'I won the freedom of Tausug Army major'

Another triumph of justice:

'I won the freedom of 

Tausug Army major'

"I won the freedom of a Tausug Army major." 

This was the first set of words that shouted out of the mind of this blogger after receiving text messages of his client, Army Major John-John I. Badar.

I thought this was another birthday gift to me by God.

Major Badar, already 17 years in the service whose last assignment was in the province of Isabela, was unlucky to have been pointed to by Army Captain Orlando Gil Marquez as the person who shot the latter on the back.

The brief facts

About 7:10 p.m. of 21 November 2014, Captain Marquez had just stepped out of the government quarters where he has been living inside Fort Bonifacio, Taguig City when he was shot hitting him on his back.  

The gun burst was muffled most probably because of a silencer.   Captain Marquez fell forward. 

Lt. Col. Ferdinand B. Rondina was at that time standing and smoking at the next door, a position that was obliquely viewed from where Captain Marquez fell.  In reaction, Lt. Col. Rondina thought that Captain Marquez tripped down while making a step forward, prompting him to say on Capt. Marquez: "Natisod ka bok!"

Upon hearing Capt. Marquez shout that he was shot and upon seeing him he was writhing in pain and asking for help, Lt. Col. Rondina came to the rescue and almost bodily carried Capt. Marquez to the kitchen door of the quarters occupied by Lt. Col. Rondina.

Immediately, Lt. Col. Rondina checked the body of Capt. Marquez until blood was seen the latter's back.  Lt. Col. Rondina instructed Capt. Lachich, who happened to be sharing quarters with Rondina, to call an ambulance and the Military Police to rush the victim to a hospital and to cordon off the area for possible arrest of the culprit. 

Major Badar was not seen in the scene. 

On 24 November 2014, when Captain Marquez was already out of danger, he signed his affidavit where he claimed that he saw Major Badar beside him and telling him, "Tapos ka na."  While he was being attended to by Rondina, Marquez claimed that he told Rondina that he saw Badar pointing a gun on his back.

In the affidavit of Rondina executed on 24 November 2014 he did not say that Marquez told him that Marquez saw Badar.  In the subsequent affidavit of Rondina, he said later that he asked Marquez who was the latter's suspect and that Marquez told him, "Badar."

It would turn out in the analyses of this blogger that Captain Marquez was only gotten better by his jealousy, hatred and motive to take revenge on Badar.

On 22 November 2014, the Military Police of Fort Bonifacio took the statements of Major Badar although it was a violation of the Constitutional right to take statements of persons accused of doing a crime if the taking was not assisted by the counsel of the accused.  In his affidavit, Badar stated that about the same time he was eating dinner at the Army Hospital inside Fort Bonifacio and thereafter he claimed his laundry clothes.

Major Badar was arrested on 24 November 2014 upon the order of Colonel Arevalo, the commanding officer of the Headquarters and Headquarters Support Group (HHSPG) of the Philippine Army in Fort Bonifacio.  He has been detained at the Philippine Army Custodial Center (PACC) until 12 December 2014.

The fight for freedom

On 8 December 2014, this blogger as the lawyer of Badar wrote the letter complaint addressed to the top Provost Marshall of the Philippine Army, complaining about the continuous detention of Badar for at least 15 days on that day when until that time no charges had been filed against Badar.  

Specifically, that letter-complaint complained about the continuous inaction by the provost marshal of the HHSPG, PA, that was already disgusting because it was already 15 days and yet no charges have been filed.

Humbly aside, that letter articulated the analyses that it was high improbable for Major Badar to have been seen by Captain Marquez and that the act of the latter in naming Major Badar was only an act of revenge, jealousy and hatred.

On 12 December 2014, this blogger followed up the letter with Col. Benedicto Jose, the top provost marshal of the Army all over the country.  The Provost Marshal assured this blogger that he had read the blogger's letter and that Badar will be released unconditionally.  Col. Jose stressed the importance of freedom as a Universal Human Right even of the soldiers and the issue of whether the investigation by the HHSPG provost marshal can proceed without detaining Badar.  Upon hearing those words of Col. Jose, Major Badar stood up and saluted Col. Jose, told the latter that he had now come to believe again in the justice system of the Court Martial; while saying this tears welled down the eyes of Major Badar.

Indeed, Major Badar sent text messages expressing extreme joy talking about his freedom.

If the readers are so minded, they can read the long letter analyzing the circumstances in relation to the claims of the victim and witnesses, which letter is as follows:

Causing Sabarre Castro pELAGIO

Unit 1, No. 2368 J. B.  Roxas Street corner Leon Guinto Street, Malate, Manila

Emails: totocausing@yahoo.com, berteni.causing@gmail.com; Tel: +632-3105521

8 December 2014

COL. BENEDICTO M. JOSE (MNSA)

Provost Marshal of the Philippine Army

Maj. Gen. Delos Reyes Bldg.,

Fort Bonifacio, Taguig City

SUBJECT:

COMPLAINT FOR EXTREME VIOLATION

OF 72-HOUR DETENTION CLAUSE &

APPEAL FOR IMMEDIATE RELEASE OF

MAJOR JOHN-JOHN I. BADAR, 0-13000 (CAV) PA

Dear Colonel,

The undersigned writes on behalf of his client Major JOHN-JOHN I. BADAR, 0-13000 (CAV), PA, who has been DETAINED FOR 15 DAYS NOW,  since 24 November 2014, at the Philippine Army Custodial Center, Headquarters and Headquarters Support Group, Philippine Army, Fort Bonifacio.

