                                                    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                         State of New Jersey v. Dwayne E. Slaughter (A-134-11) (070372)

Argued September 10, 2013 -- Decided August 12, 2014

RODRÍGUEZ, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

          In this appeal, the Court considers whether the admission at trial of an available witness’s prior recorded
police statement without giving defendant the opportunity to cross-examine the witness in front of the jury violated
defendant’s constitutional confrontation rights and, if it did, whether the violation constituted harmful error.

          Roosevelt Morrow (Morrow) was found dead in his home. His death was caused by multiple blunt force
injuries to the head. Law enforcement officers were unable to identify the assailant based on the physical evidence
found at the crime scene. As the investigation progressed, the investigators began to focus on Morrow’s neighbor,
defendant Dwayne E. Slaughter. Four days after the homicide, defendant’s live-in girlfriend, Tanisha Day,
consented to give a sworn taped statement to the police. Day described her interactions with defendant on the day of
Morrow’s death, including: “And I was asking him again what did he do. And he said he hope he didn’t kill this n--
-a”; which Day said she took to mean that “he had beaten somebody up.” Day also noted that defendant had blood
on his pants and was with Pritchard Watts on the day in question. Defendant and Watts thereafter both admitted to
police that they were present in Morrow’s home during the crime; however, each blamed the other as being the sole
actor in the beating of Morrow. Although defendant stated that he was wearing the same jeans he wore on the day of
the crime, the DNA on the jeans did not match Morrow’s.

          Pursuant to a plea agreement, Watts pleaded guilty to first-degree robbery in exchange for a recommended
sentence, and agreed to testify against defendant. Watts testified that he and defendant planned to rough up and rob
Morrow, who operated a store out of his home. According to Watts, they gained entry to Morrow’s home by stating
that they wanted to purchase sodas, after which Watts hit Morrow and proceeded to the bedroom to look for money.
Upon exiting the bedroom, he saw defendant beating Morrow, who was on the floor bleeding. Watts told defendant
to stop and they left shortly thereafter. Watts claimed that it was not supposed to happen that way. Watts also
testified that he and defendant exchanged letters while being held in the same jail. The letters, which were read to
the jury, implicated defendant. Defendant provided a different version of the incident. Defendant testified that he
and Watts went to Morrow’s home because Watts wanted a soda. According to defendant, he remained outside
smoking a cigarette while Watts went inside. Several minutes later, after hearing “a loud noise and . . . [Morrow]
scream out,” defendant entered the house to find Watts beating Morrow. Watts then proceeded to the back room to
look for money before the two men left. Defendant also testified that he did not communicate with Watts while in
jail. Finally, defendant clarified his conversation with Day on the day in question, testifying that he meant “[he]
hoped [Watts] didn’t kill [Morrow].”

          At trial, the State sought to admit Day’s recorded statement to the police. The judge conducted an N.J.R.E.
104 hearing, outside the presence of the jury, to determine the statement’s admissibility. At the hearing, Day
testified that although she remembered giving a statement to the police, she did not remember what defendant said to
her or what happened the day of the homicide. The judge determined that Day’s loss of memory was feigned and
that the statement was admissible pursuant to State v. Brown, 138 N.J. 481 (1994), overruled on other grounds by
State v. Cooper, 151 N.J. 326 (1997). The judge ordered that Day did not have to testify or be present at trial when
her statement would be admitted in evidence. The jury ultimately found defendant guilty of first-degree aggravated
manslaughter, second-degree conspiracy, and second-degree aggravated assault. The court denied defendant’s
motion for a new trial.

         The Appellate Division affirmed defendant’s convictions. The panel concluded that although the trial
judge did not err in finding the witness’s lack of memory was feigned, the trial court erred in allowing Day’s
audiotaped statement to be played to the jury without requiring her to testify in front of the jury. The panel,

                                                          1
however, concluded that any error was harmless. The Court granted defendant’s petition and summarily remanded
the matter to the Appellate Division for reconsideration in light of State v. Cabbell, 207 N.J. 311 (2011). Upon
reconsideration, the Appellate Division again concluded that the trial court’s error was harmless beyond a
reasonable doubt. The Court granted defendant’s petition for certification. 211 N.J. 608 (2012).

HELD: The playing of the available witness’s audiotaped police statement to the jury without requiring the witness
to testify in front of the jury violated defendant’s constitutional confrontation rights, and that violation constituted
harmful error.

