Republic of the Philippines
Supreme Court
SECOND DIVISION
|
PEOPLE OF THE PHILIPPINES, Appellee, - versus - NICOLAS
GUTIERREZ y LICUANAN Appellant. |
G.R. No. 179213
Present:
QUISUMBING, J., Chairperson, CARPIO
MORALES, BRION, ABAD, JJ. Promulgated: September
3, 2009 |
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D E C I S I O N
CARPIO
MORALES, J.:
Assailed in the present appeal is the
April 30, 2007 Decision of the Court of Appeals in CA-G.R. CR-HC No. 01991
affirming that of Branch 267 of the Regional Trial Court of Pasig City in
Criminal Case No. 12514-D finding Nicolas Gutierrez y Licuanan alias Nick
(appellant) guilty
beyond reasonable doubt of violation of Section 5, Article II of Republic Act
(R.A.) No. 9165, otherwise known as the Comprehensive Dangerous Drugs Act of
2002.
Appellant was charged with illegal sale
of 0.05 gram of shabu and illegal possession
of paraphernalia “fit or intended for smoking . . . or
introducing any dangerous drug into the body” by two separate Informations,
both dated
First Information
The Prosecution, through the undersigned Public
Prosecutor, charges Nicolas Gutierrez y Licuanan with the crime of
violation of Section 5, Art. II of R.A. 9165 (SC-AM 99-1-13), committed as
follows:
On or about June 16, 2003, in Pasig City, and
within the jurisdiction of this
Honorable Court, the accused, not being lawfully authorized by law, did then
and there willfully, unlawfully and feloniously sell, deliver and give
away to PO1 Michael P. Espares, a police poseur-buyer, one (1) heat-sealed
transparent plastic sachet containing five centigrams (0.05 grams)
[sic] of white crystalline substance,
which was found positive to the test for methylamphetamine hydrochloride, a
dangerous drug, in violation of the said law.[1] (Underscoring supplied)
x x x x
Second
Information
The Prosecution, through the undersigned Public Prosecutor, charges Nicolas Gutierrez y Licuanan with the crime of violation of Section 12, Art. II of R.A. No. 9165, committed as follows:
On or about June 16, 2003 in Pasig City, and within the jurisdiction of this Honorable Court, the accused, without having been duly authorized by law, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control the following paraphernalias fit or intended for smoking, consuming, administering or introducing any dangerous drug into the body, to wit:
a. one (1) unsealed transparent plastic sachet containing traces of white crystalline substance marked as exh-B;
b. one (1) pair of scissors marked as exh.-C; and
c. one (1) transparent plastic sachet containing five (5) empty transparent plastic sachets marked as exh-D.
x x x x
specimen marked as exh-B was found positive to the test for methylamphetamine hydrochloride, a dangerous drug, in violation of the said law.[2] (Underscoring supplied)
On arraignment, appellant pleaded not
guilty.[3] The trial court, after trial, acquitted
appellant of the charge subject of the second Information (illegal possession
of paraphernalia), hence, this Decision shall dwell only on the review of
appellant’s conviction of selling shabu.
From the testimonies of three members
of the team which conducted a buy-bust transaction that spawned the filing of
the Informations – PO1 Michael Espares (PO1 Espares),[4]
SPO3 Leneal Matias (SPO3 Matias),[5]
and PO1 Allan Mapula (PO1 Mapula),[6]
the following version of the prosecution is gathered:
At around 5:00 p.m. on June 16, 2003,
while on duty at the Drug Enforcement Unit of the Pasig City Police Force, SPO3
Matias received information via telephone from a concerned citizen that a certain
alias “Nick,” later identified to be appellant, was peddling shabu along San Agustin Street, Barangay
Palatiw, Pasig City. On the instructions
of SPO3 Matias, PO1 Espares and PO1 Mapula proceeded to, and surveilled, the
area and confirmed the information.
