Edited With Page Number
Edited With Page Number
MOTION TO DISMISS
ON DEMURRER TO EVIDENCE
(WITH LEAVE OF COURT)
PREFATORY STATEMENT
For this purpose, no less than the 1987 Constitution of the Philippines
enumerate, in no uncertain terms, the rights of the every person to
guarantee that life, liberty, and property will not be taken lightly. More so,
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the Fundamental Law emphasizes in strongest terms the right of an accused
before, during, and after the trial. Indeed, at the core of our criminal justice
system is the presumption of innocence of the accused until proven guilty.
Therefore, the prosecution must rely on the strength of its case rather than
of the weakness of the defense.
“In the trial of every criminal case, a judge must rigidly test the States
evidence of the guilt in order to ensure that such evidence adheres to the
basic rules of admissibility before pronouncing an accused guilty of the
crime charged upon said evidence. Nothing less is demanded of the judge,
otherwise, the guarantee of the due process of law is nullified. The accused
need nod adduce anything to rebut evidence that is discredit for failing
the test. Acquittal should then follow3.”
THE CASE
CONTRARY TO LAW.”
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this Honorable Court, the above named accused, without being
authourized by law to possess, did then and there willfully,
unlawfully, knowingly, and feloniously, have in his possession and
control, more or less 4.5924 grams methamphetamine hydrochloride
commonly known as shabu, a dangerous drugs, to the damage and
prejudice of the government.
CONTRARY TO LAW.”
CONTRARY TO LAW.”
On April 29, 2019, the defense informed the Honorable Court that
the prosecution has yet to file its Formal Offer of Evidence. Thus, the court
gave another ten (10) days for the prosecution to file its formal offer. On the
next hearing date however on 20 May, 2019, the prosecution again was not
able to file the said formal offer. The defense then moved that the right of
the prosecution to file its final offer shall be deemed waived. However, the
Court ruled that the prosecution should instead be given five (5) days from
the said date or until 25 May 2019 within which to file its formal offer of
evidence.
During the hearing on 11 June 2019, the prosecution again was not
able to file its formal offer. The defense was therefore constrained to
reiterate its motion that the prosecution should be declared to have waived
its right to file its formal offer of evidence and consequently the
presentation of evidence for the prosecution should be terminated. The
defense likewise intimated before the Honorable Court that it will file
motion to dismiss on demurrer to evidence due to the inherent weakness
of the prosecution’s evidence.
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until 16 June 2019 within which to file its formal offer. The Honorable Court
further ruled that after the expiration of the said date and that the
prosecution shall still fail to file the final offer, it will be construed as a
waiver on its part to file the same. The court likewise favorable ruled on the
intention of the defense to file its demurrer to evidence and thus, a leave
was given by the Honorable Court for the defense to file the said demurrer
to evidence ten (10) days from the prosecution’s filling of the Formal Offer
of Evidence of the prosecution of 20 June 2019. Thus, the accused has ten
[10] days from receipt thereof, or until 30 June 2019 to file the Demurrer to
Evidence. Since this Demurrer to Evidence shall be filled today, 26 June
2019, the same is seasonably filed.
Despite the length of time given to the prosecution to file its formal
offer of evidence, from the Order dated 18 February 2019, reiterated during
the hearing on 219 April 2019, then on 20 May 2019, and finally on 11 June
2019, the prosecution still was not able to conform to the court order to file
the same. It was only on 20 June 2019, or after four (4) long months that
the prosecution was finally able to file its formal offer.
The Rules of Court provides that the court shall consider no evidence
which has not been formally offered. Rule 132, Sections 34 and 35 of the
Rules of Court provide in no uncertain terms, thus:
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Sec.35. When to make offer. As regards the testimony of a
witness, the offer must be made at the time the witness is called to
testify.
Strict adherence to the said rule is not a trivial matter. The High Court
in Constantino vs. Court of Appeals7 strongly lectured:
The strict adherence to the rule is further emphasized in the Heirs of Pedro
Pasag vs Sps. Parocha9 when the Court augustly cautioned:
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affidavit of Investigator marked as Exhibit “C” which are identified by PO2
Jayson M. Pascua during the hearing on the petition for bail, all other
documentary exhibits earlier marked by the prosecution and which were
appended in the record of these consolidated cases were not properly
authenticated and identified in accordance with the rules during the trial. It
follows that all of the attachments made by the prosecutions should be
expunged and excluded from the case record for not having been properly
marked, exhibited, and offered as part of the evidence-in-chief for the
prosecution.
Concededly, the rule discussed above may call for some relaxation.
The prosecution may then contend that rules of procedure should be
applied in a very rigid, technical case as they are devised chiefly to secure
and not defeat justice. Be that as it may, but the Supreme Court has already
laid down the narrow exception to the relaxation of the rule on filing of
formal offer of evidence, none of which can the prosecution use to support
its cause.
The only possible instance in which this rule may be relaxed is when
there is voluminous documentary evidence which is inherently difficult to
collate, collect, and tabulate. The High Court ruled in Republic of the
Philippines vs. Sps. Gimenez11:
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be noted that the open court testimony of the poseur-buyer is
very much needed in order to determine that indeed the illegal
sale transaction really took place. In this case, despite
subpoena and the widest latitude of time given to the
prosecution, it still failed to present the aforesaid poseur-
buyer. Hence the Affidavit of Poseur-Buyer must also be
excluded from the evidence of the prosecution and should be
expunged off from the record for gross violation of the
accused’ constitutional right to be informed of the nature and
cause of the accusation against him and to meet the
witnesses face to face;
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Kagawad Zaldy C. Carino both of Brgy. M.H. Del Pilar, Alicia,
Isabela and Bombo Radyo reporter Exequiel Quilang were
again never presented before the open court and therefore the
inventory becomes extremely doubtful. Again, this is in
violation of the rights of the accused to be informed of the
nature and cause of accusation against him and to meet the
witness face to face.
