REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

FIFTH JUDICIAL REGION
BRANCH 15, TABACO CITY

PEOPLE OF THE PHILIPPINES,

Plaintiff,

- versus - CRIM. CASE NO. T-4104 and 4105

JONATHAN POOT,
Accused.

x--------------------------------------------------------
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MOTION TO DISMISS
ON DEMURRER TO EVIDENCE

COMES NOW, ACCUSED JONATHAN POOT, through the undersigned

counsel and to this Honorable Court, most respectfully moves, with leave of
this Honorable Court, for the DISMISSAL of the above-entitled case on
DEMURRER TO EVIDENCE, and state, THAT:

THE EVIDENCE UPON WHICH THE PROSECUTION HAS

BUILT THE INSTANT CRIMINAL ACTION AGAINST HEREIN
ACCUSED WAS THE PRODUCT OF INCRIMINATORY
MACHINATION AND EVIDENCE-PLANTING.

II

THE TESTIMONIES OF THE WITNESSES HAVE FAILED TO

ATTEST TO THE TRUTH OF, AND/OR CORROBORATE THE
ALLEGATIONS AND TESTIMONIES OF THE POLICE
OFFICERS WHO CONDUCTED THE ALLEGED “BUY-BUST”
OPERATION CONCERNING THE PARTICIPATION AND/OR
INVOLVEMENT THEREON OF ACCUSED POOT.

III

THE PROSECUTION FAILED TO PROVE THAT THE ILLEGAL

SUBSTANCE WAS EVER POSSESSED BY ACCUSED POOT, OR
THAT HIS POSSESSION OF THE MARKED MONEY WAS IN
CONNECTION WITH THE AFORESAID DRUG BUY-BUST
OPERATION.
 DISCUSSION

THE EVIDENCE UPON WHICH THE PROSECUTION HAS BUILT THE

INSTANT CRIMINAL ACTION AGAINST HEREIN ACCUSED WAS THE
PRODUCT OF INCRIMINATORY MACHINATION AND EVIDENCE-
PLANTING.

Herein Accused maintains that evidence was planted against him. The
police officers who arrested him collaborated with Ricardo Casabuena in
pursuing their devious purpose. It was Ricardo Casabuena who instigated
the whole incident, firstly, by calling on herein Accused to his (Casabuena’s)
house; and second, by dispatching the other accused, Torrecampo, on an
errand to unwittingly procure the prohibited substance which was to be used
for their dastardly plan.

It is of no moment that herein Accused was a former user of

metamphetamine hydrochloride or “shabu”. True, it is very easy to assume
that, aside from having used the substance, he (Accused) also sells the
same. Fortunately, the Philippine criminal justice system is not built on mere
assumptions, but on cold, hard facts as well as incontrovertible and
admissible evidence. It must be remembered that although herein Accused
was a drug dependent, he is still protected by the Constitution of the
Philippines as its citizen, and while the law provides that police officers are
presumed to perform their obligations and duties with regularity, this
presumption can not prevail over the constitutional presumption of
innocence of any one accused. The presumption of innocence of the accused
should first be considered and must be prevail over the presumption that
the regular duty was performed by the arresting officers.

The Honorable Supreme Court held in the case of People of the

Philippines vs. Jimmy Sapal, G.R. No. 124526, March 17, 2007, to wit:

“The Court is also cognizant of the fact that the practice of

planting evidence for extortion, as means to compel one to
divulge information or merely to harass witnesses is not
uncommon. By the very nature of anti-narcotics operation, with
the need for entrapment procedures, the use of marijuana or
grams of heroin can be planted in pockets or hands of
unsuspecting provincial hicks and the secrecy that inevitably
shrouds all drugs deals, the possibility of abuse is great.”
 As to the main protagonists of the Prosecution, SPO3 Vicente Royeras and
SPO4 Junewell Ambion. Like the rest of the prosecution witnesses, Ambion
has no personal knowledge of what transpired during the so-called “buy-
bust” operation. In his testimony given during his cross-examination,
Ambion said that he reached the gate of Casabuena’s apartment at the time
that his colleague Royeras was already escorting Accused Poot out of said
apartment incident to the latter’s alleged arrest.

With respect to Royeras, his testimony has no probative value since he

was not the one originally acting as poseur-buyer, and also that it was the
first and only time he met face to face with Accused Poot. Had Accused Poot
dealt with Casabuena who, after all, was the designated poseur-buyer - as
he himself testified in open court - the same would have been
understandable and believable since they already know each other, and
would justify the relaxed and composed disposition of herein Accused. But,
in contrary to what Royeras would have this Honorable Court believe, it is
highly doubtful and very much contrary to common human inclination and
experience that a supposed drug pusher would sell directly, calmly and
without hesitation to a total stranger, someone whom he has seen only for
the first instance in his life, to wit:

Q: (Atty. Gonzaga) You have to admit that you never had a

meeting before/prior to that incident when you approached him
while he seated on the chair at the garage?

