State v. Pendleton, 978 N.W.2d 641

Background

In May 2020 in Grand Forks, deputies attempting to serve eviction papers encountered Salamah Pendleton, who barricaded in a bedroom and fired a rifle; one shot killed his mother, later he fatally shot Officer Holte and injured Corporal Nord.
Pendleton was tried by jury in 2021 on multiple counts: two counts of murder, three counts of attempted murder, terrorizing, reckless endangerment, criminal mischief, and possession with intent to deliver marijuana. The jury acquitted him on one attempted murder count and criminal mischief, and convicted on the remaining counts.
Pendleton appealed, raising multiple claims: public-trial violations from off-the-record conferences, absence from portions of voir dire and verdict review, conviction on a non-cognizable "attempted knowing murder" charge, juror misconduct (one juror reading another juror’s notes), and that a statutory amendment reduced the marijuana offense from a Class B to Class C felony and should apply.
The trial included several in-chambers or off-the-record administrative conferences (logistics, jury numbering, exhibit numbering, peremptory procedure), and a brief off-the-record review of verdict forms; one juror was excused for a family death and the court admonished the jury after learning one juror had viewed another juror’s notes.
The marijuana statute was amended and made effective May 3, 2021 (reducing penalty from Class B to C) before Pendleton’s July 2021 conviction and sentencing.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Pendleton)	Held
Public-trial right violated by in-chambers/off‑the‑record conferences	Conferences were routine administrative/logistical matters and did not close the courtroom	Off‑the‑record and in‑chambers discussions excluded the public and violated the Sixth Amendment	No closure implicated public‑trial right; conferences were administrative and did not violate public‑trial right
Right to be physically present for voir dire and verdict review	Defendant’s presence was not required for ministerial/legal‑question conferences	Absence from voir dire segments and initial verdict review violated Rule 43 and the constitutional right to be present	No plain error; absences were for ministerial/administrative matters or harmless beyond a reasonable doubt
Conviction charged as "attempted knowing murder" (non‑cognizable)	Final jury instructions required intentional attempt; cured any charging language issues	Charging/instruction language included "knowingly," which is not a cognizable attempted murder mens rea	Instructions as a whole required intentional attempt; attempted murder convictions affirmed
Juror misconduct (juror read another juror’s notes)	Court promptly addressed and admonished jury; misconduct minor	Misconduct undermined impartial jury/right to confrontation	No obvious error; isolated incident, admonition, and ample evidence meant no serious injustice
Application of ameliorating marijuana‑penalty amendment	New law effective before conviction/sentencing; ameliorative change should apply	Applying amendment retroactively is barred unless Legislature expressly provided retroactivity	Court reversed as to Count 9 and remanded for resentencing as Class C felony under ameliorating‑law exception

Key Cases Cited

State v. Martinez, 956 N.W.2d 772 (N.D. 2021) (standard and threshold for public‑trial claim and preservation)
State v. Morales, 932 N.W.2d 106 (N.D. 2019) (bench conferences, record availability, and public‑trial analysis)
State v. Pulkrabek, 975 N.W.2d 572 (N.D. 2022) (distinguishing pretrial in‑chambers discussions that implicated substantive issues)
State v. Smith, 876 N.W.2d 310 (Minn. 2016) (administrative bench conferences ordinarily do not implicate public‑trial right)
U.S. v. Norris, 780 F.2d 1207 (5th Cir. 1986) (public trial objectives and bench conferences)
City of Mandan v. Baer, 578 N.W.2d 559 (N.D. 1998) (absence at juror excusal and prejudice analysis)
Pemberton v. State, 959 N.W.2d 891 (N.D. 2021) (attempted "knowing" murder is non‑cognizable)
State v. Borner, 836 N.W.2d 383 (N.D. 2013) (court may correct convictions for non‑cognizable offenses to protect integrity)
State v. Cummings, 386 N.W.2d 468 (N.D. 1986) (ameliorative penal amendments should apply when effective before sentencing)
State v. Flatt, 733 N.W.2d 608 (N.D. 2007) (application of ameliorative penal amendment exception)