That defendant was tried alone and that he denied
any participation in co-defendant’s beating of victim did
not ameliorate prejudice from inadequate jury
instructions on accomplice liability. State v. Cook, 300
N.J. Super. 476 (App. Div. 1996).
2. No Error Found
In State v. Dudley Rue, 296 N.J. Super. 108 (App. Div.
1996), certif. denied, 148 N.J. 463 (1997), the Appellate
Division affirmed defendant’s conviction for first degree
murder and related offenses ruling that, under the
circumstances of this case, the failure to instruct the jury
that an accomplice may be found guilty of a lesser offense
even where the principal committed purposeful or
knowing murder could not have led the jury astray. The
evidence in this case supported only the conclusion that
defendant was a principal in the crime, not an accomplice
or, if defendant was to be believed, did not commit a
crime at all. The jury simply had no evidence from which
it could conclude that defendant had the mental state for
a lesser crime than the other participants. Therefore, the
omission of the accomplice charge under State v.
Bielkiewicz was not error. See also State v. Norman, 151
N.J. 5, 38-39 (1997); State v. Crumb, 307 N.J. Super,
204, 221-22 (App. Div. 1997), certif. denied, 153 N.J.
215 (1998); State v. Oliver, 316 N.J. Super. 592, 596-97
(App. Div. 1998), aff’d 162 N.J. 580 (2000); State v.
Eure, 304 N.J. Super. 469, 472-73 (App. Div. 1997),
certif. denied, 152 N.J. 193 (1997); State v. Scherzer, 301
N.J. Super. 363, 472-75 (App. Div. 1997), certif. denied,
151 N.J. 466 (1997); State v. Williams, 298 N.J. Super.
430, 440-42 (App. Div. 1997), certif. denied, 150 N.J.
27 (1997).
Error in accomplice liability charge on intentional
murder was harmless when defendant was only found
guilty of the lesser included offense of aggravated
manslaughter. State v. Mance, 300 N.J. Super. 430, 441
(App. Div. 1997), certif. denied, 150 N.J. 27 (1997).
Error in the accomplice liability charge as to
intentional murder will not require reversal of a
defendant’s felony murder conviction where the
accomplice liability charge as to the predicate offense
underlying the felony murder is correct or, if incorrect,
constitutes harmless error. State v. Jackmon, 305 N.J.
Super. 274, 295-96 (App. Div. 1997), certif. denied, 153
N.J. 49 (1998).
Bielkiewicz has no applicability to a charge of
possession of a weapon for an unlawful purpose because
that crime does not include the possibility of conviction
for lesser offenses. Further, as a matter of logic, the
Bielkiewicz errors in the accomplice charge on murder
could not have affected the possessory weapons
conviction because, even if Cook merely intended to rob
the victim and not to seriously injure or kill him, the
requisite unlawful purpose for conviction on the
possession offense would nevertheless have been
established. Cook, 300 N.J. Super. at 489. In the end, the
propriety of an accomplice liability instruction for a
simple possessory offense is fact-sensitive. It is not to be
eschewed in all cases. On the other hand, it should not
be routinely given in all cases either. If other crimes
charged require an accomplice instruction, the jury
should be told clearly whether it applies to the possessory
offenses or not. Obviously, if the court is not explicit, a
reviewing court would have to assume that the jury
applied the instruction to all of the offenses in the
indictment. State v. Williams, 315 N. J. Super. 384, 395
(Law Div. 1998).C. Model Jury Charge On Accomplice Liability
The present Model Criminal Jury Charge on
accomplice liability, as revised May 22, 1995, included
two changes relevant to the Bielkiewicz decision. First, it
dropped the following sentence: “However, one cannot
be held to be an accomplice unless you find that (he/she)
possessed the same criminal state of mind that is required
to be proved against the person who actually committed
the criminal act.” Second, the revision added the
following reminder: “(Again, remind the jury to consider
the accomplice status separately as to each charge).”Note that there are two accomplice liability model
jury charges. Charge Number One (Revised May 22,
1995), is given where a defendant is charged as an
accomplice but no lesser included offenses are charged.
Charge Number Two (Revised May 22, 1995) is given
where a defendant is charged as an accomplice and the
jury is instructed as to lesser included offenses.D. The “Accomplice Rule”
The status of a witness as an accomplice or
codefendant invites special consideration. State v. Gross,
121 N.J. 1, 16 (1990). The so-called “accomplice rule”
calls for a specific cautionary instruction “that the
evidence of an accomplice must be carefully scrutinized
and assessed in the context of his specific interest in the
proceeding ... which might lead to influencing his
testimony, because of some involvement in the criminal