Documente Academic
Documente Profesional
Documente Cultură
DEMURRER TO EVIDENCE
(For accused Johnfen S. Garingan)
The accused was charged for violation of Article II, Section 5 of the
Republic Act 9165 for alleged sale of illegal drug.
On November 25, 2014, accused was arraigned and pleaded not guilty.
A joint pre-trial followed which was terminated on April 1, 2016 pursuant to
the Pre-Trial Order of the Honorable Court. Trial ensued and after presenting
all its witnesses, the prosecution rested its case and filed its Formal Offer of
Evidence on August 10, 2017. The accused seasonably filed his
Comments/Opposition on August 18, 2017. After which, the Honorable Court
admitted the prosecutions exhibits pursuant to its Order dated September 26,
2017. Consequently, the accused filed his motion for leave of court to file
demurrer to evidence which was granted by this Honorable Court on October
26, 2017.
DISCUSSION/ARGUMENT
This case arose from an entrapment operation by some elements of the
Bayombong Police Station on the evening of July 14, 2014 at Barangay San
Nicolas, Bayombong, Nueva Vizcaya that led to the arrest of accused Johnfen
Garingan (Garingan) and Edgar Allen Cadano (Cadano) for alleged sale of
sachet of shabu, an illegal drug.
Contrary to the statements of the police officers, not all the items that
were mentioned in the inventory slip were recovered to the accused during the
buy-bust operation, specifically the one thousand peso bill claimed to be a
part of the buy-bust money. It was proven by the fact that the same was not
listed in the inventory slip. It was only on August 4, 2016 that the police
officers executed a supplemental affidavit pertaining to the one thousand peso
bill which was not listed in the inventory sheet. It was also surprising that the
3
said one thousand peso bill was not marked with initials of the arresting
officers.
The following are the statements of PO1 Mark San Guillao during the
cross-examination by Atty. Diozo:
Q: And the 1000 peso bill, would you agree with me that you did not mark the
1000 peso bill?
A: Yes,sir.
Q: Why?
A: I was not able to do that because the circumstances was so fast, I forgot, sir.
Q: It is not a briefing was conducted before the buy-bust operation?
A: Yes, sir.
Q: But you forgot to mark this 1000 peso bill which you confiscated from Allen
Cadano?
A; Yes, sir.
(TSN, Page 11, Cross-examination of Atty. Diozo, dated August 10,
2016)
Based from the above-cited narrations of PO1 Mark San Guillao, the
one thousand peso bill which was allegedly recovered from the accused seems
to be not a part of the alleged buy-bust monies since the operatives failed to
mark the same despite of the fact that a briefing and marking of buy-bust
money were done before the buy-bust operation. The prosecution has likewise
offered no acceptable explanation which would justify the absence of
markings in the one thousand peso bill and its omission in the inventory slip.
Thus, it raised uncertainties on the existence or non-existence of the said buy-
bust money.
It was established that the one thousand peso bill was not recovered to
the accused Cadano in the crime scene, but in the police station. In the
supplemental affidavit of the arresting officers they mentioned that Brgy.
Captain Emerald Melad and media representative Adelius Cesar Seva were
present when they conducted the body search to accused Cadano.
The absence of his signature in the inventory slip and his failure to
identify the items as well as the identity of the accused negates his
participation as witness.
Quoted are the following exchanges between the counsel for accused
Garingan and PO1 Jefferson Mirabueno:
Q: There are two accused in this case, accused Garingan and accused Cadano,
correct?
A: Yes, sir.
Q: And you would agree with me that you did not recover any buy-bust money
in as far as accused Garingan, correct?
A: I was not the one who searched the accused.
5
Q: When Police Officer Guillao searched the pocket of accused Garingan, did
you notice if Police Officer Guillao recovered or seized anything from the
pocket of said accused?
A: I cannot recall, sir.
Q: After that, you brought the accused to the Bayombong Police Station?
A: Yes, sir.
Q: And did you notice if the search on the body of accused Garingan was
continued there?
A: Yes, sir.
Q: Who continues searching the body of accused Garingan?
A: PO1 Guillao, sir.
Q: Did you notice if what part of the body of accused Garingan was searched by
the Police Officer Guillao?
