State v. Pendleton

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 4, 2022
STATE OF NORTH DAKOTA

IN THE SUPREME COURT
STATE OF NORTH DAKOTA

2022 ND 149

State of North Dakota, Plaintiff and Appellee
v.
Salamah Qareed Pendleton, Defendant and Appellant

No. 20210287

Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Opinion of the Court by Tufte, Justice.

Ashlei A. Neufeld (argued) and Carmell F. Mattison (on brief), Assistant
State’s Attorneys, and Samantha Schmidt (appeared), under the Rule on
Limited Practice of Law by Law Students, Grand Forks, N.D., for plaintiff and
appellee.

Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.
 State v. Pendleton
No. 20210287

Tufte, Justice.

[¶1] Salamah Pendleton appeals from a criminal judgment after a jury found
him guilty of two counts of murder, two counts of attempted murder,
terrorizing, reckless endangerment, and possession with intent to deliver
marijuana. Pendleton argues: (1) his constitutional right to a public trial was
violated, (2) his right to be physically present at trial was violated, (3) he was
convicted of a non-cognizable offense, (4) juror misconduct occurred that
violated his right to confrontation and an impartial jury, and (5) the court erred
by not applying the ameliorating legislation of N.D.C.C. § 19.03.1-23, reducing
possession with intent to deliver marijuana to a Class C felony. We affirm the
judgment in part and reverse and remand in part.

I

[¶2] In 2020, two deputies attempted to serve eviction paperwork and remove
Pendleton and his mother from an apartment unit in Grand Forks. Upon the
deputies’ entry into the apartment, Pendleton ran into the back bedroom and
barricaded himself inside. After he refused to come out of the bedroom, the
deputies broke open the door. Pendleton began firing multiple rounds at the
deputies with a rifle. One of those shots fired by Pendleton fatally struck his
mother, who was inside the apartment. The gunfire briefly stopped and two
additional officers responded to the scene to assist the deputies. Pendleton
eventually opened fire on the officers again for a second time. It was during
this exchange that Pendleton shot and killed Officer Holte and injured
Corporal Nord.

[¶3] A jury trial was held in 2021. The jury acquitted Pendleton on one count
of attempted murder and criminal mischief but found him guilty on the
remaining counts. He appeals the criminal judgment to this Court.

II

[¶4] Pendleton argues his right to a public trial was violated because various
conferences regarding voir dire, jury selection, and trial matters were not

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conducted in an open courtroom. The de novo standard of review applies to
whether facts rise to the level of a public trial violation. State v. Martinez, 2021
ND 42, ¶ 19, 956 N.W.2d 772. “When considering on appeal a defendant’s claim
that his right to a public trial was violated, we first consider whether the claim
of error was preserved at trial. We then consider the threshold question of
whether there was a closure implicating the public trial right.” Id. at ¶ 3
(citations omitted). If we determine there was a closure, “we determine
whether the trial court made pre-closure Waller findings sufficient to justify
the closure.” Id.

A

[¶5] First, Pendleton does not argue he preserved the public trial issue with
a timely objection at the trial. Therefore, we review only for obvious error. State
v. Morales, 2019 ND 206, ¶ 24, 932 N.W.2d 106. “To establish obvious error,
the defendant must demonstrate (1) an error, (2) that was plain, and (3)
affected his substantial rights.” Id. “To constitute obvious error, the error must
be a clear deviation from an applicable legal rule under current law.” Id. If
obvious error is established by the defendant, this Court has discretion to
correct the error “and should correct it if it ‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id.

B

[¶6] Second, we move to the threshold question of whether there was a closure
implicating the public trial right. “We have said that brief sidebars or bench
conferences conducted during trial to address routine evidentiary or
administrative issues outside the hearing of the jury ordinarily will not
implicate the public trial right.” Martinez, 2021 ND 42, ¶ 20. “Contrary to what
the ‘administrative’ label suggests, such proceedings are not limited to purely
administrative procedures before the court, such as scheduling.” State v.
Smith, 876 N.W.2d 310, 329 (Minn. 2016) (cited to favorably in Martinez, 2021
ND 42 and Morales, 2019 ND 206). For example, routine evidentiary rulings,
objection rulings, or “[m]atters traditionally addressed during private bench
conferences or conferences in chambers generally are not closures implicating
the Sixth Amendment.” Martinez, 2021 ND 42, ¶ 20. Additionally, “[n]on-public

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exchanges between counsel and the court on such technical legal issues and
routine administrative problems do not hinder the objectives which the Court
in Waller observed were fostered by public trials.” Smith, 876 N.W.2d at 329
(quoting U.S. v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986)). Therefore,
because administrative exchanges “ordinarily relate to the application of legal
principles to admitted or assumed facts so that no fact finding function is
implicated,” the public trial right is not implicated for these types of exchanges.
Smith, at 329.

