SECOND DIVISION
PEOPLE OF THE
PHILIPPINES,
Petitioner,
G.R.
No.
135378
April 14, 2004
-versus-
ANGELITO AMBROSIO
Y CAMPOS,ROMAN OZAETA Y LAO
ANDWARREN QUE ALIAS
WEDDY,WILLY, SHAO WEI
GUO,
QUE SIAO UY,
Respondents.
D E C I S I
O N
AUSTRIA-MARTINEZ,
J.:chanroblesvirtuallawlibrary
Before us is an appeal
by way of a petition for review on certiorari of the Decision,[1]
dated August 31, 1998, rendered by the Regional Trial Court (RTC),
Branch
103, Quezon City in Criminal Case No. 97-71733, convicting appellants
Angelito
Ambrosio,[2]
Roman Ozaeta[3]
and Warren Que of the offense of selling 750.02 grams of shabu in
violation
of R.A. No. 6425, as amended by R.A. No. 7659 (Dangerous Drugs Law) and
sentencing Que, as principal, to reclusion perpetua and imposing upon
him
a fine of P2,000,000.00; and Ambrosio and Ozaeta as accomplices,
to suffer imprisonment for a period of six years, one month and one day
of prision mayor as minimum to fourteen years, eight months and ten
days
of reclusion temporal and to pay a fine of P1,000,000.00 each.[4]
Appellants Ambrosio,
Ozaeta and Que were charged in an Amended Information[5]
filed by the prosecution, as follows:
The undersigned State
Prosecutor of the Department of Justice accuses ANGELITO AMBROSIO y
CAMPOS,
ROMAN JOSE OZAETA y LAO and WARREN QUE alias WEDDY, WILLY GUO, SHAO WEI
GUO, QUE SIA UY of the crime of violation of Section 15, Article III of
Republic Act No. 6425, as amended by Republic Act No. 7659, committed
as
follows:
That on or about February
20, 1997, in Quezon City, Philippines, and within the jurisdiction of
this
Honorable Court, the above-named accused, conspiring, confederating and
mutually helping one another, with deliberate intent and without
authority
of law, did then and there, willfully, unlawfully and feloniously sell
and deliver to a poseur-buyer 1,001.61 grams of methamphetamine
hydrochloride
(shabu), which is a regulated drug.cralaw:red
CONTRARY TO LAW.cralaw:red
Manila for Quezon City,
Philippines.chanrobles virtuallaw libraryred
July 14, 1997.[6]
Appellants entered their
respective pleas of not guilty. After trial on the merits, the
RTC
rendered herein assailed judgment, the dispositive portion of which
reads:
ACCORDINGLY, judgment
is hereby rendered finding:
1.
WARREN QUE, alias Weddy, Willy Guo, Shao Wei Guo or Que Siao Uy, GUILTY
beyond reasonable doubt of the offense of selling 991.7 grams of
methamphetamine
hydrochloride with a purity weight of 750.02 grams as a PRINCIPAL
thereto
in violation of R.A. 6425, as amended (Dangerous Drugs Law) and he is
hereby
sentenced to suffer an imprisonment term of Reclusion Perpetua and to
pay
a fine of Two Million Pesos;
2.
ANGELITO AMBROSIO y CAMPOS and ROMAN JOSE OZAETA y LAO are found GUILTY
beyond reasonable doubt as ACCOMPLICES of accused WARREN QUE in the
same
of 991.7 grams of methamphetamine hydrochloride with a purity weight of
750.02 grams in violation of R.A. 6425, as amended (Dangerous Drugs
Law)
and each of said accused is ordered to suffer an indeterminate jail
term
of six (6) years, one (1) month and one (1) day of Prision Mayor as
minimum
to Fourteen (14) years, eight (8) months and ten (10) days of Reclusion
Temporal and to pay a find of One Million Pesos each, respectively.chanrobles virtuallaw libraryred
The methamphetamine
hydrochloride or shabu involved in this case are ordered disposed of
and/or
destroyed in accordance with law upon finality of this judgment.cralaw:red
SO ORDERED.cralaw:red
In convicting appellants,
the trial court found the version of the prosecution evidence more
credible
and held that the defense failed to overcome the presumption that
official
duty has been regularly performed by the NBI agents. Hence, the
present
petition.cralaw:red
Pending resolution of
the appeal, that is on January 10, 2001, appellant Ambrosio, acting on
his own, filed with us a Motion to Withdraw Appeal. A similar
motion
was filed by his lawyer on January 22, 2001. Thus, per Resolution
dated February 5, 2001, we granted Ambrosio’s motion to withdraw appeal
and consequently, his appeal was dismissed.cralaw:red
Appellant Que filed
his Brief raising the following Assignment of Errors:
I.
The trial court erred in concluding that there was a buy-bust operation
on February 20, 1997 at the residence of accused Warren Que when there
was none at all.cralaw:red
II.
The trial court erred in holding that accused Warren Que was caught in
flagrante delicto selling the regulated drug on the occasion of the
alleged
buy-bust operation.cralaw:red
III.
The trial court erred in holding that the fluorescent powder found in
the
hand of accused Warren Que was sourced from handling chemically treated
money.cralaw:red
IV.
The trial court erred in assigning to the acts of the NBI agents Martin
Soriano and Pio Palencia in the alleged buy-bust operation the
presumption
of regularity in the performance of official duty and, corollarily,
shifting
the burden of overcoming it upon the defense.cralaw:red
V.
The trial court erred in refusing to require the prosecution to
identify
the alleged confidential informant named ‘Venus’ and, consequently,
depriving
accused-appellant Warren Que, his fundamental right to confront and
cross
examine her.cralaw:red
VI.
The trial court erred in discrediting as implausible, the defense of
accused
Warren Que.cralaw:red
VII.
The trial court erred in not finding him innocent of the crime charged,
and instead found him guilty thereof.[7]chanrobles virtuallaw libraryred
Appellant Ozaeta filed
his Brief raising the following issues:
III.
ISSUES
WHETHER OR NOT THE
TRIAL
COURT ERRED IN CONVICTING OZAETA ON THE MAIN BASIS OF PRESUMPTION OF
REGULARITY
IN THE PERFORMANCE OF OFFICIAL DUTY.
