Republic of the Philippines

REGIONAL TRIAL COURT

Third Judicial Region
City of Malolos, Bulacan
BRANCH 8

PEOPLE OF THE PHILIPPINES,

-versus- CRIM. CASES JOSEPH

ESTANISLAO y CALUA,
Accused.
x-----------------------------------------------------------------------x

DEMURRER TO EVIDENCE

ACCUSED, by counsel, to this Honorable Court, most respectfully submits

its Demurrer to Evidence and avers:

BASIS FOR THE DEMURRER

At the onset of every prosecution is the protection accorded by the

Constitution to the presumption of innocence in favor of an accused. Demurrer to
the evidence is 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. The court, in passing upon
the sufficiency of the evidence raised in a demurrer, is merely required to ascertain
whether there is competent or sufficient evidence to sustain the indictment or to
support a verdict of guilt. Sufficient evidence for purposes of frustrating a demurrer
thereto is such evidence in character, weight or amount as will legally justify the
judicial or official action demanded according to the circumstances. To be
considered sufficient therefore, the evidence must prove: (a) the commission of the
crime, and (b) the precise degree of participation therein by the accused. Thus,
when the accused files a demurrer, the court must evaluate whether the prosecution
evidence is sufficient enough to warrant the conviction of the accused beyond
reasonable doubt. Thus, People vs. Garcia1 emphasized:

“Every criminal case starts with the constitutionally-protected

presumption of innocence in favor of the accused that can only be
defeated by proof beyond reasonable doubt. The prosecution starts
the trial process by presenting evidence showing the presence of all

1 G.R. No. 173480, February 25, 2009.

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the elements of the offense charged. If the prosecution proves all the
required elements, the burden of evidence shifts to the accused to
disprove the prosecutions case. Based on these presentations, the
court must then determine if the guilt of the accused has been
proven beyond reasonable doubt. It may happen though that the
prosecution, even before the presentation by the defense, already
has failed to prove all the elements of the crime charged, in which
case, the presumption of innocence prevails; the burden of evidence
does not shift to the accused, who no longer needs to present
evidence in his defense.”

Where the evidence for the prosecution fails to establish even the
commission of the crime and the existence of the elements thereof, the accused
may demur from the evidence presented, as provided under Section 23, Rule 119 of
the Revised Rules of Criminal Procedure, thus:

“Sec. 23. After the prosecution rests its case, the court may
dismiss the action on the ground of insufficiency of evidence (1) on
its own initiative after giving the prosecution the opportunity to be
heard or (2) upon demurrer to evidence filed by the accused with or
without leave of court.

x x x”

In the instant case, the prosecution failed to establish that the elements
constituting violation of Sections 5 and 11, Article II of R.A. 9165 (Comprehensive
Dangerous Drugs Act of 2002” exist. Thus, this demurrer to evidence.

ARGUMENTS/ DISCUSSION

Accused, was charged under Informations for Violation of Sec. 5 and 11 Art.
II of R. A. 9165, otherwise known as the comprehensive dangerous drugs act of
2002, as follows:

“Criminal Case No. 164-M-2016

That on or about the 3rd day of December, 2015, in the municipality

of Guiguinto, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously sell, trade dispense and
deliver one (1) heat sealed transparent plastic sachet containing
methamphetamine hydrochloride otherwise known as shabu weighing
0.0361 gram, a dangerous drug, without authority of law and legal
justification.

Contrary to law.
Malolos, Bulacan, Decmber 15, 2015.
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Criminal Case No. 165-M-2016

That on or about the 3rd day of December, 2015, in the municipality

of Guiguinto, province of Bulacan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and feloniously have in his possession,
custody and control dangerous drug consisting of two (2) heat sealed
transparent plastic sachets containing methamphetamine (shabu)
weighing 0.0303 gram and 0.0321 with a total weight of 0.0624, without
authority of law and legal justification.

Contrary to law.
Malolos, Bulacan, Decmber 15, 2015.”

