Pemberton v. State

Citations

• 959 N.W.2d 891
• 2021 ND 85

Syllabus

To be convicted of attempted murder, the accused must have an intent to kill. Attempted \knowing\ murder under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(a) is a non-cognizable offense. A federal constitutional error is harmless if we are convinced the error did not contribute to the verdict. Our determination of whether an error is harmless looks at the effect of the error on this jury, rather than speculating whether a hypothetical jury would convict the defendant absent the error. An erroneous jury instruction informing the jury that it could convict a defendant of a non-cognizable offense would not be cured by an appellate court's determination that the record evidence unmistakably established guilt of a cognizable offense.