Republic of the Philippines

REGIONAL TRIAL COURT

11th Judicial Region
BRANCH 9, Davao City

THE PEOPLE OF
THE PHILIPPINES
CRIM. CASE NO. 55,580-04
-versus-
FOR: VIOL. OF SEC. 11,
ROMER SENDO Y ART. II, R.A. 9165
SUMALINOG,
Accused.
X----------------------/

MEMORANDUM

COMES NOW, the Accused, through the undersigned counsel,

unto this Honorable Court, most respectfully submits this Memorandum
and avers THAT:

PREFATORY STATEMENT

xxx In sustaining a conviction under Republic Act No. 9165, the

identity and integrity of the corpus delicti must definitely be shown to
have been preserved. This requirement necessarily arises from the
illegal drugs unique characteristic that renders it indistinct, not readily
identifiable, and easily open to tampering, alteration or substitution
either by accident or otherwise. Thus, to remove any doubt or
uncertainty on the identity and integrity of the seized drug, evidence
must definitely show that the illegal drug presented in court is the
same illegal drug actually recovered from the accused-appellant;
otherwise, the prosecution for possession under Republic Act No. 9165
fails.

ANTECEDENTS FACTS
1. In an information dated October 19, 2004, Romer Sumalinog
Sendo was charged for violating Section 11, Article II of R.A. 9165,
allegedly committed as follows:

That on or about October 17, 2004, in the City of

Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, without
being authorized by law, willfully, unlawfully and
consciously had in their possession of control three (3) heat
sealed transparent plastic sachet containing white
crystalline substance of Methamphetamine Hydrochloride,
otherwise known as Shabu, with a total weight of 0.580
gram, which is a

People v. Alcuizar, G.R. No. 189980, 6 April 2011

1
 dangerous drug, and that in the commission of the above-
crime, herein accused was found positive for use of a
dangerous drugs which is a qualifying aggravating
circumstance.

CONTRARY TO LAW.

2. On October 22, 2004, ocular inspection was conducted on the

evidences against the accused.

3. When arraigned on December 3, 2004, accused entered a plea

of “NOT GUILTY”.

4. The preliminary conference was held on March 7, 2005 while

the pre-trial was on May 11, 2005 where the parties made stipulation
as to the line of testimony of prosecution’s witnesses PO2 Batingana,
SPO2 Antonio P. Alcozar, Leonides Plaza and PCI Noemi P. Austero.

5. During trial, only PO3 Leonardo B. Navarro was presented by

the prosecution to the witness stand.

6. On April 16, 2014, the prosecution rested its case and orally
offered its exhibits whereupon the defense made its corresponding
comments/oppositions thereto.

7. On March 30, 2016, the defense presented its lone witness the
accused himself and thereafter rested its case.

ISSUE

Whether or not the Prosecution has sufficient and competent

Evidence to justify the conviction of the Accused
beyond reasonable doubt.

ARGUMENTS

It is submitted that the bulk of evidence of the prosecution is

bereft of the standard quantum of proof sufficient to sustain a guilty
verdict against the accused, as there is a break in the chain of custody
of the subject drug items in the instant case.

In every criminal prosecution for possession of illegal drugs, the

Prosecution must account for the custody of the incriminating evidence
from the moment of seizure and confiscation until the moment it is
offered in evidence. That account goes to the weight of evidence. It is
not enough that the evidence offered has probative value on the
issues, for the evidence must also be sufficiently connected to and tied
with the facts in issue. The evidence is not relevant merely because it
is available but that it has an actual connection with the transaction
involved and with the parties thereto. This is the reason why
authentication and laying a
foundation for the introduction of evidence are important.2

2
 In Malilin v. People3, the Supreme Court explained the importance
of the chain of custody:

Prosecutions for illegal possession of prohibited drugs

necessitates that the elemental act of possession of a prohibited
substance be established with moral certainty, together with the fact
that the same is not authorized by law. The dangerous drug itself
constitutes the very corpus delicti of the offense and the fact of its
existence is vital to a judgment of conviction. Essential therefore in
these cases is that the identity of the prohibited drug be established
beyond doubt. Be that as it may, the mere fact of unauthorized
possession will not suffice to create in a reasonable mind the moral
certainty required to sustain a finding of guilt. More than just the fact
of possession, the fact that the substance illegally possessed in the
first place is the same substance offered in court as exhibit must also
be established with the same unwavering exactitude as that requisite
to make a finding of guilt. The chain of custody requirement performs
this function in that it ensures that unnecessary doubts concerning the
identity of the evidence are removed.

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.