WHETHER OR NOT THE
TRIAL
COURT ERRED IN HOLDING ACCUSED OZAETA AS AN ACCOMPLICE, AND COROLLARY
THERETO,
WHETHER OR NOT THE TRIAL COURT ERRED IN CONVICTING OZAETA AS ACCOMPLICE
DESPITE THE WEAK AND VAGUE EVIDENCE OF THE PROSECUTION.
WHETHER OR NOT THE
TRIAL
COURT ERRED IN CONVICTING OZAETA DESPITE THE FACT THAT THE POSEUR-BUYER
VENUS WAS NOT PRESENTED BY THE PROSECUTION AS A WITNESS.
WHETHER OR NOT THE
TRIAL
COURT ERRED IN CONVICTING OZAETA DESPITE THE TESTIMONY OF THE FORENSIC
CHEMIST, MS. JULIETA FLORES, THAT OZAETA COULD NOT HAVE TOUCHED THE
MARKED
MONEY.
WHETHER OR NOT THE
TRIAL
COURT ERRED IN CONVICTING THE ACCUSED DESPITE THE FACT THAT THE MARKED
MONEY WAS NOT PRESENTED AS EVIDENCE.[8]
The errors assigned
by appellant Que and the issues raised by appellant Ozaeta boil down to
the following questions: (1) whether the participation of appellants
Ozaeta
and Que in the illegal sale of methamphetamine hydrochloride or shabu
was
proven beyond reasonable doubt; and (2) whether or not the trial court
erred in basing the conviction of appellants on mere presumption of
regularity
in the performance of the official duties of the arresting
officers.
We will resolve them jointly as they are inter-related to each other.cralaw:red
Section 3(m), Rule 131
of the Rules on Evidence, provides:
SEC. 3. Disputable
presumptions. – The following presumptions are satisfactory if
uncontradicted,
but may be contradicted and overcome by other evidence:
(m)
That official duty has been regularly perfomed;
It is a well-settled
rule that credence should be given to the narration of an incident by
prosecution
witnesses who are police officers and presumed to have performed their
duties in a regular manner in the absence of evidence to the contrary.[9]
But, it is likewise a hornbook doctrine that an accused may not be
convicted
on the basis of a mere presumption. As we ruled in People vs. Tan:[10]
The presumption of regularity
in the performance of official duty cannot be used as basis for
affirming
accused-appellant’s conviction because, [f]irst, the presumption is
precisely
just that – a mere presumption. Once challenged by evidence, as
in
this case, xxx [it] cannot be regarded as binding truth. Second,
the presumption of regularity in the performance of official functions
cannot preponderate over the presumption of innocence that prevails if
not overthrown by proof beyond reasonable doubt.[11]
In the face of these
jurisprudential rulings, it is imperative that we examine the evidence
presented before the trial court so as to determine whether or not the
trial court had actually no basis in convicting appellants and merely
relied
on the disputable presumption that official duty has been regularly
performed.chanrobles virtuallaw libraryred
The facts established
by the prosecution evidence are as follows:
A civilian informant
reported to Agent Martin Soriano of the National Bureau of
Investigation
(NBI) of the illegal activities of appellant Ozaeta and accused
Ambrosio.
Surveillance activities were conducted on Ozaeta and Ambrosio beginning
February 15, 1997. The civilian informant was able to contact a
certain
Grace, who is a trusted buyer of Ozaeta and Ambrosio, and introduced
her
to a confidential agent they call “Venus.” A first meeting at the
Aristocrat restaurant was arranged between Grace and Ambrosio, but the
transaction did not push through due to some disagreement regarding the
money and place of delivery. Another meeting at a hotel in Pasig
did not bring about the expected transaction. Subsequently,
Ozaeta
and Ambrosio agreed to meet with Venus on February 20, 1997, at around
1:30 in the morning, in front of Club Filipino, Greenhills, San Juan.[12]
Palencia and Soriano then prepared the buy-bust money, including some
bills
that had been previously marked and dusted with fluorescent powder.[13]
In the early morning
of February 20, 1997, NBI Agent Soriano and confidential informant
Venus
proceeded to the meeting place in front of Club Filipino in
Greenhills.
Venus spotted the Nissan car of Ambrosio near Ciudad Fernandina, which
is about twenty meters away from the front of Club Filipino.
Soriano
and Venus then approached Ambrosio’s car and inside they found Ambrosio
and Ozaeta. Soriano said that at first, he believed the exchange
would take place right there in front of Club Filipino. However,
after Soriano was introduced to Ambrosio and Ozaeta, the latter asked
Soriano
and Venus to board the car being driven by Ambrosio.[14]
Agent Soriano and Venus sat at the back seat and upon boarding,
Ambrosio
and Ozaeta told them they wanted to see the money. Venus then
opened
the brown bag containing the buy-bust money and they scanned the money
bundle by bundle but did not count it.[15]
The buy-bust money consisted of ten pieces of marked and dusted P100.00
bills placed on top of the bundles of genuine money amounting to around
P400,000.00 and the boodle money was placed at the very bottom of
the bag to make it appear that the money amounted to P650,000.00, the
price
they agreed upon for the sale of one kilo of shabu.[16]
Ambrosio then started driving towards Quezon City. All this time,
Special Investigator Palencia and one Allan Santiago, also from the
NBI,
were in a separate car around ten to fifteen meters away tailing
Ambrosio’s
car. At around 2:45 to 3:00 in the morning, Ambrosio eventually
stopped
at an apartment in Mindanao Avenue, Quezon City. He parked his
car
in front of the door of the first apartment of the compound known as
Villa
Concepcion, located on a corner lot.[17]
Palencia parked their car around the corner, about five meters away
from
Soriano, where he could still see everything that was happening.[18]chanrobles virtuallaw libraryred
Upon arrival at the
apartment, Ambrosio and Venus alighted from the car while Ozaeta and
Soriano
remained inside the car, parked around five meters away from the door
of
the apartment. Since the place was well-lighted, Soriano clearly
saw everything that was happening.[19]
Ambrosio and Venus rang the doorbell at the main door of said apartment
and a Chinese looking man, who was later identified as appellant Que,
opened
the door. After a short conversation with Ambrosio and Venus, Que
went back inside the house and immediately came out again with a
plastic
bag containing the white crystalline powder which he handed to
Venus.
