Facts

• In mid-August 1993 Adones Abatayo began work at the Gaisano FCDC construction site, Ibabao, Mandaue City, where brothers Teofredo Basalan (24) and Dominador Basalan (26) were stay-in laborers.
• On 8 September 1993 an acrimonious quarrel broke out between him and the brothers over misplaced tools — later recovered — and was entered in the police blotter.
• At 3:00 a.m. on 10 September 1993, Juanito Gutang was awakened by a thudding sound "of striking somebody." From about three metres, under sufficient lighting, he saw the appellant striking the sleeping brothers on their heads with a galvanized iron lead pipe.
• He woke Apolonio Quilag and the others, who found the victims in a pool of blood; security guards called the Mandaue City police. The appellant hurriedly packed his belongings and fled.
• PO2 Alfredo Andales recovered the bodies and the lead pipe and listed the appellant as prime suspect; Dr. Ladislao V. Diola, Jr. found death from "cardio-respiratory arrest due to shock and hemorrhage secondary to head injuries."
• He fled to Bohol and returned only in December 1993; arrested in August 1994, he pleaded not guilty.
• On 22 November 1994 Gutang's direct examination was completed and cross-examination begun; defence counsel moved to reset, saying he had "many questions." The court granted it.
• On 23 January 1995 Gutang failed to appear, ill with fever. Without objection from the defence, the prosecutor deferred the cross-examination and presented Quilag. Further witnesses were completed on 2 March 1995 without objection, and the parties stipulated on the necropsy report on 17 April 1995.
• On 22 May 1995 the prosecution rested. The defence objected to the purpose for which Gutang's affidavit was offered — but never moved to strike his oral testimony and never objected to the prosecution resting with the cross-examination unfinished. Six months of silence, then a constitutional objection on appeal.
• The RTC convicted him of two counts of Murder; on 7 July 2004 the Second Division affirmed with modification, reclassifying the offence to Homicide.

Issue

Ruling

"WHEREFORE, the Decision of the Regional Trial Court of Mandaue City, Branch 56, is hereby AFFIRMED with MODIFICATIONS. The appellant is found GUILTY beyond reasonable doubt of two (2) counts of homicide as defined and penalized in Article 249 of the Revised Penal Code, as amended, and is sentenced to suffer an indeterminate penalty of Eight (8) Years and One (1) day of prision mayor, in its medium period, as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal in its medium period, as maximum, for each count of homicide. The appellant is ORDERED to pay the heirs of each of the victims, Teofredo Basalan and Dominador Basalan, the sums of P50,000.00 representing temperate damages; P100,000.00 as indemnity ex delicto; and, P100,000.00 as moral damages. No costs.

SO ORDERED."

Ratio

• The right is real but personal and waivable, and not absolute at all times.
• The burden of recall sits with the party who wants it. Following Fulgado v. Court of Appeals: "The task of recalling a witness for cross-examination is, in law, imposed on the party who wishes to exercise said right… Silence or failure to assert it on time amounts to a renunciation thereof… It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move."
• Counsel's inaction was systematic. No objection to the resetting or to other witnesses; no motion to compel the witness's presence; no objection to the prosecution resting; no motion to strike. That is renunciation, and the testimony properly remained.
• Treachery cannot be inferred from an unseen beginning. It requires proof of a sudden attack deliberately adopted to leave the victims defenceless — not a conjecture drawn from the aftermath.
• And the damages followed the proof. Unsubstantiated actual expenses were deleted for want of receipts, temperate damages awarded instead, the family having plainly incurred wake and burial costs.

