FIRST DIVISION
G.R. No. 199271, October 19, 2016
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JEHAR REYES, Accused-Appellant.
D E C I S I O N
BERSAMIN, J.:
Compliance with the guidelines on the preservation of the chain of custody of the dangerous drugs subject of a prosecution for the illegal sale of dangerous drugs must be clearly and convincingly established by the State. Any lapse in the chain of custody must be affirmatively explained by the Prosecution; otherwise, the chain of custody will be held to be broken and insufficient to support a conviction of the accused. The presumption of regularity of the performance of official duty in favor of the arr sting officers cannot prevail over the presumption of innocence in favor of the accused.
That on or about the 27th day of November, 2002 at 2:00 o'clock in the afternoon, more or less, at the Municipality of Minglanilla, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and without proper authority or permit, did then and there wilfully, unlawfully and feloniously SELL, DELIVER and GIVE away to a poseur buyer for the sum of ONE THOUSAND PESOS (PI ,000.00), Philippine Currency, bill marked money with Serial Nos. HNOI9541, EX212112, ZW886460, FQ954616, DA723857, Q0[0]6140, DE709987, SY315980, FQ950975, BB341926 three (3) silver paper packets of white crystalline substance weighing 1.44 grams, which when subjected to laboratory examination gave positive results for the presence of Methamphetamine Hydrochloride, a regulated drug.
CONTRARY TO LAW.3chanroblesvirtuallawlibrary
x x x [O]n 27 November 2002, at around 2:00 p.m., a buy-bust operation was conducted at accused-appellant's residence in Sitio Cayam, Barangay Ward I, Tiber, Minglanilla, Cebu. The team was composed of Senior Police Inspector Arnel Banzon (hereafter, "Banzon"), PO2 Jesus Rodson Villahermosa (hereafter, "P02 Villahermosa") and PO1 Januario Miro (hereatter, "PO1 Miro") (both poseur-buyers). The backup team was composed of Senior Police Inspector Glenn Mayan, SPO2 Jesus Rojas, SP[O]1 Eduardito Brigoli, P[O]3 Danilo Lopez, P[O]2 Percival Charles, P[0]3 Marlon Lumayag (hereafter P[O]3 Lumayag), and P[O]2 Aristocles.
The following items were recovered from accused-appellant: three plastic packs (including the plastic pack bought by the poseur-buyers from accused-appellant), containing a (sic) white crystalline substance; and the buy-bust money of ten P100.00 bills with serial numbers HN[0]19541, EX212112, ZW886460, FQ954616, DA723857, QO[0]6140, DE709987, SY315980, [F]Q950975, BB341926. The total weight of the contents of the three plastic packs was 1.44 grams. When subjected to laboratory examination, the contents tested positive for methamphetamine hydrochloride, otherwise known as "shabu". Accused-appellant was thereafter charged with the crime of Illegal Sale of Shabu under Article 2, Section 5, R.A. 9165.
P[O]2 Villahermosa, P[O]1 Miro, Banzon, P[O]3 Lumayag, and Jude Daniel Mendoza, testified for the Prosecution. The evidence of the Prosecution is summarized thus: Several weeks before 27 November 2002, P[O]2 Villahermosa and P[O]1 Miro conducted a 2-week surveillance on accused-appellant, a reported drug pusher, residing at Sitio Cayam, Barangay Ward I, Tiber, Minglanilla, Cebu. The surveillance confirmed accused-appellant was engaged in the sale of illegal drugs. A team to conduct a buy-bust operation was formed. P[O]2 Villahermosa and P[O]1 Miro were designated as the poseur-buyers, while Banzon, Senior Police Inspector Glenn Mayan, SP[O]2 Jesus Rojas, SP[O]1 Eduardito Brigoli, P03 Danilo Lopez, P[O]2 Percival Charles, P[O]3Lumayag, and P[O]2 Aristocles, were designated as back-up. The buy bust money consisting of ten ill 00.00 bills, was marked with the initials "J.C.R." of SP[O]2 Rojas.
PO2 Villahermosa and PO1 Miro proceeded on foot to the target site, the house of the accused-appellant, while the back-up team members positioned themselves about 5 meters away to observe the transaction.