1. In criminal proceedings, the United States Constitution protects defendants against the use of out-of-court
testimonial statements. See generally Crawford v. Washington, 541 U.S. 36 (2004). The intersection of the
protections of the Confrontation Clause and the use of prior inconsistent statements has been explained twice by this
Court. In State v. Brown, 138 N.J. 481 (1994), the Court recognized that “constitutional confrontation guarantees are
not violated by a witness’s lack of recollection regarding an introduced prior statement or the events described in
such a statement.” Id. at 544. In Cabbell, due to the constitutional implications to the admission of a prior
inconsistent statement due to feigned memory, the Court explained that in order to satisfy constitutional
confrontation guarantees, the jury must observe the witness and make a decision about which account is true.
Cabbell, 207 N.J. at 336-37. Therefore, a trial court may admit prior inconsistent witness statements so long as “the
witness feigns a loss of memory on the stand.” Id. at 337 (emphasis added). (pp. 17-28)

2. In Cabbell, the State presented a witness to testify who had previously provided a recorded statement to the
police. Id. at 319. After the witness stated on the stand that she did not want to testify, the court conducted a
N.J.R.E. 104 hearing to determine the admissibility of her prior recorded statement. Ibid. At the hearing, the
witness answered either “I don’t remember” or “I wish not to testify” to most questions, and claimed that she was
under the influence of crack cocaine when she witnessed the crime and gave her statement. Id. at 320. The trial
court admitted the witness’s prior recorded statement as a past recollection recorded. Id. at 321. This Court found
that the trial court committed a constitutional error that was harmful and reversible when it admitted the witness’s
statement without requiring her to take the stand, thereby thwarting defense counsel’s opportunity to cross-examine
her in the jury’s presence. Id. at 330-33, 335-39. The Court “refuse[d] to speculate . . . that the jury rejected [the
witness’s] statement,” and noted that she was the only witness who identified a particular defendant as a shooter. Id.
at 338. The Court also noted that because defense counsel did not have an opportunity to cross-examine the witness,
the jury never heard her testimony about her memory being affected by crack cocaine. Id. at 332. Where the trial
court commits a constitutional error, that error is to be considered “a fatal error, mandating a new trial, unless [the
court is] ‘able to declare a belief that it was harmless beyond a reasonable doubt.’” Id. at 338 (quoting Chapman v.
California, 386 U.S. 18, 24 (1967)). “‘[T]he question is whether there is a reasonable possibility that the [error]
complained of might have contributed to the conviction.’” State v. Dennis, 185 N.J. 300, 302 (2005) (quoting
Chapman, 386 U.S. at 23-24), cert. denied, 547 U.S. 1045 (2006). (pp. 18-20).

3. The admission of Day’s audiotaped statement without requiring her to testify in front of the jury violated
defendant’s confrontation rights. Under the circumstances of this case, the Court cannot conclude the error was
harmless beyond a reasonable doubt. There was no physical evidence linking defendant to the beating, and there was
no objective corroboration of the State’s theory of the case. The case turned directly on the diametrically opposed
testimony of defendant and Watts, and Day’s audiotaped statement could well have tipped the scale in favor of
Watts’s account of the incident. Day’s statement using the term “he” could be interpreted to refer to either Watts or
defendant. While one interpretation could have exonerated defendant, a more likely meaning is that defendant had
referred to himself as the culprit. Nevertheless, it was error to admit this ambiguous statement without subjecting
Day -- whose choice of language created the ambiguity -- to cross-examination before the jury. This error denied
defendant a crucial avenue of clarification as well as confrontation. Although Day did not reveal any facts, such as
intoxication, that undermined her statement, cross-examination would have allowed counsel to explore her state of
mind at the time and the jury to assess her demeanor and credibility. The State’s theory of the case rested heavily on
Day’s out-of-court statement and the Court cannot declare the erroneous admission of that statement harmless. (pp.
21-23)

          The judgment of the Appellate Division is REVERSED, defendant’s convictions are VACATED, and the
matter is REMANDED for a new trial.


                                                           2
       CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.




                                        3
                                      SUPREME COURT OF NEW JERSEY
                                        A-134 September Term 2011
                                                  070372

STATE OF NEW JERSEY,

    Plaintiff-Respondent,

            v.

DWAYNE E. SLAUGHTER,

    Defendant-Appellant.


            Argued September 10, 2013 – Decided August 12, 2014

            On certification to the Superior Court,
            Appellate Division.

            Robert L. Sloan, Assistant Deputy Public
            Defender, argued the cause for appellant
            (Joseph E. Krakora, Public Defender,
            attorney).

            Teresa A. Blair, Deputy Attorney General,
            argued the cause for respondent (John J.
            Hoffman, Acting Attorney General of New
            Jersey, attorney).

    JUDGE RODRÍGUEZ (temporarily assigned) delivered

the opinion of the Court.