The latter checked the contents of the plastic bag then handed over to
Que the bag containing the buy-bust money. Que unzipped the bag
and
inspected the cash inside. At that point, Venus pressed a radio
transmitter
as the sign for the back-up to arrest Que. Soriano, as well as
Palencia
and Santiago, immediately alighted from their respective cars and
approached
the apartment. Que ran inside the apartment with the bag of
buy-bust
money but he was accosted by the NBI agents near the stairs leading to
the second floor of the apartment.[2]
Ambrosio and Venus ran back into Ambrosio’s car and that was where NBI
agent Santiago arrested Ozaeta and Ambrosio. After the
arrest,
Special Investigator Palencia also found in the possession of Ambrosio
three small plastic bags or sachets of the same white crystalline
substance,
while Ozaeta had a cream round container and a glass tube also
containing
the same substance.[21]
Thereafter, the NBI
agents brought Que, Ambrosio and Ozaeta to the NBI Headquarters in Taft
Avenue, Manila, arriving at said headquarters at around 5:30 in the
morning.[22]
Palencia proceeded with the marking of the plastic bag containing the
white
crystalline powder recovered from Que and the containers with a similar
substance recovered from Ambosio and Ozaeta for purposes of
identification.
Palencia also requested the forensic chemist to examine the contents of
the plastic bag and sachets recovered from the accused.
Appellants
were fingerprinted and made to fill-up the Booking and Arrest Report
and
Investigation Sheet, then subjected to the ultra-violet light test to
determine
the presence of the fluorescent powder on their hands.[23].cralaw:red
NBI Forensic Chemist
Salud Rosales, who conducted the requisite tests on the white
crystalline
powder recovered from appellants, testified that all specimens
submitted
to her were positive for methamphetamine hydrochloride, more popularly
known as shabu.[24]
The presiding judge ordered that tests be conducted on the substance
contained
in the big plastic bag recovered from appellant Que to determine its
purity
and the same forensic chemist reported that out of the 991.7 grams of
said
substance, the weight of pure methamphetamine hydrochloride was 750.02
grams.[25]
NBI Chemist Julieta
Flores who dusted the marked money and examined the hands of the
appellants
reported that both hands of appellants were contaminated with the
fluorescent
powder dusted on the ten P100.00 bills placed on top of the buy-bust
money.[26]
On cross-examination, she admitted that she heard the appellants say
that
they were merely forced to hold the marked money, but she does not
recall
them say anything about Agent Soriano shaking hands with them.[27]
She also stated that based on the pattern or placement of the specks
and
smudges of fluorescent powder on the hands of appellants, it is most
possible
that appellant Que and accused Ambrosio have touched the buy-bust
money,
while there is a possibility that appellant Ozaeta did not touch said
money.[28]chanrobles virtuallaw libraryred
Countervailing the prosecution
evidence, the defense witnesses testified that no such buy-bust
operation
was conducted. They insist that the NBI agents illegally abducted them
and then planted the evidence. Appellants Que and Ozaeta as well
as accused Ambrosio denied knowing each other prior to their alleged
abduction
and claim that they only learned the names of their co-accused when
they
were already at the NBI Headquarters.cralaw:red
Appellant Ozaeta testified
as follows: At around 5:00 in the afternoon of February 19, 1997,
he was having merienda at Club Filipino in Greenhills, San Juan.
After eating, he went out to buy cigarettes from one of the street
vendors
and while walking along the street, he was abducted by NBI Agent
Soriano.[29]
During cross-examination, however, he stated that it was actually two
men
who accosted him and pushed him inside a waiting Land Cruiser.[30]
Inside the vehicle, there was already another man who was
handcuffed.
Four other men, who identified themselves as NBI agents, were also in
the
Land Cruiser. Both he and the other person, who he later came to
know at the NBI Headquarters as Sonny Ambrosio, were blindfolded.
The vehicle roamed around for some time and then they were brought to
what
he believes is a safehouse somewhere in Project 6, Quezon City.[31]
In the safehouse, he and Ambrosio were beaten up by the NBI agents and
were asked questions about shabu. Around 8:30 to 9:30 that night
of February 19, 1997, the NBI men took him (Ozaeta) with them to a
place
in West Triangle where the NBI men talked to a certain Tony
Ledesma.
The latter called up Joel Tan who arrived at around 12:30 or 1:30 in
the
early morning of February 20, 1997. Joel Tan was brought back to
the safehouse in Project 6 and placed in the same room with him.
Joel Tan who was also beaten up by the NBI men was brought out of the
house.
After one hour, the NBI men came back bringing with them another
person,
later identified as appellant Que. The NBI men started beating up
Que. As for Ledesma and Tan, he never saw them again.[32]
At around 4:00 in the morning of February 20, 1997, he, Ambrosio and
Que
were brought to the NBI Headquarters on Taft Avenue, Manila. They
were made to fill up some papers or forms and fingerprinted. Their
hands
were put under the ultra-violet light to test for the presence of
fluorescent
powder. He remembered that on their way to the room where their
hands
were placed under the light, agent Soriano shook hands with the three
of
them.[33]
Ozaeta claims that it
was through Soriano’s handshake that his (Ozaeta’s) hands were
contaminated
with the fluorescent powder.cralaw:red
Ozaeta further testified
that despite repeated requests with the NBI agents to allow him to call
his family, he was never given the opportunity to communicate with them.[34]
On cross-examination, he testified that he or his family did not file a
case against the NBI agents who allegedly abducted him.[35]
Accused Ambrosio’s recollection
of the incident is as follows: In the afternoon of February 19,
1997,
he received a telephone call from a certain Venus who mentioned the
name
of his friend Pepe Dadivas. Thus, he agreed to have a date with
Venus
at Club Filipino in Greenhills. At around 5:00 or 6:00 in the
afternoon,
after dropping off his wife at their store in Shoppesville, located
also
in Greenhills, he drove his Nissan Sentra car towards Club
Filipino.
