by Matt Clarke

The Supreme Court of North Dakota reversed the denial of a motion for postconviction relief challenging a conviction for attempted knowing murder after holding it was a non-cognizable offense.

Lorenzo Pemberton was staying at a woman’s home. During an argument, she called 911. He knocked the phone out of her hand, pulled her around by her hair, threw her against a wall, hit her multiple times, and started strangling her while straddling her, pinning her down. She managed to grab a screwdriver and hit him with it. He took the screwdriver away and stabbed her repeatedly in the head and neck area. She said, “you’re killing me.” He responded, “good.” The 911 dispatcher heard a female yelling, “Stop,” “Get off of me,” “You’re killing me,” and “I’m bleeding out, call 911.” He was still on top of her when police arrived and did not get off until they ordered him to.

Pemberton was charged with aggravated assault, interference with an emergency call, felonious restraint, and child neglect. A week before the trial, the State amended the information to add the charge that Pemberton “attempted to intentionally or knowingly cause the death of another human being.”

The trial evidence included the police officers’ and victim’s testimony, photos of her injuries and damage to her home, and a recording of the 911 call. The jury convicted on all five counts, and following an unsuccessful appeal and initial application for postconviction relief, with the aid of Grand Forks attorney Tyler J. Morrow, he appealed the denial of the application.

The North Dakota Supreme Court noted that the offense of murder under N.D.C.C. § 12.1-16-0l(l)(a) requires that a person cause the death of another human being intentionally or knowingly. N.D.C.C. § 12.l-02-02(l)(a) and (b) state that a person engages in an act intentionally if it is the person’s purpose to do so and does so knowingly if the person engaging in it knows or has a firm belief, unaccompanied by substantial doubt, he is doing so, regardless of whether it is his purpose to do so or not. The criminal attempt statute, N.D.C.C. § 12.1-06-01(1), requires that “the accused have an intent to complete the commission of the underlying crime” to be charged with an attempted offense.

Because murder can be committed knowingly, but without intent, and the crime of attempted murder under N.D.C.C. § 12.1-06-01(1) requires that the charged person intend to commit murder, the Supreme Court held in Dominguez v. State, 840 N.W.2d 596 (N.D. 2019), that murder under N.D.C.C. § 12.1-16-01(1) cannot be used as an underlying crime for attempted murder because it does not require proof of intent. Such an offense is non-cognizable. The Dominguez Court held that a person could be convicted of attempted murder if there was proof of intent to kill.

However, Pemberton’s jury was instructed that they could find him guilty if he intentionally or knowingly attempted to kill. Under those instructions, the jury could have found him guilty of attempted murder without finding that he intended to kill another human being, a non-cognizable offense, the Court concluded.

The State did not argue that the flawed jury instructions were harmless. At trial, the defense argued that Pemberton was guilty of aggravated assault but not attempted murder because he had no intent to kill and further could have easily killed had he so intended. Therefore, the flawed jury instruction could not be determined to be harmless.

Accordingly, the Court reversed the order denying postconviction relief. See: Pemberton v. State, 959 N.W.2d 891 (N.D. 2021). 

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