Republic of the Philippines

REGIONAL TRIAL COURT

6TH Judicial Region
Branch 68
P. D. Monfort North, Dumangas, Iloilo
PEOPLE OF THE PHILIPPINES,
Plaintiff,

CRIM. CASE NO. 05-2878

FOR: MURDER

---Versus--DANTE PADERNILLA, ET AL.,

Accused.
X - - - - - - - - - - - - - - - - - - - - -X
Accused ROGER C. DUTERTE [Duterte, for brevity], by counsel, respectfully submits
his
MEMORANDUM
on why a verdict of ACQUITTAL is just and proper.
I. FACTS OF THE CASE
TIMELINESS: On __________, the Honorable Court issued an order that
parties should simultaneously submit their memoranda within ______ days from said
date. Therefore, last day for submission is on ______________.
This is a case for Murder, defined and punished under Art. 248 of the Revised
Penal Code.
Accused Duterte applied for admission to the Witness Protection Program
(R.A. 6981) and to be utilized as state witness. On 3 April 2008, his application was
approved by the Dept. of Justice, but was eventually denied by this Honorable Court.
Meanwhile, prosecution presented their evidence to prove the charge. After
which, prosecution made its formal offer of exhibits, viz:
Exhibits: A, with sub-markings --- Certificate of Death;
XXX.
On May 11, 2009, this Honorable Court issued an Order (machine copy hereto
attached as ANNEX 1) resolving the Demurrer to Evidence filed by Perez, the fallo
of which reads:
WHEREFORE, in view of the foregoing, accused Fernando
Ikog Perez is hereby ordered ACQUITTED for insufficiency of
evidence against him.
Page 1 of 8
Memorandum for the accused

For his part, accused Duterte did not anymore present any evidence to prove
his defense (par. b, sec. 11, Rule 119). Convinced that there is insufficiency of
evidence against him as may be culled from the above-mentioned May 11, 2009
ORDER (Annex 1) of this Honorable Court.
II. I S S U E
Whether or not the guilt of accused Duterte was proved beyond reasonable
doubt.
III. A R G U M E N T S
Prosecution contents that prosecutions witness, Meliton Iniego, saw accused
Normilito Edobingo, Dante Padenilla, and ROGER Duterte in the house of accused
Perez (now acquitted), is no strong indication that they were in conspiracy in the
commission of the crime charged. Unless shown, which the prosecution miserably
failed to do, that accused Duterte had participated in the actual commission of the
crime in killing the victim, he cannot be held criminally liable. Even the presence of a
person at the crime scene, while the crime was actually being committed by others,
does not make him a conspirator. A persons mere passive presence at the crime
scene does not make him a conspirator. (People vs. OTAYDE, et al., G.R. No.
140227, 28 Nov. 2003, En Banc) [See also last par. of p. 2, ORDER, hereto attached
as Annex 1]
Granting, ex gratia argument, without admitting, that prosecutions witness
Meliton Iniego indeed saw accused Normelito Edobingo, Dante Padernilla, and
ROGER Duterte inside the house of Fernando Ikog Perez, one of them was holding
a firearm, he however never heard what they were talking about and did not even
give the particular date or dates when he saw these persons. It is also to be noted
that there was not even a scintilla of proof showing that the gun being referred to was
the murder weapon. One cannot simply assume or make a suspicion or resort to
innuendo or supposition as to what was discussed by the above-named persons.
Thus, evidence giving rise to mere conjectures, surmises, or suspicion of guilt is not
sufficient to warrant a conviction. Jurisprudence has established that even the
Supreme Court may review and at times reverse and set aside factual findings of
both the trial court and the CA in the following cases: (1) when the findings are
grounded entirely on speculation, surmises or conjectures; xxx. (Manila Electric Co.
vs. Wilcon Builders Supply, Inc., G.R. No. 171534, June 30, 2008, 3 rd Div.)

