In State v. Higgs, 253 N.J. 333, 340 (2023), the defendant Andre Higgs was convicted of the murder of Latrena May, with whom he had been involved in a romantic relationship, and was sentenced to life imprisonment.  The New Jersey Supreme Court reversed and remanded the matter for a new trial based on the following three issues:  (1) whether the trial court erred in not allowing the defendant access to the officer’s internal affairs records and not allowing defense counsel to cross-examine the officer regarding his prior on-duty shootings; (2) whether it was error pursuant to N.J.R.E. 701 to allow the lay opinion testimony of a detective regarding the image on the dashcam video; and (3) whether the defendant’s remote convictions were improperly admitted for impeachment purposes.  Id. at 341-42.

According to the State, on the evening of May’s death, the defendant and May were arguing on her front porch when an East Orange Police Officer approached them after hearing a woman’s voice shout “police” several times.  Id. at 340.  The officer testified that when he asked May to come down from the porch, the defendant pulled out a gun and shot her.  Ibid.  The officer returned fire and shot the defendant several times.  Ibid.

In contrast, the defendant testified that May pulled out a gun during their argument, and he took the gun away from her.  Id. at 341.  The defendant testified that the officer “was reaching for his gun the minute he was trying to get out of the car . . . .  [H]e was basically grabbing his gun before he was out of the seat.”  Id. at 343.  According to the defendant, he tried to surrender as the officer approached, but the officer fired his weapon at the defendant which led to the involuntary discharge of the gun in the defendant’s hand, causing May’s death.  Id. at 341.

Prior to trial, the defendant sought access to the officer’s internal affairs file, which included prior incidents of the officer firing his weapon while on duty.  Ibid.  The defendant argued that the prior incidents were relevant to his defense that the officer fired first.  Ibid.  The trial court conducted an in-camera review of the file, determined that there was nothing relevant in it, denied the defendant’s access to the file and barred the defendant from cross-examining the officer about any prior shootings.  Id. at 346.  The court also granted the State’s motion to admit the defendant’s remote convictions for impeachment purposes.  Id. at 343.

The New Jersey Supreme Court held that “[t]o 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.”  Id. at 357.   However, the Court cautioned that that does not “mean that defendants should have unbridled access to internal affairs records.”  Id. at 357-58.   “To appropriately balance the important interests involved,” the Court adopted the following procedure:

Going forward, 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 shall 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. The procedure should not be a fishing expedition into the disciplinary records of law enforcement.

[Id. at 358.]

“An allegation that the information, if present, is relevant to the case is necessary for a defendant to obtain the trial court’s in camera review of the file.”  Ibid.   The Court reasoned that “[a]t a time when the Attorney General’s Directives have signaled a massive shift in policy regarding the confidentiality of internal affairs records and this Court has held that the general public, under certain circumstances, can obtain internal affairs files through the common law right of access, there is no logical reason why criminal defendants, whose life and liberty are at stake, should have less access to those records than the general public.”  Id. at 359.  The Court held that “[a]llowing the parties’ access to the relevant portion of the internal affairs file is not, however, the end of the inquiry.  Even 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.”  Id. at 359-60.

Applying that procedure, the Court found that, based on the record, the officer’s internal affairs file contains information regarding prior on-duty shootings that the defendant has alleged is relevant to his defense.  Id. at 360.  “As a result, the parties must be given access on remand to the portion of the file related to those prior shootings, subject to any protective orders entered by the court.  The trial court must then determine whether that evidence is admissible at trial pursuant to N.J.R.E. 403.”  Ibid.  The Court further held that because the defendant’s defense is that the officer discharged his firearm first, defense counsel could potentially be allowed to explore the officer’s history of past shootings on cross-examination.  Id. at 362.

Next, the Court held that the detective’s testimony about the officer’s dashcam video, which was admitted into evidence and played for the jury at trial,  regarding what he believed to be a gun in defendant’s waistband “invaded the province of the jury by usurping the jury’s assessment of the image in the video.”  Id. at 366.  The Court found that the jury was as competent as the detective, who was not present at the scene, “to view the video and determine what the image did or did not show as to the important issue of the gun’s placement.  That task was for the jury alone.”  Ibid.

Lastly, the Court held that the trial court erred in admitting the defendant’s remote convictions, four of which occurred twenty-four years prior to the start of trial.  Id. at 369.  “Applying the factors in N.J.R.E. 609(b)(2), [the Court held] that it was error for the trial court to admit the 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.”  Id. at 371.

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