Byrd v. State (2025 ND 55): Mixed “Intentional or Knowing” Conspiracy Pleas Survive if the Record Establishes Intent—Non‑Cognizable Alternative Deemed Harmless

Introduction

In Byrd v. State, the North Dakota Supreme Court affirmed the denial of postconviction relief to Kareem Lee Byrd, Jr., who challenged his conviction following an Alford plea to conspiracy to commit “intentional or knowing” murder under N.D.C.C. §§ 12.1-16-01(1)(a) and 12.1-06-04. Byrd argued the conviction was legally invalid because “conspiracy to commit knowing murder” is a non-cognizable offense under North Dakota law, that his plea was not knowing and voluntary under N.D.R.Crim.P. 11, and that he received ineffective assistance of counsel.

The Court’s decision does more than reaffirm settled doctrine distinguishing “intentional” from “knowing” murder in the inchoate context. It articulates a consequential rule for plea cases: when a defendant pleads guilty to a mixed-culpability formulation that includes both a cognizable (intentional) and a non-cognizable (knowing) alternative for an inchoate offense (here, conspiracy), the plea and ensuing conviction may be sustained if the record establishes a sufficient factual basis for the cognizable alternative. Any error in accepting the plea to the non-cognizable alternative is treated as harmless.

Parties: Petitioner-Appellant Byrd was represented by Kiara C. Kraus-Parr. The State was represented by Assistant State’s Attorneys Josh J. Traiser (argued), Nicholas S. Samuelson, and Brianna K. Kraft. The opinion was authored by Justice Tufte, with Chief Justice Jensen and Justices Crothers, McEvers, and Bahr joining.

Summary of the Opinion

Non-cognizable offense claim: The Court held that while “conspiracy to ‘knowingly’ commit murder” is non-cognizable, Byrd’s plea encompassed both a cognizable theory (conspiracy to commit intentional murder) and a non-cognizable one (conspiracy to commit knowing murder). Because the record established a sufficient factual basis for the intentional theory, any error in also accepting a plea to the knowing theory was harmless.
Rule 11 compliance and Alford plea: The plea colloquy substantially complied with N.D.R.Crim.P. 11. The court read the amended information, ensured Byrd understood the charge, elicited the State’s factual basis, and obtained Byrd’s Alford acknowledgments that the evidence could lead a factfinder to convict. The factual basis supported an agreement and intent to kill (retrieval of firearms and jointly firing multiple rounds at the victim).
Ineffective assistance of counsel: Byrd failed to show prejudice under Strickland. Even if counsel permitted a plea that included a non-cognizable alternative, the conviction stood on the cognizable intentional conspiracy theory supported by the record; therefore, Byrd did not demonstrate a reasonable probability that, but for counsel’s actions, he would have gone to trial or obtained a different result.
Disposition: Affirmed. The Court rejected Byrd’s remaining arguments as unnecessary or without merit.

Analysis

1) Precedents Cited and Their Influence

The Court situates Byrd within a decade of North Dakota jurisprudence carefully parsing “intentional” and “knowing” culpability for inchoate offenses (attempt and conspiracy) arising under the same murder statute, N.D.C.C. § 12.1-16-01(1)(a).