[¶7] The conferences Pendleton takes issue with are the following: (1) in-
chambers discussions with the attorneys prior to the start of trial regarding
logistics of trial, including COVID precautions and spacing, courtroom set-up,
and capacity limitations; (2) an in-chambers meeting, occurring off the record,
discussing the methods by which peremptory challenges and juror alternates
would be exercised; (3) the court’s dismissal of a juror that occurred off the
record, but in open court; (4) in-chambers discussions, occurring off the record,
discussing how the jurors would be numbered once selected; (5) an off-the-
record discussion with the judge, parties, and clerk in the hallway to verify the
jury selection charts were accurately filled out; (6) an in-chambers meeting,
occurring off the record, after the State rested “to discuss where we’re going to
head on Monday” and the parties meeting in the jury deliberation room to
determine placement of exhibits; (7) an off-the-record discussion at the bench
with the parties discussing the numbering of exhibits; and (8) an on-the-record
discussion with the judge, attorneys, and clerk outside the courtroom to review
the jury verdicts for accuracy and to provide direction to the clerk reading the
verdicts.

[¶8] The conferences Pendleton takes issue with involved discussions about
routine administrative and housekeeping matters. Unlike the pretrial
conference held in chambers in State v. Pulkrabek, the challenged discussions
in this case were limited to trial logistics, such as addressing the methods and
procedures the parties would follow during the trial. 2022 ND 128, ¶¶ 2, 11–
12, 975 N.W.2d 572 (concluding that an in-chambers meeting between the
court and the parties was not a brief sidebar or bench conference because,
unlike the facts of this case, there the court discussed a video recording and

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possible evidentiary stipulations, jury instructions, and the defendant’s
request for his attorney to withdraw as well as the court’s denial of that motion
in chambers). In contrast, many of the discussions challenged here were held
at the conclusion of the day to ensure the proceedings would flow efficiently
the next day or to confirm the parties and the court had a shared
understanding. Additionally, three of the challenged conversations were
conducted to ensure accuracy and to verify forms were filled out correctly. Such
exchanges do not hinder the objectives which the Court in Waller observed
were fostered by public trials.

[¶9] Pendleton also argues that the parties exercised peremptory challenges
off the record. The record does not support this assertion. Instead, the record
reflects that the court requested the parties meet “in chambers off the record”
to “figure out” if the parties “want to [exercise peremptories] by the rule or
whether you want to exercise them on the—all 36 at one time.” Such a
discussion is administrative in that it addresses logistical and procedural
matters. Therefore, we conclude that the challenged conferences involved
discussion of routine administrative issues between counsel and the court,
which do not implicate the potential abuses a public trial is designed to protect
against.

[¶10] Further, unlike the circumstances in Martinez, 2021 ND 42, ¶¶ 37, 42,
or Morales, 2019 ND 206, ¶¶ 24, 27, at no time did the court close the courtroom
or ask members of the public to leave before any matters were discussed.
Instead, the discussion regarding numbering of exhibits occurred at the bench
in open court in view of the public. The content of the discussion was described
by the court before it began, and the substance of the discussion was
immediately summarized by the court on the record at its conclusion. This
discussion was purely administrative in substance and did not constitute a
closure implicating the public trial right. See Morales, 2019 ND 206, ¶ 17
(“Where a bench conference is held in view of both the public and the jury,
despite their inability to hear what is said, the public trial right is satisfied by
prompt availability of a record of those proceedings.”). Similarly, while the
initial review of the jury verdicts to verify the jury had checked the correct
boxes did not occur in open court, the discussion was transcribed for the record.