    Following a jury trial, defendant, Dwayne E. Slaughter, was

convicted of aggravated manslaughter, conspiracy, and aggravated

assault.    These charges arose from the brutal beating of

defendant’s seventy-nine-year-old neighbor, Roosevelt Morrow

(Morrow).    Defendant’s live-in girlfriend, the mother of his

three children, Tanisha Day, gave an audiotaped statement to


                                  1
investigators days after Morrow’s death, in which she attributed

an incriminating remark to defendant.   Day’s statement was

admitted at trial.   However, she did not testify, although she

was available to do so.

    The issue in this case is whether, consistent with the

Confrontation-Clause requirements of the United States and New

Jersey Constitutions, reversal of defendant’s convictions is

required because Day’s statement was admitted at trial and she

was not available for cross-examination.     We conclude that the

admission of Day’s statement violated defendant’s confrontation

rights and that this violation constituted harmful error.     We

vacate defendant’s convictions and remand the matter to the Law

Division for a new trial.

                                I.

                                A.

    On June 19, 2005, in the mid-afternoon, Morrow’s lifeless

body was discovered by his wife Callie Mae Morrow (Callie Mae)

inside their Salem City home.   He had been struck repeatedly on

the head with a blunt instrument.

    The following evidence was presented at trial.     Callie Mae

testified that as she left for work around 5:15 a.m., she saw

defendant around the corner from her home.    She had known

defendant for a long time because he frequently bought



                                2
cigarettes from her husband, who operated a store from their

home.

    Callie Mae testified that although Morrow regularly called

her on workdays at around 9:00 a.m., he did not do so that day.

Therefore, Callie Mae telephoned her husband at around 9:30

a.m., but received no answer.     Becoming concerned, she continued

to call, but did not reach him.        Around 3:15 p.m., she left work

to go home.

    Callie Mae testified that she arrived home and found the

front porch door open but the inner door locked.        Once inside,

she discovered the home had been ransacked.        She found her

husband’s lifeless body lying on the living room floor in a pool

of blood.     Morrow’s money clip was missing as were his two

canes, one metal and one wood.     Callie Mae went outside her

house screaming.     The Morrows’ neighbor, Laura Brown, responded

to Callie Mae’s screams, went to comfort her and called 9-1-1.

    Paramedic John F. Ruhl arrived at the scene and saw

Morrow’s body “laying face down on the floor with an obvious

injury to the head, . . . not moving, . . . unconscious and

unresponsive[.]”

    Medical Examiner Dr. Gerald Feigel opined that Morrow’s

death was caused by “multiple blunt force injuries to the head.”

According to Ruhl, Morrow had a number of abrasions and

lacerations on, as well as internal damage to, the head.

                                   3
    Salem County Prosecutor’s Detective Jeffrey Scozzafava, who

was assigned to the forensic investigation unit, qualified as an

expert in the field of bloodstain pattern analysis.      He

identified five footwear impressions on Morrow’s shirt, four

from a work boot and one from a sneaker.       According to Detective

Scozzafava, a suspect’s shoe came in contact with blood and the

suspect then stepped on the shirt.       There were other bloodstains

found on Morrow’s shirt, which were likely spattered on Morrow

while he was lying on the floor.       All the blood samples taken at

the crime scene matched Morrow’s blood.

    Police investigators also obtained one fingerprint from the

crime scene.   However, the fingerprint had no match in the

Automated Fingerprint Identification System.

                                 B.

    As the investigation progressed, the Salem County

Prosecutor’s Office began to focus on defendant.       Senior

Investigator Steven Dick interviewed defendant’s live-in

girlfriend, Day, who initially provided no useful information.

After further investigation, Investigator Dick and his partner

returned to defendant and Day’s home for a second interview on

June 23, 2005, four days after the homicide.       She consented to a

search of the home.

    According to Investigator Dick, Day’s story had changed

from their first conversation.     She was taken to headquarters to

                                   4
continue the interview.     Day consented to give a sworn taped

statement.   In her audiotaped statement, Day described her

interactions with defendant on the day of Morrow’s death.     In

reference to defendant’s conduct, the following exchange took

place.

          [POLICE OFFICER]:   Okay.   And can you just
          explain to us exactly ah, how that occurred?

                [TANISHA DAY]: He came in, he told me
          to go upstairs and get the kids, put ‘em in
          my room.     I went upstairs, I went in my
          kids’ room, my son was still ‘sleep, but my
          youngest daughter was awoke. I took her in
          my bedroom, we layed across the bed and I
          slightly fell asl, fell asleep.    And wo, I
          opened my eyes and he was standing in front
          of me and asked him what did he do. And he
          didn’t say anything, an, I asked him again
          and he told me to shut up, shush, be quiet.
          And then I asked him again and then he
          turned around, he started taking the clothes
          off. I got up, put my daughter back in her
          room and I went downstairs and I sat on a
          chair, nervous.    Got up, I looked out the
          window, I didn’t see anybody. I opened the
          door, I cracked it, looked out the door and
          I didn’t see anything and went and sat back
          down.     I went back, got up, and went
          upstairs again.    And I went in, I went in
          the room, in my bedroom.    And I was asking
          him again what did he do.     And he said he
          hope he didn’t kill this n---a.

