In contrast, the Supreme Court found that the record
in State v. Palacio, 111 N.J. 543 (1988) allowed several
permissible inferences by which the jury could have
convicted defendant, i.e., the large quantity of
contraband; the great monetary value and purity; the
existence of a secret compartment in the car; and a piece
of incriminating paper in defendant’s wallet. See also
State v. Hurdle, 311 N.J. Super. 89 (App. Div. 1998);
State v. Johnson, 274 N.J. Super. 137, 157 (App. Div.
1994), certif. denied, 138 N.J. 265 (1994).
Accomplice liability does not appear to apply to all
possessory weapons offenses. State v. Jackmon, 305 N.J.
Super. 274, 295 (App. Div. 1997), certif. denied, 153 N.J.
49 (1998); State v. Cook, 300 N.J. Super. 476, 489-90,
(App. Div. 1977). In State v. Williams, 315 N.J. Super.
384 (Law Div. 1998), the Law Division ruled that
generally accomplice liability does not apply to simple
weapons possession charges in addition to and apart from
the liability that might result from constructive
possession on the part of a non-weapon bearing car
passenger in a case also involving kidnaping and armed
robbery. Constructive possession already imposes
liability where no physical control of a prohibited item
exists but where a defendant intends to exercise control
over it. Here the accomplice liability charge had no
meaningful place in the context of the weapons
possession offenses charged.
VII. JURY INSTRUCTIONS
A. Generally
The standard for charging accomplice liability is
whether the record contains sufficient evidence from
which the jury could have inferred that someone else
killed the victim. The trial court, however, has no duty
to charge a possible offense unless the facts clearly
indicate the charge is appropriate. Although the
standard for an accomplice liability charge is minimal,
where the defendant fails to meet even that low threshold,
the trial court may properly refuse to give an accomplice
liability charge. State v. Timmendequas, 161 N.J. 515,
621-22 (1999).
An accomplice liability charge that speaks in
generalities only and does not tailor the charge to the facts
of the case may be reversible error. State v. Tucker, 280
N.J. Super. 149, 151-52 (App. Div. 1995). But, where
defendant presents a “mere presence” defense, trial court
need not tailor the charge to account for defendant’s
theory of the case. A “mere presence” defense does not
present facts that are so complex or confusing as to require
an intricate discussion in the charge, nor does it require
the jury to distinguish among several possible mental
states of the accused. State v. Morton, 155 N.J. 383, 422
(1998).A jury must be instructed “that to find a defendant
guilty of a crime under a theory of accomplice liability, it
must find that he ‘shared in the intent which is the
crime’s basic element, and at least indirectly participated
in the commission of the criminal act.’” State v.
Bielkiewicz, 267 N.J. Super. at 528, citing State v. Fair, 45
N.J. 77, 95 (1965). When lesser included offenses are
submitted to the jury, the court has an obligation to
“carefully impart to the jury the distinctions between the
specific intent required for the grades of the offense.”
State v. Weeks, 107 N.J. 396, 410 (1987); Bielkiewicz,
267 N.J. Super. at 528. If both parties enter into the
commission of a crime with the same intent and purpose
each is guilty to the same degree; but each may
participate in the criminal act with a different intent.
Each defendant may thus be guilty of a higher or lower
degree of crime than the other, the degree of guilt
depending entirely upon his own actions, intent and
state of mind. State v. Fair, 45 N.J. 77, 95 (1965).See State v. Reese, 288 N.J. Super. 133 (App. Div.
1996), where the jury instructions adequately guided the
jury on the issue of accomplice liability and on the
difference between reckless conduct manifesting extreme
indifference to the value of human life and reckless
conduct not manifesting such extreme indifference as
they related to aggravated assault.B. Distinguishing Principle From Accomplice
1. Error Found
Jury instructions on accomplice liability which fail to
specifically require the jury to consider and determine (a)
whether defendant facilitated the codefendant’s attack
without intent to cause serious injury or death and (b)
defendant’s liability separate from that of the
codefendant based on the states of mind of each, are plain
error meriting reversal when there is evidence that
defendant acted as an accomplice. State v. Phillips, 322
N.J. Super. 429 (App. Div. 1999); State v. Harrington,
310 N.J. Super. 272 (App. Div. 1998), certif. denied, 156
N.J. 387 (1998); State v. Jackmon, 305 N.J. Super. 274
(App. Div. 1997), certif. denied, 153 N.J. 49 (1998);
State v. Cook, 300 N.J. Super. 476 (App. Div. 1997); see
also, State v. Hogan, 297 N.J. Super. 7, 22 (App. Div.
1997), certif. denied, 149 N.J. 142 (1997) (robbery).