Republic of the Philippines

REGIONAL TRIAL COURT

PEOPLE OF THE PHILIPPINES,

Plaintiff,

-versus- Criminal Case No. IR

FOR: Violation of Sec. 5, Art. II, RA 9165

x x x,

Accused.

x——————————————x

DEMURRER TO EVIDENCE

ACCUSED, through the undersigned counsel, unto this Honorable Court, hereby
deposes and states that:

PREFACE

In ancient mythology, Trojan war was waged by Greeks to recover Helen who

was abducted by Paris, the prince of Troy. The Kingdom of Troy had had

impregnable walls that made it almost impossible for it to lose ground.

The Grecian warriors had built a gigantic wooden horse in whose hollow belly

they hid and awaited the proper time to stage an attack. Deceived by various

ruses and thinking that it was an offering for Athena, the Trojans dragged the

horse through their otherwise impenetrable city walls.

At nighttime, those hidden inside the Trojan horse emerged and opened the

gates of the city for their comrades waiting outside. They then proceeded to

sack the city that led to Troy’s downfall.

‘How the mighty have fallen.’

So thus an adage goes - “I fear the Greeks specially when they bring gifts”.

While this case is not as fanciful as that old tale, the criminal justice system

would do well to draw the lessons from the Trojan war, id est, taking utmost

precautions as to what or who we let and take in.

It is for these reasons that Chain of Custody as embodied in Section 21 of R.A.

9165 was probably formulated in order that what is taken in as evidence in Court

is the same as the one seized from an alleged drug laws offender. The

undersigned refers to the case of Mallillin v. People1, in which the Supreme

Court held that:

‘‘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 in 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

G.R. No. 207992, August 11, 2014, 732 SCRA 554

 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. 2’’

THE CASE

Accused CESAR A. BADIOLA stands charged with violation of Section 5, Art. II

of R.A. 9165, otherwise knows as the Anti-Dangerous Drugs Act of 2002.

Allegedly, he was involved in the sale of methamphetamine hydrochloride or

‘shabu’ with recorded net weights: A (SIB-1)=1.068 grams; B (SIB-2)=0.260

grams; and C (SIB-3)=0.037 grams, on 19 June 2015 in Sta. Cruz, Baao,

Camarines Sur.

Along the course of the proceedings, Retired Police Officer Severino Buffe, Jr.

(PO Buffe, Jr for brevity) and Chemist PSI Josephine Macura Clemen (PSI

Clemen) testified in several occasions. It is in their testimonies that the defense

has determined a way to let the accused off the hook.

On further direct examination, PO Buffe, Jr. stated, thus:

Q: I have here three (3) sachets containing Methamphetamine

hydrochloride white crystalline substance which were found positive
for the presence of Methamphetamine hydrochloride, can you
examine one by one the sachets of shabu?

A: Yes, I can. This (sic) looks (sic) like the sachet[s] of shabu which I
received however this is no longer my handwriting. During that time,

2 Id at 240
 I was no longer the one who submitted the item in the crime
laboratory.

Q: Who was that?

A: The one[s] who submitted the sachets to the crime laboratory office
were PI Hugo, SPO4 Christopher Bersola, PO3 Casano and PO1
Ma. Alda Baldonado.

Q: So among those persons you mentioned, to whom did you turn

over the items?

A: x x x so I trusted this (sic) to PO1 Ma. Alda Baldonado and the duty
investigator and they were the ones who submitted this (sic) to the
crime laboratory office in Legaspi City.

x x x

On Cross-Examination by the Defense Counsel, the same witness testified, thus:

Q: Did you affix your signature?

A: Only initials.

Q: When you were asked earlier to identify the three (3) specimen that
were allegedly recovered form the accused, you had a misgiving as
to the marking?

A: Yes.

Q: Why do you say so?

A: Because I did not make any marking on the sachet but on a piece
of paper attached on the sachet.

Q: And the SIB-1, SIB-2 and SIB-3 which were written on the plastic
sachet [s] are not your handwriting and also the date because the
date is separated by a hyphen and it does not contain apostrophe?

A: Yes.

Q: You made marking on a piece of paper and attached on each

sachet. Why did you make such markings?

A: It was in fact placed on a piece of paper because the sachet cannot

(sic) accommodate the traces of the marking pen. so, I deemed it
wise to attach a piece of paper and I placed a marking.

 Q: Were you informed Mr. Witness that the markings you nade were
transferred to the sachet?

A: On the following day, PO1 Baldonado informed me that she rewrote

my marking[s] on the sachet of shabu at the crime laboratory.