Doctrine

Full Digest — Recitation Format

Gist

Facts

• Sometime in Mid-August 1993: Appellant Adones Abatayo begins working as a construction worker at the construction site of the Gaisano FCDC at Ibabao, Mandaue City, where brothers Teofredo Basalan (24) and Dominador Basalan (26) also work as stay-in construction laborers.
• September 8, 1993: An acrimonious quarrel occurs at the construction site between the appellant and the Basalan brothers over some misplaced construction tools (which are later recovered). The incident is recorded in the police blotter.
• September 9, 1993, 7:00 PM: Following a hard day’s work, construction laborers Juanito Gutang, Apolonio Quilag, and Pedro Esconia, along with an unidentified co-worker, retire early in their quarters at the construction site. (The appellant claims he went home at 9:00 PM and slept).
• September 10, 1993, 3:00 AM: Juanito Gutang is awakened by a thudding sound of "striking somebody." Looking from a distance of about three (3) meters under sufficient lighting, he witnesses the appellant striking the sleeping brothers, Teofredo and Dominador Basalan, on their heads with a galvanized iron (G.I.) lead pipe.
• September 10, 1993 (moments later): Gutang immediately wakes up Apolonio Quilag and his other co-workers, disclosing what he witnessed. Quilag sees the victims lying in a pool of blood. The laborers report the attack to the security guards on duty, who call the Mandaue City police station.
• September 10, 1993 (moments later): The appellant hurriedly packs his personal belongings and flees the job site.
• September 10, 1993 (morning): PO2 Alfredo Andales conducts an on-the-spot investigation at the crime scene, recovers the bloodied bodies with smashed heads, and retrieves the G.I. lead pipe. He records the incident in the police blotter, listing the appellant as the prime suspect.
• September 10, 1993 (afternoon): The bodies are brought to the Cosmopolitan Funeral Homes, where Dr. Ladislao V. Diola, Jr. conducts a post mortem examination, concluding that death resulted from "cardio-respiratory arrest due to shock and hemorrhage secondary to head injuries."
• September 10, 1993 (appellant's alibi): The appellant claims he left work at 7:00 PM on September 9, arrived home at 9:00 PM, and slept. On the morning of September 10, he accompanies his uncle to Carcar, Cebu, for the town's fiesta, absents himself from work, and subsequently flees to Bohol, returning only in December 1993.
• September 16, 1993: Eyewitnesses Juanito Gutang and Apolonio Quilag subscribe and swear to their respective affidavits before the public prosecutor.
• January 31, 1994: The Mandaue City Prosecutor files an Information before the Regional Trial Court of Mandaue City charging Adones Abatayo with Double Murder.
• August 1994: The appellant is arrested.
• [Date not in record]: Upon arraignment, the appellant, assisted by counsel, enters a plea of "not guilty" to the charge.
• November 22, 1994: The trial commences before Branch 56 of the RTC Mandaue City. The prosecution presents its first witness, Juanito Gutang. His direct examination is completed, and the appellant's counsel begins cross-examination on the corpus delicti. Counsel then moves for resetting the trial on the ground that he has "many questions" for the witness. The trial court grants the motion.
• January 23, 1995: During the scheduled continuation of the trial, Juanito Gutang fails to appear due to fever. Without any objection from the defense, the public prosecutor moves to defer Gutang's cross-examination and presents Apolonio Quilag. The trial court grants the motion and verbally warns the prosecutor that if Gutang fails to appear at the next date, his testimony will be stricken off (this warning is not included in the written order).
• March 2, 1995: The trial continues. The prosecution presents PO2 Alfredo Andales and the victims' mother, Silvina Basalan, and completes their testimonies. The defense does not object.
• April 17, 1995: The scheduled hearing is cancelled after both parties formally stipulate to the authenticity of Dr. Diola’s necropsy report and agree to dispense with his oral testimony.
• May 22, 1995: The public prosecutor manifests that he has no further witnesses and is ready to rest his case. He offers Gutang's affidavit as part of his documentary evidence. The appellant's counsel objects to the admission of the affidavit for the purpose for which it was offered but fails to move to strike out Gutang's oral testimony or object to the prosecution resting without completing the cross-examination. The RTC admits the evidence and the prosecution rests.
• June 26, 1995: The defense presents Adones Abatayo.
• February 8, 1996: The defense presents neighbor Bernabe Hinario to corroborate the appellant's alibi.
• February 29, 1996: The defense presents the appellant's mother, Leonora Abatayo.
• [Date not in record / August 30, 1997 or decision date]: The RTC of Mandaue City, Branch 56, renders its Decision convicting the appellant of two counts of Murder, sentencing him to reclusion perpetua for each count, and ordering him to pay ₱17,000.00 actual expenses and ₱200,000.00 in damages.
• July 7, 2004: The Supreme Court Second Division delivers its Decision, modifying the conviction to Homicide, sentencing the appellant to indeterminate terms of imprisonment, and modifying the damages.