A: (Royeras) Yes.

Q: You could also say that was the first time that Poot met
you personally?

A: Yes.

xxx

Q: All the while he was seated in all calmness without

showing any sense of getting scared or getting alarmed with
your presence, is that correct?

A: Yes.

(TSN, June 7, 2005, Page 28-29)

The more natural and believable reaction of a supposed drug pusher would
be to immediately put away his prohibited item and leave in a hurried
manner if and when he gets in contact with someone he does not know from
Adam. Thus, all circumstances considered, it is highly improbable that
Accused Poot could have pursued and consummated the transaction with
Royeras whom he (Poot) met face to face for the first time on that fateful
day of May 16, 2004.

During this cross-examination, Royeras even went further in his effort to

mislead this Honorable Court by saying that has been privy to incidents
involving drug pushers selling their wares to complete strangers, theorizing
that if there are drug pushers of that sort, then each and every person
suspected as such is no different from the other. What a fallacy! This
justification was clearly a desperate attempt to keep the sinking ship of their
case afloat.

In sum, the whole “buy-bust” incident was an instigation of the police

officers involved and Witness Ricardo Casabuena who, when asked why he
agreed to act as poseur-buyer in said operation against herein Accused,
ratiocinated that he did not want to be involved with any one who deals in
drugs, YET, when asked if he ever used or consumed the prohibited
substance, he revealed that he started using the same AFTER he succeeded
in having herein Accused arrested. From this testimony, it is very clear that
aside from uttering numerous falsehoods in open court, he is indirectly
making a mockery of the proceedings and insulting altogether the
intelligence of this Honorable Court. His account and testimony deserves
little or no consideration from the latter.

THE TESTIMONIES OF THE WITNESSES HAVE FAILED TO ATTEST

TO THE TRUTH OF, AND/OR CORROBORATE THE ALLEGATIONS
AND TESTIMONIES OF THE POLICE OFFICERS WHO CONDUCTED
THE ALLEGED “BUY-BUST” OPERATION CONCERNING THE
PARTICIPATION AND/OR INVOLVEMENT THEREON OF ACCUSED
POOT.

It is evident that the case of the Prosecution against herein Accused

stands only on but one leg – the uncorroborated and highly unbelievable
testimony of SPO3 Vicente Royeras, who allegedly took up the cudgels for
the alleged “buy-bust” operation when their cohort Ricardo Casabuena
reportedly copped out of the plan. The affidavits of the rest of the witnesses
which are ostensibly and undeniably pro forma, as well as their testimonies
in open court reveals an utter lack of personal knowledge on the nitty-gritty
of the so-called “buy-bust” operation allegedly conducted against herein
Accused.

Witness Barangay Captain Fidel Brizuela has no personal knowledge of

the “buy-bust” incident, being that he admitted upon cross- and re-cross
examinations by Atty. Dote, counsel for the other accused Rafael
Torrecampo, that he was outside the house of Ricardo Casabuena and could
not see what was going on inside the latter’s house, to wit:

Atty. Dote : (To witness)

Q: But on May 16, 2004 you were not able to get inside the
house of Ricardo Casabuen, is that correct?

A: I was only at the outside of the house.

(TSN, June 28, 2005, Page 6)

Moreover, the Barangay Captain hardly understood the contents and import
of the Joint Affidavit he co-signed with another witness, Emmanuel Cea,
stating categorically that he did not understand the term “buy-bust”, and
was asked to merely sign the Joint Affidavit as part of the formalities
attendant to the alleged “buy-bust” operation conducted by the police, to
wit:
Atty. Dote : (To witness)

Q: Do you mean that when you executed this joint

affidavit
you did not understand the meaning of buy bust as
contained herein?

A: I did not know the meaning of buy bust.

(TSN, June 28, 2005, Page 6)

Q: Who told you to affix your signature?

 A: Based from that incident that’s the reason why I have
to
affix my signature in this affidavit

(TSN, June 28, 2005, Page 9)

The same goes with Witness Emmanuel Cea, the reporter, when asked
during cross-examination by Atty. Dote, counsel for Accused Torrecampo. In
contrary to his allegation in his Joint Affidavit wherein he mentioned that he
was present during the “buy-bust” operation, Cea answered:

Q: And you have seen one buying, is that correct?