          Q:   What did you, what did you take him to
          mean by saying that?

               A:    That he had beaten somebody up.

          Q:    Was there anybody else with him at the
          time?

               A:    Yes.

                                  5
            Q:   Who was that?

                 A:     Pritchard Watts.

            [emphasis added.]

Day also stated that she had noted that defendant had blood on

his pants when he entered the home the day on which the reported

exchange took place.

    The next day, defendant and Watts were asked to come to

headquarters to meet Investigator Dick.        Defendant provided a

sworn statement.      After giving the sworn statement, defendant

spoke with his mother and grandmother.        Defendant then told

Investigator Dick that he was sorry for lying and wanted to tell

the police, truthfully, what had happened.       Defendant provided a

second sworn statement, during which he admitted that he was

wearing the same jeans he wore on the day of the incident.          The

police tested the jeans for DNA.        At trial, the prosecutor

stipulated that the DNA on the jeans matched defendant’s, not

Morrow’s.

    Defendant gave a third statement to the investigators

admitting in this statement that he was present during the

beating of Morrow, but that he did not participate in it and

that Watts was the sole assailant.

    Watts, in contrast, did not provide a sworn, taped, or

written statement.      The police spoke informally with Watts on


                                    6
two occasions.    During the first interview, Watts denied any

knowledge of the incident.    Later, when Watts spoke with the

police, he admitted that he was there and also placed defendant

at the scene.    Watts’s statement to the police directly

contradicted defendant’s, i.e., Watts admitted being present

during the beating but accused defendant of being the only

actor.

    Pursuant to a plea agreement, Watts pleaded guilty to

first-degree robbery in exchange for a recommendation that any

sentence would not exceed a ten-year term subject to a minimum

term pursuant to the No Early Release Act (NERA), N.J.S.A.

2C:43-7.2.   Watts then testified for the State at defendant’s

trial.

                                 C.

    At trial, Watts testified that sometime in the early

morning of June 19, 2005, he saw defendant at Day’s home.

According to Watts, defendant told him that Morrow had $150,000

and suggested that they should rob him.    Watts agreed.    The plan

was for both men to rough up Morrow.

    Watts testified that when he and defendant arrived at

Morrow’s home, Watts went in through the screen door, followed

directly by defendant.    Watts stated that he knocked on the door

and Morrow invited him into the house.    At that point, Morrow



                                  7
was seated in a chair in the living room and defendant was on

the porch smoking a cigarette.

    Watts testified that he asked to purchase two sodas.      He

stated that as Morrow went to retrieve the sodas, defendant

entered the home and stood next to Watts.   Watts testified that

he then punched Morrow in the face, and he fell to the floor,

and that as Morrow began to get up, defendant kicked him in the

head or face.   According to Watts, Morrow fell face first and

then moved, “scrambling, trying to get up.”   Watts went to the

bedroom for three to five minutes to look for the money.   As he

was looking through the drawers, he heard defendant tell Morrow

to stay down.   Watts testified that as he exited the bedroom, he

saw defendant kicking Morrow.    He also saw defendant hit Morrow

with a wooden object, causing a piece of the object to fly off.

    Watts testified that he told defendant to stop and that he

was leaving the house.   When Watts left, he saw that Morrow was

on the floor bleeding.   Watts said that he took a box of cigars

with him as he left and that defendant left the home soon after.

Watts testified that he did not see defendant carrying anything

from Morrow’s home.   He stated that both men returned to Day’s

house.   Watts said he saw blood on defendant’s right pant leg

and told defendant about it.

    According to Watts, the day after the incident, he spoke

with his girlfriend Chanelle Armstead and told her that “it

                                 8
wasn’t supposed to happen that way, and that [he (Watts)] didn’t

kill [Morrow].”   The only other information Watts provided was

that he hit Morrow.    Further, according to Watts, he was only in

the living room and bedroom of the home.

     Watts also testified that on June 20, 2005, defendant

telephoned him to tell him that Morrow had died.     Watts said

that he advised defendant to maintain his routine so he would

not look suspicious.     According to Watts, defendant was taken to

jail between a half hour to an hour after Watts had arrived in

jail.    Watts said he signaled to defendant that he was going to

write him and that defendant should write back.     At Watts’s

request, another inmate delivered letters to defendant.     While

he did not actually see the cell number where the inmate slipped

the letters, Watts saw the inmate bend down and slide the letter

under a cell door.     According to Watts, defendant wrote letters

in return.   The letters, which were read to the jury, implicated

defendant.   Watts identified the handwriting as defendant’s.