While looking for a parking space in front of Club Filipino, a Land
Cruiser
blocked his car and several armed men wearing black shirts with NBI
markings
alighted from said Land Cruiser. They pointed their guns at him,
handcuffed him and loaded him into the Land Cruiser.[36]
Around five minutes later, another handcuffed man was loaded into the
same
vehicle. They were then both blindfolded. Later, when they
were already at the NBI Headquarters, he came to know the other man
loaded
into the vehicle as appellant Ozaeta. He claims that both he and
Ozaeta were beaten up by the NBI men while they were inside the Land
Cruiser.
They were then taken to what he believes is an NBI safehouse where he
was
kept in a room, handcuffed and blindfolded the whole time. At
around
twelve o’clock midnight or 1:00 in the early morning of February 20,
1997,
he heard voices which he believed to be those of the NBI men bringing
another
person into the safehouse. He heard that person begging for
mercy,
and shortly thereafter, the NBI men went away again. About an
hour
later, the NBI men came back with another man, whom he later came to
know
as appellant Que.[37]chanrobles virtuallaw libraryred
At around 3:00 or 4:00
in the morning of February 20, 1997, they were all brought to the NBI
Headquarters
in Taft Avenue, Manila. From this point on, his narration of
events
is the same as that of appellant Ozaeta, specially with the detail
regarding
Agent Soriano’s handshake.[38]
To corroborate the story
of appellant Ozaeta and accused Ambrosio, the defense presented Rodolfo
Banaga, a street vendor. He narrated that at around 6:30 to 7:00
in the evening of February 19, 1997, he was vending in front of the
Club
Filipino, when he noticed three male persons wearing black t-shirts
with
the letters NBI printed at the back, arrest a man who just came out of
the Club Filipino. The arrested man was handcuffed then pushed
into
a waiting vehicle. When the door of the vehicle was opened, he
saw
that there was already another person inside the same. During the
hearing in court, he pointed to appellant Ozaeta as the person who was
arrested and pointed to accused Ambrosio as the person who was already
inside the vehicle. On cross-examination, however, he admitted
that
when this incident was happening, he was quickly moving away, such
that,
when the rear door of the vehicle was opened, he was already positioned
at the back of said vehicle.[39]
Another defense witness,
Eugenio de la Torre, the security guard assigned at the parking lot of
the Club Filipino on the evening of February 19, 1997, only stated that
the car of Roman Ozaeta was parked at the Club Filipino from the
evening
of February 19 until February 22, 1997, when he released the car to a
Sgt.
Willy Cocjin, sent by General Ozaeta.[40]
Appellant Que, for his
defense, testified as follows: At around 3:00 or 4:00 in the
early
morning of February 20, 1997, he was sleeping with his family (wife and
two children) in their bedroom located on the second floor of his
townhouse
in Project 6, Quezon City. He was awakened by his wife, telling
him
that her father was knocking at their bedroom door. At around
that
time, he also heard someone throw a stone at the window. He got
up
and went downstairs so he could open the door and when he was already
downstairs,
he saw his father-in-law peeping out the window who did not see anybody
outside the apartment.[41]
When he (Que) opened the door, he also did not find anyone there, so he
went back inside the house and got a glass of water. However,
upon
turning around, he was surprised to see several people entering his
house.
Said persons were wearing black clothes with NBI markings. Later
at the NBI Headquarters, he came to know the names of some of those
people
as Agent Soriano, Palencia, and Santiago. When the NBI people
gained
entry into his house, Soriano started asking him about a certain
William
and a Mr. Tan. He answered that there were no such persons in his
house.[42]
Agent Soriano, together with Santiago and a lady agent, went
upstairs.
Palencia remained downstairs guarding him, his father-in-law, his wife
and two children. When the three agents came down, they had with
them a brown wine bag belonging to him (Que), which he claims is the
very
same bag that was later shown in court by Agent Soriano as the one that
contained the buy-bust money. He asked the NBI men if they had a
warrant but they did not answer him. They just proceeded to
handcuff
him then loaded him into a waiting Nissan car outside his house.
While inside the car which roamed around their subdivision for a while,
Palencia forced him to count one by one the ten pieces of P100.00 bills.[43]
Later, the car stopped
and brought him into a house not too far away from his own house.
There, they locked him inside the comfort room. The only
maltreatment
he received was when Palencia hit him in the chest once. At
around
6:00 in the morning of February 20, 1997, he, Ozaeta and Ambrosio were
brought to the NBI Headquarters in Taft Avenue, Manila. Again,
from
this point, his story as to what transpired at the NBI Headquarters is
the same as those of Ozaeta and Ambrosio.[44]
Que’s common-law wife,
Ligaya Melgar, also testified in Que’s defense. She testified as
follows: At around 4:00 in the morning of February 20, 1997, her
father woke her up because there was someone knocking at the
door.
Her father did not open the door because he did not know the person at
the door. She woke up Que who then went downstairs, while she
went
back to bed. About three minutes later, she heard a commotion
downstairs
so she got up and went downstairs. On her way down the stairs,
she
already saw two men and one woman, holding firearms, on their way up
the
stairs. These people wore clothes with NBI markings. She
saw
them enter their bedroom, and she proceeded downstairs to look for
Que.
There, she saw Que being guarded by two persons. She asked these
persons
if they have a search warrant or a warrant of arrest but they said they
did not need one. They then asked her the name of her husband and
if she knows a certain William Tan or Joel Tan, and she told them that
there were no such persons in the house.[45]
After talking to the
men guarding Que, she went back upstairs and saw the three NBI agents
searching
all their rooms then taking their belongings and putting them inside
the
wine bag. Ligaya claims the agents took jewelries, a video
camera,
and money both in Philippine and foreign currencies amounting to
several
hundred thousand pesos.[46]
Leopoldo Melgar, appellant
Que’s father-in-law residing in Mabalacat, Pampanga, testified that he
arrived at the house of his daughter and Que at around 11:00 in the
morning
of February 19, 1997. He slept at said house that evening, but in
the early morning of the next day, around 4:00, a knocking at the door
awakened him. He then woke up his daughter, Ligaya, who in turn
woke
up her husband, appellant Que. Que went downstairs and after
hearing
more knocks, opened the door. When the door opened, two men
entered
the house, followed by another man a few minutes later. Said
persons
were wearing NBI vests. They then asked Que if he is
William.
