"That on or about April 16, 1993, at about 2:30 in the afternoon, more or less, at Buntong, Camaman-an, Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, and with grave abuse of confidence, did then and there wilfully, unlawfully and feloniously and by means of violence, take, rob and carry away P30.00/cash money to the damage and prejudice of the offended party (Florentino Bolasito); that on the occasion of the said robbery and for the purpose of enabling them (accused) to steal, take and carry away the P30.00 money, the herein accused, in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously, and with evident premeditation and taking advantage of their number and strength and with intent to kill, accused Orlando Labtan, y Daquihon, alias Bebot Labtan and Jonelto Labtan, treacherously attack, assault and use personal violence upon Florentino Bolasito thereby inflicting upon him the following injuries: "Shock due to multiple stab wounds heart", with the use of a (sic) knives/bladed weapon which accused are conveniently provided, which directly caused the death of the said Florentino Bolasito.

"Contrary to and in violation of Article 299 and 249 of the Revised Penal Code."

"That on March 28, 1993, at more or less 10:30 o’clock in the evening while inside a motor vehicle in the national highway at Barangay Agusan up to the road at Camaman-an, all of Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Court, the above-named with intent to gain and against the will of the owners, by means of violence against and intimidation of persons, or force upon things with the use of knives which they were conveniently provided with, conspiring, confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously and criminally take, rob and carry away money or cash amounting to P720.00, pioneer stereo, booster and twitters owned by and belonging to Roman S. Mercado, and a Seiko Diver wristwatch owned by Ismael P. Ebon, all in all amounting to P10,800.00, against their will, to the damage and prejudice of the said offended parties in the total sum of P10,800.00 Philippine Currency.

"Contrary to and in violation of PD 532."

"Preliminary: You Henry Feliciano y Lagura, I would like to inform you that you are here in [the] Theft and Robbery Section of Cagayan de Oro City Police Station to be investigated regarding an incident wherein a certain driver whose name is Florentino Bolasito, a resident of Abellanoso St., of this City (sic). Said driver was killed on April 13, 1993, whose body was found at Tipolohan, Camaman-an of this City since you knew everything about it.

I would like to inform you that according to our law you have the following rights:

1.…….You have the right to remain silent, and not to answer incriminating questions which will be used as evidence against you.

2.…….You have the right to choose an attorney to defend you in this investigation.

3.…….That if you can’t (sic) get a lawyer, I can give you a counsel de officio to defend you.

Certification

This is to establish the fact that I myself voluntarily executed this certification and hereby affix my signature hereunder on the ____ day [of] April, [1993 in the] City of Cagayan de Oro, Philippines.

Q:......Tell me your name, age, occupation, residence and other personal circumstances? Ncm

A:......On March 1993, I participated in a hold-up of a certain driver Mr. Roman Mercado5 [Should have been translated as "x x x I participated in the hold-up of the driver of Mr. Roman Mercado x x x," as per original.] of Tablan who owned a jeep I use[d] to drive (before) and we got a car stereo including the jeep. Then, we brought the jeep to Buntong, Camaman-an and the driver, however, we freed the driver later.

A:......On March 1993 we hold-up (sic) a collector of my brother whose name is Carmen Tan y Feliciano6 [Should have been translated as "collector of my sister Carmen Tan x x x," as per original.] and we were able to get cash of P2,080.00; [a]nd, there was also [a] certain jeep, owned by Mr. Mangano that we carnapped and brought (it) to Aglayan, Malaybalay, Bukidnon.

A:......On April 16, 1993, at 2:30 in the afternoon, I, Bebot Labtan an Jonelto Labtan [were] hang[ing] around outside Ororama Superstore at J.R. Borja St., of this City, and the three of us went to a place where most of PU Minica cars were parked. We were able to board one PU Minica driven by an old man. Sdaamiso

A:......No more, sir. Sdaad

"WHEREFORE, premises considered, this court hereby finds accused Henry Feliciano guilty beyond reasonable doubt as principal by direct participation in the crime of robbery with homicide and hereby sentences the accused to reclusion perpetua and to indemnify the offended party the sum of P50,000.00 and to pay the offended party the sum of P35,000.00 representing funeral expenses and to pay the cost. Suprema

This court hereby finds also the accused Henry Feliciano guilty beyond reasonable doubt of the crime of highway robbery committed on March 28, 1993 and sentences the accused to an indeterminate penalty of twelve (12) years of prision mayor as the minimum term to fourteen (14) years, eight (8) months of reclusion temporal in its minimum period as the maximum term and to indemnify Roman S. Mercado the sum of P8,000.00, representing the value of the P700.00 cash, stereo, booster, and twitter and to indemnify Ismael Ebon the sum of P2,500.00, the value of the Seiko Wrist watch divested from him and to pay the cost.