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See id. (“We have held that bench and chambers conferences may occur, so long
as a record is made and the record is available to the press and the public.”).
Lastly, the court’s dismissal of Juror 61, while not on the record, occurred in
open court. Prior to the afternoon recess where the jury panel was dismissed
for the day, “juror number 61 approached the court with the attorneys present
and indicated she had a dying family member and I excused her.” The court
asked the parties if they had any objection, to which defense counsel
responded, “Certainly not.” When the court immediately summarizes a
discussion held in open court that was not captured on the record and both
parties have a chance to object to the accuracy of the summary or supplement
the record as to the off-the-record events, the public trial right is satisfied.
Therefore, while we remain mindful that the “use of ‘off the record’
discussion[s] . . . [are] disapproved of,” State v. Schlittenhardt, 147 N.W.2d 118,
125 (N.D. 1966), the challenged conferences here were not closures implicating
the public trial right.

III

[¶11] Pendleton next argues substantive portions of voir dire and the initial
review of the jury’s verdicts were conducted outside his presence. Because
Pendleton failed to preserve this issue at trial, we again review only for obvious
error.

[¶12] A defendant has a right to be present in the courtroom at every stage of
trial. N.D. Const. art I, § 12; N.D.R.Crim.P. 43(a)(1)(B). However, the rule
permits the court to proceed without the defendant present if “[t]he proceeding
involves only a conference or hearing on a question of law.” N.D.R.Crim.P.
43(b)(3). Because the right to be present at trial is a constitutional right, “the
State must establish a violation of the defendant’s right to be present was
‘harmless beyond a reasonable doubt.’” See State v. Curtis, 2009 ND 34, ¶ 28,
763 N.W.2d 443. If it would be unreasonable to conclude the defendant’s
absence had any effect on the proceedings or the result, such an error is
harmless and does not warrant a reversal. Id. at ¶ 31. (citing State v.
Zimmerman, 524 N.W.2d 111, 117 (N.D. 1994)).

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[¶13] Pendleton’s presence was not required at the portions of the trial he
complains of on appeal. As indicated above, the conferences he takes issue with
involved discussions about routine administrative matters. The in-chamber
conferences and sidebars that occurred outside of the defendant’s presence did
not involve resolution of disputed facts, but instead involved logistical,
procedural, and housekeeping matters. Furthermore, Pendleton’s presence
was also not required at the initial review of the jury verdict forms. As the
record demonstrates, this conference with the judge, attorneys, and clerk was
conducted to ensure the jury verdict was accurately filled out and to provide
direction to the clerk in reading the verdicts. Because this was a ministerial
matter, his presence was not required. The record demonstrates that after this
brief conference concluded, the court returned the verdict in the courtroom, in
the defendant’s presence.

[¶14] Additionally, regarding the dismissal of Juror 61, the record is unclear
whether the defendant was present when the court excused the juror. The
record indicates that the attorneys were present when Juror 61 approached
the court and indicated she had a dying family member; however, the record
does not mention whether the defendant was also present. However, even if
the defendant was not present for the juror’s dismissal, the circumstances
found in City of Mandan v. Baer, 1998 ND 101, 578 N.W.2d 559, are not present
in this case to warrant a reversal. In Baer, this Court reversed a criminal
conviction where the defendant and his counsel were absent when the court
excused a prospective juror during jury selection. Id. at ¶¶ 8, 13. In dismissing
the juror, the court did so under a mistaken view of the law that convicted
felons were disqualified from serving on a jury. Id. at ¶ 14. Lastly, defense
counsel objected to the court’s dismissal, indicating the defense wished to see
that juror remain on the panel. Id. at ¶ 4. Here, unlike Baer, Juror 61 was not
dismissed because of an erroneous view of the law. Instead, the court excused
Juror 61 after she asked to care for a dying family member. Also, defense
counsel did not object to her excusal once the court went back on the record.
Therefore, unlike Baer, there is no indication the defense wanted Juror 61 to
remain on the panel. Although jury selection is a stage of the trial requiring
Pendleton’s presence, assuming he was absent during Juror 61’s dismissal, it
did not have any effect on the proceedings or the result. Assuming Pendleton

6
was absent during the juror’s dismissal, we discern no possibility of prejudice
to the outcome of this case, and we therefore conclude any error was harmless
beyond a reasonable doubt.

IV

[¶15] Pendleton also argues he was charged with a non-cognizable offense,
attempted knowing murder. Pendleton failed to preserve this issue at the trial.
On appeal, he argues this was an obvious error requiring reversal.

