8) (3) Destructive arson resulting in death "If as a consequence of the commission of any of the acts penalized under this Article, death results, the mandatory penalty of death shall be imposed." (Sec. 10) (4) Rape with the victim becoming insane, rape with homicide and qualified "When by reason or on the occasion of the rape, the victim has become insane, the penalty shall be death. xxx xxx xxx When by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death. The death penalty shall also 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, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent or the victim. 2. when the victim is under the custody of the police or military authorities. 3. when the rape is committed in full view of the husband, parent, any of the children or other relatives within the third degree of consanguinity. 4. when the victim is a religious or a child below seven (7) years old 5. when the offender knows that he is afflicted with Acquired Immune Deficiency Syndrome (AIDS) disease. 6. when committed by any member of the Armed Forces of the Philippines or the Philippine National Police or any law enforcement agency. 7. when by reason or on the occasion of the rape, the victim has suffered permanent physical mutilation." (Sec. 11 ) (5) Sale, administration, delivery, distribution and transportation of prohibited drugs where the victim is a minor or the victim dies

"Notwithstanding the provision of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 13) (6) Maintenance of den, dive, or resort for users of prohibited drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum of the penalty [of death] shall be imposed in every case where a prohibited drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a prohibited drug be the proximate case of the death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 13) (7) Sale, administration, dispensation, delivery, distribution and transportation of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, if the victim of the offense is a minor, or should a regulated drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty [of death] herein provided shall be imposed." (Sec. 14) (8) Maintenance of den, dive, or resort for users of regulated drugs where the victim is a minor or the victim dies "Notwithstanding the provisions of Section 20 of this Act to the contrary, the maximum penalty [of death] herein provided shall be imposed in every case where a regulated drug is administered, delivered or sold to a minor who is allowed to use the same in such place. Should a regulated drug be the proximate cause of death of a person using the same in such den, dive or resort, the maximum penalty herein provided shall be imposed on the maintainer notwithstanding the provisions of Section 20 of this Act to the contrary." (Sec. 15) (9) Drug offenses if convicted are government officials, employees or officers including members of police agencies and armed forces "The maximum penalties [of death] provided for in Section 3, 4 (1), 5(1), 6, 7, 8, 9, 11,12 and 13 of Article II and Sections 14, 14-A, 14(1), 15A (1), 16, and 19 of Article III [of the Dangerous Drugs Act of 1972] shall be imposed, if those found guilty or any of the same offenses are government officials, employees or officers including members of police agencies and the armed forces." (Sec. 19) (10) Planting of dangerous drugs as evidence in drug offenses with the mandatory death penalty if convicted are government officials, employees or officers "Any such above government official, employee or officer who is found guilty of 'planting' any dangerous drugs punished in Section s 3, 4, 7, 8, 9 and 13 of Article II and Sections 14, 14-A, 15, and 16 of Article III (of the Dangerous Drugs Act of 1972) in the person or in the immediate vicinity of another as evidence to implicate the latter, shall suffer the same penalty as therein provided." (Sec. 19) (11) In all the crimes in RA. No. 7659 in their qualified form "When in the commission of the crime, advantage was taken by the offender of his public position, the penalty to be imposed shall be in its maximum [of death] regardless of mitigating circumstances. The maximum penalty [of death] shall be imposed if the offense was committed by any person who belongs to an organized/syndicated crime group. An organized/syndicated crime group means a group of two or more persons collaborating, confederating or mutually helping one another for purposes of gain in the commission of any crime." (Sec. 23) It is specifically against the foregoing capital crimes that the test of heinousness must be squarely applied. The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable, either because life was callously taken or the victim is treated like an animal and utterly dehumanized as to completely disrupt the normal course of his or her growth as a human being. The right of a person is not only to live but to live a quality life, and this means that the rest of society is obligated to respect his or her individual personality, the integrity and the sanctity of his or her own physical body, and the value he or she puts in his or her own spiritual, psychological, material and social preferences and needs. Seen in this light, the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death, and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention where the victim is detained for more than three days or serious physical injuries were inflicted on the victim or threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature. There are crimes, however, in which the abomination lies in the significance and implications of the subject criminal acts in the scheme of the larger socio-political and economic context in which the state finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society and psyche of the populace. Terribly lacking the money to provide even the most basic services to its people, any form of misappropriation or misapplication of government funds translates to an actual threat to the very existence of government, and in turn, the very survival of the people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving government officials, employees or officers, that their perpetrators must not be allowed to cause further destruction and damage to society. We have no doubt, therefore, that insofar as the element of heinousness is concerned, R.A. No. 7659 has correctly identified crimes warranting the mandatory penalty of death. As to the other crimes in R.A. No. 7659 punished by reclusion perpetua to death, they are admittingly no less abominable than those mandatorily penalized by death. The proper time to determine their heinousness in contemplation of law, is when on automatic review, we are called to pass on a death sentence involving crimes punishable by reclusion perpetua to death under R.A. No. 7659, with the trial court meting out the death sentence in exercise of judicial discretion. This is not to say, however, that the aggravating circumstances under the Revised Penal Code need be additionally alleged as establishing the heinousness of the crime for the trial court to validly impose the death penalty in the crimes under R.A. No. 7659 which are punished with the flexible penalty of reclusion perpetua to death.

In the first place, the 1987 Constitution did not amend or repeal the provisions of the Revised Penal Code relating to aggravating circumstances. Secondly, R.A. No. 7659, while it specifies circumstances that generally qualify a crime provided therein to be punished by the maximum penalty of death, neither amends nor repeals the aggravating circumstances under the Revised Penal Code. Thus, construing R.A. No. 7659 in parimateria with the Revised Penal Code, death may be imposed when (1) aggravating circumstances attend the commission of the crime as to make operative the provision of the Revised Penal Code regarding the imposition of the maximum penalty; and (2) other circumstances attend the commission of the crime which indubitably characterize the same as heinous in contemplation of R.A. No. 7659 that justify the imposition of the death, albeit the imposable penalty is reclusion perpetua to death. Without difficulty, we understand the rationale for the guided discretion granted in the trial court to cognize circumstances that characterize the commission of the crime as heinous. Certainly there is an infinity of circumstances that may attend the commission of a crime to the same extent that there is no telling the evil that man is capable of. The legislature cannot and need not foresee and inscribe in law each and every loathsome act man is capable of. It is sufficient thus that R.A. 7659 provides the test and yardstick for the determination of the legal situation warranting the imposition of the supreme penalty of death. Needless to say, we are not unaware of the ever existing danger of abuse of discretion on the part of the trial court in meting out the death sentence. Precisely to reduce to nil the possibility of executing an innocent man or one criminal but not heinously criminal, R.A. 7659 is replete with both procedural and substantive safeguards that ensure only the correct application of the mandate of R.A. No. 7659. In the course of the congressional debates on the constitutional requirement that the death penalty be re-imposed for compelling reasons involving heinous crimes, we note that the main objection to the death penalty bill revolved around the persistent demand of the abolitionists for a statement of the reason in each and every heinous crime and statistical proof the such compelling reason actually exists. We believe, however, that the elements of heinousness and compulsion are inseparable and are, in fact, interspersed with each other. Because the subject crimes are either so revolting and debasing as to violate the most minimum of the human standards of decency or its effects, repercussions, implications and consequences so destructive, destabilizing, debilitating, or aggravating in the context of our sociopolitical and economic agenda as a developing nation, these crimes must be frustrated, curtailed and altogether eradicated. There can be no ifs or buts in the face of evil, and we cannot afford to wait until we rub elbows with it before grasping it by the ears and thrashing it to its demission. The abolitionists in congress insisted that all criminal reforms first be pursued and implemented before the death penalty be re-imposed in case such reforms prove unsuccessful. They claimed that the only compelling reason contemplated of by the constitution is that nothing else but the death penalty is left for the government to resort to that could check the chaos and the destruction that is being caused by unbridled criminality. Three of our colleagues, are of the opinion that the compelling reason required by the constitution is that there occurred a dramatic and significant change in the socio-cultural milieu after the suspension of the death penalty on February 2, 1987 such as an unprecedented rise in the incidence of criminality. Such are, however, interpretations only of the phrase "compelling reasons" but not of the conjunctive phrase "compelling reasons involving heinous crimes". The imposition of the requirement that there be a rise in the incidence of criminality because of the suspension of the death penalty, moreover, is an unfair and misplaced demand, for what it amounts to, in fact, is a requirement that the death penalty first proves itself to be a truly deterrent factor in criminal behavior. If there was a dramatically higher incidence of criminality during the time that the death penalty was suspended, that would have proven that the death penalty was indeed a deterrent during the years before its suspension. Suffice it to say that the constitution in the first place did not require that the death penalty be first proven to be a deterrent; what it requires is that there be compelling reasons involving heinous crimes. Article III, Section 19 (1) of the 1987 Constitution simply states that congress, for compelling reasons involving heinous crimes, may re-impose the death penalty. Nothing in the said provision imposes a requirement that for a death penalty bill to be valid, a positive manifestation in the form of a higher incidence of crime should first be perceived and statistically proven following the suspension of the death penalty. Neither does the said provision require that the death penalty be resorted to as a last recourse when all other criminal reforms have failed to abate criminality in society. It is immaterial and irrelevant that R.A. No. 7659 cites that there has been an "alarming upsurge of such crimes", for the same was never intended by said law to be the yardstick to determine the existence of compelling reasons involving heinous crimes. Fittingly, thus, what R.A. No. 7659 states is that "the Congress, in the interest of justice, public order and rule of law, and the need to rationalize and harmonize the penal sanctions for heinous crimes, finds compelling reasons to impose the death penalty for said crimes." We now proceed to answer accused-appellant's other ground for attacking the constitutionality of R.A. No. 7659, i.e., that the death penalty imposed in rape is violative of the constitutional proscription against cruel, degrading or inhuman punishment. Accused-appellant first claims that the death penalty is per se a cruel, degrading or inhuman punishment as ruled by the United States (U.S.) [41] Supreme Court in Furman v. Georgia. To state, however, that the U.S. Supreme Court, in Furman, categorically ruled that the death penalty is a cruel, degrading or inhuman punishment, is misleading and inaccurate. The issue in Furman was not so much death penalty itself but the arbitrariness pervading the procedures by which the death penalty was imposed on the accused by the sentencing jury. Thus, the defense theory in Furman centered not so much on the nature of the death penalty as a criminal sanction but on the discrimination against the black accused who is meted out the death penalty by a white jury that is given the unconditional discretion to determine whether or not to impose the death penalty. In fact, the long road of the American abolitionist movement leading to the landmark case of Furman was trekked by American civil rights advocates zealously fighting against racial discrimination. Thus, the U.S. Supreme Court stated in Furman: "We cannot say from facts disclosed in these records that these defendants were sentenced to death because they were black. Yet our task is not restricted to an effort to divine what motives impelled these death penalties. Rather, we deal with a system of law and of justice that leaves to the uncontrolled discretion of judges or juries the determination whether defendants committing these crimes should die x x x. xxx In a Nation committed to equal protection of the laws there is no permissible 'caste' aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised x x x.

xxx Thus, these discretionary statutes are unconstitutional in their operation. They are pregnant with discrimination and discrimination is an ingredient not compatible with the idea of equal protection of the laws that is implicit in the ban on 'cruel and unusual' punishments." Furman, thus, did not outlaw the death penalty because it was cruel and unusual per se. While the U.S. Supreme Court nullified all discretionary death penalty statutes in Furman, it did so because the discretion which these statutes vested in the trial judges and sentencing juries was uncontrolled and without any parameters, guidelines, or standards intended to lessen, if not altogether eliminate, the intervention of personal biases, prejudices and discriminatory acts on the part of the trial judges and sentencing juries. Consequently, in the aftermath of Furman, when most of the states re-enacted their death penalty statutes now bearing the procedural checks that were required by the U.S. Supreme Court, said court affirmed the constitutionality of the new death penalty statutes in the cases [42] [43] [44] of Gregg v. Georgia, Jurek v. Texas, and Profitt v. Florida. Next, accused-appellant asseverates that the death penalty is a cruel, inhuman or degrading punishment for the crime of rape mainly because the latter, unlike murder, does not involve the taking of life. In support of his contention, accused-appellant largely relies on the [45] ruling of the U.S. Supreme Court in Coker v. Georgia. In Coker, the U.S. Supreme Court ruled as follows: "x x x It is now settled that the death penalty is not invariably cruel and unusual punishment within the meaning of the Eighth Amendment; it is not inherently barbaric or an unacceptable mode of punishment for crime; neither is it always disproportionate to the crime for which it is imposed. It is also established that imposing capital punishment, at least for murder, in accordance with the procedures provided under the Georgia statutes saves the sentence from the infirmities which led the Court to invalidate the prior Georgia capital punishment statute in Furman v. Georgia x x x. xxx In Gregg [v. Georgia] x x x the Court's judgment was that the death penalty for deliberate murder was neither the purposeless imposition of severe punishment nor a punishment grossly disproportionate to the crime. But the Court reserved the question of the constitutionality of the death penalty when imposed for other crimes. x x x That question, with respect to rape of an adult woman, is now before us. xxx x x x [T]he public judgment with respect to rape, as reflected in the statutes providing the punishment for that crime, has been dramatically different. In reviving death penalty laws to satisfy Furman's mandate, none of the States that had not previously authorized death for rape chose to include rape among capital felonies. Of the 16 States in which rape had been a capital offense, only three provided the death penalty for rape of an adult woman in their revised statutes -- Georgia, North Carolina. and Louisiana. In the latter two States, the death penalty was mandatory for those found guilty, and those laws were invalidated by Woodson and Roberts. When Louisiana and North Carolina, respondent to those decisions, again revised their capital punishment laws, they reenacted the death penalty for murder but not for rape; none of the seven other legislatures that to our knowledge have amended or replaced their death penalty statutes since July 2, 1976, including four States (in addition to Louisiana and North Carolina) that had authorized the death sentence for rape prior to 1972 and had reacted to Furman with mandatory statutes, included rape among the crimes for which death was an authorized punishment. xxx It should be noted that Florida, Mississippi, and Tennessee also authorized the death penalty in some rape cases, but only where the victim was a child, and the rapist an adult, the Tennessee statute has since been invalidated because the death sentence was mandatory. x x x The upshot is that Georgia is the sole jurisdiction in the United States at the present time that authorizes a sentence of death when the rape victim is an adult woman, and only two other jurisdictions provide capital punishment when the victim is a child The current judgment with respect to the death penalty for rape is not wholly unanimous among state legislatures, but it obviously weighs very heavily on the side of rejecting capital punishment as a suitable penalty for raping an adult woman. x x x [T]he legislative rejection of capital punishment for rape strongly confirms our own judgment, which is that death is indeed a disproportionate penalty for the crime of raping an adult woman. We do not discount the seriousness of rape as a crime. It is highly reprehensible, both in a moral sense and in its almost total contempt for the personal integrity and autonomy of the female victim and for the latter's privilege of choosing those with whom intimate relationships are to be established. Short of homicide, it is the 'ultimate violation of self.' It is also a violent crime because it normally involves force, or the threat of force or intimidation, to over come the will and the capacity of the victim to resist. Rape is very often accompanied by physical injury to the female and can also inflict mental and psychological damage. Because it undermines the community's sense of security, there is public injury as well. Rape is without doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life. Although it may be accompanied by another crime, rape by definition does not include the death of or even the serious injury to another person. The murderer kills; the rapist, if no more than that, does not. Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair. We have the abiding conviction that the death penalty, which 'is unique in its severity and irrevocability' x x x is an excessive penalty for the rapist who, as such, does not take human life." The U.S. Supreme Court based its foregoing ruling on two grounds: first, that the public has manifested its rejection of the death penalty as a proper punishment for the crime of rape through the willful omission by the state legislatures to include rape in their new death penalty statutes in the aftermath of Furman; and second, that rape, while concededly a dastardly contemptuous violation of a woman's spiritual integrity, physical privacy, and psychological balance, does not involve the taking of life. Anent the first ground, we fail to see how this could have any bearing on the Philippine experience and in the context of our own culture. Anent the second ground, we disagree with the court's predicate that the gauge of whether or not a crime warrants the death penalty or not, is the attendance of the circumstance of death on the part of the victim. Such a premise is in fact an ennobling of the biblical notion of retributive justice of "an eye for an eye, a tooth for a tooth". We have already demonstrated earlier in our discussion of heinous crimes that the forfeiture of life simply because life was taken, never was a defining essence of the death penalty in the context of our legal history and

cultural experience; rather, the death penalty is imposed in heinous crimes because the perpetrators thereof have committed unforgivably execrable acts that have so deeply dehumanized a person or criminal acts with severely destructive effects on the national efforts to lift the masses from abject poverty through organized governmental strategies based on a disciplined and honest citizenry, and because they have so caused irreparable and substantial injury to both their victim and the society and a repetition of their acts would pose actual threat to the safety of individuals and the survival of government, they must be permanently prevented from doing so. At any rate, this court has no [46] doubts as to the innate heinousness of the crime of rape, as we have held in the case of People v. Cristobal: "Rape is the forcible violation of the sexual intimacy of another person. It does injury to justice and charity. Rape deeply wounds the respect, freedom, and physical and moral integrity to which every person has a right. It causes grave damage that can mark the victim for life. It is always an intrinsically evil act xxx an outrage upon decency and dignity that hurts not only the victim but the society itself." We are not unaware that for all the legal posturings we have so essayed here, at the heart of the issue of capital punishment is the wistful, sentimental life-and-death question to which all of us, without thinking, would answer, "life, of course, over death". But dealing with the fundamental question of death provides a context for struggling with even more basic questions, for to grapple with the meaning of death is, in an indirect way, to ask the meaning of life. Otherwise put, to ask what the rights are of the dying is to ask what the rights are of the living. "Capital punishment ought not to be abolished solely because it is substantially repulsive, if infinitely less repulsive than the acts which invoke it. Yet the mounting zeal for its abolition seems to arise from a sentimentalized hyperfastidiousness that seeks to expunge from the society all that appears harsh and suppressive. If we are to preserve the humane society we will have to retain sufficient strength of character and will to do the unpleasant in order that tranquillity and civility may rule comprehensively. It seems very likely that capital punishment is a x x x necessary, if limited factor in that maintenance of social tranquillity and ought to be retained on this ground. To do otherwise is to indulge in the luxury of permitting a sense of false delicacy to reign over the necessity of social survival." [47] WHEREFORE, in view of all the foregoing, the Motion for Reconsideration and the Supplemental Motion for Reconsideration are hereby [48] DENIED for LACK OF MERIT. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

Assistant Solicitor General C. Miguez for appellee. Lorenzo R. Valenciano. Reyes (Jose), J.: On April 14, 1947 a passenger truck driven by Auspicio Romualdo ran into a tree on the side of the road due to reckless driving and in consequence several passengers suffered bodily injuries. Two of those injured Sergia Blaza and Anatecla Abaya filed a complaint against Auspicio Romualdo for serious physical injuries in the justice of the peace of court. Elevated to the Court of First Instance after the preliminary investigation the case was, upon motion of the fiscal, ordered returned to the justice of the peace court on the ground that it was properly triable there. Once the case was in that court and the complaint amended so as to charge less serious physical injuries through reckless imprudence it was there tried jointly with another case for the same offense filed against the same accused by another injured passenger named Joaquin Julian, the trial resulting in the conviction of the accused in both cases and his being sentenced to 1 month and 1 day of imprisonment and the costs of suit. (Action for civil liability was reserved.) From this sentence the accused appealed to the Court of first Instance where the two cases were docketed as criminal cases Nos. 545 and 546. In the meantime two other cases for physical injuries through reckless imprudence were filed against the same accused in the same justice of the peace of court by two other injured passengers Artemio Agustin and Remedios Valencia and (presumably after a preliminary investigation) later forwarded to the Court of first Instance where they were docketed as criminal cases Nos. 506 and 538. With the idea of consolidating all of the cases against the same accused into one, the provincial fiscal moved for the dismissal of cases No. 545 and 546, and upon the motion being granted he filed an amended information merging those cases were called for hearing the accused filed a motion to quash on the ground that the dismissal of the appealed criminal cases Nos. 545 and 546 upon motion of the Provincial Fiscal without the knowledge or consent of the accused constitutes double jeopardy and therefore, the accused could no longer be prosecuted for the same offense. But the motion was denied and trial was held, after which the accused was found guilty and sentenced to four months imprisonment, with the accessories of the law, and to indemnify the offended party Joaquin Julian, in the sum of P270 or suffer subsidiary imprisonment in the case of insolvency and to pay the costs, the right of Remedios Valencia to bring a separate civil action being reserved. from this judgment the accused has appealed. The case hinges on whether the justice of the peace court had jurisdiction to try and decide the two cases that were appealed to the Court of First Instance. And the answer to that question in turn depends upon whether it is the Revised Penal Code or the Revised Motor Vehicle Law that should be applied. The complaints in both case use the term less serious physical injuries through reckless imprudence in the characterizing the offense charged, but there is no question that the facts therein alleged do also constitute a violation of section 67 (d) of the Revised Motor Vehicle Law which says: SEC. 67 (d) If, as the result of negligence or reckless or unreasonably fast driving, any accident occurs resulting in death or serious bodily injury to any person, the motor vehicle driver or operator at fault shall, upon conviction, be punished by imprisonment for not less than 15 days nor more than six years in the discretion of the court. In the case of People vs. Aquino (47 O.G. No. 8, p. 4153) * this Court held that the Automobile Law (Act No. 3992) had superseded the provisions of Article 365 of the revised Penal Code (referring to imprudence and negligence) in cases of offenses resulting from the criminal negligence of the offender while operating a motor vehicle, the purpose of the lawmaker being to curb such violations by pre scribing therefor a more severe penalty than that provided by the revised Penal Code for ordinary cases of r eckless imprudence. And with particular reference to cases of serious bodily injury caused by reckless driving this Court has specifically ruled that such cases are beyond the jurisdiction of the justice of the peace of courts. (Eustaquio vs. Liwag, 86 Phil. 540.) In that case we said: . . . There is nothing in the Revised Motor Vehicle Law to indicate an intention to confine the application of its section 67 (d) only to cases of automobile accidents resulting in the death of a person. On the contrary, it seems obvious from the provisions of said section that the legislative intent is to make them apply to a wide range of cases from mere physical injuries to death, since the range of penalty provided is 15 days to 6 years of imprisonment. the minimum penalty of 15 days imprisonment is eloquent proof that the said section is also meant to be applied to cases of mere physical injuries. It is contended, however, that section 67 (d) of the Revised Motor Vehicle law applies only to automobile accidents resulting in death or serious bodily injury to a person, and the point is made that since the charge against the defendant in the two cases mentioned was for less serious physical injuries those cases come under the Revised Penal Code, and considering the range of penalty therein provided for such offenses they are cognizable by the justice of the peace court. To this contention we can not agree. The phrase serious bodily injury used in the automobile law is not necessarily synonymous with the term serious physical injuries used in the Revised Penal Code. The automobile law employs the word serious without regard to the different degrees of seriousness, and the obvious intention is to distin guish a serious bodily injury from a bodily injury which is merely light or trivial. This intention may be deduced from the fact that the minimum of the penalty provided by the Act is only 15 days of imprisonment. This minimum penalty is lower than that provided in the Revised Penal Code for less serious physical injuries through reckless imprudence, which is arresto mayor in its medium and maximum periods. If as already stated by this court in the case of People vs. Aquino, above cited, the purpose of the lawmakers is to curb violations of the automobile law through reckless

