Chain of Custody Cases
Chain of Custody Cases
Chain of Custody Cases
Promulgated:
July 6, 2010
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DISSENTING OPINION
CONTRARY TO LAW.
and
CONTRARY TO LAW.[1]
Catentay pleaded not guilty during his arraignment. During pre-trial, the parties
stipulated that PO1 Reyno Riparip was the investigator of the case and the one (1)
who prepared the request for laboratory examination. Also stipulated was the fact
that Leonard Jabonillo, a forensic chemical officer, received the request for
laboratory examination of the specimen involved, examined the same, and found it
positive for methamphetamine hydrochloride, commonly known as shabu. Both
parties agreed to dispense with their testimonies in open court. Trial thereafter
ensued.
Catentay for his part denied the charge against him and claimed that he had been
framed up. He claimed that he was plying his route as a tricycle driver when
Quimson, Riparip and Valdez flagged him down and invited him to the police
station. There he was asked about the whereabouts of his neighbor Roger
Geronimo. The police tortured him and allegedly planted the two (2) sachets
of shabu.
The RTC convicted Catentay for illegal selling of shabu but dismissed the charge
of possession of dangerous drugs.[3] It found that the testimony of Quimson was
credible. Quimson was able to identify the sachets he seized from Catentay, and
the Chemistry Report showed that the sachets containing white crystalline
substance proved to be positive of methamphetamine hydrochloride, a dangerous
drug. It noted that Catentay failed to present any evidence to support his
allegations that he was falsely charged by the police. Although only one (1) sachet
was sold to Quimson during the buy-bust operation, it was shown that Catentay
brought out two (2) sachets from his pocket and showed them to Quimson. The
trial court found that it was Catentays intention to sell the other sachet at the time
of the buy-bust operation; hence, Catentay cannot be held liable for illegal
possession of dangerous drugs since it was absorbed in the charge for illegal sale
of dangerous drugs.
The Court of Appeals affirmed the decision of the RTC.[4] It found no reason to
disturb the RTCs assessment of the credibility of the prosecutions witness,
Quimson. According to the CA, the positive identification by Quimson and the
physical evidence presented establish with moral certainty Catentays guilt for
illegally selling a dangerous drug. Catentays assertion that a serious charge was
fabricated against him simply because he failed to provide information on the
whereabouts of his neighbor is too frivolous to be believed as constituting ill-
motive on the part of the police officers.
Aggrieved, Catentay filed a notice of appeal.[5]
Catentay reiterated the assignment of errors made before the Court of Appeals, [6] to
wit:
I.
THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT
THE ACCUSED-APPELLANT WAS ILLEGALLY ARRESTED.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING THE
ACCUSED-APPELLANT GUILTY BEYOND REASONABLE
DOUBT OF THE CRIMES CHARGED.
The elements of the sale of illegal drugs are (a) the identities of the buyer
and seller, (b) the transaction or sale of the illegal drug, and (c) the existence of
the corpus delicti.[7] With respect to the third element, the prosecution must show
that the integrity of the corpus delicti has been preserved. This is crucial in drugs
cases because the evidence involvedthe seized chemicalis not readily identifiable
by sight or touch and can easily be tampered with or substituted.
Here, I respectfully submit with all due respect that the chain of custody of
the shabu was established starting from the seizure made during the buy-bust
operation to the turn over to the investigator, and from the latter to the chemist. In
the instant case, the integrity of the drugs seized from Catentay was preserved. The
evidence shows that after Quimson seized and confiscated the dangerous drugs and
immediately marked the same, Catentay was immediately arrested and brought to
the police station for investigation. Immediately thereafter, the two (2) heat-sealed
transparent plastic sachets, bearing Quimsons markings, were submitted to the
PNP Crime Laboratory for examination, with a letter of request for examination, to
determine the presence of any dangerous drug. Per Chemistry Report No. D-369-
2004 dated April 15, 2004,[8] the specimen submitted, two (2) heat-sealed
transparent plastic sachets having the markings GQ and GQ1, contained
methamphetamine hydrochloride, a dangerous drug. The examination was
conducted by one (1) Engr. Jabonillo, a Forensic Chemical Officer of the PNP
Crime Laboratory, whose proposed testimony was stipulated upon by the
parties.[9] The prosecution and the defense stipulated during the pre-trial:
xxxx
(4) That the result was reduced into writing and signed by the said
forensic chemical officer, duly noted by the Chief of the Crime
Laboratory;
(5) That the witness will identify the document as well as the
specimens he examined;[10]
xxxx
The ponencia acquits the appellant because the prosecution did not present
the forensic chemist, and as such the latter was unable to testify as to what he did
with the substance after examination: whether he properly closed and resealed the
plastic sachets with adhesive and placed his own markings on the resealed plastic
to preserve the integrity of their contents until they were brought to the court.
With all due respect, however, I respectfully submit that the fact that the
forensic chemist was not presented should not operate to acquit Catentay. As we
held in People v. Zenaida Quebral y Mateo, et al.,[11]
xxx This Court has held that the non-presentation of the forensic
chemist in illegal drug cases is an insufficient cause for acquittal.
The corpus delicti in dangerous drugs cases constitutes the dangerous
drug itself. This means that proof beyond doubt of the identity of the
prohibited drug is essential.
