J.A.B. Bulao & Associates

CASE  2011-0122: RODOLFO N. REGALA VS. FEDERICO P. CARIN (G.R. NO. 188715, 6 APRIL 2011, CARPIO MORALES, J.) SUBJECT: QUASI DELICT; MORAL DAMAGES; NOMINAL DAMAGES. (BRIEF TITLE: REGALA VS. CARIN)

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SUBJECT:  MORAL DAMAGES MUST BE SHOWN TO BE THE PROXIMATE RESULT OF WRONGFUL ACT.

In prayers for moral damages, however, recovery is more an exception rather than the rule.  Moral damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person.  To be entitled to such an award, the claimant must satisfactorily prove that he has suffered damages and that the injury causing it has sprung from any of the cases listed in Articles 2219^[19] and 2220^[20] of the Civil Code. Moreover, the damages must be shown to be the proximate result of a wrongful act or omission.  The claimant must thus establish the factual basis of the damages and its causal tie with the acts of the defendant. 

SUBJECT: WHAT TO PROVE TO MERIT AN AWARD OF MORAL DAMAGES

In fine, an award of moral damages calls for the presentation of 1) evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and 4) the proof that the act is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.^[21]

SUBJECT: MALICE IS A CRUCIAL ELEMENT IN MORAL DAMAGES. WHAT IS MALICE?

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.^[27] While the Court harbors no doubt that the incidents which gave rise to this dispute have brought anxiety and anguish to respondent, it is unconvinced that the damage inflicted upon respondent’s property was malicious or willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code.

SUBJECT: NOMINAL DAMAGES IS ADJUDICATED IN ORDER THAT ONE’S RIGHT WHICH HAS BEEN VIOLATED MAY BE VINDICATED.

Petitioner, however, cannot steer clear from any liability whatsoever. Respondent and his family’s rights to the peaceful enjoyment of their property have, at the very least, been inconvenienced from the incident borne of petitioner’s construction work. Any pecuniary loss or damage suffered by respondent cannot be established as the records are bereft of any factual evidence to establish the same.  Nominal damages may thus be adjudicated in order that a right of the plaintiff, respondent herein, which has been violated or invaded by the defendant, petitioner herein, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.^[29]

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Republic of the Philippines

Supreme Court

Baguio City

THIRD DIVISION

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D E C I S I O N

CARPIO MORALES, J.:

          Assailed via this petition for review of petitioner Rodolfo N. Regala is the May 26, 2009 Decision^[1] of the Court of Appeals which affirmed with modification the May 29, 2006 Decision^[2] of the Regional Trial Court (RTC) of Las Piñas City, Br. 255 in Civil Case No. LP-99-0058, ordering petitioner to pay respondent Federico P. Carin moral and exemplary damages and attorney’s fees.

Petitioner and respondent are adjacent neighbors at Spirig Street, BF Resort Village, Las Piñas City.  When petitioner decided to renovate his one storey residence by constructing a second floor, he under the guise of merely building an extension to his residence, approached respondent sometime in May 1998 for permission to bore a hole through a perimeter wall shared by both their respective properties, to which respondent verbally consented on condition that petitioner would clean the area affected by the work.

          As earlier indicated, petitioner’s real intention was to build a second floor, in fact with a terrace atop the dividing wall.  In the course of the construction of the second floor, respondent and his wife Marietta suffered from the dust and dirt which fell on their property.  As petitioner failed to address the problem to respondent’s satisfaction, respondent filed a letter-complaint^[3] with the Office of the City Engineer and Building Official of Las Piñas City on June 9, 1998.

In his letter-complaint, respondent related that, despite the lack of a building permit for the construction of a second floor, petitioner had demolished the dividing wall, failed to clean the debris falling therefrom, allowed his laborers to come in and out of his (respondent’s) property without permission by simply jumping over the wall, and trampled on his vegetable garden; and that despite his protestations, petitioner persisted in proceeding with the construction, he claiming to be the owner of the perimeter wall.  

Several “sumbongs”^[4] (complaints) were soon lodged by respondent before the Office of Barangay Talon Dos against petitioner for encroachment, rampant invasion of privacy and damages arising from the construction, and for illegal construction of scaffoldings inside his (respondent’s) property.

          As no satisfactory agreement was reached at the last barangay conciliation proceedings in December 1998, and petitioner having continued the construction work despite issuance of several stop-work notices from the City Engineer’s Office for lack of building permit, respondent filed on March 1999 a complaint^[5] for damages against petitioner before the RTC of Las Piñas City.

In his complaint, respondent alleged in the main that, instead of boring just one hole as agreed upon, petitioner demolished the whole length of the wall from top to bottom into five parts for the purpose of constructing a second floor with terrace;  and that debris and dust piled up on respondent’s property ruining his garden and forcing him to, among other things, shut some of the windows of his house.  Respondent thus prayed for the award of moral and exemplary damages.

Petitioner, denying respondent’s allegations, claimed in his Answer^[6] that he was the sole and exclusive owner of  the wall referred to as a perimeter wall, the same having been built within the confines of his property and being part and parcel of the house and lot package he purchased from the developer, BF Homes, Inc., in 1981;  that the issue of its ownership has never been raised by respondent or his predecessor;  and that securing the consent of respondent and his neighbors was a mere formality in compliance with the requirements of the Building Official to facilitate the issuance of a building permit, hence, it should not be taken to mean that he (petitioner) acknowledges respondent to be a co-owner of the wall. He added that he eventually secured the requisite building permit^[7] in March 1999 and had duly paid the administrative fine.^[8]

Further, petitioner, denying that a demolition of the whole length of the wall took place, claimed that he and his contractor’s laborers had been diligently cleaning respondent’s area after every day’s work until respondent arrogantly demanded the dismantling of the scaffoldings, and barred the workforce from, and threatening to shoot anyone entering the premises;  and that the complaint was instituted by respondent as leverage to force him to withdraw the criminal case for slander and light threats^[9] which he had earlier filed against respondent for uttering threats and obscenities against him in connection with the construction work.

At the trial, after respondent and his wife confirmed the material allegations of the complaint, petitioner took the witness stand and presented his witnesses.

Architect Antonio Punzalan III^[10] testified that he installed GI sheets to prevent debris from falling onto respondent’s property and had instructed his workers to clean the affected area after every work day at 5:00 p.m., but they were later barred by respondent from entering his property. 

Engineer Crisostomo Chan^[11] from the Office of the Building Official of Las Piñas City testified, among other things, on the circumstances surrounding the complaint for illegal construction filed by respondent and that a building permit was eventually issued to petitioner on March 15, 1999.

Engineer Sonia Haduca^[12] declared that upon a joint survey conducted on the properties of both petitioner and respondent in December 1998 to determine their exact boundaries, she found an encroachment by petitioner of six centimeters at the lower portion of the existing wall negligible, since the Land Survey Law permits an encroachment of up to ten centimeters.

By Decision of May 29, 2006, Branch 255 of the Las Piñas City RTC rendered judgment in favor of respondent whom it awarded moral damages in the sum of P100,000, exemplary damages of P100,000 and attorney’s fees of P50,000 plus costs of suit.^[13]

In finding for respondent, the trial court declared that, apart from the fact that petitioner knowingly commenced the renovation of his house without the requisite building permit from the City Engineer’s Office, he misrepresented to respondent his true intent of introducing renovations.  For, it found that instead of just boring a hole in the perimeter wall as originally proposed, petitioner divided the wall into several sections to serve as a foundation for his firewall (which ended up higher than the perimeter wall) and the second storey of his house.