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION January 31, 1952 G.R. No. L-3686 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AUSPICIO ROMUALDO, defendant-appellant. Francisco Carreon and Solicitor Lauro

driving by prescribing therefore a more severe penalty than that provided by the Revised Penal Code for ordinary cases of reckless imprudence, there can be no reason for excepting less serious physical injuries through reckless driving from the purview of section 67 (d) of said law. Our conclusion, therefore, is that the conviction of the accused by the justice of the peace in the two cases in question was a nullity since those cases were beyond the jurisdiction of that court. At most the proceedings had in the court could only be given the effect of a preliminary investigation so that the elevation of the two cases to the court of First Instance should not be regarded as an appeal. Such being the case, the filing of a new information after the dismissal of those cases did not expose the accused to double jeopardy. After this case had reached this Court the Motor Vehicle Law was amended by Republic Act No. 587, which took effect on January 1, 1951, making the infractions committed by appellant punishable under the Penal Code. But the amendment necessities no change in our conclusion, for the jurisdiction of a court to try a criminal action is to be determined by the law in force at the time of instituting the action (People vs. Pegarum, 58 Phil. 715), and we find that the penalty imposed below comes within the range of the corresponding penalty in the Penal Code. The judgment appealed from is, therefore, affirmed, with costs against the appellant. Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor and Jugo, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-19344 July 27, 1966 AGATON BULAONG, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. Marcial F. Desiero for petitioner. Office of the Solicitor General A. A. Alafriz, Assistant Solicitor General P. P. de Castro and Solicitor J. R. Coquia for respondent. BENGZON, J.P., J.: On May 31, 1956 Agaton Bulaong and others were charged before the Court of First Instance of Laguna with the crime of rebellion. Trial did not proceed with respect to Agaton Bulaong until 1958 for he was then at large. Meanwhile Congress enacted the Anti-Subversion Act (Republic Act 1700) which took effect on June 20, 1957. On September 12, 1958, Agaton Bulaong was arrested. On October 1, 1958 the information for rebellion filed with the Court of First Instance of Laguna was amended to read as follows: The accused above named, ... did then and there wilfully, unlawfully and feloniously join the Communist Party of the Philippines (CCP) and the "Hukbong Mapagpalaya ng Bayan" (HMB), otherwise known as the Hukbalahaps (HUKS), the latter being the military arms of the former, whose aims and purposes are to remove people and territory of the Republic of the Philippines and to overthrow it eventually by the use of force and arms, as in fact said accused together with other officers and members of said organization have risen publicly and taken up arms, making armed raids, ambuscades and attacks upon the Philippine Constabulary, Armed Forces of the Philippines, Police Forces and other military detachments of the government, said accused AGATON BULAONG alias Ka Era being then an organizer and leader. On the same date another information was filed before the Court of First Instance of Manila charging Agaton Bulaong of the crime of subversion defined in Section 4 of the Anti-Subversion Act. We quote the information hereunder: That in or about the month of July, 1957, and for the time subsequent thereto in the City of Manila, Philippines, and the place which he had chosen as the nerve center of all his activities in the different parts of the Philippines, the said accused, knowingly and by overt acts, did then and there wilfully and unlawfully become an officer and/or a ranking leader of the Communist Party of the Philippines (CCP) and its Military Arm, the Hukbong Mapagpalaya ng Bayan (HMB) formerly known as Hukbalahaps, which organizations have aimed to overthrow the Government of the Republic of the Philippines by means of force and which organizations have been outlawed and declared illegal and continued and remained an officer and/or a ranking leader of said organizations until his arrest in or about September, 1958, without having renounced his membership therein, as in fact that the said accused together with other officers, members and affiliates of said outlawed and illegal organizations have taken arms against the Government of the Philippine Republic, by making and conducting raids, ambuscades and armed attacks against and upon the Philippine Constabulary, Armed Forces of the Philippines and local police forces. 1wph1.t The case for subversion is still pending in the Court of First Instance of Manila; while the case for rebellion has already been 1 decided by the Court of First Instance of Laguna adversely against the accused. Accused Bulaong appealed to the Court of Appeals which in turn affirmed the decision of the Court of First Instance of Laguna. At bar is his appeal from said judgment of the Court of Appeals. The issue is whether or not accused Bulaong can interpose the defense of double jeopardy in this case in view of the filing against him of the information for subversion in the Court of First Instance of Manila which allegedly involves the same facts obtaining in this case. Accused contends that rebellion as defined in Article 134 of the Revised Penal Code is a lesser cognate offense to that defined in Section 4 of Republic Act 1700. And he further contends that since the facts alleged in the informations for rebellion and subversion are the same he can not be legally prosecuted for both offenses without being placed twice in jeopardy of being punished for the same acts. 2 3 Accused's contention has no merit. Under Section 9, Rule 113 of the Rules of Court, the defense of double jeopardy is available to the accused only where he was either convicted or acquitted or the case against him was dismissed or otherwise terminated 4 without his consent. Such is not the situation in this case. For accused has not been convicted or acquitted in the case filed in the Court of First Instance against him for subversion. Neither was the said case dismissed or terminated without his consent, for as stated, it is still pending in said court. Needless to say, it is the conviction, acquittal of the accused or dismissal or termination of the case that bars further prosecution for the same offense or any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. Wherefore, the judgment appealed from is affirmed. No costs. So ordered. Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur. Concepcion, C.J., and Barrera, J., concur in the result. Footnotes 1 Sentenced to 10 years of prision mayor plus fine of P12,000 and costs. 2 Appellant should direct his plea to the CFI of Manila, for his final conviction in the case at bar would preclude his further prosecution there, assuming that the charge herein is indeed for a lesser cognate offense to that alleged in the pending case therein. 3 Now Section 9, Rule 117. 4 People v. Dagatan, 90 Phil. 294, 296; People v. Cosare, 95 Phil. 656, 661.

-Herrera, concur.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-49375 February 28, 1979

LEOPOLDO SALCEDO, petitioner, vs. HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF THE PHILIPPINES, respondents. Atienza Law Office for petitioner. Office of the Solicitor General for respondents. MAKASIAR, J.: This is a petition for review on certiorari with preliminary injunction of the order of respondent Judge Filemon H. Mendoza, dated May 8, 1978, setting aside the order of dismissal dated March 28,1978 issued by him in Criminal Case No. C-1061 entitled "People of the Philippines, Plaintiff, versus Leopoldo Salcedo, Accused." The record shows that on November 11, 1977, Provincial Fiscal Nestor M. Andrada of Oriental Mindoro filed a criminal information of homicide through reckless imprudence against the herein petitioner Leopoldo Salcedo, docketed as Criminal Case No. C-1061 of the Court of First Instance of Oriental Mindoro, Branch I. Upon arraignment on December 19, 1977, petitioner entered a plea of not guilty and the case was then set for trial on the merits on January 25, 1978. When the case was called for trial on that date, Provincial Fiscal Nestor M. Andrada asked for postponement to February 22, 1978, which was granted, for trial on February 22, 1978, which was granted, because the accused failed to appear. When the case was called for trial on February 22, 1978, the prosecution, through Assistant Provincial Fiscal Emmanuel S. Panaligan, once more moved for its postponement and the case was reset for trial on March 28, 1987. On March 28, 1987, when the case was called for trial, no prosecuting fiscal appeared for the prosecution. A private prosecutor, Atty. Juan P. Adzuarra, who withdrew his appearance from the case and reserved the right to file a separate civil action, moved for its postponement in order to give the prosecution another chance because they intend to request the Ministry of Justice to appoint a special prosecutor to handle the case. The trial court, however, denied the said motion. Whereupon, the petitioner, through counsel, Atty. Edgardo Aceron, moved for the dismissal of the criminal case against him invoking his constitutional right to speedy trial and respondent Judge issued an order dismissing the case, the pertinent portion of which reads as follows: Atty. Edgardo Aceron moved that considering the fact that this is the third time that this case was postponed always at the instance of the fiscal although the first postponement was made by the provincial fiscal in behalf of the accused who failed to appear, the Court orders the dismissal of this case with costs de officio. Although the government is interested in the prosecution of this case, the Court must also take into consideration the interest of the accused for under the Constitution he is entitled to a speedy administration of justice, hence the dismissal of the case. IT IS SO ORDERED. (pp. 2-3, Annex A, Petition for Certiorari, pp. 14-14A, rec.). On the same day, the prosecution, through Assistant Provincial Fiscal Arthur B. Panganiban, filed a motion to reconsider the above order (Annex B, Petition, p. 15. rec.). In an order dated March 29, 1978, the trial court denied the motion "for lack of merit, there being no assurance that the procecuting fiscal will promptly and adequately prosecute the case (Annex C, Petition, p. 16, rec.). His first motion for reconsideration having been denied, Assistant Provincial Fiscal filed a filed a second motion for reconsideration which the court set for hearing to April 20, 1978 (Annex D, Petition, p. 17, rec.). It appears that on April 20, 1978, the trial court issued an order requiring both parties to submit within five (5) days from that date their respective pleadings (Annex E, Petition, p. 19, rec.). However, the parties failed to comply with the said order. On May 8, 1978, respondent Judge entered the order here asked to be reviewed, setting aside the order of dismissal dated March 28, 1978 and ordering that the case be set for trial on June 5, 1978, as follows: Considering that both parties failed to comply with the order of the is Court dated April 20, 1978 giving them five to days from that date to submit before the Court their respective pleadings. theCourt in the interest of justice sets aside the order of this Court dated March 28, 1978. Conformably with the above, let the trial of this case be set to June 5, 1978 at 1:30 o'clock in the afternoon. Let the parties be notified accordingly. SO ORDERED. (Annex E, Petition, p. 19, emphasis supplied). Petitioner learned for the first time about the existence of the above order an June 5, 1978, thus he filed on June 16, 1978 a motion for reconsideration of the said order alleging that the dismissal of the criminal case against him was equivalent to an acquittal and reinstatement of the same would place him twice in joepardy for the same offense (Annex F, Petition, p. 20, rec.). On June 20, 1978, the trial court issued an order denying petitioner's motion for reconsideration and setting the case for trial on July 20, 1978 (Annex G, Petition, p. 24, rec.). Unable to obtain reconsideration of the May 8, 1978 order, petitioner filed the present petition for certiorari with preliminary injunction on November 29, 1978 reiterating his contention that the dismissal of the criminal case. which was upon his motion, predicate on his constitutional right to a speedy trial, amounts to an acquittal, and therefore the reinstatement of the same criminal case against him would violate his right against double jeopardy. In our resolution of December 8, 1978. the Court required the respondents to comment on the petition. The Solicitor General, on behalf of the respondents, filed his comment on January 26, 1979 agreeing with the petitioner that "a reinstatement of this case would operate to violate his right against double jeopardy" (p. 4, Comment, p. 31, rec.).

The Stand of the petitioner and the solicitor General is well taken. Time and again, We have said that the dismissal of a criminal case predicated on the right of the accused to speedy trial, amounts to an acquittal on the merits which bars the subsequent prosecution of the accused for the same offense. Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May 21, 1951), We said: If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal but for the trial of the case. If the prosecution asks for the postponement of the hearing and the court believes that the hearing cannot be postponed anymore without violating the night of the accused to a speedy trial, the court shall deny the postponement and proceed with the trial and require the fiscal to present the witnesses for the prosecution; and if the fiscal does not or cannot produce his evidence and consequently fails to prove the defendant's guilt beyond reasonable doubt, the Court, upon the motion of the defendant, shall dismiss the case. Such dismissal is not in reality a mere dismissal although it is generally so called but an acquittal of the defendant because of the prosecution's .failure to prove the guilt of the defendant, and it will be a bar to another prosecution for the same offense even though it was ordered by the Court upon motion or with the express consent of the defendants, in exactly the same way as a judgment of acquittal obtained upon the defendants motion (People vs. Salico, 84 Phil. 722). (emphasis supplied). And in the case of People vs. Diaz (94 Phil. 714, 717, March 30, 1954), wherein the prosecution failed to appear on the day of the trial, We reiterated the Gandicela case, doctrine stating that: ... Here the prosecution was not even present on the day of the trial so as to be in a position to proceed with the presentation of evidence to prove the guilt of the accused. The case was set for hearing twice and the prosecution without asking for postponement or giving any explanation, just failed to appear. So the dismissal of the case, tho at the Instance of defendant Diaz may, according to what we said in the Gandicela case,be regarded as an acquittal. (emphasis supplied). Likewise, in People vs. Abano (97 Phil. 28, May 17, 1955), wherein the court dismissed the case upon the motion of the accused for failure of the prosecution to produce its evidence, We held that: The defendant was entitled to a speedy trial, ... The defendant was placed in jeopardy of punishment for the offense charged in the information and the annulment or setting aside of the order of dismissal would place him twice in jeopardy of punishment for the same offense. Furthermore, in People vs. Tacneng (L-12082, April 30, 1959), where the Court ordered the dismissal of the case upon the motion of the accused because the prosecution was not ready for trial after several postponements, this court held that: ... when criminal case No. 1793 was called for hearing for the third time and the fiscal was not ready to enter into trial due to the absence of his witnesses, the herein appellees had the right to object to any further postponement and to ask for the dismissal of the case by reason of their constitutional right to a speedy trial; and if pursuant to that objection and petitioner for dismissal the case was dismissed, such dismissal amounted to an acquittal o" the herein appellees which can be invoked as they did, in a second prosecution for the same offense. (emphasis supplied). Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a case with a similar factual setting as that of People vs, Tacneng, supra We ruled that: In the circumstances, we find no alternative than to hold that the dismissal of Criminal Case No. 11065 is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense. Later, in the 1960 case of People vs. Lasarte (107 Phil, 697, April 27, 1960), this Court pointed out that: ... where the fiscal fails to prosecute and the judge dismiss the case, the termination is not real dismissal but acquittal because the prosecution failed to prove the case when the trial ,wherefore came. And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364, April 29, 1961), where the court dismissed the case because of the apparent lack of interest of the complainant to prosecute the case, this Court again ruled that: Such dismissal made unconditionally and without reservation, after plea of not guilty, and apparently predicated on the constitutional right of the accused to a speedy trial is, ... equivalent to an acquittal. And being an order of acquittal, it became final immediately after promulgation and could no longer be recalled for correction or reconsideration (People vs. Sison, L-11669, January 30, 1959; Catilo Abaya, 94 Phil. 1014; 50 Off. Gaz., [6] 2477; People vs. Yelo, 83 Phil. 618; 46 Off. Gaz. [11th Supp.] 71), with or without good reason. In the more recent case of People vs. Cloribel (11 SCRA 805, August 31, 1964) where the Court again ordered the dismissal of the case upon notion of the accused because of the failure of the prosecution to appear, WE had occasion again to reiterate Our previous rulings, thus: ... the dismissal here complained of was not truly a a "dismissal" but an acquittal. For it was entered upon the defendant's insistence on their contitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial. In the present case, the respondent Judge dismissed the case, upon the motion of the petitioner invoking his constitutional right to speedy trial, because the prosecution failed to appear on the day of the trial on March 28, 1978 after it had previously been postponed twice, the first on January 26, 1978 and the second on February 22, 1978. The effect of such dismissal is at once clear Following the established jurisprudence, a dismiss predicated on the right of the accused to speedy trial upon his own motion or express consent, amounts to an acquittal which will bar another prosecution of the accused for the same offense This is an exception to the rule that a dismissal upon the motion or with the express consent of the accused win not be a bar to the subsequent prosecution of the accused for the same offense as provided for in Section 9, Rule 113 of the Rules of Court. The moment the dismissal of a criminal case is predicated on the right of the accused to speedy trial even if it is upon his own motion or express consent, such dismissal is equivalent to acquittal And any attempt to prosecute the accused for the same offense will violate the constitutional prohibition that "no person shall be twice put in jeopardy of punishment for the same offense (New Constitution, Article IV, Sec 22). The setting aside by the respondent Judge on May 8, 1978 of the order of dismissal of March 28, 1978 and thereby reviving or reinstating Criminal Case No. C-1061 places the petitioner twice in jeopardy for the offense The respondent Judge therefore committed a grave abuse of discretion in issuing the order of May 8, 1978 setting aside the order of dismiss issued on March 28, 1978.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE CHALLENGED ORDER DATED MAY 8, 1978, IS HEREBY SET ASIDE AS NULL AND VOID. NO COSTS. SO ORDERED

Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio

SUPREME COURT Manila EN BANC G.R. No. L-36595 November 28, 1932 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. LEON ACIERTO, defendant-appellant. Federico D. Cadiz for appellant. Attorney-General Jaranilla for appellee.

VILLA-REAL, J.: This is an appeal taken by the accused Leon Acierto from the judgment of the Court of First Instance of Ilocos Norte, convicting him of the crime of assault upon a public officer, defined and punished in article 251, in connection with the last paragraph of article 250 of the old Penal Code, with the mitigating circumstance of passion and obfuscation, not offset by any aggravating circumstance, and sentencing him two years, eleven months, and eleven days of prision correccional, a fine of 1,000 pesetas, the accessory penalties of the law, with subsidiary imprisonment in case of insolvency at the rate of one day for every P2.50, and the costs of the prosecution. In support of his appeal, the appellant assigns the following alleged errors as committed by the court a quoin its decision, to wit: 1. The lower court erred in not finding that the accused-appellant Leon Acierto acted in self-defense in preventing or repelling with his fists, the unlawful attack begun by the alleged offended party, Hipolito Velasco. 2. The lower court also erred in finding the accused-appellant guilty of the crime of assault upon a public officer, defined and punished in article 251 of the Penal code in connection with the last paragraph of article 250 hereof. 3. Lastly, the lower court erred in not acquitting the accused-appellant, Leon Acierto, of all criminal liability for the crime with which he was charged. The prosecution attempted to prove the following facts: At about 10 o'clock on the morning of March 2, 1931, while the offended party, Hipolito Velasco, duly appointed postmaster for the municipality of Bacarra, Province of Ilocos Norte, was in his office situated in the municipal building, counting two rolls of twenty-peso bills amounting in all to P4,000, the accused, Leon Acierto, entered the office without the postmaster's noticing it, and stood behind him. Without saying a word, the accused took one of the rolls, but the postmaster caught hold of his hand and took away the money, saying: "Get out of here, Lawyer, because we have plenty of work". The defendant moved away towards the north, and the postmaster, believing he had gone, began to count the money again; but the accused came back to his side, and as he did not want to be disturbed, he put the money in the safe, took the key to the office, and as he was going towards the door, said to the accused: "Be so good as to leave now, Lawyer". The other answered: "I don't want to. You may close it". He said this with his hands in his trouser's pockets, and was walking about the room. When he came to the door of the office, the postmaster again told the accused: "Be so good as to leave now, Lawyer". The accused gave the same answer. For the third time the offended party said to the defendant: "Go away now," and the latter answered: "I don't want to leave." Displeased with this answer, the offended party approached the defendant quietly, and took hold of his left hand to conduct him outside. Whereupon the lawyer hit him in the right eye with his fist, leaving him stunned, and making him lose his balance. When he recovered, the accused again hit him, first in the right frontal region, and then below the left eye. The offended party shouted for help, and a member of the municipal police, as well as his office companions, came up. As a result of the blows he had sustained, the offended party suffered an ecchymosis in the orbit of the left eye, and another in the frontal region, which took seven days to heal completely. Testifying in his own behalf, the accused said that on the morning of March 2, 1931, he had gone to the post office of Bacarra to collect his correspondence, and approached the postmaster, the offended party herein, Hipolito Velasco, who was counting bank bills on his table, and being close friend, he gave him one or two little slaps on the back; that as the man paid no attention, he slapped the table; that the postmaster then got up angrily and said: "Don't you come around with your jokes; I may stick a knife into you." The accused was hurt by this taunt, and began to walk away. The postmaster then got up, put the papers in the safe, and when the accused was already within two meters of the door, passed by him and blocked his way, and said with a gesture of threat: "Get out, you, I say." That as the accused would not budge, he rushed at him, caught his right arm, and pushed him forward, giving him a blow on the right temple; that the accused then returned the blow, giving rise to a fist fight between the two until a policeman came and separated them, and took them outside the hall; that the offended party had not told him to leave his office or was he answered in the manner attributed to him. The trial court, who saw and heard the witnesses testify, gave more credit to the testimony for the prosecution than that for the defense. There is no doubt that in spite of his intimacy with the offended party, the accused had no right to enter the latter's office and disturb him while in the performance of his duty, counting money he had received from Manila. But taking into account the circumstances of the case and the friendship between the two, it may be supposed that the defendant was joking, and the offended party happened to be in irritable mood, on account of the work he had, and it degenerated into a real fight, having been provoked by the herein accused.