Page 2 of 8
Memorandum for the accused

Noteworthy is the fact that of the several witnesses for the prosecution it was
only Meliton Iniego who made mention of the name of Duterte.
Courts must judge the guilt or innocence of the accused based on facts, not
on mere conjecture, presumption, surmises, or suspicion. While no formal agreement
is necessary to establish conspiracy, it must be established by clear and convincing
evidence. Even if all the malefactors joined in the killing, such circumstance alone
does not satisfy the requirement of conspiracy because the rule is that neither joint
nor simultaneous action is per se sufficient proof of conspiracy. (People vs. Dugan,
499 SCRA 64) Mere companionship does not establish conspiracy. (Sampua vs.
Angana, 499 SCRA 410; Astudillo vs.. People, 509 SCRA 302) To establish
conspiracy, evidence of actual cooperation, rather than mere cognizance or approval
of an illegal act is required. (Angeles vs. Desierto, 501 SCRA 202) Conspiracy must
be established by positive and conclusive evidence and cannot be based on mere
conjectures. (Bernardino vs. People, 506 SCRA 237). [See also par. 2 of p. 3,
ORDER, hereto attached as Annex 1]
The prosecution realized that the testimony of Meliton Iniego linking Duterte to
the crime is very much insufficient to establish the guilt of Duterte as the same was
merely conjecture, surmises, or presumption. It tried to make a big deal with the
Sinumpaang Salaysay executed by Duterte. However, the Hon. Court in its 12
January 2009 ORDER (attached hereto as ANNEX 2) had already declared that it
was inadmissible in consonance with the last paragraph of Sec. 17, Rule 119,
Revised Rules of Criminal Procedure, viz:
Xxx. If the court denies the motion for discharge of the
accused as state witness, his sworn statement shall be
inadmissible in evidence.
[See also par. 2 of p. 4, ORDER, hereto attached as Annex 1]
Prosecution, in its last ditch effort to nail Duterte, also tried to utilize the
alleged counter-affidavit, supplemental affidavit, and addendum to the counteraffidavit allegedly executed by accused, now acquitted, Fernando Ikog Perez
(Perez, for brevity) to establish the guilt of the accused. But lo and behold! Those
were not formally offered in evidence. This case, decided by the Hon. Supreme Court
is very edifying and enlightening:
CANDIDO ET AL. vs. C.A. ET AL.
G.R. No. 107493, Feb. 1, 1996
Page 3 of 8
Memorandum for the accused

A document, or any article for that matter, is not

evidence when it is simply marked for identification; it must be
formally

offered,

and

the

opposing

counsel

given

an

opportunity to object to it or cross-examine the witness called

upon to prove or identify it. A formal offer is necessary since
judges are required to base their findings of fact and judgment
only and strictly upon the evidence offered by the parties at the
trial. To allow a party to attach any document to his
pleading and then expect the court to consider it as
evidence may draw unwarranted consequences.
By the way, the subject addendum to the counter-affidavit allegedly executed by Ikog
Perez was attached by the prosecution as Annex A in their opposition to the
Demurrer to Evidence that was filed by Perez. The latter was never put on the
witness stand to identify the said addendum and of course, was never crossexamined. Therefore, it is hornbook principle that the same was mere hearsay and
therefore has no probative value. [See also par. 2 of p. 4, ORDER, hereto attached
as Annex 1]
The following cases decided by the Hon. Supreme Court are very
enlightening, vz:
FLORES ET AL. vs. LOFRANCO
(A.M. No. P-04-1914, 2008 Apr 30, 2nd Division)
The failure of the petitioners counsel to put [the affiant]
on the stand is fatal to the case of petitioner and renders the
affidavit inadmissible under the hearsay rule.

Affidavits are

classified as hearsay evidence since they are not generally

prepared by the affiant but by another who uses his own
language in writing the affiants statements, which may thus be
either omitted or misunderstood by he one writing them.
Moreover, the adverse party is deprived of the opportunity to
cross examine the affiant.

For this reason, affidavits are

generally rejected for being hearsay, unless the affiant

themselves are placed on the witness stand to testify thereon.
TIN vs. PEOPLE, 10 August 2001
While hearsay evidence may be admitted because
of lack of objection by the adverse partys counsel, it is
nonetheless without probative value. [Citing De la Torre vs.
Page 4 of 8
Memorandum for the accused

Court of Appeals, 294 SCRA 196, 204 (1998).] [Emphasis

supplied.]
CAA vs. GEBUSION, 30 March 2000
It is quite fundamental that hearsay testimony or
evidence, whether objected to or not, has no probative
value and cannot be given credence. (Citing People vs.
Damaso, 212 SCRA 547; People vs. Villaviray, et al., G.R. No.
105084, Sept. 18, 1996). [Emphasis supplied.]
PHILIPPINE REALTY HOLDINGS CORPORATION,
---versus--FIREMATIC PHILIPPINES, INC.
G.R. No. 156251, 27 April 2007
3rd Division
Well-entrenched is the rule that a private certification is
hearsay where the person who issued the same was never
presented as a witness.