The Post Provost Marshal of Headquarters and Headquarters Support Group, PA, has never filed any charge sheet or spefication of charges against Major Badar.

In fact, in answer to the letter of the undersigned dated 26 November 2014 inquiring on the status of the investigation supposedly being conducted and requesting for copies of the affidavits of the supposed complainant and witnesses, the Commander of the HHSG, PA, through Adjutant Maj. (Inf.) Noel A Gacasan, wrote the undersigned a letter dated 1 December 2014 informing that “an ongoing investigation on the matter is being conducted by the Post Provost Marshal of this Headquarters.”

A copy of the letter sent by the undersigned to the Commander of HHSPG, PA is attached hereto as ANNEX “A.”  A copy of the response of the Commander of HHSPG dated 1 December 2014 is attached hereto as ANNEX “B.”

Earlier, the undersigned intimated that he will resort to the filing of a petition for a writ of habeas corpus. But he held off and decided to give the Post Provost Marshal (PPM) of HHSPG an opportunity to wrap up their “ongoing” investigation while the client, Major Badar, has remained in detention.   

Today, however, the waiting has become exceedingly disgusting.    The undersigned is informed that the maximum detention is only Seventy-Two (72) hours or three (3) days.

In the light of the foregoing, the undersigned is requesting the Army Provost Marshal to intervene and order the immediate release of Major Badar.   

The undersigned assures that Major Badar will not run away from whatever charge and will face the charge in case one is filed later.  

Just to stress the point, the undersigned is expressing his willingness to risk his license as a lawyer for the release of Major Badar upon his recognizance, one of the modes by which a person in detention may be freed temporarily while the case is ongoing.  

After all, the investigation that the PPM may be undergoing at this time can continue unhampered while Major Badar is out of detention.

The honorable Army Provost Marshal is hereby informed that the PPM has gathered the affidavits of the complainant, the affidavits of two witnesses who are vital because of the circumstance that they were at the scene of the shooting incident when it happened, and the affidavit of Major Badar. 

All these affidavits were already in the possession of the PPM on 2 December 2014, when the last affidavit, that of Captain Orlando Gil Marquez, was taken by the MP.

The shooting incident occurred at 7:10 p.m. on 21 November 2014 at the OCS Liaison Office inside HHSPG. 

From that day until today, or exactly 15 days, it is already unreasonable that the PPM has not yet come up with any determination of whether to charge Major Badar.

The undersigned as a lawyer respects so much the right of the complainants to complain.  

But there is also an equal obligation on the part of the PPM to consider the harshness caused by every day of detention.  

Liberty has no price.  Every minute of lost freedom can never be recovered: No amount of money can buy it back.  How much worse is it if the detention without any reason because of lack of charge has reached 15 days?

Before proceeding, please be apprised that Major Badar was arrested by the Military Police upon the order of Colonel Arevalo.   A copy of the Commitment Order signed by Major Noel A. Cagasan in the name of Colonel Arevalo is attached hereto as ANNEX “C.”

With due respect, the evaluation by the undersigned of all the affidavits gathered thus far by the PPM showed that these are insufficient to form a prima facie showing or engender a belief of probable cause that most likely Major Badar is guilty of frustrated murder or frustrated homicide committed against Captain Marquez.

It necessarily follows that the PPM has no case.  As such, the most prudent thing to be done is to release Major Badar.

Evidence gathered show

no prima facie case or

no probable cause

The conclusion that there is no prima facie showing or no probable cause by the undersigned can be clearly seen in the analyses below.

First, it is undisputed that Captain Marquez executed his affidavit on 24 November 2014, when he was already sure he was safe from the bullet that he claimed hit him on his back.  (Until now no medical certificate of Capt. Marquez has been presented, which should have been a basic duty of an investigator).

Second, it is undisputed that his wife, Janice Janoras Marquez, executed her affidavit on 2 December 2014.

Third, it is undisputed that Lt. Colonel Ferdinand B. Rondina executed on 24 November 2014 his affidavit before Captain Sherwin WS Guidangen, of 191st Military Police Battalion, HHSG.

Fourth, it is also undisputed that moments before Captain Marquez was shot on the back of his body, Lt. Col. Ferdinand B. Rondina was standing right at the door of the next building while smoking and eyes looking at the edge of the open space in front of the door of the house of Captain Marquez.    

The spot where Rondina was standing was the kitchen door of his quarters at the OCS Liaison Building (refer to the sketch below).

Fifth, it is undisputed that the vantage point from where Rondina was standing afforded him wide horizon to see if there was any person who walked to the door of Marquez from the right of the open space between the house of Marquez and the house where Rondina was standing.  (Look at the sketch below).

To give better understanding, let the sketch of the place with annotations as to the positions of Captain Marquez and Lt. Col Rondina just before the alleged shooting incident took place.

Sixth, it is undisputed from the affidavit of Lt. Col. Rondina that he saw nobody coming to the house of Marquez from the time he stood at the kitchen door of his quarters until such time that he saw Marquez fall like stumbling onto something that it looked like Marquez was tripped down.