When Que denied that he is William, one of the men poked a gun at Que
and
insisted that the latter is indeed William. One of the men and a
woman went up to the second floor of the house. Later, the NBI
people
brought Que out of the house.[47]
In attacking the credibility
of the prosecution witnesses and their testimonies, appellants assail
the
non-presentation in court of the buy-bust money and the confidential
agent
Venus, who actually negotiated with the three accused. They argue
that the non-presentation of poseur-buyer Venus shows that no such
person
exists, thereby reinforcing their claim that no buy-bust operation ever
happened in this case. They further claim that only Venus
could
testify on what was really agreed upon between her and appellant
Que.
It is further argued by appellants that the lower court relied too much
on the presumption of regularity of performance of official duty in
giving
credence to the buy-bust account presented by the prosecution witnesses.cralaw:red
Appellant Que invokes
the ruling of the Court in People vs. Bagano[48]
where the non-presentation of the informant and/or the poseur-buyer who
actively participated in the negotiation for the sale of prohibited
drugs
was held to be fatal to the prosecution’s case, leading to the
acquittal
of the accused therein. However, the Bagano case cannot find
application
to the present case because the special circumstance attending the
buy-bust
operation in said case does not exist in the present case.cralaw:red
In the Bagano case,
the poseur-buyer was an American who did not understand a word of the
Kankanai
dialect being spoken by the accused therein. Thus, the informant
had to act as an interpreter between the American poseur-buyer and the
accused. Only the American poseur-buyer testified as to how they
entrapped the accused therein and he was able to testify only as to
what
the informant/interpreter relayed to him as the supposed answers given
by the accused in the course of the buy-bust operation. The
accused
therein, however, disclaimed ownership of the bag containing the
marijuana,
explaining that said bag actually belonged to the informant and he was
merely ordered by said informant to carry the bag. Thus, the
Court
held that the presentation of the informant who acted as interpreter is
vital to the case for the prosecution since the testimony of the
American
poseur-buyer regarding the actual conversation between the interpreter
and the accused in the Kankanai dialect would be merely hearsay.chanrobles virtuallaw libraryred
In People vs. Uy,[49]
the prosecution was not able to present the actual poseur-buyer on the
witness stand. Just like in this case, only the other members of
the buy-bust team, who were twenty meters away, closely watching the
exchange
between the poseur-buyer and the accused, testified as to how the
buy-bust
operation was conducted. The prosecution explained in the Uy case
that they could not present the actual poseur-buyer because he was then
in the hospital, paralyzed due to gunshot wounds. We held in said
case that:
We have previously declared
that what can be fatal is the non-presentation of the poseur-buyer if
there
is no other eyewitness to the illicit transaction. In the case at
bar, the other members of the team that conducted the buy-bust
operation
testified in court. They declared that they witnessed the
consummation
of the illegal sale perpetrated by the accused-appellant. Hence,
their positive identification of the accused-appellant rendered the
non-presentation
of the poseur-buyer non-fatal to the case of the prosecution. .cralaw:red
A buy-bust operation
has been considered as an effective mode of apprehending drug
pushers.
If carried out with due regard to constitutional and legal safeguards,
a buy-bust operation deserves judicial sanction. The delivery of
the contraband to the poseur-buyer and the receipt by the seller of the
marked money successfully consummates the buy-bust transaction between
the entrapping officers and the accused.[50]
In the present case,
the non-presentation of Venus was also satisfactorily explained, i.e.,
that she was working on another buy-bust operation. Although her
identity is known to herein appellants, to require her to testify in
open
court would divulge her real identity and expose her to danger
considering
that there was another buy-bust operation that was still on-going.cralaw:red
In People vs. Boco,[51]
we held:
Intelligence agents,
due to the nature of their work, are often not called to testify in
court
so as not to reveal their identities publicly. Once known, they
could
no longer be used again and, worse, may be the object of revenge by the
criminals they implicate. The prevailing doctrine is that their
testimonies
are not essential for conviction, nor are they indispensable to a
successful
prosecution. With the testimonies of the arresting officers, they
would be, after all, merely corroborative and cumulative.cralaw:red
Verily, we see no reason
to rule that the inability to present Venus would be fatal to the
prosecution’s
case. The testimony of NBI Agent Soriano, corroborated by SI
Palencia,
that he (Soriano) was merely five meters away from appellant Que and
Venus
and could clearly see when Que handed over to Venus the plastic bag
containing
the white crystalline substance and in exchange, Que received from
Venus
the bag containing the buy-bust money, is enough to sustain the
findings
of the trial court that, indeed, the illegal sale of shabu between
Venus
and Que was consummated.cralaw:red
Furthermore, as originally
planned, Soriano was designated as the poseur-buyer, but the buy-bust
operation
did not proceed exactly as the team had planned or anticipated.
Agent
Soriano thought that the transaction would be consummated at
Greenhills,
for which reason, they planned to entrap only appellant Ozaeta and
Ambrosio.
It was only when Ambrosio brought them to the house of appellant Que
that
they learned of the latter’s activities.[52]
It could be said, therefore, that the buy-bust operation proceeded in
two
phases. The first phase was what the buy-bust team had planned,
i.e.,
that the operation would be completed at Greenhills where the sale was
supposed to be consummated; and the second phase had to be carried out
when, unexpectedly, Ambrosio did not bring with him the shabu and
instead
brought Soriano and Venus to Que’s residence. Understandably,
with
such sudden and unexpected turn of events, the buy-bust team had to
make
the necessary adjustments and changes to their original plans which
could
explain why it was eventually Venus who accompanied Ambrosio to Que’s
door.cralaw:red
With regard to appellant
Que, after a close scrutiny of the entire records of the case, we find
no fact or circumstance of special importance that would justify
overturning
the ruling of the court a quo regarding the credibility of the
prosecution
witnesses and their testimonies. The prosecution successfully
proved
the existence of all the elements necessary for conviction for the
offense
of illegal sale of regulated or prohibited drugs, to wit: (1) the
identity
of the buyer and the seller, the object, and the consideration; and (2)
the delivery of the thing sold and the payment therefor.[53]
In People vs. Mala,
et al.,[54]
we held that what is material is the proof that the transaction or sale
actually took place, coupled with the presentation in court of the
corpus
delicti. The delivery of the contraband to the poseur-buyer and
the
receipt of the marked money consummated the buy-bust transaction
between
the entrapping officers and the accused.”