The trial court further declared that respondent and his family had thus to contend with the noise, dust and debris occasioned by the construction, which petitioner and his work crew failed to address despite respondent’s protestations, by refusing to clean the mess or install the necessary safety devices.

Applying Article 2176 of the Civil Code on quasi-delicts, the trial court ruled that petitioner was at fault and negligent for failing to undertake sufficient safety measures to prevent inconvenience and damage to respondent to thus entitle respondent to moral and exemplary damages.

On appeal by petitioner, the Court of Appeals affirmed the trial court’s decision with modification by reducing the award of moral and exemplary damages to P50,000 and P25,000, respectively.  The appellate court anchored its affirmance on Article 19 of the New Civil Code which directs every person to, in the exercise of his rights and in the performance of his duties, act with justice, and observe honesty and good faith.

By Resolution^[14] of July 10, 2009, the appellate court denied petitioner’s motion for reconsideration as well as respondent’s prayer in his Comment that the original awards made by the trial court be restored. 

Hence, petitioner’s present petition faulting the appellate court in

Affirming with modification the decision of the trial court….considering the absence of any competent proof to warrant the grant of moral and exemplary damages as well as attorney’s fees.^[15]  (underscoring supplied)

Petitioner maintains that since moral and exemplary damages are compensatory in nature, being meant neither to punish nor enrich, the claimant must establish that not only did he sustain injury but also that the other party had acted in bad faith or was motivated by ill will.  To petitioner, respondents failed to discharge this burden.  He adds that the trial court did not delve into whether petitioner’s renovations were the primary cause of respondent’s claimed injuries, viz violation of privacy, sleepless nights and mental anguish, among other things, as it instead focused on the lack of a building permit as basis for the awards.

Rebutting the testimony of respondent’s wife as to the alleged unauthorized intrusion of petitioner’s workers into respondent’s property in order to erect scaffoldings, petitioner points out that such an undertaking would take a considerable length of time and could not have gone unnoticed had consent not been given by respondent.

Moreover, petitioner posits, if consent had truly been withheld, there was nothing to prevent respondent from dismantling or immediately removing the offending structures – a course of action he did not even attempt.

In his Comment^[16] to the petition, respondent quotes heavily from the appellate and trial court’s findings that fault and negligence attended petitioner’s renovation, thus justifying the award of damages. He goes on to reiterate his plea that the awards given by the trial court in its decision of May 29, 2006 should be reinstated.

The petition is partly impressed with merit.

The trial court’s award of moral and exemplary damages, as affirmed by the appellate court, was premised on the damage and suffering sustained by respondent arising from quasi-delict under Article 2176^[17] of the Civil Code.  Thus the trial court explained:

Indeed, there was fault or negligence on the part of the defendant when he did not provide sufficient safety measures to prevent causing a lot of inconvenience and disturbance to the plaintiff and his family. The evidence presented by the plaintiff regarding the dirt or debris, as well as the absence of devices or safety measures to prevent the same from falling inside plaintiff’s property, were duly established. It did not help the cause of the defendant that he made a lot of misrepresentations regarding the renovations on his house and he did not initially have a building permit for the same. In fact, it was only after the construction works were completed that the said permit was issued and upon payment of an administrative fine by the defendant.^[18]

In prayers for moral damages, however, recovery is more an exception rather than the rule.  Moral damages are not meant to be punitive but are designed to compensate and alleviate the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar harm unjustly caused to a person.  To be entitled to such an award, the claimant must satisfactorily prove that he has suffered damages and that the injury causing it has sprung from any of the cases listed in Articles 2219^[19] and 2220^[20] of the Civil Code. Moreover, the damages must be shown to be the proximate result of a wrongful act or omission.  The claimant must thus establish the factual basis of the damages and its causal tie with the acts of the defendant. 

In fine, an award of moral damages calls for the presentation of 1) evidence of besmirched reputation or physical, mental or psychological suffering sustained by the claimant; 2) a culpable act or omission factually established; 3) proof that the wrongful act or omission of the defendant is the proximate cause of the damages sustained by the claimant; and 4) the proof that the act is predicated on any of the instances expressed or envisioned by Article 2219 and Article 2220 of the Civil Code.^[21]

In the present case, respondent failed to establish by clear and convincing evidence that the injuries he sustained were the proximate effect of petitioner’s act or omission. It thus becomes necessary to instead look into the manner by which petitioner carried out his renovations to determine whether this was directly responsible for any distress respondent may have suffered since the law requires that a wrongful or illegal act or omission must have preceded the damages sustained by the claimant.

It bears noting that petitioner was engaged in the lawful exercise of his property rights to introduce renovations to his abode. While he initially did not have a building permit and may have misrepresented his real intent when he initially sought respondent’s consent, the lack of the permit was inconsequential since it only rendered petitioner liable to administrative sanctions or penalties.

The testimony of petitioner and his witnesses, specifically Architect Punzalan, demonstrates that they had actually taken measures to prevent, or at the very least, minimize the damage to respondent’s property occasioned by the construction work. Architect Punzalan details how upon reaching an agreement with petitioner for the construction of the second floor, he (Punzalan) surveyed petitioner’s property based on the Transfer Certificate of Title (TCT) and Tax Declarations^[22] and found that the perimeter wall was within the confines of petitioner’s property; that he, together with petitioner, secured the consent of the neighbors (including respondent) prior to the start of the renovation as reflected in a Neighbor’s Consent^[23] dated June 12, 1998; before the construction began, he undertook measures to prevent debris from falling into respondent’s property such as the installation of GI sheet strainers, the construction of scaffoldings^[24] on respondent’s property, the instructions to his workers to clean the area before leaving at 5:00 p.m;^[25]  and that the workers conducted daily clean-up of respondent’s property with his consent, until animosity developed between the parties.^[26]

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will.^[27] While the Court harbors no doubt that the incidents which gave rise to this dispute have brought anxiety and anguish to respondent, it is unconvinced that the damage inflicted upon respondent’s property was malicious or willful, an element crucial to merit an award of moral damages under Article 2220 of the Civil Code.

Necessarily, the Court is not inclined to award exemplary damages.^[28]

Petitioner, however, cannot steer clear from any liability whatsoever. Respondent and his family’s rights to the peaceful enjoyment of their property have, at the very least, been inconvenienced from the incident borne of petitioner’s construction work. Any pecuniary loss or damage suffered by respondent cannot be established as the records are bereft of any factual evidence to establish the same.  Nominal damages may thus be adjudicated in order that a right of the plaintiff, respondent herein, which has been violated or invaded by the defendant, petitioner herein, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.^[29]

WHEREFORE, the petition is GRANTED. The May 26, 2009 Decision of the Court of Appeals is VACATED.  The Court orders petitioner to pay respondent the sum of P25,000 as nominal damages.

No costs.

SO ORDERED.        

