Republic of the Philippines

SANDIGANBAYAN
Quezon City

THIRD DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Crim Case No. 27313-27320;
-versus- 27344; 27400-27402; 27234-
27429

CAPT. WALTER E. BRIONES, et al.,

Accused.
x--------------------------x

MOTION TO QUASH INFORMATION

and MANIFESTATION
(with ENTRY OF APPEARANCE)

COMES NOW the Accused, ROGER TOPACIO, through the undersigned

counsel, unto this Honorable Office, most respectfully states that:

1. A case was filed against the Accused, ROGER TOPACIO, in this

Honorable Court for Violation of Section 3 (e) of Republic Act No. 3019
as amended;

2. The Accused, after being indicted, suffered several illnesses which

required his hospitalization and prompted him to seek better medical care
abroad;

3. Nonetheless, the Accused, never fully recuperated and suffered advanced

mental ailments, thus the present Motion;

GROUNDS FOR THE MOTION

4. The Accused assigns the following ground for this Motion to Quash
Information:

5. The Accused, prior his arraignment and plea, is currently suffering

degenerative mental ailments which prevents him from knowing and
understanding the charges against him;

6. Law and jurisprudence as well as the Rules of Court states, that an

Accused person must be notified of the charges against him and should
fully understand the nature of the charges against him and must see and
know his accusers from the inception of the case. The Accused must

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 understand the allegations against him during his arraignment and trial in
order to effectively raise his defenses;

7. Furthermore, the Court can only have jurisdiction and authority to try a
person if such person is of sound mind. A person of unsound mind cannot
be tried except when such person has lucid intervals;

DISCUSSION

8. The filing of this motion is held to be consistent with the principle of due
process, it is therefore, imperative that the Honorable Court take notice of
the mental ailments of the Accused Roger S. Topacio;

9. The undersigned counsel submits that the present Information should be

set aside and quashed and the present case against the Accused be
dismissed altogether considering the facts herein provided;

10. The Accused, Roger S. Topacio, in a previous Motion to Defer his

Arraignment, stated, through Counsel, that he was mentally unfit to be
arraigned as he was suffering from Alzheimer’s Disease and Dementia as
initially diagnosed by DR. NELSON ANTHONY T. MALLILLIN,
F.P.N.A., a neurologist and psychiatrist. A medical certificate evidencing
his initial findings is herein attached as ANNEX “1”;

11. The Accused’s family was then instructed to get a more comprehensive
and in-depth medical examination for the Accused in order to determine
his mental status and for any mental ailments;

12. The Accused was then taken to St. Lukes Medical Center to which he was
subjected to different tests in order to determine his mental acuity. The test
was performed by DR. JAMELLEE CANO, F.P.N.A., a Neurologist and
a Dementia Specialist.

13. In the test results attached herein as ANNEX “2”, it was found that, in
verbatim:

Functional Ability

“Alzheimer’s Disease 8. The AD8 is a tool that assesses

memory, orientation, judgement and other cognitive abilities.
A score of 0 to 1 implies normal cognition, while a score of 2 or
higher marks impairment in the cognitive faculties. Mr.
Topacio obtained a score of 8 as the informant reported he was
disoriented towards the time and date, is experiencing
difficulty managing his finances, is having a hard time using
appliances, and is repeating questions or statements. Also, they
reported that they can notice how his memory lapses were

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affecting his capability and interest to perform various day-to-
day activities.

Dementia Screening Profile. The DSP is a 10-point scale that

assesses for presence of cognitive and functional impairment.
Mr. Topacio obtained a score of 9 as it was reported that his
day-to-day activities are already affected by his memory lapses
and disorientation. He also tends to experience difficult
initiating or even accomplishing certain tasks. He tends to lose
things and is exhibiting changes in personality.

Functional Assessment Questionnaire. The FAQ measures

functional ability of older adults in terms of instrumental
activities such as remembering appointments, ambulation,
financial transactions, and is in need of help in order to
understand current events.

