The Department of Justice (DOJ) issued today a Resolution denying the petition for review of the resolution of the City Prosecutor of Olongapo City finding probable cause to indict Respondent L/Cpl Joseph Scott Pemberton (PEMBERTON) for the crime of murder of the victim Jeffrey Laude (LAUDE).
It may be recalled that on 11 October 2014, the lifeless body of LAUDE was discovered in the bathroom of Room No. 1, Celzone Lodge, Olangapo City. A joint parallel investigation was thereafter conducted by complainant Philippine National Police - Olongapo City Police Office (PNP-OCPO) and the United States Navy Criminal Investigative Service (NCIS) wherein they took the voluntary sworn statements of seven (7) witnesses.
After a judicious scrutiny of the evidence on record, the DOJ found that all the elements of murder are satisfied, thus, there is no reason to alter, modify, or reverse the resolution of the City Prosecutor of Olongapo City.
First, the killing of LAUDE has been certainly established.
Second, the various pieces of evidence presented, i.e., the CCTV footage of Ambyanz showing Mark Clarence Gelviro (GELVIRO), LAUDE, and Respondent PEMBERTON leaving the club together; the unequivocal statements of GELVIRO and Elias Gallamos (GALLAMOS) positively identifying Respondent PEMBERTON as the person who was last seen with LAUDE on the night he died; the result of the general physical examination conducted on Respondent PEMBERTON showing abrasions and light scratches on different parts of his body; Respondent PEMBERTON's latent print on one of the condoms found at the crime scene; and the unequivocal testimonies of Respondent PEMBERTON's fellow Marine servicemen who were with him on that fateful night, lead to no other conclusion than that Respondent PEMBERTON was the perpetrator of the crime.
Third, the results of the physical examination conducted on Respondent PEMBERTON and LAUDE's cadaver, as well as the ocular inspection of the crime scene, demonstrate the attendant qualifying circumstances of treachery, abuse of superior strength, and cruelty.
Finally, the killing is neither parricide nor infanticide as provided under the Revised Penal Code, as amended.
As to Respondent PEMBERTON's claim of the lack of any direct evidence linking him to the crime, the DOJ ruled that "absence of direct evidence does not preclude a finding of probable cause. It has been the consistent pronouncement of the Supreme Court that, in such cases, the prosecution may resort to circumstantial evidence."
As to the presence of qualifying circumstances in the commission of the crime, the DOJ found that treachery cleary attended the killing of LAUDE. The evidence reveals that the manner of attack employed by Respondent PEMBERTON rendered LAUDE unable to defend himself or to retaliate: Respondent PEMBERTON choked him from behind; the autopsy results as well as the examination conducted by the NCIS indicate that there were visible pressure marks and a circular purplish discoloration around his neck; and the Medico Legal Report shows that external portion of the right horn of his larynx is contused and that there is hematoma on the upper inner portions of the larynx below the glottis. The DOJ also noted the short span of time it took to kill LAUDE – his lifeless body was discovered thrity (30) minutes after GELVIRO left the room —indicates the suddenness of the attack. Moreover, since LAUDE went with Respondent PEMBERTON on his own volition to engage in sexual acts in exchange for money, LAUDE most probably did not expect to be in danger and, consequently, he was likely unable to defend himself against the unwarranted attack.
In appreciating the presence of the circumstance of abuse of superior strength, the DOJ noted that Respondent PEMBERTON is a member of the United States Marine Corps, which is known to have the strictest recruitment standards among the Uniformed Services of the United States Armed Forces. On the other hand, LAUIDE, albeit biologically a man, is a transgender who chose to adapt a woman's physical, appearance and behavior. Thus, it is clear that there is manifest physical disparity between Respondent PEMBERTON and LAUDE and that the former took advantage of his superior strength to cause the death of the latter, as evidenced by the multiple abrasions and contusions found on LAUDE.
With respect to the qualifying circumstance of cruelty, the autopsy results that LAUDE died of "asphyxia due to drowning and strangulation" show that while he was still breathing, Respondent PEMBERTON drowned him by forcefully submerging his head in the water inside the toilet bowl. Drowning LAUDE in a toilet bowl evidently indicates Respondent PEMBERTON's intention to degrade him.
As to Respondent PEMBERTON's claim that he was not given an opportunity to controvert the NCIS report during the preliminary investigation, the records show that despite several opportunities accorded to him, Respondent PEMBERTON failed to file his counter-affidavit or present any countervailing evidence. In any case, the essence of the right to due process is the right to be heard, and that right was accorded to Respondent PEMBERTON. The DOJ also emphasized that a preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence. In this case, the evidence presented has sufficiently established that Respondent PEMBERTON is probably guilty of the crime of murder and should be held for trial.