                                       CONCHITA CARPIO MORALES

                                                         Associate Justice

WE CONCUR:

ATTESTATION

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                  CONCHITA CARPIO MORALES

                                      Associate Justice

                                   Chairperson

CERTIFICATION

          Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                     RENATO C. CORONA                                                                                                 Chief Justice

^[1]       Penned by Associate Justice Fernanda Lampas Peralta with the concurrence of Associate Justices       Andres B. Reyes, Jr. and Apolinario D. Bruselas, Jr., CA rollo, pp. 157-164.

^[2]       Records, pp. 579-602.

^[3]       Exhibit “B,” records, pp. 281-282.

^[4]      Id. at 9 and 284. 

^[5]       Docketed as Civil Case No. LP-99-0058, id. at 2-6.

^[6]       Id. at 21-28.

^[7]      Exhibit “21,” id. at 427.

^[8]      Vide Exhibit “22,” id. at 428.

^[9]       Criminal Case Nos. 43519-20 before the Metropolitan Trial Court of Las Piñas City, Br. 79.

^[10]     TSN, August 4, 16, 2004.

^[11]    TSN, September 27, 2004.

^[12]    TSN, October 13, 2004

^[13]     Records, p. 602.

^[14]    CA rollo, p. 187.

^[15]    Rollo, p. 32.

^[16]     Id. at 350-356.

^[17]     Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

^[18]     Records, p. 600.

^[19]     Article 2219. Moral damages may be recovered in the following and analogous cases:

(1)     A criminal offense resulting in physical injuries;

(2)     Quasi-delicts causing physical injuries; 

(3)     Seduction, abduction, rape or other lascivious acts;

(4)     Adultery or concubinage;

(5)     Illegal or arbitrary detention or arrest;

(6)     Illegal search;

(7)     Libel, slander or any other form of defamation;

(8)     Malicious prosecution;

(9)     Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.

^[20]    Article 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the defendant acted fraudulently and in bad faith.

^[21]     B. F. Metal (Corporation) v. Lomoton, G. R. No. 170813, April 16, 2008, 551 SCRA 618, 628-629 citing Philippine Telegraph & Telephone Corp. v. Court of Appeals, G. R. No. 139268, September 3, 2002, 388 SCRA 270, 276.

^[22]     Exhibit “11,” records, p. 413.

^[23]     Exhibit “7,” id. at 288.

^[24]    Exhibits “5” to “6,” id. at. 278.

^[25]    TSN, August 4, 2004, pp. 18-34.

^[26]    Id. at 35-38.

^[27]    Far East Bank and Trust Company v. Court of Appeals, G. R. No. 108164, 241 SCRA 671, 675.

^[28]     Philippine Telegraph & Telephone Corp. v. Court of Appeals, G. R. No. 139268, September 3, 2002, 388 SCRA 270, 277.

^[29]    Id. at 279.

CASE 2011-0121: RE: PETITION FOR RADIO AND TELEVISION COVERAGE OF THE MULTIPLE MURDER CASES AGAINST MAGUINDANAO GOVERNOR ZALDY AMPATUAN, ET AL., (A.M. NO. 10-11-5-SC); RE: PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF THE MASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN, MAGUINDANAO INTO A SPECIAL COURT HANDLING THIS CASE ALONE FOR THE PURPOSE OF ACHIEVING GENUINE SPEEDY TRIAL and FOR THE SETTING UP OF VIDEOCAM AND MONITOR JUST OUTSIDE THE COURT FOR JOURNALISTS TO COVER AND FOR THE PEOPLE TO WITNESS THE “TRIAL OF THE DECADE” TO MAKE IT TRULY PUBLIC AND IMPARTIAL AS COMMANDED BY THE CONSTITUTION (A.M. NO. 10-11-6-SC); RE: LETTER OF PRESIDENT BENIGNO S. AQUINO III FOR THE LIVE MEDIA COVERAGE OF THE MAGUINDANAO MASSACRE TRIAL. (A.M. NO. 10-11-7-SC) (CARPIO-MORALES, J.) (14 JUNE 2011).

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SUBJECT: WIN-WIN SITUATION

In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings.  Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.

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SUBJECT: RIGHT OF AN ACCUSED TO A FAIR TRIAL IS NOT INCOMPATIBLE TO A FREE PRESS

Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the “totality of circumstances” test, applied in People v. Teehankee, Jr.^[1][24] and Estrada v. Desierto,^[2][25] that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision.  Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. 

Moreover, an aggrieved party has ample legal remedies.  He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right.  As pointed out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial when necessary.  The trial court may likewise exercise its power of contempt and issue gag orders.  

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EN BANC

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R E S O L U T I O N

CARPIO MORALES, J.:

          On November 23, 2009, 57 people including 32 journalists and media practitioners were killed while on their way to Shariff Aguak in Maguindanao. Touted as the worst election-related violence and the most brutal killing of journalists in recent history, the tragic incident which came to be known as the “Maguindanao Massacre” spawned charges for 57 counts of murder and an additional charge of rebellion against 197 accused, docketed as Criminal Case Nos. Q-09-162148-72, Q-09-162216-31, Q-10-162652-66, and Q-10-163766, commonly entitled People v. Datu Andal Ampatuan, Jr., et al.  Following the transfer of venue and the reraffling of the cases, the cases are being tried by Presiding Judge Jocelyn Solis-Reyes of Branch 221 of the Regional Trial Court (RTC) ofQuezon City inside Camp Bagong Diwa inTaguigCity.

          Almost a year later or on November 19, 2010, the National Union of Journalists of the Philippines (NUJP), ABS-CBN Broadcasting Corporation, GMA Network, Inc., relatives of the victims,^[3][1] individual journalists^[4][2] from various media entities, and members of the academe^[5][3] filed a petition before this Court praying that live television and radio coverage of the trial in these criminal cases be allowed, recording devices (e.g., still cameras, tape recorders) be permitted inside the courtroom to assist the working journalists, and reasonable guidelines be formulated to govern the broadcast coverage and the use of devices.^[6][4]   The Court docketed the petition as A.M. No. 10-11-5-SC.

          In a related move, the National Press Club of the Philippines^[7][5] (NPC) and Alyansa ng Filipinong Mamamahayag^[8][6] (AFIMA) filed on November 22, 2010 a petition praying that the Court constitute Branch 221 of RTC-Quezon City as a special court to focus only on the Maguindanao    Massacre trial to relieve it of all other pending cases and assigned duties, and allow the installation inside the courtroom of a sufficient number of video cameras that shall beam the audio and video signals to the television monitors outside the court.^[9][7]   The Court docketed the petition as A.M.     No. 10-11-6-SC.

          President Benigno S. Aquino III, by letter of November 22, 2010^[10][8]  addressed to Chief Justice Renato Corona, came out “in support of those who have petitioned [this Court] to permit television and radio broadcast of the trial.”   The President expressed “earnest hope that [this Court] will, within the many considerations that enter into such a historic deliberation,
attend to this petition with the dispatch, dispassion and humaneness, such a petition merits.”^[11][9]   The Court docketed the matter as A.M. No. 10-11-7-SC.  

          By separate Resolutions of November 23, 2010,^[12][10] the Court  consolidated A.M. No. 10-11-7-SC  with A.M. No. 10-11-5-SC.  The Court shall treat in a separate Resolution A.M. No. 10-11-6-SC.

