Assault III, Rob II and Aggravated Felony Murder: Messy Accomplice Jury Instructions
The following discussion will be most relevant to the following crimes:
- assault III (aided by another actually present)
- robbery II (same)
- aggravated felony murder and
- attempted aggravated felony murder
Those four crimes have one thing in common: it is either difficult or impossible to be guilty as an accomplice. If two people commit a weaponless assault, either they are both principals and therefore both guilty of assault III or the accomplice is only guilty of assault IV. (A third co-defendant changes the analysis significantly for two of those crimes.)
Let's say that you represent an assault III co-defendant. Your first line of defense is that he is not guilty. Alternatively, you want to argue that he is only an accomplice: his role was minimal, mostly just encouragement. However, the state has put on some evidence that your client's actions were sufficiently intertwined with the co-defendant's that they were enough to make him a principal and thus guilty of assault III.
You are entitled to a lesser-included instruction on assault IV, but only if the jury first finds that your client was an accomplice. Therefore, the jury needs to be instructed that they must decide on guilt or innocence before they decide what he might actually be guilty of. Huh? If they decide (1) the elements of assault have been satisfied and (2) your client was criminally involved, then they have to decide if he was a principal or an accomplice before deciding whether he's guilty of III or IV.
But wait! It's even messier than that. If he's an accomplice he can't be guilty of assault unless he had an intentional mental state but if he's a principal, the state only has to show reckless. So the jury must decide which mental state applies before deciding if he's criminally liable.
Stop! That can't be right. The jury is instructed that they can't consider IV until they've rejected III. (Does the "acquittal first" instruction violate due process, because logically speaking, the jury can't decide III and IV any other way than simultaneously? That is, is the instruction compromised if it impairs the deliberative process?)
So, the jury is told only to decide if he is guilty as a principal of assault III and if they decide he's not, only then should they decide if he's an accomplice and therefore guilty of assault IV. In other words, the jury must be told not to consider him an accomplice until after they acquit him (of the more serious offense)? This might be possible, but if we think of a jury deciding the facts and then applying the law to those facts, the court here would be ordering the jury to decide half the facts, voting, and only then deciding the other half?
My goal is not to write the instruction for you, only to urge you to take care when doing so. If you found the above confusing, imagine how the jurors will feel.
There are other situations where a finding of accomplice or principal has a huge impact on the verdict. Another crime that can't be committed by an accomplice is manslaughter, because accomplice liability requires intent to commit the crime of conviction, and there's no such thing as intentional manslaughter. So if two people kill somebody, and one of them denies an intent to kill, but admits to an intent to assault, he's probably guilty of manslaughter if he's the principal but only guilty of assault if he's an accomplice, the dead body notwithstanding.