Seventh, it is undisputed that it was Rondina who was the one who was the first to come to the rescue of Marquez.

Eighth, it is also undisputed that Lt. Col. Rondina never said in his affidavit that Marquez told him that Badar shot Marquez.

Ninth, it is also undisputed in his affidavit that Marquez claimed that he saw Badar at his left pointing gun on his back and yet Marquez never shouted the name of Badar at the time he was shot on his back.

Tenth, it is undisputed that in the affidavit of Marquez he stated the name of Major Badar only after he was repeatedly questioned by Lt. Col. Rondina, a matter that Col. Rondina never mentioned in the latter’s affidavit.

Eleventh, it is undisputed that the affidavit of Marquez is full of statements that evoke jealousy, hatred and envy of Marquez against Badar, particularly the incident narrated by Marquez where he said he was slapped by Badar in front of Military Police personnel who responded when he and Badar had an encounter over the niece of Marquez where Marquez got angry over the comment made by Major Badar that the chicken being fried by the niece was thin but delicious.

Twelfth, in her separate affidavit, Janice Janoras Marquez, the wife of Marquez, was together with him inside their house at OCS Liaison Bldg. from the time Marquez arrived at their house until Marquez went out to borrow glue from the adjacent building occupied by Lt. Col. Rondina.

Thirteenth,  in her affidavit, Janice said that her husband arrived at their home at 7:00 p.m. of 21 November 2014 while Captain Marquez said in his own affidavit that he arrived at their house at 6:45 p.m. of the same day.

Fourteenth, Janice stated in her affidavit that she never saw Badar and never entertained any suspicion that Badar could be the one who shot her husband but confirmed the happening of an incident where Badar slapped Captain Marquez.

The affidavit of Captain Marquez is attached hereto as ANNEX “D” series.

The affidavit of Lt. Colonel Rondina is attached hereto as ANNEX “E.”

The affidavit of Janice Janoras Marquez is attached hereto as ANNEX “F.”

After establishing the undisputed facts and presenting the sketch of the scene of the incident, let each sworn statement of Marquez be analyzed in relation to the sworn statements of Lt. Col. Rondina and Janice Marquez.

In the statement given by Captain Marquez on 24 November 2014, when three (3) days already lapsed, Marquez narrated that at 6:45 p.m. he was preparing cards for National Defense Secretary Voltaire Gazmin, for the secretary’s birthday that occurred on 22 October 2014 and  for advance Christmas greeting.

He said that while working on the greeting cards, Captain Marquez ran out of glue. After his wife told him she had no more glue, Captain Marquez said that he went out of the quarters that served as their home at the OCS Liaison Bldg.

In going out, Captain Marquez narrated in his sworn affidavit that he went out to ask for glue from next-door neighbor Lt. Col. Ferdinand B. Rondina.   From his separate affidavit, Lt. Col. Rondina was already standing at the kitchen door of his own quarters in the same place called OCS Liaison Bldg.

As he went out, Captain Marquez stated in his sworn statement, to wit:

14. Na pagbukas ko ng pintuan at paglabas ko, I observe sa paligid na walang tao, at pagkakita ko walang tao. Paghakbang ko ng kaliwang paa at nasa labas na ako, hinila ko ang door knob para i-lock ko pa lang, nang biglang dumating si MAJ BADAR sa left side ko;

15.        Na pagdating sa akin, napatingin ako sa kanya at sinabihan ako na “Tapos ka na”, sabay tutok ng baril sa likod ko, at pumutok agad ng mahinang putok;

Let us specifically consider first the claim of Captain Marquez that he was shot on his back.

If indeed the bullet hit Marquez’s back, it is very much unlikely for him to see who shot him.  This is the law of nature of man: that no man can see who is at his back. 

Now, the Rules of Evidence looks with disfavor at claims of the happening of an event that is not consistent with the nature of man.     Even if true, it is abnormal by the standards of ordinary man’s habit.    Every normal person reacts in similar way to a stimulus or a set of stimuli.    

As example, if one suddenly finds self being poked with gun, the natural reaction is to raise hands with open palm in surrender and doing otherwise is something that needs a credible explanation why it happened in an unnatural manner.     This is also referred to as the “experience of mankind” or “ordinary habit of life” rule.

Otherwise stated, the law on judicial notice takes notice that every normal person behaves in the manner what a normal person is expected to react to a set of circumstances.   

It also takes judicial notice of the law of nature such as the fact that every man has no eyes behind his back to be able to perceive what happened behind him.  

For one to see who was behind his back needs a credible explanation, like an explanation that the man or woman in the front was actually glancing at or looking at a mirror so he or she can see the person behind his or her back.

And if a person claimed the happening of an incident that is improbable to be believed in, under the ordinary habit of life or improbable by the law of nature of man, the claimant has the burden of proof to show that indeed the improbable happened. 

To clearly understand the points to be raised on this score, the sketch above is presented here again to get a clear idea of how could the claim of Captain Marquez be possible.

The sketch:

Look at the sketch and follow the following descriptions. 

“Two things” theory

For a start, Captain Marquez claimed he opened the door of his home at the OCS Liaison Bldg.   Then he stepped out and observed the surroundings.   These “surroundings” mean the “open space” in the left, front and the right of the door of the quarters where Marquez was living.

