PEOPLE OF THE PHILIPPINES vs. CARLOS Y ARELLANO.

G.R. No. 110357 August 17, 1994

DAVIDE, JR., J.:

DOCTRINE: Subjecting an accused to ultraviolet ray examination

to determine the presence of ultraviolet power is not violative of
his right against self-incrimination.

FACTS:

An information was filed at the Regional Trial Court of

Makati charging the accused Carlos Tranca y Arellano of violating
Section 15, Article III of R.A No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972. The accused pleaded
not guilty at his arraignment. The prosecution presented as
witnesses for its evidence in Chief Sgt. Jose Latumbo of the
National Capital Region NARCOM Unit (NCRNU) with office at
Camp Crame, Quezon City, SPO1 Franciso Matundan, Police Lt.
Julita De Villa, and Teresita Alberto, and presented in rebuttal
SPO1 Francisco Matundan and SPO3 Albert San Jose. The accused
took the witness stand and presented his sister, Clarita Cheng, as
his witness.

The prosecution established that a “confidential agent” or an

informer went to the office of the NCRNU revealing that a certain
“Jon-Jon” was selling shabu along Kalayaan Ave. Makati. Capt.
Miano then formed a buy-bust team. Sgt. Latumbo posed as the
poseur-buyer. Capt. Miano gave Sgt. Latumbo a P 100 biill which
had been dusted with fluorescent powder to be used in buy-bust
operation. The buy-bust operation team proceeded with the
operation resulting to the arrest of the accused. Upon
interrogation by Capt. Miano, the accused voluntarily surrendered
one plastic bag of shabu and the P 100 marked money. The Chief
Chemist of the Physical Identification Division of the PNP Crime
Laboratory Service at Camp Crame examined the person of the
accused and the P 100 bill. She exposed the P 100 bill and she
likewise exposed the person of the accused to ultraviolet radiation
and discovered the presence of the fluorescent powder.

The accused denied the allegations against him and

contends that he was framed by the officers. The trial court then
promulgated its decision finding the accused guilty. The accused
appealed the decision of the trial court contending that his right
against self-incrimination was violated when he was made to
undergo an ultraviolet examination.

ISSUE

Whether or not the accused right to self-incrimination was

violated when he undergo an ultraviolet examination.

HELD

No, the Supreme Court held that his right to self-

incrimination was not violated when he underwent the ultraviolet
examination. The constitutional guarantee against self-
incrimination prohibits the use of physical or moral compulsion to
export communication from the witness, not an inclusion of his
body in evidence, when it may be material. It is simply a
prohibition against legal process to extract from the defendant’s
own lips, against his will, an admission of guilt. Nor can the
subjection of the accused's body to ultraviolet radiation, in order
to determine the presence of ultraviolet powder, be considered a
custodial investigation so as to warrant the presence of counsel.
Subjecting an accused to ultraviolet ray examination to determine
the presence of ultraviolet powder is not violative of his right
against self-incrimination. The Supreme Court affirmed the
findings of the trial court that the accused was caught in flagrante
selling shabu to the members of the buy-bust operation.
 PEOPLE OF THE PHILIPPINES vs LANIE ORTIZ-MIYAKE
G.R. Nos. 115338-39 September 16, 1997
REGALADO, J.:

DOCTRINE: The right of confrontation has two purposes: first, to

secure the opportunity of cross-examination; and, second, to
allow the judge to observe the deportment and appearance of the
witness while testifying.

FACTS

Accused Lanie Ortiz-Miyake was charged with illegal

recruitment in large scale in the Regional Trial Court of Makati by
a complaint initiated by Elenita Marasigan, Imelda Generillo and
Rosamar Del Rosario. In addition, she was indicted for estafa by
means of false pretenses in the same court, the offended party
being Elenita Marasigan alone. Upon arraignment, appellant
pleaded not guilty to the charges filed against her and the cases
was tired jointly. Marasigan was the only one who testified at the
trial for the complaint in the case for illegal recruitment in large
scale. The two other complainants, Generillo and Del Rosario
were unable to testify as they were abroad however, in lieu of
their testimonies, the prosecution presents the mother of
Generillo and the sister of Del Rosario as witnesses.

The appellant denied all the allegations against her and

claimed that the payments made to her were solely for
purchasing plane tickets at a discounted rate as she had
connections with a travel agency. The trial court rendered a
judgment convicting the appellant of both crimes charged finding
the prosecution’s evidence more credible. The lower court, in
convicting the appellant, adopted a previous decision of Branch
78 of the MTC of Paranaque as basis for judgment.
 The Solicitor General positions that the adoption of the
Makati Court of the facts in the decision of the Paranaque court is
erroneous as it is a violation of the right of the appellant to
confront the witnesses citing the pertinent provision of Rule 115
of the Rules of Court. Appellant seeks the reversal of the
foregoing judgment of the Regional Trial Court of Makati
convicting her of illegal recruitment in large scale and estafa.
Specifically, she insists that the trial court erred in convicting her
of illegal recruitment in large scale as the evidence presented was
insufficient.

ISSUE

Whether or not the appellant should be charged of illegal

recruitment in a large scale.

HELD

No, the Supreme Court upholds the finding that the

appellant is guilty, however, they are compelled to modify the
judgment as to what offenses the appellant should be convicted
of. The number of persons victimized in illegal recruitment cases
is determinative. The accused may be convicted of simple illegal
recruitment which is punishable with a lower penalty under Article
39(c) of the Labor Code if it is committed against a lone victim. It
is qualified to illegal recruitment in large scale which provides a
higher penalty under Article 39 (a) of the same Code if the
offense is committed against three or more persons.

