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REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT


TENTH JUDICIAL REGION
BRANCH 10
MALAYBALAY CITY, BUKIDNON

PEOPLE OF THE PHILIPPINES,


Plaintiff,
Criminal Case No. 12345-67
- versus - For: VIOLATION OF Sec. 5 and 11
of R.A. No. 9165

CARLO LUCERO
Accused.
x-----------------------------------------------------------------------------------------x

DEMURRER TO EVIDENCE

Accused CARLOS LUCERO, by counsel, respectfully states:

1. Accused Carlos Lucero, resident of San Jose, Malaybalay City, was


arrested at his residence through “Buy-Bust” Operation conducted by the PNP for
violation of RA 9165. PO2 Lutrago posed as the “poseur-buyer during the said
operation.”

2. A demurrer to evidence is defined in the case of Rivera v. People:1

A demurrer to evidence is defined as an objection by one of the


parties in an action, to the effect that the evidence which his adversary
produced is insufficient in point of law, whether true or not, to make out
a case or sustain the issue. The party demurring challenges the
sufficiency of the whole evidence to sustain a verdict.2

3. Accused was charged with the violation of Sec. 5 and 11 of R.A. No. 9165
(The Comprehensive Dangerous Drugs Act of 2002) which respectively states that:

“Section 5. Sale, Trading, Administration, Dispensation, Delivery,


Distribution and Transportation of Dangerous Drugs and/or Controlled
Precursors and Essential Chemicals. - 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) shall be imposed upon any person,
who, unless authorized by law, shall sell, trade, administer, dispense,
deliver, give away to another, distribute dispatch in transit or transport any
dangerous drug, including any and all species of opium poppy regardless
of the quantity and purity involved, or shall act as a broker in any of such
transactions.

xxx “

“Section 11. Possession of Dangerous Drugs. - xxx

1 G.R. No. 163996, June 9, 2005.


2 Emphasis supplied.

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Otherwise, if the quantity involved is less than the foregoing quantities,
the penalties shall be graduated as follows:
xxx
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20) years and a
fine ranging from Three hundred thousand pesos (P300,000.00) to Four hundred
thousand pesos (P400,000.00), if the quantities of dangerous drugs are less than
five (5) grams of opium, morphine, heroin, cocaine or cocaine hydrochloride,
marijuana resin or marijuana resin oil, methamphetamine hydrochloride or
"shabu", or other dangerous drugs such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or newly
introduced drugs and their derivatives, without having any therapeutic value or if
the quantity possessed is far beyond therapeutic requirements; or less than three
hundred (300) grams of marijuana.”

4. The aforementioned violation of Sec. 5 and Sec. 11 of R.A. No. 9165 as


enumerated in the case of People of the Philippines v. Jay Montevirgen (G.R. No.
189840, December 11, 2013) is as follows:

“In every prosecution for the illegal sale of shabu, under Section 5, Article
II of RA 9165, the following elements must be proved: "(1) the identity of the
buyer and the seller, the object and the consideration; and (2) the delivery of the
thing sold and the payment therefor. x x x What is material in a prosecution for
illegal sale of dangerous drugs is the proof that the transaction or sale actually
took place, coupled with the presentation in court of the corpus delicti" or the
illicit drug in evidence. On the other hand, in prosecuting a case for illegal
possession of dangerous drugs under Section 11, Article II of the same law, the
following elements must concur: "(1) the accused is in possession of an item or
object, which is identified as a prohibited drug; (2) such possession is not
authorized by law; and (3) the accused freely and consciously possessed the
drug.3

5. The prosecution presented two (2) witnesses: PO2 Lutrago and SPO2
Sudaria. They also offered Exhibits A to E, including its respective sub-markings, as their
evidence to prove said elements.

6. In view of the foregoing, accused moves for the dismissal of the instant
case based on any or all of the following grounds:

I. The documentary evidence submitted by the prosecution is not


admissible as they are mere photocopies and therefore merely
secondary evidence.

II. The prosecution failed to comply with the requirements provided


by Section 5 Rule 130 of the Rules of Court, allowing secondary
evidence if the original is unavailable.

III. The marking on the seized “shabu” cannot be identified by the


witness

IV. The request for laboratory examination of the seized “shabu” was
submitted to the crime laboratory more than 24 hours from the time it was
seized

3 People of the Philippines v. Jay Montevirgen, GR No. 189840, December 11, 2013

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DISCUSSION

I. The documentary evidence submitted by the


prosecution is not admissible as they are
mere photocopies and therefore merely
secondary evidence.

II. The prosecution failed to comply with the


requirements provided by Section 5 Rule
130 of the Rules of Court allowing
secondary evidence if the original is
unavailable.
----------------------------------------------

7. It is well entrenched in our jurisprudence that “under the best evidence


rule, the original document must be produced whenever its contents are the subject of
inquiry.4

8. The rule is encapsulated in Section 3, Rule 130 of the Rules of Court, as


follows:

Sec. 3. Original document must be produced; exceptions. — When


the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself, except in the following
cases:

(a) When the original has been lost or destroyed, or cannot be


produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of


the party against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;

(c) When the original consists of numerous accounts or other


documents which cannot be examined in court without great loss of time
and the fact sought to be established from them is only the general result
of the whole; and

(d) When the original is a public record in the custody of a


public officer or is recorded in a public office.

9. A photocopy, being a mere secondary evidence, is not admissible unless it


is shown that the original is unavailable. 5 Section 5, Rule 130 of the Rules of Court
states:

Sec. 5. When original is unavailable. - When the original


document has been lost or destroyed, or cannot be produced in court, the
offeror, upon proof of its execution or existence and the cause of its
unavailability without bad faith on his part, may prove its contents by a

4 Herrera, REMEDIAL LAW, Vol. V (1999 ed.). p.166.


5 SOLIDBANK v. Del Monte Motor Works, Inc., G.R. No. 143338, 29 July 2005.

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copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.