From his affidavit, he said he saw no one.  So he closed the door and stepped forward.    Because Marquez said nobody was seen in the open space and that as soon as he closed the door the gunman was already close to his left side, it means it was only a split of second, or a flick of two fingers, that it happened that the gunman was already at the left of Marquez.

And because Marquez said nobody was seen in the open space, it means that the culprit could be hiding behind the fence in the left of the house occupied by Marquez.  It was also possible that the culprit could come from the right of the door but had to pass through another open space visible to Lt. Col. Rondina who at that time was already standing at the kitchen door of his own quarters while smoking a cigarette.

Analyzing the sketch, there were only two places from where the gunman could have emerged:  (a) from the fence that is three (3) meters away; and (b) from the right of the door passing through another open space to the next building of the OCS Liaison Bldg. But visible to Lt. Col. Rondina.

But it is not physically possible for a person to emerge from outside the fence to get to the side of Marquez – in only a split of a second.  

It does not imagining that more than a second is needed to scale the fence at the left of the house of Marquez.  It also needed more than a second to run from the spot where the fence stands up to the spot where the door knob of Marquez is located.   This is a distance of about three (3) meters.    These are physical science that can be taken of judicial notice.

Take note that the “door knob” was taken as the reasonable assumption as the spot where the assailant could have stood up to be at the left side of Marquez.    This is because Marquez did not specify in his sworn statement as to what was the position of his body when he closed the door.

It is possible for the assailant to have come from the right side of the door.   But this possibility is negated by the fact that Lt. Col. Rondina could see the assailant who would come from the open space adjacent to the quarters of Rondina.   Additionally, Lt. Col. Rondina stated in his affidavit that from the time he stood at his kitchen door he did not see anybody going to the door of Marquez until Rondina saw Marquez slumping down face-down.

If the two possibilities are not possible to happen after showing the foregoing physical analysis due to the fact it was impossible to happen in a split of a second, it means “two things”: (1) that the assailant was actually standing behind the fence where the area was filled with bushes and leaves in waist-deep; and (2) Marquez did not see his assailant because it was dark behind that fence and dim in front of his door.

For the purpose of this letter, permit the undersigned to call the same as “two things” defense of Major Badar.

What supports these “two things” defense? 

“Natisod”

First, the admission of Marquez and the confirmatory statement of Lt. Col. Rondina support this “two things” theory.

Captain Marquez claimed in his affidavit that he fell to the direction toward the quarters of Rondina.  

Rondina said he saw Captain Marquez as if tripping down upon his impression Captain Marquez merely stumbled on and fell forward.

This means that Captain Marquez was shot with a .45 caliber from a distance of three (3) meters, enough for the bullet to have power to push his body down for him to fall due to imbalance.  That far distance was sufficient for Captain Marquez not to see his attacker.

Now, obviously, the gun used had a silencer attached to the barrel because all witnesses were in agreement that they could barely hear a “tsug” sound.  

In fact, Lt. Col. Rondina said at first that he did not hear any sound of a gunburst, the reason that he said it was his impression that Captain Marquez merely got tripped down or, in his words, “natisod.”

And if Captain Marquez was “natisod”, it means that Captain Marquez’s body went off balance because of the still-present knocking power of the gun fired from at least three (3) meters away.

“Gun with silencer”

The undisputed fact that the gun used had a silencer supports further the “two things” theory.

If a gun has a silencer its knocking power is lessened.

So that it is unlikely for a physical science to happen that a man can be pushed to fall down forward when hit by a .45 bullet from a gun whose silencer is fired from a very, very close range with only one inch separating the muzzle of the silencer and the part of the body in the back of Captain Marquez.

The only way to cause Captain Marquez to fall down when hit by a .45 bullet is for the gun with a silencer to be shot from a range of at least three (3) meters.

This physics therefore contradicts the claim of Marquez that he saw the culprit right to his left and shot him on his back.

Rather, it becomes more credible to say that the gunman was not beside Captain Marquez but from a distance of at least three (3) meters and the likeliest position for firing was from the fence at the right wall of the government quarters used by Captain Marquez as his temporary home.

“Shoot to the  temple”

Another circumstance that is a piece of evidence supporting the theory of “two things” is the fact that Captain Marquez was not shot on the temple or on his head.  These spots of the human body are the surest way to shoot in order to kill.

So that if indeed the person to his left was hellbent on killing Captain Marquez, that culprit must have placed the muzzle of the silencer on the temple or the head of Marquez in order to ensure death for Captain Marquez.

The placing of the muzzle of the silencer on the head or temple of a victim can be done only by the culprit if the shooter is right beside the victim.

And the fact that the shooting to the temple or head did not happen, it means that the shooter must be far from Captain Marquez.

“No ante-mortem statement

In Rondina Affidavit”

Any witness to a shooting incident who did not know yet who the shooter is does not tamper with his testimony.

Lt. Col. Rondina was interviewed by the Military Police personnel who responded to the scene of the crime.   He never told any MP soldier that Captain Marquez made an “ante-mortem” statement.

Because he did not know yet who was the person being pointed to by Captain Marquez, it is without doubt that Lt. Col. Rondina was a neutral and very credible witness.

And if Lt. Col. Rondina was neutral at the time MP personal and ambulance personnel arrived at the scene of the crime, and at that time Lt. Col. Rondina was still gripped by a startling occurence of res gestae, it was highly improbable for him to lie and not to divulge that Captain Marquez made an ante-mortem statement saying that itwas Major Badar who shot Marquez.