The prosecution failed to establish even a prima facie case against the
accused, as the testimonies of its witnesses as to the conduct of the buy bust
operation itself and the chain of custody of the allegedly seized drug are incredible,
inviting doubt as to their truthfulness and revealing non-compliance with the
requirements of the law itself. Further shattering the credibility of the
prosecution’s case is the lack of any documentary or object evidence since the right
of the State to formally offer evidence was deemed waived.

Testimonies of witnesses
As to the conduct of buy-bust
Operation so incredible as to
Inhibit belief

The testimony of the forensic chemist had been subject of stipulation.,

summarized as follows:

1. The defense admitted the qualification of the witness Forensic

Chemist PCI Gina C. Ledesma as an expert witness in determining the
presence of dangerous drugs in any person or matter.
2. The defense admitted the existence and due execution of the Request
for Laboratory Examination dated December 3, 2015 (Exhibit “A”)
3. The defense admitted that the request for Laboratory Examination and
the item subject matter of the request delivered by PO1 Jefjef Cuevas
was received by PCI Gina Ledesma and the latter conducted an
examination on the items submitted.
4. The defense admitted the existence and due execution of the
Chemistry Report No. D-992-2015 (Exhibit “B”) reflecting the result
of the examination on the item submitted.
5. The defense admitted that upon examination on the items with
markings “BB-JJE” (Exhibit “C-1”), JJE (Exhibit “C-2”) and JJE-1
(Exhibit “C-3”) were found positive for the presence of
methamphetamine hydrochloride, a dangerous drugs.
6. The defense admitted the existence of the items subject matter of the
laboratory examination.
 4
7. The defense admitted that upon examination, those item were placed
in a brown envelope (Exhibit “C”) duly labeled by herein witness and
submitted to the Bulacan Crime Laboratory Office for temporary
safekeeping.
8. The prosecution admitted the Forensic Chemist has no personal
knowledge as to the source and/or origin of the specimen subject
matter of the examination.”

The prosecution was able to present only one other witness: PO2 JOSE
URING, allegedly the poseur buyer.
In his testimony, PO2 Uring testified that on December 03, 2015, he himself
received a tip from a confidential informant regarding the rampant selling of illegal
drugs in Barangay Ilang-ilang. The informant allegedly identified the seller as Jay-
jay Estanislao. After reporting the tip to his superior, he and his team were
commanded to conduct a buy-bust operation. Planning and coordination with the
PDEA followed. According to the witness, after the briefing, he was given a
P500.00 bill to use as buy-bust money which he marked as BL and subsequently,
he and his team were dispatched to proceed to Brgy. Ilang-ilang for to entrap the
alleged seller of illegal drugs.

The witness allegedly positioned himself at the corner of Brgy. Ilang-ilang

near the highway and waited for the arrival of their subject. At this point, PO2
Uring divulged that he was with a police asset, who was the one who knew
accused and that it was the police asset who initially approached accused and
introduced him (Uring) as the person “naiiskor”. After such introduction, Uring
allegedly handed the P500.00 to the accused who in turn, got his wallet from his
back pocket, took out a plastic sachet which was then, handed to him.

After receiving the plastic sachet which contained shabu, the witness
announced his true identity: that he was a police officer and that he was arresting
the accused. His back up officer arrived to help him. They were also able to find
two more plastic sachets inside accused’s wallet, after which they proceeded to the
station for the conduct of inventory in front of a barangay kagawad and a DOJ
representative.

On cross examination, the integrity of the testimony of the alleged poseur

buyer was exposed for its pretentiousness.