     Defendant testified on his own behalf and gave a different

version of events.     According to defendant, at the time of the

incident, he was living with his girlfriend, Day.     On the

morning of June 19, 2005, he went to Morrow’s home to buy a

cigar.   He had gone there previously to buy cigars or cigarettes

and had known Morrow since he was a child. He was only in the

Morrows’ residence for about a minute and then went back to his

                                   9
girlfriend’s house. Watts arrived soon thereafter, and defendant

and Watts went outside to smoke marijuana for approximately a

half hour.

    At the time, according to defendant, he was wearing “a pair

of blue NBA basketball team jeans, a pair of white blue and gray

Nike Air Max sneakers and a white tank top.”     Defendant

testified that Watts was wearing “a pair of wheat colored

construction boots, a pair of blue jean shorts, a black t-shirt

and a black baseball cap.”

    While it was still early in the morning, defendant and

Watts returned to Morrow’s home because Watts wanted a soda.

When they arrived, defendant remained outside smoking a

cigarette while Morrow let Watts inside to buy sodas.

    Defendant testified that he was outside for three to four

minutes before going inside.   He went into the living room after

he heard “a loud noise and . . . heard [Morrow] scream out.”

Defendant saw Watts stomping on Morrow’s face.     When Morrow

attempted to turn over and crawl away, Watts kicked him in the

head and shoulder area.   Defendant told Watts to stop.      Watts

stopped when Morrow passed out.    Watts then jumped over Morrow

and went into the back room.

    Defendant yelled at Watts to “come on” and that they “had

to leave.”   Watts came out of the room after a minute or two,

with a wallet in his hand.   Defendant knocked the wallet out of

                                  10
Watts’s hand, and they both returned to defendant and Day’s

house.   Day, defendant’s children, and Armstead were all at the

home when defendant and Watts arrived.

    According to defendant, he and Watts went into the kitchen

to speak.    Defendant testified that he asked Watts what had

happened and also told Watts that he had blood on his face.

According to defendant, when he and Watts were speaking in the

kitchen, defendant’s daughter and Day awoke.    Defendant told Day

to bring their daughter upstairs and he followed Day into the

upstairs bedroom.    At the same time, Watts went into the

bathroom and also called Armstead to meet him there.

    Defendant clarified his conversation with Day, testifying

that he meant “[he] hoped [Watts] didn’t kill [Morrow].”

According to defendant, after that conversation, defendant and

Watts left in Armstead’s car and drove around for about twenty

to thirty minutes.    According to defendant, while he was in jail

he did not communicate with Watts in any way.

    At trial, the State sought to admit the statement Day made

to police.   The judge conducted an N.J.R.E. 104 hearing, outside

the presence of the jury, to determine the admissibility of

Day’s statement.    At the hearing, Day testified that although

she remembered giving a statement to the police, she did not

remember what defendant said to her or what happened the day of

the homicide.   After questioning by the judge, she remembered

                                 11
certain, mostly irrelevant, facts surrounding the taking of her

statement.

    The judge determined that Day’s loss of memory was feigned

and that the statement was admissible pursuant to State v.

Brown, 138 N.J. 481 (1994), overruled on other grounds by State

v. Cooper, 151 N.J. 326 (1997).    The judge ordered that Day did

not have to testify or be present at trial when her statement

would be admitted in evidence.

    The jury found defendant guilty of first-degree aggravated

manslaughter, second-degree conspiracy and second-degree

aggravated assault.   The judge imposed concurrent terms

aggregating twenty years subject to a NERA minimum term.

Defendant moved for a new trial, which the court denied.

                                  D.

    Defendant appealed his convictions.      In an unpublished

opinion, the Appellate Division affirmed.     The panel concluded

that the trial court erred in allowing Day’s audiotaped

statement to be played to the jury without requiring the

declarant to testify in front of the jury.     The panel concluded

that the trial judge did not err in finding the witness’s lack

of memory was feigned, nonetheless, defendant was denied his

right to confrontation because the witness never testified to

her lack of memory in front of the jury.     Notwithstanding that

determination, the panel concluded that any error was harmless.

                                  12
    Defendant petitioned for certification.      We granted the

petition and summarily remanded the matter to the Appellate

Division for reconsideration in light of our decision in State

v. Cabbell, 207 N.J. 311 (2011).     State v. Slaughter, 212 N.J.

568 (2011).

    Upon reconsideration, the Appellate Division again

concluded that the trial court’s error was harmless beyond a

reasonable doubt.   Defendant again petitioned for certification.

