The accused, Carlos Lucero, is facing charges of illegal sale of shabu. He filed a demurrer to evidence, arguing that the prosecution failed to establish several key elements of the case. Specifically: (1) the police officers did not show the basis for conducting their buy-bust operation on Lucero; (2) the document authorizing the operation was inadmissible; and (3) the prosecution did not sufficiently prove that a sale was consummated between Lucero and the undercover officer. The defense argued that the police officers did not follow proper procedures and failed to read Lucero his constitutional rights.
The accused, Carlos Lucero, is facing charges of illegal sale of shabu. He filed a demurrer to evidence, arguing that the prosecution failed to establish several key elements of the case. Specifically: (1) the police officers did not show the basis for conducting their buy-bust operation on Lucero; (2) the document authorizing the operation was inadmissible; and (3) the prosecution did not sufficiently prove that a sale was consummated between Lucero and the undercover officer. The defense argued that the police officers did not follow proper procedures and failed to read Lucero his constitutional rights.
The accused, Carlos Lucero, is facing charges of illegal sale of shabu. He filed a demurrer to evidence, arguing that the prosecution failed to establish several key elements of the case. Specifically: (1) the police officers did not show the basis for conducting their buy-bust operation on Lucero; (2) the document authorizing the operation was inadmissible; and (3) the prosecution did not sufficiently prove that a sale was consummated between Lucero and the undercover officer. The defense argued that the police officers did not follow proper procedures and failed to read Lucero his constitutional rights.
-versus- CRIM. CASE No. 001 For: Violation of Section 5, Article II of Republic Act No. 9165
CARLOS LUCERO, Accused. x----------------------------------------x
DEMURRER TO EVIDENCE
The Accused, assisted by the counsels and unto this Honorable Court, respectfully moves to dismiss the above-entitled action for insufficiency of evidence.
The information was filed in this Honorable Court, and the accusatory portion reads:
Crim. Case No. 001 (For: Illegal sale of shabu)
That on or about the 1 st day of December, 2013, in the city of Malaybalay, province of Bukidnon, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there wilfully, unlawfully and feloniously sell dangerous drug consisting of shabu.
Contrary to law.
The accused pleaded Not Guilty to the charge. The prosecution presented on trial the testimonies of the arresting PNP officers.
STATEMENT OF THE FACTS
The facts as alleged by the PNP officers during the presentation of their evidence upon which the prosecution based the indictment of the accused are as follows:
On December 1,2013 at about 7 oclock in the evening, the PNP went to San Jose and knocked on the door of Mr. Lucero purportedly to buy shabu. Mr Lucero allegedly received the money and handed shabu to the poseur-buyer, there and then he was immediately arrested.
After admission of its offered exhibits, the prosecution rested its case.
ISSUES
I. The prosecution failed to establish that the PNP officers had the basis to conduct the buy- bust operation.
II. The machine copy of the alleged PDEA Authorization to Operate against Illegal drug Dealers is inadmissible to prove their authority to conduct the buy-bust operation.
III. Inability to present sufficient evidence to prove the consummation of the alleged sale of illegal drugs.
IV. There was non-observance of the procedure laid down in R.A. 9165 in the conduct of a buy-bust operation.
V. The PNP officers failed to state that they apprised the accused of his constitutional rights under Article III, Sec. 11 before he was arrested.
VI. The act of signing the inventory violated the constitutional right of the accused to remain silent.
ARGUMENTS
I.
It is stated in the PNP Manual on Anti-Illegal Drugs Operation and Investigation Sec. 11(c) that Good intelligence is indispensable in the planning and preparation for an operation. It must be a product of careful analysis of all relevant information such as maps, physical description of target premises, sketches, personality profiles of suspects, terrain and population analyses of the area(s) and other information that can contribute to the apprehension of suspects and/or seizure of prohibited items and evidence with the least danger posed to operating elements.