Chain of custody broken

Several times over

In People of the Philippines vs. Cesar Bautista y Santos,2 the Supreme Court
explained the significance of proof of the chain of custody in prosecution for drug
offenses:

2 G.R. No. 177320, February 22, 2012.

 5

“In drug-related prosecutions, the State bears the burden not

only of proving the elements of the offenses of sale and possession
of shabu under Republic Act No. 9165, but also proving the corpus
delicti, the body of the crime. Corpus delicti has been defined as
the body or substance of the crime and, in its primary sense, refers
to the fact that a crime has been actually committed. As applied to
a particular offense, it means that the actual commission by
someone of the particular crime charged. The corpus delicti is a
compound fact made up of two (2) things, viz; the existence of a
certain act or result forming the basis of the criminal charge, and
the existence of a criminal agency as the cause of this act or result.
The dangerous drug is itself the very corpus delicti of the violation
of the law prohibiting the possession of the dangerous drug.
Consequently, the State does not comply with the indispensable
requirement of proving corpus delicti when the drug is missing, and
when substantial gaps occur n the chain of custody of the seized
drugs as to raise doubts on the authenticity of the evidence
presented in court.”

To ensure that the chain of custody is established, Section 21 of Republic

Act No. 9165 relevantly provides:

Section 21. Custody and Disposition of Confiscated, Seized,

and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous
Drugs, Controlled Precursors and Essential Chemicals,
Instruments/Paraphernalia and/or Laboratory Equipment.

xxx

The apprehending team having initial custody and control of

drugs shall, immediately after seizure and confiscation, physical
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;

xxx

The complementary Implementing Rules and Regulations (IRR)

of Republic Act No. 9165 instructs the apprehending officer or team
on the custody and control of the confiscated drugs in the following
manner:

xxx
 6

The apprehending officer/team having initial custody and contro

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 official who shall be required to sign the copies of the
inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the
nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; 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;

xxx

The rule on chain of custody under the foregoing enactments

expressly demands the identification of the persons who handle the
confiscated items for the purpose of duly monitoring the authorized
movements of the illegal drugs and/or drug paraphernalia from the
time they are seized from the accused until the time they are
presented in court. In this regard, Section 1(b) of Dangerous Drugs
Board Regulation No. 1, Series of 2002 defines the chain of custody
rule as follows:

b. Chain of Custody means the duly recorded authorized

movements and custody of seized drugs or controlled chemicals or
plant sources of dangerous drugs or laboratory equipment of each
stage, from the time of seizure/confiscation to receipt in the forensic
laboratory to safekeeping to presentation in court for destruction.
Such record of movements and custody of seized item shall include
the identity and signature of the person who held temporary custody
[was] of the seized item, the date and time when such transfer of
custody made in the course of safekeeping and use in court as
evidence, and the final disposition[.]

In the instant case, the gaps in the chain of custody are so glaring to be
missed.
 7

In People of the Philippines v. Lim,3 the Supreme Court, en banc, elucidated

on the purpose, object and nature of the chain of custody rule:

The chain of custody rule is but a variation of the principle that

real evidence must be authenticated prior to its admission into
evidence. 12 To establish a chain of custody sufficient to make
evidence admissible, the proponent needs only to prove a rational
basis from which to conclude that the evidence is what the party
claims it to be. 13 In other words, in a criminal case, the
prosecution must offer sufficient evidence from which the trier of
fact could reasonably believe that an item still is what the
government claims it to be. 14 Specifically in the prosecution of
illegal drugs, the wellestablished federal evidentiary rule in the
United States is that when the evidence is not readily identifiable
and is susceptible to alteration by tampering or contamination,
courts require a more stringent foundation entailing a chain of
custody of the item with sufficient completeness to render it
improbable that the original item has either been exchanged with
another or been contaminated or tampered with. 15 This was
adopted in Mallillin v. People, 16 where this Court also discussed
how, ideally, the chain of custody of seized items should be
established:

As a method of authenticating evidence, the chain of custody

rule requires that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. It would include testimony about
every link in the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that every person
who touched the exhibit would describe how and from whom it was
received, where it was and what happened to it while in the witness'
possession, the condition in which it was received and the condition
in which it was delivered to the next link in the chain. These
witnesses would then describe the precautions taken to ensure that
there had been no change in the condition of the item and no
opportunity for someone not in the chain to have possession of the
same.