[¶16] Attempted “knowing” murder is a non-cognizable offense. Pemberton v.
State, 2021 ND 85, ¶ 13, 959 N.W.2d 891. Further, this Court has emphasized
that it “cannot imagine a greater error affecting a defendant’s substantial
rights than when a defendant is convicted of conduct that is not a criminal
offense under our law.” State v. Borner, 2013 ND 141, ¶ 25, 836 N.W.2d 383.
Because “[t]he failure to exercise our discretion in [a] case [where the
defendant is convicted of a non-cognizable offense] would seriously affect the
fairness, integrity, and public reputation of criminal jury trials,” this Court
exercises its discretion to correct such an error. Id.

[¶17] Pendleton was charged with three counts of attempted murder. The
information used both the “intentionally” and “knowingly” culpability terms in
the attempted murder charges. The opening jury instructions also used the
“knowingly” term. However, the instructions were then amended for the
closing charge to the jury. The amended instructions given to the jury for
deliberations on the attempted murder counts stated the following:

The State’s burden of proof is satisfied if the evidence shows
beyond a reasonable doubt, the following essential elements:
1. On or about May 27, 2020, in Grand Forks, North Dakota;
2. The defendant, Salamah Qareed Pendleton;
3. Intentionally;
4. Engaged in the conduct which constitutes a substantial step
toward commission of the crime of murder;
5. Specifically, the defendant attempted to kill [victim’s name];
and
6. The Defendant did not act in self-defense.

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The instructions included a warning that these instructions modified and
superseded the prior opening instructions.

[¶18] We conclude the jury instructions informed the jury of the level of
culpability necessary to convict Pendleton on the attempted murder charges.
“We consider the jury instructions as a whole, and determine whether they
correctly and adequately inform the jury of the applicable law, even though
part of the instructions when standing alone may be insufficient or erroneous.”
State v. Estrada, 2013 ND 79, ¶ 14, 830 N.W.2d 617. Here, the “intentionally”
language in element three directly modifies element four, describing the
charged conduct. The use of the word “specifically” in element five explains
that element five is a further articulation or refinement of element four.
Therefore, when reading the jury instructions as a whole, we conclude the
instructions fairly advised the jury that they could convict Pendleton on
nothing less than intentional attempted murder. Further, although the
opening instructions stated the word “knowingly,” the final instructions clearly
provided that the instructions replaced and superseded the opening
instructions. Thus, we affirm the attempted murder convictions.

V

[¶19] Pendleton argues juror misconduct occurred at trial because “one juror
was reviewing the notes of another juror.” Because the court put Pendleton on
notice of the misconduct and Pendleton did not object, we review this issue for
obvious error. State v. Thomas, 2019 ND 194, ¶ 11, 931 N.W.2d 192 (“If juror
misconduct is noticed and the criminal defendant does not object or request a
mistrial, reversal requires obvious error.”). This Court exercises its “power to
consider obvious error cautiously and only in exceptional situations where the
defendant has suffered serious injustice.” State v. Wangstad, 2018 ND 217,
¶ 14, 917 N.W.2d 515. “When analyzing obvious error, we examine the entire
record for the probable effect of the alleged error in light of all the evidence.”
Id.

[¶20] The alleged misconduct was as follows:

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 THE COURT: It’s 10:34. The attorneys have returned, Mr.
Pendleton is back. The bailiffs did raise a question to me that we’re
going to address before we bring the jury in. Apparently one of the
jurors had looked at the notes of one of the other people, looked at
their tablet, or whatever. Either one of you two want to address
that juror before we continue? Ms. Mattison?

MS. MATTISON: I don't think so, Judge, no.

THE COURT: Mr. Mottinger?

MR. MOTTINGER: I don’t think so.

[¶21] The court then gave the following instructions to the jury regarding the
alleged misconduct:

THE COURT: Okay. Jury members, you’re going to be together for
quite some time through this case, and you’re all different, folks.
You probably didn’t know each other from what I remember from
voir dire and you’ll end up learning that you have to respect each
other’s views and even their privacy in their thoughts, so when you
take notes in this case, those notes are for you alone until you
deliberate. You’re not obligated to share those notes with each
juror. Obviously, they are intended to pertain just to the case, and
when it comes time for the 14 of you or the 12 of you at that time
to discuss the case, that’s when you can refer back to those notes
and share what you want with somebody. So until then, just please
respect each other.

