Republic of the Philippines REGIONAL TRIAL COURT Third Judicial Region BRANCH 8 Malolos City, Bulacan

PEOPLE OF THE PHILIPPINES -versusNENITA MANLAPIG, Accused. x---------------------------------x CRIM. CASES Nos. 1645-1646-M-2006 for: Violation of Secs. 5 & 11 Republic Act No. 9165

DEMURRER TO EVIDENCE
The Accused, assisted by the Public Attorneys Office and unto this Honorable Court, respectfully moves to dismiss the above-entitled action for insufficiency of evidence. The two (2) sets of information filed in this Honorable Court allege Crim. Case No. 1645-M-2005 (for: illegal sale of shabu) That on or about the 4th day of July, 2005, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there willfully, unlawfully and feloniously sell, trade, deliver, give away, dispatch in transit and transport dangerous drug consisting of one (1) heat-sealed transparent plastic sachet of methylamphetamine hydrochloride (shabu) weighing 0.028 gram. Contrary to law. Crim. Case No. 1646-M-2005 (for: illegal possession of shabu) That on or about the 4th day of July, 2005, in the municipality of Baliuag, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without authority of law and legal justification, did then and there willfully, unlawfully and feloniously have in his possession and control dangerous drug consisting of four (4) heat-sealed transparent plastic sachet of Methylamphetamine hydrochloride (shabu) weighing 0.120, 0.122, 0.127, and 0.121 gram or a total weight of 0.490 gram. Contrary to law. The accused pleaded Not Guilty to the charge. The prosecution presented on trial the testimonies of SPO1 Eladio San Pedro, PO1 Emiliano

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C. Jalova, Jr. and PO1 Jessie Fernando. However, the testimony of SPO1 San Pedro on direct examination was stricken off from the record due to repeated failure to appear for cross-examination.1 The testimony of forensic chemist P/Insp. Nellson Cruz Sta. Maria was dispensed with by stipulation. In a nutshell, the facts upon which the prosecution based the indictment of the accused are as follows: On July 04, 2005, SPO1 Eladio San Pedro, PO1 Emiliano C. Jalova, Jr. and PO1 Jessie Fernando, of the Baliuag PNP Police Station, proceeded to Lower Dike, Brgy. Poblacion, Baliuag to conduct buy-bust operation against the accused Nenita Manlapig. The asset, handled by the team leader SPO1 San Pedro, would pose as the buyer and was provided two (2) pieces of P100 bills marked "5 16 19".2 After coordination with the barangay captain, they walked through the area accompanied by BANAT operatives. Upon assuming their respective vantage positions, the asset moved towards the house of the target to buy shabu. Instantly, when the exchange of one (1) sachet of shabu and marked money was seen completed, SPO1 San Pedro rushed towards them and announced the entrapment. The other members followed and cordoned off the area around the place of incident to avert crowding. They rummaged through the rented dwelling of the accused and recovered four (4) sachets of shabu. SPO1 San Pedro marked the purchased sachet "ESP BB"3 and the recovered sachets "ESP 1", "ESP 2", "ESP 3" and "ESP 4"4. After preparation of the inventory5 of the seized items, they went back to their station to make the request for its laboratory examination6. Results of the test on the contents thereof all turned positive7. After admission of its offered exhibits, the prosecution rested its case. Let us know whether or not the evidence of the prosecution, standing on its own, is sufficient to overcome the presumption of innocence of the accused. In considering a criminal case, it is critical to start with the laws own starting perspective on the status of the accused in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt. The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. In so doing, the prosecution must rest on its own merits and must not rely on the weakness of the defense. And if the prosecution fails to meet the required amount of evidence, the defense may logically not even present evidence on its own behalf. In which case, the presumption prevails and the accused should necessarily be acquitted.8 (underscoring supplied.) Many details of the buy-bust operation as conveyed by the testimonies of the police officers are discernibly implausible and inconsistent. One must
1 2 3 4 5 6 7 8

ORDER dated August 26, 2009. Exhs. B and C. Exh. G. Exh. F. Exh. H. Exh. D. Exh. E. People v. Capuno, G.R. No. 185715, January 19, 2011.

