State v. Pendleton

• Docket Number: 20210287
• Decision Date: 04 August 2022
• Citation: 2022 ND 149
• Parties: State of North Dakota, Plaintiff and Appellee v. Salamah Qareed Pendleton, Defendant and Appellant
• Court: North Dakota Supreme Court

1

2022 ND 149

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

No. 20210287

Supreme Court of North Dakota

August 4, 2022

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

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.

OPINION

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 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 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) inchambers 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, 1112, 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 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. 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...