Olongapo SubicBay BatangGapo Newscenter

Wednesday, July 26, 2006

Court junks plea to let van driver testify in Subic rape case

A LOWER court hearing the controversial rape case filed by a 22-year-old Filipino woman against four US servicemen on Tuesday denied the motion of the prosecution to compel the driver of the van where the alleged abuse took place to testify on their side.

In another ruling, the court denied the motion of accused Lance Corporal Daniel Smith opposing the submission of a blood sample for DNA testing and partially denied the motion of the other accused, Staff Sergeant Chad Carpentier and Lance Corporals Keith Silkwood and Dominic Duplantis.

In a ruling, Makati Regional Trial Court (RTC) Branch 139 Judge Benjamin Pozon sustained the arguments of Timoteo Soriano, through his counsel Jose Raulito Paras, that he cannot be compelled to take the witness stand since he is still considered as an accused in the case and testifying would prejudice his right against self-incrimination.

The prosecution earlier questioned the non-appearance of Soriano on the day they scheduled his testimony with State Prosecutor Emilie de Los Santos saying that he is technically not an accused in the present case being heard.

He said the Jan. 13, 2006 decision of Olongapo Regional Trial Court (RTC) Branch 73 Judge Renato Dilag "discharging" Soriano from the charge sheet before he was arraigned is a "mere provisional dismissal" of the present case and not a final dismissal.

"Technically, he is still considered as an accused in the case and being an accused he has the right not to take the witness stand to testify for the prosecution in this case. There is no merit on the claim of the prosecution that only Soriano can personally invoke the right against self-incrimination," Pozon said in his ruling.

The court also took notice of the ongoing preliminary investigation conducted by the Department of Justice (DOJ) to determine whether he can be charged as an accomplice in the case and the appeal filed by complainant Nicole (the court assigned name of the victim) through her counsel, Evalyn Ursua before the 7th Division of the Court of Appeals (CA) questioning Dilag's decision.

The defense said the ruling dealt a major setback to the prosecution, adding that their efforts to prove conspiracy among the accused is now over while adding that they might even consider Soriano as their witness in the future.

"They (prosecution) might not admit it but the ruling is a major blow to their efforts to prove what they said is the conspiracy among the accused," said Silkwood's counsel Jose Justiniano.

The CA recently ordered Dilag to comment on the petition within 15 days under the threat of being cited for contempt.

Soriano became controversial when he recanted his testimony implicating the accused saying he did not witnessed any "gang-rape" as alleged in his first affidavit given to investigators of the Subic Bay Metropolitan Authority Intelligence and Investigation Office (SBMA-IIO). He said he was allegedly coerced by IIO chief Paquito Torres into signing the statement.

In another ruling, the xourt denied the motion of the accused in refusing to submit blood samples for DNA (deoxyribonucleic acid) testing, which the prosecution deemed important in proving their case against the accused especially against Smith who admitted to the US Naval Criminal Investigative Service (NCIS) that he had sex with "Nicole" although he maintained it was consensual in nature.

In a ruling, Pozon sustained the prosecution's argument that the submission of such samples does not prejudice the accused's constitutional right to remain silent nor his right against self-incrimination although the court issued a "partial ruling" for Smith and "partially denied" the prosecution's motion to compel the other accused, Carpentier, Silkwood and Duplantis.

In the ruling, the court said there are already standards that set the guidelines for the application of DNA evidence contrary to Smith's contention that the prosecution should first establish the standards such as how the samples will be collected, handled, stored and the procedures for such testing.

Earlier an expert witness, Dr. Francisco Supe Jr., testified that a female and male DNA were found on the complainant's underwear although only a female DNA was recovered from the used condom.

He told the court that the female specimen matched the DNA of Nicole through her blood sample but added he could not yet ascertain from whom the male DNA came from since the accused has not submitted a sample prompting the prosecution to file a motion before the court.

In open court, medical technologists of the Philippine National Police Crime Laboratory led by Inspector Jocelle Macapagal and Maria Theresa Bodo took the blood sample of Smith, which the laboratory per order of the court, will conduct the DNA testing.

The taking of blood sample was made despite the vehement objection of Smith's counsel, Benjamin Formoso, who threatened to appeal the case before the Court of Appeals (CA).

"The drawing of blood samples is without any basis, they should have submit to us first the complete DNA patterns for both female and male DNA samples that were extracted from the items such as the underwear and the used condom before taking the blood sample of my client," Formoso said adding that he will file a motion for certiorari before the CA.

During Tuesday's proceeding, the prosecution presented as an expert witness a medical toxicologist from the University of the Philippines (UP), who testified that Nicole was indeed too drunk on the night of the alleged incident to have given her consent.

Dr. Kenneth Go, a toxicologist for 10 years and one of the 15 certified medical toxicologist in the country, said he based his opinion on the testimonies of the bar's security guards, the bartender, the complainant's sister, Annaliza Franco and the complainant itself.

Security guards Tomas Corpuz and Gerald Muyot told the court they saw the victim "swaying uneasily" when she walked inside the Neptune bar while Corpuz said he saw the complainant being carried on the back of Smith to a waiting van outside the bar.

Franco and Nicole admitted that they downed several glasses of alcoholic drinks and that Nicole felt dizzy afterwards. Nicole later testified that she could not recall exactly the incident although she told the court that she remembered Smith on top of her while kissing and touching her breast.

Go said the complainant likewise would not have the capability to exactly recall every detail of the incident nor she could have the strength to resist her attacker. He also said the amount of alcohol she imbibed is the reason for her "fragmented recall" of details of the incident.

He also told the court that the level of toxicity of the complainant could have been affected by the amount of the food she took before imbibing those drinks.

"A person with an empty stomach has more rapid absorption of alcohol," said the witness in response to the question of Ursua.

But the defense dismissed his testimony with Justiniano saying that "it amounted to nothing but mere estimation since no alcohol test was done on the complainant" while the urinalysis conducted by the James Gordon Memorial Hospital has yet to be submitted by the prosecution.

The hearing resumes on Thursday for Go's cross-examination by the defense. (AH/Sunnex)


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