People vs. Barasina, 229 SCRA 450 (1994)
Fiscal Mayo of Olongapo City succumbed to a single bullet on his side of his face fired from an unlicensed .45 caliber firearm while he was walking at the VIP parking lot of the Victory Liner Compound at Caloocan City. It was herein accused-appellant who was accountable therefor, resulting in his being charged with the separate misdeeds of illegal possession of a firearm and murder.
Accused-appellant raised that the manner of the extrajudicial confession and waiver were extracted from him in the absence of a lawyer of his own choice. He maintains that he procured the services of Atty. Romeo Mendoza in the course of the custodial investigation but it turned out that it was Atty. Abelardo Torres who assisted during the interrogation upon the directive of P.Lt. Surara. Accused-appellant concludes that the extrajudicial statement can not thus be utilized against him for want of competent, independent counsel of his own choice.
Whether or not the CA erred in affirming the ruling of the trial court admitting in evidence the extrajudicial confession of the herein accused-appellant
No, the claim of herein appellant that he was assisted by counsel, not of his own choice, is belied by the records. During the custodial investigation, he failed to indicate in any manner and at any stage of the process that he wishes to consult with an attorney of his own preference before speaking or giving any statement. Indeed, there is no showing that he manifested any resistance when he was assisted by Atty. Torres.
Section 12(1), Article 3 of the 1987 Constitution dealing with the rights of a person undergoing investigation reads:
Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
The phrase “competent and independent” and “preferably of his own choice” were explicit details which were added upon the persistence of human rights lawyers in the 1986 Constitutional Commission who pointed out cases where, during the martial law period, the lawyers made available to the detainee would be one appointed by the military and therefore beholden to the military.
Withal, the word “preferably” under Section 12(1), Article 3 of the 1987 Constitution does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling his defense. If the rule were otherwise, then, the tempo of a custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who for one reason or another, is not available to protect his interest. This absurd scenario could not have been contemplated by the framers of the charter.