Besides, corpus delicti has nothing to do with the testimony of the
laboratory analyst. In fact, this Court has ruled that the report of an
official forensic chemist regarding a recovered prohibited drug enjoys
the presumption of regularity in its preparation. Corollarily, under
Section 44 of Rule 130, Revised Rules of Court, entries in official
records made in the performance of official duty are prima
facie evidence of the facts they state. Therefore, the report of Forensic
Chemical Officer Sta. Maria that the five plastic sachets PO3 Galvez
gave to her for examination contained shabu is conclusive in the absence
of evidence proving the contrary. At any rate, as the CA pointed out, the
defense agreed during trial to dispense with the testimony of the chemist
and stipulated on his findings.
It should be emphasized that the parties have stipulated that the forensic
chemist received the two (2) transparent plastic sachets bearing Quimsons
markings still heat-sealed. The chemistry report, which carries with it the
presumption of regularity in the performance of duties and which is presumed to be
evidence of the facts therein stated, states that the specimen received were two (2)
heat-sealed transparent plastic sachets each containing white crystalline substance
having the following markings and recorded net weights: A(GQ) = 0.03gm;
B(GQ1) = 0.03 gm. Said report was prepared by Jabonillo who, as stipulated,
personally received the specimen. Hence, there is no doubt that the two (2) plastic
sachets containing shabu that were seized from the accused were the same plastic
sachets submitted for examination and found positive for shabu. The plastic
sachets were identified by Quimson in court. Moreover, it was stipulated that
Jabonillo would be able to identifythe specimens he examined.[12]
Against the evidence pointing to his culpability, Catentay could only offer
bare denial. He claims that he was falsely charged because he failed to give the
arresting officers any information as to the whereabouts of his neighbor, a certain
Roger Geronimo. In his brief, he also questions the credibility of prosecution
witness Quimson and points out that the illegal transaction could not have
happened in a public place in broad daylight.[13] It should be stressed, however, that
his testimony and account of what allegedly transpired was found undeserving of
credence by the trial court, which finding was affirmed by the Court of
Appeals. Indeed, as held by the CA, Catentays assertion that a serious charge was
fabricated against him simply because he failed to provide information on the
whereabouts of his neighbor is too frivolous to be believed as constituting ill-
motive on the part of the police officers. Likewise, the fact that the sale was in
public does not diminish the credibility or the trustworthiness of Quimsons
testimony. In People v. Zervoulakos,[14] we observed that the sale of prohibited
drugs to complete strangers, openly and in public places, has become a common
occurrence. Indeed, it is sad to note the effrontery and growing casualness of drug
pushers in the pursuit of their illicit trade, as if it were a perfectly legitimate
operation.
I submit that given the evidence in this case, the prosecution was able to prove
with moral certainty that Catentay is guilty of illegal selling of dangerous drugs.
The evidence clearly shows that the buy-bust operation conducted by the police
officers, who made use of said entrapment to capture Catentay in the act of selling
a dangerous drug, was valid and legal. The Pre-operational Report[15] accomplished
prior to the buy-bust operation bolsters this fact. Moreover, the defense has failed
to show any evidence of ill motive on the part of the police officers or to discharge
its burden to point out any circumstance which will show that the integrity and
evidentiary value of the confiscated drugs was not maintained. Additionally,
Catentay is bound by the stipulations he made. The parties stipulation to the
testimonies of Valdezand Riparip would debunk Catentays claim of frame up.
During pre-trial, the parties stipulated that Riparip was the one who investigated
the case and made the request for laboratory examination. Then, during the
trial, the parties stipulated that Valdez was the arresting officer in the buy-
bust operation who recovered the marked money from Catentay. Clearly,
appellant himself has admitted the buy-bust operation, the existence of the
marked money, and the fact that the same was recovered from him.
For these reasons, I vote to DISMISS the appeal and to AFFIRM the
Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01712 finding
appellant Noel Catentay guilty of the crime charged.
SECOND DIVISION
Promulgated:
January 19, 2010
BRION, J.:
CONTRARY TO LAW.
After surveillance of the area, the buy-bust team and their asset proceeded at
around 10:00 p.m. of October 16, 2002 to the target area where they immediately
saw the accused-appellant and Leo. The asset and SPO2 Sanchez approached the
two while the rest of the buy-bust team watched from a distance. The asset
introduced SPO2 Sanchez as a buyer of shabu and the accused-appellant asked him
how much he would buy. SPO2 Sanchez asked for P300.00 worth of shabu and
gave the marked money; the accused-appellant thereafter handed him a plastic
sachet containing a substance suspected to be shabu. SPO2 Sanchez lighted a
cigarette to give the pre-arranged signal for the buy-bust team to approach. SPO2
Sanchez arrested the accused-appellant and recovered from her the P300.00
marked money. The buy-bust team arrested Leo who was found in possession of
one (1) plastic sachet also suspected to contain shabu.
The buy-bust team took the accused-appellant and Leo and the recovered
plastic sachets to their office for investigation. The recovered plastic sachets,
marked as ES-1-161009 and ES-2-161002, were then brought to the PNP Crime
Laboratory for qualitative examination; the tests yielded positive results
for methamphetamine hydrochloride.[11]
The accused-appellant[12] denied the charge and claimed that she and Leo
were framed-up. At around 2:30 p.m. of October 16, 2002, the accused-appellant
and Leo went to Leos cousins house. Since Leos cousin was not yet at home, she
and Leo waited. After waiting for an hour, four (4) men wearing civilian clothes
and carrying firearms entered the house and introduced themselves as police
officers. The accused-appellant and Leo were frisked, but nothing was found in
their possession. The police officers asked the accused-appellant where she kept
the shabu; she replied that she was not selling shabu. Afterwards, she and Leo
were taken to the police headquarters where they were again frisked and asked the
same question to which they gave the same response. The police detained Leo and
the accused-appellant for about a day and later brought them to the Prosecutors
Office for inquest without showing them any shabu.
