Gamboa vs. Cruz

An order denying a motion to acquit (or a motion to quash) is interlocutory, not a final order; it is neither appealable nor reviewable by certiorari, the appropriate remedy being to continue with trial, reiterate the defenses, and, if convicted, raise the matter on appeal from the final judgment. The constitutional right to counsel under Article IV, Section 20 of the 1973 Constitution and Article III, Section 12 of the 1987 Constitution attaches at the commencement of custodial investigation — when the investigating officer begins to ask questions designed to elicit admissions or confessions — and does not apply to a pre-indictment police line-up where the suspect is not interrogated and the process has not shifted from investigatory to accusatory.

On 19 July 1979, petitioner Cristopher Gamboa was arrested without a warrant for vagrancy and detained at Precinct 2, Manila. The following day, he was included in a police line-up of five detainees. Complainant Erlinda B. Bernal pointed to him as “a companion” in a robbery. After the identification, the other detainees were returned to their cell, but petitioner was ordered to remain and was made to sit in front of the complainant while the latter gave her statement to the police. An information for robbery was subsequently filed. Petitioner, through counsel, later sought to terminate the case without presenting his defense, asserting that the uncounselled line-up vitiated the proceedings.

• Arrest and Detention: Petitioner was arrested without a warrant on 19 July 1979, at about 7:00 a.m., by Patrolman Arturo Palencia for vagrancy. He was brought to Precinct 2, Manila, booked, and detained with several other persons.

• Police Line-up and Identification: On 20 July 1979, petitioner was included in a line-up of five detainees. Complainant Erlinda B. Bernal pointed to petitioner and stated, “that one is a companion.” After the line-up, the other detainees were returned to their cell, but petitioner was ordered to stay. He was then made to sit in front of the complainant while the latter was being interrogated by the police investigator. Petitioner was not asked any questions and gave no statement.

• Filing of Information and Arraignment: An information for robbery was filed against petitioner on 23 July 1979. He was arraigned on 22 August 1979. Trial proceeded, with the prosecution presenting its evidence.

• Prosecution’s Evidence and Demurrer: The prosecution formally offered its evidence and rested on 2 April 1980. At the hearing on 14 July 1980, petitioner’s counsel manifested that he would file a Motion to Acquit or Demurrer to Evidence, which was subsequently filed on 13 August 1980. The motion contended that the line-up, conducted without notice to and in the absence of counsel, violated petitioner's constitutional rights to counsel and to due process.

• Denial of Motion: On 23 October 1980, respondent judge issued the assailed order, finding the motion without merit and setting the case for the presentation of defense evidence on 28 November 1980.

• Violation of Right to Counsel and Due Process: Petitioner argued that the police line-up, conducted without notice to and in the absence of his counsel, violated his constitutional rights to counsel and to due process of law, rendering the subsequent proceedings null and void.

• Grave Abuse of Discretion: Petitioner contended that respondent judge acted in excess of jurisdiction and with grave abuse of discretion in denying the Motion to Acquit, because the denial ignored the constitutional infirmity that tainted the identification.

• Line-up Not Part of Custodial Investigation: The Solicitor General countered that the police line-up was not part of the custodial inquest; at that stage, petitioner had not yet been held to answer for a criminal offense, no interrogation had been conducted, and the accusatory process had not yet commenced. Hence, petitioner was not entitled to counsel.

• No Violation of Right to Counsel: Respondent maintained that petitioner was not deprived of his right to counsel because the police did not exact any confession from him; it was the complainant, not petitioner, who was being investigated. The identification occurred before adversary judicial proceedings were initiated, and neither the Constitution nor prevailing jurisprudence requires counsel at a pre-indictment line-up of this nature.

• Propriety of Certiorari: Whether a petition for certiorari and prohibition lies against an order denying a Motion to Acquit (demurrer to evidence).

• Right to Counsel During Police Line-up: Whether the police line-up, conducted without notice to and in the absence of counsel, violated petitioner’s constitutional right to counsel under Section 20, Article IV of the 1973 Constitution.

• Due Process: Whether petitioner was denied due process of law.

• Propriety of Certiorari: An order denying a Motion to Acquit, like an order denying a motion to quash, is interlocutory and not a final order. It is neither appealable nor a proper subject of a petition for certiorari. The correct remedy is for the accused to proceed with trial, reiterate the objections as defenses, and, if convicted, raise the same issues on appeal from the final judgment. Petitioner’s failure to move to quash before pleading, and his filing of a demurrer only after the prosecution rested, compounded the procedural error; under Section 8, Rule 117 of the Rules of Court, objections that could have been grounds for a motion to quash are deemed waived, except lack of jurisdiction over the offense or failure of the information to charge an offense, neither of which applied. The denial did not constitute grave abuse of discretion, as the trial court considered petitioner’s arguments and merely required him to present his evidence.

• Right to Counsel During Police Line-up: The constitutional right to counsel attaches at the start of custodial investigation — when an investigating officer begins to ask questions to elicit information, admissions, or confessions from the suspect. The police line-up in this case was not part of a custodial inquest; petitioner had not been interrogated, nor had adversary judicial proceedings been initiated against him. The accusatory process had not yet set in. As the police did not elicit any statement from petitioner during the line-up or the subsequent confrontation, no right to counsel had accrued at that stage. While the Philippine Constitution extends the right to counsel earlier — upon investigation — than the U.S. Constitution (where the right attaches only at or after the initiation of adversary judicial proceedings, per Kirby v. Illinois), the line-up here did not yet constitute an investigation of petitioner.