P[O]2 Villahermosa approached the front of accused-appellant's house and called out the latter's name. Accused-appellant went out of his house. P[O]2 Villahermosa told accused-appellant he wanted to buy Fl ,000.00 worth of shabu. Accused-appellant took one plasric pack from his pocket, and gave it to P[O]2 Villahermosa. P[O]2 Villahermosa in turn, handed the ten pieces of P100.00 bills to accused-appellant. Upon receipt of the P1000.00 buy-bust money, P[O]2 Villahermosa immediately accosted accused-appellant. P[O]1 Miro removed his cap, the pre-arranged signal to the backup team, that the transaction had been completed. P[O]2 Villahermosa informed the accused-appellant he was under arrest, and informed him of his constitutional rights. He frisked accused-appellant, and recovered the following: two more plastic packs that contained a white crystalline substance; and the buy-bust money of ten P100.00 bills.
Accused-appellant was brought to the police office, and PO1 Miro marked the items seized, as follows: "JR-B" (for the plastic pack of shabu subject of the buy-bust); "JR-1" and "JR-2" (for the 2 plastic packs of shabu recovered from the frisking). PO1 Miro prepared the letter-request tor laboratory examination.
On 27 November 2002, at 5:20 p.m., PO1 Miro delivered the letter-request for laboratory examination, and the plastic packs marked "JR-B", "JR-1" and "JR-2", to PO1 Fiel, the clerk on duty at the PNP Crime Laboratory. P[O]1 Fiel turned over the letter-request, and the three plastic packs, to the Chemistry Branch for examination.
On 28 November 2002, Jude Daniel Mendoza, the forensic analyst, conducted the laboratory examination on the contents of the three plastic packs. Per Chemistry Report No. D-2390-2002, the contents of the three packets tested positive for Methamphetamine Hydrochloride.
Accused-appellant was thereafter charged with violating Article 2, Section 5 of R.A. 9165, or the crime of illegal sale of drugs.
Cesar Cañada (hereafter, "Cañada"), and accused-appellant himself: testified for the Defense. The evidence of the Defense is summarized thus: at around 2:00 p.m. of 27 November 2002, accused appellant was sleeping at his elder sister's house, when several men suddenly barged in, and searched the premises. The men did not have any search warrant. They did not find contraband, nor did they receive money from accused-appellant.
Cañada is a neighbor of the accused-appellant. At around 2:00 p.m., of 27 November 2002, he was at a chapel about 10 meters from accused-appellant's house. He heard a loud bang on the door of accused appellant's house, and saw five men enter it. The five men later left the house with the accused-appellant, on board a police vehicle. 6chanroblesvirtuallawlibrary
WHEREFORE, PREMISES CONSIDERED, this Court finds the accused JEHAR REYES Y PREMACIO, GUILTY of violating Section 5, Article II of Republic Act No. 9165. He is sentenced to suffer in prison the penalty of life imprisonment and to pay a fine of P500,000.00
The three plastic packs containing methamphetamine hydrochloride are ordered confiscated and shall be destroyed in accordance with law.
SO ORDERED.7chanroblesvirtuallawlibrary
In a Prosecution for illegal sale of dangerous drugs, the following elements must be duly established: (1) proof that the transaction or sale took place; and (2) the presentation in court of the corpus delicti or the illicit drug as evidence.
The first element is present. There was evidence that the sale of drugs between accused-appellant, and the poseur-buyers PO2 Villahermosa and PO1 Miro, took place. PO2 Villahermosa testified that several weeks before the actual buy-bust operation on 27 November 2002, he and PO1 Miro conducted a 2-week surveillance on accused-appellant, a reported drug pusher, residing at Sitio Cayam, Barangay Ward I, Tiber, MingLanilla, Cebu. The surveillance confirmed accused-appellant was engaged in the sale of illegal drugs. A buy-bust team was formed. P[O]2 Villahermosa and P[O]1 Miro were designated as the poseur-buyers, while Banzon, Senior Police Inspector Glenn Mayan, SP02 Jesus Rojas, SP[O]1 Eduardito Brigoli, P[O]3 Danilo Lopez, P[O]2 Percival Charles, P[O]3 Lumayag, and P[O]2 Aristocles were designated as back-up. P[O]2 Villahermosa and P[O]1 Miro proceeded on foot to the target site, the house of the accused-appellant, while the backup team members positioned themselves about five meters away to observe the transaction. P[O]2 Villahermosa approached the front of accused-appellant's house and called out his name. Accused-appellant went out of his house. P[O]2 Villahermosa told accused-appellant he wanted to buy 1,000.00 worth of shabu. Accused-appellant took one plastic pack from his pocket, and gave it to P[O]2 Villahermosa. P[O]2 Villahennosa in turn, handed to accused appellant the ten pieces of-P100.00 bills. Upon receipt of the P1,000.00 buy-bust money, P[O]2 Villahermosa immediately accosted accused appellant P[O]1 Miro removed his cap, the pre-arranged signal to the backup team, that the transaction had been completed. PO2 Villahermosa informed the accused-appellant he was under arrest, and informed him of his constitutional rights. He frisked accused-appellant. PO2 Villahermosa and (sic) recovered from accused appellant the following: two more plastic packs that contained a white crystalline substance; and the buy-bust money of ten P100.00 bills.