Anent the buy-bust money,
the prosecution merely presented photocopies of the marked money used
in
the buy-bust operation. The trial court is correct in not
considering
the non-presentation of the entire amount thereof as a mortal blow to
the
prosecution’s case. We have held in People vs. Eugenio[55]
presentation of buy-bust money is not indispensable to the prosecution
of a drug case.”[56]
Appellants’ asseveration
that the lower court merely relied on the presumption of regularity of
performance of official duty in arriving at its decision and in giving
more credence to the buy-bust account presented by the prosecution, is
not plausible. It is on the basis of the positive testimonies of
prosecution witnesses that the trial court based the conviction of
appellants
Que.cralaw:red
We find no compelling
reason to reject the ratiocination of the trial court in not giving
more
credence or probative weight to the testimonies of the witnesses, in
defense
of appellant Que, to wit:chanrobles virtuallaw libraryred
3.
Accused Warren, his wife Ligaya and her father testified that the NBI
agents
arrived in their townhouse at between 4:00 and 5:00 in the morning of
February
20, 1997. One of the things the NBI agents repeatedly asked them
was where is Joel Tan. Yet, according to accused Ozaeta, NBI
agents
already had Joel Tan with them in the house of Tony Ledesma just after
midnight of February 19, 1997. The agents brought Joel Tan to the
Project 6 safehouse, beat him there, and took Joel Tan away at around
2:30
that same early morning. Why should agents Palencia, Soriano and
Allan then be still looking for Joel Tan from Warren at 4:00 o’clock in
the morning when they had Joel Tan all along already? Only
contrived
stories could suffer from such deficiencies.cralaw:red
6.
Mrs. Ligaya M. Que’s testimony and that of her father are
understandably
favorable to Warren. The testimonies of those two witnesses and
Warren’s
however, contain major incongruities, namely:
(a)
Warren said he went downstairs to open the door because someone was
throwing
stones on their window. Ligaya and her father testified someone
knocked
on the door.cralaw:red
(b)
Ligaya testified that on February 19, 1997 she left the house at 12:00
noon to go to Angeles City while Warren stayed at home. On cross,
Ligaya said Warren left between 10:00 and 11:00 in the morning and
returned
at 4:00 in the afternoon on February 19, 1997.cralaw:red
Ligaya’s father testified
that he arrived at the townhouse on February 19, 1997 and he found
Warren
there and Warren stayed the whole day and night in the townhouse
leaving
only when he asked Warren to buy paint at 7:00 in the evening.cralaw:red
On the other hand, Warren
testified that he arrived at his house on February 19, 1997 at 11:00 in
the evening.cralaw:red
9.
The three accused claimed that the reason their hands were found
positive
for nitrates is because Agent Soriano shook hands with them before
their
hands were clinically examined.cralaw:red
The court disagrees
because:
a)
Warren testified that even inside the car that took him agent Palencia
forced him to count the marked bills and even rubbed his hands with
Palencia’s
hands. If that were so, then there is no need anymore for agent
Soriano
to shake hands with him. Agent Soriano was, after all, in the
same
car and therefore knew of such event if it really took place.cralaw:red
b)
Warren’s counsel on cross-examination of Ms. Julieta Flores, the NBI
chemist
who examined the hands of the accused, tried his best to point out that
no nitrates were found on the fingertips of Warren which would negate
the
prosecution’s theory that Warren rifled through the bag’s contents
during
the buy-bust. If, as admitted, no nitrates were found on Warren’s
fingertips as to negate the prosecution’s theory, then the very
expostulation
itself of Warren’s counsel on this point would negate the claim of
Warren
twice made – in his affidavit and in court as a witness – that he was
made
to count the dusted bills one by one.chanrobles virtuallaw libraryred
As will be shown below
there was a good reason for the absence of nitrates on Warren’s
fingertips
as well as those of accused Ambrosio and Ozaeta.cralaw:red
c)
The defense itself, that is, all three accused called for the
production
of the Booking Sheet and Arrest Report (Exhibits 1, 2 and 9 for Ambosio
and Exhibits 3 and 20 for Ozaeta). The Booking Sheet for Warren
was
not offered in evidence but he also admitted that he was made to fill
it
up and was fingerprinted thereon.cralaw:red
An examination of said
Booking Sheets and Arrest Reports shows that the accused were
fingerprinted
on both hands involving all fingers, an SOP in law enforcement
procedure.
That was done at the SID room before the accused were brought to the
laboratory
room.cralaw:red
According to chemist
Julieta Flores, nitrates, unlike paraffin powder, are easy to remove;
they
can be removed from the hands by simply cleaning one’s hands with
water.
Consequently, it is easy to understand why the fingertips of all
accused
had no nitrates: All fingers on both hands were dipped in ink in
a stamp pad and then pressed on the Booking Sheet and Arrest Report
(Pinagpiano
in lock parlance) and hence, the easily removable nitrates were left
there.cralaw:red
d)
The marked money bills were dusted on February 7, 1997 yet and used in
another operation in Pasay City; hence, were not anymore as thickly
dusted
when used again on February 19, 1997 against the herein accused which
account
for why spots, specks and smudges were the ones that appeared when the
hands of the accused were exposed to the lab light at NBI.cralaw:red
e)
Indeed, the “handshaking” defense raised here appears quite specious
because
if indeed Agent Soriano shook hands with the accused, then the presence
of nitrates in their fingers would be inevitable for it must be assumed
that if Agent Soriano indeed had a sinister purpose against the
accused,
he would have made sure that the fingers and palms of all three or, at
least one or two of them will be impregnated with nitrates.