While testimony about a perfect chain is not always the standard

because it is almost always impossible to obtain, an unbroken chain of
custody becomes indispensable and essential when the item of real
evidence is not distinctive and is not readily identifiable, or when its
condition at the time of testing or trial is critical, or when a witness has
failed to observe its uniqueness. The same standard likewise obtains in
case the evidence is susceptible to alteration, tampering,
contamination and even substitution and exchange. In other words, the
exhibits level of susceptibility to fungibility, alteration or tampering
without regard to whether the same is advertent or otherwise not
dictates the level of strictness in the application of the chain of custody
rule.

Indeed, the likelihood of tampering, loss or mistake with respect

to an exhibit is greatest when the exhibit is small and is one that has
physical
2
People v. Roberto Holgado, et al., G.R. No. 207992, August 11, 2014
3
GR No. 172953, April 30, 2008
characteristics fungible in nature and similar in form to substances
familiar to people in their daily lives. Graham vs. State positively

3
acknowledged this danger. In that case where a substance later
analyzed as heroin was handled by two police officers prior to
examination who however did not testify in court on the condition and
whereabouts of the exhibit at the time it was in their possession was
excluded from the prosecution evidence, the court pointing out that
the white powder seized could have been indeed heroin or it could
have been sugar or baking powder. It ruled that unless the state can
show by records or testimony, the continuous whereabouts of the
exhibit at least between the time it came into the possession of police
officers until it was tested in the laboratory to determine its
composition, testimony of the state as to the laboratory’s findings is
inadmissible.

A unique characteristic of narcotic substances is that they are

not readily identifiable as in fact they are subject to scientific analysis
to determine their composition and nature. The Court cannot
reluctantly close its eyes to the likelihood, or at least the possibility,
that at any of the links in the chain of custody over the same there
could have been tampering, alteration or substitution of substances
from other cases—by accident or otherwise—in which similar evidence
was seized or in which similar evidence was submitted for laboratory
testing. Hence, in authenticating the same, a standard more stringent
than that applied to cases involving objects which are readily
identifiable must be applied, a more exacting standard that entails a
chain of custody of the item with sufficient completeness if only to
render it improbable that the original item has either been exchanged
with another or been contaminated or tampered with.

There were several lapses in the law enforcers’ handling of the

seized item which, when taken collectively, render the standards of
chain of custody seriously breached.

First, Police Officer Leonardo Navarro failed to mark the seized

items immediately after its confiscation from Romer Sendo. From the
place of arrest, he brought the accused to Jacinto Police Outpost but
did not mark the seized items there, only when he arrived at Sta. Ana
Police Station No. 1.4 The Court explained in People v. Coreche 5 the
importance in the chain of custody of the immediate marking of an
item that is seized from an accused, to wit:

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

drugs or other related items immediately after they are seized from the
accused. Marking after seizure is the starting point in the custodial link,
thus it is vital that the seized contraband are immediately marked
because 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 at the end of criminal proceedings, obviating switching,
"planting," or contamination of evidence.
4
TSN, August 4, 2009, pp. 10-14
5
G.R. No. 182528, August 14, 2009
Second, according to Police Officer Leonardo Navarro, he turned
over the subject drug items to Desk Officer Plaza.6 Though he
identified the marking of SPO2 Plaza, the latter was not presented in

4
court to confirm that indeed he received the drug items, three (3)
sachets of shabu from Police Officer Navarro and to testify on the
condition and whereabouts of the drug items while in his possession as
required by law.

Third, according to Police Officer Leonardo Navarro, SPO2 Plaza

turned over the subject drug items to PO2 Batingana. 7 However, aside
from his marking and that of SPO2 Plaza, he cannot identify the other
markings in the drug items specially that of PO2 Batingana. 8 Moreover,
PO2 Batingana was not presented in court to confirm that indeed he
received the subject drug items three (3) sachets of shabu from Police
Officer Plaza and to testify on the condition and whereabouts of the
drug items while in his possession as required by law considering that
he was the one who delivered it to PNP Crime Laboratory the following
day.

Fourth, although there was a stipulation during the preliminary

conference that PCI Noemi P. Austero examined the substance and
made three reports, she was not presented in court to testify as to
from whom she received the substance or subject drug items and to
whom she turned over the same.

Fifth, Police Officer Navarro testified that the inventory was

conducted at the PNP Crime Laboratory on the next day October 18,
20004. However, he neglected to mention whether the inventory was
done in the presence of the accused and was given a copy thereof as
required by Section 21 (1) of RA 9165. 9

While the last paragraph of Section 21(a) of the IRR provides a

saving mechanism to ensure that not every case of non-compliance
irreversibly prejudices the State’s evidence, it is significant to note that
the application of the saving mechanism to a situation is expressly
conditioned upon the State rendering an explanation of the lapse or
lapses in the compliance with the procedure. 10

In the instant case, the prosecution offered no explanation where

the accused was while the inventory was being conducted. The saving
clause could not rescue it from its own negligence considering that the
integrity and evidentiary value of the subject shabu was not
demonstrated to have been preserved due to gaps in the chain of
custody. Worse, the inventory was not signed by the arresting officer.

