State v. Pendleton

• Decision Date: 04 October 2022
• Docket Number: 20210287
• Citation: 978 N.W.2d 641
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Salamah Qareed PENDLETON, Defendant and Appellant
• Court: North Dakota Supreme Court

978 N.W.2d 641

STATE of North Dakota, Plaintiff and Appellee
v.
Salamah Qareed PENDLETON, Defendant and Appellant

No. 20210287

Supreme Court of North Dakota.

Filed August 4, 2022
Corrected Opinion Filed October 4, 2022

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.

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

[978 N.W.2d 646

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 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, 956 N.W.2d 772. "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, 956 N.W.2d 772 and Morales , 2019 ND 206, 932 N.W.2d 106 ). 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, 956 N.W.2d 772. Additionally, "[n]on-public 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,.

[978 N.W.2d 647

[¶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...