[¶22] The misconduct did not result in the defendant suffering a serious
injustice. The misconduct occurred on day four of the trial, which was 12 days
prior to when deliberations began. Further, it was only one juror who read the
notes of another juror. The record does not indicate that the juror had looked
at the other juror’s notes on more than one occasion. Lastly, the court
admonished the jury quickly after learning of the misconduct. It appears the
misconduct had very little impact on the jury’s verdict, considering there was
ample evidence in the record to support the guilty verdict. Therefore, the
misconduct was not an exceptional situation that warrants this Court to
exercise its discretion to correct the misconduct that occurred.

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 VI

[¶23] Lastly, Pendleton argues the court should have applied the new, reduced
penalty to his conviction for possession with intent to deliver marijuana. He
requests that this Court “reverse and remand Count 9 to be sentenced as a
class C felony.”

[¶24] At the time of Pendleton’s criminal conduct, possession with intent to
deliver marijuana was a Class B felony. Before his trial and sentencing, the
statute was amended to reduce the penalty to a Class C felony. 2021 N.D. Sess.
Laws ch. 172, § 5; N.D.C.C. § 19-03.1-23(1)(c). The statute included an
emergency clause, giving the amendment an effective date of May 3, 2021. 2021
N.D. Sess. Laws ch. 172, § 25. Pendleton was convicted in July of 2021.

[¶25] This Court has applied a narrow exception to the general rule that
statutes are not retroactive unless expressly declared so by the Legislature
when the statute in question involves an “ameliorating penal amendment to a
criminal statute.” State v. Flatt, 2007 ND 98, ¶10, 733 N.W.2d 608 (citing
N.D.C.C. § 1-02-10 for the general rule). In State v. Cummings, 386 N.W.2d
468, 472 (N.D. 1986), this Court concluded that “unless otherwise indicated by
the Legislature, an ameliorating amendment to a criminal statute is reflective
of the Legislature’s determination that the lesser punishment is the
appropriate penalty for the offense.” There, the defendant was charged with a
DUI and DUS. Id. at 469. The criminal conduct occurred after the 1985
legislative amendments to the DUI and DUS statutes, but before the
amendment became effective. Id. at 470. The amendment reduced the
minimum mandatory punishment of fifteen days to four consecutive days of
imprisonment. Id. at 470. The defendant pled guilty after the amendment
became effective and was sentenced under the harsher pre-amendment law.
Id. This Court overturned his sentence, reasoning “[t]here is a compelling
inference that the 1985 Legislature, by reducing the mandatory minimum
penalty . . . determined that the former penalty was too harsh and that the
latter and lighter punishment was the appropriate penalty for violations of that
statute.” Id. at 472 (emphasis added). Further, this Court said that “nothing is
gained by imposing a more severe punishment after the Legislature has
determined that a lighter penalty is appropriate.” Id. (emphasis added).

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[¶26] The court erred in not applying the ameliorating penal amendment to
Pendleton’s conviction. Similar to the defendant in Cummings, Pendleton was
sentenced under the harsher pre-amendment law despite having been
convicted after the amendment had become effective. Because the Legislature
reduced the penalty from a Class B felony to a Class C felony, there is a
compelling inference it did so because it determined the former penalty was
too harsh and the latter, lighter punishment was the appropriate penalty for
violations of the statute. Thus, we apply the exception to the general rule for
ameliorating penal legislation set forth in Cummings. See also State v. Cook,
2018 ND 100, ¶ 24, 910 N.W.2d 179; State v. Flatt, 2007 ND 98, 733 N.W.2d
608; State v. Shafer-Imhoff, 2001 ND 146, 632 N.W.2d 825. We reverse and
remand for the district court to re-sentence Pendleton on Count 9.

VII

[¶27] We affirm the criminal judgment on counts 1-8. We reverse the
judgment on count 9 and remand with instructions for the district court to
resentence Pendleton consistent with this opinion.

[¶28] Daniel J. Crothers, Acting C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr, D.J.

[¶29] The Honorable Douglas A. Bahr, District Judge, sitting in place of
Jensen, C.J., disqualified.

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