                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2649-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

DAQUAN KEATON, a/k/a
DAY DAY, DA QUAN KEATON,
DAQUAN J. KEATON, and DAQUAN
S. KEATON,

     Defendant-Appellant.
_______________________________

              Submitted December 18, 2017 - Decided August 16, 2018

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Indictment No.
              14-10-1567.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stefan Van Jura, Deputy
              Public Defender II, of counsel and on the
              brief).

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Erin M. Campbell,
              Assistant Prosecutor, on the brief).

PER CURIAM
    Defendant Daquan Keaton was tried to a jury for the murder

of Lamar Glover, on a theory of accomplice liability, and the

shooting of Raymond Kozar.   He was tried alone.   The jury

convicted him of knowing or purposeful murder, N.J.S.A. 2C:11-

3(a)(1) and (2); two counts of second-degree possession of a

handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a); one count

of second-degree unlawful possession of a handgun, N.J.S.A.

2C:39-5(b); and second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1).   Defendant raises two issues as to his conviction

on appeal, neither of which he raised to the trial court:

         POINT I

         THE MURDER CONVICTION MUST BE REVERSED
         BECAUSE THE GENERIC ACCOMPLICE LIABILITY
         INSTRUCTION: (1) FAILED TO RELATE ABSTRACT
         PRINCIPLES OF LIABILITY TO THE SPECIFIC
         FACTS OF THE CASE; (2) FAILED TO EXPRESSLY
         CORRECT THE STATE'S EGREGIOUS MISSTATEMENT
         OF THE LAW OF ACCOMPLICE LIABILITY; AND (3)
         FURTHER CONFUSED THE JURY BY ALLOWING IT TO
         FIND THAT DEFENDANT'S CONDUCT WAS PURPOSEFUL
         OR KNOWING BASED UPON THE ACTUAL KILLER'S
         USE OF A DEADLY WEAPON, YET WITHOUT A
         FINDING THAT DEFENDANT KNEW THE ACTUAL
         KILLER HAD THAT WEAPON. (Not Raised Below)

         POINT II

         THE PROSECUTOR'S SUMMATION DENIED DEFENDANT
         DUE PROCESS AND A FAIR TRIAL BECAUSE THE
         REPEATED ASSERTIONS THAT SCOTT RECANTED DUE
         TO FEAR OBVIOUSLY IMPLIED THAT SCOTT FEARED
         RETRIBUTION BY DEFENDANT, WHICH FOUND NO
         BASIS IN THE RECORD. (Not Raised Below)


                                2                             A-2649-15T3
We find no merit to either claim and, accordingly, affirm

defendant's convictions.

     Security video from a nearby carwash captured the shooting.

The video depicts a group of men lounging in front of the Union

Superette, a bodega in Jersey City, being scattered by gunfire.

Only one shooter appears on the video, a black man with "dreads"

armed with a gun.   That gun was never recovered.   Following the

melee, Glover was dead from a gunshot wound to the head.    Kozar

had been shot in the leg.   Ballistic tests confirmed two

shooters.

     The car wash owner heard the shots and saw a man run down

the block and jump into the passenger seat of a black Lexus.      He

managed to catch a partial plate number before the car sped

away.   That led police to the owner, who claimed she had loaned

the car to Sirheen Walker on the day of the shooting.

     Police eventually recovered the gun that killed Glover.

That discovery led indirectly to the State's star witness,

Shanifah Scott, defendant's cousin.1   Scott gave police two

recorded statements in which she said she saw defendant with

Walker, the father of her child, in the black Lexus at a park on



1
   Scott told police she had known defendant as her cousin since
the fifth grade but was not sure if she was actually related to
him.

                                3                           A-2649-15T3
the day of the murder.   Walker was driving.   Scott identified

defendant as the man with dreads and the gun in the video of the

shooting.

    Scott also told police that Walker was at her home with

several others twenty minutes or so after she saw him leave the

park with defendant.   She claimed Walker was nervous.    He had a

revolver, which he passed among several friends.    According to

Scott, defendant was not present.   Scott refused to sign

photographs in which she identified defendant, explaining she

did not "want to be in the middle of this" and had "a child to

live for."   Scott, however, told police she was "a hundred

percent" certain it was defendant in the video.

    Police department surveillance video confirmed aspects of

her statement, including the black Lexus having been at the park

before the murder and that Walker and several friends were later

on the street in the vicinity of her home.     The murder weapon

matched the description of the gun she said Walker had at her

house.