Lawton Instrumental Activities of Daily Living Scale. The

Lawton IADL Scale is comprised of 8 domains. It assesses
independent living skills at present time. The total ranges from
0 (low function, dependent) to 8 (high function, independent),
with lower score indicating a higher level of dependence. Mr.
Topacio obtained a score of 0 as he currently needs assistance
in most instrumental activities of daily living such as shopping,
medication and financial management, and even in operating
communication devices.

Physical Self-Maintenance Scale. The PSMS is composed of 6

domains that assess functional status in terms of activities of daily
living. It generates an overall score with a range of 6 to 30, where a
higher total score reflects a greater degree of impairment and
greater dependence Mr. Topacio obtained a score of 18 as is
having a difficult performing different hygiene tasks such as
toileting, bathing, grooming, and dressing along. Nonetheless, he
can eat on his own and is capable of moving from one location to
another with assistance.

Disability Assessment for Dementia. The DAD measures the

functional abilities of an older adult through the assessment of the
basic and instrumental activities of daily living, and leisure
activities. Such activities are examined in terms of the following
categories: initiation, planning and organization, and effective
performance. In interpreting the DAD score, it must be noted that a
higher percentage reflects a lower disability while lower
percentage indicates a higher dysfunction. Mr. Topacio’s overall
functional ability was at 11.76% (4/34) as he obtained a score of
1/11 (9.09%) for the initiation domain, a score of 1/8 (12.5%) for
planning and organization, and a score of 2/15 (13.33%) for the

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 effective performance domain. The informant reported that Mr.
Topacio remained capable of eating on his own. He can also still
brush his teeth whenever needed. However, he needs assistance
in performing other hygiene activities such as bathing,
grooming and dressing. Likewise, his continence and ability to
use communication devices were reported as impaired.
Furthermore, he needs to be accompanied and assisted
whenever he needs to go somewhere or even if he decided to
stay home, for safety purposes. Assistance is also needed for
adequate medication and financial management. Furthermore,
it was reported that he recently showed less interest towards
his leisure activities. On the other hand, while meal
preparation was being taken care of by his wife, other
household chores were delegated to their helpers.”

14. The test revealed a conclusion as shown in the attached ANNEX “3.” It
clearly shows that the Accused is already in the mid to late stages of a
degenerative mental disease which effectively prohibits and prevents him
from being able to defend himself in court as he already has grave
difficulty in remembering names and facts especially past events. The
Accused also has difficulty in understanding menial facts and is suffering
memory lapses and disorientation;

15. For this reason, the Honorable Court cannot have jurisdiction over the
Accused as the Accused can never submit himself thereunto because he
will not have an understanding of the allegations against him, nor can he
comprehend the judicial proceedings that will follow;

16. Moreover, in People vs. Estrada G.R. 130487, the Supreme Court
discusses a circumstance wherein the Accused, prior his Arraignment,
suffers mental illness, it stated, to wit:

“The arraignment of an accused shall be suspended if at the time

thereof he appears to be suffering from an unsound mental
condition of such nature as to render him unable to fully understand
the charge against him and to plead intelligently thereto. Under
these circumstances, the court must suspend the proceedings and
order the mental examination of the accused, and if confinement be
necessary for examination, order such confinement and
examination. If the accused is not in full possession of his mental
faculties at the time he is informed at the arraignment of the nature
and cause of the accusation against him, the process is itself a felo
de se, for he can neither comprehend the full import of the charge
nor can he give an intelligent plea thereto.” 

“The question of suspending the arraignment lies within the

discretion of the trial court. And the test to determine whether the
proceedings will be suspended depends on the question of whether

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the accused, even with the assistance of counsel, would have a fair
trial. This rule was laid down as early as 1917, thus:”

“In passing on the question of the propriety of suspending the

proceedings against an accused person on the ground of present
insanity, the judges should bear in mind that not every aberration of
the mind or exhibition of mental deficiency is sufficient to justify
such suspension. The test is to be found in the question whether the
accused would have a fair trial, with the assistance which the law
secures or gives; and it is obvious that under a system of procedure
like ours where every accused person has legal counsel, it is not
necessary to be so particular as it used to be in England where the
accused had no advocate but himself.”