          Meanwhile, various groups^[13][11] also sent to the Chief Justice their respective resolutions and statements bearing on these matters.

          The principal accused in the cases, Andal Ampatuan, Jr. (Ampatuan), filed a Consolidated Comment of December 6, 2010 in A.M. No. 10-11-5-SC and A.M. No. 10-11-7-SC.  The President, through the Office of the Solicitor General (OSG), and NUJP, et al. filed their respective Reply ofJanuary 18, 2011 andJanuary 20, 2011.  Ampatuan also filed a Rejoinder ofMarch 9, 2011. 

On Broadcasting the Trial of the Maguindanao Massacre Cases

          Petitioners seek the lifting of the absolute ban on live television and radio coverage of court proceedings.  They principally urge the Court to revisit the 1991 ruling in Re: Live TV and Radio Coverage of the Hearing of President Corazon C. Aquino’s Libel Case^[14][12] and the 2001 ruling in Re: Request Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Cases Against the Former President Joseph E. Estrada^[15][13] which rulings, they contend, violate the doctrine that proposed restrictions on constitutional rights are to be narrowly construed and outright prohibition cannot stand when regulation is a viable alternative. 

          Petitioners state that the trial of the Maguindanao Massacre cases has attracted intense media coverage due to the gruesomeness of the crime, prominence of the accused, and the number of media personnel killed.  They inform that reporters are being frisked and searched for cameras, recorders, and cellular devices upon entry, and that under strict orders of the trial court against live broadcast coverage, the number of media practitioners allowed inside the courtroom has been limited to one reporter for each media institution.

          The record shows that NUJP Vice-Chairperson Jose Jaime Espina, by January 12, 2010 letter^[16][14] to Judge Solis-Reyes, requested a dialogue to discuss concerns over media coverage of the proceedings of the Maguindanao Massacre cases.  Judge Solis-Reyes replied, however, that “matters concerning media coverage should be brought to the Court’s attention through appropriate motion.”^[17][15]   Hence, the present petitions which assert the exercise of the freedom of the press, right to information, right to a fair and public trial, right to assembly and to petition the government for redress of grievances, right of free access to courts, and freedom of association, subject to regulations to be issued by the Court.

          The Court partially GRANTS pro hac vice petitioners’ prayer for a live broadcast of the trial court proceedings, subject to the guidelines which shall be enumerated shortly.

          Putt’s Law^[18][16] states that “technology is dominated by two types of people: those who understand what they do not manage, and those who manage what they do not understand.”  Indeed, members of this Court cannot strip their judicial robe and don the experts’ gown, so to speak, in a pretense to foresee and fathom all serious prejudices or risks from the use of technology inside the courtroom.

          A decade after Estrada and a score after Aquino, the Court is once again faced with the same task of striking that delicate balance between seemingly competing yet certainly complementary rights. 

          The indication of “serious risks” posed by live media coverage to the accused’s right to due process, left unexplained and unexplored in the era obtaining in Aquino and Estrada, has left a blow to the exercise of press freedom and the right to public information.

          The rationale for an outright total prohibition was shrouded, as it is now, inside the comfortable cocoon of a feared speculation which no scientific study in the Philippine setting confirms, and which fear, if any, may be dealt with by safeguards and safety nets under existing rules and exacting regulations. 

          In this day and age, it is about time to craft a win-win situation that shall not compromise rights in the criminal administration of justice, sacrifice press freedom and allied rights, and interfere with the integrity, dignity and solemnity of judicial proceedings.  Compliance with regulations, not curtailment of a right, provides a workable solution to the concerns raised in these administrative matters, while, at the same time, maintaining the same underlying principles upheld in the two previous cases.

          The basic principle upheld in Aquino is firm ─ “[a] trial of any kind or in any court is a matter of serious importance to all concerned and should not be treated as a means of entertainment[, and t]o so treat it deprives the court of the dignity which pertains to it and departs from the orderly and serious quest for truth for which our judicial proceedings are formulated.”  The observation that “[m]assive intrusion of representatives of the news media into the trial itself can so alter and destroy the constitutionally necessary atmosphere and decorum” stands. 

The Court concluded in Aquino:

            Considering the prejudice it poses to the defendant’s right to due process as well as to the fair and orderly administration of justice, and considering further that the freedom of the press and the right of the people to information may be served and satisfied by less distracting, degrading and prejudicial means, live radio and television coverage of court proceedings shall not be allowed. Video footages of court hearings for news purposes shall be restricted and limited to shots of the courtroom, the judicial officers, the parties and their counsel taken prior to the commencement of official proceedings. No video shots or photographs shall be permitted during the trial proper.

            Accordingly, in order to protect the parties’ right to due process, to prevent the distraction of the participants in the proceedings and in the last analysis, to avoid miscarriage of justice, the Court resolved to PROHlBIT live radio and television coverage of court proceedings. Video footage of court hearings for news purposes shall be limited and restricted as above indicated.^[19][17]

          The Court had another unique opportunity in Estrada to revisit the question of live radio and television coverage of court proceedings in a criminal case.   It held that “[t]he propriety of granting or denying the instant petition involve[s] the weighing out of the constitutional guarantees of freedom of the press and the right to public information, on the one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial.”  The Court disposed:

            The Court is not all that unmindful of recent technological and scientific advances but to chance forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price too high to pay.

            WHEREFORE, the petition is DENIED.

            SO ORDERED.^[20][18]

          In resolving the motion for reconsideration, the Court in Estrada, by Resolution of September 13, 2001, provided a glimmer of hope when it ordered the audio-visual recording of the trial for documentary purposes, under the following conditions:

          x x x (a) the trial shall be recorded in its entirety, excepting such portions thereof as the Sandiganbayan may determine should not be held public under Rule 119, §21 of the Rules of Criminal Procedure; (b) cameras shall be installed inconspicuously inside the courtroom and the movement of TV crews shall be regulated consistent with the dignity and solemnity of the proceedings; (c) the audio-visual recordings shall be made for documentary purposes only and shall be made without comment except such annotations of scenes depicted therein as may be necessary to explain them; (d) the live broadcast of the recordings before the Sandiganbayan shall have rendered its decision in all the cases against the former President shall be prohibited under pain of contempt of court and other sanctions in case of violations of the prohibition; (e) to ensure that the conditions are observed, the audio-visual recording of the proceedings shall be made under the supervision and control of the Sandiganbayan or its Division concerned and shall be made pursuant to rules promulgated by it; and (f) simultaneously with the release of the audio-visual recordings for public broadcast, the original thereof shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law.^[21][19]

          Petitioners note that the 1965 case of Estes v. Texas^[22][20] which Aquino and Estrada heavily cited, was borne out of the dynamics of a jury system, where the considerations for the possible infringement of the impartiality of a jury, whose members are not necessarily schooled in the law, are different from that of a judge who is versed with the rules of evidence.  To petitioners,  Estes also does not represent the most contemporary position of the United States in the wake of latest jurisprudence^[23][21] and statistical figures revealing that as of 2007 all 50 states, except the District of Columbia, allow television coverage with varying degrees of openness.