Under Rule 115 of the Rules of Court, the accused in a

criminal case is guaranteed of the right of confrontation. Such
right of confrontation has two purposes: first, to secure the
opportunity of cross-examination; and, second, to allow the judge
to observe the deportment and appearance of the witness while
testifying. This right however, is not absolute. The adoption by
the Makati trial court of the facts stated in the decision of the
Paranaque trial court does not fall under the exception to the
right of confrontation as the exception contemplated by law
covers only the utilization of testimonies of absent witnesses
made in previous proceedings, and does not include utilization of
previous decisions or judgments.

In this case, the prosecution offered, admitted in evidence

and utilized as a basis for the conviction in the case for illegal
recruitment in large scale was the previous decision in the estafa
case and not the testimonies made by complainants in the
previous estafa case. A previous decision or judgment, while
admissible in evidence, may only prove that an accused was
previously convicted of a crime. It may not be used to prove that
the accused is guilty of a crime charged in a subsequent case, in
lieu of the requisite evidence proving the commission of the
crime, as said previous decision is hearsay. To sanction its being
used as a basis for conviction in a subsequent case would
constitute a violation of the right of the accused to confront the
witnesses against him. Every conviction must be based on the
findings of fact made by a trial court according to its appreciation
of the evidence before it. A conviction may not be based merely
on the findings of fact of another court, especially where what is
presented is only its decision sans the transcript of the testimony
of the witnesses who testified therein and upon which the
decision is based, hence the Makati court’s utilization and reliance
on the previous decision of Paranaque court is rejected.

Furthermore, an evaluation of the evidence presented before

the trial court shows that, there was no other basis for said trial
court's conclusion that illegal recruitment in large scale was
committed against all three complainants.
 RUPERTO FULGADO, substituted by his heirs, JULIANA,
JOSE, MAXIMO, PACITA and SEVERO all surnamed
FULGADO vs. HON. COURT OF APPEALS, RUFINO
CUSTODIO, SIMPLICIA CUSTODIO, ARSENIO PIGUING,
ISMAEL PORCIUNCULA and DOMINGA MACARULAY
G.R. No. L-61570 February 12, 1990.
FERNAN,  C.J.:

DOCTRINE: This right to cross-examine witnesses is part of due

process. But like any other right, it may be waived.

FACTS:

Ruperto Fulgado filed an action in the Court of First Instance

of Rizal, Pasig branch against private respondents for the
annulment of certain contracts of sale and partition with
accounting. A pre-trial conference was finally set for February
1,1968 at 8:30 in the morning. Private Respondents and their
counsel and were subsequently declared as in default for failing to
appear on time. Plaintiff Fulgado was then allowed to present his
evidence ex parte before the Deputy Clerk of Court. A Motion to
lift the order of default was immediately filed by the private
respondent on the same day the order was issued. The trial court
denied the said motion. Their motion for reconsideration was also
denied. The trial court rendered a decision in favor of the plaintiff
Fulgado, however, on appeal the Court of Appeals found that the
private respondent had been deprived of their day in court by the
unjust denial of the motion to lift the order of default. The Court
of Appeals in its decision sets aside the decision of the trial court
and remanding the case to the court of origin for trial on the
merits and granting the defendants the opportunity to present
their evidence provided that the evidence already presented shall
stand. The Court of Appeals decision became final and executory.
 More than a year after the finality of the decision of the CA,
counsel for private respondent moved that the trial court include
case in any date of August and September calendar of the Court.
The case was then set for hearing, however, the presiding judge
went on official leave and hearing was postponed. In the
meantime, plaintiff Fulgado died and was substituted by his
children as party plaintiffs and his witness, Jose Fulgado had
earlier migrated to the US. The case was heard and the trial court
issued an order dismissing the case and ordered that the
testimonies of plaintiff’s witnesses who were not presented for
cross-examination are stricken of the record. The CA affirmed the
trial court’s order. Petitioners is now questioning the affirmance
of the order and also contends that the private respondent
waived their right to cross-examination when they allowed an
unreasonable length of time to lapse from the inception of the
opportunity to cross-examine.

ISSUE

Whether or not the respondent’s right to cross-examine is

already waived.

HELD

Yes, the Supreme Court held that the acts of the private
respondents constitutes a waiver and forfeiture of their right to
cross-examination. It is already ruled that the right of a party to
confront and cross-examine opposing witnesses in a judicial
litigation, be it criminal or civil in nature, or in proceedings before
administrative tribunals with quasi-judicial powers, is a
fundamental right which is part of due process. However, the
right is a personal one which may be waived expressly or
impliedly by conduct amounting to a renunciation of the right of
cross-examination. The principle requiring a testing of testimonial
statements by cross-examination has always been understood as
requiring, not necessarily an actual cross-examination, but
merely an opportunity to exercise the right to cross-examine if
desired. It is manifested, from the records presented, that private
respondent had enough opportunity to cross-examine plaintiff
Fulgado before his death and his witness Jose Fulgado before his
migration to the US, and however, private respondents did not
move swiftly and decisively. They dawdled for more than a year
to ask the trial court to set the case for a hearing which is already
delayed. The task of recalling a witness for cross examination is,
in law, imposed on the party who wishes to exercise said right.
This is so because the right, being personal and waivable, the
intention to utilize it must be expressed. Silence or failure to
assert it on time amounts to a renunciation thereof.