A: On that time when I arrived, I did not see the actual

buying, only that he was being arrested by the PNP.

xxx

Q: Were you present or you have seen the alleged actual

buying?

A: I did not see.

(TSN, February 15, 2005, Pages 12-13)

Q: So you were not present during the actual buy bust

operation which according to you is the actual buying, is that
correct?

A: I am not yet there.

(TSN, February 15, 2005, Page 14)

Neither could Cea attest with even average certainty whether he actually
saw Accused Poot in possession of any illegal substance, but that such fact
was only relayed to him by members of the arresting team, hence, pure
hearsay, to wit:

Q: By the way when you saw these, these items were not in
actual possession of Jonathan Poot, is that correct?

A: It is in the possession of the authority.

Q: And you are not sure whether these were the items
taken from Jonathan Poot because you have not seen these
items in possession of Jonathan Poot. Am I correct?
 A: Yes, sir.

(TSN, February 15, 2005, Page 15)

As regards the testimony of PO3 Ferdinand Telado, the same offers no

support to the allegations and testimonies of the main witnesses, since he

was also not present at the scene of the alleged buy bust operation. He was

just awaiting updates from his colleague, another witness, SPO1 Gonzales,

as he declared when he was cross-examined by Atty. Gonzaga, to wit:

Q: During that period when you separated from the group

you did not know anymore where Royeras was, is that correct?

A: SPO1 Gonzales continued texting me.

(TSN, April 18, 2005, Page 4)

xxx

Q: You did not see the person of Royeras, it was only through
the text message of Gonzales?

A: During the planning I saw him.

Q: But after that no more?

A: I saw him after Poot was apprehended.

Q. It’s clear now that from the time that you left the house of
Gonzales at Pier Site, Tabaco City the next time that you saw the
person of Royeras was when he emerged or went out of the
house of Casabuena, is that correct?

A. Yes, sir.

(TSN, April 18, 2005, Page 4-5)

Moreover, Telado never perceived the existence of the alleged “shabu”

which, he mentioned, he saw being handed by Accused Torrecampo to
Accused Poot, but that all he saw being handed was a cigarette pack with
“white” and “green” color, to wit:

Q: Did you see the label of the cigarette pack?

A: A cigarette pack with color green and white.

Q: From the distance of seven (7) meters you did not see the
contents of the cigarette pack?
 A: Yes, sir.

(TSN, April 18, 2005, Page 9)

xxx

Q: You never knew what was in the cigarette pack?

A: I have already an idea that the item be put inside the

cigarette pack.

Q: No actual knowledge on your part about the contents of the

cigarette pack?

A: Yes, sir.

(TSN, April 18, 2005, Page 9-10)

The SPO1 Rogelio Gonzales is likewise of no help for the conviction of

Accused Poot, aside from being situated outside the house where the
supposed “buy-bust” operation was being conducted, hence, without any
personal knowledge as to how the same transpired, if there was one. What
his (Gonzales’) testimony revealed was his self-confessed participation in the
ostensible and unauthorized padding of the supposed marked money to be
used by the posseur-buyer to purchase the alleged dangerous drug from
Accused Poot. SPO4 Ambion had mentioned in his testimony during his
cross-examination by Atty. Gonzaga, that he allowed SPO1 Gonzales to add
the latter’s money amounting to P5,000.00 to the alleged buy bust money of
P1,000.00, as follows:

Q: (Atty. Gonzaga) It was you who decided that Royeras be

given how much?

A: ( SPO4 Ambion) P1000.00

xxx

Q: Only up to that amount?

A: Yes, sir.

xxx

Q: Could you give us the reason why in the course of your

direct testimony you said that while in the vehicle parked
outside of the Gonzales residence at the back of the Post Office,
Tabaco City, you allowed SPO2 Gonzales to hand Casabuena the
 additional cash money, the additional money of SPO2 Gonzales
in the amount P5,000.00?

A: Yes, I allowed.

xxx

Q: Did you inform the Provincial Commander to allow SPO2

Gonzales to give you his own money in addition to P1,000.00.

A: There was a specific instruction from my immediate

superior that whatever outcome with the buy bust operation I
will be the one to decide for the team.

Q: Whatever the outcome we are not talking about the

outcome we are in the operation, why did you allow Gonzales to
give P5000.00 in cash of his own money as additional buy bust
money?

A: In order that the pusher may not have any doubt with the
poseur buyer.

and when asked on whether he secured the permission/authorization of the

Provincial Commander, and if he (Ambion) had a record of such
authorization,

Q: So, in fact, there is no need for us to ask you to produce

entry in the police blotter because there was no such entry?

A: Yes.