Thus, the links in the chain of custody that must be established

are: (1) the seizure and marking, if practicable, of the illegal drug
recovered from the accused by the apprehending officer; (2) the
turnover of the seized illegal drug by the apprehending officer to the
investigating officer; (3) the turnover of the illegal drug by the
investigating officer to the forensic chemist for laboratory

3 G.R. No. 231989, September 04, 2018.

 8

examination; and ( 4) the turnover and submission of the illegal

drug from the forensic chemist to the court.”

In this case, the chain of custody has completely lost its clasps. An
examination of the supposed links in this case should prove this:

The first link in the chain of custody – the seizure and marking of
the drug evidence.

According to PO2 Uring, he took custody of the seized items, including the
buy-bust money, immediately after the arrest of the accused but he marked them
only at the police station. It became apparent, however, that even at the time of
the inventory, the drug evidence had not been marked at all. The inventory sheet
countersigned by the barangay elected official and a DOJ representative did not
indicate the markings made thereon. Likewise, photographs of the specimen
presented before the witnesses show that they were still unmarked at the time of
the inventory taking. How can it be ascertained that the sachets of suspected
shabu allegedly seized from the accused are the same ones inventoried and
presented during the inventory? How can it be ascertained that there was
confiscation at all?

There is no compliance with the mandates of Section 21 concerning the

conduct of inventory. As admitted by the prosecution witness himself, the
inventory was conducted NOT immediately after confiscation and NOT at the
place where the accused were arrested and where most of the evidence were
allegedly seized and marked. The explanation as to the deviation from the
requirements of Section 21 had been flimsy.

The photographs, which would have been evidence of the marking and the
inventory taking of the seized evidence cannot establish the first link, since they do
not depict the act of the marking of the evidence itself, or the listing being made in
the inventory sheet. Worse, the photographs clearly displayed the lack of any mark
on the specimen.

The second link – the turn-over of the seized items to the

investigator.

There was no testimony as to the identity of the investigator and the details
of turn-over and the return of the seized items to his custody. How, when or who
turned over the drugs allegedly seized from the accused to the person who prepared
the request is not clear.

With the chain of custody broken several times over, there is insufficient
evidence that the sachets of illegal drugs presented before the Honorable Court is
the same ones allegedly seized from the accused or that, there was any such seizure
at all.
 9

No documentary or object
Evidence against accused.

For failure of the prosecution to file its formal offer of evidence in due time,
the Honorable Court considered it to have waived its right to do so. Thus, there is
neither documentary nor object evidence to consider against the accused except
with regard to the stipulations made during and after pre-trial. Hence, the drug
specimen could not be considered to have been presented to the Honorable
negating its very existence. This is fatal to the prosecution of the case against the
accused.

In People of the Philippines vs. Gimenez and Gimenez,4 the Supreme Court
explained the effect of failure to formally offer evidence before the trial court, viz:

Our Rules of Court lays down the procedure for the formal offer
of evidence. Testimonial evidence is offered "at the time a witness is
called to testify. Documentary and object evidence, on the other
hand, are offered after the presentation of a party’s testimonial
evidence. Offer of documentary or object evidence is generally
done orally unless permission is given by the trial court for a
written offer of evidence.

More importantly, the Rules specifically provides that evidence

must be formally offered to be considered by the court. Evidence not
offered is excluded in the determination of the case. "Failure to
make a formal offer within a considerable period of time shall be
deemed a waiver to submit it."

Rule 132, Section 34 provides:

SEC. 34. Offer of evidence.— The court shall consider no

evidence which has not been formally offered. The purpose for
which the evidence is offered must be specified.

The rule on formal offer of evidence is intertwined with the

constitutional guarantee of due process. Parties must be given the
opportunity to review the evidence submitted against them and take
the necessary actions to secure their case.89 Hence, any document
or object that was marked for identification is not evidence unless it
was "formally offered and the opposing counsel [was] given an

4 G.R. 174673, January 11, 2016,

 10

opportunity to object to it or cross-examine the witness called upon

to prove or identify it."

