STATE OF NEW JERSEY VS. DAQUAN KEATON (14-10-1567, HUDSON COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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.
12 A-2649-15T3