          Other jurisdictions welcome the idea of media coverage.  Almost all the proceedings of United Kingdom’s Supreme Court are filmed, and sometimes broadcast.^[24][22]  The International Criminal Court broadcasts its proceedings via video streaming in the internet.^[25][23]

          On the media coverage’s influence on judges, counsels and witnesses, petitioners point out that Aquino and Estrada, like Estes, lack empirical evidence to support the sustained conclusion.  They point out errors of generalization where the conclusion has been mostly supported by studies on American attitudes, as there has been no authoritative study on the particular matter dealing with Filipinos.

          Respecting the possible influence of media coverage on the impartiality of trial court judges, petitioners correctly explain that prejudicial publicity insofar as it undermines the right to a fair trial must pass the “totality of circumstances” test, applied in People v. Teehankee, Jr.^[26][24] and Estrada v. Desierto,^[27][25] that the right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision.  Mere fear of possible undue influence is not tantamount to actual prejudice resulting in the deprivation of the right to a fair trial. 

          Moreover, an aggrieved party has ample legal remedies.  He may challenge the validity of an adverse judgment arising from a proceeding that transgressed a constitutional right.  As pointed out by petitioners, an aggrieved party may early on move for a change of venue, for continuance until the prejudice from publicity is abated, for disqualification of the judge, and for closure of portions of the trial when necessary.  The trial court may likewise exercise its power of contempt and issue gag orders.  

          One apparent circumstance that sets the Maguindanao Massacre cases apart from the earlier cases is the impossibility of accommodating even the parties to the cases – the private complainants/families of the victims and other witnesses – inside the courtroom.  On public trial, Estrada basically discusses:

            An accused has a right to a public trial but it is a right that belongs to him, more than anyone else, where his life or liberty can be held critically in balance.  A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secrete conclaves of long ago.  A public trial is not synonymous with publicized trial; it only implies that the court doors must be open to those who wish to come, sit in the available seats, conduct themselves with decorum and observe the trial process.  In the constitutional sense, a courtroom should have enough facilities for a reasonable number of the public to observe the proceedings, not too small as to render the openness negligible and not too large as to distract the trial participants from their proper functions, who shall then be totally free to report what they have observed during the proceedings.^[28][26] (underscoring supplied)

          Even before considering what is a “reasonable number of the public” who may observe the proceedings, the peculiarity of the subject criminal cases is that the proceedings already necessarily entail the presence of hundreds of families.  It cannot be gainsaid that the families of the 57 victims and of the 197 accused have as much interest, beyond mere curiosity, to attend or monitor the proceedings as those of the impleaded parties or trial participants.  It bears noting at this juncture that the prosecution and the defense have listed more than 200 witnesses each.

          The impossibility of holding such judicial proceedings in a courtroom that will accommodate all the interested parties, whether private complainants or accused, is unfortunate enough.  What more if the right itself commands that a reasonable number of the general public be allowed to witness the proceeding as it takes place inside the courtroom.  Technology tends to provide the only solution to break the inherent limitations of the courtroom, to satisfy the imperative of a transparent, open and public trial.

          In so allowing pro hac vice the live broadcasting by radio and television of the Maguindanao Massacre cases, the Court lays down the following guidelines toward addressing the concerns mentioned in Aquino and Estrada:  

(a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting.

(b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to  carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. 

No selective or partial coverage shall be allowed.  No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court.      

(c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court.  No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings.  The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court.  The camera equipment should not produce or beam any distracting sound or light rays.  Signal lights or signs showing the equipment is operating should not be visible.  A limited number of microphones and the least installation of wiring, if not wireless technology, must be unobtrusively located in places indicated by the trial court. 

The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial court on the physical set-up of the camera and equipment. 

(d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities. 

The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue commotion in case of technical glitches.  

If the premises outside the courtroom lack space for the set-up of the media entities’ facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds. 

At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected or encrypted.

(e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court^[29][27] applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). 

The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both.

(f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the day’s proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded.

(g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall be broadcast without any voice-overs, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene.  Any commentary shall observe the sub judice rule and be subject to the contempt power of the court;

(h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court;

(i) The original audio-recording shall be deposited in theNationalMuseumand the Records Management and Archives Office for preservation and exhibition in accordance with law.

(j)  The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities. 

(k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines.  The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein requirements.  It may conduct consultations with resource persons and experts in the field of information and communication technology.

(l)  All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines.

          Indeed, the Court cannot gloss over what advances technology has to offer in distilling the abstract discussion of key constitutional precepts into the workable context.  Technology per se has always been neutral.  It is the use and regulation thereof that need fine-tuning.  Law and technology can work to the advantage and furtherance of the various rights herein involved, within the contours of defined guidelines.

          WHEREFORE, in light of the foregoing disquisition, the Court PARTIALLY GRANTS PRO HAC VICE the request for live broadcast by television and radio of the trial court proceedings of the Maguindanao Massacre cases, subject to the guidelines herein outlined.

          SO ORDERED. 

                                                CONCHITA CARPIO MORALES

                                                      Associate Justice

WE CONCUR:

(ON OFFICIAL LEAVE)

 RENATO C. CORONA

Chief Justice

CASE 2011-0120: PEOPLE OF THE PHILIPPINES VS. ANDREW ROBLE (G.R. NO. 192188, 11 APRIL 2011, VELASCO, JR., J.) SUBJECT: COMPREHENSIVE DANGERIOUS DRUGS ACT OF 2002; ACCUSED ACQUITTED. (BRIEF TITLE: PEOPLE VS. ROBLE).

X =============================== X

SUBJECT: INSTANCE WHEN TRIAL COURT OVERLOOKED, MISAPPREHENDED FACTS

It is hornbook doctrine that the evaluation of the trial court of the credibility of the witnesses and their testimonies is entitled to great weight and is generally not disturbed upon appeal. However, such rule does not apply when the trial court has overlooked, misapprehended, or misapplied any fact of weight or substance.^[33] In the instant case, circumstances are present that, when properly appreciated, would warrant the acquittal of accused-appellant.

SUBJECT: ELEMENTS THAT PROSECUTION MUST PROVE IN THE CRIME OF SALE OF DANGEROUS DRUGS.

In the crime of sale of dangerous drugs, the prosecution must be able to successfully prove the following elements: “(1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.”^[34]  Similarly, it is essential that the transaction or sale be proved to have actually taken place coupled with the presentation in court of evidence of corpus delicti.^[35] Corpus delicti means the “actual commission by someone of the particular crime charged.”^[36]

In the instant case, the prosecution has failed to prove all the elements of the crime with moral certainty.

X =================================== X

Republic of the Philippines

SUPREME COURT

Baguio City

FIRST DIVISION

x————————————————————————————–x

D E C I S I O N

VELASCO, JR., J.:

The Case

This is an appeal from the July 14, 2009 Decision^[1] of the Court of Appeals (CA) in CA-G.R. CEB CR-H.C. No. 00746, which affirmed the May 2, 2007 Decision^[2] in Criminal Case No. DNO-2989 of the Regional Trial Court (RTC), Branch 25 in DanaoCity. The RTC found accused-appellant Andrew Roble (Roble) guilty of violating Section 5,^[3] Article II of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.

