930 N.W.2d 125
N.D.2019Background
- On Feb 22–23, 2018, Pemberton and his girlfriend had a physical altercation during which the girlfriend called 911; a screwdriver was used and Pemberton was arrested.
- Initially charged with aggravated assault, interference with an emergency call, and felonious restraint; the State later added attempted murder and child neglect charges.
- The original attempted-murder allegation tracked N.D.C.C. § 12.1-16-01(1)(b) (extreme-indifference murder language).
- One week before trial the State moved to amend the attempted-murder allegation to allege attempting to intentionally or knowingly cause death (§ 12.1-16-01(1)(a)); the district court allowed the amendment.
- Pemberton was convicted by a jury of five counts; on appeal he raised challenges to the preliminary probable-cause finding, the late amendment, jury instructions, verdict form wording, and jury admonishments — all reviewed for obvious (plain) error because no objections were made at trial.
Issues
| Issue | State's Argument | Pemberton's Argument | Held |
|---|---|---|---|
| Probable-cause finding at preliminary hearing for original attempted-murder charge | Preliminary hearing finding is moot after trial verdict | Finding probable cause for a non-cognizable offense (Dominguez) was error | Moot; not reviewed because trial verdict renders preliminary finding non-reviewable |
| Amendment of attempted-murder information one week before trial | Amendment was permissible under N.D.R.Crim.P. 7(e) because it did not add new facts; no prejudice shown | Amendment changed the elements to a different offense and thus violated Rule 7(e) and prejudiced defense | District court abused discretion in allowing amendment (it charged a different offense), but Pemberton failed to show obvious error affecting substantial rights, so conviction stands |
| Jury instructions referencing full murder statute (including extreme-indifference definitions) | Instructions read as a whole correctly limited attempted-murder to intentional/knowing variant; no confusion | Preliminary instructions listing full murder statute could have led jury to convict under non-cognizable definitions | No obvious error: later instructions and Count I language correctly and adequately instructed jury on the charged attempted-murder theory |
| Verdict form wording referencing the criminal complaint (which pleaded non-cognizable variant) | Jurors never saw the complaint; amended information and instructions governed the jury's deliberations | Reference to the complaint could have misled jury to convict on non-cognizable theory | No obvious error: no record evidence jury relied on the original complaint; Pemberton failed to show prejudice |
| Jury admonishments at breaks (N.D.C.C. § 29-21-28) | Court gave preliminary full admonition and short-form admonitions before breaks; lack of formal wording is harmless absent objection | Repeated failures to give statutory admonishment prejudiced defendant | No obvious error: failure to object waives claim; short-form admonitions are not prejudicial without showing harm |
Key Cases Cited
- Dominguez v. State, 840 N.W.2d 596 (N.D. 2013) (holding attempted murder using extreme-indifference murder definition is not a cognizable offense)
- Montplaisir v. State, 869 N.W.2d 435 (N.D. 2015) (preliminary-hearing probable-cause findings are moot after trial)
- Carlson v. State, 881 N.W.2d 649 (N.D. 2016) (district court’s amendment of information reviewed for abuse of discretion)
- Wangstad v. State, 917 N.W.2d 515 (N.D. 2018) (standard for plain/obvious error review described)
- Pavlicek v. State, 819 N.W.2d 521 (N.D. 2012) (instructions must correctly and adequately inform jury of law)