"SO ORDERED."11 [Id, pp. 113-114.]

ON THE CHARGE OF ROBBERY WITH HOMICIDE, THE COURT A QUO ERRED IN ADMITTING IN EVIDENCE, THE TAINTED EXTRA-JUDICIAL CONFESSION OF THE ACCUSED EXECUTED IN THE ABSENCE OF AN EFFECTIVE AND VIGILANT COUNSEL.

ON THE CHARGE OF HIGHWAY ROBBERY, THE COURT A QUO ERRED IN BELIEVING THE COMPLAINANT DRIVER WHO, IT TURNED OUT, FROM THE POLICE BLOTTER, SAID THAT THE PERPETRATORS WERE INITIALLY UNIDENTIFIED PERSONS THEN LATER IDENTIFIED ACCUSED FELICIANO WHOM HE KNEW VERY WELL AS A FELLOW DRIVER.

THE COURT A QUO ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIMES OF ROBBERY WITH HOMICIDE AND HIGHWAY ROBBERY.

"(1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible against him." Juris

"Historically, the counsel guarantee was intended to assure the assistance of counsel at the trial, inasmuch as the accused ‘was confronted with both the intricacies of the law and the advocacy of the public prosecutor.’ However, as the result of the changes in the patterns of police investigation, today’s accused confronts both expert adversaries and the judicial system well before his trial begins (U.S. v. Ash, 413 U.S. 300, 37 L Ed 2d 619, 93 S Ct 2568 [1973]). It is therefore appropriate to extend the counsel guarantee to critical stages of prosecution even before the trial. The law enforcement machinery at present involves critical confrontations of the accused by the prosecution at pre-trial proceedings ‘where the result might well settle the accused’s fate and reduce the trial itself to a mere formality.'"

"[T]he right to counsel attaches upon the start of an investigation, i.e. when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent/accused. At such point or stage, the person being interrogated must be assisted by counsel to avoid the pernicious practice extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense. The moment there is a move or even urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or inocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel."

x x x Scjuris

Q:......All that time in the morning of April 22, 1993 the accused was not assisted by a legal counsel. Jurissc

A:......No more. In the afternoon Atty. Chavez was the one who came to our office because that was what we agreed in the morning."14 [TSN, Alfonso Cuarez, March 4, 1994, pp. 12-14.]

"in the investigation conducted to (sic) Henry Feliciano, he admitted and confessed to us for (sic) his involvement of (sic) the death of the PU driver together with his companion Bebot Labtan, and the same was identified by many victims of robbery hold-up in this City. And also during the investigation, Henry Feliciano admitted to us regarding their confiscated bladed knife as the very weapon used in the stabbing of the PU minica driver."

"Atty. Pepito Chavez Misjuris

Q:......When you arrived at the Operation Kahusay ug Kalinaw, who were there? Jjlex

A:......Alfonso Cuarez was there listening to us. Newmiso

A:......Alfonso Cuarez told him that is it really his desire … we are giving you Atty. Chavez as your counsel. Are you willing? And he said yes. Acctmis

Q:......While these questions were asked of Henry Feliciano, as you testified as series of robberies were committed, what did you do? What was your reaction? Misact

A:......The same location at that time when Henry Feliciano was taken his confession (sic)."16 [TSN, Atty. Pepito Chavez, April 20, 1994, pp. 3-11.]

"necessarily and logically [requires] that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent."

"one who can be made to act in protection of his [accused’s] rights, and not by merely going through the motions of providing him with anyone who possesses a law degree.

"Again, about the only matter that bears out the presence of such counsel at that stage of custodial interrogation are the signatures which she affixed on the affidavit. Withal, a cursory reading of the confession itself and SPO1 Atanacio’s version of the manner in which he conducted the interrogation yields no evidence or indication pointing to her having explained to the appellant his rights under the Constitution. Indeed, from our earliest jurisprudence, the law vouchsafes to the accused the right to an effective counsel, one who can be made to act in protection of his rights, and not by merely going through the motions of providing him with anyone who possesses a law degree."