Now, what does it bring here if Captain Marquez alleged in his affidavit that he whispered to Lt. Col. Rondina that Major Badar shot him?

This statement of Captain Marquez, saying that he whispered to Lt. Col. Rondina who was the assailant, cannot be given belief considering the fact that Captain Marquez was already out of danger when the same affidavit was taken from him on 24 November 2014.  The shooting incident occurred on 21 November 2014.

Additionally, if indeed he saw Major Badar shooting him, Captain Marquez as an infantry officer experienced in battles could have shouted immediately the name of Major Badar as the one who shot him.

Rather, the first set of words uttered by Captain Marquez based on his affidavit were: “Sir Rondina, Sir binaril ako at may tama ako sa likod.”

This statement is an evidence against the claim of Captain Marquez that he made an ante-mortem statement pointing to Major Badar as the assailant who shot him on the back.  

This is because this is again contrary to human experience.  Any shooting victim who saw the assailant personally known to that victim will always shout in reaction by shouting the name of the assailant.

Just to stress this point, the enire sworn statement of Lt. Col. Rondina is hereby reproduced, to wit:

NA NOONG, ika 21 ng November 2014, humigit kumulang ika/alas 7:10 P.M. habang ako po ay nagsisigarilyo sa OCS Liaison Office sa pintuan po ng kusina ay nakita ko po si CPT ORLANDO C. MARQUEZ 0-13926 (INF) PA lumabas ng government quarters nya at sya ay natumba sa harap ng paningin ko. Ang sabi po ni CPT MARQUEZ to quote “binaril ako” ang sabi ko naman sa kanya ay baka kako natisod ka lang Bok pero sagot po ni CPT MARQUEZ sa akin ay binaril talaga sya at doon ako nag duda kasi me narinig naman talaga ako ng putok pero hindi gaano ka lakas medyo mahina ang putok. Ang ginawa ko po sya ay hinila ko pa punta sa pintuan kung saan ako naka tayo para e rest ko po ang katawan nya at sabi nya sa akin to quote “Sir huwag mo ako iwanan” Ng sandal po rin iyun si Mrs Janice Marquez (asawa ni CPT MARQUEZ) at ang bunsong anak po nila na lalaki ay lumabas din para alamin ano ang nangyari kay CPT MARQUEZ.

Ng sandali rin na iyun ako naman tinitingnan ko ang paa nya or sa tiyan kung me tama ba talaga ng baril pero wala naman ako nakita na duguan sya at nag sabi si CPT MARQUEZ sa akin to quote “Sir tingnan mo ang likod ko at yun din talaga ang gagawin ko. Ng nahawakan ko ang likod ni CPT MARQUEZ at me dugo ang kanang kamay ko at duguan din ang likod ni CPT MARQUEZ ay agad sinabihan ko si MAJ GARY V. LACHICA (AGS) PA sya din po ay naka billet sa OCS I.sn Office as transient na tumawag sa FBGH upang mag pa dala ng ambulance para madala agad si CPT MARQUEZ sa hospital at saka tumawag din sya sa Military Police para po e secure ang area.

              Ang ambulance car at ang mga Military Police (MP) at mga intelligence operatives ay dumating naman agad dito sa OCS Liaison Office cguro bandang 7:25 P.M. at agad pina higa sa stretching bed at kinarga sa Ambulance car para dalhin si CPT MARQUEZ sa FBGH.

              Yung bumaril po kay CPT MARQUEZ ay hindi ko po nakita kasi madilim po ang paligid nung sya ay binaril dahil nakapatay po ang perimeter lights nila sa labas ng gov’t quarters ni CPT MARQUEZ.

              Na ang salaysay na ito ay kusang loob kong ginawa sa abot ang aking nalalaman at bilang patotoo ay akin nilagdaan ngayong ika 24 November 2014.

By the way, an ante-mortem statement or “dying declaration” is one uttered by a person at the point of death.  Because Captain Marquez did not die, there is no such thing as “dying declaration” that can be considered.

The requisites for this statement to be admitted in evidence are: (1) that at the time of the declaration death was imminent to the person making the declaration and that he was conscious of that fact of being in point of death; (2) that the declaration pertains to the cause and surrounding circumstances of such death; (3) that the declarant was competent to testify on the facts contained by that declaration; (4) that the declarant died; and (5) the declaration is offered in a criminal case where the declarant’s death is the subject of inquiry.

The requisite “that the declarant died” is not present in the instant case. 

So that the allegation of Captain Marquez that he whispered to Lt. Col. Rondina that Major Badar shot him can never be admitted in evidence as a dying declaration or ante-mortem statement.

To be clear, let this pronouncement of the Supreme Court in the case, People vs Ramil Peña, GR No. 133964, February 13, 2004, be said, to wit:

The requisites for the admissibility of dying declarations have already been established in a long line of cases.  An ante-mortem statement or dying declaration is entitled to probative weight if: (1) at the time the declaration was made, death was imminent and the declarant was conscious of that fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3)  the declaration relates to facts which the victim was competent to testify to; (4) the declarant thereafter died; and (5) the declaration is offered in a criminal case wherein the declarant’s death is the subject of the inquiry.