We granted the petition.   State v. Slaughter, 211 N.J. 608

(2012).

                               II.

    On appeal, defendant contends that the judge’s admission of

a recorded statement, from a crucial witness who did not testify

at defendant’s trial, violated his confrontation and due process

rights and deprived him of a fair trial.     U.S. Const. amends. V,

VI, XIV; N.J. Const., Art. I, ¶¶ 1, 9, 10.     He argues that the

Appellate Division was mistaken when it determined that the

admission of Day’s statement, without the ability to cross-

examine her, was harmless beyond a reasonable doubt.     According

to defendant, the United States Supreme Court has long

“recognized that the right to confrontation must be vindicated

before the jury” (citing Crawford v. Washington, 541 U.S. 36,

124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004); Douglas v. Alabama,



                                13
380 U.S. 415, 419-20, 85 S. Ct. 1074, 1077, 13 L. Ed. 2d 934,

937-38 (1965).

    Defendant argues that Day’s testimony, if it had been

subject to cross-examination, could have persuaded the jury to

discount her statement to the police.     Therefore, he argues the

failure to allow cross-examination in front of the jury was

reversible error.   To support this contention, defendant relies

on the recently decided case of State v. Cabbell.     In discussing

Cabbell, defendant emphasizes that “[w]ithout cross-examination

before the jury, the defendant had no opportunity to challenge

the statement with the witness’s drug use and prior record, ‘or

to probe into any other area that might have affected her

credibility in the eyes of the jury.’”     Cabbell, supra, 207 N.J.

at 332.

    Defendant argues that the facts presented here are “nearly

identical” to those of Cabbell and, therefore, the Court should

rely on Cabbell to conclude that reversal is necessary.

According to defendant, “[t]he statement directly contradicted

the defense’s claim that the co-defendant was solely responsible

for the victim’s death.”   Day made inculpatory statements

against defendant, including one in which defendant said “he

hoped he did not kill [Morrow].”     Defendant argues that if Day

had testified, cross-examination of the witness “could have

persuaded the jury to discount her statement to the police,

                                14
which described defendant’s incriminating statements and the

presence of blood on his pants.”

    The State argues that even if the admission of Day’s

statement was erroneous, it was nonetheless harmless.     The State

argues each of the purported inculpatory statements “actually

proved nothing against defendant that was not already before the

jury.”   The State explains that the blood evidence found on

defendant’s pants was cumulative to other evidence.    Further,

defendant admitted to being at the scene, so the fact that he

may have had blood on his pants proved very little.    The State

also maintains that the statement that “‘he said he hope he

didn’t kill this [person]’ was so ‘fraught with ambiguity’ as to

be rendered meaningless.”

    The State contends that “the Appellate Division properly

ruled that admission of Day’s sworn police statements at trial

without Day testifying and being cross-examined before the jury

was harmless beyond a reasonable doubt.”

    The State further argues that under any circumstances,

Day’s audiotaped statement would have been admitted and

considered by the jury.     The State proposes that it was better

for defendant not to have Day testify, because then defendant

could have provided his own explanation of the statement

attributed to him.   In the alternative, if Day had testified,

she either would have explained that the statement referred to

                                  15
defendant’s fear that he killed Morrow, or she may have claimed

Watts committed the crime, and then the State could have

explored her potential bias.

    Acknowledging that “this case was a credibility contest

between defendant and his cousin, Watts,” the State argues that

“Day’s statement offered nothing more in support of either the

robbery or Morrow’s death.”    The State argues that the letters

defendant wrote merely stated the fact that defendant had blood

on his pants.   This evidence was thus cumulative.

    Further, the State contends that Day’s testimony is

inconsequential due to its apparent ambiguity:    defendant’s

statement that “he said he hope he didn’t kill this [person],”

was vague.   Day never clarified who “he” was and instead focused

on “this [person].”   “He” could refer to either defendant or

Watts.   The State emphasizes that defendant himself testified

that he said he hoped Morrow did not die.    Thus, the State

maintains that there is apparently little difference between

those statements attributed to defendant by Day and the

testimony provided by defendant at trial.

    Notwithstanding the ambiguity in the statement, the State

argues that the judge provided an instruction to the jury that

they should be cautious when dealing with Day’s statement and

the jury is presumed to have followed this instruction.



                                 16
    Finally the State distinguishes the holding in Cabbell,

arguing that, in that case, the witness was the only eyewitness

identifying the defendant as the shooter.    Additionally, in

Cabbell, there were numerous inconsistencies in the record,

unlike, the State contends, this case.

                                 III.

    In criminal proceedings, the United States Constitution

protects defendants against the use of out-of-court testimonial

statements.   See generally Crawford, supra, 541 U.S. 36, 124 S.

