Saturday, September 15, 2007 Woman wins despite ‘picture-perfect’ operation By Karlon N. Rama Sun.Star Staff Reporter
THE Court of Appeals has acquitted a woman of drug trafficking charges and reversed a 2005 ruling that sentenced her to a 20- to 40-year jail term with a half-million-peso fine.
Regional Trial Court (RTC) Judge Fortunato de Gracia, in his May 2005 decision, praised the buy-bust that led to Carenia Mucsan’s arrest and described it as “picture-perfect.”
The arrest was carried out on March 25, 2002 by the now defunct Cebu City Police Office Vice Control Section (VCS).
But what was “picture-perfect” for Judge de Gracia was a poor image of police work for the associate justices of the Court of Appeals (CA) 20th Division—that it led the Office of the Solicitor General (OSG) to move for the acquittal.
The solicitor-general’s office is supposed to represent the State in the appeals process.
According to the OSG, the proof is so sketchy that it is difficult to believe a buy-bust took place.
The CA noted that the OSG “did not hesitate to recommend the acquittal of Mucsan, to which we fully concur as its recommendation is anchored on what appears on record and (the) evidence at hand.”
Trafficking
Associate Justices Agustin Dizon, Francisco Acosta and Stephen Cruz commended the OSG team, composed of Assistant Solicitors Amparo Cabotaje-Tang, Rex Bernardo Pascual and Maris Mercedes Maglaya, all based in Manila.
In his ruling, de Gracia convicted Mucsan of trafficking over 200 grams of shabu.
She was arrested last March 25, 2002 after a buy-bust inside a subdivision in Barangay Guadalupe. According to the VCS, Mucsan was a high-level player who got her supply from a source in Mindanao and then hid it in a safehouse in Toledo City, far from her residence in Mandaue City.
The prosecution’s case before de Gracia consisted of the testimony of police officers Dale Efe and Milo Arriola.
Efe said the arrest followed a surveillance operation by another team who, with the assistance of a confidential agent, brokered a sale amounting to P300,000.
The arrest was then planned and carried out with Arriola as buyer.
Signal
Arriola claimed he and the confidential agent boarded a taxi to meet Mucsan, who was also on board a taxicab, in Guadalupe.
When both cars were in position, Arriola said he stepped out of the cab and showed an envelope containing a wad of bill-sized paper sandwiched between two real P100 bills.
At the same time, he said, Mucsan stepped out of her vehicle and took out two packs of shabu (placed inside two socks) from a denim bag.
Arriola narrated that he took off the baseball cap he was wearing, which was the pre-agreed signal for his back-up to grab Mucsan.
“Presented to the court is a picture-perfect buy-bust that culminated in the arrest of the subject of the well-lanned entrapment,” de Gracia had declared.
In the appeals, the OSG submitted a “counterstatement of facts and argument.”
The OSG found that Mucsan was in Guadalupe to hand over a sketch plan to one Engr. Carina Villasor, whom she allegedly worked with at a construction company as the purchasing officer.
Threatened?
She said she was on her way to Villasor’s house when three armed men stopped the cab she was riding and pulled her out.
She claimed she was shoved inside another vehicle and told to hand over P250,000 or be charged with peddling drugs.
She refused. As a result, she said, she was taken to the police headquarters in Camp Sotero Cabahug. She was charged in court with a non-bailable offense but managed to convince the court to allow her to post bail, set at P300,000.
The OSG argued that the prosecution failed to establish the elements of the crime, primarily the identity of the buyer and the seller, and maintained that other than Arriola, nobody else saw the actual transaction take place.
Likewise, Arriola admitted during his cross-examination that he did not give Mucsan the money supposedly in exchange for the shabu she was allegedly peddling.
“The delivery of the contraband to the poseur-buyer and the receipt of the marked money consummate the buy-bust transaction between the entrapping officers and the accused. Clearly, no illegal sale of prohibited drugs ever occurred,” the OSG argued.
Lapses
The OSG also argued that the evidence presented did not support the presumption of regularity in the performance of official duties of the police officers.
“There was no proper surveillance conducted against accused-appellant, no test-buy, no marked buy-bust money, no record of the alleged operation in the blotter book, and the informant was never presented. Moreover, even the testimonies of the police officers as to minor details were diametrically conflicting to be given credence,” the OSG noted.
Arriola, in his testimony before de Gracia, had said a three-week surveillance was conducted before the arrest. However, he admitted that he had no information about Mucsan prior to her arrest and that he never saw her before.
Efe, for his part, testified that he was in a Mazda sedan when the arrest was carried out. None of the three cars mentioned by Arriol was a Mazda.
They also couldn’t agree on who made the markings on the bag containing the evidence. Efe said it was he who made the markings but PO2 Marvin Martinez, one of those who served as backup, said it was the investigator, a certain SPO3 Gabijan.
“The foregoing facts and arguments presented by the Office of the Solicitor General cannot but overthrow the trial court’s finding of facts and dispositive conclusion,” the CA decision read. (KNR)
