In State v. Andre Higgs (A-28-21/085863) (Decided March 30, 2023), the Supreme Court of New Jersey ruled that the trial court made three errors that warranted a new trial for Defendant Andre Higgs, who had been convicted of murder. One of the errors involved being denied access to an on-scene police officer’s internal affairs file to support the Defendant’s theory that the officer fired his firearm first, which led the Defendant to involuntarily fire the gun in his hand. The New Jersey Supreme Court held that to ensure that defendants in criminal trials are provided with the discovery necessary to adequately prepare for trial, they must be allowed, under certain circumstances, to access documents in law enforcement’s internal affairs files. The court also adopted a procedure to be used going forward.
Facts of State v. Higgs
Defendant Andre Higgs (Defendant) was tried and convicted for the murder of Latrena May, with whom he had a romantic relationship and shared a child. On the evening of May’s death, the Defendant and May were arguing on her front porch when East Orange Police Officer Kemon Lee approached them after hearing a woman’s voice shout “police” several times while he patrolled the area.
Officer Lee testified that shortly after exiting his patrol car, he asked May to come down from the porch, but the Defendant began shooting May. Officer Lee returned fire and shot the Defendant several times. According to the Defendant’s version of events, May pulled out a gun during their argument, and the Defendant took the gun away from her. He maintained that he tried to surrender as Officer Lee approached, but the officer fired his weapon at the Defendant, which led to the involuntary discharge of the gun in his hand, causing May’s death.
Prior to trial, the Defendant sought access to Officer Lee’s internal affairs file, which included prior incidents of the officer firing his weapon while on duty. Defendant argued that the prior incidents were relevant to his defense that Officer Lee fired first. The trial court denied access to the file. The State then sought to bar defendant from cross-examining Officer Lee about any prior shootings and the trial court granted the State’s motion.
The State also sought to impeach the Defendant on cross-examination with his prior indictable convictions. Four judgments of conviction were over 20 years old at the time of trial and one was over 14 years old. The trial court granted the State’s request, finding that a disorderly persons offense seven years prior to the trial was sufficient to “bridge the gap” between the old convictions and the present matter.
At trial, video from Officer Lee’s dashcam was played for the jury during the testimony of Officer Lee, the Defendant, and Detective Kevin Green, who was not present at the scene of the shooting. Detective Green testified, over objection, that he believed the dashcam footage depicted a gun in the Defendant’s back waistband as Officer Lee’s patrol car approached.
The Defendant was convicted of murder, among other offenses, and sentenced to life imprisonment. On appeal, the Appellate Division affirmed the Defendant’s convictions and sentence, finding no error with the trial court’s rulings.
NJ Supreme Court Decision in State v. Higgs
The New Jersey Supreme Court reversed as to all three issues raised on appeal and ordered a new trial.
The New Jersey Supreme Court first held that the trial court erred in not allowing the Defendant access to Officer Lee’s internal affairs records and not allowing defense counsel to cross-examine Officer Lee regarding his prior on-duty shootings. “To ensure that defendants in criminal trials are provided with the discovery necessary to adequately prepare for trial, defendants must be allowed, under certain circumstances, to access documents in law enforcement’s internal affairs files. This is consistent with the State’s obligation to produce exculpatory and impeachment evidence, as the Attorney General has conceded in this matter,” the court explained. “That does not, however, mean that defendants should have unbridled access to internal affairs records.”
Going forward, the New Jersey Supreme Court adopted the following procedures, as set forth in the opinion summary. First, a defendant who seeks discovery of information from an internal affairs file must first file a motion with the trial court requesting an in camera review of that file. The motion must identify the specific category of information the defendant seeks and the relevance of that information to the defendant’s case. A general allegation that the defendant is in search of information relevant to a law enforcement officer’s credibility for impeachment purposes would be insufficient to obtain review of the file.
In order for a trial court to grant a motion to conduct an in camera review of an internal affairs file, the defendant must point to a specific category or type of evidence and assert that the evidence, if present in the file, has a relevant nexus to an issue in the case. According to the New Jersey Supreme Court, it anticipates that many defendants will be in a position to meet the relevancy standard. The court expressly declined to adopt the more stringent “peculiar evidence” standard articulated in State v. Harris, 316 N.J. Super. 384 (App. Div. 1998).
If the trial court determines as a threshold matter that the requested information, if present in the internal affairs file, would be relevant to the defendant’s case — for impeachment purposes or to support the defense’s theory, for example — the trial court must grant the defendant’s motion and conduct an in camera review of the internal affairs records outside the presence of the parties. The in camera review by the trial court would be solely for the purpose of determining whether the category of identified information exists in the internal affairs file. If, upon review, the trial court determines that the requested information is present in the file, both parties shall be allowed to review the relevant portion of the file, subject to any protective orders entered by the trial court. If the evidence sought is present in the file and relevant to the case, the court must balance its relevance against potential undue prejudice, as required in N.J.R.E. 403, prior to allowing that evidence in at trial.
The New Jersey Supreme Court went on to find that because the defense argued that Officer Lee discharged his firearm first, defense counsel could potentially be allowed to explore Officer Lee’s history of past shootings on cross-examination. The court further held that, on remand, the Defendant is entitled to access the internal affairs file as outlined above, and that evidence may be used to cross-examine Officer Lee subject to any objections pursuant to N.J.R.E. 403 or 404(b).
The New Jersey Supreme Court next held that it was error pursuant to N.J.R.E. 701 to allow the lay opinion testimony of Detective Green regarding the image on the dashcam video. According to the court, Detective Green’s testimony was based entirely on his lay opinion from watching the video, which was impermissible under N.J.R.E. 701. Because the video was already in evidence, the jury was able to view the video and determine for themselves what the video showed. Finally, the New Jersey Supreme Court held that the trial court erred in admitting the Defendant’s remote convictions because the State did not meet its burden of establishing that the probative value outweighed the prejudicial effect of admitting the old convictions. “The prior convictions did not involve dishonesty, lack of veracity, or fraud,” the court said. “It was an error to admit the remote convictions.”