A: I was not present anymore at that time, sir.
Q: Meaning sir that despite that Police Officer Guillao continued the search on
the body of the accused Garingan you were not already there?
A: Yes sir.
Q: So meaning you did not see whether the body of Garingan was searched by
Police Officer Guillao at the police station?
A: No more, sir.
Q: Of course you did not see whether item or items were recovered from the
body of the accused Garingan, right?
A: Yes, sir.
foundation for the conclusion that it was the accused and no other persons,
who had unlawful possession of the items.
6. That I, PO1 , Mark San Guillao was able to seize/confiscate from the
direct possession and control to Edgar Allen Cadano One (1) unit
black Nokia cell phone, two (2)pieces five hundred (500) pesos bills
with serial number BA834290 and AG709136 respectively which were
later recorded in the inventory slip that was filled up by the investigator
at the area of the crime scene.
Q: When you said you body searched the accused Garingan, what happened?
A: I confiscated the 2 pieces 500 peso bill, sir.
(TSN, Page 4, Direct examination of Prosecutor Lingayo, dated August 10, 2016)
Quoted are the following exchanges between the public prosecutor and
PO1 Jefferson Mirabueno:
Q: You said that you were not the one who frisked the accused, who
frisked the accused?
A: PO1 Guillao, sir.
Xxx
Q: Who did Guillao frisk or search first?
A: Cadano sir.
Q: And after Guillao searched Cadano he searched the other accused?
A: Yes but the search was not finished.
Q: Why do you say that the search on accused Garingan by Police Officer
Guillao was not finished?
A: There was already a commotion and that there were many people
surrounding the area, Your Honor, so our team leader decided to bring
them to police station, Your Honor.
(TSN, Page 13, Re-Direct examination of Prosecutor Lingayo, dated May 25, 2016)
Quoted are the following exchanges between the public prosecutor and
PO1 Mark San P. Guillao:
Q: After you informed the accused of their Miranda rights, what did you
do next?
A: I body search the accused, sir.
Q: When you said you body searched the accused, whom did you
search first?
A: It was Mr. Garingan, sir.
Q: When you said you body searched the accused Garingan, what
happened?
A: I confiscated the 2 pieces 500 peso bill, sir.
Q: After confiscating the 2 500 peso bill from Garingan, what did you do
next?
A:Next is to body search Cadano but we cannot do the body search
because of many persons who were around so we continue the body
search in the police station, sir.
(TSN, Page 5, Direct examination of Prosecutor Lingayo, dated August 10, 2016)
According to Mirabueno, it was the accused Cadano who was first frisked
or searched before accused Garingan. But according to Guillao it was
Garingan first before Cadano. The inconsistences are material because it
raised doubts as to whom the items were recovered.
Grounded also on the above-quoted statements it was clear that the seizing
officers did not finished the search and inventory in the crime scene and they
decided to continue it in the police station by reason of alleged commotion.
However, when the search and inventory was continued at the police station,
PO1 Mirabueno, who testified that he was with him the two (2) heat sealed
transparent plastic sachet, admitted that he was not present anymore at the
8
time PO1 Guillao continued the search, inventory and photographs of the
items.
Q: Who continued searching the body of accused Garingan?
A: P01 Guillao, Sir.
Q: Did you notice if what part of the body of accused Garingan was searched by Police
officer Guillao?
A: I was not present anymore at that time, sir.
(TSN, Page 15, Re-cross examination of Atty. Santos, dated May 25, 2016)
Q: Now, after reaching the Bayombong Police Station, what happened with
these two pieces of sachet?
A: I was holding it, sir.
Q: How long a time were you holding it those plastic sachets?
A: Until we brought it to the crime laboratory.
Q: You were holding the plastic?
A: We placed it on a plastic sachet.
Q: So there is a plastic container wherein you placed the sachet of shabu?
A: Yes, Your honor.
Q: Did you put your marking on plastic sachet containing these two plastic
sachets of shabu?
A: No, Your honor.
Q: It was at the police station where you put these two plastic of shabu
inside a plastic container?
A: Yes, sir.
Q: Did you seal that plastic container?
A: I hold it sir.