The Facts

The charge against Roble stemmed from the following Information:

That on or about March 12, 2003 at 6:30 o’clock in the evening more or less, in Looc, Danao City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, in a buy-bust operation, did then and there willfully, unlawfully and feloniously sell and deliver two (2) plastic packets containing “shabu” powder/granule a regulated drug with a total weight of zero point zero six (0.06) gram to a poseur-buyer for a total consideration of Three Hundred (P300) pesos without any corresponding license or prescription from the proper authorities as provided by law; and the aforesaid packets of “shabu” was turned over by the poseur-buyer to the police as evidence.

Contrary to law.^[4]

On April 9, 2003, the City Prosecutor Dalmacio D. Suralta (City Prosecutor Suralta) issued a Resolution^[5] authorizing the filing of the foregoing information against Roble. Accordingly, a warrant of arrest was issued on April 21, 2003^[6] and Roble was arrested on June 17, 2003. On the same date, Roble, through his counsel, filed a Motion for Reinvestigation^[7] of the case. In the said motion, Roble intimated that when the case was filed against him, he was in the province of Leyte and, thus, was not able to refute the allegations against him. In an Order dated June 20, 2003, the RTC granted the motion.^[8]

After reinvestigation, City Prosecutor Suralta, however, did not find any reason to withdraw the said information^[9] and it was given due course by the RTC.^[10] As a result, Roble filed a Motion for Reconsideration of the Reinvestigation Report before the Office of the City Prosecutor, which was subsequently denied on January 19, 2004.^[11]

On February 4, 2004, Roble was arraigned and pleaded “not guilty” to the offense charged.^[12]

During the trial, the prosecution presented witnesses Police Officer 2 Castor Laurel (PO2 Laurel) and Medical Technologist Jude Daniel Mendoza (Medical Technologist Mendoza). On the other hand, the defense presented accused Roble as its sole witness.

The Prosecution’s Version of Facts

On March 12, 2003, at around 5:30 p.m., PO3 Matias Casas (PO3 Casas) received information through a telephone call regarding the illegal drug activities of a certain “Jojo” Roble in Looc, Danao City.^[13] Coordination was then made with the Special Operations Group (SOG) and a buy-bust team was formed composed of PO3 Casas, PO2 Laurel, the SOG and the mayor of DanaoCity, Mayor Ramonito Durano (Mayor Durano).^[14] A briefing was conducted where several pieces of marked 100-peso bills were handed to the poseur-buyer, Abner Banzon Cuizon (Cuizon), by PO3 Casas.^[15]

At 6:30 p.m., the team proceeded to the reported area. PO3 Casas, PO2 Laurel and Cuizon were aboard a tricycle while the rest of the team were with Mayor Durano.^[16] The tricycle was parked on the side of a road where Cuizon alighted and walked to a nearby store, leaving PO3 Casas and PO2 Laurel inside the tricycle. At this time, the tricycle was parked seven (7) meters away from the said store while the group of Mayor Durano was about thirty (30) meters away.^[17]

PO2 Laurel saw Cuizon approach a person and hand him money in exchange for plastic sachets. Upon seeing Cuizon scratch his head, which was the pre-arranged signal, the policemen approached to arrest “Jojo” but he was able to flee from the scene.^[18]PO3 Casas and PO2 Laurel signaled the rest of the team for assistance but all of them could not locate “Jojo.”

Meanwhile, Cuizon gave the sachets to PO3 Casas when they approached to arrest “Jojo.” PO3 Casas, in turn, gave them to the investigator, Senior Police Officer 3 Edgar Awe (SPO3 Awe). Thereafter, a request for laboratory examination was made and submitted to the Philippine National Police Crime Laboratory in Camp Sotero Cabahug, Gorordo Avenue, Cebu City.^[19] After examination, Medical Technologist Mendoza issued Chemistry Report No. D-459-2003, which stated that the two (2) plastic sachets contained methylamphetamine hydrochloride or shabu.^[20]

Version of the Defense

In contrast, Roble interposes the defenses of denial and alibi. He testified that from March 11, 2003 to June 14, 2003, he was in Babatngon, Leyte working, to avoid a frame-up by his enemy.^[21]

Specifically, on March 12, 2003 at around 2:00 p.m., he went to his cousin, Danilo Roble, to ask him to accompany him to Wantai Piggery, owned by Nicomedes Alde (Alde), where he would apply as a worker on the recommendation of his uncle, Atty. Santiago Maravilles (Atty. Maravilles).^[22] Alde told him to come back and bring his bio-data with picture and that he would start working on March 17, 2003.^[23] He worked there until May 31, 2003 and was not able to return home until June 14, 2003. ^[24] In support of his claim, he presented a Barangay Certification issued by the Barangay Captain, affidavits of Alde and Danilo Roble, vouchers sighed by Alde, and the endorsement letter of Atty. Maravilles.

Roble further testified that the poseur-buyer, Cuizon, is his enemy in Danao City. Roble’s girlfriend, Leny Tiango (Tiango), informed him that Cuizon would frame him in a buy-bust operation because Tiango is also the girlfriend of Cuizon.^[25]

Ruling of the Trial Court

After trial, the RTC found Roble guilty of the crime charged. The dispositive portion of its Decision reads:

WHEREFORE, the Court finds the prosecution to have sufficiently established the guilt of the accused beyond reasonable doubt for violating Sec. 5, Art. 11, of R.A. 9165 and, therefore, sentences him to suffer the penalty of LIFE IMPRISONMENT and pay the fine of FIVE HUNDRED THOUSAND PESOS (P500,000.00). The two (2) packets of “shabu” which are the evidence in this case shall be forfeited in favor of the government, and turn over to PDEA for disposition and destruction.

 SO ORDERED.^[26]

On appeal to the CA, Roble argued that the testimony of PO2 Laurel was replete with inconsistencies.

Ruling of the Appellate Court

On July 14, 2009, the CA affirmed the judgment of the lower court based on the time-honored doctrine that the assessment by the trial court of the credibility of the witnesses and their testimonies deserves great respect. The dispositive portion of the CA Decision reads:

WHEREFORE, premises considered, the appealed decision dated May 2, 2007 rendered by the Regional Trial Court, Branch 25, inDanao City is hereby AFFIRMED.

SO ORDERED.^[27]

Roble timely filed a notice of appeal of the decision of the CA. On October 13, 2010, he filed his supplemental brief with this Court.

The Issues

Accused-appellant assigns the following errors:

I.

The trial court erred in convicting the accused-appellant of the crime charged despite failure of the prosecution to prove his guilt beyond reasonable doubt.^[28]

II.

Both the [RTC] and the [CA] erred in relying upon the weakness of the defense of the accused, instead of the strength of the evidence of the prosecution against him, to come up with Decisions finding him guilty as charged.^[29]

III.

Corollarily, the [CA] erred in finding that the basic elements for the sale of illegal drugs are present in this case.^[30]

IV.

The [CA] erred in finding that the inconsistency in the markings appearing in the letter request and chemistry report are not material enough to cast doubt that the substance subjected for examination was indeed shabu.^[31]

V.

The [CA] erred in finding that the assessment by the trial court of the credibility of the witnesses and their testimonies deserves great respect and remaining unconvinced that the lower court overlooked any important fact or misapprehended any relevant information, which if properly weighed and considered, would negate or erode its assessment.^[32]

Our Ruling

The appeal is meritorious.