Ct. 1354, 158 L. Ed. 2d 177 (outlining parameters of

admissibility of testimonial hearsay evidence).    As Crawford

explains, the Confrontation Clause of the United States

Constitution bars the “admission of testimonial statements of a

witness who did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity for

cross-examination.”   Id. at 53-54, 124 S. Ct. at 1365, 158 L.

Ed. 2d at 194.

    The intersection of the protections of the Confrontation

Clause and the use of prior inconsistent statements has been

explained twice by this Court.    In Brown, supra, 138 N.J. 481

(1994), the Court originally recognized that “constitutional

confrontation guarantees are not violated by a witness’s lack of

recollection regarding an introduced prior statement or the

events described in such a statement.”    138 N.J. at 544.

                                  17
    More recently, this Court reaffirmed that holding in

Cabbell, supra, 207 N.J. at 336.        Due to the constitutional

implications to the admission of a prior inconsistent statement

due to feigned memory, the Court explained that in order “[t]o

satisfy constitutional confrontation guarantees . . . ‘[t]he

jury . . . must observe the witness and make a decision about

which account is true.’”     Id. at 336-37 (quoting Brown, supra,

138 N.J. at 544).    Therefore, a trial court may admit prior

inconsistent witness statements so long as “the witness feigns a

loss of memory on the stand.”      Id. at 337 (emphasis added).

    In Cabbell, Timyan Cabbell and John Calhoun were indicted

on numerous charges, including murder.           Id. at 319.   The key

issue in the case was the identity of the shooters.            Ibid.     The

State presented Karine Martin as a witness to testify to the

issue of identity.   Ibid.    When called to the stand, Martin

admitted that she gave the police a truthful statement, but then

said she did not want to testify.        Ibid.

    Martin had previously provided a recorded statement to

police about the incident.     Id. at 317-18.       The trial court

conducted a N.J.R.E. 104 hearing to determine the admissibility

of Martin’s statement.     Ibid.   At the hearing, Martin responded

either “I don’t remember” or “I wish not to testify” to the

majority of questions.     Id. at 320.    When the prosecution

attempted to refresh her recollection with her statement, she

                                   18
said “she was under the influence of crack cocaine [w]hen [s]he

gave the statement and when [she] saw what happened.”          Ibid.

(alterations in original) (internal quotation marks omitted).

    The trial court decided to admit Martin’s statement as a

past recollection recorded.      Id. at 321.   Defense counsel

objected, arguing that he was not provided an opportunity to

cross-examine the witness before the jury.       Ibid.    The judge

overruled the objection and the statement was read to the jury.

Id. at 322.    In the statement, Martin identified Cabbell as the

one who shot the passenger in the truck.       Ibid.     Martin stated

that Calhoun began firing after the passenger was shot.          Ibid.

    This Court held the trial court erred in admitting Martin’s

statement without her taking the stand in the presence of the

jury.   Id. at 330-33, 335-37.     After finding a constitutional

error, the Court turned to the issue of whether the error was

harmless.     Id. at 337-38.   The Court “refuse[d] to speculate

. . . that the jury rejected Martin’s statement.”         Id. at 338.

The Court noted that she was the only witness who identified

defendant Cabbell as the shooter, and the other eyewitnesses’

testimony was inconsistent with Martin’s description; neither

witness identified Cabbell.      Ibid.   Thus, because defense

counsel did not have an opportunity to cross-examine Martin, the

jury never heard Martin’s testimony about her memory being



                                   19
affected by crack cocaine at the time of the incident and making

the statement to the police.     Id. at 332.

    Moreover, where the trial court commits a constitutional

error, that error is to be considered “a fatal error, mandating

a new trial, unless we are ‘able to declare a belief that it was

harmless beyond a reasonable doubt.’”     Id. at 338 (quoting

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17

L. Ed. 2d 705, 710-11 (1967)).    “‘[T]he question is whether

there is a reasonable possibility that the [error] complained of

might have contributed to the conviction.’”     State v. Dennis,

185 N.J. 300, 302 (2005) (quoting Chapman, supra, 386 U.S. at

23-24, 87 S. Ct. at 827-28, 17 L. Ed. 2d at 710-11), cert.

denied, 547 U.S. 1045, 126 S. Ct. 1624, 164 L. Ed. 2d 342

(2006).

    We note that the majority of cases in which the Court has

held errors to be reversible are those in which, upon a retrial,

the proffered statement or testimony would nonetheless be

inadmissible.   See, e.g., State ex rel. J.A., 195 N.J. 324, 351-

52 (2008) (finding reversible error where court allowed officer

to testify to eyewitness’s account of robbery, as testimony was

hearsay); State v. Sanchez, 129 N.J. 261, 278 (1992) (finding

reversible error where court admitted defendant’s uncounseled

statement against self-interest); State v. McCloskey, 90 N.J.

