State v. Dwayne E. Slaughter (070372) , 219 N.J. 104 ( 2014 )

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,
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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.
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CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
CUFF (temporarily assigned) join in JUDGE RODRÍGUEZ’s opinion.
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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
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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.
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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
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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
1