The court a quo found the accused guilty of the crime of assault upon a public officer, defined and punished in article 251, in connection with the last paragraph of article 250, of the old Penal Code. The Attorney-General considers the act to constitute two crimes: assault upon an agent of authority, defined in article 249, paragraph 2, and punished in the last paragraph of article 250 of the Penal Code; and slight physical injuries, defined and punished in article 587 of the same code. The first question to decide in the present appeal is whether one offended party, Hipolito Velasco, as postmaster of Bacarra, Ilocos Norte, who was discharging his duties at the time of the assault, is merely a public officer, or is an agent of authority besides. In People vs. Ramos (p. 462, ante), by Justice Imperial, it was held:lawphil.net From the above-quoted provisions of law we believe it may be deduced that the provincial treasurer is a person in authority within the province where he exercises his jurisdiction, and that the municipal treasurer, being his deputy ex officio, is an agent of authority, and not a person in authority, as this word is employed in the Penal Code under which the information against the appellant was filed. The postmaster of a municipality is an agent of the Director of Posts, and as such is in charge of the custody of the Government funds that come into his hands by virtue of the transactions with the public in postal matters, telegrams, savings bank, and so forth, and like a municipal treasurer is an agent of a person in authority in addition to being a public officer, inasmuch as the Director of Posts is a person in authority who by law exercises jurisdiction of his own in postal and telegraphic matters. Since the offended party, Hipolito Velasco was an agent of a person in authority when he was attacked, the defendant herein having laid hands upon him, the crime of which the latter is guilty is assault upon an agent of a person in authority, defined and punished in the last paragraph of article 250, in connection with paragraph 2 of article 249 of the Penal Code, the penalty fixed by law being prision correccional in the minimum and medium degrees, and a fine not less than 375 pesetas or more than 3,750 pesetas, and this penalty must be imposed in the medium degree because there is no modifying circumstance present. The same offense is punished in article 148 of the Revised Penal Code, the penalty fixed being that of prision correccional in the minimum degree, and a fine not exceeding P500 which is less severe than the penalty prescribed by the old Penal Code for the same crime, and in accordance with article 22 of the Revised Penal Code, and the accused not being an habitual criminal, the penalty provided by article 148 above-mentioned must be imposed. With regard to the physical injuries sustained by the offended party from the attack, they, being light in character are to be considered as inherent in the, assault, for it cannot be supposed that in laying hands upon a person, no harm or injury will be caused.lawphi1.net In view of the foregoing considerations, we are of opinion and so hold: (1) That a postmaster is an agent of a person in authority; and (2) that the slight physical injuries sustained by such an agent as a result of the defendant's laying hands upon him, are inherent in the offense of assault upon an agent of a person in authority. Wherefore, the judgment appealed from is modified, and the accused-appellant is held to be guilty of assault upon an agent of a person in authority, and sentenced to suffer one year, one month, and eleven days of prision correccional, and to pay a fine of P100, with subsidiary imprisonment in case of insolvency, plus costs. So ordered. Avancea, C.J., Street, Malcolm, Ostrand, Abad Santos, Vickers, Imperial and Butte, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION August 31, 1964 G.R. No. L-20314 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. GAUDENCIO CLORIBEL, Judge, Court of First Instance, Manila, BIENVENIDO Y. AGUILAR, DIONISIO M. LABAD, SENEN S. BURGOS, ZOSIMO U. ANGELES and MANUEL AKOL, respondents.

Office of the Solicitor General and Atty. E. Paganiban for petitioner.

J. B. Laurel, Jr. and G. R. Puruganan for respondents. Regala, J.: This is a petition for certiorari to review the order of dismissal entered by the respondent Judge in Criminal Case No. 45717 entitled People of the Philippines vs. Aguilar, et al. On September 27, 1958, a criminal information for falsification of public, official and/or commercial documents was filed against the herein respondents Bienvenido Aguilar, Dionisio M. Labad, Senen S. Burgos, Zosimo U. Angeles and Manuel Akol. It was docketed as Criminal Case No. 45717 of the Court of First Instance of Manila. The case was then set for arraignment on October 17, 1958. In view, however, of a number of preliminary motions filed in the case, the arraignment did not take place as so scheduled but on March 23, 1959. The case was then set for trial on the merits on May 26 and 27, 1959. Again, however, various incidents prevented the trial from proceeding as originally scheduled and it was eventually transferred to September 16, 1959.Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted and approved by this Honorable Court, without prejudice to the parties adducing other evidence to prove their case not covered by this stipulation of facts. From September 16, 1959 to August 30, 1960, the scheduled hearings were postponed for at least six times. Of these six postponements, four were jointly sought or agreed upon by counsels for both parties herein and one each on their own individual representation. Thus, the hearing for September 16, 1959 was cancelled and postponed to November 23, 25 and 27, 1959 which were in turn transferred to the following dates successively: 1. January 25, 26 and 27, 1960 2. March 20, 21 and 22, 1960 3. April 20, 21 and 22, 1960 4. June 14, 15 and 16, 1960 5. July 11, 13 and 18, 1960 6. August 24, 25 and 26, 1960 Of the above six dates, postponements 1, 2, 4 and 5 were jointly asked or agreed upon the two parties herein, Number 3 was prayed for by the respondent while Number 6 was represented by the petitioner. Finally, on August 23, 1960, the lower court postponed the hearing of the case set for August 24, 25 and 26 until further assignment. On January 23, 1962, Special Prosecutor E. Paganiban was designated Acting Commissioner of Immigration while Special Prosecutor Pedro D. Cenzon, some weeks before May 17, 1962, was made to collaborate in the prosecution of the Stonehill cases. In view of their additional assignments, they moved for the cancellation of the trial set for May 17, 1962 which was granted and Criminal Case No. 45717 was again transferred for trial to August 15 and 16, 1962. Sometime in June, 1962, Special Prosecutor E. Paganiban returned to the Prosecution Division of the Department of Justice. On July 7, 1962, however, he was assigned to investigate a number of Central Bank cases by reason of which he held office at the Intelligence Division of the Central Bank. During the same period, the other Prosecutor, Pedro D. Cenzon, was extended an ad interim appointment to the Judiciary to the end that by July 3, 1962, he officially withdrew his appearance from the case. On July 17, 1962, the Records Bureau of the Department of Justice received the Notice of Hearing for the August 15 trial. When, therefore, on the latter date, August 15, 1962, none of the Government prosecutors appeared, the respondent Judge entered the order here asked to be reviewed, to wit: When this case was called for trial at 8:30 the special prosecutor failed to appear despite due notice. The case was called again at 9:35 and still the prosecutor failed to appear. WHEREFORE, upon motion of the counsel for the defense this case is hereby provisionally dismissed with costs de oficio and cancellation of bail bonds. SO ORDERED. As it turned out, there was present in the courtroom a state witness who, on hearing the order of dismissal forthwith notified Prosecutor Paganiban. Immediately, the latter, in the company of Solicitor Emerito M. Salva and Atty. Filoteo Evangelista of the Central Bank, went to see the respondent Judge who had, by the time they arrived, already adjourned the mornings session. Nevertheless, they called on the respondent Judge and explained their failure to appear earlier at the trial. The Judge advised them to file their motion for reconsideration which they did in due time. In their motion for reconsideration, the Government prosecutors explained their absence at the trial as follows: 3. That from the records it appears that a Notice of Hearing was issued in the above case, a copy of which was served at the Records Division of the Department of Justice on July 17, 1962. However, this notice of hearing never reached undersigned prosecutor because he has been

Associate Commissioner of Immigration and after his recall from said office, he was reassigned to the Central Bank of the Philippines on July 6, 1962. 4. While it is true that said notice was also addressed to Fiscal Pedro D. Cenzon, it is very probable that the same did not reach him for the reason that on July 3, 1962, he has already filed a petition to withdraw his appearance in view of his appointment as Judge of the Court of First Instance of Misamis Oriental. Moreover, he was very busy in the numerous Stonehill investigations; 5. That the undersigned prosecutor was never aware of the hearing of the above case due to the above circumstances. Moreover, the undersigned counsel has always been under the impression that the criminal case is consolidated for trial with the civil case. The records will show that a motion to consolidate Civil Case No. 38824 and Criminal Case No. 45717 was filed by the Solicitor Generals office which was granted by his Honorable Court without any objection of the accused or his counsel. Consequently, the above-mentioned cases were set for joint trial by the then Judge Gustavo Victorino and if undersigned recalls correctly, the hearing of the above cases was postponed due to the illness of one of the accused who has the right to be present; 6. That because of the above facts, undersigned prosecutor has always been under the impression that the joint trial of the criminal and civil cases abovementioned is set for September 17, 1962; xxxxxxxxx After considering the motion for reconsideration, the respondent Judge resolved to deny it. Hence, this petition for certiorari. Two issues are raised by this petition, namely: first, did the respondent Judge gravely abuse his discretion in issuing the order of August 15, 1962? And, second, what was the effect of the said order? Did it amount to an acquittal as would bar a reinstatement of Criminal Case No. 45717 by reason of double jeopardy? The first issue should be resolved in the negative. The second should be answered in the affirmative. To start with, the authority of the court to dismiss a case for failure of the prosecution to appear cannot be denied. The authority and the extent of the courts power in that regard is clearly recited in Sec. 3, Rule 30 of the former Rules of Court which governs t his litigation. (It is now Sec. 3, Rule 17.) The rule reads: SEC. 3. Failure to prosecute. When plaintiff fails to appear at the time of the trial, or to prosecute his action for an unreasonable length of time, or to comply with these rules or any order of the court, the action may be dismissed upon motion of the defen dant or upon the courts own motion. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise provided by the court. It should be observed that under the aforequoted rule, the authority of the court is broad and definite. It grants to the court the power to dismiss even upon its own motion. (Manila Herald Publishing Co., Inc. v. Ramos, 88 Phil. 94) Moreover, it reposed in the trial court the discretion to so dismiss or not. As past cases have held, the dismissal of an actio n pursuant to this rule rests upon the sound discretion of the court and will not be reversed on appeal in the absence of abuse. The burden of showing abuse of Judicial discretion is upon appellant since every presumption is in favor of the correctness of the courts action. (Smith Bell & Co., Ltd. et al. v. American President Lines, Ltd., et al., April 30, 1954; Vernus-Sanciangco v. Sanciangco, et al., L-16219, April 28, 1962.) It is on record that from the time Criminal Case No. 45717 was filed to the time that it was actually called for trial on the merits, some three years and eleven months had elapsed. The case was filed on September 27, 1958 and it was called for trial on August 15, 1962. The respondent Judge, therefore, may reasonably be assumed to have considered this time element in issuing the order of August 15, 1962. For by any fair standard, three years and eleven months can hardly be ignored or disregarded by a magistrate when he is led upon to rule on a motion to dismiss a criminal prosecution grounded on defendants constitutional right to speedy trial. Taking into account the protracted delays as well as the broad concessions extended to a Judge By Rule 30, Sec. 3, as earlier discussed, it would seem that the order here assailed can hardly be labeled a grave abuse of discretion. The petitioner contends, however that the long delay in the prosecution of the case is primarily attributable to the responde nts own numerous requests for postponement and initiation of incidents and proceedings wh ich were all overruled by the lower court. Consequently, it is urged that the lower court should not have heard, much less acted favorable on, respondents complaint th eir right to speedy trial was being impaired. While it is true that the herein respondents had, on various occasions, sought their postponement of the scheduled hearings, it is no less true that the petitioner itself had, on as many if not more occasions, effected the deferment of the trial. Thus, and as earlier pointed out, of the six cancellations from September 16, 1959 to August 26, 1960, four were requested jointly by the petitioner and respondents and one each by each of them. Moreover, the transfer of the hearing to March 16, 17 and 20, 1961 resulted from petitioners own motion for co nsolidation of the criminal and civil cases. Again, it was on petitioners motion, concurred in by counsel for respondents, that the trial s et for May 17, 1962 was moved to August 15, 1962. Any suggestion, therefore, that the respondents wore singularly and primarily to blame for the long drawn litigation would not be quite accurate. To be sure, We reject the charge of grave abuse of discretion. We have not overlooked that the respondent Judge desisted from dismissing the case outright. When he first called the case for trial and no prosecutor appeared, he put off the hearing and waited for an hour to give the Government lawyers time to appear. It was only after they failed to appear the second time that he entered the order here complained of. And even then, he did not dismiss the case motu proprio, although he was possessed of the prerogative so to do: he decreed the dismissal only in resolution of the defendants motion to that effect. We further note that when the prosecutors went to see the respondent Judge to explain their absence at the trial, the latter himself advised the filing of a motion for reconsideration. All these are incompatible with the concept of grave abuse which assumes that th e power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. (Tavera-Luna Inc. v. Nable, 67 Phil. 340; Alafriz v. Nable, 72 Phil. 278) In addition, there is yet another reason why the charge of grave abuse of discretion cannot be sustained. The petitioner has not really satisfactorily explained its failure to appear.

Petitioners main explanation is that the notice of hearing never reached its counsel, Prosecutor Paganiban, because he has been Associate Commissioner of Immigration and after his recall from said office, he was re-assigned to the Central Bank of the Philippines on July 6, 1962. Furthermore, it is claimed that Prosecutor Paganiban has always been of the impression that the joint trial of the criminal and civil cas es abovementioned is set for September 17. 1962. First of all, this court cannot give serious consideration to the plea that the notice of hearing never reached the petitioner. Petitioner expressly admits that a copy of the said notice was served at and received by the Records Division of the Department of Just ice on July 17, 1962. Consequently, it is of no moment whatsoever that it did not eventually reach its counsels. For service to and receipt by the Records Division, an agent office of the petitioner, is unquestionably due service to the petitioner. The fact that it was thereafter lost, misplaced or forgotten can only be blamed on the petitioner, and definitely not on the respondent Judge nor on the respondents herein. Especially so when its Record Division had practically a full month to transmit it to its counsels herein. Secondly, the designation of Prosecutor Paganiban to the Bureau of Immigration and his subsequent detail to the Central Bank do not seem to have any relevance to his failure to receive the notice of healing. For while it is really on record that he was so assigned to the Bureau of Immigration on January 23, 1962, it is also recorded that by June, 1962, the assignment had ended and he had returned to the Prosecution Division of the Department of Justice. Undoubtedly, therefore, when the notice of hearing was served on July 17, 1962, Prosecutor Paganiban was already back in the Department. Too, although during the period between July 17, 1962 and August 15, 1962 he was handling Central Bank cases, the fact was, even then, he still was officially with the Prosecution Division of the Department of Justice. All these dates and circumstances considered, therefore, there should be no difficulty assessing the correctness of our view that pe titioners failure to appear at the trial has been unsatisfactorily explained. We fail to see either how Prosecutor Paganiban could have been of the impression that the trial date was September 17, 1962. It was upon petitioners own motion of January 23, 1962, on the ground that the prosecutors assigned thereto have been given additional a ssignments and were therefore very busy, that the trial date was transferred to August 15, 1962. True, Prosecutor Paganiban was then absent when the motion of January 23, 1962 was made and that it was Prosecutor Cenzon who made the motion, but nevertheless, the petitioner cannot excuse itself from the failure of Fiscal Cenzon to notify Prosecutor Paganiban of the renewed hearing date. Both Fiscals Cenzon and Paganiban have been collaborating on the case since its inception. There was no reason why the postponement to August 15 was neither annotated in the expediente of this case for Prosecutor Paganiban to see nor made known to him. Besides, there were not just the two of them prosecuting this case. The City Fiscals Office of Manila and the Central Bank each had their own prosecutor collaborati ng with the Department of Justice in all the previous antecedents of this case. It certainly could not have been diligence which caused them all to be so uncoordinated even in the matter of the correct trial date. It is significant to note that as against their collective misreading of the true trial schedule, there was a prosecution witness who promptly reported for trial on August 15, 1962. The second issue is the more fundamental. May the respondents now plead double jeopardy against the reinstatement of Criminal Case No. 45717? The petitioner denies that the respondents can so invoke the protection of the double jeopardy rule because, first, it was they themselves who moved for the dismissal and second, because the dismissal was expressly decreed to be provisional. On the other hand, the respondents contend that the dismissal was an acquittal within the meaning of Sec. 9, Rule 113 of the former Rules of Court (now Rule 117, Sec. 9) because it was ordered subsequent to arraignment by a competent court and upon a valid information. Furthermore, they urged that the qualification of the dismissal into provisional is of no legal consequence since it was be yond the respondent Judges power to do. As indicated earlier, We find for the respondents again. In asserting that Criminal Case No. 45717 may still be reinstated, the petitioner adopts the ruling once followed by this Court to the effect that a dismissal upon the defendants own motion is a dismissal consented to by him and, consequently, will not be a bar to another prosecution for the same offense, because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. (People v. Salico, 84 Phil. 722) But, this authority has long been abandoned and the ruling therein expressly repudiated. Thus, in the case of People v. Robles, G. R. No. L-12761, June 29, 1959, citing People v. Bangalao, L-5610, February 17, 1954; People v. Diaz, L6518, March 30, 1954; People v. Albano, L-7862, May 17, 1955; and People v. Ferrer, L-9072, October 23, 1956, We said: In reaching the above conclusion, this Court has not overlooked the ruling in the case of People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon defendants motion will not be a bar to another prosecution for the same offense as said dismissal was not wit hout the express consent of the defendant, which ruling the prosecution now invokes in support of its appeal; but said ruling is not now controlling, having been modified or abandoned in subsequent cases wherein this Court sustained the theory of double jeopardy despite the fact that the dismissal was secured upon motion of the accused. (Emphasis supplied.) Also, the rule that a dismissal upon defendants motion will not be a bar to another prosecution for the same offense as said dismissal is not without the express consent of the defendant, has no application to a case where the dismissal, as here, is predicated on the right of a defendant to a speedy trial. (People vs. Tacneng, et al., G. R. No. L-12082, April 30, 1959) The petitioner next contends that the qualification of the dismissal into provisional removes it f rom the protective mantle of the double jeopardy rule for the said rule contemplates a definite or unconditional termination of the case. Petitioners formulation of the rule is correct but irrelevant. A conditional, provisional, or without prejudice dismi ssal admittedly cannot be the legal basis for a claim to the protection of the double jeopardy rule. The issue in this case, however, is not the validity of that proposition. Rather, the issue is whether the qualification notwithstanding, the dismissal entered on August 15, 1962 was definite or without prejudice. In the case of People v. Diaz, G. R. No. L-6518, March 10, 1954, this Court ruled that the dismissal of a case upon motion of the defense for failure of the fiscal to be present on the day of trial constitutes a bar to a subsequent prosecution of the accused for the same offense. Again, in the case of People v. Labatete, G. R. No. L-12917, April 7, 1960, we said:

We again call attention to the fact that judges should be careful in the use of the term dismissal and not use the term in cases where there has been trial on the merits and the court finds that the evidence is insufficient, in which case the judgment that should be entered is one of acquittal, not merely dismissal. Even where the fiscal, fails to prosecute and the judge dismisses the case, the termination is not real dismissal but acquittal because the prosecution failed to prove the case when the time therefor came. (Emphasis supplied.) Considering the foregoing jurisprudence, therefore, We can only conclude that the dismissal here complained of was not truly a dismissal but an acquittal. For it was entered upon the defendants insistence on their constitutional right to speedy trial and by reason of the prosecutions failure to appear on the date of trial. If, therefore, the qualification by the respondent Judge of the dismissal into provisional has any consequence in law, it is what we expressed in the case of Gandicela v. Lutero, 88 Phil. 299, to wit: Courts have no discretion to determine or characterize the legal effects of their orders or decisions, unless expressly aut horized to do so as provided for in Rule 30 of the Rules of Court. The addition of such words without prejudice, provisionally or definitely to their order or decision could be mere surplusage if the legal effect under the law is otherwise, because courts cannot amend the law. So it is not for the court to state in the order or decision that the case is dismissed either definitely or without prejudice. (Emphasis supplied.) We reiterated in the case of People v. Diaz, L-6518, March 30, 1954, the above doctrine. Then, We said: Here the prosecutor was not even present on the day of the trial so as to be in a position to proceed with the presentation of evidence to prove the guilt of the accused. The case was set for hearing twice and the prosecution without asking for postponement or giving any explanation just failed to appear. So the dismissal of the case though at the instance of the defendant Diaz, may, according to what we said in the Gandicela case, be regarded as an acquittal. (Emphasis supplied.) IN VIEW OF ALL THE FOREGOING, We hold that a reinstatement of this case would operate to violate the respondents-defendants right against double jeopardy. And, having failed to establish grave abuse of discretion against the respondent Judge herein, this petition is dismissed, costs de oficio. So ordered. Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., and Paredes, JJ., concur.