Sixth, during the ocular inspection on October 22, 2004, Police

Officer Elmer C. Cubillan of the PNP Crime Laboratory presented to the
court three (3) small transparent plastic sachets which are the subject
drug items in this case. However, there was neither
testimony nor
6
TSN, August 4, 2009, pp. 14-15
7
TSN, August 4, 2009, p.18
8
TSN, August 4, 2009, pp.11-12
9
TSN, August 4, 2009, pp. 19-20
10
People v. Relato, G.R. No. 173794, Jan. 18, 2012
stipulation as to how Police Officer Cubillan came into possession of the
subject drug items and from whom he received the same.

Lastly, as further proof that the chain of custody rule was

breached in this case, it is noteworthy to mention the discrepancy in

5
the weight of the item that was supposedly seized from the accused
and that examined at the PNP Crime Laboratory. The information
alleged that accused had in his possession three (3) heat sealed
transparent plastic sachet containing white crystalline substance of
Methamphetamine Hydrochloride, otherwise known as shabu, with a
total weight of 0.5801 gram. However, Chemistry Report No. D-366-
2004 shows that the drug items submitted had a total weight of only
0.0580 gram. Clearly from the foregoing, the items that were allegedly
obtained by the police officer from Sendo differed or, at the very least,
was no longer in its original condition when examined in the crime
laboratory. In People v. Garyzaldy Guzon, 11 the Supreme Court held,
“The variance in the weight of the seized item vis-à-vis the examined
specimen and, ultimately, the detail provided in the Information,
remained unaddressed by the prosecution. Given the considerable
difference between the specimen’s weight upon its seizure and its
weight at the time of its examination, with the seized item’s weight
being a mere 16% of the examined specimen’s weight, the
determination in this case of whether the rationale for the chain of
custody rule was duly satisfied necessitated a more intensive inquiry.
The prosecution’s failure to do so was fatal to its case. It failed to prove
beyond reasonable doubt that the integrity and evidentiary value of
the substance claimed to be seized during the buy-bust operation was
preserved. The doubt is resolved in Guzon’s favor, as the Court rules
on his acquittal.

For his part, the accused presented the defense of denial and
frame-up. In an en banc decision of the Supreme Court, 12 it held that
“Not all denials and alibis should be regarded as fabricated. Indeed, if
the accused is truly innocent, he can have no other defense but denial
and alibi. So how can such accused penetrate a mind that has been
made cynical by the rule drilled into his head that a defense of alibi is a
hangman’s noose in the face of a witness positively swearing, “I saw
him do it.”? Most judges believe that such assertion automatically
dooms an alibi which is so easy to fabricate. This quick stereotype
thinking, however, is distressing. For how else can the truth that the
accused is really innocent have any chance of prevailing over such a
stone-cast tenet?

xxxxx

A positive declaration from a witness that he saw the accused

commit the crime should not automatically cancel out the accused’s
claim that he did not do it. A lying witness can make as positive an
identification as a truthful witness can. The lying witness can also say
as forthrightly and unequivocally, “He did it!” without blinking an eye.

xxxxxx
11
G.R. No. 199901, October 9, 2013
12
People vs. Webb, et al., G.R. No. 176864, Dec. 14, 2010
In our criminal justice system, what is important is, not whether
the court entertains doubts about the innocence of the accused since
an open mind is willing to explore all possibilities, but whether it
entertains a reasonable, lingering doubt as to his guilt. For, it would be
a serious mistake to send an innocent man to jail where such kind of

6
doubt hangs on to one’s inner being, like a piece of meat lodged
immovable between teeth.”

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that

this Honorable Court renders a judgment for the ACQUITTAL of the
accused in view of the failure of the prosecution to prove his guilt
beyond reasonable doubt.

Respectfully submitted. May 12, 2016, Davao City, Philippines.

PUBLIC ATTORNEYS OFFICE

Department of Justice
Counsel for the Accused
Davao City District Office
Hall of Justice, Candelaria St.,
Ecoland, Davao City

By:

ARIEL C. SALVO
Public Attorney II
Roll of Attorney No. 56555
IBP O.R. No.: 1021088; 01/06/16
MCLE Compliance No. V-0013021; 01/12/16

Copy furnished:

PROS. MYLA M. COMENDADOR-LAO

CPO, Davao City