The first element is lacking in the case at bar.  It was not established with certainty whether Pelagio uttered his statement with consciousness of his impending death.  While he was in pain when he made his statement, he expressly stated that accused-appellant only pistol-whipped him and almost shot him.

The significance of a victim’s realization or consciousness that he was on the brink of death cannot be gainsaid.  Such ante mortem statement is evidence of the highest order because at the threshold of death, all thoughts of fabricating lies are stilled.  The utterance of a victim made immediately after sustaining serious injuries may be considered the incident speaking through the victim.  It is entitled to the highest credence.

Granting that Pelagio, after giving his statement, later on realized that he was dying, his statement still can not be considered a dying declaration.  The crucial factor to consider is the contemporaneity of the moment when the statement was made and the moment of the realization of death.  The time the statement was being made must also be the time the victim was aware that he was dying.

Ergo, no dying declaration may be considered in evidence here.

“Res gestae”

Now, let it go to another principle of evidence: RES GESTAE.

There is no doubt that the first words uttered by Captain Marquez immediately after the shooting are what can be admitted in evidence as res gestae.   These first words uttered by Captain Marquez were: “Sir Rondina, Sir binaril ako at may tama ako sa likod!”

This is because these were the words that Captain Marquez said he uttered right immediately after he was shot on his back.  At the time he uttered those words, there is therefore no doubt that Captain Marquez was gripped by the startling occurrence of that shooting incident where he was the one who was hit.

This claim of Captain Marquez that these were the words he first uttered after the shooting was substantially supported by the statement of Lt. Col. Rondina, who said:

... Nakita ko si (Captain Marquez) lumabas ng government quarters nya at siya ay natumba sa harap ng paningin ko.   Ang sabi po ni CPT. MARQUEZ to quote “binaril ako.”

So that there is no issue that the first set of words uttered by Captain Marques was: “Sir Rondina, Sir binaril ako may tama ako sa likod!”

Actually, the wife of Captain Marquez herself confirmed that what was uttered by Captain Marquez was only the fact that he was shot and nothing more.

To prove this, let the Paragraph 12 statement of the Janice Janoras Marquez be restated, to wit:

12.T – Ano ang kasalkuyang ginagawa ni CPT MARQUEZ noong mga oras na dumating siya?

S – Gumawa siya ng letter para kay SND. Actually ako sana ang pagawan niya ng letter para kay SND pero ang sabi ko bukas na lang kasi pinapatulog ko ang bunso naming.   Tapos ang sabi nya, siya na lang daw gagawa.  Maya-maya tinanong niya ako kung may pandkit daw ako.  Ang sabi ko wala kasi ang ginamit ko pandkit sa project ng anak ko ay nanghiram lang din ako sa kapitbahay.  So ang sabi niya, hiram na lang daw siya.  Paglabas niya, may narinig ako putok.  Akala ko dahil sa kuryente pero noong narining ko ang boses niya (Captain Marquez) na “MAY BUMARIL SA AKIN, MAY TAMA AKO” na isinisigaw niya.  Narinig ko rin ang boses ni LTC RONDINA na ang sabi baka natisod ka lang bok?”  pero ang sagot ng asawa ko “Hindi sir, may tama talaga ako sir.” Kaya dali-dali ako lumabas at nakita ko na lang siya sa labas na naka-upo hawak ni LTC RONDINA.

One consistent interpretation of that res gestae statement of Captain Marquez is that Captain Marquez did not know or did not see who shot him.

The same case law of People vs Ramil Peña says of res gestae as follows:

A declaration made spontaneously after a startling occurrence is deemed as part of the res gestae when (1) the principal act, the res gestae, is a startling occurrence; (2) the statements were made before the declarant had time to contrive or devise; and (3) the statements concern the occurrence in question and its immediately attending circumstances.[

There is no doubt here that the shooting incident was the principal act that is a startling occurrence.   There is also no doubt that the staetments made by Captain Marquez were made before he had time to contrive or devise.  The statement concerns the occurrence in question and the immediately attending circumstances.

Hence, this is another evidence supporting the “two-things” defense of Major Badar: particularly that theory that Captain Marquez did not see or did not know who shot him.

Another res gestae statements here are the statements of Lt. Col. Rondina as to what happened when he discovered that there was blood at the back of Captain Marquez.  It was only that time that Lt. Col. Rondina was gripped by the startling occurrence of seeing the blood of Captain Marquez.

During that time, Lt. Col. Rondina never said that Captain Marquez whispered to him who shot him.

Rather, the immediate natural reaction of Lt. Col. Rondina was to direct Maj. Gary V. Lachica to call for an ambulance and the Military Police.

If Lt. Col. Rondina did not say that Captain Marquez said anything pointing to Major Badar, it is a res gestae evidence to prove the fact that Captain Marquez never whispered to Lt. Col. Rondina the name of Major Badar.

“Unclear statements”

 Another thing that supports the theory of defense that only those “two things” happened is the fact that the statements made by Captain Marquez in his affidavit are so vague to give a clear picture of what really happened.

If he cannot even tell a coherent, logicial and spontaneous statement on how the incident occurred, then it is a strong indication that he was lying.

Captain Marquez said that while he was closing the door, Major Badar appeared on his left side.  

Now, go back to the statement of Marquez that before stepping out of the door, where he said he looked around and he saw nobody. 

