Monday, April 27, 2009


From the Manila Times:

Court of Appeals acquits Cpl. Smith of rape

Court also orders his ‘immediate release’

By William B. Depasupil, Reporter

THE Court of Appeals on Thursday acquitted US Lance Cpl. Daniel Smith for raping Suzette Nicolas, more popularly known as “Nicole,” inside the Subic Bay Freeport more than three years ago.

In a 71-page decision penned by Associate Justice Monina-Arevalo Zena­rosa, the court’s Special Eleventh Division reversed the rape conviction handed down by Makati Regional Trial Court Judge Benjamin Pozon on November 1, 2005. Pozon had sentenced Smith to 40 years in prison or reclusion perpetua.

In the same decision, the appellate court also ordered the immediate release of Smith from detention “unless held for any other lawful cause.”

According to the Court of Appeals, it found Smith’s appeal meritorious as it cited a number of facts and circumstances that were ignored and overlooked by the Makati court.

The justices cited, among others, the testimony of then 22-year-old Nicole that after dancing with Smith for 15 minutes or so, he asked her to go out for some fresh air, and that was supposedly the last thing she could remember.

Nicole also told the Makati court that when she regained consciousness, Smith was already on top of her, kissing her all over, even as she tried to resist.

“This gap in her narration with the malingering explanation that she was dizzy and could not remember is dubiously fanciful for being what the court perceptively describes as ‘contrary to ordinary experience of man,’” the appellate court said.

Intoxication in question

The appellate court also pointed out that the degree of Nicole’s intoxication was not clearly established based on the testimony of Dr. Kenneth Go, an expert on toxicology. He had admitted to not performing a blood test on Nicole that could have provided a more accurate basis for determining her level of intoxication.

The court also said it found that there is more to the exception than to the rule “that conclusions and findings of fact should not be disturbed unless for strong and cogent reason.”

“Under the criminal justice system in this country, the overriding consideration is not whether the court doubts the innocence of the accused but whether it entertains a reasonable doubt as to his guilt,” the new ruling said.

“As in this case, a careful and judicious perusal of the evidence on record does not convince the prudent mind about the moral certainty of the guilt of the accused, hence, we must acquit,” according to the justices.

On the rape charge

The Court of Appeals also noted that the information charges Smith with rape by means of “force, threat and intimidation” and “taking advantage of the intoxication of the victim.”

“But no evidence was introduced to show force, threat and intimidation applied by the accused upon Nicole even as prosecution vainly tried to highlight her supposed intoxication and alleged unconsciousness at the time of the sexual act,” the appellate court said.

The information, the court added, did not specify that Nicole was deprived of reason and was rendered unconscious. “Hence, evidence as to said means of committing rape cannot be considered and which indeed was objected to at every step during the trial.”

Nicole’s recantation

In exonerating Smith, the Court of Appeals pointed out that “we disregard the alleged recantation of Nicole” submitted on March 8, 2009, “nor did we open the sealed draft decision penned by retired Justice Agustin Dizon which was attached to the records.”

“Wherefore, on reasonable ground, the accuse Lance Corporal Daniel Smith is hereby acquitted of the crime of rape as alleged in the information. He is ordered released immediately unless held [for another] lawful case,” the decision said.

The Dizon draft decision also acquitted Smith of rape. A copy of the draft was obtained by The Manila Times, which later came out with an exclusive story.

The supposed leak of the Dizon draft is now the subject of a Court of Appeals investigation that was ordered by the Supreme Court.

Nicole recanted her story in a five-page statement executed on March 12, 2009. She also signed on the same a document attesting that she received P100,000 as part of the compensatory damages awarded to her by the Makati court after finding Smith guilty.

Also on March 12, Nicole terminated the services of her counsel, lawyer Evalyn Ursua. A few days later, Nicole’s mother confirmed that her daughter was already in the US and set to marry her American boyfriend.

Smith was in the custody of the US Embassy in Manila, pending the outcome of his appeal. He was transferred to US custody upon his conviction following agreements between Foreign Affairs Secretary Roberto Romulo and US Ambassador to the Philippines Kristie Kenney.

But the Supreme Court in a 9-4 decision on February 11, voided the Romulo-Kenney agreements and ordered the transfer of Smith to the custody of Philippine authorities.

It ordered that Smith be placed under the custody of Philippine authorities and for Romulo to negotiate with Kenney for “the appropriate agreement” on detention facilities under Philippine authorities.

Despite the Supreme Court order, Smith was never transferred from the embassy.