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.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

AUGUST 4, 2022 

STATE OF NORTH DAKOTA
1

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 
2

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
3

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-therecord 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 
4

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.
5

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)).
6

[¶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 
7

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.
8

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:
9

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.
10

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).
11

[¶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.