“In the American jurisdiction, the issue of the accused's "present

insanity" or insanity at the time of the court proceedings is separate
and distinct from his criminal responsibility at the time of
commission of the act. The defense of insanity in a criminal trial
concerns the defendant's mental condition at the time of the crime's
commission. "Present insanity" is commonly referred to as
"competency to stand trial" and relates to the appropriateness of
conducting the criminal proceeding in light of the defendant's
present inability to participate meaningfully and effectively. In
competency cases, the accused may have been sane or insane during
the commission of the offense which relates to a determination of
his guilt. However, if he is found incompetent to stand trial, the trial
is simply postponed until such time as he may be found competent.
Incompetency to stand trial is not a defense; it merely postpones the
trial.”

“In determining a defendant's competency to stand trial, the test is

whether he has the capacity to comprehend his position, understand
the nature and object of the proceedings against him, to conduct his
defense in a rational manner, and to cooperate, communicate with,
and assist his counsel to the end that any available defense may be
interposed. This test is prescribed by state law but it exists generally
as a statutory recognition of the rule at common law. Thus:”

“[I]f is not enough for the . . . judge to find that the defendant [is]
oriented to time and place, and [has] some recollection of events,
but that the test must be whether he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as factual
understanding of the proceedings against him.”

“There are two distinct matters to be determined under this test: (1)
whether the defendant is sufficiently coherent to provide his counsel
with information necessary or relevant to constructing a defense;

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 and (2) whether he is able to comprehend the significance of the
trial and his relation to it. The first requisite is the relation between
the defendant and his counsel such that the defendant must be able
to confer coherently with his counsel. The second is the relation of
the defendant vis-a-vis the court proceedings, i.e., that he must have
a rational as well as a factual understanding of the proceedings.”

“The rule barring trial or sentence of an insane person is for the

protection of the accused, rather than of the public. It has been
held that it is inhuman to require an accused disabled by act of
God to make a just defense for his life or liberty. To put a
legally incompetent person on trial or to convict and sentence
him is a violation of the constitutional rights to a fair trial and
due process of law; and this has several reasons underlying it.
For one, the accuracy of the proceedings may not be assured, as
an incompetent defendant who cannot comprehend the
proceedings may not appreciate what information is relevant to
the proof of his innocence. Moreover, he is not in a position to
exercise many of the rights afforded a defendant in a criminal
case, e.g., the right to effectively consult with counsel, the right
to testify in his own behalf, and the right to confront opposing
witnesses, which rights are safeguards for the accuracy of the
trial result. Second, the fairness of the proceedings may be
questioned, as there are certain basic decisions in the course of
a criminal proceeding which a defendant is expected to make
for himself, and one of these is his plea. Third, the dignity of the
proceedings may be disrupted, for an incompetent defendant is
likely to conduct himself in the courtroom in a manner which
may destroy the decorum of the court. Even if the defendant
remains passive, his lack of comprehension fundamentally
impairs the functioning of the trial process. A criminal
proceeding is essentially an adversarial proceeding. If the
defendant is not a conscious and intelligent participant, the
adjudication loses its character as a reasoned interaction
between an individual and his community and becomes an
invective against an insensible object. Fourth, it is important
that the defendant knows why he is being punished, a
comprehension which is greatly dependent upon his
understanding of what occurs at trial. An incompetent
defendant may not realize the moral reprehensibility of his
conduct. The societal goal of institutionalized retribution may
be frustrated when the force of the state is brought to bear
against one who cannot comprehend its significance.”

17. It is clear from the Psychological and Psychiatric Evaluation of the

Accused, his mental ailments are of a permanent and degenerative in
nature which will prevent him from participating rationally in the
proceedings as well as violate his rights concerning due process, the right

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 to effectively consult with counsel, the right to testify in his own behalf,
and the right to confront opposing witnesses;

18. The Supreme Court stated in the same case that trial shall be suspended
while the Accused recuperates from mental illnesses, however, in the
present case, the mental illness that the Accused Topacio is suffering is
permanent and degenerative which can no longer be cured. The only thing
that the medical field can offer is to slow down the deterioration of the
Accused’s mental capacities;

19. In another case decided by the Supreme Court, in US vs. Guendia, G.r. no.
L-12462, the Court stated, to wit:

“Undoubtedly the rule is well established that no person afflicted

with imbecility or insanity in such a degree as to disable him from
making his defense should ever be put upon his trial for an
alleged crime or made to suffer the judgment of the law.”