SPO3 Matias thus formed a buy-bust
team, which he headed, with PO1 Espares as poseur-buyer, and PO1 Mapula and PO1
Michael Familara (PO1 Familara) as members.
Five marked twenty-peso bills were given to PO1 Espares as buy-bust
money. The team thereafter went to the
target area and met with a confidential asset who was to assist them in the
operation.
While the other members of the team
were strategically positioned, the asset, accompanied by PO1 Espares, approached
appellant and asked him “Pare, meron ka
ba diyan? Bibili kami. Bibili ako ng piso.” Apparently not having heard the entire
utterances, appellant replied, “Magkano
ba bibilhin mo?” (How much are you buying?), to which PO1 Espares replied “Piso lang, eto pera” at the same time tendering
the buy-bust money which appellant took and placed in his right front pocket. Appellant then drew from his pants’ back
pocket a black plastic case, opened it and took one plastic sachet containing a
white crystalline substance which he handed to PO1 Espares. PO1 Espares thereupon executed the
pre-arranged signal, apprehended appellant, and confiscated the black plastic
case which appellant was holding. The
case yielded a pair of scissors, an unsealed plastic sachet containing traces
of white crystalline substance, and five empty plastic sachets.
Heeding the pre-arranged signal, the
other members of the team closed in to assist PO1 Espares who then marked all
the seized items including the plastic sachet containing the substance subject
of the sale. Appellant was brought to the police station wherein the
confiscated items were surrendered to an investigator.
Appellant, for his part, presented the
following version:[7]
At about 7:30 p.m. on
He was thereafter brought to the
Pariancillo police precinct where a police officer showed him a plastic sachet
and threatened that a case would be filed against him unless he paid P20,000. He failed to pay, however, hence, he was
detained and subsequently charged.
Appellant’s wife Josephine and
daughter Jennifer corroborated appellant’s tale on the circumstances
surrounding his arrest.[8]
Appellant’s neighbor Jose de Guzman,
who also took the witness stand, stated that at about
By Decision of
WHEREFORE, in view of the foregoing
considerations, the prosecution having proven the guilt of the accused beyond
reasonable doubt, this Court, acting as a Special Drug Court in the
above-captioned case, hereby finds NICOLAS GUTIERREZ y LICUANAN, GUILTY as charged
and is hereby sentenced in Criminal Case No. 12514-D for Violation of Section 5, Republic Act No. 9165, to suffer LIFE IMPRISONMENT and to pay a fine of
Five Hundred Thousand Pesos (Php 500,000.00)
In so far as Criminal Case No. 12515-D for Violation of Section 12, Republic Act No. 9165, considering that the prosecution failed to prove the guilt of the accused NICOLAS GUTIERREZ y LICUANAN of the said crime, the latter is hereby acquitted thereof. (Italics in the original; emphasis and underscoring supplied)
In convicting appellant of illegal
sale of shabu, the trial court found
that the prosecution sufficiently established the corpus delicti consisting of the buy-bust money paid to appellant
and the shabu purchased from
him. It added that appellant’s defense
of frame-up was not supported by clear and convincing evidence.
On appeal, the Court of Appeals
affirmed appellant’s conviction by Decision of April 30, 2007,[11]
hence, the present appeal.
Appellant argues that he was a victim
of an invalid warrantless search and arrest.
He maintains that he was merely having dinner with his family when four
unidentified armed men barged into their house.
He cites an inconsistency in the testimonies of PO1 Espares and SPO3
Matias that he claims destroys their credibility, viz: PO1 Espares declared
that the pre-arranged signal at the buy-bust operation was that he would light
a cigarette, while SPO3 Matias stated that PO1 Espares was to flick the sachet
containing shabu.[12]
The Solicitor General counters that
since appellant was caught in flagrante
in a buy-bust operation, the police officers were not only authorized but were
also obligated to effect a warrantless arrest and seizure, adding that frame-up
is a common and standard line of defense which appellant failed to support with
clear and convincing evidence.[13]
The appeal is impressed with merit.