SupC No. 71 The People &c., Respondent, v. Stephen LaValle, Appellant. 2004 NY Int. 98 June 24, 2004 This opinion is uncorrected and subject to revision before publication in the New York Reports. Daniel R. Williams, Christopher Seeds and Susan H. Salomon, for appellant. Michael J. Miller, for respondent. Luke Martland, for the Attorney General. G.B. SMITH, J.: A Suffolk County jury found defendant Stephen S. LaValle guilty of first degree murder in the course of and in furtherance of first degree rape (Penal Law 125.27 [1][a][vii]) and sentenced him to death. His direct appeal comes to us from Supreme Court pursuant to our unique jurisdiction in death penalty cases (NY Const art VI, 3[b]; CPL 450.70[1]). For the reasons that follow, we uphold the conviction, but vacate the death sentence, and remit for resentencing in accordance with CPL 470.30(5)(c). In vacating the death sentence, we conclude that the jury deadlock instruction prescribed in CPL 400.27(10) is unconstitutional under Article I, section 6 of the State Constitution. We further conclude that this defect in the existing statute can only be cured by a new deadlock instruction from the Legislature.
I. FACTS

Around 12:30 p.m. on Saturday, May 31, 1997, the body of Cynthia Quinn was found in the woods near Mills Road in Yaphank, a village in Suffolk County. Her neck, chest, back and arms were covered with 73 puncture wounds made with a screwdriver-like instrument. She had been raped. She also had a broken rib, bruises on her arms and abrasions on many parts of her body. About six hours earlier, she had left her home for her customary morning jog. Several Yaphank residents saw her running along her route. By 7:30 a.m, her husband Brian Quinn grew concerned that she had not returned home and began searching for her. He had expected her to return by 7:00 a.m. because, as a self-employed carpenter, he was scheduled to report to a work site at 7:30 a.m. He also knew that Cynthia, a high school track coach, had a track meet that same morning. Initially, Brian searched the surrounding area in his car, with his two young children, and then enlisted the help of fellow volunteer firefighters. Eventually, several units of the police department joined the search. The body was discovered by two volunteer firefighters. Earlier that same morning, Monique Sturm was attacked and robbed by a man who bumped her car on a road in Port Jefferson, which is about eight miles from where the body was found. She managed to escape through the passenger door when the man forced himself through the door on the driver's side. In the process, she bit his finger. In her call to 911, placed at 5:51 a.m., Sturm provided a description of the assailant and his car. Sturm's wallet was found around 11:40 a.m., not far from the murder scene. Police investigators connected the two events, inferring that the same person was behind both. According to pre-trial testimony, several weeks earlier a woman had been assaulted in a nearby neighborhood by a man who had bumped her car. Defendant was a suspect in that incident, and Sturm's description of the assailant and his car matched the description that woman gave. The police learned that in 1986 defendant was convicted of sexually assaulting a female driver he had bumped with his car and that he was on parole as the result of a burglary conviction. The police also learned that defendant's car was similar to a car seen near the crime scene about 6:30 a.m that Saturday. That witness identified defendant's car as the car he had seen. Sturm, however, could not identify defendant's car as the one her assailant had been driving and could not definitively identify defendant in a photo array. Two days after the murder, on June 2, 1997, the police arrested defendant in connection with the robbery after he was told to report to his parole officer. Defendant's right index finger had a cut. Defendant waived his Miranda rights and was interrogated. According to the trial testimony of the interrogating officer, defendant initially denied any involvement with Sturm. Eventually, he admitted that his car hit Sturm's car. Defendant told the police that the night prior to the encounter, he and his family had gone to dinner around 7:30 p.m. at a local restaurant. After dinner, he went to a comedy club, arriving at around 8:30 p.m. An hour later, he went to a pub named Harrigan's, where he stayed for a few hours with his friend Phil Anderson and a man named Brett. After dropping off Phil at his home, defendant told the police, he and Brett went to a keg party, where they stayed for a few hours. At around 5:45 a.m., he dropped off a man named Tom near a 7-Eleven store. As defendant drove off, he turned a corner and he hit a car. When he pulled over, a female got out of the other car and began yelling at him and attacked him with her pocketbook. He took the pocketbook from her, and threw it over a fence. Defendant claimed that he tried to calm her down by pushing her into the car, but that she hit him and kicked him. Defendant admitted to the police that he got inside her car, and she jumped out the passenger door and ran to a nearby house yelling for help. Defendant said he returned to his car and drove away. Defendant prepared a sketch of where the incident took place and gave the police permission to search his car and take samples of his hair, blood and saliva. Defendant eventually confessed to the murder of Cynthia Quinn. He stated that while driving home, he had stopped on the road to urinate. A woman jogging on the road began yelling that he was a bum and should use a restroom. He became angry because people had been yelling at him his whole life, and walked toward her. Defendant told the police that the woman backed into the woods and began waving a long thin piece of metal, like a screwdriver, at him. Defendant could see that she was scared. Defendant grabbed the piece of metal away from her and started stabbing her. When she fell down, he raped her. Then, he started stabbing her again. According to defendant, he later sat down on a nearby log and cried. Defendant told the police that he ran back to his car and drove toward his house, discarding the weapon along the way. When he got home, he threw his clothes into a hamper. Defendant drew sketches of the murder scene and the weapon for the police. On June 5, 1997, a grand jury indicted defendant for murder in the first degree (Penal Law 125.27 [1][a][vii]- intentional murder in the course of committing or attempting to commit and in furtherance of rape in the first degree, or in the course of and furtherance of

immediate flight after committing or attempting to commit rape in the first degree); three counts of murder in the second degree (Penal Law [1] 125.25 [1],[2],[3] - intentional murder, depraved indifference murder and felony murder), and robbery in the first degree (Penal Law 160.15 [2]). He was arraigned on June 9, 1997. On August 12, 1997, the People served notice of intent to seek the death penalty (CPL 250.40). Opening statements commenced on June 8, 1999, and the trial lasted 17 days. The jury considered 41 prosecution witnesses and 180 exhibits, including evidence showing that defendant's DNA matched samples collected from the victim's body and clothing. Defendant did not present any witnesses. Two days after summations, the jury found defendant guilty of first degree murder and one count of second degree murder (intentional murder) and found him not guilty of the robbery charge. After the jury's verdict, the trial court, pursuant to CPL 300.30(4) and 300.40(3)(b), dismissed the guilty verdict for murder in the second degree in light of the first degree murder verdict. The penalty phase began on August 3, 1999 and concluded on August 6 when the jury rendered a verdict that defendant be sentenced to death. Throughout the proceedings below, defendant filed a flurry of motions, most of which the courts denied, and objected to numerous rulings. On appeal, defendant raises a number of issues. We conclude that defendant's guilt was established beyond a reasonable doubt, and that the verdict of guilt was not against the weight of the evidence. We consider first issues arising during the guilt phase and then turn to the penalty phase. We do so with the awareness both that death is different and that CPL 470.30 confers upon this Court unique powers of review (see People v Harris, , 98 NY2d 452, 473 [2002]).

II. GUILT PHASE

A. JURY SELECTION Defendant argues that the trial court erred in failing to grant challenges for cause against jurors 16, 43, 79, 107 and 124, because they were not impartial and held views that substantially impaired their ability to consider a life sentence. None of these jurors sat on the case. The defense exhausted its peremptory strikes, and defendant argues for relief pursuant to CPL 270.20 (2), which states "An erroneous ruling by the court denying a challenge for cause by the defendant does not constitute reversible error unless the defendant has exhausted his peremptory challenges at the time or, if he has not, he peremptorily challenges such prospective juror and his peremptory challenges are exhausted before the selection of the jury is complete." We disagree with defendant that the trial court erroneously failed to [2] grant the challenges for cause. Under CPL 270.20(1)(b), a prospective juror who "has a state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial" must be excused for cause. "[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial" ( People v Chambers, , 97 NY2d 417, 419 [2002]). Additionally, in a capital case, a prospective juror must also be excused for cause if he or she "entertains such conscientious opinions either against or in favor of such punishment as to preclude such juror from rendering an impartial verdict or from properly exercising the discretion conferred upon such juror by law in the determination of a sentence" (CPL 270.20 [1][f]). As this Court held in People v Harris, "Where jurors express conscientious views concerning the death penalty yet still make clear that they are able to follow their oaths to act impartially, they cannot be excluded for cause from participating on the jury" (98 2 452, 484 [2002]; see also People v Cahill, 2 NY3d 14, 47 [2003]). Defendant argues that Juror 16 should have been excused because he had already decided defendant was guilty, he was sympathetic and felt a common bond with the victim, he believed that police officers are more credible than other witnesses, and he was biased in favor of the death penalty in first degree murder cases. In moving to dismiss Juror 16 at trial, defense counsel argued only that Juror 16's answers during voir dire were totally different from those on his written questionnaire and that he had a preconceived notion about the case and felt sympathy for the victim. During voir dire, Juror 16 expressed doubts about his initial impression, and recognized that "the system is supposed to be fair, everyone gets a fair trial, and I believe in that." When questioned about his views about confessions, he again stated that while he initially thought defendant was guilty, he since realized that "we have to come into the courtroom with a blank slate and listen to the evidence from both sides and make a decision." Time after time, when asked to respond to answers from his questionnaire, Juror 16 gave answers evidencing impartiality, such as, "We have to come into the courtroom and see what the facts are and make a decision based on that," and "I try to be fair .. . I don't always end up by being fair, but I do try to be fair . . . If I am selected, I will do the very best job I can." Defendant's argument that Juror 16 would find police officers more credible than other witnesses is unpreserved. In any event, Juror 16 unequivocally indicated that he would follow the court's instruction not to give police testimony more weight than that of other witnesses. Juror 16, like the deceased, was a runner. He stated that it would not affect him, and that he would base his decision on the evidence presented at trial. Additionally, this juror assured the trial court of his ability to be impartial ( see People v Johnson, , 94 NY2d 600, 613-614 [2000]). On the subject of the death penalty, Juror 16 indicated that he would consider whatever mitigation was required by law and that he had no preconceived notion of how defendant should be punished. He therefore did not hold a conscientious belief that would prevent or substantially impair his ability to exercise discretion during the penalty phase ( see Harris, 98 NY2d at 484). B. THE SELF-REPRESENTATION CLAIM On the same day that jury selection began, February 16, 1999, defendant requested new attorneys, complaining that he was dissatisfied with his current counsel. He complained that his two lawyers "spend no time with each other" or with him, and "want to attack this case in two different ways." Defendant said that he wished to "get this over and get this going as quick as possible, but that "there's so many things left undone." His lead attorney, Robert Gottlieb, characterized the attorney-client relationship as broken. The court denied the application, urging defendant to cooperate with his lawyers. Defendant again complained that he wished to "be able to go over my case with my lawyers and have questions answered, and there's so many things unanswered." On May 18, 1999, at defendant's request, defendant and his attorneys met ex parte with the court. The source of the conflict was crystallized. Gottlieb pointed to a severe disagreement over trial strategy. Counsel's strategy involved making certain "concessions [with respect to culpability] that would lead to credibility all down the line." Defendant, counsel complained, was uncooperative, even ordering his family not to cooperate with a private investigator. Defendant stated that problems over strategy arose once the prosecutor offered life without parole if defendant pleaded guilty. His lawyers and his family were urging him to accept the plea. Defendant explained that his strategy centered on denying any involvement with the murder and rape of Cynthia Quinn. As counsel put it, defendant wished to "fight everything tooth and nail to the end until it is determined." After some discussion with the court in which defendant expressed his dissatisfaction with his lawyers as well as ambivalence as to whether he wished

new lawyers or wanted the court to instruct his lawyers to abide by his strategy, defendant stated, "Your Honor, if you are telling me that I have to respect and listen to my lawyers['] views on how to attack this case, I would have to disagree with you. I would ask that you dismiss my lawyers and if I could represent myself." The court responded, "That to me would be absolutely insane." Defendant remained steadfast in his view that he could not follow any strategy other than one that proclaimed his innocence, adding, "The only thing I see and that's my last option is to represent myself, not that I want to, I don't know [anything] about the law, but at least I have a chance to prove my innocence." The court again responded, "If you are asking me to dismiss your lawyers, I can't do that in good conscience. If you are asking me to allow you to represent yourself pro se at this point, I can't do that in good conscience because it would be absolutely disastrous." The court continued, "If I allowed you to represent yourself, everything I said [about protecting your rights] would be out the window . . . I just want you to think about that." Defendant responded that if the court was going "to deny me [the right] to represent myself, maybe take into consideration appointing two new lawyers." The court stated that it could not do that either. Explaining at length why self-representation would be a disaster, the court urged him "to think about what you have said." The court concluded the discussion with the statement, "Let the record reflect, he does have a smile on his face." On May 24, 1999, a week before trial, Gottlieb moved to withdraw because there was "a total breakdown" in his relationship with defendant. Gottlieb made clear that he could not follow defendant's trial strategy. Associate counsel, Martin Efman, stated that he was willing to try the case as defendant wished, and defendant confirmed that he could proceed with Efman. The court granted Gottlieb's withdrawal motion, elevated Efman to lead counsel, and approved Charles Von Schmidt as associate counsel. While the right to counsel has emerged as a cherished and valued right, it has not displaced the constitutional right of self-representation. The request to represent oneself must be invoked clearly and unequivocally ( Faretta v California, 422 US 806 [1975]; People v Davis, , 49 NY2d 114 [1979]). We have held that to ensure convicted defendants not "pervert the system by subsequently claiming a denial of their pro seright, the pro se request must be clearly and unconditionally presented to the trial court" ( People v McIntyre, , 36 NY2d 10, 17 [1974]). Before allowing a defendant to proceed pro se, the court must conduct a searching inquiry to ensure that the waiver of the right to appointed counsel is "unequivocal, voluntary, and intelligent" ( People v Smith, , 92 NY2d 516, 520 [1998]). Denial of the right of self-representation is not subject to harmless error analysis ( McKaskle v Wiggins, 465 US 177 [1984]). We conclude that defendant's request to represent himself was not clearly and unequivocally presented and, therefore, the court did not err in acting as it did. Defendant gave the impression that he was not committed to self- representation. Rather, he was understandably hesitant considering the daunting task of undertaking self-representation in a capital case. After all, even lawyers who defend capital cases must receive special training. Initially, defendant made the conditional statement that if the court forced him to go along with the strategy of his attorneys, he would ask to represent himself. Defendant did not assertively state that he wanted to represent himself. Defendant then stated that he saw self-representation as his last option, though he did not want to represent himself because he did not know anything about the law. When defendant mentioned self-representation for the last time, he again couched it as a hypothetical, adding the request for new lawyers as an alternative. The court urged defendant to think about the perils of self-representation and did not make a definitive ruling. Defendant's statements do not reflect a definitive commitment to self-representation. In contrast to this case, in Williams v Barlett, a case that defendant relies upon, the defendant asserted, "I will represent myself," (44 F3d 95, 97 [1994]) after being warned of the dangers of selfrepresentation. The defendant had represented himself before the grand jury. On another occasion, defendant stated, "it's ... my intention[] now to go pro se. Before I wanted to have an attorney, but I can't afford a private attorney. That's why I am going pro se" ( id. at 98). The United States Court of Appeals for the Second Circuit found that on each occasion, defendant's "statements show a 'purposeful choice reflecting an unequivocal intent to forego the assistance of counsel'" ( id. at 100, quoting United States v Tompkins, 623 F2d 824, 827-828 [2d Cir 1980]). In this case, defendant wavered, and when warned at length about the perils of self-representation, and asked to think about his request, he smiled and said nothing more. While conditioning a request for new attorneys with a request for self-representation does not necessarily make the latter request equivocal, it is clear that in this case defendant raised the specter of self-representation as a means of procuring the dismissal of Gottlieb. Defendant and Gottlieb were intractably at odds over strategy. Defendant had sought to have Gottlieb removed on two occasions prior to the May 18th meeting. When Gottlieb announced in a meeting with the court and the other attorneys on May 24th that he wished to be relieved, the court later asked defendant for his view, and he stated, "I'm ready to proceed . . . with . . . Martin Efman. Me and Mr. Gottlieb cannot get along . . . Our whole trial strategies are different . . . Me and Mr. Efman are willing to go to trial the way I would like to go to trial." The court later relieved Gottlieb. After the dismissal, defendant never said a word about wanting to represent himself. The issue of self-representation was closed, with defendant satisfied with Gottlieb's dismissal, the elevation of Efman to lead counsel and the appointment of a new associate counsel. C. WITHHOLDING OF EVIDENCE - BRADY MATERIAL More than two months after the commencement of jury selection and more than two years after the murder, on April 29, 1999, the police obtained a written statement from John Doe, a friend of defendant. Doe stated that "about two years ago," defendant had asked him to "hang out." They went to another house, belonging to Richard and Maria, where the three men "partied and drank beers" in the basement. Doe and defendant then drove to a bar, although neither drank there. They then drove around, and "had a couple of more beers." Because he was tired, Doe called it a night. When defendant drove Doe home, it was still dark. Several days later, Doe heard that defendant had been arrested. Richard Roe provided two statements. In the first, dated May 5, 1999, he stated that he met defendant during the Memorial Day weekend (May 24-26) of 1997. A couple of days later, on a Friday, he, defendant and John Doe went into the basement of his house where they "partied" for a few hours. Defendant drank two beers and seemed "docile." According to Roe, defendant and Doe stayed for a few hours and then left. The second statement, dated May 19th, 1999, differed significantly from the first. Roe maintained that Doe and defendant arrived at Roe's house around 9:30 or 10:30 p.m. Defendant had two beers, and they all smoked crack. They then left the house to purchase more crack from a drug dealer. The dealer wanted defendant "to fuck someone up and LaValle said he'd do it." Roe allegedly told Doe to "get LaValle back, to leave." Roe claimed he "was afraid what might happen." According to this version, the three went back to the basement, and continued to smoke crack until about 1:30 to 2:00 a.m. when Roe told defendant and Doe that they had to go. Roe also claimed that he became nervous when defendant told him that his then 15-year-old daughter was pretty, and that guys would pursue her. The next day, a friend told Roe that defendant was a "dirt bag." A couple of days later, he learned about the murder. On June 2, 1999, about a week before trial, the prosecutor

informed the defense that the police had obtained statements from a few witnesses who might have been with defendant the night before the murder. On July 1, defense counsel requested copies of the statements. Counsel referred in particular to the Doe statement, which he believed might have contained information beneficial to defendant. The court told the People to submit any statements falling under Brady v Maryland (373 US 83 [1963]) for in camera review. The prosecutor consented, adding that he had provided the defense with "a general outline" of the Doe statement. Defense counsel expressed the concern that "the People were trying to hold [any statements] for rebuttal if we called [the witnesses] in the first instance" and that it was "important now for us to see what's in there or for the court, at least, to make a determination." Defense counsel added that the defense had attempted to interview Doe, but that he was not very giving of information " and that "the most telling information might be in the statement he gave to the police." In his written submission, defense counsel argued that despite reasonable diligence, the defense could not ascertain the contents of the statement. In a written opinion, the court ruled that the statements were not Brady material since defendant knew of the contents of the statements and also knew that Roe and Doe had provided the statements. The court also ruled that during the penalty phase, the prosecutor would satisfy its Brady obligation by providing defendant with the identity of witnesses who may be a source of relevant mitigation [4] evidence. After the close of evidence in the guilt phase, but before summations, defense counsel again requested the statements, arguing Roe and Doe were not forthcoming "about areas which might incriminate them." Defense counsel raised the issue again after summation, arguing that the statements might be relevant as a mitigator, but the court adhered to its prior ruling. On July 30, defense counsel renewed his motion for the disclosure of the Doe and Roe statements for use in the penalty phase. In his attached affirmation, counsel stated that prior to trial, the prosecutor had informed the defense of the existence of written statements by two witnesses. Counsel believed that the statements contained information that "defendant, together with these individuals, was under the influence of alcohol and narcotics for many hours immediately preceding the incident which is the subject of the indictment and First Degree [5] Murder conviction." This information was relevant to the circumstances of the case and as a mitigator. Counsel argued that the statements were admissible at the penalty phase as reliable hearsay and statements made against penal interest. In the other affirmation, defense counsel Charles Von Schmidt detailed his unsuccessful personal efforts to speak with Doe. In Strickler v Greene the Supreme Court summarized the "essential components of a Brady violation" (527 US 263, 280 [1999] as follows: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued" (id. at 281-282 ). Brady held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution" (373 US at 87). We do not doubt that the statements contained some measure of favorable evidence. We conclude, however, that they were not suppressed by the prosecution and that, accordingly, there was no Brady violation in this case. Evidence is not suppressed where the defendant "knew of, or should reasonably have known of, the evidence and its exculpatory nature" ( People v Doshi, , 93 NY2d 499, 506 [1999]). Defendant knew or should have known that he drank alcohol and took drugs with Roe and Doe. Moreover, defense counsel, in an affirmation seeking the statements, admitted that the defense believed that the statements dealt with use of alcohol and drugs the night before the murder. The defense knew the identities and addresses of Roe and Doe. Possession of the statements would not have revealed any essential information that the defense did not already know ( see Allen v Lee, 366 F3d 319, 325 [4th Cir 2004] [where defendant argued that the government withheld jail records indicating that he received anti-withdrawal medication, no Brady claim arose since defendant "had personal knowledge of any medication he might have received"]). Finally, we note that the prosecution submitted the statements to the court which decided that the prosecution had satisfied its Brady obligation. Defendant argues that this case is indistinguishable from Leka v Portuondo (257 F3d 89 [2d Cir 2001]), where the Second Circuit determined that the government violated its Brady obligation. We disagree. Leka was a murder case in which the prosecutor's evidence consisted of the testimony of a number of eyewitnesses. Early in the case, the prosecutor informed the defense that one of the witnesses was a police officer who would identify the defendant. Three business days before the trial, however, the prosecutor told defense counsel that the officer would not identify the defendant, but did not say anything about what the officer saw. Because the defense used a ruse to try to contact the officer, the court granted the prosecutor's request to foreclose access to the officer. The Second Circuit held that the witness's favorable testimony was suppressed, finding that "the prosecutor never made specific disclosure of what [the witness] had seen. There is no doubt that the prosecutor had that information from the beginning of the case" (257 F3d at 100). The court rejected the government's argument that disclosure of the witness's name, and (presumably) the address, satisfied its Brady obligation, noting that the disclosure was "too little, too late" ( id.). The court reasoned that the "[t]he limited Brady material disclosed to Leka could have led to specific exculpatory information only if the defense undertook further investigation" ( id. at 101). The court also noted that the defense used the ruse because the government failed to be forthcoming about what the officer knew. In addition, it was too much to expect defense counsel to seek an order vacating or modifying the court's order precluding contact with the officer on the eve of trial when counsel did not know whether the witness would provide useful information. There are significant differences between Leka and this case. The defense in Leka knew nothing about what the witness knew. Here, the defense knew the essential information contained in the statements. The disclosure here was not too little. Nor was it too late - - the defense had a week prior to the start of the trial in which to subpoena Roe and Doe. Defendant also relies on Boss v Pierce (263 F3d 734 [7th Cir 2001]). In Boss, the state relied on the testimony of one eyewitness to establish that two brothers, along with others, killed and robbed the victim. Defendants called four witnesses, one of whom was his girlfriend who provided an alibi. The girlfriend's sister partially corroborated her testimony. On the last day of the two-day trial, the state gave defendant an investigative report containing information unknown to defense counsel ( id. at 737-738), namely that the sister told investigators that the government's witness had implicated himself in the killing and robbery, and only implicated the brothers to get them in trouble. The United States Court of Appeals for the Seventh Circuit rejected the state's argument that since the sister was defendant's witness, the defense had access to any information she possessed. The court held that defendants had no reason to suspect that the sister would know the information in the report. Again, in this case, the defense knew the essential information contained in the report. Another case defendant relies on, United States v Severdija (790 F2d 1556 [11th Cir 1986]), in which the United States Court of Appeals for