Arguments of the Parties

• Proof of Guilt Beyond Reasonable Doubt: The prosecution argued that the appellant was positively and categorically identified by the lone eyewitness, Juanito Gutang, who saw him strike the victims' heads with a G.I. lead pipe at close range.
• Implied Waiver of Right to Cross-Examine: The State contended that the appellant waived his right to complete the cross-examination of Juanito Gutang through his consistent inaction. It pointed out that the defense counsel did not object to the presentation of other witnesses, did not demand that the cross-examination be completed first, did not object to the prosecution resting its case without recalled cross-examination, and failed to file a motion to strike out Gutang's testimony.
• Insufficiency of Alibi: The prosecution asserted that the appellant's defense of alibi is weak, easily fabricated, and cannot prevail over positive eyewitness identification.

• Violation of the Right to Confrontation: The appellant argued that the trial court committed a fatal constitutional error in admitting and giving probative weight to the incomplete testimony of Juanito Gutang. He contended that his procedural and constitutional right to meet the witness face-to-face under Rule 115§, Section 1(f) was completely denied because his counsel was not allowed to finish the cross-examination. Citing Ortigas, Jr. v. Lufthansa, he argued that the entire testimony should have been stricken off the record.
• Defense of Alibi and Denial: The appellant maintained that he was sleeping at home at the time of the incident and left the next morning for Carcar, Cebu, to attend a fiesta before fleeing to Bohol.
• Credibility of Corroborative Witnesses: He asserted that his alibi was corroborated by disinterested neighbors and his mother, and should have been given more weight than the "inherently implausible" testimony of Gutang.

• Authenticity of Medical Findings: Both parties stipulated to the authenticity of Dr. Ladislao Diola, Jr.'s necropsy report and agreed to dispense with his testimony on the stand.

Issue

• Whether or not the trial court committed a reversible error in admitting and giving probative value to the incomplete testimony of the lone eyewitness, Juanito Gutang, and whether the accused-appellant was deprived of his fundamental constitutional and procedural right to confront and cross-examine the witnesses against him under Section 14(2), Article III of the 1987 Constitution and Section 1(f), Rule 115§ of the Rules on Criminal Procedure.

• Whether or not the qualifying circumstances of treachery and evident premeditation were established beyond reasonable doubt to qualify the criminal act from Homicide to Murder.
• Whether or not the defenses of alibi and denial can prevail over positive eyewitness identification when the witness had no ill-motive to falsely testify against the accused.

Ruling

• MAIN ISSUE: NO. The trial court did not commit a reversible error. The right to confront and cross-examine witnesses is a personal right that can be waived expressly or impliedly by conduct. The accused-appellant impliedly waived his right to complete the cross-examination of Juanito Gutang by failing to timely assert it, failing to object to the presentation of other witnesses, and failing to move to strike the testimony before the prosecution rested.
• SECONDARY ISSUE 1 (Qualifying Circumstances): NO. Neither treachery nor evident premeditation was proved with moral certainty. Treachery cannot be presumed when the eyewitness did not see the commencement of the attack, and there was no proof of advance planning to establish evident premeditation. Thus, the crime is reclassified as two counts of Homicide.
• SECONDARY ISSUE 2 (Alibi vs. Identification): NO. Alibi and denial are weak defenses that cannot prevail over positive, straightforward eyewitness identification.

"WHEREFORE, the Decision of the Regional Trial Court of Mandaue City, Branch 56, is hereby AFFIRMED with MODIFICATIONS. The appellant is found GUILTY beyond reasonable doubt of two (2) counts of homicide as defined and penalized in Article 249 of the Revised Penal Code, as amended, and is sentenced to suffer an indeterminate penalty of Eight (8) Years and One (1) day of prision mayor, in its medium period, as minimum, to Fourteen (14) Years, Eight (8) Months and One (1) Day of reclusion temporal in its medium period, as maximum, for each count of homicide. The appellant is ORDERED to pay the heirs of each of the victims, Teofredo Basalan and Dominador Basalan, the sums of P50,000.00 representing temperate damages; P100,000.00 as indemnity ex delicto; and, P100,000.00 as moral damages. No costs.