State v. Swanson, 2019 ND 181: The Court held “conspiracy to ‘knowingly’ commit a murder” is non-cognizable because conspiracy requires an agreement to bring about a proscribed result, i.e., intent to cause death (¶¶ 9, 11). Swanson is the anchor precedent for Byrd’s core legal issue.
State v. Borner, 2013 ND 141: Conspiracy to commit “extreme indifference” murder non-cognizable. Borner establishes that inchoate offenses require specific intent to cause the proscribed result (¶ 11; Swanson relies on Borner).
Dominguez v. State, 2013 ND 249 and Pemberton v. State, 2021 ND 85: Dominguez found attempted “extreme indifference” murder non-cognizable; Pemberton clarified attempted “knowing” murder is non-cognizable, refined Dominguez’s phrasing, and addressed harmless error where juries were instructed on both valid and invalid theories (¶¶ 6, 12-13).
State v. Vervalen, 2024 ND 124: Affirmed that attempted intentional murder is cognizable (¶ 6). By analogy, conspiracy to commit intentional murder is cognizable (¶ 9).
State v. Pendleton, 2022 ND 149: Conviction upheld where “knowing” language was removed from the final jury instructions, confirming the jury convicted only of intentional attempted murder (¶ 12). This illuminates how courts salvage convictions by ensuring the trier of fact relies on a valid theory.
Kisi v. State, 2023 ND 226: Even where a “knowing” instruction is erroneously included, a verdict can stand if the record shows beyond a reasonable doubt the conviction was on intentional grounds; the error is harmless (¶¶ 5, 9, 13-14). Byrd extends Kisi’s harmless-error logic from the jury-instruction context to pleas.
State v. Legare, 2019 ND 276: A guilty plea waives trial rights, and courts presume proper trial proceedings would have cured earlier defects (¶ 15). This informs Byrd’s presumption in the plea posture that any trial would have included proper instructions.
Rule 11 / Alford plea authorities: - State v. Hamilton, 2023 ND 233: Guilty plea must be knowing, intelligent, and voluntary (¶ 21). - State v. Wallace, 2018 ND 225: Substantial compliance with Rule 11 required (¶ 21). - State v. Yost, 2018 ND 157: Alford pleas embody acceptance of the factual basis (¶ 24).
Ineffective assistance standards: - Schweitzer v. State, 2024 ND 151: applies Strickland’s two-prong test (¶ 25). - Kremer v. State, 2020 ND 132: plea-bargain prejudice requires a reasonable probability the defendant would have gone to trial (¶¶ 26-27).

Together, these cases establish the substantive rule that inchoate offenses (attempt and conspiracy) require intent to kill, render “knowing” variants non-cognizable, and adopt a harmless-error approach when both valid and invalid theories appear—originally in jury instructions and, now, in pleas.

2) The Court’s Legal Reasoning

The Court proceeds in three main steps.

Reaffirmation of the intent requirement for inchoate offenses under § 12.1-16-01(1)(a): The statute’s “intentionally or knowingly” formulation creates two distinct culpability alternatives for completed murder. For inchoate offenses like attempt and conspiracy, North Dakota law requires intention to cause death. The Court reiterates that “intention” is synonymous with “purpose,” while “knowing” permits conviction without a purpose to cause death (¶¶ 7-11). Hence: - Conspiracy to commit intentional murder is cognizable. - Conspiracy to commit knowing murder is not.
Application of harmless error to pleas containing mixed culpability language: Unlike earlier cases scrutinizing jury instructions, Byrd involves an Alford plea to a count charging “intentional or knowing” murder as the object of the conspiracy. The Court presumes that, had the case gone to trial, proper instructions would have removed the non-cognizable alternative (¶ 15). It then extends the harmless-error framework: if the record establishes a sufficient factual basis for the cognizable intentional conspiracy, acceptance of the plea that also references the non-cognizable “knowing” alternative is harmless (¶¶ 14-15).
Rule 11 compliance and sufficiency of the factual basis for “intentional” conspiracy: The district court read the amended information and confirmed Byrd’s understanding (¶¶ 16, 22). The State’s proffer established that Byrd and a co-defendant jointly armed themselves after an initial confrontation, returned to the scene, and both fired multiple rounds at the victim, killing him (¶¶ 17-20). Byrd, while maintaining innocence under Alford, expressly acknowledged that the evidence could lead a judge or jury to convict him (¶¶ 18, 23-24). From these facts, a trier of fact could reasonably infer: - An agreement to kill (conspiracy element) from the joint retrieval of firearms and coordinated return to confront the victim; and - Intent to kill from firing multiple rounds at the victim at close quarters (¶ 20). Because a sufficient factual basis supports intentional conspiracy, the plea stands; the non-cognizable “knowing” alternative is harmless surplusage (¶ 15).