The lone testimony of PO2 Jayson Pascua is very weak enough to cast
even the minutest trace of guilt on the part of the accused.
Now then, even if the Court were to consider the singular testimony
of PO2 Jayson Pascua as the prosecution’s evidence-in-chief, the said
testimony cannot naturally turn over the constitutional presumption of
innocence accorded to the accused.
During the petition for bail, PO2 Jayson Pascua testified among others
that as the police investigator, the pieces of drug related evidence were
turned over to him by the seizing officers as well as the accused who was
turned over to him by the arresting officers and that he prepared the case
referral, the requests for drug examination and laboratory examination and
that the drug related evidence was later turned over to the Santiago City
Crime Laboratory by PO2 Inocencio Dela Cruz, Jr.
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actual buy-bust operation conducted by his fellow police officers
against the accused on January 19, 2017.”
For the violation of Section 12, Article II, RA 9165, the presentation of
the said equipment, apparatus, or other paraphernalia which constitute the
corpus delicti of the offense should likewise be identified and presented in
order to dispel any doubt concerning their identity.
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The chain of custody requirement performs this function in that it
ensures the unnecessary doubts concerning the identity of the evidence
are removed. Chain of custody is defined as “duly recorded authorized
movements and custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic laboratory to
safekeeping, to presentation in court for destruction.”
Thus, as a general rule, four links in the chain of custody of the confiscated
items must be established as discussed in People vs. Nandi17:
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and fourth, the turnover and submission of the marked illegal drugs
seized from the forensic chemist to the court.
The first chain of custody was therefore not established even in the
minutest attempt. The alleged poseur-buyer PO3 Marvin Echanes, PNP
Member of Alicia Police Station was not presented in open court. The
arresting officers SPO3 Jay A. Agustin and SPO2 Darwin G. Alog were not
also presented before the court. SPO4 Gilbert Bustamante, another
arresting officer, was presented but his testimony was later on stricken off
from the record. It should be noted that the testimonies of the poseur-
buyer and the arresting officers are vital for the establishment of an
unbroken chain of custody as their contribution to the chain is primordial.
To stress, the poseur-buyer and the arresting officers’ participation
marked the starting point in the custodial link. Thus, without them, the
link could not be established.
All in all, the prosecution failed to make out a case which leads to
these poorly built-up cases against the accused. The prosecution was given
the liberty of time to secure their witnesses aided with the subpoena from
this Honorable Court, but for reasons maybe known to the prosecution, the
prosecution miserably failed to do so. If indeed the prosecution has airtight
cases against the accused, it should have pursued it up with vigorous
barrage of prosecution. But it did not.
Truly in these joint cases, the prosecution rides for legal war, but not
for victory!
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Having intensively discussed that the prosecution has insufficient evidence
to support the judgment of conviction against herein accused, it follows
that this Demurrer to Evidence is properly filed.
“Sec. 23. After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.
On a side note, the motor vehicle 20 of the accused has also been
impounded at the Alicia Police Station, Alicia, Isabela by virtue of the filing
of the above entitled-cases. As the prosecution was not able to make out a
case and was not able to adduce evidence which can sustain the guilt of the
accused, it follows that the release of the said motor vehicle to the accused
is now in order as the said motor vehicle was never established by the
prosecution to be an instrument which facilitated him in the commission of
the crime. Again, the commission of the crime was not established by the
prosecution, hence, there is no more a need to restrain the accused from
now possessing the said motor vehicle.
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CONCLUDING STATEMENT
The lack of clear and positive evidence and the lack of material
witness or witnesses that will testify on the overt acts allegedly committed
by the accused rendered the already insufficient evidence for the
prosecution inherently weak and insufficient to prove the guilt of the
accused beyond a reasonable doubt.
Since 2017 when these cases commenced, herein accused has never
doubted the power of this Honorable Court to dispense justice. He never
missed any opportunity to attend every hearing of this case because he
believes that such active participation will eventually give him the justice he
rightfully deserves. It is now mid-2019. With the prosecution utterly failing
in its duty to prove through the required quantum of evidence the guilt of
this accused, it is high time to grant to herein accused the prayer he has had
more than two years ago until today – the immediate dismissal of these
cases.
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed of
this Honorable Court that this Motion to Dismiss on Demurrer to Evidence
With Leave of Court be ADMITTED and DULY CONSIDERED in determining
that the Evidence presented by the prosecution to prove the guilt of the
accused, GENEMAR GARCIA y SALES is INSUFFICIENT to convict him to the
crime charged which would consequently warrant the dismissal thereof. In
correlation thereof, the accused prays that the motor vehicle which is
presently impounded at the Alicia Police Station be RELEASED in the
accused favor. Finally, the bail bond posted by the accused for his
temporary liberty be likewise RELEASED in his favor.
Other reliefs, just and equitable under the circumstances, are likewise
prayed for.
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THE LAW OFFICE OF GULAN
Counsel of the Accused
Santiago City
Email:[email protected]
Tel.No: (123) 143-5678
By:
ATTY. VIRGO M. GULAN
MCLE Compliance Exempted/Passed the Bar Exams 26 April 2018
PTR NO.2660682/Santiago City/03-08-2019
IBP No. 067340/01-12-2019
Roll No.71583/06-07-2018
With my Conformity:
GENEMAR S. GARCIA
Accused
NOTICE OF HEARING:
Greetings: Please notice that the undersigned counsel shall submit the
foregoing motion for the kind consideration and resolution of the
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Honorable Court on 01 July 2019, Monday, at 8:30 o’clock in the morning.
Thank you.
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