The arresting officers did not show their basis for conducting the buy-bust operation on Mr. Carlos Lucero. The court ruled in Quinicot v. People (G.R. No. 179700, June 22, 2009, 590 SCRA 458, 470.), Settled is the rule that the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary, especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. We have held that when time is of the essence, the police may dispense with the need for prior surveillance. In the instant case, having been accompanied by the informant to the person who was peddling the dangerous drugs, the policemen need not have conducted any prior surveillance before they undertook the buy-bust operation. Hence, it can be concluded that prior surveillance or test buy before a buy-bust operation can be done away. But this is subject to the condition that the police officers must have known the identity of the alleged seller beforehand by some means. The court held that prior surveillance or test buy is not necessary when the police officers are accompanied by an informant to the person peddling the dangerous drugs. In the case, the buy-bust team was not accompanied by an informant. The PNP officers did not establish how they knew the identity of Mr. Carlos Lucero. Their buy-bust operation was baseless.
II.
The document entitled PDEA Authorization to Operate Against Illegal Drug Dealers is merely a machine copy. There was no showing that there exists a record of the public document. While a public document does not require the authentication imposed upon a private document, there is a necessity for showing to the court that indeed a record of the official acts of official bodies, tribunals or of public officers exists. Sec. 24 of Rule 132 supplies the answer. The record of a public document may be evidenced by: a.) An official publication thereof; or b.) By a copy of the document attested by the officer having legal custody of the record or by the attestation of his deputy The attestation must state in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The case attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (Sec. 25, Rule 132, Rules of Court) In the case, there was no such attestation. Even if such documentary evidence submitted by the PNP officers would be taken as a private document. It was uncertified. Section 20, Rule 132 of the Revised Rules of Court provides that "before any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either: (a) by anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker. Thus, prior to the admission in evidence of a private writing, the identity and authenticity of the document sought to be presented must first be reasonably established. Where there is no proof as to the authenticity of the executor's signature appearing in a private document, such private document should be excluded (Paz v. Santiago, 47 Phil 334 [1925]). Their due and valid execution and their genuineness and authenticity must first be established, either by the testimony of any one who saw the writing executed or by evidence of the genuineness of the handwriting of the maker hereof. It is elementary that this Court cannot rightly appreciate firsthand the genuineness of an unverified and unidentified document; much less, accord it evidentiary value (People v. Sumalpong, 284 SCRA 464 [1998]). In People v. Gamiao (240 SCRA 254 [1995]), we declared, "[p]arenthetically, appellant failed to present in evidence the originals or the xerox copies of the documents hereinbefore discussed. The requirements for the admission of such secondary evidence in court were not satisfied. The Rules of Court provide that private documents require proof of their due execution and authentication before they can be received in evidence. When there is no such proof, the substitutionary documents may be excluded." Moreover, the documents submitted are mere photocopies of the originals. Thus, they are secondary evidence and as such are not admissible unless there is ample proof of the loss of the originals (Section 3, Rule 130, Revised Rules of Court). However, the loss of the originals have not been proved by the prosecution, neither have they shown that the original is a public record in the custody of a public office or is recorded in a public office, nor that the same is in the custody or under the control of petitioners. The due execution and authenticity of the documentary evidence presented not having been proved, and since these are mere photocopies, the loss of the originals of which was not previously established, the same are clearly inadmissible in evidence. (Ong vs People of the Philippines, G.R. No. 140904. October 9, 2000) Hence, the prosecution cannot rely upon this document for any purpose much less to prove that they have authorization from the PDEA.