THE RTC RULING
xxxx
SO ORDERED.[13]
The accused-appellant appealed the RTC decision to the CA, attacking the
RTCs reliance on the presumption of regularity that the RTC found to have
attended the conduct of the buy-bust operation by the police. She argued that no
presumption of regularity could arise considering that the police violated
NAPOLCOM rules by using an asset; the rules prohibit the deputation of private
persons as PNP civilian agents.[14] The accused-appellant also pointed out the
material inconsistencies in the testimony of the prosecution witnesses that cast
doubt on their credibility, namely: (a) the uncertainty of SPO2 Sanchez regarding
the time the buy-bust team was dispatched to the target area; (b) the confusion of
PO3 Maulit on the identity of the team leader of the buy-bust team; (c) the
admitted mistake of PO3 Maulit that only the recovered plastic sachet was marked
ES (standing for the initials of SPO2 Sanchez), while the marked money was
marked MF (standing for the initials of P/Insp. Mariano F. Fegarido as
commanding officer); and (d) the contradictory statements of PO3 Maulit who
testified that it was Leo who sold the shabu and that of SPO2 Sanchez who
testified that it was the accused-appellant who sold him the shabu.
THE CA RULING
The CA rejected the defense arguments and affirmed in toto the RTC
findings. The CA ruled that the prosecution satisfactorily established the accused-
appellants guilt based on the positive testimony of SPO2 Sanchez on the conduct
of the buy-bust operation; his testimony bore badges of truth. Accordingly, the CA
found the accused-appellants uncorroborated denial undeserving of any weight.
The CA brushed aside as a minor inconsistency the uncertainty in the testimony of
SPO2 Sanchez on the time the buy-bust operation took place. The CA also brushed
aside the violation of the NAPOLCOM rules on the ground that the accused-
appellant was arrested in flagrante delicto for illegal sale of shabu committed in
the presence of the prosecution witnesses who were police officers. Moreover, the
CA held that the use of assets to aid police officers in buy-bust operations has been
judicially recognized. The CA found that while the asset brokered
the shabu transaction, he had no role in the apprehension of the accused-appellant
and in the search and seizure of the shabu from the accused-appellant.
THE ISSUE
The only issue in this case is whether the accused-appellant is guilty beyond
reasonable doubt of violation of Section 5, Article II of RA 9165 for
the illegal sale of 0.20 gram of shabu.
We draw attention at the outset to the unique nature of an appeal in a criminal case;
the appeal throws the whole case open for review and it is the duty of the appellate
court to correct, cite and appreciate errors in the appealed judgment whether they
are assigned or unassigned.[15] We find the present appeal meritorious on the basis
of such review.
As a general rule, the trial court's findings of fact, especially when affirmed
by the CA, are entitled to great weight and will not be disturbed on appeal. This
rule, however, admits of exceptions and does not apply where facts of weight and
substance with direct and material bearing on the final outcome of the case have
been overlooked, misapprehended or misapplied.[16] After due consideration of the
records of this case, the evidence adduced, and the applicable law and
jurisprudence, we hold that a deviation from the general rule is warranted.
Our examination of the records shows that while the prosecution established
through the testimony of SPO2 Sanchez that the sale of the prohibited drug by the
accused-appellant took place, we find that both the RTC and the CA failed to
consider the following infirmities in the prosecutions case: (1) the serious lapses in
the RA 9165 procedure committed by the buy-bust team in handling the
seized shabu; and (2) the failure of the police to comply with the chain of custody
rule in handling the seized shabu, resulting in the prosecutions failure to properly
identify the shabu offered in court as the same shabu seized from the accused-
appellant on October 16, 2002.
1) The apprehending 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. [emphasis supplied]
The Implementing Rules and Regulations of RA 9165 under its Section 21(a)
provides further details on how RA 9165 is to be applied, and provides too for a
saving mechanism in case no strict compliance with the requirements took place.
Section 21(a) states:
(a) The apprehending office/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, 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.[Emphasis supplied.]
In this case, SPO2 Sanchez testified on the seizure and the handling of the
seized shabu. The records show that his testimony and the identification he made
in court constitute the totality of the prosecutions evidence on how the police
handled and preserved the integrity of the seized shabu. Significantly, SPO2
Sanchez merely stated in his testimony that:
Q: What else transpired when Zaida gave something to you and you, being the
poseur buyer, gave the money to Zaida?
xxxx
Q: What did you do with those plastic sachets containing white crystalline
substance?
Thus, he failed to provide specific details on how the seized shabu was
marked although the evidence shows that the shabu was marked as ES-1-161009
before it was sent to a forensic laboratory. His testimony also failed to state
whether the marking of the shabu was done immediately after its seizure (as
Section 21 of RA 9165 requires) or during the investigation. His testimony
likewise failed to disclose if a physical inventory and photography of the seized
items had taken place, or if they had, whether these were undertaken in the
presence of the accused or his counsel, or a representative from the media and the
Department of Justice, and of an elective official.
In sum, his testimony failed to show how the integrity and evidentiary
value of the item seized had been preserved; no explanation was ever given by
SPO2 Sanchez to justify the non-compliance by the buy-bust team with the
prescribed procedures. In fact, the records clearly reveal that the prosecution
did not even acknowledge the procedural lapses committed by the buy-bust
team in the handling of the seized shabu.