This court explained further the reason for the rule:

The Rules of Court provides that "the court shall consider no

evidence which has not been formally offered." A formal offer is
necessary because judges are mandated to rest their findings of
facts and their judgment only and strictly upon the evidence offered
by the parties at the trial. Its function is to enable the trial judge to
know the purpose or purposes for which the proponent is presenting
the evidence. On the other hand, this allows opposing parties to
examine the evidence and object to its admissibility. Moreover, it
facilitates review as the appellate court will not be required to
review documents not previously scrutinized by the trial court.

To consider a party’s evidence which was not formally offered

during trial would deprive the other party of due process. Evidence
not formally offered has no probative value and must be excluded
by the court.”

Prosecution’s evidence
Insufficient

In Garcia,5 the Supreme Court recognized the downside of buy-bust

operations:

“A buy-bust operation gave rise to the present case. While this

kind of operation has been proven to be an effective way to flush out
illegal transactions that are otherwise conducted covertly and in
secrecy, a buy-bust 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. In People v. Tan, this Court itself recognized that by the
very nature of anti-narcotics operations, the need for entrapment
procedures, the use of shady characters as informants, the ease with
which sticks of marijuana or grams of heroin can be planted in
pockets of or hands of unsuspecting provincial hicks, and the
secrecy that inevitably shrouds all drug deals, the possibility of
abuse is great. Thus, courts have been exhorted to be extra vigilant
in trying drug cases lest an innocent person is made to suffer the
unusually severe penalties for drug offenses.Accordingly,   specific
procedures relating to the seizure and custody of drugs have been
laid down in the law (R.A. No. 9165) for the police to strictly

5 Supra, note 1.
 11

follow. The prosecution must adduce evidence that these procedures

have been followed in proving the elements of the defined offense.”

The holding in People vs. Andaya6 provides the denouement for the accused-
movant’s arguments:

“Proof of the transaction must be credible and complete. In

every criminal prosecution, it is the State, and no other, that bears
the burden of proving the illegal sale of the dangerous drug beyond
reasonable doubt. This responsibility imposed on the State accords
with the presumption of innocence in favor of the accused, who has
no duty to prove his innocence until and unless the presumption of
innocence in his favor has been overcome by sufficient and
competent evidence.”

In the instant case, the testimonies of the prosecution prosecution witnesses

themselves lend the alleged buy-bust operation suspect; either because they were
inconsistent on substantial matters revealing their falsity or they were contrary to
common human experience. Compliance with the mandatory requirements of
Section 21 of RA 9165 is plainly lacking, as the witnesses were unable to
satisfactorily justify deviation from the accepted norms of engagement. And more
importantly, the chain of custody of the seized drug evidence – the element that
proves corpus delicti – had been broken several times over.

With the prosecution’s failure on those accounts, the case against accused-
movant should be dismissed.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of the

Honorable Court that this Demurrer to Evidence be granted and that the criminal
charges of Violation of Sections 5 and 11 of Article II of R.A. 9165 against the
accused JOHN JOSEPH ESTANISLAO Y CALUAG be DISMISSED and that
accused be ACQUITTED of the above entitled charges against him and that he be
RELEASED from incarceration.

Other reliefs, just and equitable, are likewise prayed for.

City of Malolos, Bulacan, May 18, 2020.

MARIA ELEANOR J. EUSEBIO-CRUZ

Counsel for Accused

6 G.R. No. 183700, 13 October 2014..

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Rm. 7 G/F HBCC Annex Building,
Capitol Compound, City of Malolos, Bulacan
Roll of Attorney’s No. 51316
IBP No. 115050/01-30-2020
PTR No. 4247513/01-15-2020
MCLE Compliance No. VI-0025914/04-29-2019
E-mail Address: gie.euz@gmail.com
Contact No. 0977-019-5939

Copy furnished:

OFFICE OF THE PROVINCIAL PROSECUTOR

Capitol Compound, City of Malolos, Bulacan

THE BRANCH CLERK OF COURT

Regional Trial Court, Branch 82,
Malolos City, Bulacan