PSI Clemens, when presented in Court, likewise stated, thus:

Q: x x x What was the condition Madam Witness of the specimen

when you received these three (3) items, the specimen subject of
the examination?

A: It was heat-sealed and with markings.

Q: Where were the markings placed?

A: It was placed in (sic) the plastic sachet itself.

Q: Who received it?

A: The receiving officer on duty.

Q: Can you tell us why there was re-writing made by the particular
person who submitted the same because according to the witness,
he marked the 3 specimen on a piece of paper and he attached it to
the sachet?

A: Since I was not there during the receipt, the standard operating
procedure is that we will (sic) receive the specimen with markings.
Because, it is usually refused without any identifying markings,
maybe the receiving personnel advised the deliverer (sic) police
officer to transfer to the plastic sachet and not on a separate piece
of paper.

On Clarifications made by the Honorable Court:

Q: Do you have with you Madam Witness the chain of Custody form
issued by the crime laboratory office?

A: I was made to understand that the items and/or chain of custody

were already submitted to the evidence custodian but it is only now
that I knew that only the items were submitted.3 Emphasis
Supplied

3 TSN, 18 March 2019 (CARE GUEVARRA, Stenographer)

Based on the foregoing testimonies, it appears that the three markings made by

the person4 who had initial contact with the specimen, were changed, if not

tampered with. Moreover, the same changes have not been sufficiently

explained. In fact, PO Baldonado who had changed the markings herself terribly

failed to mention, hook, line and sinker, that she made alterations on the

markings, or to explain these changes, at the very least. It is confirmed by PO

Buffe, Jr. whose markings (SIBs) were transferred from the attached pieces of

paper to the very surface of the sachets. When presented in Court, he did not

identify the specimen because, in his words, the markings are ‘no longer my

handwriting.5’

PSI Clemen may have also confirmed this blunder. She stated that markings

should be placed on the sachets not on a piece of paper pasted on or attached

to the sachet as a matter of protocol in their office. According to her, since the

initial marking was made on the piece of paper attached to the sachet, the

receiving personnel may have advised the police officers to transfer the

markings on the sachet itself. Nevertheless, the change of markings is in itself

detrimental to the case of the prosecution as it casts doubt on the integrity of

specimen presented in Court. Not only does it violate the law, it is also incapable

of overcoming the moral certainty required to prove the guilt of the accused

4 PO Severino Buffe, Jr.

5 Id at 3
beyond reasonable doubt. There will always be a lingering whispers of discredit

on the very corpus delicti of the crime.

People v. Dahil6 restated the links that the prosecution must establish in the

chain of custody in a buy-bust situation to be as follows:

x x x 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 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.

Crucial in proving the chain of custody is the marking of the seized

drugs or other related items immediately after they have been seized
from the accused. "Marking" means the placing by the apprehending
officer or the poseur-buyer of his/her initials and signature on the items
seized. Marking after seizure is the starting point in the custodial link;
hence, it is vital that the seized contraband be immediately marked
because the succeeding handlers of the specimens will use the
markings as reference. The marking of the evidence serves to separate
the marked evidence from the corpus of all other similar or related
evidence from the time they are seized from the accused until they are
disposed of at the end of the criminal proceedings, thus, preventing
switching, planting or contamination of evidence.7

While there were markings made, the second marking was unnecessary and

unlawful. It was undertaken in the crime laboratory where the accused was not

present, nor the mandatory witnesses or at least any representative that could

have protected him from possible abuse or excesses, therefore violating Sec. 21

of R.A. 9165 that the physical inventory and photography shall be done in the

6 745 SCRA 221 (2015)

7 Id
presence of the accused and mandatory witnesses. It was done with elements

of the State who have the all the powers and resources to tamper with the

evidence in this case. Such action defeats the very purpose of marking. Hence,

doubt had been cast on the identity and integrity of the specimen presented in

Court.

The personnel from the crime laboratory where the alleged drug items were

initially turned over, was not presented in Court. After all, he/she had to testify

on the circumstances from his/her receipt of the items to the possession thereof

by the chemist on case, PSI Clemen. There was also no stipulation/s reached on

the Chain of Custody Form in the Crime Laboratory especially on the receiving

personnel’s signature and other pertinent matters as to his/her possession. This

flaw alone breaks the continuity of the chain of custody.

In fine, the grant of the Demurrer to Evidence is in order. Considering the doubts

engendered by the paucity of the prosecution evidence, this case does not have

a leg to stand on. We cannot allow another Trojan horse to succeed in this case.

Not with this defense lawyer.

Not with the Regional Trial Court Branch ___.

WHEREFORE, premises considered, it is respectfully prayed that the Demurrer

to Evidence be granted and that this case be dismissed as prayed for.