    Although police were certain that Walker and defendant

committed the shooting together, and that Walker had killed

Glover, they could not put Walker at the scene of the crime.

Accordingly, defendant was tried alone as an accomplice to

Glover's murder and a principal in Kozar's shooting.     Scott

                                4                           A-2649-15T3
recanted her statements to the police before the jury, claiming

she did not know defendant, and the statements were all lies.

Following a Gross2 hearing, the court admitted both statements

pursuant to N.J.R.E. 803(a)(1), and they were played for the

jury.    The defense argued defendant was not the man in the

video, noting he did not match the description Kozar gave of the

man who shot him.3   Defendant did not testify.

      Turning first to the jury instructions, we note that none

of defendant's arguments alleging error was raised to the trial

court.   Accordingly, he is not entitled to relief absent

demonstration of "[l]egal impropriety in the charge

prejudicially affecting [his] . . . substantial rights," which

must be "sufficiently grievous" to justify our notice,

convincing us "that of itself the error possessed a clear

capacity to bring about an unjust result."    State v. McKinney,

223 N.J. 475, 494 (2015) (first alteration in original; second

alteration added) (quoting State v. Camacho, 218 N.J. 533, 554

(2014)); see also R. 1:7-2; R. 2:10-2.    Applying that standard




2
    State v. Gross, 121 N.J. 1 (1990).
3
   In its summation, the State conceded defendant did not match
Kozar's description of the man who shot him but suggested Kozar
may have been describing Walker, who apparently did resemble
Kozar's description.

                                 5                          A-2649-15T3
here, we are convinced that none of defendant's arguments is

meritorious or requires any extended comment.

     Defendant claims there were "three interrelated problems

with the accomplice liability charge as it pertains to murder."

The first was the failure to tailor the charge to the facts of

the case.   Specifically, defendant claims the "the jury should

have been advised" it had to "find some fact supporting the

notion that defendant had a purpose to facilitate Glover's

death," and that the failure to tailor the charge created "a

problem like that posed by the intersection of accomplice

liability and lesser-included offenses" in State v. Bielkiewicz,

267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v.

Fair, 45 N.J. 77, 95 (1965)) (holding the "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'").

     Second, defendant claims the prosecutor's inveighing the

jury in closing not "to split the verdict," arguing "[e]ither

[defendant] was there and he did these offenses or he wasn't,"

while not constituting "prosecutorial misconduct per se,"

"omitted the requirements that to be guilty as an accomplice,

                                6                           A-2649-15T3
one must have a purpose to facilitate the offense and must

possess the criminal state of mind necessary to be proved

against the principal" here, "a knowing or purposeful mens rea."

    Defendant claims those two errors compounded the third,

which was instructing the jury that if it was satisfied that

another person, not charged, shot and killed Glover, it could

"draw an inference from the weapon used, that is the gun, and

from the manner and circumstances of the killing, as to

defendant's purpose or knowledge."   Defendant claims the court's

failure to instruct the jury it had to first find that defendant

"knew Walker was armed with a deadly weapon" made the

instruction on the permissive inference a "critical error," in

light of the "inadequate and misleading accomplice liability

charge" and the prosecutor's closing.

    We find no merit in those arguments.   After the comments

defendant cites as improper in the prosecutor's closing, the

prosecutor told the jury that "one of the things that you're

going to be asked also is to make a determination . . . that

[defendant] shared the same intent that [Walker] or whomever did

that day when they executed this hasty ambush."   Thus judging

the prosecutor's entire statement to the jury on accomplice

liability, we find nothing misleading about it.   See State v.

Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005).

                               7                            A-2649-15T3
       The facts of this case made the charge a straightforward

one.   The accomplice liability charge the court delivered on the

murder count tracked closely the model charge and was accurate

in all respects.    Nothing more was required.   Defendant opposed

a charge on lesser-included offenses of murder and the court

agreed the evidence did not support one.    See N.J.S.A. 2C:1-

8(e); State v. Alexander, 233 N.J. 132, 142 (2018).    The jury

was instructed specifically and repeatedly that in order to

convict defendant of murder, it had to find he "possessed the

criminal state of mind that is required to be proved against the

person who actually committed the criminal act," a purposeful

and knowing intent to cause Glover's death.