SO ORDERED."

Ratio

"However, the right of confrontation and cross- examination is a personal one. It is not an absolute right which a party can claim at all times... [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. Thus, where a party has had the opportunity to cross-examine a witness but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony given on direct examination of the witness will be received or allowed to remain in the record."

"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. Thus, it should be the counsel for the opposing party who should move to cross-examine plaintiff’s witnesses. It is absurd for the plaintiff himself to ask the court to schedule the cross-examination of his own witnesses because it is not his obligation to ensure that his deponents are cross-examined. Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move."

"...when the lone eyewitness for the prosecution did not see how the attack commenced, the trial court cannot presume from the circumstances of the case that there was treachery. Circumstances which qualify criminal responsibility cannot rest on mere conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable existence."

Doctrine

• #### 1. Testimonial Confrontation is Waivable (Rule 115§, Section 1(f)):.

"However, the right of confrontation and cross- examination is a personal one. It is not an absolute right which a party can claim at all times... 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 task of recalling a witness for cross-examination is, in law, imposed on the party who wishes to exercise said right... Having presented his witnesses, the burden shifts to his opponent who must now make the appropriate move."

• "Circumstances which qualify criminal responsibility cannot rest on mere conjectures, no matter how reasonable or probable, but must be based on facts of unquestionable existence... Settled is the rule that treachery cannot be presumed but must be proved by clear and convincing evidence, or as conclusively as the killing itself."

• "...alibi is an inherently weak defense because it is easily fabricated... alibi becomes less plausible as a defense when it is corroborated only by a relative or a close friend of the accused."

• "The records are bereft of any showing that the appellant objected to the duplicity of the information by filing a motion to quash before his arraignment. Hence, he is deemed to have waived such defect."

1. Direct Objections Required: The waiver of the right of cross-examination is strictly implied from a party’s failure to raise any objections or execute a motion to strike during the trial. If the defense has persistently demanded the appearance of the witness, objected in writing to the closing of the evidence without cross-examination, and filed a timely motion to strike, no waiver can be presumed, and the incomplete testimony must be excluded.
2. No Presumed Treachery for Sleeping Victims: Although killing a sleeping victim generally constitutes treachery, this rule applies only when there is direct evidence of how the attack started. If the witness only woke up after the first blows were struck, the court is legally prohibited from presuming that the victims were attacked while sleeping.

• This case has a DIRECT relationship to the requested topic: Rights of the Accused (Rule 115) > Right of Confrontation and Cross-Examination (Section 1(f)), and an INCIDENTAL relationship to Bail (Rule 114).
• People v. Abatayo stands as the leading authority defining the implied waiver of the right of cross-examination. It integrates Rule 115§ and Rule 113/114 by demonstrating that while the Constitution provides an accused with an extensive armor of procedural and substantive rights, these rights are shields, not weapons.
• An accused who is arrested and detained without bail under Rule 114 for a capital offense has a powerful interest in an expeditious trial. However, the accused and his counsel cannot use their own procedural silence or failure to follow up as a tactical weapon to subsequently derail a conviction on appeal.
• Abatayo establishes that the burden of maintaining a rigorous and active defense rests continuously on the accused's counsel; once a witness is presented on direct, the trial court's duty of providing due process is fulfilled by offering a real opportunity for cross-examination, but it is the defense's sole and positive obligation under Rule 115§ to actively pursue and complete that cross-examination, failing which they forfeit the right and must suffer the consequences.

Separate Opinions

• NOT IN RECORD (The decision of the Second Division, penned by Associate Justice Callejo, Sr., was concurred in by Justices Puno, Quisumbing, Austria-Martinez, and Tinga. No separate concurring or dissenting opinions are recorded in the decision of G.R. No. 139456).