10. Therefore, before a party is allowed to adduce secondary evidence to


prove the contents of the original, the offeror must prove the following: (1) the existence
or due execution of the original; (2) the loss and destruction of the original or the reason
for its non-production in court; and (3) on the part of the offeror, the absence of bad faith
to which the unavailability of the original can be attributed. The correct order of proof is
as follows: existence, execution, loss, and contents.6

11. In the case at bar, the prosecution failed to comply with the
abovementioned requirements. In fact, all their documentary evidence were bears mere
provisional markings. Even after filing their formal offer of evidence, the prosecution
failed to present the original copies of the said documents in Court.

12. During trial, the prosecution had stated that they would be presenting the
original of the PDEA coordination document. Assuming that the originals were indeed
lost, a party must first present to the court proof of loss or other satisfactory explanation
for the non-production of the original instrument. 7 In this regard, the prosecution has
failed to prove that the originals had been lost or could not be produced in Court after
reasonable diligence and good faith in searching for the originals, hence a violation of the
best evidence rule.

III. The marking on the seized “shabu” cannot


be identified by the witness ------------------
----------------------------

13. In a prosecution of the sale and possession of metamphetamine


hydrochloride prohibited under Republic Act No. 9165, the State not only carries the
heavy burden of proving the elements of the offense of, but also bears the obligation to
prove the corpus delicti xxx. It is settled that the State does not establish the corpus
delicti when the prohibited substance subject of the prosecution is missing or when
substantial gaps in the chain of custody of the prohibited substance raise grave doubts
about the authenticity of the prohibited substance presented as evidence in court. Any gap
renders the case for the State less than complete in terms of proving the guilt of the
accused beyond reasonable doubt. [People v. Relato, G. R. No. 173794, January 18,
2012]
14. Doubts on the authenticity of the drug specimen occasioned by the
prosecutions failure to prove that the evidence submitted for chemical analysis is the
same as the one seized from the accused suffice to warrant acquittal on reasonable doubt.
[People v. Mapa, G.R. No. L-22301, August 30, 1967]

15. Section 21(a) of RA 9165 provides that “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.

6 De Vera v. Aguilar, G.R. No. 83377, 9 February 1993


7 Heirs of Teofilo Gabatan v. Court of Appeals, G.R. No. 150206, 13 March 2009.

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16. Given the foregoing, the prosecution was not able to prove the authenticity
of the drug specimen when Officer Sudaria failed to identify any of the markings on the
seized shabu.

IV. The request for laboratory examination for


the seized “shabu” was submitted to the
crime laboratory more than 24 hours from
the time it was seized ---------------------------
-------------------

17. Section 21(b) of RA 9165 provides that “within 24hours upon confiscation
of dangerous drugs, the same shall be submitted to the PDEA Forensic Laboratory for a
qualitative and quantitative examination.

18. A close examination of the IRR of RA 9165 readily reveals that the
custodial chain rule admits of exceptions. Non-compliance with Sec. 21 does not, by
itself, render the arrest of the accused illegal or the items seized/confiscated from the
accused inadmissible in evidence. What is essential is “the preservation of the integrity
and the evidentiary value of the seized items, as the same would be utilized in the
determination of the guilt or innocence of the accused.” [People vs. Cortez, G.R. No.
183819, July 23, 2009]

19. In this regard, the prosecution had failed to establish convincingly the
chain of custody of the alleged seized “shabu”, and hence, in violation of Sec. 21 of R.A.
No. 9165.

20. A buy-bust operation has a significant downside that has not escaped the
attention of the framers of the law. It is susceptible to police abuse, the most notorious of
which is its use as a tool for extortion. Accordingly, specific procedures relating to the
seizure and custody of drugs have been laid down in the law for the police to strictly
follow. The prosecution must adduce evidence that these procedures have been followed
in proving the elements of the defined offense. [People v. Garcia, 580 SCRA 259,
February 25, 2009)

21. Given the foregoing, accused respectfully moves for the dismissal of the
instant case FOR FAILURE OF THE PROSECUTION TO PROVE THE GUILT OF
THE ACCUSED BEYOND REASONABLE DOUBT.

RELIEF

WHEREFORE, it is respectfully prayed that the Honorable Court GRANT the


demurrer to evidence and DISMISS the instant case.

Accused prays for other equitable relief.

Malaybalay City, February 19, 2018.

PUBLIC ATTORNEY’S OFFICE


Counsel for Accused
1st Floor, Hall of Justice Building
Capitol Grounds

5
Malaybalay City, Bukidnon

By:

MARA GENINA C. UNABIA


PTR No. MKT 5948394; 01/26/2017; Malaybalay City
IBP Lifetime Member No. 014063; RSM
Roll of Attorneys No. 62944
MCLE Compliance No. V-0018496; 04/13/17

Notice of Hearing

The Clerk of Court


Regional Trial Court
Malaybalay City, Branch 10

SENIOR ASSISTANT CITY PROSECUTOR


Malaybalay City, Bukidnon

PRIVATE PROSECUTOR
Malaybalay City, Bukidnon

Gentlemen:

Please take notice that this motion will be submitted for the consideration and approval of
the Honorable Court on February 19, 2018, or any date most convenient to the calendar
of the Court.

Mara Genina C. Unabia

Copy Furnished:

By Personal Service –

SENIOR ASSISTANT PROSECUTOR


Malaybalay City, Bukidnon

PRIVATE PROSECUTOR
Malaybalay City, Bukidnon