Moreover,
one shakes another’s hand with only one hand and also only one hand of
the person whose hand is to be shook. But, in this case, both
hands
of each of the accused were found positive for nitrates. There is
no evidence, and it seems really unusual, that Agent Soriano will shake
the right hand and then the left hand of each accused. Agent
Soriano,
to all appearances, seems to be a machoman.cralaw:red
The court thus concludes
that the positive identification herein made by the prosecution
witnesses
and the presumption of regular performance of duty have not been
successfully
overcome by the accused.[57]
In People vs. Pacis,
we held that:
courts generally
give full faith and credit to officers of the law, for they are
presumed
to have performed their duties in a regular manner. Accordingly, in
entrapment
cases, credence is given to the narration of an incident by prosecution
witnesses who are officers of the law and presumed to have performed
their
duties in a regular manner in the absence of evidence to the contrary.[58]
The defense failed to
demonstrate any ill-motive on the part of the prosecution witnesses in
effecting the buy-bust operation and testifying against
appellants.
Testimonial evidence presented by the prosecution show that Que was not
initially the target of their operation, since their informant only
mentioned
the activities of appellant Ozaeta and Ambrosio. As we have
earlier
discussed, agent Soriano thought that the transaction would be
consummated
at Greenhills, for which reason, they planned to entrap only appellant
Ozaeta and Ambrosio. It was only when Ambrosio brought them to the
house
of appellant Que that they learned of the latter’s activities.[59]
Hence, there is no cause for us to believe that the prosecution
witnesses
testified falsely against appellant Que.cralaw:red
We reiterate our ruling
in People vs. Cueno[60]
that in the absence of proof of any odious intent on the part of the
police
authorities to falsely impute a serious crime, such as that made
against
herein appellant, we will not allow their testimony to be overcome by
the
self-serving and uncorroborated claim of frame-up.[61]chanrobles virtuallaw libraryred
In People vs. Mala,
et al., we enunciated that this Court will not interfere with the trial
court’s assessment of the credibility of witnesses except when there
appears
on record some fact or circumstance of weight and influence which the
trial
court has overlooked, misapprehended, or misinterpreted. The
reason
for this rule is that the trial court is in a better position to decide
the question, having heard the witnesses themselves and observed their
deportment and manner of testifying during the trial.[62]
The testimonies of the
prosecution witnesses are positive and convincing, sufficient to
sustain
the finding of the trial court that appellant Que’s guilt had been
established
beyond reasonable doubt. Thus, as we have earlier stated, insofar
as appellant Que is concerned, his claim that in convicting him, the
trial
court merely relied on the presumption that official duty has been
regularly
performed, is without merit.cralaw:red
However, the prosecution
evidence does not clearly establish the participation of appellant
Ozaeta
in the sale of shabu. Despite the fact that the Court gives
full faith and credit to the testimonies of prosecution witnesses, such
evidence, even without taking into account the “frame-up” defense
raised
by Ozaeta, is insufficient to prove that said appellant had a hand in
the
illegal sale of shabu by appellant Que.cralaw:red
Prosecution witnesses
SI Palencia and agent Soriano were not present during the preliminary
meetings
among Venus, Grace, Ambrosio and Ozaeta. Hence, they did not have
personal knowledge, as in fact, they did not testify if it was Ambrosio
or Ozaeta or both of them who were actively negotiating for the sale of
shabu. From the testimonies of SI Palencia and agent Soriano, who
were the only eye-witnesses presented in court, Ozaeta was merely in
the
car with Ambrosio when they met at Greenhills and he stayed in the same
car during the entire time that the sale transaction was going on at
Que’s
front door on the fateful morning of February 20, 1997. There was
no evidence presented that appellant Ozaeta participated in the sale of
shabu between Que and Venus. Both SI Palencia and agent Soriano
testified
that it was Ambrosio who drove the car in going to Que’s residence.
Their
testimonies do not indicate that Ozaeta was aware of where they were
going
or what was supposed to transpire once they arrive at their
destination.
Even if Soriano testified that “they asked to see the money”[63]
when they were in Ambrosio’s car, there is no direct testimony which
shows
that Ozaeta himself asked to see the money or that he knew that
the
money was for the illegal sale of shabu.cralaw:red
Doubts regarding Ozaeta’s
participation in the illegal sale of shabu are further fortified by the
following facts and circumstances: (1) accused Ambrosio and
appellant
Ozaeta did not have the shabu with them when they were met by agent
Soriano;
(2) the trial court failed to mention that NBI Forensic Chemist Salud
Rosales’
testified that it is possible that Ozaeta did not touch the buy-bust
money;[64]
and (3) as narrated by SI Palencia and Soriano, it was only Ambrosio
who
alighted from the car and accompanied Venus to Que’s front door where
the
illegal sale of shabu was consummated between Venus, the poseur buyer,
on the one hand and appellant Que and Ambrosio, on the other.
There
is no testimony as to the participation or role of Ozaeta in said sale
except that he was in the car with agent Soriano.chanrobles virtuallaw libraryred
As held in People vs.
Geron,[65]
the mere presence of the accused at the locus criminis cannot be solely
interpreted to mean that he committed the crime charged. In this
case, the prosecution evidence which merely showed that Ozaeta was in
the
company of Ambrosio when they met with agent Soriano at Greenhills and
in the car when Ambrosio brought agent Soriano to the front of the
house
of appellant Que, is not sufficient to prove beyond reasonable doubt
that
appellant Ozaeta was indeed involved in any way in the illegal sale of
shabu. Therefore, appellant Ozaeta must be absolved from criminal
liability.cralaw:red
As to the penalty imposed
by the trial court on appellant Que, the Court finds the same to be in
accord with the provisions of R.A. 6425 as amended by R.A. No.
7659.
The penalty prescribed for the consummated sale of 200 grams of shabu
without
authority of law is reclusion perpetua to death and a fine ranging from
P500,000.00 to P10,000,000.00. Under Article 63 (No. 2) of the
Revised
Penal Code, the lesser penalty is applied when there are neither
mitigating
nor aggravating circumstances in the commission of the offense.
