2 MILR 233

IN THE SUPREME COURT
REPUBLIC OF THE MARSHALL ISLANDS

S.Ct. CIVIL NO. 01-03
(High Ct. Crim. No. 2000-074)

REPUBLIC OF THE MARSHALL ISLANDS,
Respondent-Appellee,

-v-

MIRIAM DE BRUM,
Defendant-Appellant.

ORDER VACATING JUDGMENT AND SETTING ASIDE OPINION FILED ON DECEMBER 27, 2002

JULY 14, 2003

FIELDS, C.J.

SUMMARY:

The Chief Justice of the Supreme Court sitting alone vacated an earlier Supreme Court decision affirming the High Court's conviction of the defendant. The Chief Justice vacated the pervious decision because the Republic had failed to prove that the defendant had received the money she allegedly failed to pay taxes upon.

DIGEST:

1. CRIMINAL LAW AND PROCEDURE - Convictions - Double Jeopardy: Due to the concept of "double jeopardy" the defendant cannot be retried because of the error in the prosecution's case, in failing to present all the necessary evidence, unless a conviction after trial has been reversed on the Defendant's appeal.

2. CRIMINAL LAW AND PROCEDURE – Crimes – Elements - Receipt of a Check: Receipt of a check is not the equivalent to receiving money. A check is merely an offer to pay the amount when it is tendered for payment.

OPINION BY FIELDS, C.J.

On August 31, 2000, a criminal information was filed by Assistant Attorney General John P. Young alleging that the defendant, Miriam De Brum, failed to file a return showing "all such gross revenue received." The information contained four separate counts. On September 19, 2000, defendant was arraigned and was represented by Ms. Beero, Chief Public Defender. Ms. Beero waived a preliminary hearing and stipulated to probable cause on February 12, 2001.

On June 12 and 13, 2001, defendant was tried in the High Court before Chief Justice Charles Henry. Assistant Public Defender Daniel D. Goundar represented the defendant and John P. Young, Assistant Attorney General, represented the Republic, during the trial. Defendant was found guilty of all four counts following a court trial before Judge Henry. The formal judgment was prepared by the assistant attorney general and signed by him on June 1, 2001, and subsequently signed by defense counsel and Judge Henry on June 15, 2001, and filed with the court on that same day.

Defendant filed the notice of appeal and filed her opening brief on March 25, 2002. Thereafter the assistant attorney general filed his brief in response to defendant's brief. Counsel for the defendant did not file a reply brief. On June 19, 2002, both the Office of the Attorney General and defense counsel signed and filed with the court a stipulation that the appeal be decided on the briefs filed by both parties without an argument before the Supreme Court. The Supreme Court on November 20, 2002, at its next regularly scheduled session ordered the matter submitted without oral argument.

[1] In the Republic of the Marshall Islands, a democratic government, the basic concept in any and all criminal prosecutions is that the defendant is presumed innocent (Coast., Art. II, Sec. 4(2)) and cannot be forced to testify against themselves in a court of law. (Coast., Art. II, Sec. 4(7)). Furthermore the prosecution must prove the guilt of the defendant beyond a reasonable doubt. (Coast., Art. II, Sec 4(2)). Failure to prove the guilt means that a defendant must be found not guilty and the criminal charges must be dismissed. Due to the concept of "double jeopardy" the defendant cannot be retried because of the error in the prosecution's case, in failing to present all the necessary evidence, unless a conviction after trial has been reversed on the defendant's appeal. (Coast., Art. II, Sec. 4(9)).

[2] In this prosecution, the thrust of the prohibited action is in receiving money and not declaring it on the appropriate forms and paying taxes on the amount received. It appears that the attorney general in this matter presented evidence that checks were given to the defendant and that she failed to report the income and pay taxes on those amounts. Receipt of a check is not the equivalent to receiving money. A check is merely an offer to pay the amount when it is tendered for payment. Therefore it appears that the attorney general failed to prove that the check was actually presented for payment and that she received money as a result.

Since it has been brought to the Court's attention, after the opinion was filed that a very serious injustice may have occurred with the conviction of the defendant, the Court must insure that justice prevails in all criminal matters even when the attorney has failed to raise the issue on appeal. The Court cannot let stand a conviction knowing it was rendered erroneously either by the judge or through ineffective counsel, or both. While the attorney should bring this matter to the attention of the Court, in this case the public defender would have a conflict in continuing to represent the defendant because the injustice was a result of the failure of the defense counsel in raising the issue in the course of the appeal. The counsel for the defense raised four points in his brief in support of the appeal. The issue of lack of evidence was not one of them. In the absence of a writ being filed, this Court on its own motion will and hereby orders that the opinion filed in this case on December 27, 2002, be VACATED and the opinion is WITHDRAWN.

This action by the Court is akin to a writ of Habeas Corpus or a common law writ of Coram Nobis being filed, and is not a reversal because of defense counsel's appeal. To the contrary it is in spite of his appeal. As a result, the Republic cannot retry this case because of the prohibition of double jeopardy. (Coast. Art. II, Sec. 4(9)).

The Court hereby orders that the attorney general and the defendant either pro per, or with an attorney of her choice, review the transcript of the proceeding is this case, in order to determine whether a stipulation can be reached to resolve this issue. The defendant has a right to defend herself in person or through legal assistance of her own choice and in the event she lacks funds to procure such assistance she has the right to receive counsel free, if the interest of justice so require. In the event that a stipulation cannot be reached resolving this matter then the parties are ordered to file briefs on this issue and set the matter for further proceedings before the Supreme Court, at the next scheduled session.

IT IS SO ORDERED.