Q: There was no such entry because there was no report made

by you to the Provincial Office? Is that correct?

A: Yes, there was a verbal report received by me to our head

office after the incident.

Q: Did you not ask the Provincial Head that you will be
allowed to have it entered in the blotter?

A: No more.

Q: Blotter to the Provincial Office?

A: I did not.

(TSN, March 20, 2006, Pages 15-17)

and this testimony of Ambion jibes with that of Gonzales, given during his
cross-examination by Atty. Gonzaga:
 Q: (Atty. Gonzaga) In your house you gave Casabuena how
much?

A: (Gonzales) Ambion was the one who gave the money

apart from the Five Thousand Pesos (P5,000.00) I gave to him.

Q: The marked money totaling One Thousand Five Hundred

Pesos (P1,500.00) was handed by Ambion to Casabuena?

A: One Thousand Pesos, sir.

Q: Alright. One Thousand Pesos (P1,000) and you dipped into

your pocket and pulled out Five Thousand Pesos (P5,000.00) of
your own money and you gave it to Casabuena for what?

A: When he get that he said it was not enough because there

is a big quantity.

(TSN, February 22, 2005, Page 37-38)

Yet, after the alleged “buy-bust” operation was conducted by the police
officers together with Witness Casabuena, they all testified in unison that
only a P500.00-bill was used to consummate the alleged transaction. From
these circumstances, it is highly doubtful that the arresting officer and the
rest of the police team ever saw that Accused Poot handed or received any
money as payment in exchange for the alleged dangerous drug. The
collusion between the policemen in casually padding the so-called buy bust
money prior to the buy bust operation simply shows that they are ready and
capable of putting things where there are none, cause it to appear that
something happened where nothing took place, and to falsify a scenario in
order to suit their purposes if they wish to impute any criminal act on any
person – all under the mantle of the presumed regularity of the performance
of their duties.

As it is now, even the existence of the P500.00-bill and its having been
employed in the so-called “buy-bust” operation is put seriously in doubt.
Needless to state, not only does this act amount to incriminatory
machination, or planting of evidence under the new Dangerous Drugs Act,
but it seriously affects the regularity of the procedure of the “buy-bust”
operation itself, rendering the same dubious and unreliable.

THE PROSECUTION FAILED TO PROVE THAT THE ILLEGAL

SUBSTANCE WAS EVER POSSESSED BY ACCUSED POOT, OR THAT
 HIS POSSESSION OF THE MARKED MONEY WAS IN CONNECTION
WITH THE AFORESAID DRUG BUY-BUST OPERATION.

The chemist’s report cannot stand on its own. Chemist PSINSP Josephine
M. Clemen merely identified the substance which was submitted to her for
examination as “metamphetamine hydrochloride”, commonly called
“shabu”. But she categorically betrays lack of personal knowledge as to
facts pertaining to the source of the substance, or circumstances that may
directly ascribed the same to herein Accused Poot, except that it was
submitted to her office by some police officers. Patently, on cross-
examination by Atty. Gonzaga, PSINSP Josephine M. Clemen ADMITTED that
she can only attest to the transaction which took place at her office, to wit:

Q: You have to admit that before those specimen indicated in

Exhibit G and M reached your end it had to pass several
persons, the hand of several persons, is that correct?

A: Maybe but my personal knowledge is limited only on the

transaction that transpired in our office.

(TSN, February 25, 2005, Page 3)

xxx

Q. Would you know where from Royeras got the specimen?

A. I do not know.

(TSN, February 25, 2005, Page 5)

As mentioned earlier, no one from among the witnesses presented by the

Prosecution has been able to assert with precision that herein Accused was
ever in possession of the prohibited substance nor of the so-called marked
money which was used to allegedly purchase said prohibited substance from
herein Accused, or that the latter received the same in hand. Only the
uncorroborated testimony of Royeras bears witness to this event, and which
testimony is by itself, incredible and contrary to common human experience
as described earlier.
 Likewise, the allegation of possession of the prohibited substance being
ascribed against herein Accused found in the pedicab of co-Accused
Torrecampo is misplaced as well as unavailing. For even if it can be proved
that the substance indeed belonged to herein Accused, its discovery and
seizure emanated from an illegal search – “a fruit of the poisonous tree”
and, hence, inadmissible as evidence in this proceeding.

CONCLUSION

From the foregoing circumstances and upon thorough examination of the

evidence utilized by the Prosecution in order to prove the crime charged, the
same is insufficient to break through the walls of a reasonably circumspect
mind in order to establish the guilt of herein Accused, and inutile to
overcome the presumption of innocence in his favor.

September 25, 2007.

Manila for Tabaco City, Philippines.