the Eleventh Circuit found a Brady violation, is closer to this case. There, the captain of a ship was convicted of conspiracy to possess with intent to distribute marijuana found on his ship. Days before his arrest, the defendant told a member of the Coast Guard who boarded his ship that he had been hired to pick up a tow, that he did not know his crew very well and that he did not trust them. Defendant also suggested that the Coast Guard remain in the area because the boat would be carrying drugs. The member of the Coast Guard recorded defendant's statements. At the trial, defendant testified that he informed the Coast Guard about the marijuana, which had been placed on his boat over his objection. While acknowledging that the defendant must have been aware of the statement he made, the court found that the evidence at issue was the recordation of the statement, not the statement itself. The statement could have corroborated defendant's defense. The court noted that had defendant testified about the statement, without corroborating evidence, jurors would likely have perceived it as a self-serving statement. It is significant, however, that the court reached this result after finding that "neither the identity of the [Coast Guard officer who recorded the statement] nor the contents of his report was disclosed to the defense until after the jury had returned its verdict" ( id. at 1559). That was not the case here. Moreover, in this case, defendant did not present any testimony during the guilt phase that the statements would have corroborated. Indeed, defendant claimed he was not the person who committed the crime. The second Roe statement would have further tarnished defendant before the jury, by portraying defendant as a crack cocaine user, a voyeur of Roe's young daughter, a "dirt bag," and a person willing to assault another at the behest of a drug dealer. D. "VICTIM IMPACT" EVIDENCE During the guilt phase the prosecutor opened with the statement that on the day of the murder, "Suffolk County became a lesser place. . . . On that day, we as a community, lost Cindy Quinn to a brutal act of random predatory violence as she jogged near her home in Yaphank. Cindy was someone we all know, a mother, a wife, a daughter, a sister, a friend, a teacher, a coach." The prosecutor would urge the jury "to show [defendant] the same compassion he showed to [the mother of two young children ]." On June 19, defendant moved to preclude testimony of Brian Quinn, Cynthia's husband, arguing that the testimony would inflame the jurors. Defense counsel offered to stipulate to everything, her death, and body being in that location." The prosecution refused. The trial court allowed the testimony based on a timeline test, demarcating events prior to the murder as permissible, and those after as impermissible. Quinn testified that he was a self-employed carpenter and that he built the family home with his own hands. On the day of the murder, he was awakened by the cries of his two-year old son. Quinn identified a ruby earring his wife was wearing when she was found. He also provided other personal information regarding his wife -- that she was a high school teacher with a Master's Degree, she coached the school's track team, she had two living sisters, her parents were alive, and he and the deceased also had a four year-old daughter. Every morning she would wake up near dawn to jog and would sometimes run with the children in a jogging stroller. The defense objected to much of the testimony, characterizing it as victim-impact evidence. Defendant argues here that much of Quinn's testimony constitutes an improper victim-impact statement through which the prosecutor advanced the theme of lost promise. While it is only natural for jurors to react with horror at the brutality of a violent murder, jurors have an obligation to decide the issues in the case "in a judicial temper. Appeals to sympathy or prejudice can be harmful" ( People v Caruso, 246 NY 437 [1927]). In Caruso, the prosecution, over objection, called the widow of the deceased who testified that they had been married for 18 months, had a six-month-old child, and that the deceased would sit on the baby's crib and sing to her. The widow's testimony, we concluded, constituted reversible error because it "had no materiality upon the issues before the jury" and was an "'unseemly and unsafe' appeal to prejudice" ( id. at 444). In People v Miller (, 6 NY2d 152 [1959]), the prosecutor elicited from the deceased's brother that the deceased had a wife and seven children. We again found, "There could be no purpose to this line of testimony but to conjure up in the minds of the jurors undue prejudice against the defendant" ( id. at 157). In People v Harris, where the type of testimony of victims' families was "indistinguishable from that in Miller and Caruso," we stated, "Although family information about a victim is an important aspect of the victim's life, generally, it has no bearing on defendant's guilt or innocence" (98 2 at 491). There we found that, to the extent the claims were preserved, the error was harmless in light of the overwhelming evidence of guilt. Here, unlike Caruso and Miller, much of the testimony was material because it explained the sequence of events, from the husband's [7] discovery that his wife was missing to learning that his wife's body had been found later in the day. To be sure, there was testimony that was irrelevant to the sequence of events, such as that Cynthia had a Master's Degree, but such testimony was minimal and harmless where the proof was overwhelming and there was no significant probability that, but for this error, the jury would have acquitted defendant (seePeople v Crimmins, , 36 NY2d 230, 237 [1975]). E. GUILT PHASE SUMMATION Defense counsel's summation reflected somewhat the initial conflict that permeated defendant's relationship with his lawyers. Counsel argued that defendant was not the person who committed the murder. Alternatively, he argued that the person who did it had demons inside, and suddenly snapped at the slightest provocation. Counsel maintained that the circumstances surrounding the killing evinced lack of control. He also urged that "there's some greater system in the world that determines when and how we die," in an effort to shift blame away from defendant. The prosecutor began by noting that "mere words are very inadequate to convey the horror of what occurred to Cindy Quinn that morning two years ago." He added symbolically, "I know you have visited those woods on that Saturday attempting to see and feel what atrocity went on. I remind you now what the testimony of Lynn Weyant . . . My God. What sort of scream came from those woods to prompt that type of reaction? What sort of torture caused that scream? Now you know. You've seen it. You've seen what he did to Cindy Quinn." The prosecutor referred to Sturm as "quivering and shuddering" on the witness stand as she confronted her attacker, and contrasted her good fortune to the brutal death of Cynthia Quinn. Sturm "was lucky enough to go on with her life and now she has a beautiful little baby boy." Cynthia's two children, on the other hand, "have no mommy," Brian has no wife, and her family has lost a daughter and a sister. The prosecutor told the jurors, "We can only pray that Cindy thought to take the time to pat them on the head or kiss them before she went out that morning." In conclusion, the prosecutor told the jurors that for 17 days they had "sat in the presence of evil." And unlike defendant, Cynthia Quinn was buried 25 months earlier without the opportunity to present a defense. The prosecutor asked the jurors to look defendant in the eye and tell him, "You're a murderer, you're a rapist, and you're guilty, and you shall be held responsible." After the prosecutor's summation, defense counsel moved for a mistrial, arguing that the prosecutor sought to inflame the jury. The court denied the motion.

On appeal, defendant argues that the prosecutor committed a number of improprieties during the guilt phase summation: inviting jurors to relive the victim's suffering by expressing that words could not describe what she must have experienced; referring to Sturm's good fortune and Quinn's cruel fate; lamenting the pain of those Cynthia Quinn left behind; degrading defendant by characterizing him as a killer whale; arguing that defendant received the benefit of due process while Cynthia Quinn did not; urging the community to avenge, and thereby heal. Defendant's arguments are similar to those raised in People v Harris and People v Cahill. In Harris, the defendant claimed "that the prosecutor invited the jury to punish defendant for exercising his rights to a trial and not to testify, that the prosecutor misstated the record, referred to facts not in evidence, and misused evidence, and that the prosecutor denigrated defendant's defense and inflamed the jury" (98 2 at 492 n 18). We held that the claims were unpreserved, and, had we reviewed them, we would have concluded that the statements did not exceed [8] the broad bounds of rhetorical comment permissible in closing argument" ( id. [citations omitted]). We came to the same conclusion in Cahill, where the defendant argued that "the People made improper remarks throughout the trial, alluding to, among other things, the victim's beauty and courage and defendant's remorselessness" (2 3 at 43 n44). As in Harris and Cahill, we conclude that defendant did not properly preserve the claims he makes on appeal. The motion for a mistrial was insufficient to preserve the arguments. Nevertheless, reviewing the merits of the claims, we conclude that while several of the prosecutor's remarks were improper, reversal is not warranted ( see Crimmins, 36 NY2d at 237). III. PENALTY PHASE We next address the constitutionality of the "deadlock instruction" the court delivered to the jury prior to its deliberation on the appropriate sentence for defendant. Pursuant to CPL 400.27 (10), the court instructed the jurors on their duty to decide whether defendant should be sentenced to death or to life without parole. Either choice had to be unanimous. The court further instructed the jurors, as required by statute, that if they failed to agree, the court would sentence defendant to life imprisonment with parole eligibility after serving a minimum of 20 to 25 years. Although defendant did not object when the instruction was given, he had sought a ruling prior to trial that CPL 400.27(10) was unconstitutional under the Federal and State Constitutions, both on its face and as applied. His motion preserved the argument for appeal. Like some other states with death penalty statutes, New York recognized that jurors should know the consequences of a deadlock ( see Berberich, Note, Jury Instructions Regarding Deadlock in Capital Sentencing , 29 Hofstra L Rev 1301, 1324 [Summer 2001]). However, New York's deadlock provision is unique in that the sentence required after a deadlock is less severe than the sentences the jury is allowed to consider. No other death penalty scheme in the country requires judges to instruct jurors that if they cannot unanimously agree between two [10] choices, the judge will sentence defendant to a third, more lenient, choice. Studies have found that jurors tend to "grossly underestimate how long capital murderers not sentenced to death usually stay in prison" (Bowers & Steiner, Death by Default: An Empirical Demonstration [11] of False and Forced Choices in Capital Sentencing , 77 Tex L Rev 605, 648 [Feb 1999]). Jurors' beliefs with respect to the actual number of years a defendant will serve in prison are compelling and can even be decisive. As the study concluded, the "sooner jurors think a defendant will be released from prison, the more likely they are to vote for death and the more likely they are to see the defendant as dangerous" ( id. at 703). A study of South Carolina jurors who served in capital cases "confirm[ed] that jurors' deliberations emphasize dangerousness and that misguided fears of early release generate death sentences" (Eisenberg & Wells, Deadly Confusion: Juror Instructions in Capital Cases, 79 Cornell L Rev 1, 4 [Nov 1993]; see also Garvey, Aggravation and Mitigation in Capital Cases: What do Jurors Think?, 98 Colum L Rev 1538, 1560 [Oct 1998] [finding that "[f]uture dangerousness appears to be one of the primary determinants of capital-sentencing outcomes"]). Thus, jurors might impose the death penalty on a defendant whom they believed did not deserve it simply because they fear that the defendant would not serve a life sentence. These studies provide the best available insight into jury behavior. The New York Legislature determined that defendants convicted of capital first degree murder should either be sentenced to death or the most severe alternative sentence, life imprisonment without the possibility of parole. What, then, is the consequence of telling the jury that it may not impose a sentence of life with parole eligibility after 20 to 25 years, but that the court will impose that sentence if the jury cannot agree? The deadlock instruction interjects the fear that if jurors do not reach unanimity, the defendant may be paroled in 20 years and pose a [12] threat to society in the future. Yet, in New York a defendant's future dangerousness is not a statutory aggravator the jury may consider. By interjecting future dangerousness, the deadlock instruction gives rise to an unconstitutionally palpable risk that one or more jurors who cannot bear the thought that a defendant may walk the streets again after serving 20 to 25 years will join jurors favoring death in order to [13] avoid the deadlock sentence. Commentators have been harshly critical of New York's deadlock instruction. For jurors who are inclined toward life without parole, the choice is between death and life with parole, a Hobson's choice in light of the jurors' likely concerns over defendant's future dangerousness. The choice of death results not through "a comparison of views, and by arguments among the jurors themselves," but through fear and coercion ( Jones v United States, 527 US 373, 382 [1999], quoting Allen v United States, 164 US 492 [1896]). New York's statute is unique in its coercive effect. The case closest in point to the one before us because of the instruction given to the jury is Morris v Woodford (273 F3d 826 [9th Cir 2001], cert denied 537 US 941 [2002]). There, the Court of Appeals for the Ninth Circuit held that because of a mistake, there was a reasonable likelihood that one or more jurors interpreted the court's instructions to mean that if the jury could not agree between death and life without parole, the defendant would be sentenced to life with parole. In other words, the coercive instruction mistakenly given in Morris v Woodford is the same instruction actually required here by CPL 400.27(10). Remanding the case for a new penalty-phase trial, the court concluded that the instructions "would suggest to any holdout juror that, if he or she did not join the majority of the other jurors, then Petitioner would be eligible for parole. That suggestion is, of course, incorrect, and its coercive potential is obvious; in effect, it would place such a juror in the apparent position of choosing between death and life with parole" (273 F3d at 841). Here, the trial court reasoned that it was more likely that jurors favoring life without parole would not switch to death since lack of unanimity would mean that the defendant would remain incarcerated for at least 20 to 25 years, an option preferable to death. But under the existing statute, life with parole was not one of the options available to the jury. New York's Legislature did not intend for jurors to choose life with parole. A juror who purposely chooses that option would fail to abide by the court's instruction to decide between death or life without parole. In any event, a juror who has found defendant guilty of a capital crime, and has heard weeks of arguments and a summation reviling

the defendant and detailing the pain he has caused, is more likely to choose death than risk the prospect of defendant ever harming anyone in society again ( see Deadly Confusion, supra, 79 Cornell L Rev at 12 ["The data suggest that the sentencing phase of a capital trial commences with a substantial bias in favor of death"]). It is of course possible that one or more jurors who favor death might be coerced into choosing life without parole rather than have defendant be sentenced to life with parole. That, however, does not cure the coercive effect of the deadlock instruction before us. The coercive effect is not relieved by recognizing that some jurors may be coerced in the opposite direction. Because death is qualitatively different, there is a "corresponding difference in the need for reliability in the determination that death is the [14] appropriate punishment in a specific case" ( Woodson v North Carolina, 428 US 280, 305 [1976]). Whether a juror chooses death or life without the possibility of parole, the choice is driven by the fear that a deadlock may result in the eventual release of the defendant. Under New York's deadlock instruction the choice is not, as it should be, the result of a reasoned understanding that it was the appropriate one. We hold today that the deadlock instruction required by CPL 400.27(10) is unconstitutional under the State Constitution because of the unacceptable risk that it may result in a coercive, and thus arbitrary and unreliable, sentence. A. LEGISLATIVE DEBATE ON THE DEADLOCK INSTRUCTION The New York State Legislature was aware of the danger that the deadlock instruction might result in coercive verdicts. During deliberations on the death penalty statute, Senator Richard Dollinger addressed the issue of coercion. He asked, "How do you avoid the problem of a jury that is hung up on the issue of either life in prison without parole or the death penalty of putting additional pressure on the jurors, knowing that if they failed to agree they are going to face a penalty that is less than either of the two penalties tha[t] they are currently in dispute over?" (New York State Senate Debate, March 6, 1995, at 1912). Senator Dale Volker responded that he did not believe the procedure was coercive, stating that in other jurisdictions "there is ample constitutional basis" for that conclusion. As Senator Volker explained, "the jury -- in order to enact the death penalty, it has to be a unanimous decision. If there's no unanimous decision, if they can't arrive at a decision for life without parole, then the judge has the option then to make the decision to sentence the person to 25 years to life" ( id. at 1912-1913). Senator Dollinger persisted, asking whether giving the jury all three options had been considered. Senator Volker replied that such a procedure had been considered, as had the alternative of giving the judge the sentencing option of either life without parole or 20 to 25 years to life. The feeling was "if you are going to have the jury enact something as serious as the death penalty, you ought to have a unanimous jury" ( id. at 1915). Therefore, "the decision was to give the jury the option for the most severe penalties and let them know that if they couldn't choose one of the more severe penalties then the judge would enact the lesser penalty which is 20-25 years to life" ( id. at 1915-1916). Senator Dollinger again asked, "But isn't it . . . inherently coercive to tell them that you have to do this; otherwise there is going to be another penalty imposed?" Senator Volker replied that there would be a problem if the jury was not informed as to the consequences [16] of a hung jury. He thought that "that would be a much more serious constitutional problem" ( id. at 1916). B. GUIDING AUTHORITY The United States Supreme Court has not ruled on an instruction by which jurors are told that if they cannot agree on a verdict, the defendant will receive a lesser sentence than the ones they must consider. To be sure, the Supreme Court has held that defendants, and capital defendants in particular, are entitled to uncoerced verdicts ( see Lowenfeld v Phelps, 484 US 231 [1988]). In Simmons v South Carolina (512 US 154 1994]), the Court held that if the state makes future dangerousness an issue, and the alternative sentence to death is life without [17] parole, the defendant should be allowed to argue that he is parole ineligible. In other words, "[t]he State may not create a false dilemma by advancing generalized arguments regarding defendant's future dangerousness while, at the same time, preventing the jury from learning that defendant never will be released on parole" ( id. at 171). Here, the choice of life without parole is rendered illusory by the fear that [18] failure to unanimously agree will result in a parole eligible sentence. Moreover, in Beck v Alabama (447 US 625 [1980]), the Supreme Court invalidated a death penalty scheme that precluded jurors from considering a noncapital lesser included offense. The Court held that the failure to give jurors the power to convict defendant of the lesser included offense "would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant's life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments" ( id. at 637). The Court explained that "a jury might convict a defendant of a capital offense because of its belief that he is guilty of some crime, or given the mandatory nature of the death penalty under Alabama law, the jury might acquit because it does not think that defendant's crime warrants death" ( California v Ramos,463 US 992, 1007 [1983] discussing Beck v Alabama). The statute interjected "irrelevant considerations into the fact finding process, diverting the jury's attention from the central issue of whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime" ( id. at 642). Although Beck involved the guilt/nonguilt phase, much of its reasoning applies to this case. Here, the statute precludes the jury from considering a third option -- one that many jurors might find unpalatable -- and yet it instructs that the third option will be imposed upon a deadlock. It thereby improperly interjects future dangerousness, a nonstatutory aggravator, into jury deliberations. It is unclear, however, whether the Supreme Court would apply Beck's reasoning to this case because in California v Ramos (463 US at 1008), the Court held that "the risk of an unwarranted conviction is simply not directly translatable" to the penalty phase. There, the defendant challenged the instructing of jurors that a life sentence without parole could be commuted by the Governor. The Court found that the instruction focused the jury on the individual characteristics of the defendant and his offense, was accurate, and could be rebutted by defendant. Subsequently, the California Supreme Court held the instruction unconstitutional on state due process grounds because it was "misleading and because it invites the jury to consider speculative and impermissible factors in reaching its decision" ( People v Ramos, 689 P2d 430, 444 [1984]). In so holding, the California high court quoted approvingly from the New Jersey decision in State v White (142 A2d 65, 76 [1957]) -as do we: "It is no more proper for a jury to conclude that death be the penalty because a life sentence may be commuted or the defendant paroled, than it would be for a trial judge in other criminal causes deliberately to impose an excessive sentence to frustrate the statutory scheme committing parole to another agency. That death should be inflicted when a life sentence is appropriate is an abhorrent thought." In concluding that the deadlock instruction is unconstitutional, we are persuaded by the rationale of those two high courts. The People rely on Jones v United States (527 US 373) where the defendant argued that because of the trial court's erroneous instruction, the jury believed that the defendant would receive a sentence of less severity than life without parole upon a deadlock. To avoid the possibility of

the defendant's possible release, jurors who favored life without the possibility of parole could have changed their votes to death. The defendant had requested the trial court to instruct the jury that in the event of a deadlock, the sentence would have been life without the possibility of parole. In a divided opinion, the Supreme Court initially held that "the Eighth Amendment does not require that the jury be instructed as to the consequences of their failure to agree" ( id. at 381).The Court reasoned that the jury was not "affirmatively misled" by the trial court's refusal to give the proposed instruction, which "has no bearing on the jury's role in the sentencing process" ( id. at 382). Although the proposed instruction would have been accurate, the Court found that it might undermine the strong governmental interest in securing unanimity. The Court declined to follow state cases that have required jurors to be informed as to the consequences of a deadlock. Reviewing for plain error, the Court also held that the trial court did not mislead jurors into believing that the deadlock sentence would be of less severity. But even if the court had misled the jurors, the defendant could not "show the confusion necessarily worked to his detriment" since it was "just as likely that jurors, loathe to recommend a lesser sentence, would have compromised on a sentence of life imprisonment as on a death sentence" (527 US at 394). According to the People, the principle underlying Jones and Ramos is that as long as the information conveyed to the jury is accurate, it need not be balanced. Absent from the Court's discussion in Jones is any mention about the heightened need for reliability in death penalty cases. Instead, the Court focused on the importance of securing jury unanimity, and the fact that the jury was not affirmatively misled. New York's deadlock instruction gives jurors accurate information, and tilts toward unanimity. The risk of coercion, however, calls into question the reliability of the jury's determination. Under our case law, the goal of jury unanimity may not undermine sentencing reliability, particularly where the sentence is death. C. NEW YORK'S PRECEDENT ON COERCED VERDICTS We have held that a coerced verdict "ought not to be allowed to stand in any case, and least of all, in one involving a human life" ( People v Sheldon, 156 NY 268, 285 [1898]). Since Sheldon, we have consistently affirmed this principle. In People v Faber (199 NY 256, 259 [1910]), we held that "[t]he verdict of a juror should be free and untrammeled. In arriving at a verdict the judge presiding at the court must not attempt to coerce or compel the jury to agree upon a particular verdict, or any verdict" ( see also People v Dawkins, , 82 NY2d 226 1993]); Matter of Plummer v Rothwax, , 63 NY2d 243 [1984];People v Carter, , 40 NY2d 933 [1976]). Generally, the source of the coercion has been the trial court. In well-meaning, though misguided, attempts to get juries to reach a decision after all the travails of a trial, courts have given coercive instructions. Although shocking to imagine, there was a time when jurors would be deprived of food and rest until they reached a verdict. In rejecting the practice, Chancellor Kent reasoned that a verdict reached under such conditions is "founded not on temperate discussion and clear conviction, but on strength of body" and "does not stand with conscience, but is altogether repugnant to a sense of humanity and justice" ( People v Olcott, 2 Johns Cas, 301, quoted in People v Sheldon, 156 NY at 276). In People v Sheldon, we expressed sympathy with the trial court's desire to see the case end with a verdict, but concluded that the court "fell into error, and, as a result, very likely coerced some members of the jury into an agreement with their fellow-members against their own personal convictions" ( id. at 282-283). The error in Sheldon was keeping the jurors together in a cramped room for about 85 hours without beds or cots, and giving the impression that they would remain confined for longer if they did not reach a verdict. Other jury instructions we have invalidated have not been as bluntly coercive as in Olcott or Sheldon. In People v Faber, the trial court instructed that a juror "should join with his co-jurors, and make in some respects their opinion his own." We held that "[t]he trial judge, in his apparent desire to have the jury agree, inadvertently overlooked the independent, individual and personal character of jurors composing the body who sit to determine controversies" (199 NY at 258-259). The court's instruction "may have resulted in an agreement by the jury where an agreement would not have been obtained if each juryman in obedience to his right and duty had decided the case upon his own opinion of the evidence and upon his own judgment" ( id. at 259). When a juror surrenders "conscientious views founded upon the evidence," it must be due to "argument and comparison of views" ( id. at 261). In People v Carter (, 40 NY2d 933 ), we relied on Sheldon and Faber in granting a new trial where the court had instructed the jurors that they would be held incommunicado until they reached a verdict, after the court had learned, during a polling, that a lone juror had voted not guilty. In Matter of Plummer v Rothwax (, 63 NY2d 243 [1984]), the judge declared a mistrial after jurors had declared further deliberations would be fruitless, and this Court found that "it was reasonable for the trial court to avoid any coaxing, inducing or pressuring the jury to return for further deliberations. Such action could have proven coercive and prejudicial and might have resulted in the denial of a fair verdict to the defendant or the People, a verdict which the jury might not otherwise support" ( id. at 252-253; see also People v Dawkins, , 82 NY2d 226 ). In People v Antommarchi (, 80 NY2d 247, 252 [1992]), we held that an Allen charge violated the Federal and State Constitutions because it coerced dissenting jurors into articulating a basis for their doubts, and impermissibly shifted the burden of proof. Most recently, we held that a coercive jury instruction deprived defendant of a fair trial ( People v Aponte, 2 NY3d 304 [2004]). There are distinctions between the foregoing cases and this case, but they do not warrant a different result. First, while it was the trial court that delivered the deadlock instruction, it did so at the behest of the Legislature, which drafted the instruction. Coercive instructions are improper whether they spring from the mind of an individual judge or the collective mind of the Legislature. Second, the jurors in this case did not express the view that they were deadlocked. But this is not surprising considering that they were given the deadlock instruction before they began their deliberations. What is dispositive is that the jurors in a capital case are given instructions that may coerce them into surrendering their conscientious beliefs. The fear in this case was not that jurors would be deprived of meals or rest, or that failure to agree would have wasted everyone's time. Rather, the motivating fear in the minds of a juror in a numerical minority is likely to be that a vote for [19] life without the possibility of parole is really a vote for life with the possibility of parole. The dissent asserts that a deadlocked jury amounts to a failure of the system. It would be a far greater failure of the system that, as a result of legislative coercion, an individual could be sentenced to die. If all twelve jurors cannot reach an uncoerced unanimous conclusion that the death penalty is the appropriate sanction, the defendant must not be sentenced to death. Thus, if there is one lone juror who truly believes that the death sentence is not warranted, then a non- death sentence must be imposed ( see CPL 400.27[11][a])[the jury may not direct imposition of a sentence of death unless it unanimously finds beyond a reasonable doubt that the aggravating factor(s) substantially outweigh the mitigating factor(s) established, if any, and unanimously determines that the penalty of death should be applied]). This Court has repeatedly construed the State Constitution's Due Process Clause to provide greater protection than its Federal counterpart as