The same is true of letters. While

hearsay evidence may be admitted because of lack of objection

by the adverse partys counsel, it is nonetheless without
probative value. Stated differently, the declarants of written
statements pertaining to disputed facts must be presented at
the trial for cross-examination. The lack of objection may make
an incompetent evidence admissible, but admissibility of
evidence should not be equated with weight of evidence.
Indeed, hearsay evidence whether objected to or not has no
probative value.
It is not also amiss to note that the police blotter (Exh. E) is mere hearsay
and has no probative value.
People vs. Quinciano et al.
[GRN 106282 January 20, 2000]
As to the police logbook which was presented in
evidence to prove the contents thereof, we have held that
entries in the police blotter should not be given undue
significance or probative value, as they do not constitute
conclusive proof of the truth thereof. [Santiago v. Court of
Appeals, 295 SCRA 334, 354 (1998)]
Entries in police blotters, although regularly done in the
course of the performance of official duty, are not conclusive
proof of the truth stated in such entries and should not be given
Page 5 of 8
Memorandum for the accused

undue significance or probative value because they are usually

incomplete and inaccurate. Sometimes they are based on
partial suggestion or inaccurate reporting and hearsay,
untested in the crucible of a trial on the merits. [People v.
Padlan, 290 SCRA 388, 401 (1998); People v. Paragua, 257
SCRA 118, 124 (1996)]]

In criminal trials, principles and tenets have developed and come to be

embraced in every enlightened society, such as ours. Among which, is that the guilt
or innocence of a person accused of some wrong shall be determined not by passion
or prejudice, neither hearsay nor rumor. They should be determined by such pieces
of evidence as the universal experience of mankind accepts as satisfactory proof of
facts. Those pieces of evidence must be presented in accordance with procedures
that best conduce to full and free ventilation of a controversy and ultimately to a just
and fair decision. Admittedly, we are fortunate that in the course of time and in the
full realization of human wisdom, definite rules and standards for conducting trials
and hearings, as well as for determining all questions of evidence, including
questions of its materiality, relevancy, and competency have been formulated and
met with general acceptance in democratic countries, such as ours. In our country,
we do not convict the accused on suspicion, surmises, presumption, or mere
conjectures. In the Philippine court of justice where we practice democracy and
democratic justice, we do not try cases on hunches. We try our cases on sound,
reliable, decent evidence and on nothing else.
The Constitution guarantees to every person the fundamental right to due
process and other inviolable human rights. Foremost of which is that the quantum of
evidence required for the conviction of the accused in a criminal trial is proof beyond
reasonable doubt.
IN DUBIIS REUS EST ABSOLVENDUS. All doubts should be resolved in
favor of the accused.
IV. C O N C L U S I O N
Since the prosecution failed to establish the participation of accused Duterte in
the killing of the victim, the constitutional presumption of his innocence was not
overcome.
Page 6 of 8
Memorandum for the accused

This case reiterates a hornbook doctrine in criminal law, viz:

PEOPLE vs. HILARIO OPONG y TAESA
(G.R. No.177822, 2008 Jun 17, 3rd Division)
The evidence for the prosecution must stand or fall on its own
merits and cannot draw strength from the weakness of the
evidence for the defense.(Citing People v. Mangitngit, G.R. No.
171270, 20 September 2006, 502 SCRA 560, 572)
The prosecution, at all times, bears the burden of establishing the guilt of the
accused beyond reasonable doubt --- no matter how weak the defense maybe, it is
not and cannot be the sole basis of conviction if, on the other hand, the evidence for
the prosecution is even weaker, the accused may offer no more that a fable of alibi,
but the Court is enjoined to proclaim him innocent in light of insufficient evidence
proving his guilt. (People vs. Salidaga, 513 SCRA 306). In fact, accused may not
even offer any evidence that would prove his innocence, to reiterate: the burden rests
on the shoulder of the prosecution. For convenience and expediency, we have
hereunto reproduced particular portion of the Rules of Criminal Procedure, viz:
Rule 119, Sec. 11. Order of trial --- xxx.
(a) The prosecution shall present evidence xxx.
(b) The accused may present evidence to prove his defense
xxx. [Emphasis supplied]
Anent all the foregoing, the only just and fair conclusion is for the acquittal of
accused ROGER C. Duterte for insufficiency of evidence against him. [See also last
par. of p. 4, ORDER, hereto attached as Annex 1]
V. PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Court that a judgment of ACQUITTAL for accused ROGER C. Duterte be
rendered in the above-captioned case. Other relief and remedies, just and equitable,
are likewise being prayed for.
Respectfully submitted.
Iloilo City, for Dumangas, Iloilo, Philippines.
Date: __________

ATTY. ALPHA BRAVO

ROLL NO. 50173, 30 MAY 1999
MCLE Compliance No. V: Cert. No. 1693
Page 7 of 8
Memorandum for the accused

Issued on 3 March 2014

IBP (Iloilo) No.941517 , 12/27/13
PTR NO. 4395732~ 12/27/13 , ILOILO CITY
RESIDENCE:
NO. 147 JALANDONI ST., ILOILO CITY
NOTE: This is simultaneous submission so that prosecution was no longer
furnished copy of this Memorandum.

Page 8 of 8
Memorandum for the accused