In
the case at bar, the prosecution did not allege or prove the attendance
of any modifying circumstance to justify the imposition of the extreme
penalty. Hence, the trial court did not err in imposing upon
appellant
Que the penalty of reclusion perpetua.[66]
The fine of P1,000,000.00
imposed on appellant Que is just and reasonable.cralaw:red
WHEREFORE, the decision
of the Regional Trial Court of Quezon City (Branch 103) dated August
31,
1998 in Crim. Case No. 97-71733 as to appellant Warren Que,
finding him guilty beyond reasonable doubt of selling 750.02 grams of
shabu
and sentencing him to suffer imprisonment term of reclusion perpetua
and
fining him in the amount of P1,000,000.00 is AFFIRMED.chanrobles virtuallaw libraryred
However, as to appellant
Roman Ozaeta y Lao, the decision of the Regional Trial Court of Quezon
City (Branch 103) dated August 31, 1998 in Crim. Case No.
97-71733
is REVERSED for failure of the prosecution to prove his guilt beyond
reasonable
doubt. Appellant Ozaeta is ACQUITTED. The Director of the
Bureau
of Corrections is ordered to IMMEDIATELY RELEASE Ozaeta unless he is
being
detained for some other lawful cause, and to inform this Court, within
five (5) days from notice hereof, the action taken thereon.cralaw:red
SO ORDERED.cralaw:red
Puno, J., (Chairman), Quisumbing,
Callejo, Sr., and Tinga, JJ.,
concur.
____________________________
Endnotes:
[1]
Penned by Judge Jaime N. Salazar, Jr
[2]
Referred to as “Sonny” by prosecution witnesses.
[3]
Referred to as “Romy” by prosecution witnesses.
[4]
Rollo, p. 54.
[5]
Record, pp. 83-85.
[6]
Id., pp. 83-84.
[7]
Rollo, p. 219.
[8]
Id., pp. 81-82chanrobles virtuallaw libraryred
.
[9]
People vs. Boholst, 152 SCRA 263, 270 (1987); People vs. Bansil, 304
SCRA
384, 393 (1999).
[10]
382 SCRA 419 (2002).chanrobles virtuallaw libraryred
[11]
Id., p. 444.chanrobles virtuallaw libraryred
[12]
TSN, Testimony of Pio Palencia, August 13, 1997, pp. 16-30; TSN,
Testimony
of Martin Soriano, October 9, 1997, pp 27-35.
[13]
TSN, Testimony of Pio Palencia, August 13, 1997, pp. 31-32.chanrobles virtuallaw libraryred
[14]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 31-36.
[15]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 176, 190-191.
[16]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 191-193.
[17]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 27-37; TSN,
Testimony
of Pio Palencia, August 13, 1997, pp. 30-41.
[18]
TSN, Testimony of Pio Palencia, September 16, 1997, pp. 12-15.chanrobles virtuallaw libraryred
[19]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 42-43.
[20]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 37-49.
[21]
TSN, Testimony of Pio Palencia, August 13, 1997, pp. 71-74.
[22]
TSN, Testimony of Martin Soriano, October 28, 1997, p. 69.
[23]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 50-56, 64-66;
TSN,
Testimony of Pio Palencia, August 13, 1997, pp. 51-57.
[24]
TSN, August 6, 1997, pp. 37-60.chanrobles virtuallaw libraryred
[25]
TSN, December 5, 1997, pp. 10, 35.
[26]
TSN, January 14, 1998, pp. 15-35.
[27]
TSN, January 14, 1998, pp. 95-97.
[28]
TSN, January 14, 1998, pp. 40-44.chanrobles virtuallaw libraryred
[29]
TSN, March 3, 1998, pp. 13-16.chanrobles virtuallaw libraryred
[30]
TSN, March 27, 1998, pp. 33-34.
[31]
TSN, March 3, 1998, pp. 16-24.
[32]
TSN, March 3, 1998, pp. 24-36.
[33]
TSN, March 3, 1998, pp. 36-61.
[34]
TSN, March 3, 1998, pp. 44-49.
[35]
TSN, March 27, 1998, pp. 37-38.
[36]
TSN, April 17, 1998, pp. 4-10.chanrobles virtuallaw libraryred
[37]
TSN, April 17, 1998, pp. 11-15.
[38]
TSN, April 17, 1998, pp. 15-30.
[39]
TSN, April 1, 1998, pp. 3-17.
[40]
TSN, April 1, 1998, pp. 19-33.
[41]
TSN, May 14, 1998, pp. 22-31.
[42]
TSN, May 14, 1998, pp. 31-36.
[43]
TSN, May 14, 1998, pp. 37-48, 58-59.
[44]
TSN, May 14, 1998, pp. 49-67.
[45]
TSN, May 15, 1998, pp. 6-15, 19.
[46]
TSN, May 15, 1998, pp. 20-27.
[47]
TSN, June 8, 1998, pp. 13-39.
[48]
181 SCRA 747 (1990).chanrobles virtuallaw libraryred
[49]
338 SCRA 232, 244-246 (2000).chanrobles virtuallaw libraryred
[50]
Id., pp. 244-246.chanrobles virtuallaw libraryred
[51]
309 SCRA 42, 62-63 (1999)chanrobles virtuallaw libraryred
[52]
Testimony of Martin Soriano, TSN, October 9, 1997, pp. 31-36.
[53]
People vs. Mala, et al., G.R. No. 152351, September 18, 2003.
[54]
Id.chanrobles virtuallaw libraryred
[55]
G.R. No. 146805, January 16, 2003.
[56]
Id.chanrobles virtuallaw libraryred
[57]
Appealed Decision, Rollo, pp. 103-119.
[58]
G.R. No. 146309. July 18, 2002.
[59]
TSN, October 9, 1997, pp. 31-36.
[60]
298 SCRA 621 (1998).chanrobles virtuallaw libraryred
[61]
Id., p. 636.chanrobles virtuallaw libraryred
[62]
G.R. No. 152351, September 18, 2003.
[63]
TSN, Testimony of Martin Soriano, October 9, 1997, pp. 176, 190-191.
[64]
TSN, January 14, 1998, pp. 43-44.chanrobles virtuallaw libraryred
[65]
281 SCRA 36, 47 (1997).chanrobles virtuallaw libraryred
[66]
People vs. Lee Hoi Ming, G.R. No. 145337. October 2, 2003 |