The consequences of the above omissions must necessarily be grave for the
prosecution under the rule that penal laws, such as RA 9165, are strictly construed
against the government and liberally in favor of the accused.[22] One consequence is
to produce doubts on the origins of the illegal drug presented in court,[23] thus
leading to the prosecutions failure to establish the corpus delicti.[24] Unless excused
by the saving mechanism, the acquittal of the accused must follow.
SPO2 Sanchez also failed to state the time and place as well as the identity
of the person/s who made the markings on the two (2) plastic sachets containing
the recovered shabu seized from the accused-appellant and Leo on October 16,
2002.
The third link in the chain is represented by two (2) pieces of documentary
evidence adduced by the prosecution consisting of the letter-request dated October
17, 2002[32] of Police Superintendent Mariano F. Fegarido as Chief of the Southern
Police District Drug Enforcement Group and the Physical Science Report No. D-
1502-02 prepared by Engr. Richard Allan B. Mangalip as the forensic chemist.[33]
These documents reveal that the recovered plastic sachets of shabu bearing
the markings ES-1-161002 and ES-2-161002 were sent to the forensic laboratory
sealed in one (1) small brown envelope bearing unidentified signatures. On the
same day, the PNP Crime Laboratory received this letter-request along with the
submitted specimens. The specimens were then subjected to qualitative
examination which yielded positive for methylamphetamine hydrochloride.
These pieces of evidence notably fail to identify the person who personally
brought the seized shabu to the PNP Crime Laboratory. They also fail to clearly
identify the person who received the shabu at the forensic laboratory pursuant to
the letter-request dated October 17, 2002, and who exercised custody and
possession of the shabu after it was examined and before it was presented in court.
Neither was there any evidence adduced showing how the seized shabu was
handled, stored and safeguarded pending its presentation in court.
(d) The fourth link in the chain of custody
The fourth link presents a very strange and unusual twist in the prosecutions
evidence in this case. Although the forensic chemist was presented in court, we
find that his offered testimony related to a shabu specimen other than that seized
in the buy-bust operation of October 16, 2002. Specifically, his testimony
pertained to shabu seized by the police on October 12, 2002. This is borne by the
following exchanges:
FISCAL UY: The testimony of the witness is being offered to prove . . . that
he is the one who cause [sic] the examination of the physical evidence subject
of this case containing with white crystalline substance placed inside the
plastic sachet weighing 0.20 grams and 0.30 grams with markings of EBC
and EBC-1 that I reduced findings after the examination conducted.
xxxx
Q And with the cause of the performance of your duties, were you able to receive
a letter request relevant to this case specifically a drug test request,
dated October 12, 2002 from PS/Insp. Wilfredo Calderon. Do you have
the letter request with you?
A Yes, sir.
Q The witness presented to this representation the letter request dated October 12,
2002 for purposes of identification, respectfully request that it be marked in
evidence as Exhibit A. In this Exhibit A Mr. Officer, were you able to
receive the evidence submitted specifically a small brown stapled wire
envelope with signature containing with white crystalline substance
inside and with markings EBC- 12/10/02 and EBC-1 12/10/02. After
you received this specimen what action did you take or do?
A Upon receiving, I read and understand the content of the letter request after
which, I stamped and marked the letter request and then record it on the
logbook and after recording it on the logbook, I performed the test for
determination of the presence of dangerous drug on the specimen.
xxxx
Q Now, after those tests conducted what was the result of the examination?
xxxx
Q At this juncture your Honor, the witness handed with this representation a
brown envelope with markings D-1487-02, and the signature and the date
12 October 02, now Mr. Witness tell us who placed these markings on this
brown envelope?
A I am the one who personally made the markings, sir.
Q And in the face of this brown envelope there is a printed name PO1 Edwin
Plopinio and the signature and the date 12 October 2002. Do you know
who placed who placed those markings?
A I have no idea.
Q At this juncture your Honor, this representation proceeded to open the brown
envelope. May I respectfully request that this brown envelope be marked in
evidence as Exhibit B. And inside this brown envelope are three pieces of
plastic sachets inside which are white crystalline substance with markings
EPC 12 October 02 and EPC-1 12 October 02. May I respectfully request
that these plastic sachets with white substance inside be marked in evidence
as Exhibit B-1 and B-2. And in these plastic sachets with white crystalline
inside is a masking tape with the signature and letters are RAM, do you
know who placed those letters?
Q You mentioned that you reduced your findings in writing, do you have the
official finding with you?
A Yes, sir.
Q At this juncture the witness handed to this representation the physical science
report no. D-1487-2 for purposes of identification respectfully request that
this specimen be marked in evidence as Exhibit C. And in this Exhibit C,
there is a signature above the typewritten name Engineer Richard Allan B.
Mangalip, do you whose signature is this Mr. Witness? [34] [Emphasis
supplied]
A For the specimen A, it is .20 grams and the specimen B, it is .30 gram.
