State v. Nathaniel Smith, unpublished opinion, App. Div. Docket No. A-3701-08T4 (July 14, 2010) – Convictions reversed.
“With specific reference to defendant’s felony murder conviction, we also find plain error in the trial court’s failure to instruct the jury on accomplice liability, which, in our view, had the clear potential to lead the jury to believe defendant could have been found guilty of that charge based on some conduct or state of mind lesser than that required for a conviction on the predicate robbery and/or burglary charges…. Here, although plainly indicated by the proofs, the jury was not instructed on the principles of accomplice liability. Even though defendant never requested such a charge, the trial judge did consider giving the instruction, but ultimately declined, considering the “non-slayer participant” feature of the model jury charge its basic equivalent…. We disagree with the State’s position on appeal that the ‘non-slayer participant’ language of the felony murder model charge ‘covers the accomplice theory.’ The fact that a defendant was “engaged in” conduct resulting in the victim’s death does not necessarily establish the mental state required for commission of the underlying offense, on which a felony murder conviction must be predicated. On this score, the State further argues that omission of the accomplice liability charge actually inured to defendant’s benefit, as it made him less likely to be convicted of the predicate offense and for this reason constituted only harmless error. If the jury were instructed on accomplice liability and given another basis to convict other than finding defendant to be the principal, the jury might have otherwise found defendant guilty of the robbery or burglary of Lewis. However, the absence of such an instruction left the jury free to believe that defendant need not have shared the same intent as the principals in the robbery/burglary, and that mere ‘engagement’ in the underlying event sufficed to establish the requisite mental state for, and therefore his guilt of, felony murder…. It appears the jury believed defendant had conspired with his co-defendants and had not been the principal actor in the robbery/burglary of Lewis, but his admitted conduct of driving the women to and from the victim’s apartment and his knowledge that one of the women possessed a weapon sufficed to establish that he was ‘engaged in the commission of or attempted to commit or flight after committing or attempting to commit’ the predicate offenses. The jury may have erroneously believed that defendant could be convicted of felony murder as a non-slayer participant without sharing his co-defendants’ intent in committing the underlying predicate offense.”