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

Victim Roosevelt Morrow was bludgeoned to death; no physical evidence (DNA/shoeprints) directly tied Slaughter to the assault.
Slaughter’s girlfriend, Tanisha Day, gave a sworn, audiotaped police statement four days after the homicide saying, among other things, that Slaughter told her “he hope he didn’t kill this n----a,” and that Slaughter had blood on his pants; she was available to testify but later claimed lack of memory at trial.
Co-defendant Pritchard Watts pleaded guilty to robbery and testified against Slaughter, giving a version that implicated Slaughter as an active participant; Slaughter testified he was present but claimed Watts was the principal assailant.
At an N.J.R.E. 104 hearing the trial judge found Day’s claimed loss of memory feigned and admitted her recorded statement into evidence without requiring her to testify before the jury.
Slaughter was convicted of aggravated manslaughter, conspiracy, and aggravated assault; the Appellate Division found the admission erroneous but harmless; the Supreme Court granted certification.

Issue	State's Argument	Slaughter's Argument	Held
Whether a prior recorded statement of an available witness who feigns memory may be admitted without the witness testifying before the jury	The statement was admissible under Brown/Cabbell principles and was cumulative/ambiguous so harmless; having Day testify could have hurt defense	Admission without cross-examination before the jury violated Confrontation Clause rights and denied a fair trial	Admission without requiring the witness to testify before the jury violated the Confrontation Clause; jury must be able to observe and cross-examine the witness when memory is feigned
Whether the constitutional error (admission of the audiotaped statement without live cross-exam) was harmless beyond a reasonable doubt	Any error was harmless because Day’s statement was ambiguous and cumulative to other evidence; jury instruction mitigated risk	The statement could have tipped the credibility balance in a case that turned on conflicting eyewitness accounts; error was not harmless	Error was not harmless beyond a reasonable doubt; convictions vacated and case remanded for a new trial

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars admission of testimonial out-of-court statements without prior cross-examination unless witness unavailable)
State v. Brown, 138 N.J. 481 (1994) (prior inconsistent statements may be admitted when witness lacks recollection of events)
State v. Cabbell, 207 N.J. 311 (2011) (when a witness feigns memory, the jury must observe the witness and hear cross-examination; admitting recorded statement without live testimony can violate confrontation rights)
Chapman v. California, 386 U.S. 18 (1967) (constitutional error requires reversal unless harmless beyond a reasonable doubt)
State v. Dennis, 185 N.J. 300 (2005) (articulates the harmless-error inquiry under Chapman)