Q May I respectfully request that this weight indicated in this physical science
report now mark in evidence as Exhibit C-2. I have no further questions to
the witness your Honor.
xxxx
Aside from the different dates of seizure, we note that the shabu identified
and presented in court as evidence through the testimony of the forensic chemist,
showed characteristics distinct from the shabu from the buy-bust sale of October
16, 2002:
First, there were different markings made on the plastic sachets of
the shabu recovered on October 12, 2002. As testified to, one plastic sachet
of shabu was marked, EBC 12 October 02, while the other plastic sachet
of shabu was marked, EBC-1 12 October 02;[35]
Second, there was a different sealed brown envelope used where a printed
name and signature of one PO1 Edwin Plopino and the date 12 October 2002 were
written; [36]
Third, the examination of the shabu by the PNP Crime Laboratory was made
pursuant to a different letter-request for examination dated October 12,
2002 written by one P/Insp. Wilfredo Calderon;[37]and
Fourth, the results of the shabu testified to by the forensic chemist in court
was contained in a different forensic laboratory report known as Physical Science
Report No. D-1487-2.[38]
From all these, we find it obvious that some mistake must have been made in
the presentation of the prosecutions evidence. The prosecution, however, left the
discrepancies fully unexplained. To reiterate, the forensic chemist testified to a
specimen dated October 12, 2002, or one secured way before the buy-bust
of October 16, 2002, but marked as evidence documents relating to the specimen
of October 16, 2002. Strangely, even the defense disregarded the discrepancies. In
his comment on the offer of evidence, the defense simply stated, among others, by
way of stipulation, that the forensic chemical officer only conducted a qualitative
examination of the specimen he examined and not the quantitative
examination.[43] Coming immediately after the offer of evidence that mentioned the
plastic sachets containing white crystalline substances with markings ES-1
16/10/02 and ES-2 16/10/02, and the Physical Science Report No. D-1502-
02,[44] the defense was clearly sleeping on its feet when it reacted to the
prosecutions offer of evidence.
But the defense was not alone in glossing over the discrepancies between the
testimony for the prosecution and the offered evidence, as both the RTC and CA
also failed to notice the glaring flaws in the prosecutions evidence. Apparently,
because the parties did not point out these discrepancies while the appellate court
did not closely review the records of the proceedings, the discrepancies were not
taken into account in the decision now under review.
These observations bring us full circle to our opening statement under the
Courts ruling on the kind and extent of review that an appellate court undertakes in
a criminal case; the appeal opens the whole case for review, with the appellate
court charged with the duty to cite and appreciate the errors it may find in the
appealed judgment, whether these errors are assigned or unassigned. This is one
such instance where we are duty bound to rectify errors that, although unnoticed
below and unassigned by the parties, are clearly reflected in the records of the case.
The Conclusion
Given the flagrant procedural lapses the police committed in handling the
seized shabu and the obvious evidentiary gaps in the chain of its custody, a
presumption of regularity in the performance of duties cannot be made in this
case. A presumption of regularity in the performance of official duty is made in the
context of an existing rule of law or statute authorizing the performance of an act
or duty or prescribing a procedure in the performance thereof. The presumption
applies when nothing in the record suggests that the law enforcers deviated from
the standard conduct of official duty required by law; where the official act is
irregular on its face, the presumption cannot arise.[45] In light of the flagrant lapses
we noted, the lower courts were obviously wrong when they relied on the
presumption of regularity in the performance of official duty.
We rule, too, that the discrepancy in the prosecution evidence on the identity
of the seized and examined shabu and that formally offered in court cannot but
lead to serious doubts regarding the origins of the shabu presented in court. This
discrepancy and the gap in the chain of custody immediately affect proof of
the corpus delicti without which the accused must be acquitted.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
JOSE P. PEREZ
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
THIRD DIVISION
DECISION
CHICO-NAZARIO, J.:
During the trial, the prosecution presented the testimonies of Police Officer (PO) 2
Raul Herrera, the poseur-buyer, PO2 Reyno Riparip (member of the buy-bust
team), and Forensic Analyst Leonard M. Jabonillo.
A police entrapment team was formed. PO2 Herrera was assigned as poseur-buyer
and was given a P100.00 bill, which he marked RH, his initials. A pre-operation
report bearing control No. 24-SDEU-02 was made and signed by Police Inspector
(P/Insp.) Palaleo Adag dated 24 August 2002.
The buy-bust team rode in two vehicles, a Space Wagon and a Besta van, with a
group of police officers inside. They stopped along J.P. Rizal St., Sta. Lucia,
Novaliches, Quezon City.
PO2 Herrera and his informant stepped down from their vehicle and walked. The
informant pointed the target pusher to PO2 Herrera. They approached and after
being introduced to Sing, PO2 Herrera boughtshabu using the marked P100.00
bill. Sing gave a small plastic sachet to PO2 Herrera who, thereafter, scratched his
head as a signal. The other police companions of PO2 Herrera, who were deployed
nearby, then rushed to the crime scene. PO2 Herrera grabbed Sing and then frisked
him. PO2 Herrera recovered two (2) plastic sachets from Sings pocket. He also got
the marked money from Sing.
The following specimens were submitted to the Philippine National Police (PNP)
Crime Laboratory of the Central Police District in Quezon City for chemical
analysis:
Three (3) heat-sealed transparent plastic sachets each containing white
crystalline substance having the following markings and recorded net
weights:
Chemistry Report No. D-1020-2002 dated 25 August 2002 and prepared and
presented in court by Forensic Analyst Leonard M. Jabonillo (of the PNP Crime
Laboratory of the Central Police District of Quezon City) yielded the following
results
FINDINGS:
CONCLUSION:
The defense, on the other hand, had an entirely different version of what transpired
that night. It presented three witnesses: accused-appellant Narciso Agulay,
Benjamin Agulay (brother of Narciso), and Bayani de Leon.
On the other hand, the testimony of Bayani de Leon (a police asset of SPO1
Valdez of the buy-bust team) narrated that he, together with P/Insp. Suha, PO1
Herrera, PO2 Riparip, PO2 Gulferic and an arrested individual were on board a car
while conducting a follow-up operation regarding a hold-up incident. When the car
they were riding reached No. 51 J.P. Rizal Street, their team alighted and entered a
compound. They saw accused-appellant and arrested him as he was allegedly
involved in a hold-up incident, not with drug pushing. Accused-appellant was
taken to Police Station 5.