       A Bielkiewicz instruction is not required where the

evidence adduced at trial cannot support a theory that the

defendant possessed a lesser mental state than the other

participant.    State v. Rue, 296 N.J. Super. 108, 115 (App. Div.

1996) ("The difference between this case and Bielkiewicz is that

the evidence in that case could have supported a finding that

defendant Bielkiewicz did not share [the principal's] homicidal

state of mind."); see also State v. Norman, 151 N.J. 5, 38

(1997) ("There is simply no reasonable view of the evidence that

would permit one to conclude that [the] defendants fired the



                                 8                           A-2649-15T3
shots or aided in the firing of the shots with anything less

than homicide in mind.").

    The critical issue in this case was whether defendant was

the man in the video with the gun.      If he was, the evidence was

overwhelming that defendant and the other shooter, presumably

Walker, shared a murderous intent.      The video shows the men in

front of the Union Superette spring to their feet and begin to

scatter before defendant enters the frame, strongly suggesting

that shots had already been fired.      Defendant is next seen

chasing some of the men, gun in hand.       Afterward, Glover is

dead, shot both in the forearm and fatally in the head and Kozar

has a gunshot wound to his leg.

    There was no basis in the evidence to infer any difference

in the shooters' mental states.       They drove up to a group of men

on a corner in Jersey City and started shooting.       As the Court

wrote in Norman, "[t]here is simply no reasonable view of the

evidence that would permit one to conclude that defendant[]

fired the shots or aided in the firing of the shots with

anything less than homicide in mind."       151 N.J. at 38.   We

accordingly find no harm in the prosecutor's statement of the

law in summation or the court's charge to the jury.

    We also reject defendant's claim that prosecutorial

misconduct deprived him of a fair trial.      In the video of

                                  9                             A-2649-15T3
Scott's statement to police, she marked and initialed various

photographs presented to her by the detectives, but refused to

sign photographs identifying defendant after viewing the video

of the shooting, explaining she did not "want to be in the

middle of this" and had "a child to live for."

    The prosecutor referenced those remarks in his summation

saying, "after watching a video of what they can do, I think

that the best evidence of the fact that Shanifah Scott told the

truth when she spoke to detectives . . . is her retraction on

the stand before you last week."   Defendant claims that by

insinuating Scott recanted her statements because she feared

defendant, in the absence of any evidence he threatened her, the

prosecutor introduced what was "[i]n essence . . . prohibited

'bad character' evidence that unfairly turned the jury against

defendant," denying him a fair trial.   We disagree.

    Defendant did not object to the admission of Scott's

refusal to initial photographs of defendant.     The statement did

not attribute any bad act to defendant, making it unlikely an

objection would have been availing under N.J.R.E. 404(b).     Scott

could have been simply expressing a more generalized fear of

retaliation from others in the community.   See State v. Byrd,

198 N.J. 319, 340-41 (2009) (acknowledging "the climate of fear

that prevails in some crime-infested neighborhoods" has

                              10                            A-2649-15T3
"undermined law enforcement's ability to prosecute even murder

cases").   For the same reason, it is unlikely that Scott's

statement would have been excluded under N.J.R.E. 403 even had

defendant objected to its admission, which he did not.    See

State v. Covell, 157 N.J. 554, 568 (1999).

    Further, in her closing, defense counsel repeatedly

attacked Scott's credibility and impugned her unwillingness to

initial photos she claimed were of defendant.    She referred to

Scott laughing during her statement "as if this was a joke" and

repeatedly noted Scott "[n]ever signed and dated any photograph"

of defendant.   As to that point, counsel told the jury "don't

get confused and think, oh, well, you know she was afraid."

Counsel reminded the jury that Scott said "I'm not afraid, I got

my brothers that will protect me."   Counsel also asked the jury

to recall when Scott "stood up here in the courtroom and she

said, I lied, and the Prosecutor said, oh, do you not want to

testify because you're afraid, she was, like, no."

    Given there was no error in admitting Scott's refusal to

initial the photos and the tenor of defense counsel's closing,

we find the prosecutor's remarks in summation no more than fair

comment on the evidence.   See State v. Jackson, 211 N.J. 394,

409 (2012).   In no event could we find the comments so egregious

as to have deprived defendant of a fair trial.    See State v.

                               11                          A-2649-15T3
Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, 552 U.S.

1146.

    Affirmed.




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