Accused-appellant argues that the trial and appellate courts erred in relying on the testimony of the prosecution witnesses. He points out several inconsistencies in the testimony of PO2 Laurel raising doubts as to its credibility. Further, he argues that the buy-bust operation was irregularly conducted resulting in a broken chain in the custody of the drugs.

We agree with accused-appellant.

It is hornbook doctrine that the evaluation of the trial court of the credibility of the witnesses and their testimonies is entitled to great weight and is generally not disturbed upon appeal. However, such rule does not apply when the trial court has overlooked, misapprehended, or misapplied any fact of weight or substance.^[33] In the instant case, circumstances are present that, when properly appreciated, would warrant the acquittal of accused-appellant.

In the crime of sale of dangerous drugs, the prosecution must be able to successfully prove the following elements: “(1) identities of the buyer and seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor.”^[34]  Similarly, it is essential that the transaction or sale be proved to have actually taken place coupled with the presentation in court of evidence of corpus delicti.^[35] Corpus delicti means the “actual commission by someone of the particular crime charged.”^[36]

In the instant case, the prosecution has failed to prove all the elements of the crime with moral certainty.

A careful perusal of the testimony of PO2 Laurel readily reveals that there is serious doubt as to the identity of the seller. In his testimony, PO2 Laurel stated that when the transaction took place at 6:30 p.m., he was inside a parked tricycle located seven (7) meters away from where the transaction took place. Significantly the transaction occurred behind a store and not along the road. Add to this the fact that it happened at dusk, making it harder to see. Considering all these, it is, therefore, highly improbable that PO2 Laurel actually saw accused-appellant. In fact, he testified that the poseur-buyer approached a “certain person” and that he onlyassumed it was accused-appellant to whom the poseur-buyer was talking, viz:

Q         It is therefore safe to say that there is a distance of ten (10) to 15 meters between you and the person approached by the poseur buyer?

A         Around seven (7) meters, mam.

Q         At the time of the approach of your poseur buyer, he was just standing there outside of the road?

A         Not at the side of the road, but behind the store.

Q         This store was beside at the National Highway?

A         Yes, mam.

Q         At that time, there was still some day light?

A         Yes, mam.

Q         Nevertheless, the day light that was available at that time was not so bright anymore?

A         No mam, but there was an electrical light in that area.

Q         You were inside the cab of the tricycle, is that correct?

A         Yes, mam.

Q         PO3 Casas was also inside the cab together with you?

A         Yes, mam.

Q         Who was on the side that was nearest the road?

A         PO3 Casas.

Q         When you saw that poseur buyer approached the subject and it was not so bright anymore, you could only see that your poseur buyer approached a man?

A         Yes, mam, the poseur buyer approached a certain person.

Q         You assumed this man that the poseur buyer approached to be the subject Jojo Roble also known as Andrew Roble?

A         Yes, mam, he was the one.

Q         You stated that you had arranged with the poseur buyer to execute a pre-arranged signal by scratching of his head upon the completion of the transaction, is that right?

A         Yes, mam.

Q         And, it was the execution by this poseur buyer of that pre-arranged signal that prompted you and Police Officer Casas to rush towards the place where the poseur buyer and the subject were standing?

A         Yes, mam.^[37] (Emphasis supplied.)

Clearly, PO2 Laurel’s testimony cannot establish with moral certainty the identity of the seller. It baffles this Court why the prosecution did not present the poseur-buyer as he would be the best person to identify the identity of the seller. No justifiable reason was submitted as to why Cuizon’s testimony could not be presented.

Even more doubtful is the identity and integrity of the dangerous drug itself.  In prosecutions for illegal sale of dangerous drugs, “[t]he existence of dangerous drugs is a condition sine qua non for conviction x x x.”^[38] Thus, it must be established that the substance bought during the buy-bust operation is the same substance offered in court. The chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.^[39]

In Malillin v. People,^[40] the Court explained the importance of the chain of custody, to wit:

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 exhibit’s 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 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.

After a thorough review of the records of the instant case, this Court has serious doubts as to the identity of the drug in question. While a buy-bust operation is legal and has been proved to be an effective method of apprehending drug peddlers, due regard to constitutional and legal safeguards must be undertaken. It is the duty of the Courts to ascertain if the operation was subject to any police abuse.^[41]

In his Supplemental Brief, accused-appellant aptly points out certain points in the evidence of the prosecution that cast uncertainty on the identity of the drug in question.

At the outset, it must be pointed out that there is confusion as to when the plastic sachet in question was turned over by the poseur-buyer to PO3 Casas. During PO2 Laurel’s direct examination, he testified that the plastic sachet was handed over by the poseur-buyer to PO3 Casas when they arrived at the police station.^[42] But, on cross-examination, his story changed. He testified that the poseur-buyer handed the plastic sachet when his team tried to approach him after he gave the pre-arranged signal, viz:

Q         It was already there at the Police Station that your poseur buyer handed the packet of shabu which he allegedly bought from the subject to your investigator?

A         There at the buy bust area, the poseur buyer delivered to Casas the plastic packet of shabu he bought from the subject.

Q         He gave that plastic sachet of shabu to Casas after you chased the accused, correct?

A         No, mam, upon approaching the poseur buyer, he handed to Casas the plastic packet of shabu, then we ran after the subject and, likewise, PO3 Casas followed us.^[43]

After receiving the plastic sachet, PO3 Casas then gave it to the investigator, SPO3 Awe. From here, the trail becomes vague once again. The testimony of PO2 Laurel up to this point talks about a single plastic sachet, but the Request for Laboratory Examination^[44] (Request) identifies not one (1) but two (2) plastic sachets. This contradictory fact was not explained in his testimony. Further, one Police Superintendent Agustin G. Lloveras, Jr. (P/Supt. Lloveras) signed the Request. P/Supt. Lloveras was never mentioned in PO2 Laurel’s testimony. It is unclear as to who he is and as to how he was able to obtain the plastic sachets. Similarly, it is uncertain as to how the plastic sachets were transferred to P/Supt. Lloveras from SPO3 Awe. Again, PO2 Laurel’s testimony is bereft of any details as to the chain of custody of the drugs at these critical points.

Furthermore, the Request also mentions that the plastic sachets were marked “ARJ 1-2.” Yet again, PO2 Laurel’s testimony is lacking as to who marked the plastic sachets and when it was done.

Moreover, the testimony of Medical Technologist Mendoza reveals certain anomalies in the handling of the plastic sachets as well. In his testimony, a certain PO3 Enriquez delivered the plastic sachets. The trail from P/Supt. Lloveras to PO3 Enriquez was also not explained by the prosecution. Further, the sachets were delivered to Medical Technologist Mendoza in an unsealed packet, viz:

Q         Mr. Witness, when you received the specimens for examination, you received them attached to accompanying letter-request and already in bigger plastic packet. Is that correct?

A         Yes, Ma’am.

Q         Now, this bigger plastic packet was not sealed.

A         No, Ma’am.

Q         Only the two (2) smaller plastic packets inside them. Is that correct?

A         No, Ma’am.^[45]

Obviously, the way the packets were delivered could make them easily susceptible to replacement or substitution. Medical Technologist Mendoza even attested that he had no knowledge as to who marked the plastic sachets since they arrived in his office already marked.