“In Blackstone's Commentaries we find the following Passage:

“Also if a man in his sound memory commits a capital offense,

and before arraignment for it, he becomes mad, he ought not to
be arraigned for it; because he is not able to plead to it with that
advice and caution that ought; and if after he has pleaded, the
prisoner becomes mad, he shall not be tried; for how can he
make his defence? If, after he be tried; and found guilty, he loses
his senses before judgment, judgment shall be pronounced; and if,
after judgment, he becomes of non-sane memory, execution shall be
stayed; for peradventure says the humanity of the English law, had
the prisoner been of sound memory, he might have alleged
something in stay of judgment or execution.”

“There were good reasons for this tenderness or "humanity" of the

English law, as the reader will appreciate when reminded of the fact
that until modern times no prisoner arraigned before the bar of an
English court was ever permitted to have counsel to assist him in
his defense; that until within the memory of living man no accused
person was ever permitted to give testimony in his own behalf; and
finally that it was only in our own day that a person convicted of a
crime in an English court has been allowed an appeal for a review
of the facts.”

“When Blackstone here speaks of madness he refers to a general

perversion and obliteration of the mental powers much more
pronounced than that which is considered sufficient to exempt from
criminal responsibility. This is apparent from the fact that the courts
have always treated a person as sane for the purposes of being tried

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if he has sufficient powers to comprehend the nature of the
proceedings in which he is involved and to conduct his defense.”

“In the State of New York, as appears from the case of Freeman vs.
People (4 Denio, 9; 47 Am. Dec., 216), there was in force in 1847 a
statute expressly declaring that no insane person could be tried,
sentenced, or punished for any crime. In discussing this provision,
the court said:

“In its terms the provision is broad enough to reach every possible
state of insanity, so that, if the words are to be taken literally, no
person while laboring under insanity in any form, however partial
and limited it may be, can be put upon trial. But this the legislature
could not have intended; for although a person totally bereft of
reason cannot be fit subject for trial or punishment, it by no means
follows that one whose insanity is limited to some particular object
or conceit, his mind in other respects being free from disease, can
justly claim the like exemption. This clause of the statute should
receive a reasonable interpretation, avoiding on the one hand what
would tend to give impunity to crime, and on the other seeking to
attain the humane object of the legislature in its enactment. The
common law, equally with this statute, forbids the trial of any
person in a state of insanity. This is clearly shown by authorities
which have been referred to, and which also show the reason for the
rule, to wit, the incapacity of one who is insane to make a rational
defense. The statute is in affirmance of this common law principle,
and the reason on which the rule rests furnishes a key to what must
have been the intention of the legislature. If, therefore, a person
arraigned for a crime, is capable of understanding the nature and
object of the proceedings going on against him; if he rightly
comprehends his own condition in reference to such proceedings,
and can conduct his defense in a rational manner, he is, for the
purpose of being tried, to be deemed sane, although on some other
subjects his mind may be deranged or unsound. This, as it seems to
me, is the true meaning of the statute; and such is the construction
put by the English courts, on a similar clause in an act of
parliament.

“For the purpose of securing these unfortunate persons from the

danger of being improperly arraigned and tried, statutes have been
enacted in many jurisdiction requiring the court, where the issue of
present insanity is raised, or where the present insanity of the
accused is otherwise brought to the attention of the court, to submit
to the jury a preliminary issue to determine whether the accused is
so far insane as to require a suspension of the proceedings; and even
in States where no such statute has been enacted it is recognized
that the issue of present insanity ought properly to be tried, either by

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 the court itself or by the jury, as a separate issue.” (emphasis
supplied)

