959 N.W.2d 891
N.D.2021Background
- In 2018 Pemberton was charged with multiple offenses, including attempted murder; the information was amended one week before trial to allege he "attempted to intentionally or knowingly cause the death of another human being."
- Jury instructions defined both "intentionally" (purpose) and "knowingly" (aware or firmly believe, whether or not it is his purpose), and did not require the jury to specify which mental state it found.
- Trial evidence included repeated stabbing with a screwdriver, strangulation, the victim saying "you’re killing me" and Pemberton replying "Good," and wounds the treating doctor described as numerous stab injuries.
- The jury convicted Pemberton of attempted murder and other counts; this Court affirmed the convictions on direct appeal.
- On postconviction review Pemberton argued the attempted "knowing" murder theory is a non-cognizable offense and that counsel was ineffective for not preserving or objecting to related errors; the district court denied relief.
- The Supreme Court reversed, holding attempted "knowing" murder is non-cognizable and the erroneous jury instruction was not shown harmless beyond a reasonable doubt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "attempted knowingly murder" is a cognizable offense | Pemberton: "knowingly" murder does not require intent to kill, so it cannot underlie an attempt charge | State: The amended charge alleging "intentionally or knowingly" was permissible; Dominguez didn't foreclose a knowing/intent finding | Held: Attempted "knowing" murder is non-cognizable because attempt requires intent to complete the underlying crime (intent to kill) |
| Whether the jury instruction permitting conviction on "intentionally or knowingly" basis was harmless error | Pemberton: Instruction allowed conviction without jury finding intent to kill, so error was not harmless | State: Did not meaningfully argue harmlessness at postconviction | Held: Error not shown harmless beyond a reasonable doubt; reversal required because we cannot know the jury found intent to kill |
| Whether ineffective assistance claims revive issues from direct appeal | Pemberton: Counsel failed to preserve and object to the non-cognizable theory and other errors | State: Issues were raised on direct appeal and affirmed | Held: Many ineffective-assistance claims are barred by res judicata because they were litigated on direct appeal |
| Standard and review posture for harmless-error inquiry | Pemberton: relief appropriate because conviction may be for non-criminal conduct | State: pointed to evidence of intent but did not carry burden on harmlessness | Held: State bears burden; where it fails to show harmlessness, court must reverse; consideration must focus on effect on this jury, not hypothetical juries |
Key Cases Cited
- Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (attempt requires intent to complete underlying crime; attempted murder requires intent to kill)
- State v. Swanson, 930 N.W.2d 645 (N.D. 2019) (conspiracy to "knowingly" commit murder is non-cognizable because "knowingly" need not include purpose to kill)
- Sullivan v. Louisiana, 508 U.S. 275 (U.S. 1993) (error as to an element of the offense requires analysis whether the verdict was surely unattributable to the error)
- Pemberton v. State, 930 N.W.2d 125 (N.D. 2019) (prior direct-appeal decision addressing the trial record and issues later raised in postconviction)
- Carella v. California, 491 U.S. 263 (U.S. 1989) (appellate courts may not substitute judges’ factfinding for the jury where jury instructions eliminated an essential element)