III. As defined in Article 1 (ii) of RA 9165 Selling is any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for money or any other consideration. In the instant case, the information filed against Mr. Lucero is the selling of illegal drugs. The prosecution alleged that they knocked on the door purportedly to buy shabu and that the accused received the money and handed shabu to the poseur buyer. However, People vs. Macatingag, 576 SCRA 354, prescribed the requirements for the successful prosecution of the crime of illegal sale of dangerous drugs, as follows: The elements necessary for the prosecution of illegal sale of drugs are (1) the identity of the buyer and the seller, the object, and consideration; and (2) the delivery of the thing sold and the payment therefor. What is material to the prosecution for illegal sale of dangerous drugs is the proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. Furthermore, the prosecutions did not positively established the narcotics involved. In the case of People v. Simbahon , 449 Phil. 74, 83 (2003); Corino v. People , G.R. No. 178757, March 13, 2009.the Supreme court ruled that the narcotic substance itself constitutes the corpus delicti of the offense and the fact of its existence is vital to sustain a judgment of conviction beyond reasonable doubt. Also, in Malillin v. People , G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632. It was held that the identity of the narcotic substance must therefore be established beyond reasonable doubt. In PEOPLE OF THE PHILIPPINES,Appellee, v. WILSON SUAN y JOLONGON, Appellant. G.R. No. 184546 : February 22, 2010, the SC was compelled to acquit appellant in this case because the prosecution miserably failed to establish the identity of the substance allegedly seized from him. In addition, we find that there was a break in the chain of custody thereby casting doubt on the integrity and evidentiary value of the substance allegedly seized from the appellant. The defense notes that the prosecution fell short in proving that the actual sale took place. Neither was the evidence of corpus delicti presented in court. To repeat, the existence of dangerous drugs is a condition sine qua non for conviction for the illegal sale and possession of dangerous drugs, it being the very corpus delicti of the crime.
IV.
A buy-bust operation is a form of entrapment, which in recent years has been accepted as valid and effective mode of arresting violators of the Dangerous Drugs Law. People v. Agulay, G.R. No. 181747, September 26, 2008,566 SCRA 571, 594. It has been proven to be an effective way of unveiling the identities of drug dealers and of luring them out of obscurity. People v. Concepcion, G.R. No. 178876, June 27, 2008, 556 SCRA 421, 439. The nature of a buy-bust operation necessitates a stringent application of the procedural safeguards specificcaly crafted by Congress in RA 9165 to counter potential police abuses. People vs Joel Ancheta, GR 197371, 13 June 2012. Section 21 of Republic Act No. 9165 delineates the mandatory procedural safeguards that are applicable in cases of buy-bust operations and one of which is enunciated as follows: SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. x x x: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. In People v. Coreche, 596 SCRA 350, the Supreme Court explained that the concern with narrowing the window of opportunity for tampering with evidence found legislative expression in Section 21 (1) of RA 9165 on the inventory of seized dangerous drugs and paraphernalia by putting in place a three-tiered requirement on the time, witnesses, and proof of inventory by imposing on the apprehending team having initial custody and control of the drugs the duty to immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. The instant case originates from a buy-bust operation, which, as provided above by law and jurisprudence required the conduct of physical inventory and photograph immediately after seizure and confiscation, which must be done in the presence of the aforementioned third party representatives/witnesses. In case of People vs Umipang, G.R. No. 190321, the court pronounced that Indeed, the absence of these representatives during the physical inventory and the marking of the seized items does not per se render the confiscated items inadmissible in evidence. However, we take note that, in this case, the SAID-SOTF did not even attempt to contact the barangay chairperson or any member of the barangay council. There is no indication that they contacted other elected public officials. Neither do the records show whether the police officers tried to get in touch with any DOJ representative. Nor does the SAID-SOTF adduce any justifiable reason for failing to do so especially considering that it had sufficient time from the moment it received information about the activities of the accused until the time of his arrest. Thus, we find that there was no genuine and sufficient effort on the part of the apprehending police officers to look for the said representatives pursuant to Section 21(1) of R.A. 9165. A sheer statement that representatives were unavailable without so much as an explanation on whether serious attempts were employed to look for other representatives, given the circumstances is to be regarded as a flimsy excuse. We stress that it is the prosecution who has the positive duty to establish that earnest efforts were employed in contacting the representatives enumerated under Section 21(1) of R.A. 9165, People v. Garcia, 580 SCRA 259 or that there was a justifiable ground for failing to do so. People v. De la Cruz G.R. No. 177222, 29 October 2008, 570 SCRA 273. The prosecution, however, evidently failed to present any evidence showing compliance of this