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be guided that "Evidence to be believed must not only proceed from the mouth of a credible witness but it must be credible in itself, such as the common experience and observation of mankind can approve as probable under the circumstances." The case of Zarraga v. People9, although not in all fours hereto, underscores the importance of consistency in the statements of the members of the buy-bust team. In this case, the ability of PO1 Jalova and PO1 Fernando to overhear the transaction is doubtful and is rebutted also by their very testimonies. PO1 Jalova seemed to have a canine audible range. Even though situated 3 to 4 houses away, he was able to hear the conversation of the asset and the accused while they were outside the latters house. QAAnd finally you reached the target area, tell us what initially happened? After we positioned ourselves and we saw that our asset approached Aling Nita, and after our asset handed the two (2) pieces of P100 bills to Aling Nita and Aling Nita also handed to our asset the sachet of shabu, that was the time that Officer San Pedro immediately approached them and announced that it was an entrapment operation, Sir. As the events you just described, transpired, where were you exactly? I was 3 to 4 houses away from the rented house of Aling Nita and since the houses were adjacent to each other you can hear their conversation, Sir. And in terms of meters, how far away was your position from the rented house of Aling Nita? I am not familiar with the distance in meters but it was within our viewing distance and we can hear what they were talking about and clearly ascertained what was being exchanged.10 xxx xxx xxx Incidentally Mr. Witness, where did the initial exchange between your poseur buyer and Nenita occur? Outside the rented house of Aling Nita, Sir. Around how many steps away from the main door of the rented house? At the foot of the door.11

QAQA-

QAQA-

The run of the transaction, that the accused received first the marked money before giving out the shabu, varied when he testified on crossexamination. QAQAnd it happened at the door? Yes Sir. And of course when the asset relayed to the accused that he will buy P200 he gave the money to the accused?

G.R. No. 162064, March 14, 2006 TSN November 06, 2009, p. 5-6 11 same, p. 7
10

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AQAQA-

No Sir. The accused gave the shabu first before the giving of the money. Is it correct that the accused for a moment entered her house to get shabu? No Sir. He had already with her the shabu. Exactly for that amount? Yes Sir. 12

In stark contrast thereto is the testimony of PO1 Fernando. He stated that the transaction was occuring inside the rented place of the accused as SPO1 San Pedro allegedly eavesdrops by the door and that only their team leader heard of the conversation. QAWhat transpired, Mr. Witness? After we placed ourselves in a vantage position, the civilian asset knocked at the door of the rented house of the suspect and he entered in the room, our team leader approached the house wherein he placed himself outside the door, maam. What transpired after that, Mr. Witness? After the transaction was made, our team leader entered the room wherein the suspect rented and on that time and he immediately closed on them, maam. During that time, where were you? I was still in my position 10-15 meters away from the house, maam. Where is the transaction happened? Inside the house, maam13 xxx xxx xxx What prompted your team leader to check whats inside the bag, if you know? He was the one who heard the transaction and he was near the door when it was transpiring, maam.14

QA-

QAQAQA-

Concerning the marked money and the four (4) recovered sachets, there is an inconsistency on where it was actually obtained from. PO1 Jalova stated that it was recovered from atop a plywood. QAQAQAQ12 13 14

Is it correct that you did not see the recovery of the four (4) plastic sachets allegedly recovered from the accused? It was recovered by Officer San Pedro in the wall, Sir. And where is that wall located? It was near the TV set and it was placed on top of a plywood, Sir. How far is that wall or TV set from the door? It is near, Sir. What else were recovered aside from the four (4) plastic sachets?

TSN December 08, 2010, p. 12 TSN December 02, 2011, p. 12 same, p. 32

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AQA-

The marked money that we used, Sir. So, you recovered the marked money inside the house? Yes, Sir.15

On the other hand, PO1 Fernando testified that these sachets were procured from the bag of the accused. QAAfter buying shabu, what else was recovered from the accused? Another four (4) pieces of small plastic sachets of shabu as well as the marked money recovered by our team leader inside the bag of the suspect as its hanging on the wall of the roof, maam.16

We are at a loss how the marked money was recovered inside the house or bag when the accused had no occasion to enter her place during the exchange if we are to believe the testimony of PO1 Jalova. This is very unlikely to happen as she was immediately arrested by SPO1 San Pedro after the consummation of the sale. PO1 Fernando mentioned of the bag hanging in the wall about which PO1 Jalova gave no detail. Equally crucial to the cause of the prosecution is the management of the seized items. Reiterated in the recent case of People v. Arriola17 is the chain of custody rule. All over again, the Supreme Court held that Instructive in this issue is the case of Malilin v. People which discussed how the chain of custody of the seized items should be established. In said case, the Court said: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Further, in the case of People v. Kamad, the Court enumerated therein the different links that the prosecution must endeavor to establish with respect to the chain of custody in a buy-bust operation, namely: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug
15 16 17

Supra note 12, pp. 19-20 Supra note 13, p. 15 G.R. No. 187736, February 08, 2012.