The second element is present. The corpus delicti, or the illicit drug subject of the sale, was presented in Court.
x x x x
In the case at bar, the identity of the plastic pack of shabu subject of the buy-bust operation was sufficiently established by the Prosecution. PO1 Miro marked the plastic packs of shabu seized from the accused appellant at the office. The plastic pack of shabu subject of the buy-bust operation was marked "JR-B", while the two plastic packs of shabu recovered from accused-appellant after he was frisked by P[O]2 Villahermosa were marked "JR-1'' and "JR-2". Clearly, the identity of the corpus delicti was duly preserved and established by the Prosecution. hence there is no doubt as to whether what was presented in Court, was the same plastic pack of shabu purchased from the accused-appellant at the buy-bust operation.
In addition, the evidence the Prosecution presented, is complete to establish the necessary links in the handling of the shabu subject of the buy-bust operation, from the time of its seizure, until its presentation in Court. In other words, the Prosecution was able to comply with the chain of custody rule.
x x x x
It is clear that the integrity and the evidentiary value of the seized drugs were preserved. No convincing proof was shown that the evidence submitted by the Prosecution had been tampered, from the time they were recovered from accused-appellant, until they were turned over for examination. This Court, therefore, finds no reason to overturn the findings of the court a quo that the drugs seized from accused-appellant, were the same ones presented during trial. The chain of custody of the drugs seized from accused-appellant was unbroken, contrary to the assertion of accused-appellant.
Accused-appellant argues: since the police officers who arrested him did not make an inventory report of the items they confiscated from him, and that the markings on said items were not clearly established, the presumption of regularity in the performance of official duty no longer applies; the conduct of the police officers in the case at bar grossly violated Section 21(1), Article 2 of R.A. 9165; these omissions on the part of the police officers indicate that the operation they conducted was a sham, therefore illegal
We do not agree.
x x x x
x x x [I]t has been ruled time and again that non-compliance vith Sec. 21 of the IRR does not make the items seized inadmissible. What is imperative is ''the preservation of the integrity and the evidential value of the seized items as the same would be utilized in the determination of the guilt of innocence ofthe accused." Given the Prosecution's evidence, We rule that the presumption of regularity in the performance of official duties has not been overturned. The presumption remains because the Defense failed to present clear and convincing evidence that the police of11cers did not properly perform their duty or that they were inspired by an improper motive. In cases involving violations of Dangerous Drugs Act, credence should be given to the narration of the incident by the prosecution witnesses especially when they are police officers who are presumed to have performed their duties in a regular manner, unless there is evidence to the contrary.
x x x x
WHEREFORE, the appeal is DENIED. The court a quo's DECISION dated 9 March 2007 is AFFIRMED in toto.