20. The Court further stated:

“The conclusion to which we arrive is that when a judge of first

instance is informed or discovers that an accused person is
apparently in a present condition of insanity or imbecility, it is
within his discretion to investigate the matter, and if it be found that
by reason of any such affliction the accused could not, with the aid
of his counsel, make a proper defense, it is the duty of the court to
suspend the proceedings and commit the accused to a proper place
of detention until his faculties are recovered. If, however, such
investigation is considered unnecessary, and the trial proceeds, the
court will acquit the accused if he be found exempt from criminal
responsibility by reason of imbecility or lunacy. In such case an
order for his commitment to an asylum should be made pursuant to
the provisions of paragraph 2 of article 8 (1) of the Penal Code. In
passing on the question of the propriety of suspending the
proceedings against an accused person on the ground of present
insanity, the judges should bear in mind that not every aberration of
the mind or exhibition of mental deficiency is sufficient to justify
such suspension. The test is to be found in the question whether the
accused would have a fair trial, with the assistance which the law
secures or give; and it is obvious that under a system of procedure
like ours where every accused person has legal counsel, it is not
necessary to be so particular as it used to be in England where the
accused had no advocate but himself.”

21. In the Concurring decision of Justice Carson, he stated, to wit:

“Both on principle and authority, I am of opinion that when it

affirmatively appears that an accused person is insane or of
unsound mind at the time of his trial, all further criminal
proceedings should be suspended; and that thereafter the
complaint or information should be dismissed if there is no
present prospect of his recovery of his mental equilibrium,
without prejudice to the right of the state to present a new
complaint or information in the event that the accused should
thereafter be restored to his health.”

“The doctrine as laid down by the authorities is quite clearly set

forth in the following citations:”

“If the defendant is deaf and dumb, he may nevertheless, if he

understands the use of signs, be arraigned, and the meaning of the
clerk in addressing him may be conveyed to him, by some proper
person, by signs, and his signs in reply may be explained to the

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court. If he is insane he cannot be arraigned or tried at all until he
becomes sane. (Clarke's Criminal Procedure, Vol. 2, sec. 128.)”

“The defendant cannot be arraigned or tried or sentenced while he is

insane, though he may have been sane when the offense was
committed. (Idem, Vol. 2, sec. 149.)”

To the like effect are the following citations from Bishop's New
Criminal Procedure, then which there is no higher textbook
authority in the United States:

There will be no trial. — If the defendant is dead, insane, or drunk,

or from any other cause incapable of understanding the proceeding
and making his defense. (Vol. 1, sec. 950 c.)

Counsel. — Present insanity implies a disability to employ, control,

or discharge counsel. And the doctrine is believed to be that when
the court sees a reasonable ground to institute we persevere in this
defense, it will take care that the prisoner has suitable counsel
therein, whom it will not permit him to reject, restrain or dismiss.

When and how. — An insane man cannot even plead to an

indictment; therefore, if, at the arraignment, counsel have reason to
suppose their client too insane to take his trial, they should then
make the objection, which, it is believed, can be adequately done
orally to the court. Or the objection may proceed from a third
person on affidavit. Or the court may take it on its own
observations. It is not technically too late at any subsequent stage of
the cause, prior to the commencement of the trial. When the trial
has begun, there are obvious reasons against stopping it; and it is, at
least, within the discretion of the court to let it proceed, and submit
the two issues to the jury together.

How tried. — This question of present insanity is properly, and in

practice is generally, submitted to a jury; which may be either one
of the regular juries attending on the court, or one specially
impanelled for the purpose. But this course is not imperative; the
court has the discretion, and without the aid of a jury's finding, to
decline the trial on the main issue, or direct the question to be tried
with the plea of not guilty. (Vol. 2, sec. 666.)

The time — to which this jury relates is, it is perceived, the present
— what is the mental condition now, not what it was when the
offense was committed. And—

The test of insanity. — is not precisely the same as on the main

issue; it is whether the prisoner can make a rational defence. (Vol.
2, sec. 667.)

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 The evidence — it seems, need not be limited by the judge within
strict rules, its purpose being to enlighten a discretion. Thus, the
prisoner may be permitted to make statements and observations to
the court and the jury, and what they see and hear of him they may
take into the account. He cannot challenge jurors peremptorily, but
he may for cause.

The hearing — may probably, if deemed best, be private.

The finding — on this preliminary question, that the prisoner is not

insane, is not receivable against him on the trial of the main issue.
(Vol. 2 sec. 668.)