Then Marquez said in his affidavit that he closed the door and only that time that he saw Major Badar and that Badar told him “Tapos ka na” while pointing the gun on the back of Marquez.  

After saying those words, Marquez said the gun went off with a muffled burst of fire.  

Until that point of his narration while he had just closed the door by pulling the door knob when Marquez said Major Badar appeared at his left, it cannot be known what was the position of Marquez when he closed the door. This is because Marquez did not say so in his affidavit.

So that if Marquez did not state clearly what was his position at that time, it cannot also be known where was the position of Major Badar with respect to the door if Marquez was telling the truth.

These vague statements created further confusion because of so many possibilities that may be considered.

Consider this possibility.

Was Marquez fronting the door so that his right hand was the one holding the door knob while he was closing the door and that the left part of Marquez must be in the spot near the edge of the door opposite the location of the door knob?     

And if this was the case and Marquez was telling the truth, Major Badar must be standing near the corner of the home of Marquez and that corner is the one right at the corner of the open space from the fence and the open space between the house of Marquez and the house where Lt. Col. Rondina was standing.

Or, was the back of Marquez facing the door as he closed the door using his left hand and that the left part of Marquez must be right next to where the door knob is located?

But one thing is the nearest, though, despite the confusing statements.

The fact that Captain Marquez fell down toward the right of the door means that he was using his right hand in holding the door knob and closing the door.

And the closest interpretation to this is that Captain Marquez was shot from afar and not just beside him.

Again, by these discourses, it is clear that the “two things” theory of Major Badar is plausible to lead to a conclusion that there is no probable cause or prima facie showing that Major Badar must be guilty.

“Quick response”

It can be seen from the affidavits of Lt. Col. Rondina that he quickly responded to help Captain Marquez.

In fact, Lt. Col. Rondina stated, to which Captain Marquez corroborated with, that he immediately bodily carried Captain Marquez to the kitchen door of the quarters where Lt. Col. Rondina was living.

From the time Lt. Col. Rondina saw Marquez up to the time Lt. Col. Rondina reacted to go to where Marquez’s body fell, it is reasonable to think that about five (5) seconds were consumed.  

And in that span of time, it was impossible for Lt. Col. Rondina not to catch up with the culprit if the culprit was indeed beside Captain Marquez.

“Jealousy, revenge”

A plain reading of the affidavit of Captain Marquez shows it is heavily loaded with stories of his jealousy because he stated that Major Badar was courting his wife Janice Janoras Marquez and was also courting his niece Cathy.

This extreme show of jealousy, triggered by the fact his wife and his niece are pretty, is sufficent to cause Captain Marquez to invent stories in order to take revenge.

One cause for revenge is the admission himself by Marquez that Major Badar tried to stab him many times and he was defending himself through a chopping board.  

This was triggered because Captain Marquez got angry after Major Badar teased Cathy (the niece of Marquez) that the chicken meat she was cooking was thin but delicious.

According to Captain Marquez, this incident led Major Badar to slap him in front of the MP and FAO personnel who responded during that confrontation.  This is another sufficient cause that would lead Captain Marquez to take revenge against Major Badar.

What further made the jealousy suffocating and enraging for Captain Marquez is the fact that his wife Janice Janoras Marquez denied that she was being courted by Major Badar.

The statements of Janice Janoras Marquez are hereby reproduced, to wit:

24.T – Kilala mo ba si MAJ JOHN-JOHN BADAR?

S – Opo, kilala ko po siya.

25.T – Saan kayo nagkakilala?

S – Jan lang din po sa OCS liaison lang din po.

26.T – Kailan kayo nagkakilala?

S – Nagkikita lang po kami jan sa Liaison kasi ang daanan ko po sa harap ng liaison kasi sa likod po kami. Pero hindi kami nag-uusap na parang close kami. Pero this year lang po kami nagkakausap dahil siya ay bumuli ng T-shirt na binibenta ko.

27.T – May instances ba na nagbibigay si MAJ BADAR sa iyo ng kung ano-anong bagay?

S – Actually, hindi po ako ang binibigyan. Ang mga bata po ang binibigyan ni sir kasi palagi ang mga anak ko sa liaison dahil may computer po doon. At hindi lang po si MAJ BADAR ang nagbibigay sa mga bata, marami din po ibang dahil palagi ang mga bata doon sa liaison. Mga chocolates lang po iyon.

28.T – Ano ang sabi ni CPT MARQUEZ sa pagbibigay ni MAJ BADAR sa mga bata ng chocolates?

S – Actually, hindi naman po big deal sa kanya iyon. Kasi dati may business po ako dati na T-shirt printing at alam naman po niya kung sino sino ang pinagbentahan ko. Kaya ok naman po sa kanya kasi isa si MAJ BADAR sa mga pinagbentahan ko.  Nagkaka-usap lang din namam kami ni MAJ BADAR regarding sa T-shirt na bibilhin niya kasi tinanong ko kung anong name ang gusto niyang ilagay sa T-shirt. Nandoon din naman po ang husband ko.

29.T – Ano ang sabi ni CPT MARQUEZ noong nag-uusap kayo?

S – Wala naman po. Hindi rin naman po siya nag-selos. Pero lately na lang po siya nag-seselos.

30.T – Kanino po siya nag-seselos ma’am?

S – Kay MAJ BADAR po.