Under Section 5, Article II of R.A.
No. 9165,[14] the
elements necessary in a prosecution for the illegal sale of shabu are: the identity of the buyer and
the seller; the object and the consideration; and the delivery of the thing
sold and the payment therefor. What is
material is proof that the transaction or sale transpired, coupled with the
presentation in court of the corpus
delicti — the body or substance of the crime which establishes the fact
that a crime has actually been committed.[15]
In prosecutions involving narcotics,
the narcotic substance itself constitutes the corpus delicti of the offense and its existence is vital to sustain
a judgment of conviction beyond reasonable doubt.[16] Proof beyond reasonable doubt demands that
unwavering exactitude be observed in establishing the corpus delicti.[17] The “chain of custody” rule performs this
function as it ensures that unnecessary doubts concerning the identity of the
evidence are removed.[18]
Section
1 (b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002[19]
which implements R.A. No. 9165 defines “chain of custody” as follows:
b. “Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plants source of dangerous drugs or laboratory equipment at each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court and destruction. Such record of movements and custody of the seized item shall include the identity and signature of the person who held temporary custody of the seized item, the dates and times when such transfers of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. (Emphasis and underscoring supplied)
In Malillin v. People,[20] the
Court explained how it expects the chain of custody or “movement” of the seized
evidence to be maintained:
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 really 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 exhibit's 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. (Underscoring supplied)
The Court finds that the evidence for
the prosecution failed to establish the chain of custody of the allegedly
seized shabu. That the defense stipulated on these matters, viz: that the specimen exists, that a request has
been made by the arresting officers for examination thereof, that a forensic
chemist examined it, and that it tested positive for methylamphetamine
hydrochloride has no bearing on the question of chain of custody. These stipulations, which merely affirm the
existence of the specimen, and the request for laboratory examination and the
results thereof, were entered into during pre-trial only in order to dispense
with the testimony of the forensic chemist and abbreviate the proceedings. That such is the intention of the parties is
clear from the additional stipulations that the forensic chemist had no
personal knowledge as to the source of the alleged specimen; and that the
defense was reserving its right to object to the pieces of evidence marked by
the prosecution.[21] Clearly, the stipulations do not cover the
manner the specimen was handled before it came to the possession of the
forensic chemist and after it left her possession.
To interpret the stipulations as an
admission that appellant was the source of the specimen would be to bind him to
an unceremonious withdrawal of his plea of not guilty – a reading not supported by the records which creates a dangerous
precedent.
The nagging question, therefore,
remains whether the object evidence subjected to laboratory examination and
presented in court is the same object allegedly seized from
appellant.
While alleged poseur-buyer PO1 Espares
testified on the marking and eventual turnover of the allegedly seized sachet
of substance to the investigator, no explanation was given regarding its custody
in the interim – from the time it was turned over to the investigator to its
turnover for laboratory examination. Such
want of explanation bares a significant gap in the chain of custody of the allegedly
seized item. Having merely substantially
echoed the testimony of PO1 Espares, SPO3 Matias and PO1 Mapula did not fill in
this gap.
And what happened to the allegedly seized
shabu between the turnover by the
chemist to the investigator and its presentation in court, the records do not
show.
The
Court made it clear in Malillin that the
chain of custody rule requires that there be testimony about every link in the
chain, from the moment the object seized was picked up to the time it is
offered in evidence, in such a way that every person who touched it 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. The totality of the prosecution evidence does
not meet this standard. It bears no account
of the precautions taken to ensure that there was no change in the condition of
the object and no opportunity for someone not in the chain to have possession
thereof.
The
Court reiterates that on account of the built-in danger of abuse that a
buy-bust operation carries, it is governed by specific procedures on the
seizure and custody of drugs, separately from the general law procedures geared
to ensure that the rights of persons under criminal investigation[22]
and of the accused facing a criminal charge[23]
are safeguarded. In People v. Tan,[24] the
Court expressed this concern as it 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 the pockets or hands of unsuspecting provincial hicks,
and the secrecy that inevitably shrouds all drug deals, the possibility of
abuse is great.” Thus, it exhorted courts
to be extra vigilant in trying drug cases lest an innocent person is made to
suffer the unusually severe penalties for drug offenses.