construed by the Supreme Court ( Sharrock v Dell Buick-Cadillac, , 45 NY2d 152, 159 [1978]). In doing so, we have often found that a Supreme Court rule represents a departure from an earlier rule, which was consistent with our own established law or with fundamental justice and fairness. For instance, in Cooper v Morin (, 49 NY2d 69 [1979]), we rejected a test of what constitutes punishment of pretrial detainees under the Eighth Amendment announced in Bell v Wolfish (441 US 520 [1979]), which was less probing than the test enunciated in Kennedy v Mendoza-Martinez (372 US 144 [1963]). Under the new test the Supreme Court adopted, a regulation did not violate due process if the regulation "has a legitimate purpose other than punishment and is not excessive in relation to that purpose" ( Cooper v Morin, 49 NY2d at 79). We regarded that test as "one-sided" and instead adopted a test that balanced "the harm to the individual resulting from the condition imposed against the benefit sought by the government through enforcement" ( id.). In People v Vilardi (, 76 NY2d 67 [1990]) we remained committed, as a matter of State due process, to the two-tiered framework the Supreme Court had adopted in United States v Agurs(427 US 97 [1976]) for analyzing the materiality element of a claim under Brady v Maryland (373 US 83 [1963]), rather than signing on to its more recent standard articulated in United States v Bagley (473 US 667 [1985]). In this case, we regard Jones v United States (527 US 381) as unfaithful to the often repeated principle that death is qualitatively different and thus subject to a heightened standard of reliability ( see Gregg v Georgia, 428 US 153 [1976] ; Woodson, supra; Beck, supra). There, rejecting defendant's argument that some jurors were essentially coerced into voting for death out of fear that defendant would receive a lesser sentence upon a deadlock, the Supreme Court found that even if jurors were confused, defendant could not show prejudice since it was just as likely that jurors in favor of death would vote for life imprisonment. As noted, the research evidence indicates that the opposite is more likely. In any event, a vote for life imprisonment or death, driven by the fear that a defendant might be parole-eligible if jurors fail to reach unanimity, does not satisfy the heightened standard of reliability required by our State Constitution. Moreover, to require a defendant sentenced to death to show actual prejudice would be inconsistent with our case law holding that actual prejudice need not be shown for certain due process violations in noncapital cases ( People v Stanley, , 41 NY2d 789 [1978] ["failure to conduct a prompt prosecution, in a proper case, may require dismissal of the indictment even in the absence of prejudice to the defendant"]). The dissent contends that the majority is ignoring the will of the Legislature. The Court, however, plays a crucial and necessary function in our system of checks and balances. It is the responsibility of the judiciary to safeguard the rights afforded under our State Constitution. While the Legislature may vote to have a death penalty, it cannot create one that offends constitutional rights. Thus, it is necessarily our responsibility to strike down the deadlock instruction in CPL 400.27(10) because it creates the substantial risk of coercing jurors into sentencing a defendant to death in violation of our Due Process Clause. The deadlock instruction is invalid under our own case law condemning coercive instructions, and the State Constitution's Due Process Clause, providing greater protection than its Federal counterpart. Consequently, defendant's death sentence must be set aside. D. ABSENCE OF ANY INSTRUCTION We further conclude that the absence of any instruction is no better than the current instruction under our constitutional analysis, and thus we decline to adopt Jones. Like the flawed deadlock instruction, the absence of an instruction would lead to death sentences that are based on speculation, as the Legislature apparently feared when it decided to prescribe the instruction. As the studies previously cited indicate, jurors might fear that the failure to reach a unanimous verdict would lead to a defendant's release, retrial or sentence to an even lesser term than the one currently prescribed in the deadlock scenario. Indeed, a key motivation for jurors to vote for the death penalty is undoubtedly their fear that a defendant will otherwise pose a danger on the streets ( see Garvey, 98 Column L Rev at 1560; see also Blume, Garvey, Johnson, Future Dangerousness in Capital Cases: Always "At Issue, 86 Cornell L Rev 397 *2001+). Our State Constitution does not permit a death sentence imposed by jurors who may have chose n that option based on rank speculation about a defendant's eventual release into society. The Attorney General points out, and the dissent recognizes, that the Legislature sought to fulfill the twin aims of minimizing juror speculation by providing an instruction, and encouraging unanimity. Our conclusion today identifies the preeminence of reducing juror speculation. As the Attorney General acknowledges (while supporting the constitutionality of the existing instruction), "if no instruction is given, and jurors are kept in the dark as to what will happen in the event they cannot decide on sentence, speculation will flourish. As the research . . . demonstrates, this speculation is almost always to the defendant's detriment. (Attorney General's Brief at 41 ). As noted, the Jones Court held that "the Eighth Amendment [to the Federal Constitution] does not require that the jury be instructed as to the consequence of their failure to agree" (527 US at 381). It bears reiterating here that "on innumerable occasions this [C]ourt has given . . . [the] State Constitution an independent construction, affording the rights and liberties of citizens of this State even more protection than [20] may be secured under the United States Constitution" ( Sharrock v Dell Buick-Cadillac, Inc., 45 NY2d at 159 . We hold that in this case the Due Process Clause of the New York Constitution requires a higher standard of fairness than the Federal Constitution as interpreted by the Jones majority ( see NY Const art I, 6 ["No person shall be deprived of life, liberty or property without due process of [21] law"]). InSharrock, we noted that "historical differences between the Federal and State Due Process Clauses make clear that they were adopted to combat entirely different evils" (45 2 at 160). Prior to the Fourteenth Amendment, the Federal Due Process Clause offered "virtually no protections of individual liberties" while "[s]tate constitutions in general, and the New York Constitution in particular, have long safeguarded any threat to individual liberties" ( id.). New York "recognized that unreasonable delay in prosecuting a defendant constitutes a denial of due process of law" before the Supreme Court similarly broadened the Federal constitutional right to a speedy trial ( see People v Staley, , 41 NY2d 789, 791 [1978]). Similarly, our State Constitution provided a basis for the right to counsel well before the Supreme Court recognized comparable rights federally ( see People v Settles, , 46 NY2d 154, 160 [1978]). Now, recognizing the gravity of capital punishment and the concomitant need for greater certainty in the outcome of capital jury sentences, we hold that providing no deadlock instruction in the course of capital sentencing violates our Due Process Clause. Our conclusion is buttressed by the clear legislative intent that there be a jury instruction on the consequences of a deadlock. We thus join eight other States that have determined, by court rule (Delaware, Louisiana and New Jersey) or legislative enactment (Idaho, Missouri, Oregon, Pennsylvania and Wyoming), that a jury instruction on the consequences of deadlock is required in a capital case. In State v Williams, the Louisiana high court, on rehearing, presciently considered whether a trial judge must inform jurors in a capital sentencing hearing that a defendant will be sentenced to life imprisonment "without benefit of probation, parole or suspension of sentence" (392 2 619,

633 [La 1980]), if they are unable to reach a unanimous decision. The Williams court observed that because jurors were kept in the dark, they were left to speculate about the outcome if they could not agree, and "could rationally surmise that in the event of disagreement a new sentencing hearing, and perhaps a new trial, before another jury would be required (392 2 at 634). The obvious danger in thi s type of speculation "may have swayed a juror to join the majority, rather than hold to his honest convictions" ( id.). Relying on Eighth Amendment principles, the Williams court concluded that the penalty of death had been imposed under a procedure that "created a substantial risk that it would be inflicted in an arbitrary and capricious manner" ( id. at 634-635). Similarly, in Whalen v State (492 A2d 552, 562 [Del 1985]), the Supreme Court of Delaware concluded that a trial court's failure to adequately inform jurors that a failure to unanimously agree on a sentence of death would lead to a sentence of life without parole was a "substantial denial of the defendant's constitutional rights." In New Jersey, the Supreme Court acted in the exercise of its supervisory powers and was "guided as well by the constitutional imperative in a capital case that jurors be made to understand the ultimate consequences of their decision" ( State v Ramseur, 524 A2d at 283). Like us, the New Jersey court rejected the rationale of some other state courts which concluded that a trial court is not obligated to inform a capital jury of the consequences of its inability to agree. We cannot, however, ourselves craft a new instruction, because to do so would usurp legislative prerogative. We have the power to eliminate an unconstitutional sentencing procedure, but we do not have the power to fill the void with a different procedure, particularly one that potentially imposes a greater sentence than the possible deadlock sentence that has been prescribed. As the Court noted in People v [22] Gersewitz (294 NY 163, 169 [1945]), we have "no power to supply even an inadvertent omission of the legislature." We thus conclude that under the present statute, the death penalty may not be imposed. Cases in which death notices have been filed may go forward as noncapital first degree murder prosecutions. E. REMEDY CPL 470.30(1) authorizes this Court to take corrective action upon a reversal or modification. CPL 470.30(5)(c) authorizes this Court to "set the sentence aside and remand the case for resentencing by the court for a determination as to whether the defendant shall be sentenced to life imprisonment without parole or to a term of imprisonment for the class A-1 felony of murder in the first degree other than a sentence of life imprisonment without parole." Pursuant to these provisions, the case should be remitted to the trial court for imposition of a sentence of life imprisonment without parole or a sentence with a minimum of 20 to 25 years and a maximum of life. In light of our conclusion, the remaining penalty phase claims are academic. Accordingly, the judgment should be modified by vacating the sentence of death and remitting to Supreme Court, Suffolk County for resentencing in accordance with CPL 470.30(5)(c) and Penal Law 60.06 and 70.00 and, as so modified, affirmed. People v LaValle No. 71 ROSENBLATT, J. (concurring): Declaring a statute unconstitutional is not a celebratory event, but from time to time a necessary part of the judicial function and a pillar of our system of checks and balances. With that in mind, I write separately to emphasize why I fully concur with the Court. While cogent, the dissent goes too far in asserting repeatedly that the Court is substituting its own preferences for the Legislature's. Many trial judges in the United States and in New York (myself included) have not shrunk from imposing death sentences on defendants even though, as judges, we might have qualms about it. The dissent makes this point, stating that it recognizes the Court's "obvious discomfort with the death penalty -- indeed we [the dissenters] may share that discomfort." I take this as my colleagues' reminder -- an apt and timely one -- that judges should subordinate their personal predilections to the legislative will. But there is another side of the coin, no less compelling. Just as judges should not shrink from carrying out the legislative will, so too should they not shrink from declaring statutes unconstitutional in proper cases, however distasteful that may be. In both instances, criticism (and occasionally, cynicism) is inevitable ( e.g., "the court did not have the stomach to declare the death penalty law unconstitutional" or, from the other side, "the court did not have the stomach to carry out the death penalty"). My assessment is that most often, and surely in the case before us, judges are ruled not by their stomachs but by their minds, their judicial experience, and their constitutional training and analysis. Without doubt, that is true of the Court's decision today. The same, I am prepared to say, is true of the dissent. Although I disagree with it, I ascribe to it no personal or ideological bias any more than I do to the Court's writing. The case before us involves a difference of opinion on a point of constitutional law, and I side firmly with the Court. The deadlock instruction at hand is coercive. Granted, it can coerce both ways. Death-prone jurors may well come over to life without parole so as to be assured that the defendant will never be released. But it is no less likely that the life without parole jurors will vote for death because it is the only way to guarantee that the defendant will always remain behind bars. In terms of symmetry, this is nicely balanced, but as a constitutional matter it does not add up. If five of ten defendants are executed based on coercion, there is little comfort knowing that the other five will be spared the death penalty. Sparing five does not offset the improper execution of the other five. This is not a point of personal predilection. A calculation of that kind simply cannot withstand scrutiny under our State Constitution. The deadlock instruction is a critical part of the capital case machinery, and in holding it unconstitutional, the Court is not acting on some trifling or arcane technicality. The trial judge gives the jury the deadlock instruction at an exquisitely crucial time. It is a signpost at the very crossroads of life and death. If the directions are omitted or coercive, it could wrongfully mean someone's life. I stress this because no one should suppose that the Court is engaging in a didactic exercise involving angels dancing on the heads of pins. Contrary to the dissent's assertion, it is not part of a design to devise creative obstructions to the death penalty. Deadlock instruction jurisprudence is, literally, a matter of life and death, and the Court is right to declare that an execution based on an unreliable sentencing verdict is constitutionally unacceptable and cannot be justified in the name of deference to the Legislature. I cannot imagine that the Legislature intended to coerce jurors into unreliable verdicts when it determined that a deadlock instruction was required. But neither can I imagine that, since the founding of our Republic, lawmakers deliberately have set out to draft unconstitutional statutes in hundreds of cases in which American courts have declared those statutes unconstitutional. No other jurisdiction has enacted a deadlock instruction like this one. While I surely sense nothing willful or pernicious in the Legislature's motivation, it remains that the instruction is inexplicable and fatally defective.

Finally, for the reasons convincingly expanded upon by the Court, I agree that leaving the statute with no deadlock instruction at all is constitutionally untenable and that, as the Court has explained, it would be impermissible for us to rewrite or restructure the law. The dissent asserts that the Court's result is astonishing. For my part, under constitutional analysis, the Court can come to no other result. People v Stephen S. LaValle No. 71 R. S. Smith, J. (dissenting): The Court today renders New York's death penalty statute unenforceable on the ground that the statute fails to afford death penalty defendants a newly discovered constitutional right: the right to a penalty phase trial before a jury that is told, in advance, that a hung jury guarantees the same sentence that would result from a verdict of life imprisonment. The existence of such a right finds no support in precedent, and none in logic except on the premise that death penalty defendants are constitutionally entitled to every procedural advantage the human mind can devise. We dissent, and would hold that the deadlock instruction required by Criminal Procedure Law (CPL) 400.27(10) is not unconstitutionally coercive; that the statutory language requiring that instruction, even if invalid, is severable from the other statutory provisions authorizing the death penalty; and that the statute without the instruction is enforceable. I CPL 400.27(10) sets forth the procedure to be followed at the penalty phase of a death penalty trial. The provision the majority holds unconstitutional is the fifth sentence of the section, which provides: "The court must also instruct the jury that in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty- five years and a maximum term of life." The majority is correct in saying that this is an unusual provision, apparently with no counterpart in the laws of other states. It is quite possible to question the wisdom of this statute, and to believe that a different provision on the subject (or no provision at all) would have been a better choice. But an act of the Legislature is not unconstitutional because it is unique or because its wisdom may be questioned. This statute is constitutional unless obedience to its command violates due process by depriving a defendant of a fair trial. In our view, it meets this test. The statute addresses the problem of what, if anything, to tell a jury in advance about the consequences of the jury's failure to reach unanimous agreement. The usual procedure is to tell jurors nothing -- an approach for which there is much to be said. The consequences of a deadlock are no part of a jury's proper concern. A jury's job is to arrive unanimously at a verdict, if it can. If it cannot overcome its disagreements, its job is simply to report its inability to reach a verdict, let the consequences be what they may. In accordance with these principles, it is the normal procedure, both in death penalty and non-death penalty cases, to omit all reference to the consequences of a [23] deadlock from the court's initial instructions to the jury. Thus, we think it quite clear that a legislature could properly choose not to require an "anticipatory" deadlock instruction -- and we are astonished, as we explain further in the next section of this opinion, that the majority today holds otherwise. We also believe, however, that a legislature constitutionally may, as New York's Legislature did, decide that an anticipatory deadlock instruction is desirable. The Legislature did not have to, but could, guard against the possibility that jurors left in the dark about the consequences of a deadlock will speculate, and that the speculation may distort their deliberations. If the jury at the penalty phase of a death penalty trial conjectures, mistakenly, that a deadlock will result in a new trial and the significant delay, inconvenience and expense that would entail, some jurors may, consciously or not, be inclined to forego their own views for the sake of unanimity. To avoid the possibility that a verdict may be the result of inaccurate guesswork, the Legislature may choose to assure that jurors are accurately informed about the consequences of their failure to agree. Plainly, the majority here finds nothing wrong with the principle of giving jurors information about the consequences of a deadlock -- on the contrary, it finds an anticipatory deadlock instruction to be constitutionally required. The majority seems to recognize that the deadlock instruction required by New York's Legislature may be better for defendants, in many cases, than the traditional approach of leaving the jury in the dark. But the majority holds that the specific deadlock instruction provided in New York's statute is unconstitutional, because it might sometimes work to the defendant's disadvantage. The majority objects to the instruction required by the statute because it tells the jury that the sentence in case of deadlock will be life imprisonment with the possibility of parole after either 20 or 25 years -- a less severe sentence than either of the two (death or life without parole) for which the jury may return a verdict. The majority suggests that, since jurors may find the possibility of parole for someone who has committed first degree murder unacceptable, jurors who are result-oriented -- who are willing to go along with a verdict they do not like, in order to avoid a less palatable alternative -- may be induced to compromise and avoid a deadlock. This inducement to compromise can work either way. Indeed, in principle it is more likely to cause a pro-death juror to vote for life than the other way around. This is because a juror who favors the death penalty in a particular case will almost invariably prefer life without parole to a sentence that makes the defendant parole-eligible. But a juror opposed to the death penalty in a particular case may or may not be willing to accept that penalty in preference to a sentence of 20 or 25 years to life. Admittedly, the theoretical possibility exists that, in some cases, a juror who favors a life without parole sentence will be motivated by the [24] statutorily-required instruction to agree to a death sentence. But our State Constitution has never been, and should not be, held to require the elimination from the system of every possibility of juror compromise. Jurors prone to compromise, like holdout jurors, "can affect the outcomes of jury actions in every sphere of our criminal justice system" (Majority Opinion at 48 n. 19) -- and the Constitution does not require giving preference to holdout over compromise. Assuming that some jurors are result-oriented, any anticipatory deadlock instruction may affect their deliberations: it may provide some jurors either with an incentive to avoid a deadlock or an incentive to create one. The alternative instruction that New York's Legislature might have chosen would say that the result of a deadlock will be life without parole, the same result as a unanimous penalty-phase verdict in the defendant's favor. That instruction is an obvious invitation to a deadlock. It says to every juror who does not want to impose a death sentence: "If you hold out, you win." The Legislature could reasonably have decided that offering this kind of encouragement to a hung jury was undesirable. The purpose of a jury trial is to obtain a verdict, and when a jury disagrees the system has failed.