          Clearly, the evidence presented by the prosecution is insufficient to prove that the plastic sachets of shabu allegedly seized from accused-appellant are the very same objects tested by the crime laboratory and offered in court as evidence. The chain of custody of the drugs is patently broken.

Similarly, the prosecution failed to follow the requisites found in Sec. 21 of the Implementing Rules and Regulations (IRR) of RA 9165, which outlines the post-procedure in taking custody of seized drugs, viz:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(a)                The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items x x x.

Even though non-compliance with Sec. 21 of the IRR is excusable, such cannot be relied upon when there is lack of any acceptable justification for failure to do so. In People v. Lorenzo,^[46] citing People v. Sanchez,^[47] the Court explained that “this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds.”

          In the instant case, no justifiable grounds were put forth by the prosecution for the procedural lapses. In his testimony, PO2 Laurel clearly stated that no inventory was made after he and his team obtained custody of the drugs. This is a patent violation of the aforementioned section. Citing Zarraga v. People,^[48] the Court, in People v. Lorenzo, held that “the lack of inventory on the seized drugs create[s] reasonable doubt as to the identity of the corpus delicti.”^[49]

Parenthetically, no coordination with the Philippine Drug Enforcement Agency was made, in violation of Sec. 86(a) of the IRR of RA 9165.^[50]

Summing up all these circumstances, it behooves this Court not to blindingly accept the flagrantly wanting evidence of the prosecution. Undoubtedly, the prosecution failed to meet the required quantum of evidence sufficient to support a conviction, in which case, the constitutional presumption of innocence prevails. As we have held, “When moral certainty as to culpability hangs in the balance, acquittal on reasonable doubt inevitably becomes a matter of right.”^[51]

WHEREFORE, the CA Decision dated July 14, 2009 in CA-G.R. CEB CR-H.C. No. 00746 affirming the RTC’s judgment of conviction is REVERSED and SET ASIDE. Petitioner Andrew Roble is hereby ACQUITTED on ground of reasonable doubt and is accordingly ordered immediately released from custody unless he is being lawfully held for another offense.

The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED.

                                                          PRESBITERO J. VELASCO, JR.

                                                                     Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

TERESITA J. LEONARDO-DE CASTRO     MARIANO C. DEL CASTILLO

                  Associate Justice                                   Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

C E R T I F I C A T I O N

            Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

                                                                          RENATO C. CORONA

                                                                                                      Chief Justice

^[1] Rollo, pp. 3-11. Penned by Associate Justice Franchito N. Diamante and concurred in by Associate Justices Edgardo L. Delos Santos and Rodil V. Zalameda.

^[2] CA rollo, pp. 29-33.  Penned by Judge Edito Y. Enemecio.

^[3] Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.

If the sale, trading, administration, dispensation, delivery, distribution or transportation of any dangerous drug and/or controlled precursor and essential chemical transpires within one hundred (100) meters from the school, the maximum penalty shall be imposed in every case.

For drug pushers who use minors or mentally incapacitated individuals as runners, couriers and messengers, or in any other capacity directly connected to the dangerous drugs and/or controlled precursors and essential chemical trade, the maximum penalty shall be imposed in every case.

If the victim of the offense is a minor or a mentally incapacitated individual, or should a dangerous drug and/or a controlled precursor and essential chemical involved in any offense herein provided be the proximate cause of death of a victim thereof, the maximum penalty provided for under this Section shall be imposed.

The maximum penalty provided for under this Section shall be imposed upon any person who organizes, manages or acts as a “financier” of any of the illegal activities prescribed in this Section.

The penalty of twelve (12) years and one (1) day to twenty (20) years of imprisonment and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person, who acts as a “protector/coddler” of any violator of the provisions under this Section.

^[4] Records, p. 1.

^[5] Id. at 7.

^[6] Id. at 9.

^[7] Id. at 12-13.

^[8] Id. at 15.

^[9] Id. at 17.

^[10] Id. at 19.

^[11] Id. at 128-129.

^[12] Id. at 135.

^[13] TSN, February 21, 2005, p. 4.

^[14] TSN, August 24, 2004, p. 5.

^[15] Records, p. 2.

^[16] TSN, March 7, 2005, pp. 5-7.

^[17] Id. at 5-6.

^[18] TSN, August 24, 2004, p. 6.

^[19] Records, p. 6.

^[20] Id. at 195.

^[21] TSN, March 29, 2005, p. 5.

^[22] Id. at 5-6.

^[23] TSN, July 20, 2005, p. 3.

^[24] Id. at 4.

^[25] Id. at 13.

^[26] Records, pp. 231-232.

^[27] Rollo, pp. 10-11.

^[28] CA rollo, p. 20.

^[29] Rollo, p. 57.

^[30] Id.

^[31] Id. at 68.

^[32] Id. at 69.

^[33] People v. Casimiro, G.R. No. 146277, June 20, 2002, 383 SCRA 390, 398; citations omitted.

^[34] People v. Lorenzo, G.R. No. 184760, April 23, 2010, 619 SCRA 389, 400; People v. Ong, G.R. No. 175940, February 6, 2008, 544 SCRA 123, 132.

^[35] Cruz v. People, G.R. No. 164580, February 6, 2009, 578 SCRA 147, 152-153.

^[36] People v. Dela Rosa, G.R. No. 185166, January 26, 2011; People v. Baga, G.R. No. 189844, November 15, 2010.

^[37] TSN, March 7, 2005, pp. 6-7.

^[38] People v. Robles, G.R. No. 177220, April 24, 2009, 586 SCRA 647, 654.

^[39] Malillin v. People, G.R. No. 172953, April 30, 2008, 553 SCRA 619, 632.

^[40] Id. at 631-634.

^[41] People v. Baga, supra note 35; citing People v. Herrera, G.R. No. 93728, August 21, 1995, 247 SCRA 433, 439; People v. Tadepa, G.R. No. 100354, May 26, 1995, 244 SCRA 339, 341.

^[42] TSN, August 24, 2004, p. 7:

                Q             After observing that the accused had ran away, what did you and your group do?

A             We chased him, but unfortunately, we did not catch him. We even looked for him, but we were not able to find him, we then went back to the station and our poseur buyer handed the shabu to PO3 Casas.

^[43] TSN, March 7, 2005, pp. 6-7.

^[44] Records, p. 6.

^[45] TSN, February 7, 2005, pp. 14-15.

^[46] Supra note 33, at 402.

^[47] G.R. No. 175832, October 15, 2008, 569 SCRA 194.

^[48] G.R. No. 162064, March 14, 2006, 484 SCRA 639, 647-650.

^[49] Supra note 33, at 404.

^[50] IRR of RA 9165, Sec. 86(a) Relationship/Coordination between PDEA and Other Agencies.––The PDEA shall be the lead agency in the enforcement of the Act while the PNP, the NBI and other law enforcement agencies shall continue to conduct anti-drug operations in support of PDEA: Provided, that the said agencies shall, as far as practicable, coordinate with the PDEA prior to anti-drug operations; Provided, further, that, in any case, said agencies shall inform the PDEA of their anti-drug operations within twenty-four (24) hours from the time of actual custody of the suspects or seizure of said drugs and substances, and shall regularly update the PDEA on the status of the cases involving the said anti-drug operations.

^[51] Malillin v. People, supra note 38, at 639.