MikeLigalig.com

By Bohol Chronicle

After the Presiding Judge of a regional trial court handling the murder case against businessman-board member candidate Eduardo Enerio allegedly acted with manifest bias when it ruled on the Accused' Motion for Judicial Determination of Probable Cause without prior hearing as required under the Rules of Court, counsels of the accused had filed Tuesday an Omnibus Motion; 1) for reconsideration and 2) for Inhibition.

Accused Enerio, through his counsels, cited that since RTC Branch 47 Presiding Judge Suceso Arcamo has already made his own conclusions which are now being questioned, there is however that natural and adamant propensity of persons to stick to their conclusions, especially so when questioned, just to show that they are right.

Thus, in order to afford Accused full confidence in the subsequent proceedings of this case, and to spare the Honorable Judge, who we regard with so much respect, from such sticky situation of having to reverse himself, Enerio prayed that the Honorable Presiding Judge inhibit himself from resolving the Motion for Reconsideration.

ERROR

On March 29, 2010 Judge Arcamo issued an Order denying the Motion for Judicial Determination of Probable Cause filed by the accused. Copy of the Order was received by his counsels only on 30 March 2010.

In the Motion for Reconsideration, the accused counsels said the Honorable Court should have conducted a hearing first to promote and protect the rights of herein Accused considering the fact that Accused is charged with a capital offense, and since complainant's rights and position on the matter are affected and/or prejudiced by the said motion.

The outright denial of Accused's Motion without hearing is a violation of Section 4. of the Rules of Court, Enerio's counsels said..

NEW FOUND EVIDENCE

The counsel of the accused also pointed out the Honorable Court has more reason to determine probable cause since Accused has found a new evidence, that if properly considered, could have firmly negated the findings of the Investigating Prosecutor that probable cause exist to indict him for Murder.

This new found evidence, which allegedly was deliberately concealed and suppressed by the Investigating Police Officer and was not submitted to the Prosecutor and is very material in the proper determination if indeed probable cause for murder exists against Accused.

The pieces of evidence was discovered by the Accused only on March 5, 2010, after he was able to secure a copy of the Police Blotter of the same only last March 8, 2010.

The said new found evidence, as extracted from the main Police Blotter of the PNP Tagbilaran City Station, was a bag containing belongings and test papers with the name of the victim Jack Lord Decasa found by a street cleaner at about 11:00 o'clock a.m. of 18 November, 2009, at the back portion of City Central, Espuelas Street.

The street cleaner then give the bag to Eutorgio N. Telmo, Jr., Punong Barangay of Booy District, Tagbilaran City who personally turned over the bag to the city police.

ARMED ASSASSIN

Also found inside the bag was a black magazine porch, with two silver color .45 cal. magazine and 11 live ammunition. The said items are under the custody of City Police Investigation Section.         

The finding of the bag containing the stated pieces of evidence by a street cleaner at the back of the City Central School, along Espuelas Street, strongly supports the allegations of accused' witness that there were actually two men: one man (the victim) armed with a gun who went up to the second floor of the building where accused lives; and the second man who stayed in his motorcycle across the street from the building, waiting for his companion, and who drove away when he saw accused' employee cross the street to Soledad Suites to ask for assistance.

Enerio's counsels said such findings negates complainant's and his witness' claim, as well as the insinuation and/or conclusion of the Investigating Police Officer, SPO1 Bagotchay, that the victim's gun found and recovered at the crime scene was planted by accused.

It strongly supports accused' and that of his witness' testimonies that the victim who entered accused' building was armed with a gun, and establishes the presence of a second man with a get away vehicle;

Said vital document entered in the official public record of the Tagbilaran Police Station, and the pieces of evidence listed therein, if considered, would have clearly established that there is no probable cause for murder against accused, and that in fact such only prove that it was the victim who intended to kill herein accused.

Thus, a hearing should have been conducted to properly determine probable cause, and this Honorable Court should not have relied solely on the resolution and other documents submitted by the Prosecution since a new found evidence not considered by Prosecution during the Preliminary Investigation was submitted by Accused, his counsels contended.

Cited also was the mandate of the judge to first determine probable cause for the arrest of the accused, to insulate from the very start, those who are falsely charged of crimes from the tribulations, expenses and anxiety of a public trial.

The counsels of the accused also prayed that pending resolution of the Omnibus Motions, the Warrant of Arrest must be recalled.

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