People vs.

Elias Barasina
Facts:
Fiscal Lino Mayo of Olongapo was shot by a single bullet on his side of his face while he was walking at the VIP
parking lot of Victory Liner Compound. Elias Barasina was the suspect in the crime. 2 criminal charges were
charged against him: 1. Illegal possession of firearms and 2. Murder. Barasina was indifferent in entering any
plea hence, the plea of not guilty to the 2 criminal charges was entered by the court.
During the investigation, when Cpl. Del rosario informed Barasina of his constitutional rights, he stated his desire
to have a lawyer. Hence, as instructed by Lt. Surara, a private practitioner named Atty. Abelardo Torres was
fetched from his office. When Atty. Torres arrived at the police station, he conferred with Barasina for 30 mins.
Barasina indicated his desire to give a statement in the presence of Atty. Torres. Cpl. Del Rosario prepared a
written appraisal of Constitutional rights signed by Atty. Torres and Barasina.
RTC: Barasina is guilty of murder and illegal possession
CA: modified
Barasina contention: RTC erred in admitting in evidence the extrajudicial confession of Barasina because the
manner the extrajudicial confession and waiver were extracted from him was without the presence of the lawyer
of his own choice. He alleges that he procured the services of Atty. Mendoza but it turned out that it was Atty.
Torres who assisted during the interrogation. He says that extrajudicial confession cannot be utilized against him
for want of competent, independent counsel, of his own choice.
Issue: W/N the extrajudicial confession of Barasina can be used as evidence despite being done without the lawyer
of his choice.
Held: YES. Art. 3 sec. 12 of the 1987 Constitution provides that an accused has the right to be informed on his
right to remain silent and to have a competent and independent counsel preferably of his own choice. The word
preferably 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 attys. From handling his defense. If the rule is otherwise,
the tempo of a custodial investigation will be solely in the hands of the accused who can impede or obstruct the
progress of the interrogation by simply selecting lawyer who for one reason or another is not available to protect
his interest. In this case, during the custodial investigation Barasina failed to indicate in any manner and at any
stage of the process that he wishes to consult with an atty. of his own preference before speaking or giving any
statement. There was no showing that he manifested any resistance when he was assisted by Atty. Torres. The
hiring of Atty. Mendoza was an afterthought.
Note: The phrase “competent and independent” and preferably of his own choice were explicit details which were
added upon the persistence of human rights lawyers during the 1986 ConCom who pointed out cases where,
during the ML, lawyers made available to the detainee would be one appointed by military and is beholden to
them.
Double jeopardy: No double jeopardy because first jeopardy has not yet attached. Mere filing of two info charging
the same offenses is not double jeopardy for the simple reason that the primary basis of defense of double jeopardy
is that the accused has already been convicted or acquitted in the first case. It is the conviction or jeopardy of
being convicted or acquittal of the accused that bars further prosecution