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Tuesday, January 04, 2005
CA scraps bail, orders arrest of murder suspect
CEBU CITY -- The Court of Appeals (CA) has ordered the arrest of a suspect in the murder of a university student during a wave of fraternity violence two years ago.
At the same time, it cited a Cebu-based Regional Trial Court (RTC) judge for ignorance of the law, for granting the suspect bail when the case was non-bailable.
Associate Justice Vicente Yap of the 8th Division said in his decision, dated Dec. 23, that RTC Judge Olegario Sarmiento granted the P20,000 bail without calling for a hearing and even if murder suspect Anthony John Apura didn't ask for it.
The Supreme Court (SC) is already conducting its own administrative investigation against Judge Sarmiento who, in an interview Monday, expressed resentment over the appellate court's "interference."
"It is most unfair. They (the appellate court) are preempting the Supreme Court in the administrative case. The CA clearly strayed into matters outside the issues brought before them in the petition for certiorari. They didn't even require me to comment," Sarmiento said.
Surrendered
He wants the CA to "at least partially reconsider" its order and leave the legality of his granting of the bail to the SC which, he revealed, has already asked him to submit his comment.
Apura is among the nine respondents in the murder case that stemmed from the July 19, 2003 slaying of Mark James Enriquez.
Enriquez was the 19-year-old University of San Carlos student who was mauled and shot in the head by alleged members of the Alpha Kappa Rho fraternity inside a bar on Archbishop Reyes Ave., Banilad.
Although the alleged gunman was one Sherwin Que, Apura was supposedly impleaded as a John Doe in the murder case that the Office of the Cebu City Prosecutor filed with the RTC four days after.
He was arrested on Aug. 1 that year after he, accompanied by his father, surrendered to the Criminal Investigation and Detection Group (CIDG), where he was identified by one of the prosecution witnesses.
The day after he was identified, the CIDG brought him to the Office of the Cebu City Prosecutor, where an inquest investigation was conducted.
Illegal arrest
The inquest resulted in the amendment of the original non-bailable complaint where he was now named.
He was committed to the Bagong Buhay Rehabilitation Center (BBRC).
The Apura family's lawyer filed a motion, dated Aug. 5, 2003, seeking the dismissal of the murder charge against Anthony John, arguing that his arrest was illegal.
Sarmiento, last Aug. 8, issued an order directing the Office of the Cebu City Prosecutor to comment on the motion.
In the order, the next hearing was set on Aug. 25.
Apura, in Aug. 11, filed a motion for reconsideration and a separate motion to submit the original motion to dismiss for resolution, without further oral arguments.
On Aug. 13, during the hearing on the motion for reconsideration, Sarmiento ruled to send the murder case back to the Office of the Cebu City Prosecutor for further preliminary investigation and, in the meantime, allowed Apura to be released from the BBRC after paying P20,000 as bail.
The prosecution filed a motion for reconsideration but Sarmiento, last Aug. 13, 2003, denied it.
This resulted in the filing of the petition for certiorari before the CA.
"In the instant case, as borne in he records, respondent did not move that he be released on bail, nor even file any motion or petition to that effect," Yap said in the decision, which was signed by Associate Justices Mercedes Gozo-Dadole and Pampio Abarintos.
'Irregular'
"There was nothing in the motion to dismiss filed by the respondent praying for the grant of bail, hence the order of Judge Olegario Sarmiento granting bail is clearly improper and irregular," the CA added.
According to Yap's decision, Sarmiento should have at least called for a hearing to give the prosecution a chance to present its case.
"It is a well-established rule of law that bail is not a matter of right and requires a hearing where the accused is charged with an offense which is punishable by death, reclusion perpetua or life imprisonment," the decision read.
"Bail may be granted only after a motion that, for that purpose, has been filed by the accused and after a hearing has been conducted by the judge to determine whether or not the evidence of guilt is strong," it added.
The CA also quoted jurisprudence stemming from Larraņaga vs. Court of Appeals to stress another point: "The absence of a preliminary investigation will not justify a prisoner's release because such defect did not nullify the information and the warrant of arrest."
Sarmiento, in an interview, lamented that the CA should have limited itself to the legality, or lack of it, of his order granting the bail because that was the only point raised in the petition for certiorari.
He said if the CA thought it necessary to dwell on the things other than the points in the petition for certiorari, then it should have required him to submit comment.
Warrantless
"I have already answered this point after the Supreme Court asked me to submit comment. Maybe I can furnish the CA a copy of my comment," he said.
Sarmiento's comment, dated Oct. 11, 2004, focused on the illegality of Apura's arrest and subsequent incarceration.
"If honestly believing that the arrest of Mr. Apura is invalid because it did not fall within the context of a warrantless arrest or a hot pursuit operation is right, then respondent judge stands by it," he said.
"Had he granted the motion to dismiss on the ground that the trial court did not acquire jurisdiction over the person of Apura because of the illegal arrest, accused would be released just the same. Yet, to strike a balance of the possible abuse on the rights of the accused and the effort of the police at prosecution of crimes, respondent did not categorically declare the arrest illegal but allowed the accused to post cash bail bond with an accompanying hold-departure order. At least, to get hold of the accused while preliminary investigation is conducted," he stressed. (KNR)
(January 4, 2005 issue)
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