New York's Legislature chose to steer a middle course between telling jurors nothing about the consequences of a deadlock (thus perhaps encouraging speculation) and telling jurors that a deadlock is the equivalent of a verdict for life (thus encouraging deadlock). While most other states have chosen to pursue one of two goals -- either avoiding speculation or encouraging unanimous verdicts -- it was a reasonable legislative judgment for New York to value both goals, and try to advance them both. Neither the State nor Federal Constitution requires the Legislature to subordinate one goal to the other. Our analysis of the case law confirms our view that the Legislature's chosen deadlock instruction is not unconstitutional. It is clear that, at least in non-capital cases, it is not forbidden to warn a jury that a deadlock may have adverse consequences. In United States v Smith (857 F2d 682 [10th Cir 1988]), for example, the court upheld an Allen charge stating: "If you fail to reach a verdict, the parties will be put to the expense of another trial and will once again have to endure the mental and emotional strain of a trial" ( id. at 684). Instructions to this effect (usually not "anticipatory," but given after a jury has indicated difficulty in reaching agreement) are not unusual ( see e.g. Freeman v State, 115 SW3d 183, 186 [Tex App 2003]; State v Vega, 789 A2d 896, 898 [RI 2002]; Wright v State, 274 Ga 305, 306-307, 553 SE2d 787, 789 [2001]; People v Cowen, 249 AD2d 560 [2d Dept 1998], lv denied , 92 NY2d 895 [1998]; State v Whitaker, 255 Kan 118, 125, 872 P2d 278, 285 [1994]; Wiggins v State, 429 So2d 666, 669 [Ala Crim App 1983]; Griffin v State, 2 ArkApp 145 148-149, 617 SW2d 21, 23 [1981]; see also Annotation, Instructions Urging Dissenting Jurors in State Criminal Case to Give Due Consideration to Opinion of Majority (Allen Charge) -- Modern Cases, 97 ALR3d 96, 2[a], 3, 14[b]). There seem to be no appellate cases considering whether it is constitutional to tell a jury, where the law so provides, that the effect of a jury deadlock will be to make a defendant eligible for parole. Courts have, however, repeatedly considered an analogous question: May a jury be told that, if it chooses a life sentence over a death sentence, the defendant may some day go free? The law is quite clear that, as long as the information given to the jury is accurate, it is not unconstitutional to make a jury aware that a defendant sentenced to life may be released. This precise question was decided in California v Ramos (463 US 992 [1983]). At issue in that case was a California statute requiring a jury to be told that "a governor may in the future commute or modify a sentence of life imprisonment without possibility of parole to a lesser sentence that would include the possibility of parole" ( id. at 996). The Court held that this instruction did not offend the Federal Constitution. It was entirely proper, in the Court's view, to invite the jury to consider, as a factor weighing in favor of a death sentence, the undesirable possibility that the defendant might "be permitted to return to society" ( id. at 1003). By contrast, it has repeatedly been held that it is unconstitutional to mislead a jury into believing that a defendant, if sentenced to life imprisonment, may someday be released. That was the holding in Simmons v South Carolina (512 US 154 [1994]), in which the Court held that, where the life sentence that the jury considered was, by state law, life without parole, the Constitution required that the jury be informed of that fact. Justice Blackmun's plurality opinion noted that to withhold the information from the jury could reasonably have led to a "misunderstanding" that the jury faced "a false choice between sentencing petitioner to death and sentencing him to a limited period of incarceration" ( id. at 161). Similarly, in Morris v Woodford, the court set aside a death sentence where, because of a typographical error, a jury was given the impression that a verdict of life would mean life "with the possibility of parole" (273 F3d 826, 837 [9th Cir 2001]). The majority says that Morris is "[t]he case closest in point" here (Opinion at 35), but in a crucial respect it is not in point at all, because the impression given the jury in Morris was false. Simmons itself makes clear that, where the possibility of parole really exists, making the jury aware of it violates no constitutional right. Justice Blackmun, speaking for four members of theSimmons Court, said that "nothing in the Constitution prohibits the prosecution from arguing any truthful information relating to parole or other forms of early release" (512 US at 168). Justice O'Connor's concurring opinion for three Justices agreed ("[i]n a state in which parole is available, the Constitution does not require (or preclude) jury consideration of that fact" [ id. at 176]), as did Justice Scalia's dissent for himself and Justice Thomas ("the Court has noted that 'the wisdom of the decision to permit juror consideration of [postsentencing contingencies] is best left to the states'" [ id. at 183, quoting Ramos, 463 US at 1014]). Thus, in Simmons, all nine Justices recognized that, where a life sentence will make a defendant eligible for parole, a jury may constitutionally be told so. It follows logically that, where -- as under New York's statute -- a deadlocked jury will make a defendant eligible for parole, that fact too may be communicated to the jury. The defendant's interest in being free from "coercion" is no greater where the defendant is seeking a hung jury than it is where he is seeking a verdict. Indeed, his interest in an uncoerced verdict in his favor is arguably more worthy of protection, for a verdict, not a hung jury, is the desired and intended outcome of a jury trial. The majority implicitly agrees that, in deciding what a jury may be told about the consequences of a deadlock, we may look to cases involving the jury's knowledge of the consequences of a verdict. The majority relies on Beck v Alabama (447 US 625 [1980]), in which the Court held that the death penalty could not be imposed for the offense of "robbery - intentional killing", where an Alabama statute prohibited allowing a jury to convict for the lesser included offense of felony murder. In the view of the Beck Court, the Alabama procedure created an unacceptable risk that the jury would "convict for an impermissible reason - its belief that the defendant is guilty of some serious crime and should be punished," even where the jury was not convinced that the defendant was guilty of the capital offense beyond a reasonable doubt ( id. at 642). In substance, then, the Beck Court held the Alabama procedure unconstitutionally coercive. But it was coercive because it forced the jury to choose between conviction on the capital offense andacquittal -- not between a death sentence and a sentence of 20 or 25 years to life ( id. at 642-643). We accept the majority's premise that Beck is relevant to what may be said in an anticipatory deadlock instruction. Beck no doubt implies that an instruction would be unconstitutionally coercive if it told the jury that a deadlock would set the defendant free at once. But, by the same logic,Ramos and Simmons establish that it is not unconstitutionally coercive to tell the jury that a deadlock will produce a life sentence with the possibility of parole. In addition to its reliance on Beck, the majority relies on the general proposition that coerced verdicts are bad - - a proposition with which, in principle, no one can disagree. It is clear that "[a]ny criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body" ( Lowenfield v Phelps, 484 US 231, 241 [1988]). Lowenfield also holds, however, that not every instruction that prods a jury to reach a verdict is "'coercive' in such a way as to deny . . . any constitutional right" ( id.). The majority opinion

appears to recognize that under the Supreme Court's interpretations of the Federal Constitution in Ramos and in Jones v United States (527 US 394 [1999]) (which we discuss in Part II-B of this opinion), New York's deadlock instruction would pass muster (Opinion at 41-44). Yet the majority holds that our State Constitution requires a different result. In search of support for this view, the majority reaches all the way back to the days when jurors were "deprived of food and rest until they reached a verdict" or kept "in a cramped room for about 85 hours without beds or cots" (Opinion at 45) -- not very compelling analogues to the present case. Turning to more modern jurisprudence, the majority relies on cases where we found that particular versions of an Allen charge went too far in encouraging a jury to reach a verdict (Opinion at 45-47). But these cases do not come close to supporting the majority's reading of a new constitutional right into our state's due process clause. We have never relied on a distinct interpretation of the State Constitution in Allen charge cases, and we regularly cite federal authority in support of our holdings ( see e.g. People v Aponte, 2 NY3d 304, 2004 NY Slip Op 03714 [May 11, 2004], citing Lowenfield, 484 US at 240, and United States v United States Gypsum Co., 438 US 422, 462 [1978]). Indeed, we generally do not invoke either the state or federal due process clause in deciding the propriety of an Allen charge. People v Antommarchi (, 80 NY2d 247, 252 [1992]) is an exception, but it relies on both the state and federal due process clauses, suggesting no distinction between the two. The instructions involved in our Allen charge cases are distinguishable from New York's anticipatory deadlock charge in several important ways. An Allen charge is, ordinarily, a supplemental instruction given to a jury that has indicated it is having difficulty reaching agreement. It directs jurors to return to the jury room, to consult with one another and to deliberate honestly by considering the views of others without surrendering their own conscientiously held beliefs ( see CJI [NY] 42.60). An instruction that tells a struggling jury to give deliberations another try has far more potential to be coercive than a part of the main charge, given before any problem has arisen, that informs the jury of the legal consequences of a deadlock ( see People v Ali, , 47 NY2d 920 [1979] [pointing out that Allen charges have less coercive potential when the jury's duty to listen to and consider the views of other jurors is described along with their other responsibilities]). The Legislature thus minimized the risk of coercion in capital cases by providing for an anticipatory deadlock instruction. Despite the risk of coercion inherent in supplemental Allen charges, we have upheld them in many cases ( see e.g. People v Pagan, , 45 NY2d 725 [1978]), and where we have not upheld them it is for particular reasons -- because the court belittled the seriousness of the decision facing the jury, threatened to sequester the jury indefinitely, singled out jurors holding the minority view, or gave an unbalanced charge that demanded a verdict without cautioning jurors not to surrender conscientiously held beliefs ( see e.g., People v Riley, , 70 NY2d 523 [1987]; People v Diaz, , 66 NY2d 744[1985]; People v Carter, , 40 NY2d 933 [1976]). The anticipatory deadlock instruction of CPL 400.27 (10) suffers from none of these infirmities. To the extent that it may encourage a verdict, it does not depart from our Allen charge jurisprudence, which makes clear that that is an entirely permissible function of an instruction ( Aponte, 2 NY3d 304, 2004 NY Slip Op 03714 at * 3). In short, the deadlock instruction of CPL 10) is consistent with our Allen charge cases. But even if it were not -- even if we would disapprove this charge, had a trial court given it without statutory authority -- that would not make it unconstitutional. The Legislature has prescribed this particular instruction, and we must defer to the Legislature's wishes if there is any basis on which the enactment may be sustained ( see Atkinson v City of New York, , 96 NY2d 809, 810 [2001]; Matter of Jacob, , 86 NY2d 651, 667 [1995]; Bennett v Nassau County, , 47 NY2d 535, 540 [1979]; People v O'Brien, 111 NY 1, 57 [1888]). To hold that because, in the majority's view, the statutorily-prescribed instruction says more than we would approve in an Allen charge, that instruction violates the due process clause is a logical leap that the majority completely fails to justify. The majority has confused its own policy preferences with what the due process clause requires. We would hold that the anticipatory deadlock instruction provided in CPL 400.27(10)is permissible under the United States and New York Constitutions. II Having found the deadlock instruction required by statute to be unconstitutional, the majority might be expected to consider whether it is severable from the remainder of the death penalty statute. The majority opinion, however, does not mention the issue of severability. Rather, it concludes that "under the present statute, the death penalty may not be imposed" (Opinion at 56) -- not because the deadlock instruction and the death penalty are not severable, but because, according to the majority, some deadlock instruction is constitutionally required, and the instruction can be fashioned only by the Legislature, not the Court. We believe that the instruction and the rest of the statute are obviously severable. We also believe that the majority's holding that a deadlock instruction is constitutionally required embodies an extreme version of the error we have already discussed -- substituting the majority's policy preferences for those of the Legislature. A The issue of severability is not at all difficult in this case. Addressing that issue "requires first an examination of the statute and its legislative history to determine the legislative intent and what the purposes of the new law were, and second, an evaluation of the courses of action available to the court in light of that history to decide which measure would have been enacted if partial invalidity of the statute had been foreseen" ( Matter of Westinghouse Elec. Corp. v Tully, , 63 NY2d 191, 196 [1984]). Here, "the legislative intent" and "the purposes of the new law" are not in doubt. The primary legislative purpose in enacting chapter 1 of the laws of 1995 was "[t]o allow for the imposition of the death penalty upon a defendant's conviction for certain types of intentional murder" ( see L 1995, ch 1, Bill Jacket at 20 [Mem of Assembly Codes Comm]; see e.g. id. at 5 [Gov Approval Mem]; at 13 [Gov Program Bill]; at 44 [AG Mem]). Nor is there any doubt of what the Legislature would have done "if partial invalidity of the statute had been foreseen." The Legislature expressly said that "[i]f any section, part or provision of this act shall be declared unconstitutional . . . such declaration shall be limited to the section, part or provision directly involved in the controversy in which such declaration was made and shall not affect any other section, part of provision thereof" (L 1995, ch 1, 37). Nor is there any mechanical obstacle to severance here. The offending provision of the statute consists of one sentence from CPL 400.27(10), which is quoted at page 2 of this opinion. No other part of the death penalty statute refers to, or logically depends on, this provision, and to excise it is as simple as taking out a pencil and drawing a line.

We thus conclude that the portion of the death penalty statute found unconstitutional here is severable from the remainder of the statute. The majority does not indicate that it disagrees. B The majority, however, concludes that the statute without the fifth sentence of CPL 400.27(10) is unenforceable absent legislative action. The flaw in the statute shorn of the deadlock instruction, according to the majority, is that it does not affirmatively reassure jurors that a deadlock is a safe option. According to the majority, any jury instruction that is silent on the subject of the consequences of failure to agree is constitutionally forbidden because the court's silence may lead jurors to engage in "rank speculation about a defendant's eventual release into society" (Opinion at 52), and their speculation may in turn lead them to acquiesce in a verdict they would otherwise resist. The majority therefore holds that the State Constitution requires that a deadlock instruction be given. We find this, as we have said, an astonishing holding - - much more so than the holding, with which we disagree, that the deadlock instruction chosen by the Legislature is unconstitutional. In invalidating that instruction, the Court strikes down a very unusual, indeed unique, statute. But in holding that the Constitution affirmatively requires a different instruction and forbids a jury charge that is silent on the subject of deadlock, the Court invalidates a procedure that always has been and still is followed almost everywhere -- a procedure not only tested by time, but supported by weighty policy considerations. The majority's holding contradicts the view of the United States Supreme Court, and is supported by no precedent in this or any other jurisdiction. We perceive no basis for it except the majority's refusal to countenance any procedure in a capital case other than the procedure thought least likely to produce a death sentence. The practice of giving no anticipatory instruction on the consequences of a deadlock -- the practice the majority holds unconstitutional -- is the norm in this country. Outside the death penalty area, it is not unknown for the court's initial charge to mention that a hung jury will result in a retrial ( e.g. People v Casner, 20 Ill App 3 107, 312 NE2d 709 1974]), but silence on this subject is the general rule. In death penalty cases, some states follow the majority's preferred procedure of telling the jury that a deadlock on sentencing will have the same result as a verdict for a life sentence, but most do not. Of the 37 states besides New York that have capital punishment, we are aware of only eight that employ an anticipatory instruction about the result of a deadlock. In none of these states has it been held that the instruction was necessary as a [26] matter of due process. Five states have statutes requiring such a deadlock instruction, and courts in three states have adopted it in the [27] exercise of their supervisory powers. Courts in eleven other states, however, have declined to hold that a deadlock instruction should be [28] given. The states that refuse to tell capital sentencing juries that a deadlock is the equivalent of a life verdict have valid reasons for their choice. We have already mentioned those reasons, but they bear repeating. To say that a deadlock has the same result as a verdict of life is to invite a deadlock -- to tell every juror that he or she may, if so inclined, achieve a life sentence merely by ignoring the views of eleven other jurors. While hung juries are sometimes inevitable, it should not be the purpose or effect of a jury instruction to encourage them. Remaining silent about the consequences of deadlock encourages jurors to focus on their proper task -- agreeing, if possible, on a verdict satisfactory to all -and not on the possible advantages of achieving a breakdown in the system. This line of reasoning was given significant weight by the United States Supreme Court in Jones v United States (527 US 373 [1999]), where the Court squarely rejected the argument the majority accepts today. Jones arose under the Federal Death Penalty Act of 1994 (18 USC 3591 et seq), which, as interpreted by the Court, provided that if the jury could not agree on a sentence the court would impose a sentence of "life imprisonment without possibility of release." The statute did not, however, say that the jury must be told the consequences of a deadlock in advance, and the Court declined to impose such a requirement, either as a matter of constitutional law or in the exercise of its supervisory power over federal courts. The Court rejected the petitioner's constitutional argument in the following language: "The truth of the matter is that the proposed [anticipatory deadlock] instruction has no bearing on the jury's role in the sentencing process. Rather, it speaks to what happens in the event that the jury is unable to fulfill its role -- when deliberations break down and the jury is unable to produce a unanimous sentence recommendation. Petitioner's argument, although less than clear, appears to be that a death sentence is arbitrary within the meaning of the Eighth Amendment if the jury is not given any bit of information that might possibly influence an individual juror's voting behavior. That contention has no merit. We have never suggested, for example, that the Eighth Amendment requires a jury be instructed as to the consequences of a breakdown in the deliberative process. On the contrary, we have long been of the view that '[t]he very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves.' Allen v United States, 164 US 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896). We further have recognized that in a capital sentencing proceeding, the Government has 'a strong interest in having the jury express the conscience of the community on the ultimate question of life or death.' Lowenfield v Phelps, 484 US 231, 238, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) (citation and internal question marks omitted). We are of the view that a charge to the jury of the sort proposed by petitioner might well have the effect of undermining this strong governmental interest" [29] >(527 US at 382). The Court in Jones also declined to require an anticipatory instruction on the consequences of deadlock in the exercise of its supervisory power over federal courts. It noted that the New Jersey Supreme Court had exercised its supervisory power to require such an instruction in State v Ramseur (106 NJ 123, 304-315, 524 A2d 188, 280-286 [1987]), but found the views of the state courts that had decided otherwise more persuasive. The Court in Jones quoted with approval the comment of the Virginia Supreme Court in Justus v Commonwealth (220 Va 971 979, 266 SE2d 87, 92 [1980]), which noted that telling a jury that disagreement guaranteed a life sentence "would have been an open invitation for the jury to avoid its responsibility and to disagree." Jones was a 5-4 decision. The dissenters in Jones, however, did not say they disagreed with the majority on the issue that is relevant here -whether the Constitution requires an anticipatory deadlock instruction to the effect that a hung jury guarantees life without parole. The dissent expressly refrained from taking issue with the majority on the question: Justice Ginsberg said, "I . . . see no cause to dispute that 'the Eighth Amendment does not require that the jury be instructed as to the consequences of their failure to agree'" (527 US at 418, n 20). The Jones dissenters did not even express disagreement with the refusal of the Jones majority to require an anticipatory deadlock instruction as a matter of policy. (The basis for the dissent in Jones, insofar as it related to the deadlock issue, was that the instructions given in that case

had misled the jury.) In short, the practice that the majority here finds to be mandatory under our State Constitution failed in Jonesto gain the endorsement of any Justice. Nor does the majority's interpretation of the State's due process clause find the slightest support in New York history or precedent. The jury's role in New York capital sentencing goes back to 1933 -- not long before our present Constitution was adopted. Beginning in that year, juries in some capital cases were given the option of recommending leniency (L 1933, ch 773, 1, amendingPenal Law 1250 [allowing juries to make non-binding recommendation of prison sentence in kidnaping capital cases]; see Acker, New York's Proposed Death Penalty Legislation: Constitutional and Policy Perspectives, 54 Alb L Rev 515, 520 [1990]). Later statutes expanded the jury's role (L 1937, ch 67, 2, adding Penal Law 1045-a [allowing juries to make non- binding recommendation of life sentence in depraved mind and felony murder cases]; L 1963, ch 994, 1,2, amending Penal Law 1045, 1045-a [authorizing juries to make binding sentencing decisions in all types of first degree murder cases]; see Acker, supra, 54 Alb L Rev at 520, 523). None of these statutes, and no case decided under them, required that a capital jury be told that a deadlock would lead to life imprisonment. Nothing in New York law, before today, even hints that such a requirement might exist. There is in short no basis in precedent for the constitutional requirement the majority creates today. The majority's decision is based on nothing but its own policy judgment. It speculates about juror speculation, opining that the absence of a deadlock instruction might lead jurors to fear a defendant "on the streets" (Opinion at 52). This is, in our view, quite implausible. Why would a juror who is told nothing about the consequences of deadlock assume that, if the jury is unable to agree between the two choices of death or life without parole, the result will be defendant's return to society? The majority makes no attempt to answer this question. Yet the majority's fear of that possibility is the [30] sole basis on which it holds a statute enacted by the Legislature to be unenforceable. The majority declines to "craft" a new deadlock instruction, saying that "to do so would usurp legislative prerogative" (Opinion at 56). This deference to the Legislature is not just in sharp contrast to the approach taken in the rest of the majority opinion; it is probably illusory, for the majority's opinion seems to leave only one possible deadlock instruction for the Legislature to "craft." Logically, the only instruction that can eliminate the danger the majority is concerned about -- a juror's fear of the possibility of a defendant's release -- is one that tells the jury that no such possibility exists. Thus, it seems that the only deadlock instruction the majority would uphold is one that tells the jury that a deadlock would result in life without parole -- and that the majority is, in effect, telling the Legislature that the death penalty statute cannot [31] be enforced until such an instruction is enacted. Of course, a policy argument can be made for that instruction. Telling a jury that a deadlock will result in a life without parole sentence will indeed eliminate the possibility that the fear of a defendant's parole will motivate a recalcitrant juror to accept a death sentence. But by the same token, it will offer an incentive for juror recalcitrance. It tells each juror, in effect, that he or she may sit as a jury of one, and achieve a life without parole sentence by refusing to deliberate. In short, the Court's preferred instruction has both advantages and disadvantages, and it should be the Legislature's preference, not this Court's, which prevails. The majority would certainly not set the Legislature's wishes aside so readily in a non-capital case. The majority's premise is that, because of the unique severity and finality of a sentence of death, a defendant must be given every possible opportunity to escape from it. We do not criticize the majority's obvious discomfort with the death penalty -- indeed, we may share that discomfort. It is true that the death penalty is uniquely severe, and irreversible once carried out, and we recognize that its application is subject to many established constitutional limitations. But all these limitations, we believe, were scrupulously observed in the enactment of New York's death penalty statute. By devising a novel limitation -- a new constitutionally-required way of weighting the balance in the defendant's favor -- the majority has gone much further than anything in death penalty jurisprudence, or the principles underlying it, can justify. Today's decision, in our view, elevates judicial distaste for the death penalty over the legislative will. III Accordingly, we dissent from the conclusions of the majority that the provision of CPL 400.27 (10) for an anticipatory deadlock instruction is unconstitutional and that New York's death penalty statute is unenforceable pending further legislative action. Judgment modified by vacating the sentence and remitting to Supreme Court, Suffolk County, for resentencing in accordance with CPL 470.30(5)(c) and Penal Law 60.06 and 70.00 and, as so modified, affirmed. Opinion by Judge G.B. Smith. Chief Judge Kaye and Judges Ciparick and Rosenblatt concur, Judge Rosenblatt in a separate concurring opinion. Judge R.S. Smith dissents in an opinion in which Judges Graffeo and Read concur. Decided June 24, 2004 FOOTNOTES 1 On motion of the prosecution, the trial court dismissed the depraved indifference murder and second degree felony murder counts (counts three and four respectively) prior to trial. 2 We discuss only defendant's objection to Juror 16 but conclude that his objections to the other jurors are also without merit. We also reject defendant's arguments that the trial court failed to respond meaningfully to a juror note on intent, and inadequately inquired into the possible tainting of a sworn juror; that the trial court allowed important testimony in defendant's absence and then misled the jury to believe that defendant chose to be absent; that the trial court should have empaneled a new sentencing jury after the guilt phase; that defendant established a prima facie showing of discrimination against female jurors under Batson v Kentucky (476 US 79 1986]); that venue should have been changed ( see People v Cahill, 2 NY3d 14, 38 [2003]); that the trial court erroneously permitted joinder of the robbery count; and that the trial court should have allowed the jury to consider murder in the second degree (depraved indifference murder) as a lesser included offense of murder in the first degree, and to consider a jury charge of extreme emotional disturbance. John Doe and Richard Roe are fictitious names. Neither Doe nor Roe testified at trial. 4 Defense renewed the request on July 14 and July 30 and the court denied both requests. 5 Because of our conclusion on the deadlock issue, we need not address defendant's argument that the trial court wrongfully permitted him to forego mitigation evidence, the prosecution's arguments that the Legislature permitted but did not require a defendant to submit such

