Subic van driver says there was no rape

He was the witness who did not get a chance to take the stand and tell the court what "really happened" inside the vehicle he was driving on the night a 21-year-old United States Marine raped a Filipina.

Timoteo Soriano Jr., the only other Filipino inside the Hyundai Starex van where an American soldier sexually abused 22-year-old "Nicole" in Subic, Zambales last year, did not get an opportunity to tell the world his version of the truth.

But a week after Makati City regional trial court (RTC) Judge Benjamin Pozon sentenced Lance Corporal Daniel John Smith of the US Marine Corps to a 40-year jail sentence for committing the crime of rape, the "missing link" finally told The Star what he could have told the Makati City court.

"If you were to ask me, there was no rape. I don’t know about other people’s views," he said when asked if Smith raped Nicole.

In an exclusive interview, Soriano said he pities Smith, who is now locked up in the records room of the Makati City Jail as a convicted felon.

"I pity Smith," he said in the presence of his lawyer, Raulito Paras, adding that he believes his testimony could have resulted in a different verdict.

Soriano said he is not sure of how things were actually said in court about specific incidents that took place on the night of Nov. 1, 2005.

However, Soriano said there was no truth to the claim that Smith carried Nicole on his back (bakay-bakay) from the Neptune Club’s door and loaded her into the van.

"No. She got into the van willingly when I opened the door," Soriano said.

Soriano’s statement belies the testimony of prosecution witnesses who said that they saw Smith carry Nicole on his back and open the sliding door of the vehicle by himself without anyone’s assistance.

Soriano, however, said it was true that Nicole was left in the club’s parking lot with her pants pulled down after she was carried out of the van.

The 33-year-old company driver said that if he had been called to testify, he would have told the court what he knows, regardless of which side of the case his testimony would favor.

"What I would have said would not have been for one side or the other. I would have spoken about what I know, regardless," he said.

Soriano said it is also not true that Nicole got very drunk after consuming various alcoholic beverages inside the Neptune Club.

"She had taken alcohol but she was not passed-out drunk as they said she was. She spoke but I could not understand everything she said," Soriano said.

"The radio was playing but the music was not so loud," he added. "The radio was playing but we could still understand each other inside the vehicle. They were in the back and I didn’t hear (everything they said). They spoke of different things but Nicole never once shouted from the back."

Pozon, after months of marathon hearings, found Smith guilty of the crime of rape based on the testimony of 23 prosecution witnesses.

Smith’s lawyers, led by Benjamin Formoso, who worked up with other defense lawyers in representing three other US Marines who allegedly cheered during the rape — Lance Corporals Keith Silkwood, Dominic Duplantis, and Staff Sergeant Chad Carpentier — presented only seven.

The prosecution wanted Soriano to testify but he refused by invoking his right against self-incrimination because he was, technically, included among the accused in the case.

‘Roundabout’

Paras said his client’s role in the case changed from one thing to another — from the time of the rape to the filing of charges before the Olongapo City Prosecutor’s Office, the raffling of the case to an Olongapo City Judge and all the way to the Makati City RTC.

"Mr. Soriano is no ordinary witness because as I said, that is left and right," Paras said. "Officially, he was a witness, he was a respondent, eventually he was an accused, he was discharged again as an accused and then he was the accessory, and then an accomplice, and then he was a principal, and then eventually he was accused, it was really roundabout."

"As I said, (Soriano) has been through everything. If there is one who had a very complicated situation during the entire case, that person would be him," Paras added.

The defense also listed Soriano as a possible witness, but did not present him despite the fact that Soriano was willing and waiting to be called.

Paras said they waited for Smith’s lawyers or the lawyers of the three other Marines to call for their clients because they could not refuse since "he had no technical issue with that."

"Whether we like it or not, he can be forced to testify by the defense by means of a subpoena," he said. "I can only speculate, I guess they were so comfortable, worst of all so relaxed, that he is no longer needed by the defense."

Soriano said it is not about testifying for a given side because it is the court that will eventually decide on how his testimony will be appreciated.

"If they did not file a case against me, I would have testified," Soriano said. "There was no problem with me testifying. The problem was that, if I testified, what about my case? These things came one on top of another."

Unfortunately, Paras said his client may no longer see the day that Soriano will be called to testify on what happened inside the van he drove based on what he saw, heard and felt.

He said that, on appeal, appellate or higher courts review based on the records of the lower court and will only send cases back for re-trial if there is new evidence found.

In Soriano’s case, Paras said the trial has ended. There is already a decision, and it would be up to Smith’s lawyers to convince the higher court that there must be a new trial because a new witness has surfaced, he added.

"It can be done — but under exceptional circumstances. I don’t think they can do that while appeal is pending. On appeal, if you will ask for a new trial, you have to be able to convince the Court of Appeals that you have new evidence, you have discovered evidence, or (there is) some evidence that may have been suppressed before, which is available now," he said.

Paras also said he does not know if the defense can call Soriano a suppressed witness or say his testimony is suppressed evidence "because at that time, he was actually available to the defense. He only refused to testify for the prosecution because he has grounds to refuse."

Smith’s lawyers are now trying to get him out of jail using provisions of the Visiting Forces Agreement (VFA) that give him the privilege to be detained in a facility agreed upon by both the US and Philippine governments while his case is on appeal.

Today, Pozon will hear a motion for reconsideration regarding his order to detain Smith at the MCJ, where Smith has been staying for seven days.

US Ambassador Kristie Kenney and Justice Secretary Raul Gonzalez have already signed an agreement allowing for Smith’s return to the US embassy in Manila, where he stayed during the trial.

Nicole’s private lawyer, Evalyn Ursua, said Soriano was "totally useless to the defense," a statement made in reaction to Soriano’s statements.

"Obviously (Soriano) is guilty of perjury. On the basis of documents only, we can sue him for perjury. He’s a completely incredible witness," Ursua said.

Ursua said she advises Soriano not to issue public statements, because there is still a case against pending him as a participant in the rape.

"We are still going after him," she said, adding that she believes that a separate trial will be held regarding the case against Soriano now that Smith has been convicted.

"He knows that he is guilty in participating in the crime of rape. Since Smith has been convicted, he might be convicted too. He’s digging his own grave," she added.

"He was not even courageous enough to testify under oath. The defense was also scared that all of the accused may be convicted. Had they presented him, all four could have been convicted. They were scared of the truth, that we will have evidence of conspiracy," Ursua said.