At this
juncture, the Court notes another lapse of the members of the buy-bust team – their
failure to comply with the procedural requirements of Section 21, Paragraph 1
of Article II of R.A. No. 9165[25]
with respect to custody and disposition of confiscated drugs. There was no physical inventory and
photograph of the shabu allegedly
confiscated from appellant. There was
likewise no explanation offered for the non-observance of the rule. Coupled with the failure to prove that the integrity and
evidentiary value of the items adduced were not tainted, the buy bust team’s
disregard of the requirements of Section 21 is fatal.
It
needs no elucidation that the presumption of regularity in the performance of
official duty must be seen in the context of an existing rule of law or statute
authorizing the performance of an act or duty or prescribing a procedure in the
performance thereof. The presumption, in other words, obtains only where
nothing on record suggests that the law enforcers involved deviated from the
standard conduct of official duty as provided for in the law. Otherwise, where
the official act in question is irregular on its face, an adverse presumption
arises as a matter of course.[26]
WHEREFORE, the assailed decision of the
Court of Appeals is REVERSED and SET ASIDE. Appellant, Nicolas Gutierrez y Licuanan, is ACQUITTED of the crime charged for
failure of the prosecution to prove his guilt beyond reasonable doubt.
Let a copy of this Decision be furnished
the Director of the Bureau of Corrections, Muntinlupa City who is ORDERED to cause the immediate release
of appellant unless he is being lawfully held for another cause, and to inform
this Court of action taken within ten (10) days from notice hereof.
SO
ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate
Justice
Chairperson
|
ARTURO D. BRION Associate Justice |
MARIANO C. Associate Justice |
ROBERTO A.
ABAD
Associate
Justice
ATTESTATION
I attest
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above decision had been
reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO
S. PUNO
Chief Justice
[1] Records, p. 1.
[2]
[3]
[4] TSN of
[5] TSN of
[6] TSN of
[7] TSN of
[8] Vide
TSN of
[9] Vide
TSN of
[10]
[11] Penned by Associate Justice Portia Aliño-Hormachuelos, with the concurrence of Associate Justices Edgardo F. Sundiam and Monina Arevalo Zenarosa, CA rollo, pp. 95-110.
[12] Vide Brief for Appellant, id. at 36-49.
[13] Vide Brief for Appellee, id. at 68-89.
[14] Sec. 5.
[15] Vide
People v. Del Mundo, G.R. No. 169141,
[16] Vide People v. Simbahon, G.R. No.
132371,
[17] People v. Kimura, G.R. No. 130805,
[18] Malillin v. People, G.R. No. 172953,
[19] Guidelines
on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors
and Essential Chemicals, and Laboratory Equipment pursuant to Section 21,
Article II of the Implementing Rules and Regulations of R.A. No. 9165 in
relation to Section 81 (b), Article IX of R.A. No. 9165; adopted and approved
on October 18, 2002.
[20] Supra note 19 at 632-633.
[21] Vide Pre-Trial Order, records, pp. 39-40.
[22] Article III
(Bill of Rights), Section 12 (1) of the Constitution reads: Any person under
investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent
counsel preferably of his own choice. If the person cannot afford the services
of counsel, he must be provided with one. These rights cannot be waived except
in writing and in the presence of counsel.
[23] Article III (Bill of Rights), Section 14 (2) of the Constitution reads: In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable. Vide also Rule 115 (Rights of Accused), Rules of Court.
[24] G.R. No.
133001,
[25] 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. — The PDEA
shall take charge and have custody of all dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized
and/or surrendered, for proper disposition in the following manner:
(1) 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[.]
[26] People
v. Obmiranis, G.R. No. 181492,