evidence and what, if any, constitutional problems might arise where the jury heard no mitigation evidence, even if an independent source, such as a probation department, could provide it. The statements, which had been sealed as a court exhibit, were unsealed on appeal. 7 For much the same reason we also conclude that the testimony of firefighters and police officers involved in the search was material. 8 We noted, "While prosecutors have wide berth to advocate for their case, there are limitations. Specifically, prosecutors 'should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant'" ( Harris, 98 NY2d at 492 n18 quoting People v Ashwal, 39 NY2d at 110). CPL 400.27(10) reads in part, "The court must also instruct the jury that in the event the jury fails to reach unanimous agreement with respect to the sentence, the court will sentence the defendant to a term of imprisonment with a minimum term of between twenty and twenty-five years and a maximum term of life." 10 Contrary to the People's contention, New York's deadlock provision is not similar to the provision upheld by the New Jersey Supreme Court in State v Ramseur (106 NJ 123 [1987]). The New Jersey statute provides that the jury must be "informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection b" (NJ Stat Ann 2C:11- 3[f]). In 2000, the New Jersey Legislature amended subsection b so that once a defendant is death-eligible, the alternative to death is life without parole, with life without parole also being the sentence upon a deadlock (2000 NJ Sess Lw Serv. Ch. 88, Senate No. 530).Thus, the jury can impose the deadlock sentence. The same is also true of two other states that inform jurors of the consequences of a deadlock ( see Mo Stat Ann 565.034[4]; Or Rev Stat 163.150[2][a]). 11 The researchers analyzed data compiled by the Capital Jury Project, a continuing research program of capital jurors' sentencing decisions in different states (77 Tex L Rev at 643, 717 n186). The participating states included California, Florida, Indiana, Kentucky, Pennsylvania, South Carolina, Texas, Virginia, Georgia, Louisiana, North Carolina, Tennessee, New Jersey and Alabama (Bowers, The Capital Jury Project: Rationale, Design, and Preview of Early Findings, 70 Ind L J 1043, 1062-72, 1078 n190-194 [1995]). 12 In contrast, in Texas the jury is asked to decide "whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" (Tx Crim Proc Code art. 37.071, 2[b][1]). The death penalty statutes of Oregon, Oklahoma, Virginia and Wyoming have similar provisions ( see Or Rev Stat 163.150[1][b][B][1999]; Ok Stat Ann tit 21, 701.12[7]; Va Code Ann 19.2-264.2; Wy Stat Ann 6-2-102[h][xi]). In most states, as in New York, future dangerousness plays no approved role. 13 "The only possible reason for having this cockeyed sentencing scheme -- and for insisting that capital jurors be informed of it -- is to put pressure on jurors in the minority holding out for life to switch to death so that the defendant is not made eligible for parole as a result of a nonunanimous verdict" (Liebman, The Overproduction of Death, 100 Colum L Rev 2030, 2118 n 215 [2000]). "Not wanting to risk the possibility of the defendant's release from prison twenty years hence, or believing that such a result would not be just, the jurors holding out for a sentence less than death may conclude that a capital sentence is the only acceptable alternative" (Acker, When The Cheering Stopped: An Overview and Analysis of New York's Death Penalty, 17 Pace L Rev 41, 133 [1996]). 14 In asserting that the "consequences of a deadlock are no part of a jury's proper concern" (Dissent at 2), the dissent seems to equate this case with every other criminal proceeding despite the fact that capital cases are anything but ordinary. The elaborate sentencing procedure the Legislature enacted empowers, and indeed requires, a capital jury to determine sentence, whereas in other criminal cases a jury is told specifically, pursuant to CPL 300.10, not to "consider or speculate concerning matters relating to sentence or punishment." The dissent distorts the Court's Opinion by arguing that it holds the deadlock provision is unconstitutional simply because it might work to the disadvantage of defendants. The truth is that the deadlock provision is unconstitutional because of the risk that it might coerce jurors into giving up their conscientious beliefs in order to reach a verdict. This risk deprives defendants of the well-established right to a fair trial under our case law and the State Constitution. 16 This point is also relevant to our discussion dealing with the infirmity of a statute that contains no deadlock instruction whatever (pp 52_56, infra). 17 See also Shaffer v South Carolina (532 US 36 [2001]). 18 According to the dissent, since the Supreme Court held that a defendant should be allowed to argue that he will not be eligible for parole if the state makes future dangerousness an issue, it follows that a state should be allowed to inform jurors that a defendant might be eligible for parole if they deadlock. New York did not make future dangerousness an aggravator. Thus, the jury should not focus on predicting defendant's future dangerousness. The jury should instead focus on determining whether life or death is the appropriate punishment. The problem is that the deadlock instruction is likely to preclude them from undertaking the appropriate inquiry. What Simmons says is that a state may not do one thing (provide that the alternative sentence to death is life without parole) and then argue another (that defendant will pose a future threat to society). 19 The dissent maintains that requiring an anticipatory deadlock instruction providing for a sentence of life imprisonment without parole could invite life-favoring jurors, who think a life sentence is appropriate, to hold out and create a deadlock, thereby thwarting the will of the majority jurors who wish to impose the death penalty. What the dissent ignores is that holdout jurors can affect the outcomes of jury actions in every sphere of our criminal justice system. If the deadlock sentence had been life without parole, then jurors would have no reason to fear that a deadlock would result in the eventual release of the defendant. In that instance jurors committed to life without parole would not be coerced into giving up their conscientious belief in order to reach a verdict. In the event of a deadlock, the sentence would at least be one that the jury considered. As it stands now, in the event of a deadlock, the defendant might receive a sentence that none of the jurors could have considered or might even have considered palatable. 20 See also Cooper v Morin (49 NY2d at 79 ["We have not hesitated when we concluded that the Federal Constitution as interpreted by the Supreme Court fell short of adequate protection for our citizens to rely upon the principle that that document defines the minimum level of individual rights and leaves the States free to provide greater rights for its citizens through its Constitution, statutes or rule-making authority"]). 21 See also brief of amicus curiae, the Cornell Death Penalty Project, submitted in People v Harris (, 98 NY2d 452). 22 Indeed, in People v Smith (, 63 NY2d 41, 79 [1984]), we declined to rewrite the death penalty statute to provide the constitutionallyrequired mitigating factors. Rejecting the Attorney General's proposal that the Court construe the death statute in a manner that would pass

constitutional muster, we found that this would be "wholly at odds with the wording of the statute and would require us to rewrite the statute" ( id.). We recognized that the court in United States v Harper (729 F2d 1216 [9th Cir 1984]) faced a similar dilemma. It held that the death penalty provisions in the federal Espionage Act could not "be saved by judicial formulation of the missing, but essential, statutory guidelines" finding that "the guidelines must come from Congress, not from the courts" ( id. at 1225-1226; see also State v Cline, 121 RI 299, 303 [1979]). 23 See the summary of practices in other jurisdictions at pages 18-19 below. 24 The majority suggests that studies of juror misconceptions about the time a defendant will actually serve, and the impact of those misconceptions on sentencing, show that this possibility is a likely one (Opinion at 32-33). But the studies the majority cites were done largely in states where courts or legislatures permit sentencing juries to consider the question of "future dangerousness." It is unsurprising that many jurors in these states may be preoccupied with the question of when the defendant will be released from prison, but the studies shed little light on what New York jurors will do in making sentencing decisions, and even less on how, if at all, they will be influenced by an anticipatory deadlock instruction. The practice under a prior New York death penalty statute was consistent with this principle. Former Penal Law 1045-a required that a sentencing jury be instructed on "the law relating to the possible release on parole of a person sentenced to life imprisonment" (L 1963, ch 994, 2 (10); see People v Dusablon, , 16 NY2d 9, 18 [1965]). We are aware of no authority suggesting that this requirement violated the State or Federal Constitution. 26 See Id Code 19-2525(7) (West 2004); Mo Ann Stat 565.030(4)(4) (West 2004); Or Rev Stat 163.150(2)(a) (West 2004); 42 Pa Cons Stat Ann 9711(a)(1), (c)(1)(iv) (West 2004); Wyo Stat Ann 6-2-102(b), (d)(ii) (West 2004). 27 See State v Williams, 392 So2d 619, 634-635 [La 1980]; Whalen v State, 492 A2d 552, 560 [Del 1985]; State v Ramseur, 106 NJ 123, 283284, 524 A2d 188, 310-311 [1985]. As the majority notes (Opinion at 54-55), these cases rely in part on cases interpreting the Constitution, but all of them, fairly read, rest on the supervisory power of the states' highest courts. The Louisiana, Delaware and New Jersey courts had no occasion to decide, and did not decide, that a death penalty statute would be unenforceable if it did not authorize an anticipatory deadlock instruction. 28 See State v Johnson, 298 NC 355, 369-370, 259 SE2d 752, 761-762 [1979]; Justus v Commonwealth, 220 Va 971 979, 266 SE2d 87, 92 [1980]; Houston v State, 593 SW2d 267, 278 [Tenn 1980],overruled on other grounds 836 SW2d 530 [upholding statutory prohibition against deadlock instruction]; State v Adams, 277 SC 115, 124, 283 SE2d 582, 587 [1981], overruled on other grounds, 305 SC 45, 406 SE2d 315; Whisenhant v State, 482 So2d 1225, 1236- 1237 [Ala Crim App 1982], affd in part, 482 So2d 1241 1983]; Calhoun v State, 297 Md 563, 595, 468 A2d 45, 60 [1983], cert denied, 466 US 993 [1984]; Stringer v State, 500 So2d 928, 945 [Miss 1986]; People v Kimble, 44 Cal 3 480, 514-515, 749 P2d 803, 824-826, cert denied, 488 US 871 [1988] [relating to state's 1977 statute]; Fox v State, 779 P2d 562, 574 [Okla Crim App 1989]; Nobles v State, 843 SW2d 503, 508-509 [Tex Crim App 1992]; Fugate v State, 263 Ga 260, 263, 431 SE2d 104, 108 [1993]. 29 The Court pointed out in Jones, 527 US at 382 n 6, that arguments similar to the petitioner's had previously been rejected by federal appellate courts in four circuits and accepted by none ( seeCoe v Bell, 161 F3d 320, 339-340 [6th Cir 1998]; Wein v French, 143 F3d 865, 890 [4th Cir 1998]; United States v Chandler, 996 F2d 1073, 1088-1089 [11th Cir 1993]; Jones v United States, 132 F3d 232, 245 [5th Cir 1998]). 30 The majority says that "the studies previously cited indicate" that the kind of juror speculation it foresees is likely to occur (Opinion at 51). But those studies indicate nothing of the kind. The studies are concerned with juror attitudes toward a verdict of life or death and show nothing about the extent to which juries anywhere speculate about the consequences of a deadlock, when they are not told what those consequences are. 31 The majority's logic also requires that the jury have the option of imposing a life without parole sentence. If, by rejecting a death sentence, the jury would make the defendant's future release on parole a possibility, then that possibility might influence some jurors to vote for death. The majority's logic thus implies that every Supreme Court Justice was wrong to say, in Simmons, that a jury may be given accurate information to the effect that a defendant will be eligible for parole in the event of a life sentence ( see p 9 above). <& /nyctap/inclusions/footer.htm &>

THIRD DIVISION [G.R. No. 148327. June 12, 2003] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENATO DESALISA Y PAYOS (At Large) and ROMEO DESALISA Y PAYOS, accused, ROMEO DESALISA Y PAYOS, accused-appellant.
DECISION PUNO, J.:

One usual drinking spree on the night of July 7, 1996 in Carmona, Cavite turned into a bloody mess for Richard Oracion, a 40-year-old construction worker who bled to his untimely death due to multiple stab wounds. On review is the Decision of the Regional Trial Court of Bacoor, Cavite in Crim. Case No. B-97-33, dated April 30, 1999, finding appellant Romeo Desalisa y Payos guilty beyond reasonable doubt of the crime of murder, and imposing upon him the penalty of imprisonment of reclusion perpetua. In an Information dated January 13, 1997, accused Renato Desalisa y Payos and Romeo Desalisa y Payos were charged with the crime of Murder, committed as follows: That on or about July 7, 1996 in the Municipality of Carmona, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, then armed with a bolo, conspiring, confederating and mutually helping one another, with intent to kill, with treachery and evident premeditation and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously, attack, assault and stab one RICHARD ORACION y LOPEZ with the use of said bolo, thereby inflicting upon the latter multiple stab wounds on the different parts of his body which caused his instantaneous death, to the damage and prejudice of the heirs of said Richard Oracion. CONTRARY TO LAW. Appellant Romeo Desalisa y Payos pleaded not guilty to the offense charged and was tried for the crime of murder, while coaccused Renato Desalisa y Payos remained at-large throughout the duration of the trial. Accused Renato Desalisa and Romeo Desalisa are brothers. The victim Richard Oracion is their neighbor at Silverio, Cabilang Baybay, Carmona, Cavite. The evidence for the prosecution shows that at around 5:50 p.m. of July 7, 1996, the victim and some of his co-workers, including accused Renato and one named Teddy had a drinking spree in front of the victims house at the Silverio Compound, Cabilang Baybay, Carmona, Cavite. Later, the victim escorted Teddy to the latters home nearby. Renato followed suit. Ladella, the victims wife, also joined them at Teddys house where the drinking continued. While drinking, the victim and Renato had a heated exchange of words regarding each others capability to do each others job, they being co -workers at the Fil[3] Estate. Before the argument could turn for the worse, Renato went home. In his mothers house, he called Madge Oracion, the victims son, on the pretext that he would place his bet in a numbers game called ending. Once Madge was inside the house, Renato did not place any bet. Instead, he twisted Madges arm who managed to free himself from Renatos grip. Immediately, Madge reported to the victim the incident. Enraged, the victim with his wife rushed to Renatos mothers house and confronted Renato. Armed with a bladed weapon, Renato suddenly came out of the house and stabbed the victim in the stomach. A few [4] moments later, accused Romeo joined the fray and stabbed the victim at his back. Severely injured, the victim ran away but was followed by Renato and Romeo who continued hitting him with their weapons. Ladella who rushed to the help of her husband was likewise hacked by Romeo, hitting her between her eyes and on [5] her right hand. As Romeo was poised to hit Ladella again, she ran for safety and found refuge in the house of a certain [6] Shirley, thus leaving the helpless victim to the mercy of Renato and Romeo. They were later joined by another brother Ramon [7] who continued ganging up on him. Ladella shouted for help but nobody came to her aid. She looked for her husband as she lost sight of him when she ran [8] away. She found him later sprawled on the ground behind their house. Someone helped her bring her husband to the [9] Pagamutang Bayan in Carmona where he was pronounced dead on arrival. Dr. Erwin Escal who conducted the post-mortem examination on the body of Richard testified that the victim died due to hypovolemic shock secondary to multiple stab wounds. The victim suffered from blood loss caused by the stab wounds which produced the shock that led to his death. The multiple stab wounds and hacking wounds caused the fatal injuries sustained by the victim, especially those that penetrated his abdominal cavity, liver, intestines and their blood vessels. He deduced that two different instruments, a bolo and a knife, were used in inflicting the blows, judging from the size, shape and depth of the wounds sustained. He also called as defense wounds those found in the upper extremities of the victim, i.e., palm and forearms, and [10] opined that these came from a frontal attack and the victims parrying of the blows of the assailant. The autopsy report by Dr. Escal, dated July 8, 1996, reveals that the victim sustained one abrasion and 21 stab wounds inflicted through the use of bladed [11] weapons. The defense presents a different version, which is as follows: Guadalupe Payos Desalisa, mother of the accused, was inside her house with her son Renato. Richard and his wife Ladella, together with their son Madge, suddenly appeared and were shouting. Guadalupe, followed by Renato, met Richard at the
[2] [1]

door. In an instant, Richard drew a bolo from his back and thrusted the same towards Renato. To prevent his mother from being [12] hit, Renato pushed her but her head hit a chair and she lost consciousness. At that same time, appellant Romeo was in his own house attending to their children when he heard shouts coming from the outside. He went outside and saw Renato and Richard arguing in front of his mothers house. With his wife Myrna, they immediately proceeded to his mothers house. On their way, they met Pedro Diaz alias Payat, brother of Ladella, together with a certain Egay. As Diaz and Romeo drew near, Diaz swung his bolo towards Romeo who was able to wrest the same from Diaz. Romeo threw the bolo in his yard, and proceeded to his mothers house. Upon reaching and finding no one in his mothers house, Romeo and his wife went back home. Romeo was later arrested at around 7:00 p.m., that same evening of July 7, [13] 1996. The defense assails the trial courts judgment of conviction. It argues that there were two (2) incidents that simultaneously occurred on July 7, 1996 at Silvestre Compound, Cabilang Baybay, Carmona, Cavite, at about 6:30 p.m. The first is the killing of Richard Oracion allegedly committed by accused Renato Desalisa who remains at-large as of the conclusion of the trial, and second is the altercation between accused-appellant Romeo Desalisa and Pedro Diaz. The defense submits that accusedappellant did not participate in the killing of Richard Oracion because at nearly that same time, he was defending himself from [14] Pedro Diaz. The Solicitor General, on the other hand, counters that accused-appellant Romeo Desalisas guilt has been sufficiently established by the positive testimony of two (2) eyewitnesses. These two (2) eyewitnesses are the victims wife Ladella Oraci on [15] and their son, Madge Oracion. Appellant Romeo Desalisas defense is that of denial. In support of his defense, he alleged that he was inside his house when the incident happened. He said he was then preparing milk for his children when he heard noises coming from outside his house. He immediately went out of the house and proceeded to his mothers house where he saw Renato and Richard engaged in an argument at the front door. While on his way to his mothers house, Pedro Diaz blocked his path and attempted to hack him with a bolo. He wrestled the bolo away from Diaz and threw it in his yard and proceeded to his mothers house. Nobody was there when he reached it. This Court has consistently held that positive identification cannot be overcome by alibi and denial. In the case at bar, two (2) relatives of the victim, namely his wife Ladella and his son Madge, have positively identified appellant Romeo and accused Renato as the ones who attacked, hacked and stabbed the hapless victim to death. No evidence was presented showing illmotive on the part of Ladella and her son to point to Romeo as one of the perpetrators of the crime charged. In the absence of a [17] proof of improper motive, their testimonies are not affected by their relationship to the victim. Relationship of the prosecution [18] witnesses to the victim does not necessarily categorize the former as biased and interested and thus tarnish their testimonies. In fact, the witnesses relationship to the victim makes their testimonies even more reliable. It is highly doubtful that the wife and son of the victim would aid in the prosecution of the appellant simply because they wanted someone, i.e., anyone, to answer for the murder of their loved one. Indeed, it can not be lightly supposed that relatives of the victim would callously violate their [19] conscience to avenge the death of a dear one by blaming it on persons whom they believe to be innocent thereof. The continuing case law is that for the defense of alibi to prosper, the accused must prove not only that he was at some other place when the crime was committed, but also that it was physically impossible for him to be at the scene of the crime or its [20] immediate vicinity through clear and convincing evidence. In the instant case, appellant was admittedly within the immediate vicinity of the place of the crime. He was in his house when the incident happened, and that he immediately went out when he heard the noises coming from his mothers house. It was at this time when the hapless victim was stabbed and hacked to death. On cross-examination, he stated that when he went out of his house, he saw Ladella Oracion, wife of the victim, coming out from his mothers yard and shouting for help. He was then more or less eleven (11) meters away from where he saw [21] Ladella. Thus, it was not physically impossible for him to be at the place of the crime and commit it. His alibi must fail. The defense also makes much fuss of the alleged inconsistent and contradictory statements of prosecution witness Ladella Oracion. It impugns the credibility of witness Ladella, and argues that she is capable of telling a lie a s shown in the discrepancy between her affidavit and testimony on the identities of the persons engaged in the argument during their drinking spree, whether they were the victim and Renato, or Teddy and Renato; and her alleged inconsistent statements during her cross-examination on [22] which hand, right or left, made a thrust when accused-appellant hacked her. These alleged discrepancies dwell on minor and trivial matters which do not impair the integrity of the evidence for the prosecution as a whole nor reflect on the honesty of the [23] witness. They can even enhance the truthfulness of her testimony as they erase any suspicion of it being rehearsed. We likewise uphold the ruling of the trial court that the killing was attended by treachery as the victim was caught unaware of the unexpected attack by the two accused. The attack was sudden and the victim was unable to defend himself. The victim sustained twenty-one (21) stab wounds. Of these wounds, wound no. 9 penetrated the right lobe of the liver; wound no. 10 penetrated and severed the liver and stomach; and wound no. 11 penetrated and severed the intestines and their blood [24] vessels. In addition, as shown in the chart prepared by Dr. Erwin M. Escal who conducted the autopsy, the victim sustained injuries not only in the frontal area but at the back of the body as well, particularly wounds nos. 4, 5, 6, 7 and 8. The victim also sustained injuries at the back of his left arm (wounds nos. 18 and 19) and at the back of both legs (wounds nos. 21 and 22). Ladella Oracion testified that while Renato was frontally assaulting the victim with a bladed weapon, Romeo was stabbing the [25] victim at the back. Hence, it was clearly impossible on the part of the victim to defend himself. The circumstance of taking [26] advantage of superior strength is absorbed in treachery.
[16]

Likewise, the trial court is correct in ruling that the qualifying circumstance of evident premeditation, as alleged in the [27] Information cannot be appreciated because of the absence of direct evidence of planning and preparation to kill the victim. We come to the award of damages. We reduce the award of the trial court from P42,500.00 to P19,050.00 because it is only [28] the latter amount which is supported by receipts. The total amount of P19,050.00 consisted of P16,300.00 for funeral services (Loyola de Mesa Funeral Parlor), P2,400.00 for interment services (South Felipe Parish Cemetery), and P350.00 for church [29] services (South Felipe Parish Church). Lastly, we reduce the award of moral damages and civil indemnity from P100,000.00 [30] to P50,000.00 each. IN VIEW THEREOF, the decision of the Regional Trial Court of Bacoor, Cavite in Crim. Case No. B-97-33, dated April 30, 1999, finding accused-appellant Romeo Desalisa y Payos guilty beyond reasonable doubt of the crime of murder, and imposing upon him the penalty of imprisonment of reclusion perpetua, there being no aggravating nor mitigating circumstances, is hereby AFFIRMED with the MODIFICATION that the accused-appellant is ordered to pay the heirs of the victim the amounts of P19,050.00 as actual damages, P50,000.00 as moral damages, andP50,000.00 as civil indemnity ex delicto. SO ORDERED. Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.