SO ORDERED.9chanroblesvirtuallawlibrary
Q When you arrived at Sitio Cayam, where was your target Jehar Reyes? A They were in the house sir. Q Was he inside or outside his house? A He was sitting inside and came out when he saw us. x x x x Q You said that Jehar Reyes, when he saw you came out, after that what happened? A Immediately I asked Jehar Reyes if we can buy shabu in the amount of P1,000.00. Q What was the answer of Jehar Reyes? A He nodded, meaning yes. Q After Jehar Reyes nodded, indicating that he was amenable, what did he do next? A He took one pack of shabu from his packet (sic) worth P1,000.00 Q How about you, what did you do with the money in your possession? A I received the pack of shabu and in return I give (sic) to him the P1,000.00. Q You mean to say that the one pack of shabu was first given to you before you give (sic) the P1 ,000.00? A Yes. Q What else happened? A Police Officer Miro who was standing beside me executed the pre-arranged signal. Q What was that signal about? A He removed his bull cap after the transaction. Q After that what happened next? A Immediately my companions rushed up to the buy bust area. Q What did your companions do? A They came to assist me in the arrest of the accused. x x x x Q When the other members of the team rushed up Lo your position, what did you do to Jehar Reyes? A When I held him, I informed him of his violation. Q What did you inform him? A I informed him that he has committed, he has violated Section 5, Article II of RA 9165. Q What was the answer of Jehar Reyes? A There was no reaction sir. Q After that since you held Jehar Reyes, what did you do? A Immediately I frisked him. Q When you frisked him, what happened? A I was able to recover One thousand Pesos which was the buy bust money I give (sic) to him and another 2 packets of shabu in his other pocket. 12
Q Upon handing to the accused this money worth one thousand pesos, what did the accused do after receiving the said amount? A She (sic) got one pack of shabu from her (sic) pocket. Q If shown to you this one pack of shabu, will you be able to identify it before this Honorable Court? A Yes, Sir. Q I'm showing to you three (3) heat-sealed transparent plastic packets of white crystalline substance, is this the specimen that you were able to recover and buy from the accused? A (Witness is pointing to a pack marked .28 gram with letters JR-B which was the one given to me by the accused.) Q What (sic) you mean by being the one given to me by the accused? A In exchange of one thousand pesos. Q I have here another two (2) packets marked JR-1 and another JR-2.
Will you be able to identify these two packets of shabu? A Yes. Q What are these two specimens? A These were the items confiscated from the accused after his arrest. 13
x x x Accused-appellant took one plastic pack from his pocket, and gave it to P[O]2 Villahermosa. P[O]2 Villahermosa in turn, handed the ten pieces of P100.00 bills to accused-appellant. Upon receipt of the P1,000.00 buy-bust money, P[O]2 Villahermosa immediately accosted accused-appellant. P[O]1 Mira removed his cap, the pre-arranged signal to the backup team, that the transaction had been completed. PO2 Villahermosa informed the accused-appellant he was under arrest, and informed him of his constitutional rights. He frisked accused-appellant, and recovered the following: two more plastic packs that contained a white crystalline substance; and the buy-bust money of ten P100.00 bills.14 (Bold Emphasis supplied.)
Section 4. Judgment in case of variance between allegation and proof— When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
The dangerous drug itself, the shabu in this case, constitutes the very corpus delicti of the offense and 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.
(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.
(a) The apprehending officer/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: 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;
Based on the foregoing statutory rules, the manner and timing of the marking of the seized drugs or related items are crucial in proving the chain of custody. Certainly, the marking after seizure by the arresting officer, being the starting point in the custodial link, should be made immediately upon the seizure, or, if that is not possible, as close to the time and place of the seizure as practicable under the obtaining circumstances. This stricture is essential because the succeeding handlers of the contraband would use the markings as their reference to the seizure. The marking further serves to separate the marked seized drugs from all other evidence from the time of seizure from the accused until the drugs are disposed of upon the termination of the criminal proceedings. The deliberate taking of these identifying steps is statutorily aimed at obviating switching, "planting" or contamination of the evidence. Indeed, the preservation of the chain of custody vis a-vis the contraband ensures the integrity of the evidence incriminating the accused, and relates to the element of relevancy as one of the requisites for the admissibility of the evidence.
We have usually presumed the regularity of performance of their official duties in favor of the members of buy-bust teams enforcing our laws against the illegal sale of dangerous drugs. Such presumption is based on three fundamental reasons, namely: first, innocence, and not wrong-doing, is to be presumed; second, an official oath will not be violated; and, third, a republican form of government cannot survive long unless a limit is placed upon controversies and certain trust and confidence reposed in each governmental department or agent by every other such department or agent, at least to the extent of such presumption. But the presumption is rebuttable by affirmative evidence of irregularity or of any failure to perform a duty. Judicial reliance on the presumption despite any hint of irregularity in the procedures undertaken by the agents of the law will thus be fundamentally unsound because such hint is itself affirmative proof of irregularity.
The presumption of regularity of performance of official duty stands only when no reason exists in the records by which to doubt the regularity of the performance of official duty. And even in that instance the presumption of regularity will not be stronger than the presumption of innocence in favor of the accused. Otherwise, a mere rule of evidence will defeat the constitutionally enshrined right to be presumed innocent. Trial courts are instructed to apply this differentiation, and to always bear in mind the following reminder issued in People v. Catalan:ChanRoblesVirtualawlibraryx x x We remind the lower courts that the presumption of regularity in the performance of duty could not prevail over the stronger presumption of innocence favoring the accused. Otherwise, the constitutional guarantee of the accused being presumed innocent would be held subordinate to a mere rule of evidence allocating the burden of evidence. Where, like here, the proof adduced against the accused has not even overcome the presumption of innocence, the presumption of regularity in the performance of duty could not be a factor to adjudge the accused guilty of the crime charged.
