COA: Accomplice liability instruction is harmless error

Although the trial court erred in instructing the jury during a man’s murder and attempted murder trial regarding accomplice liability as it applied to attempted murder, the error was harmless, the Indiana Court of Appeals held Wednesday.

Jamar Minor appealed his convictions in Jamar Minor v. State of Indiana, 49A02-1409-CR-628, in which he and another man shot and killed Damien Williams and injured Eric Taylor after a dispute over an iPod.

Minor raised three issues on appeal: that the trial court abused its discretion in excluding hearsay evidence; the court erred in instructing the jury regarding accomplice liability such that he may have been convicted of attempted murder absent the specific intent to kill; and his tendered jury instruction on criminal recklessness as an inherently lesser-included offense of attempted murder should have been given.

Minor wanted to admit an unsworn out-of-court statement made by witness Dazion Dulin to police the morning after the shooting that he knew Williams “had a gun on him” because Williams “said it.” This would bolster Minor’s claim of self-defense. But Williams’ purported statement to Dulin does not qualify as a present sense impression that would allow it to be admitted nor was it admissible as a statement against interest pursuant to Ind. Evidence Rule 804(b)(3).

The state conceded and the trial court agreed with Minor’s claim that the jury instruction regarding accomplice liability as it applied to attempted murder was erroneous because it failed to inform the jury that the state was required to prove that Minor acted with specific intent to kill when he knowingly aided, induced or caused another person to attempt murder. But the error did not prejudice Minor’s substantial rights.

“While accomplice liability was briefly mentioned by the State during closing, it is clear from our review of the record that the State was relying exclusively on the ample evidence of Minor’s liability as a principal and his specific intent to kill Taylor,” Judge Terry Crone wrote.

The judges also found that the trial court did not abuse its discretion in denying Minor’s tendered jury instruction on criminal recklessness because it is well-established by the Indiana Supreme Court that criminal recklessness is not an inherently included offense of attempted murder.