3) Impact and Forward-Looking Significance

Byrd’s principal contribution is procedural and practical: it transports the harmless-error doctrine—previously applied to jury-instruction errors involving mixed valid/invalid theories—into the plea context. Key impacts include:

Plea practice in inchoate homicide cases: Defendants cannot vacate pleas merely because the charging language used the common “intentional or knowing” phrasing in conspiracy/attempt counts. If the record (including the State’s proffer and the defendant’s Rule 11 acknowledgments) supports an intentional inchoate offense, courts may uphold the conviction and treat “knowing” as harmless.
Charging and drafting discipline: Prosecutors should still avoid “or knowing” in attempt/conspiracy counts under § 12.1-16-01(1)(a). Although Byrd limits the remedy for mixed language in plea cases, Swanson, Borner, Pemberton, and Pendleton remain clear that knowing-based inchoate homicide theories are non-cognizable.
Trial court colloquies and records: Judges should build a record that isolates intentionality when accepting pleas to inchoate homicide offenses—e.g., by clarifying that the factual basis demonstrates purposeful intent to cause death and by securing explicit acknowledgments under Rule 11(b)(4).
Defense counsel strategy and IAC claims: After Byrd, challenging a plea solely because the charge included a non-cognizable “knowing” alternative will rarely succeed absent a showing that the factual basis does not establish intent or that Rule 11 was otherwise deficient. Strickland prejudice will be difficult to prove if the plea remains valid on an intentional theory supported by the record.
Continuity with jury cases: Byrd does not dilute Swanson or Pemberton for jury verdicts. In jury cases, convictions may still be reversed where it is unclear whether the jury convicted on an invalid theory. Byrd’s innovation is specific to pleas and the sufficiency of the Rule 11 record.

Complex Concepts Simplified

Cognizable offense: A charge that describes a legally recognized crime. North Dakota has repeatedly held that inchoate forms (attempt/conspiracy) of “knowing” murder or “extreme indifference” murder are not cognizable because those inchoate crimes require intent to produce the prohibited result.
Intentional vs. knowing (N.D.C.C. § 12.1-02-02): “Intentional” (or “purposeful”) means the actor’s conscious objective is to cause the result (here, death). “Knowing” means awareness that one’s conduct is of a certain nature or that certain circumstances exist, even if causing the result is not the actor’s purpose. For inchoate homicide crimes, North Dakota requires intent to kill.
Alford plea: A guilty plea in which the defendant maintains innocence but admits the State’s evidence is sufficient for a conviction. The court must find a factual basis and obtain the defendant’s acknowledgment that a trier of fact could reasonably convict on that basis.
Rule 11, N.D.R.Crim.P.: Governs plea taking. The judge must ensure the defendant understands the nature of the charge, the rights waived, and that a factual basis supports the plea. Substantial compliance is required for a plea to be knowing, intelligent, and voluntary.
Harmless error: An error that does not affect substantial rights and does not justify reversal. For constitutional errors, courts ask whether the error was harmless beyond a reasonable doubt in light of all the evidence. In Byrd, the inclusion of a non-cognizable alternative was harmless because the record supported the cognizable intentional theory.
Strickland prejudice in plea cases: To prove ineffective assistance in the plea context, a defendant must show a reasonable probability that, but for counsel’s errors, he would have rejected the plea and gone to trial. Where the plea stands on a valid theory supported by the record, showing prejudice is difficult.

Conclusion

Byrd v. State consolidates North Dakota’s doctrinal line distinguishing intentional and knowing murder in inchoate offenses and extends the harmless-error principle into the plea arena. The Court holds that a defendant’s guilty (Alford) plea to conspiracy to commit “intentional or knowing” murder is not automatically invalid; if the record establishes a sufficient factual basis for the cognizable intentional conspiracy, the presence of the non-cognizable “knowing” alternative is harmless. The Court further confirms substantial compliance with Rule 11 and rejects ineffective assistance claims where the plea remains valid on a cognizable theory.

Practically, Byrd instructs prosecutors and trial courts to be precise in charging and accepting pleas to inchoate homicide offenses and signals to defendants that relief will turn on whether the record supports intent—not on the mere presence of surplus “knowing” language. In the broader legal landscape, the case harmonizes plea practice with the harmless-error treatment of mixed-theory jury instructions, adding predictability to postconviction challenges involving inchoate homicide charges under N.D.C.C. § 12.1-16-01(1)(a).