• Due Process: No denial of due process occurred. Petitioner was represented by counsel of his choice throughout the trial, was accorded the opportunity to be heard, and could have presented evidence to substantiate his defense. Due process abhors the absolute lack of opportunity to be heard, which was not the case. Petitioner elected to file a demurrer instead of presenting his evidence.

• Right to Counsel During Custodial Investigation — Under Section 20, Article IV of the 1973 Constitution (and the equivalent Section 12, Article III of the 1987 Constitution), the right to counsel attaches upon the start of custodial investigation, i.e., when the investigating officer begins to ask questions designed to elicit information, admissions, or confessions from the person under investigation. A police line-up that is not part of a custodial inquest and does not involve interrogation of the suspect does not trigger this right. The suspect is not yet entitled to counsel at this pre-accusatory stage.

• Interlocutory Orders and Certiorari — Orders denying a motion to quash or a motion to acquit (demurrer to evidence) are interlocutory. They are unappealable and cannot be the subject of a petition for certiorari. The aggrieved party must proceed to trial, preserve the objections, and raise them on appeal from the final judgment. The extraordinary writ of certiorari is available only upon a showing of capricious, arbitrary, and whimsical exercise of power amounting to lack or excess of jurisdiction — a showing not met by a mere denial of such a motion.

• Waiver of Objections — Under Section 8, Rule 117 of the Rules of Court, if an accused does not move to quash the complaint or information before pleading, all objections that are grounds for a motion to quash are deemed waived, except when the complaint or information does not charge an offense, or the court lacks jurisdiction over the offense.

• “When petitioner was Identified by the complainant at the police line-up, he had not been held yet to answer for a criminal offense. The police line-up is not a part of the custodial inquest, hence, he was not yet entitled to counsel.” — This passage encapsulates the ratio that the right to counsel had not yet attached.

• “An order denying a Motion to Acquit (like an order denying a motion to quash) is interlocutory and not a final order. It is, therefore, not appealable. Neither can it be the subject of a petition for certiorari.” — The controlling procedural rule that barred petitioner’s remedy.

• “[T]he moment there is a move or even an urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel.” — The Court’s admonition to police investigators on when the right to counsel crystallizes.

• Kirby v. Illinois, 406 U.S. 682 (1972) — Distinguished. The U.S. Supreme Court held that the Sixth Amendment right to counsel attaches only at or after the initiation of adversary judicial proceedings; a pre-indictment police station show-up did not require counsel. The Philippine Constitution extends the right earlier, but the case nonetheless illustrated that a line-up prior to formal charge does not necessarily trigger the right.

• Collins v. Wolfe, 4 Phil. 534; Mill v. Yatco, 101 Phil. 599; Acharon v. Purisima, 13 SCRA 309 — Followed. These cases established the rule that the denial of a motion to quash is interlocutory and cannot be challenged by certiorari; the accused must proceed to trial and raise the issue on appeal.

• People v. Galit, 135 SCRA 465; Morales, Jr. v. Enrile, 121 SCRA 538 — Cited for the rule that custodial investigation requires the presence of counsel and that any waiver must be in writing and in the presence of counsel.

• Phil. Virginia Tobacco Administration v. Lucero, 125 SCRA 337; F.S. Divinagracia Agro-Commercial, Inc. v. Court of Appeals, 104 SCRA 180 — Cited for the standard of grave abuse of discretion required for certiorari to issue.

• Section 20, Article IV, 1973 Constitution (Bill of Rights) — Provided that any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. Applied to determine that the right attaches at the start of custodial investigation, not during a pre-accusatory line-up without interrogation.

• Section 12, Article III, 1987 Constitution — Restated the right to counsel during investigation in substantially similar terms; invoked to clarify that the constitutional intent is to extend protection at the moment of investigation, but still not at a mere identification line-up.

• Section 1, Rule 117, Rules of Court — Governs the time to move to quash; cited to support that a defendant must move to quash before pleading, otherwise trial proceeds.

• Section 8, Rule 117, Rules of Court — Provides that failure to move to quash before plea constitutes waiver of all objections except lack of jurisdiction over the offense and failure to charge an offense. Applied to bar petitioner’s collateral attack after pleading.

Justices Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Cortes, Griño-Aquino, and Medialdea concurred. Justice Cruz filed a separate concurrence, emphasizing that no improper suggestions were made by the police to influence the identification, but reserving judgment for future cases where line-ups are conducted in a grossly suggestive manner. Justice Gutierrez, Jr., concurred pro hac vice.

• Chief Justice Yap, dissenting — Argued that the investigation commenced not at the line-up itself, but when petitioner was singled out and made to sit in front of the complainant while the latter gave her statement to the police. At that point, custodial investigation had begun, and petitioner was already under investigation for the commission of an offense, thus entitled to be informed of his right to counsel. The majority’s view that no investigation occurred because petitioner was not asked questions was unduly restrictive.

• Justice Sarmiento, dissenting, joined by Justice Gancayco — Maintained that because petitioner was already in custody (detained for vagrancy), the line-up and subsequent confrontation constituted a “critical stage” where the process became adversarial, and the assistance of counsel was constitutionally required. The confrontation was “pointedly suggestive” and tainted, akin to an uncounselled confession condemned in People v. Hassan. The dissent further argued that the Court should overlook procedural technicalities (the improper choice of remedy) and resolve the petition on its constitutional merits, as the fairness of the entire proceeding was compromised.