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seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court. Bearing in mind the abovementioned guidelines in the application of the chain of custody rule, the prosecution in the present case insufficiently proved all the links in the chain. This could be deduced from the testimonies of PO1 Jalova and PO1 Fernando. Pertinent portions of their testimonies are hereafter quoted, to wit: First in the link is the turn over to SPO1 San Pedro of the purchased shabu by the asset and his recovery of the four more sachets. This was followed by the marking of the seized items and its inventory. QAWhen you entered the house, what transpired next, Mr. Witness? The poseur buyer was handed over the shabu he bought from Nenita Manlapig to our team leader, maam.18 xxx xxx xxx After that, tell us what did you do if any? Officer San Pedro took possession of the sachet of shabu that was the subject of the sale and after that, we also searched the house and Officer San Pedro also recovered another four (4) plastics of shabu at the wall, Sir. xxx xxx xxx After the recovery of these four (4) other plastic sachets, what other transpired? I saw that Officer San Pedro placed markings on the sachet of shabu and we brought the accused to the Brgy. Hall and in the barangay hall I saw that there was an inventory that was conducted on seized items, Sir. From the time that the specimen wherein Officer San Pedros possession, tell us, who took custody over it starting from the time that you went to the barangay for the inventory up to the time when the specimen finally turned over to the crime laboratory office for examination? It was Officer San Pedro who was in possession and control of the specimens, Sir. 19

QA-

QA-

Q-

A-

Notwithstanding the preparation of the inventory, whether it was conducted in the barangay or in the house of the accused remains a question. The testimony of PO1 Jalova about the place of inventory is belied by the testimony of PO1 Fernando. QA18 19

When did you conduct the inventory? After the operation at the rented room of the house of the suspect, Nenita Manlapig, maam.20

Supra note 13. p. 13. Supra note 10, pp. 7,8

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Remarkably, if these seized items were already marked prior to the conduct of inventory, the said document should by then have stated the markings on these pieces of evidence. No plastic sachets marked ESP BB, ESP P1, ESP P2, ESP P3 and ESP P4 are listed in the document (Exhibit H). For the second link, considering that his name appears in the request for laboratory examination, there is no narrative on how Baliuag PNP Police Stations Officer-In-Charge Jolly B. Dizon made reference to the items mentioned in the said request. In the third link, when PO1 Jalova took custody of the items from SPO1 San Pedro, no account is provided about the condition of the specimens before and after its receipt. QThe request you identified has a stamp marked in its lower left portion and I noticed that beside the word delivered by is the name PO1 Jalova, E.C. Who is PO1 Jalova, E.C.? Me, Sir. Can you tell us why is your name written in this document? When we brought the specimen to the crime laboratory I was with Officer San Pedro and Officer Fernando and when we arrived at the crime lab, Officer San Pedro directed me to have that received at the crime lab because he will just smoke, Sir.21

AQA-

For the fourth link, no account is given by the forensic chemist regarding the condition of the items upon its submission to the Honorable Court. The following are the only matters of stipulation made by the prosecution and the defense, to wit:
1. that

said forensic chemist received the request for laboratory examination together with the specimen and examined the same; 2. that he issued a report of his findings; and 3. that he has no personal knowledge as to the source of the specimen;22 The case of People v. Coreche23 is in point: When taken together with the contents of Chemistry Report No. D1742-03E, what the stipulation proves is that upon chemical analysis by Cario, the contents of five plastic sachets marked HVA thru E (JLT1) tested positive for methylamphetamine [sic] hydrochloride. This fact leaves unanswered the question of post-examination custody. Did the plastic sachets remain in Carios safekeeping? Were they transferred to another location until they were presented in court? The stipulation in the fifth paragraph that after the examination, the specimens had been placed in a transparent plastic bag with markings
20 21 22 23

Supra note 13, p. 19 Supra note 10, p. 12 ORDER G.R. No. 182528, August 14, 2009.

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D-1742-03E and initialed by the said witness [Cario] merely settles the issue of how the specimens were packaged after testing, not who took custody of them. (underscoring supplied.) Hence, from the credibility of the prosecution witnesses up to the chain of custody of the seized items, the veracity of the entire buy-bust operation is specious. Regularity in the performance of official duties has been virtually overthrown by the police officers themselves. PRAYER

ERGO, 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. Malolos City, Bulacan. March 07, 2012. PUBLIC ATTORNEYS OFFICE
2/F New Hall of Justice Provincial Capitol Compound Malolos City, Bulacan

Counsel for the Accused

Assisted by:

ERICKSON A. SANDEL Public Attorney II

Roll of Attorneys No. 51852 IBP Lifetime Member No. 07620 (01-26-2007) MCLE Compliance No. III-0008888 (02-25-2010)

The Branch Clerk of Court RTC-Bulacan, Branch 8 Malolos City, Bulacan Greetings! Please submit this Demurrer to Evidence for the consideration of the Honorable Court promptly upon receipt hereof. Thank you Erickson A. Sandel

cc: FISCAL CATHERINE E. RUTOR-REYES Asst. Provincial Prosecutor OFFICE OF THE PROVINCIAL PROSECUTOR Provincial Capitol Compound Malolos City, Bulacan