18, 29-32 (1982) (finding reversible error because admission of

                                  20
statements made by defendant while in custody violated his right

against self-incrimination); State v. Boratto, 80 N.J. 506, 522-

25 (1979) (finding reversible error where court admitted co-

defendant’s extrajudicial confession implicating defendant).

Under those circumstances, it is readily discernable that an

error is reversible because without the error the jury never

would have heard the inadmissible testimony.

                                  IV.

    Defendant admitted that he was present at the scene of the

crime, but portrayed his participation in the incident to be

limited.   Watts’s testimony was diametrically opposed to

defendant’s.   Watts admitted that he had a motive to steal money

and objects from Morrow, by force, if necessary, but he denied

beating Morrow.   There was no physical evidence linking

defendant to the beating.   The police did not match defendant’s

shoes to the marks found on Morrow’s shirt, or match defendant’s

DNA to the blood found at the scene.    There was also no

objective corroboration of the State’s theory of the case.

    Without Day’s statement, this case turned directly on the

conflicting testimony of defendant and Watts.    Therefore, Day’s

statement could well have “tipped the scale” in favor of Watts’s

account of the incident.

    The pretrial review of Day’s audiotaped statement reveals

at least two possible meanings.    One interpretation could have

                                  21
exonerated defendant.     A more likely meaning inculpated

defendant.   After Day recounted what defendant had told her --

“And he said he hope he didn’t kill this [person]” -- the police

asked Day what she thought defendant meant by the statement.

She replied, “that he had beaten somebody up.”     (Emphasis

added).   In that context, it would be reasonable for the jury to

conclude that defendant had referred to himself as the culprit.

Day also stated that she saw blood on defendant’s pants, which

could likewise implicate him.     Thus, it was error to admit this

ambiguous statement without subjecting Day -- whose choice of

language created the ambiguity -- to questioning before the

jury.

    The State argues that Day’s statement was ambiguous and

thus could not have provided a basis to find defendant guilty.

However, as stated earlier, the ambiguous statement was capable

of at least two meanings, one of which directly inculpated

defendant.   Admitting the statement without subjecting Day to

cross-examination denied defendant a crucial avenue of

clarification as well as confrontation.

    In Cabbell, supra, the Court found reversible error based

on the admission of an arguably otherwise admissible statement,

because the trial court did not allow defense counsel the

opportunity to cross-examine the declarant in front of the jury.

207 N.J. at 337-39.     In Cabbell, the fact that the witness’s

                                  22
statement would have otherwise been included as a past

recollection recorded was not dispositive; the Court still held

that the jury should have had an opportunity to hear cross-

examination.   This was especially true considering the fact that

on cross-examination during the N.J.R.E. 104 hearing the witness

testified that she was on     crack cocaine during the incident and

while giving her statement to police.       Id. at 331.

    Day did not reveal any facts, such as intoxication, that

undermined her statement.   But cross-examination would have

allowed counsel not only to explore her state of mind at the

time but also to probe for bias.       Of great import as well, the

jury was deprived of a chance to assess her demeanor and

credibility.

    The State’s theory of the case rested heavily on Day’s out-

of-court statement.   Under the circumstances, we cannot declare

that the erroneous admission of that statement was “harmless

beyond a reasonable doubt.”     Chapman, supra, 386 U.S. at 24, 87

S. Ct. at 828, 17 L. Ed. 2d at 710-11.

                                  V.

    The judgment of the Appellate Division is therefore

reversed.   Defendant’s convictions are vacated and the matter is

remanded for a new trial.

     CHIEF JUSTICE RABNER, JUSTICES LaVECCHIA, ALBIN, and
PATTERSON, and JUDGE CUFF (temporarily assigned) join in JUDGE
RODRÍGUEZ’s opinion.

                                  23
               SUPREME COURT OF NEW JERSEY

NO.   A-134                                 SEPTEMBER TERM 2011

ON CERTIFICATION TO           Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Respondent,

              v.

DWAYNE E. SLAUGHTER,

      Defendant-Appellant.




DECIDED            August 12, 2014
               Chief Justice Rabner                       PRESIDING
OPINION BY              Judge Rodríguez
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                      REVERSE/
CHECKLIST                              VACATE/
                                       REMAND
CHIEF JUSTICE RABNER                      X
JUSTICE LaVECCHIA                         X
JUSTICE ALBIN                             X
JUSTICE PATTERSON                         X
JUDGE RODRÍGUEZ (t/a)                     X
JUDGE CUFF (t/a)                          X
TOTALS                                    6




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