Q: What is clear sir, is that you did not put any marking in that container?
A: Yes, sir.
Q: Where is that container now sir?
A: After we turned over the sachets to the crime scene laboratory, I threw the container
away sir.
(TSN, Page 18-19, Cross-examination of Atty. Santos, dated June 1, 2016)
Such testimony was disputed by PO1 Guillao when he testified that when
he searched Cadano at the police station, only SPO3 Visitacion, PO2 Pagada,
and the barangay captain were present. Hence, where was PO1 Mirabueno
during the search at the police station? Where are the items in the possession
of PO1 Mirabueno? Was the shabu which was placed at the top of the table
and shown to the witnesses same with the shabu which was held and brought
by Mirabueno to the crime laboratory? If yes, why he said that during the
continuation of the search and inventory he was not present.
9
However, after careful perusal of the inventory slip, PO1 Pagada was
not the one who signed it but PO1 Mirabueno and PO1 Guillao. Here there is
doubt as to the identity of the person who prepared the Inventory of
Seized/Confiscated Items. If indeed, it was PO1 Mirabueno who conducted
the inventory why during his testimony it was proven that he cannot even
remember or was never bothered to ask what items were recovered and to
10
whom they were recovered. Even grating that it was really PO1 Pagada who
prepared the inventory slip then why his signature in the inventory slip was
absent? In effect, it negates his participation during the buy-bust operation.
Aside from that, PO1 Mirabueno testified that he put his markings on
the items particularly the two (2) heat sealed transparent plastic sachet.
Q: After spreading those two sachets on the ground, what else if any did
you do?
A: I marked them sir.
(TSN, Page 6, Direct-examination of Pros. Lingayo, dated May 25, 2016)
It was also proven that PO2 Pagada put his markings on the items
despite the fact that when he arrived at the scene, it was already Mirabueno
and Guillao who were holding the items, meaning, he does not have any
personal knowledge from whom the items which he marked were recovered,
as he did not see from whom the items held by Mirabueno and Guillao were
taken. Thus it also cast a doubt as to the identity of the person who marked the
confiscated items.
Moreover, PO1 Guillao in his testimony said that he turned over the
confiscated items to PO1 Pagada during the inventory of the confiscated
items.
(TSN, Page 17, Direct-examination of Pros. Lingayo, dated August 10, 2016)
There were also gaps in the testimonies of the police officers on the
delivery of the items from the police station to the crime laboratory. PO1
Mirabueno testified that he arrived at the crime laboratory, he let the items be
received by the duty officer at that time. But he cannot recall the personnel of
the crime laboratory who received the items.
Q:And who handled that two sachets from the police station to the
crime laboratory?
A: I was the one, Your honor.
Q: And when you arrived at the crime laboratory, what did you do?
A: I let the items be received by the duty officer at hat time.
Q: Do you now the personnel of the crime laboratory who received the
two sachets that you delivered?
A: I cannot remember, sir.
Q: From whom did you receive that request for laboratory examination
together with exhibits?
A: From Bayombong Police Station, Sir.
Q: Do you remember the name of the officer from whom did you
receive that request?
A: Yes, Sir.
Q: Who
A: I received it from PO1 Mark San P, I forgot his last name, sir.
12
In sum, the prosecution, with all due respect, failed to prove the guilt of
the accused beyond reasonable doubt and deserves no less an acquittal and
ordered his released from detention.
Other reliefs just and equitable under the foregoing premises are also
prayed for.
FIDEL G. SANTOS
Counsel for Accused
156 Bonfal West, Bayombong, Nueva Vizcaya
PTR No. 1914695; dated December 1, 2017
Bayombong, Nueva Vizcaya
IBP Fees paid OR No. 1028768, dated December 1, 2016
MCLE Compliance No. V-0010617; September 17, 2015
Email add: fg_santos67@yahoo.com/Tel. No. 805-35-85
Roll No. 48362
GREETINGS: Please take notice that the undersigned counsel for the
accused shall orally argue the foregoing Demurrer to Evidence on Friday,
November 3 2017 at 2:00 oclock in the afternoon and there and then, he shall
submit the same for the resolution of the Honorable Court.
FIDEL G. SANTOS
Copy furnished:
14