requirement. No physical inventory and photograph to be conducted in the presence of third party representatives were made. The prosecution only requested three barangay officials to affix their signatures in their alleged PNP drug operation document. This falls short of the requirement set by the law that the inventory and photographing of seized items must be conducted in the presence of a representative from the media, from the Department of Justice (DOJ), and from any elected public official. They even failed to show genuine and sufficient effort to seek such third-party representatives presence and adduce any justifiable reasons for failing to do so. In People v. Ulama, G.R. No. 186530, 14 December 2011 Supreme court posit, minor deviations from the procedures under R.A. 9165 would not automatically exonerate an accused from the crimes of which he or she was convicted. This is especially true when the lapses in procedure were recognized and explained in terms of justifiable grounds (People v. Martin G.R. No. 193234, 19 October 2011). Supreme court also says that there must also be a showing that the police officers intended to comply with the procedure but were thwarted by some justifiable consideration/reason, In the case of People v. Martin G.R. No. 193234, 19 October 2011. However, when there is gross disregard of the procedural safeguards prescribed in the substantive law (R.A. 9165), serious uncertainty is generated about the identity of the seized items that the prosecution presented in evidence. People v. Garcia 580 SCRA 259 This uncertainty cannot be remedied by simply invoking the presumption of regularity in the performance of official duties, for a gross, systematic, or deliberate disregard of the procedural safeguards effectively produces an irregularity in the performance of official duties. As a result, the prosecution is deemed to have failed to fully establish the elements of the crimes charged, creating reasonable doubt on the criminal liability of the accused. For the arresting officers failure to adduce justifiable grounds, we are led to conclude from the totality of the procedural lapses committed in this case that the arresting officers deliberately disregarded the legal safeguards under R.A. 9165. These lapses effectively produced serious doubts on the integrity and identity of the corpus delicti, especially in the face of allegations of frame-up. Thus, for the foregoing reasons, we must resolve the doubt in favor of accused-appellant, as every fact necessary to constitute the crime must be established by proof beyond reasonable doubt. People v. De la Cruz G.R. No. 177222, 29 October 2008, 570 SCRA 273. To repeat, noncompliance with the required procedure will not necessarily result in the acquittal of the accused if: (1) the noncompliance is on justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. People v. De la Cruz, G.R. No. 177222, 29 October 2008, 570 SCRA 273. Although, the police officers enjoys the presumption of regularity in the performance of their official duty it was held in People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194, 207 that
While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant's conviction because "First, the presumption is precisely just that - a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.
In sum, to determine whether there was a valid entrapment or whether proper procedures were undertaken in effecting the buy-bust operation, it is incumbent upon the courts to make sure that the details of the operation are clearly and adequately established through relevant, material and competent evidence. The courts cannot merely rely on, but must apply with studied restraint, the presumption of regularity in the performance of official duty by law enforcement agents. Courts are duty-bound to exercise extra vigilance in trying drug cases and should not allow themselves to be used as instruments of abuse and injustice lest innocent persons are made to suffer the unusually severe penalties for drug offenses. Valdez v. People, G.R.No. 170180, November 23, 2007, 538 SCRA 611, 633.
In the case of People v. De Guzman, GR 151205 , SC stressed that the objective test in buy-bust operation demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer for purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the buy-bust money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense.
All told, we find merit in the appellant's claim that the prosecution failed to discharge its burden of proving her guilt beyond reasonable doubt, due to the unreliability of the testimonies of the prosecution witnesses and substantial gaps in the chain of custody, raising reasonable doubt on the authenticity of the corpus delicti. People vs Capuno G.R. No. 185715
Jurisprudence abounds with cases where deviation from the standard procedure in an anti-narcotics operation produces doubts as to the identity and origin of the drug which inevitably results to the acquittal of the accused. In People v. Mapa , law G.R. No. 91014, March 31, 1993, 220 SCRA 670, 679. the court also ruled that the failure to prove that the specimen of marijuana examined by the forensic chemist was that seized from the accused was fatal to the prosecution's case. The same holds true in People v. Casimiro cral432 Phil. 966, 979 (2002 and in Zarraga v. People G.R. No. 162064, March 14, 2006, 484 SCRA 639, 647.where the appellant was acquitted for failure of the prosecution to establish the identity of the prohibited drug which constitutes the corpus delicti . Recently in Catuiran v. People , law G.R. No. 175647, May 8, 2009, 587 SCRA 567.we acquitted the petitioner for failure of the prosecution witnesses to observe the standard procedure regarding the authentication of the evidence.