Moreover, the regularity of the performance of their duty could not be properly presumed in favor of the policemen because the records were replete with indicia of their serious lapses. As a rule, a presumed fact like the regularity of performance by a police officer must be inferred only from an established basic fact, not plucked out from thin air. To say it differently, it is the established basic fact that triggers the presumed fact of regular performance. Where there is any hint of irregularity committed by the police officers in arresting the accused and thereafter, several of which we have earlier noted, there can be no presumption of regularity of performance in their favor.30
Endnotes:
1Rollo, pp. 3-18; penned by Associate Justice Nina G. Antonio-Valenzuela, with Associate Justice Portia Aliño-Hormachuelos (retired) and Associate Justice Myra V. Garda-Fernandez concurring.
2 CA rollo, pp. 15-23; penned by Presiding Judge Soliver C. Peras.
3 Id. at 9.
4Rollo, p. 5.
5 Id. at 7.
6 Id. at 5-7.
7 CA rollo, p. 23.
8 Id. at 40-50.
9Rollo, pp. l 0-18.
10People v. Oandasan, G.R. No. 194605, June 14, 2016.
11People v. Pascua, G.R. No. 194580, August 31, 2011, 656 SCRA 629, 636-637.
9Rollo, pp. 10-18.
10People v. Oandasan, G.R. No. 194605, June 14,2016.
11People v. Pascua, G.R. No. 194580, August 31, 2011, 656 SCRA 629, 636-637.
12 TSN of March 12, 2004, records, pp. 124-125.
13 TSN of October 28, 2004, records, pp. 129-130.
14 Rollo, p. 6.
15Asiatico v. People, G.R. No. 195005, September 12, 2011, 657 SCRA 443, 450.
16People v. Climaco, G.R. No. 199403, June 13, 2012, 672 SCRA 631, 641.
17 G.R. No. 189980, April 6, 2011, 647 SCRA 431, 437.
18Malillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632.
19People v. Coreche, G.R. No. 182528, August 14, 2009, 596 SCRA 350, 356-357.
20 G.R. No 192432, June 2014, 727 SCRA 113, 125.
21 TSN of January 13,2005, records pp. 143-144.
22 TSN of February 3, 2005, records p. 149.
23 TSN of January 6, 2005, records p. 135; TSN of February 10, 2005, p. 153.
24 This was based on the joint affidavit of the members of the buy-bust team found in the records, pp. 5-6, where they pertinently averred:ChanRoblesVirtualawlibraryx x x x
That on the 2nd week of November 2002, we received a report from our confidential agent that illegal drug trade is rampant at Barangay Ward I, Tiber, Minglanilla, Cebu. Upon receiving report, POl Januario Miro and PO2 Jesus Rudson Villahermosa accompanied by our confidential agent went to the aforementioned place to confirm the veracity of the report. After two weeks of surveillance, they confirmed veracity of the said report.
That on the afternoon of November 27, 2002, we planned for a buy bust operation against the drug pusher at Sitio Cayam, Barangay Ward I, Tiber, Minglanilla, Cebu x x x.
x x x x (Bold Emphasis supplied.)
25cralawred CA rollo, p. 8; see Index of Exhibits showing that the State only formally offered as documentary and object evidence: (1) Chemistry Report No. D-2390-2002; (2) the certification issued by the forensic chemist, Jude Daniel Mendoza, (3) the three plastic packs of shabu; (4) letter-request for laboratory examination; (5) joint affidavit of the arresting officers; and (6) photocopy of the buy-bust money, respectively marked Exhibits A to F (with sub-markings).
26People v. Denomun, G.R. No. 171732, August 14, 2009, 596 SCRA 257, 270.
27People v. Mendoza, supra, note 20, at 130-132.
28 According to United States v. Youtsey, 91 Fed. Rep. 864, 868:ChanRoblesVirtualawlibraryA reasonable doubt of guilt is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting a fellow man. If, having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty as would lead you to act on the faith of it in the most important and crucial affairs of your life, you may properly convict him. Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake.29 Supra, note 20.
30 Id. at 134-136.