Petitioner elevated the case to this Court via Notice of Appeal[11] dated 21
September 2007. In its Resolution dated 2 April 2008, this Court resolved to:
(3) Notify the parties that they may file their respective supplemental
briefs, if they so desire, within thirty (30) days from notice.
Accused-appellant maintains that his arrest was illegal, and that the
subsequent seizure of shabu allegedly taken from him is inadmissible as evidence
against him. He also claims that the prosecution failed to prove his guilt beyond
reasonable doubt, since the prosecution failed to show all the essential elements of
an illegal sale of shabu.
(1) identities of the buyer and seller, the object, and the consideration;
and
(2) the delivery of the thing sold and the payment therefor.[12]
The testimonies of the prosecution witnesses proved that all the elements of
the crime have been established: that the buy-bust operation took place, and that
the shabu subject of the sale was brought to and identified in court. Moreover, PO2
Herrera, the poseur-buyer, positively identified accused-appellant as the person
who sold to him the sachet containing the crystalline substance which was
confirmed to be shabu.[13] He narrated the events which took place the night
accused-appellant was apprehended:
FIS. JURADO:
You said that you are stationed at Police Station 5, what were your duties
there?
WITNESS:
As an operative sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
But at around 6:30 in the evening, you are on duty?
WITNESS:
Yes, sir.
FIS. JURADO:
While you are on duty at that time and place, will you please inform this
Honorable Court if there was an operation?
WITNESS:
Yes, sir.
FIS JURADO:
WITNESS:
FIS. JURADO:
Regarding what?
WITNESS:
Narcotic sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
How did you prepare for that buy-bust operation?
WITNESS:
FIS. MJURADO:
WITNESS:
FIS. JURADO:
WITNESS:
R.H. sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
Yes sir.
FIS. JURADO:
Will you please show that to this Honorable Court?
WITNESS:
Here sir.
xxxx
FIS. JURADO:
After you prepared the buy bust money, what else did you do?
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
We rode in a tinted vehicles (sic) one space wagon and Besta van, sir.
FIS. JURADO:
WITNESS:
WITNESS:
FIS. JURADO:
Where?
WITNESS:
FIS. JURADO:
After your confidential informant found this Sing, what happened next?
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
I was introduced by the confidential informant to Sing as buyer sir.
FIS. JURADO:
WITNESS:
I bought from him worth one hundred peso (sic) of shabu, sir.
FIS. JURADO:
FIS JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
To my companions sir.
FIS. JURADO:
WITNESS:
On board at (sic) Besta and Space Wagon sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
This one sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
When I frisked Sing, I was able to recover from him two (2) more plastic
sachets sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
Short or pant?
WITNESS:
Short sir.
FIS. JURADO:
Where are these two plastic sachets that you are mentioning?
WITNESS:
Here sir.
FIS. JURADO:
How did you come to know that these are the two plastic sachets?
WITNESS:
xxxx
COURT:
WITNESS:
FIS. JURADO:
You mentioned Sing if this Sing is inside this courtroom, will you be
able to identify him?
WITNESS:
INTERPRETER:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
Yes sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
You said you conducted narcotic operation, where?
WITNESS:
Sta. Lucia, particularly at J.P. Rizal St., Novaliches, Quezon City, sir.
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
WITNESS:
FIS. JURADO:
Who was the poseur-buyer?
WITNESS:
Herrera sir.
FIS. JURADO:
WITNESS:
The poseur buyer executed the pre-arranged signal and we rushed to his
position and arrested the target person Sing sir.
FIS. JURADO:
WITNESS:
Herrera frisked Sing and we brought him to the police station sir.[15]
There are eight (8) instances when a warrantless search and seizure is valid,
to wit:
The defense, in fact, admitted the existence and authenticity of the request
for chemical analysis and the subsequent result thereof:
FIS. JURADO:
COURT:
FIS. JURADO:
ATTY. QUILAS:
FIS. JURADO:
ATTY. QUILAS:
COURT:
Mark it.
In view of the presence of the Chemist, Engr. Jabonillo, He is
being called to the witness stand for cross examination of the defense
counsel.[21]
ATTY. QUILAS:
In this particular case, you received three plastic sachets?
WITNESS:
Yes sir.
ATTY. QUILAS:
When you receive these three plastic sachets were these already
segregated or in one plastic container?
WITNESS:
I received it as is sir.
xxxx
ATTY. QUILAS:
How sure you were (sic) that three plastic sachet (sic) containing
methylamphetamine hydrochloride were the same drug (sic) submitted to
you on August 25, 2002.
WITNESS:
ATTY. QUILAS:
You want to impress before this Honorable Court these were the
same items that you received on August 25, 2002?
WITNESS:
Yes sir.[22]
ATTY. DE GUZMAN:
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
And that you have been (sic) worked as a Chemist in the PNP for several
years?
WITNESS:
ATTY. DE GUZMAN:
Normally, sir.
ATTY. DE GUZMAN:
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
WITNESS:
Yes, sir.
ATTY. DE GUZMAN:
Now in the marking that we have it appearing that Exhibits A, B, and C
are PH, am I correct?
WITNESS:
ATTY. DE GUZMAN:
WITNESS:
Apart from his defense that he is a victim of a frame-up and extortion by the
police officers, accused-appellant could not present any other viable
defense. Again, while the presumption of regularity in the performance of official
duty by law enforcement agents should not by itself prevail over the presumption
of innocence, for the claim of frame-up to prosper, the defense must be able to
present clear and convincing evidence to overcome this presumption of regularity.