V.
Article III, Sec. 14 of the 1987 Constitution provides that:
1. No person shall be held to answer for a criminal offense without due process of law.
2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. The prosecution did not state that they informed Mr. Lucero of his Miranda rights upon apprehension. As the Supreme Court held in Ong vs People of the Philippines, G. R. No. 197788, February 29, 2012:
This Court has held that at the time a person is arrested, it shall be the duty of the arresting officer to inform the latter of the reason for the arrest and must show that person the warrant of arrest, if any. Persons shall be informed of their constitutional rights to remain silent and to counsel, and that any statement they might make could be used against them.
VI. Article 3, section 12 of the 1987 Constitution of the Philippines, provides that : (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. xxxxxxxxxxxxxxxxxxxxx (3)Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. Obviously the appellant was the victim of a clever ruse to make him sign these alleged receipts which in effect are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to sign receipts for what were taken from him. It is the police officers who confiscated the same who should have signed such receipts. No doubt this is a violation of the constitutional right of the appellant to remain silent whereby he was made to admit the commission of the offense without informing him of his right. Such a confession obtained in violation of the Constitution is inadmissible in evidence. The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellants custodial right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the search of appellants residence. Assuming arguendo that appellant did waive her right to counsel, such waiver must be voluntary, knowing and intelligent. To insure that a waiver is voluntary and intelligent, the Constitution People vs. Ramos, 186 SCRA 184, 191 (1990) requires that for the right to counsel to be waived, the waiver must be in writing and in the presence of the counsel of the accused. Art. III, Section 12(1).There is no such written waiver in this case, much less was any waiver made in the presence of the counsel since there was no counsel at the time appellant signed the receipt. Clearly, appellant affixed her signature in the inventory receipt without the assistance of counsel which is a violation of her right under the Constitution. In all criminal cases, it is appellants constitutional right to be presumed innocent until the contrary is proved beyond reasonable doubt. Thus in People vs. Del Norte, G.R. No. 149462, March 29, 2004.we said: We detest drug addiction in our society. However, we have the duty to protect appellant where the evidence presented shows insufficient factual nexus of her participation in the commission of the offense charged. In People vs. Laxa, we held: The governments drive against illegal drugs deserves everybodys support. But it cannot be pursued by ignoble means which are violative of constitutional rights. It is precisely when the governments purposes are beneficent that we should be most on our guard to protect these rights. As Justice Brandeis warned long ago, the greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning without understanding. In sum, the bottom line is that there is gross insufficiency to support a verdict of guilt of the accused beyond reasonable doubt.
P R A Y E R
WHEREFORE, premises considered , it is respectfully prayed of the Honorable Court to dismiss the above-entitled action for insufficiency of evidence against the accused.
Respectfully submitted.
Malaybalay City, Bukidnon. February 13, 2014.
CABUNOC, PEARL JOAN DAYPUYAT, SHYLLA FE ELICA, MA. ESSA ESTACION, KARL MAXIMO GA, MARIANNE AIZA LACIO, DINO MELENDEZ, BERCHMAN TUYUGON, JULITO Counsels for the Accused
The Branch Clerk of Court RTC-Bukidnon, Branch 10 Malaybalay City, Bukidnon
Greetings!
Please submit this Demurrer to Evidence for the consideration of the Honorable Court promptly upon receipt hereof.
Cabunoc, Pearl Joan Daypuyat, Shylla Fe Elica, Ma. Essa Estacion, Karl Maximo Ga, Marianne Aiza Lacio, Dino Melendez, Berchman Tuyugon, Julito
cc: FISCAL CLAVER ARINO Assistant Provincial Prosecutor OFFICE OF THE PROVINCIAL PROSECUTOR Malaybalay City, Bukidnon
Willie Clisby v. State of Alabama, Fred Smith, Commissioner, Alabama Department of Corrections, and W.E. Johnson, Warden, Holman Unit, 26 F.3d 1054, 11th Cir. (1994)