A:......Sometimes we pay him P400.00 but if we have none, he will assist for free. Sppedsc

"It is noteworthy that the modifiers competent and independent were terms absent in all organic laws previous to the 1987 Constitution. Their addition in the fundamental law of 1987 was meant to stress the primacy accorded to the voluntariness of the choice, under the uniquely stressful conditions of a custodial investigation, by according the accused, deprived of normal conditions guaranteeing individual autonomy, an informed judgment based on the choices given to him by a competent and independent lawyer.

"Thus, the lawyer called to be present during such investigation should be as far as possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused’s behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would merely be giving a routine, peremptory and meaningless recital of the individual’s constitutional rights. In People v. Basay, this Court stressed that an accused’s right to be informed of the right to remain silent and to counsel ‘contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle.’

"Ideally, therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) ‘should be engaged by the accused (himself), or by the latter’s relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition. Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many areas, the relationship between lawyers and law enforcement authorities can be symbiotic.’"

"[T]he counselling given by Atty. Dizon to Villareal was not sufficiently protective of Villareal’s rights as an accused as contemplated by the Cosntitution. To start with, Atty. Dizon is not really known to Villareal. He was requested to act as counsel because he happened to be at the NBI following-up a client’s case. Given that circumstance, it cannot be expected that Atty. Dizon would give an advice to Villareal that would offend the agent conducting the investigation. Thus, it appears that Atty. Dizon did no more than recite to Villareal his constitutional rights. He made no independent effort to determine whether Villareal’s confessions were free and voluntary. x x x . He did not inquire from Villareal how he was treated in the last 24-hours. He did not seek any of Villareal’s relatives or friends to find out if he has any defense which Villareal was not free to disclose due to his confinement.

"Atty. Dizon’s lack of vigilance as a counsel is likewise underscored by the fact that he himself testified that Villareal gave his confession under the impression that he was only a witness and not an accused in the case. This revelation should have jolted Atty. Dizon and should have driven him to exert extra efforts to find out whether Villareal was tricked in making his confession. Again, he did not take an extra effort."

"(s)uch counsel cannot in any wise be considered "independent" because he cannot be expected to work against the interest of a police agency he was hoping to join, as a few months later he in fact was admitted into its work force. For this violation of their constitutional right to independent counsel, appellants deserve acquittal. After the exclusion of their tainted confessions, no sufficient and credible evidence remains in the Court’s records to overturn another constitutional right: the right to be presumed innocent of any crime until the contrary is proved beyond reasonable doubt.

"Perfunctorily informing a confessant of his constitutional rights, asking him if he wants to avail of the services of counsel and telling him that he could ask for counsel if he so desires or that one could be provided him at his request, are simply not in compliance with the constitutional mandate. In this case, appellant Canape was merely told of his constitutional rights and posthaste, asked whether he was willing to confess. His affirmative answer may not, by any means, be interpreted as waiver of his right to counsel of his own choice."

"[T]he stereotyped ‘advice’ appearing in practically all extrajudicial confessions which are later repudiated has assumed the nature of ‘legal form’ or mode. Police investigators either automatically type it together with the curt ‘Opo’ as the answer or ask the accused to sign it or even copy it in their handwriting. Its tired, punctilious, fixed and artificially stately style does not create an impression of voluntariness or even understanding on the part of the accused. The showing of a spontaneous, free and unconstrained giving up of a right is missing."

"Section 2. Rights of Persons Arrested, Detained, or Under Custodial Investigation; Duties of Public Officers.

(a)......Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.

(b)......Any public officer or employee, or anyone acting under his oath or in his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer.

(c)......The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. Calrspped

(d)......Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouses, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.

(e)......Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by the person in the presence of his counsel; otherwise such waiver shall be null and void and of no effect.

(f)......Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. The person’s immediate family shall include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward."

"CASE NO. 2143 dated 0030 H 29 March 93. Ismael Ibon y Petalcorin, 27 m(sic), of Reyes Bugo, CDO, driver of PUJ Bugo Liner bearing Plate No. KBJ-748, and Christopher Impoc y Amba, 16, s(sic), of Zone 4, Tablon, this City, jointly came to this OKK-CIS and reported that they were allegedly victimized by two unidentified robbers who was (sic) armed with a (sic) knives and taken from the possession of the above driver his cash money P700.00 and took our stereo Pioneer Brand with Booster and twitter. The incident was (sic) occurred at Agusan, this City, and the suspect was desembarked (sic) at Camaman-an, this City at 10:30 p.m., this date."28 [TSN, Ruben Salcedo, December 6, 1995.]