This, it failed to do.
Bayani de Leons testimony that the accused was being taken as a carnapping
suspect only further weakened the defense, considering it was totally out of sync
with the testimony of accused-appellant vis--visthe positive testimonies of the
police officers on the events that transpired on the night of 24 August 2002 when
the buy-bust operation was conducted. It is also highly suspect and unusual that
accused-appellant never mentioned that he was taken as a carnapping suspect if
indeed this were the case, considering it would have been his ticket to freedom.
ATTY. CONCEPCION:
Mr. Witness, were you able to talk to Narciso Agulay that time he was
arrested?
WITNESS:
Yes maam, when Narciso Agulay was put inside a room at Station 5 and
in that room, I, Riparip and Herrera entered.
ATTY. CONCEPCION:
What was the conversation all about?
WITNESS:
He was being asked if he was one of those who held up a taxi maam.
ATTY. CONCEPCION:
What was the response of Narciso Agulay?
WITNESS:
Narciso Agulay was crying and at the same time denying that he was
with that person. When we told him that the person we arrested with the
firearm was pointing to him, he said that he does not know about that
incident and he does not know also that person who pointed him
maam.[28]
Witness Bayani de Leons testimony is dubious and lacks credence. From the
testimony of Bayani de Leon, it is apparent that accused-appellant would
necessarily have known what he was being arrested for, which was entirely
inconsistent with accused-appellants previous testimony. Such inconsistency
further diminished the credibility of the defense witness. It would seem that Bayani
de Leons testimony was but a mere afterthought.
Moreover, Bayani de Leon testified that he allegedly came to know of the fact that
accused-appellant was being charged under Republic Act No. 9165 when he
(Bayani de Leon) was also detained at the city jail for robbery with homicide,
testifying as follows:
FIS. ARAULA:
And you only knew that Narciso Agulay was charged of Section 5, R.A.
9165 when you were detained at the City Jail?
WITNESS:
Yes sir.
FIS. ARAULLA:
WITNESS:
Yes sir, and I asked what is the case filed against him.
FIS. ARAULLA:
And that is the time you know that Narciso Agulay was charged of (sic)
Section 5?
WITNESS:
Yes sir.[29]
This Court, thus, is in agreement with the trial court in finding that:
On this premise, this Court has laid down the objective test in scrutinizing
buy-bust operations. In People v. Doria,[31] we said:
It bears to point out that prosecutions of cases for violation of the Dangerous
Drugs Act arising from buy-bust operations largely depend on the credibility of the
police officers who conducted the same, and unless clear and convincing evidence
is proffered showing that the members of the buy-bust team were driven by any
improper motive or were not properly performing their duty, their testimonies on
the operation deserve full faith and credit.[32]
The law presumes that an accused in a criminal prosecution is innocent until
the contrary is proved.[33] This presumption of innocence of an accused in a
criminal case is consistent with a most fundamental constitutional principle,
fleshed out by procedural rules which place on the prosecution the burden of
proving that an accused is guilty of the offense charged by proof beyond
reasonable doubt. This constitutional guarantee is so essential that the framers of
the constitution found it imperative to keep the provision from the old constitution
to emphasize the primacy of rights that no person shall be held to answer for a
criminal offense without due process of law.[34]
In his dissent, Justice Brion focused on the conviction that the buy-bust operation
and the consequent seizure of the prohibited substance either did not take
place or has not been proven beyond reasonable doubt because of a gap in the
prosecutions evidence. Convinced that under the proven facts of the present case,
the dissent maintains that the prosecution has not proven that a crime had been
committed through proof beyond reasonable doubt -- that the three plastic sachets
that were admitted into evidence during the trial were in fact the same items seized
from the accused-appellant when he was arrested.
The above provision further states that non-compliance with the stipulated
procedure, under justifiable grounds, shall not render void and invalid such
seizures of and custody over said items, for as long as the integrity and evidentiary
value of the seized items are properly preserved by the apprehending officers. The
evident purpose of the procedure provided for is the preservation of the integrity
and evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt of or innocence of the accused.
The failure of the arresting police officers to comply with said DDB
Regulation No. 3, Series of 1979 is a matter strictly between the
Dangerous Drugs Board and the arresting officers and is totally
irrelevant to the prosecution of the criminal case for the reason that the
commission of the crime of illegal sale of a prohibited drug is considered
consummated once the sale or transaction is established and the
prosecution thereof is not undermined by the failure of the arresting
officers to comply with the regulations of the Dangerous Drugs Board.
A: Yes sir.
Q: And you said that it is part of your procedure when you confiscated
items from the suspect you made an inventory of the item
confiscated?
A: Yes sir.
The records of the case indicate that after his arrest, accused-appellant was
taken to the police station and turned over to the police investigator. PO2 Herrera
testified that he personally[41] made the markings RH (representing his initials) on
the three sachets, the inventory[42] of which was delivered to the police
investigator. After the arrest, the seized items which had the markings RH alleged
to contain shabu were brought to the crime laboratory for examination.[43] The
request for laboratory examination and transfer of the confiscated sachets to the
PNP crime laboratory was prepared by another officer, PO2 Gulferic, the
designated officer-on-case.[44] It was signed as well by the Chief of Office/Agency
(SDEU/SIIB) Police Chief Inspector Leslie Castillo Castillo. The request indicated
that the seized items were delivered by PO2 Gulferic and received by Forensic
Chemist Jabonillo.[45] The three heat-sealed transparent plastic sachets each
containing white crystalline substance were later on determined to be positive for
Methylamphetamine Hydrochloride or shabu.