22. Under the aforementioned cases, the Court found it compelling, after
receipt of competent proof of insanity, that a case be dismissed and/or the
trial be suspended;

23. The Court, in many instances, also admitted reasons not enumerated in the
rules as basis for the quashal of information if the Court deems it to be
sufficient reason;

24. In the present case, the Accused, through his very comprehensive mental
examination, is shown to have lost the ability to properly defend himself as
he already has progressive memory loss and Alzheimer’s Disease and
dementia;

MANIFESTATION

25. It is further manifested that the previous attending physician, DR.

NELSON ANTHONY T. MALLILLIN, F.P.N.A., as called upon by this
Court cannot attend as he has a previous schedule which is of equal
importance;

26. In addition, it is most respectfully asked for of this Court that the present
attending physician, DR. JAMELLEE CANO, F.P.N.A. of St. Luke’s
Medical Center, who conducted and signed the more comprehensive and
in-depth mental examination of Accused Roger Topacio be called to stand
witness and prove the medical examination and mental acuity of the
Accused and the fact that he is incapable to stand trial;

WHEREFORE, it is most respectfully prayed of this Honorable Court

that the present MOTION be GRANTED and the Information filed be Quashed
and the case against Accused ROGER S. TOPACIO be dismissed altogether for
the reason of his mental incapacity.

FORMAL ENTRY OF APPEARANCE

COMES NOW the undersigned COUNSEL, unto this Honorable Court

respectfully enters his appearance as COUNSEL FOR THE ACCUSED.

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 WHEREFORE, it is respectfully prayed that copies of all Decision,
Orders, Resolutions, processes issued by the Honorable Court and pleadings filed
by the parties be sent at undersigned counsel’s address.

Respectfully Submitted.

Cavite City to Quezon City. February 16, 2021.

ATTY. AIZA AGDON

Counsel for the Accused
________________________________
Mobile: ___________________
Email: ____________________________
Roll No.: ________
IBP No.: __________
PTR No. ____________
MCLE No. ______________

COPY FURNISHED / NOTICE OF HEARING

OFFICE OF THE SPECIAL PROSECUTOR

4th Flr. Office of the Ombudsman Bldg.,
Agham Rd., North Triangle, Diliman, Quezon City

 MANUEL T. SORIANO JR.

Deputy Special Prosecutor
 ARIETA P. SAY
Assistant Special Prosecutor III
 CHARMAINE M. CALALANG
Assistant Special Prosecutor III

ATTY. DENNIS PULMA

Executive Clerk of Court
Third Division
Sandiganbayan

Greetings:

Warmest greetings! Please take note that the foregoing Motion shall be submitted
for the consideration and approval of the Honorable Court upon receipt herein.

ATTY. AIZA AGDON

EXPLANATION

Copy of this Motion was served to the abovementioned concerned party via mail
due to lack of manpower complement.

ATTY. AIZA AGDON

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 Republic of the Philippines
SANDIGANBAYAN
Quezon City

THIRD DIVISION

PEOPLE OF THE PHILIPPINES,

Plaintiff,
Crim Case No. 27313-27320;
-versus- 27344; 27400-27402; 27234-
27429

CAPT. WALTER E. BRIONES, et al.,

Accused.
x--------------------------x

MANIFESTATION
(Notice of Withdrawal and
change of Counsel on Record)

The undersigned counsel, and unto this Honorable Court, most respectfully states
that:

1. The undersigned counsel would like to manifest that I have already

withdrawn my appearance for the above-mentioned case in this Honorable
Court and is likewise respectfully withdrawing his appearance in this
Honorable Court;

2. In view of the foregoing, it is respectfully requested that all

communications, notices, orders, resolutions, and other pleadings be
directed and sent to Atty. Aiza Agdon who is the new counsel for the
Accused;

RESPECTFULLY SUBMITTED.

Cavite City for Quezon City. February 16, 2021.

By:

ATTY. NEMUEL RESURRECCION CAMARSE

LGM Bldg., P. Burgos Ave. cor. Crisostomo St.,
Caridad, Cavite City, Cavite Province
Mobile: 09177755128
Email: [email protected]
Roll No.: 69385
IBP No.: 070385 / 01.21.19
PTR No. 7047093 / 01.31.20
MCLE No. VI-0012083

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