Republic of the Philippines

First Judicial Region

REGIONAL TRIAL COURT
Branch 44
San Fernando City, La Union

THE PEOPLE OF THE PHILIPPINES CRIM. CASE NO. 11111

Plaintiffs,

-versus- FOR: Violation of Sec. 5.

Art. II, RA 9165

HONESTO DIMAGIBA y Wayan

Accused.

X----------------------X

MEMORANDUM
(For the Accused)

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.1

1
People v. Alcuizar, G.R. No. 189980, 6 April 2011
 ANTECEDENTS FACTS

In order that this Honorable Court may be enlightened

and guided in the judicious disposition of the above-entitled
case, cited hereunder the material, relevant and pertinent
facts of the case to wit:

1. In an information dated June 27, 2016, HONESTO

DIMAGIBA y Wayan was charged for violating Section 5,
Article II of R.A. 9165, allegedly committed as follows:

That on or about the 26th day of June 2016, in

the City of San Fernando, La Union, Philippines and
within the jurisdiction of this Honorable court, the
above-named accused, without first securing the
necessary permit, license or authority from the
proper government agency did then and there,
willfully, unlawfully and feloniously, deliver and
sell One (1) piece of heat sealed transparent
plastic sachets containing methamphetamine
hydrochloride otherwise known as “shabu” with a
net weight of Zero Point ONE SIX NINE ZERO
(0.1690) grams to PO2 Julia Munar, who posed as
poseur buyer, and in consideration of said shabu,
used marked money, consisting of two (2) pieces
genuine Five Hundred peso bills with serial number
GD587316 and GD898112.

CONTRARY TO LAW.

2. On June 26, 2016 at around 2:00 o’clock in the

afternoon, the Accused went out to follow up on his
work application at a carwash employer located at
_____________.

3.

4. When arraigned on September 6, 2016, accused

entered a plea of “NOT GUILTY”.

4. The preliminary conference was held on September

26, 2016 while the pre-trial conference was on October 25,
2016 where the parties made stipulations and adopted the
proceedings of the preliminary conference.
 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.

1. Whether or not there is a lawful search and arrest

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

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 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 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 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 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. November 17, 2017, San

Fernando 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:

PIOLO PASCUAL
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