When the prosecution presented the marked sachets in court, PO2 Herrera
positively identified the plastic sachets containing shabu which he bought from
accused-appellant in the buy-bust operation. The sachets containing shabu had the
markings RH as testified by Forensic Chemist Jabonillo. PO2 Herrera positively
identified in court that he put his initials RH on the sachets. Thus, the identity of
the drugs has been duly preserved and established by the prosecution. Besides, the
integrity of the evidence is presumed to be preserved unless there is a showing of
bad faith, ill will, or proof that the evidence has been tampered with. The accused-
appellant in this case bears the burden to make some showing that the evidence
was tampered or meddled with to overcome a presumption of regularity in the
handling of exhibits by public officers and a presumption that public officers
properly discharged their duties.[46]
PO2 Herrera identified the sachets in court, and more importantly, accused-
appellant had the opportunity to cross-examine him on this point.
This Court, thus, sees no doubt that the sachets marked RH submitted for
laboratory examination and which were later on found to be positive for shabu,
were the same ones sold by accused-appellant to the poseur-buyer PO2 Herrera
during the buy-bust operation. There is no question, therefore, that the identity of
the prohibited drug in this case was certainly safeguarded.
The dissent maintains that the chain of custody rule 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 x x x. This means that all persons who came into contact
with the seized drugs should testify in court; otherwise, the unbroken chain of
custody would not be established.
We disagree. Not all people who came into contact with the seized drugs are
required to testify in court. There is nothing in the New Drugs Law or in any rule
implementing the same that imposes such a requirement. As long as the chain of
custody of the seized substance was clearly established not to have been broken
and that the prosecution did not fail to identify properly the drugs seized, it is not
indispensable that each and every person who came into possession of the drugs
should take the witness stand. In People v. Zeng Hua Dian,[47] we held:
In connection with this, it must not be forgotten that entries in official records
made by a public officer in the performance of his duty are prima facie evidence of
the facts therein stated.[48] If it is now a requirement that all persons who came into
contact with the seized drugs should testify in court, what will now happen to those
public officers (e.g., person who issued request for examination of drugs or those
who tested the drugs) who issued documents regarding the seized drugs? Shall they
be obligated to testify despite the fact the entries in the documents they issued
are prima facie evidence of the facts therein stated? We do not think so. Unless
there is proof to the contrary, the entries in the documents are prima facie evidence
of the facts therein stated and they need not testify thereon.
The dissenting opinion likewise faults the prosecution for failing to disclose the
identity of the person who submitted the item that was examined. The answer to
this question can easily be seen from the stamp made in the request for drug
analysis. There being no question by the accused on this matter, the entry thereon
made by the public officer is definitely sufficient, same being an entry in official
records.
On the credibility of the witnesses
Prosecutions involving illegal drugs depend largely on the credibility of the
police officers who conduct the buy-bust operation.[49] In cases involving violations
of the Dangerous Drugs Law, appellate courts tend to heavily rely upon the trial
court in assessing the credibility of witnesses, as it had the unique opportunity,
denied to the appellate courts, to observe the witnesses and to note their demeanor,
conduct, and attitude under direct and cross-examination.[50] This Court, not being
a trier of facts itself, relies in good part on the assessment and evaluation by the
trial court of the evidence, particularly the attestations of the witnesses, presented
to it.[51] Thus, this Court will not interfere with the trial courts assessment of the
credibility of witnesses considering there is nothing on record that shows some fact
or circumstance of weight and influence which the trial court has overlooked,
misappreciated, or misinterpreted. Unless compelling reasons are shown otherwise,
this Court, not being a trier of facts itself, relies in good part on the assessment and
evaluation by the trial court of the evidence, particularly the attestations of
witnesses, presented to it. As this Court has held in a long line of cases, the trial
court is in a better position to decide the question, having heard the witnesses
themselves and observed their deportment and manner of testifying during the trial.
In almost every case involving a buy-bust operation, the accused put up the
defense of frame-up. Such claim is viewed with disfavor, because it can easily be
feigned and fabricated. In People v. Uy, the Court reiterated its position on the
matter, to wit:
In the case at bar, the testimonies of the prosecution witnesses are positive and
convincing, sufficient to sustain the finding of the trial court and the Court of
Appeals that accused-appellants guilt had been established beyond reasonable
doubt. First, the testimony of PO2 Raul Herrera was spontaneous, straightforward
and categorical. Second, PO1 Reyno Riparip, the back-up police operative of PO2
Herrera, corroborated the latters testimony on material points.
To reiterate, Bayani de Leons testimony that the accused was being taken as a
carnapping suspect only further weakened the defense, considering it was totally
out of sync with the testimony of accused-appellant vis--vis the positive
testimonies of the police officers on the events that transpired on the night of 24
August 2002 when the buy-bust operation was conducted.
The Court so holds that in the absence of proof of any odious intent on the
part of the police operatives to falsely impute such a serious crime, as the one
imputed against accused-appellant, it will not allow their testimonies to be
overcome by the self-serving claim of frame-up.
Under Republic Act No. 9165, the unauthorized sale of shabu carries with it
the penalty of life imprisonment to death and a fine ranging from Five Hundred
Thousand Pesos (P500,000.00) to Ten Million Pesos (P10,000,000.00).
We, therefore, find the penalty imposed by the trial court, as affirmed by the
Court of Appeals life imprisonment and a fine of P500,000.00 to be proper.
SO ORDERED.