31.T – Bakit nagseselos si CPT MARQUEZ kay MAJ BADAR ma’am?

S – Iyan po ang hindi ko alam. Pero ang alam ko nag-simula po iyan doon sa pamangkin niya.

32.T – Sino ang pamangkin niya?

S – Si Catherine Bataga.

33.T – Bakit nagseselos si CPT MARQUEZ dahil sa pamangkin niya?

S – Hindi kopo alam kasi wala po ako noong time na iyon. Basta po ang kwento po sa akin ng husband ko, one time nag-luluto si Catherine sa labas, nakita siya ni MAJ BADAR ang sabi raw”anong niluluto mo?. Ang sabi naman po ni Katherine “Chicken po sir”. Tiningnan niya ang niluluto ni Katherine tapos ang sabi “ ang payat naman ng chicken mo, parang ikaw, payat. Pero di bale kahit payat, masarap naman.” Siguro po doon na-offend ang husband ko.

            The wife also narrated of an incident that is another cause for Captain Marquez to take revenge, to wit:

34.T – May instance ba na nag-away sila MAJ BADAR at CPT MARQUEZ?

S – Meron po noong May ng taon ito. Nasampal po ni MAJ BADAR ang husband ko nung magkasagutan sila at andun din po ang mga MP.

35.T – Ano ang pinag-awayan nila MAJ BADAR at CPT MARQUEZ?

S - Regarding din po sa pamangkin ng husband ko at ang pagbibigay ni MAJ BADAR sa mga bata ng chocolates.

36.T – Bakit naging dahilan sa pag-aaway nila ang pagbibigay ni MAJ BADAR sa mga bata ng chocolates?

S – Na-misinterpret po ng husband ko ang pagbibigay ni MAJ BADAR sa mga bata ng chocolates. Akala niya para sa akin ang chocolates na ibinibigay ni MAJ BADAR. Minsan, nag-away na po kami dahil sa issue na iyon, pero sinabihan ko ang husband ko na huwag siyang mag-selos kasi hindi naman ibinigay sa akin personally ang chocolates, at hindi ko rin naman po tinaggap personally.

37.T – Saa sila nag-away?

S – Sa likod po ng OCS liaison po. That time may mga MP po na nag-aawat pos a kanila.

38.T – May baril ba si CPT MARQUEZ?

S – Wala po siyang baril.

39.T – May alam ka ba ibang naka-away o nakagalitan ni CPT MARQUEZ bukod kay MAJ BADAR?

S – Wala naman po. Pero minsan may mga nababanggit siya sa akin na may nag-indorse daw sa kanya, o galit sa kanya pero hindi naman po niya binabanggit ang specific na pangalan ng tao.

            “Early Statements”

           

            Actually, of all the witnesses interviewed by the Military Police, it was Major John-John I. Badar who was the first to have been taken with statements, which Badar voluntarily made even without yet the assistance of a lawyer.

            In his “Salaysay”, Major Badar insisted that he was not present at the scene of the crime when the shooting occurred and that he was eating at the canteen of the hospital of the HHSPG.

            He said that at 1845H of 21 November 2014, Friday, or at 6:45 p.m., he asked permission form Lt. Col. Rondina that he would get his laundry at Fort Concessionaire, Fort Bonifacio.

            But before he went to get his laundry, Badar said he passed by the canteen at AGH and while eating he received a text message telling him that Captain Marquez was shot and was rushed to V. Luna Hospital because there was an internal bleeding and the bullet could not go out of his body.

            Badar said that on Wednesday or Thursday night, he came from Maharlika and was going home to the OCSAA Inc. (OCS Liaison Bldg) and he noticed that there was a light inside of a building and he saw a body of a person whose half body was inserted into the airconditioning hole. 

Badar said that when he opened the front door he confronted the person why he was doing that act.

But thereafter, Badar said that he learned later that the person was a former soldier discharged from the service and now living in the quarters of Captain Marquez.

Thereafter, Badar said that Capt. Marquez knocked at the back door and went to the front of the OCS building and saw the half body of the person in the airconditioning hole and that Captain Marquez told that person: “Master, Master.”

That incident led Major Badar telling Captain Marquez and that man that he might report them for doing those acts.

So that Major Badar is saying that his incident also triggered Captain Marquez to name him as the one who shot him.

After all, the discussions are clear that there is no prima facie showing or no probable cause that Major John-John Badar is guilty of frustrated homicide or frustrated murder.

A copy of the “Salaysay” of Major Badar is attached hereto as ANNEX “G” series.

Reiteration

In view of the foregoing, it is reiterated that the Philippine Army Provost Marshall formally lodge the complaint for violation the 72-hour detention rule against anybody responsible therefor and that MAJOR JOHN-JOHN I. BADAR, 1-3000 (CAV), PA, be RELEASED from detention immediately.

Thank you very much for the kind and prompt action on the matter.

                                                            Yours for the glory of God,

BERTENI CATALUÑA CAUSING

Counsel for Maj. John-John Badar

Cc:

COMMANDER, HHSPG, PA, Fort Bonifacio, Taguig City

POST PROVOST MARSHAL, HHSPG, PA, Fort Bonifacio, Taguig City

COMMANDING GENERAL, PA, Fort Bonifacio, Taguig City

CHIEF OF STAFF, AFP, Camp Aguinaldo, Santolan Road, Quezon City