Facts:

Petitioner was arrested for vagrancy, without a warrant of arrest, by Patrolman Arturo Palencia. Thereafter, petitioner was brought to Precinct 2, Manila, where he was booked for vagrancy and then detained therein together with several others.

The following day, during the lineup of five (5) detainees, including petitioner, complainant Erlinda B. Bernal pointed to petitioner and said, “that one is a companion.” After the Identification, the other detainees were brought back to their cell but petitioner was ordered to stay on. While the complainant was being interrogated by the police investigator, petitioner was told to sit down in front of her.

Soon, an information for robbery was filed against the petitioner.

Eventually, petitioner was arraigned. Thereafter, hearings were held, the prosecution formally offered its evidence and then rested its case.

Petitioner, by counsel, instead of presenting his defense, manifested in open court that he was filing a Motion to Acquit or Demurrer to Evidence. Petitioner filed said Motion predicated on the ground that the conduct of the line-up, without notice to, and in the absence of, his counsel violated his constitutional rights to counsel and to due process.

The respondent court issued the following order (assailed in the petition at bar) denying the Motion to Acquit:

For resolution is a motion to acquit the accused based on the grounds that the constitutional rights of the said accused, to counsel and to due process, have been violated. After considering the allegations and arguments in support of the said motion in relation to the evidence presented, the Court finds the said motion to be without merit and, therefore, denies the same.

The hearing of this case for the purpose of presenting the evidence for the accused is hereby set

Hence, the instant petition.

Petitioner contends that the respondent judge acted in excess of jurisdiction and with grave abuse of discretion, in issuing the assailed order. He insists that said order, in denying his Motion To Acquit, is null and void for being violative of his rights to counsel and to due process.

Issue: Whether or not petitioner was denied the right to counsel.

Ruling: NO

The 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 of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation, for the commission of an offense.

Any person under investigation must, among other things, be assisted by counsel. The above-cited provisions of the Constitution are clear. They leave no room for equivocation. Accordingly, in several cases, this Court has consistently held that no custodial investigation shall be conducted unless it be in the presence of counsel, engaged by the person arrested, or by any person in his behalf, or appointed by the court upon petition either of the detainee himself, or by anyone in his behalf, and that, while the right may be waived, the waiver shall not be valid unless made in writing and in the presence of counsel.

As aptly observed, however, by the Solicitor General, the police line-up (at least, in this case) was not part of the custodial inquest, hence, petitioner was not yet entitled, at such stage, to counsel.

 Since petitioner in the course of his Identification in the police line-up had not yet been held to answer for a criminal offense, he was, therefore, not deprived of his right to be assisted by counsel because the accusatory process had not yet set in. The police could not have violated petitioner’s right to counsel and due process as the confrontation between the State and him had not begun. In fact, when he was Identified in the police line-up by complainant he did not give any statement to the police. He was, therefore, not interrogated at all as he was not facing a criminal charge. Far from what he professes, the police did not, at that stage, exact a confession to be used against him. For it was not he but the complainant who was being investigated at that time. He “was ordered to sit down in front of the complainant while the latter was being investigated”. Petitioner’s right to counsel had not accrued

Given the clear constitutional intent in the 1973 and 1987 Constitutions, to extend to those under police investigation the right to counsel, this occasion may be better than any to remind police investigators that, while the Court finds no real need to afford a suspect the services of counsel during a police line-up, the moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous 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.

On the right to due process, the Court finds that petitioner was not, in any way, deprived of this substantive and constitutional right, as he was duly represented by a member of the Bar. He was accorded all the opportunities to be heard and to present evidence to substantiate his defense; only that he chose not to, and instead opted to file a Motion to Acquit after the prosecution had rested its case. What due process abhors is the absolute lack of opportunity to be heard. 11 The case at bar is far from this situation.

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