IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 1701()06481 WLW

V.

DEPAUL WILSON,
Defendant.
Hearing: March 27, 2018
Decided: March 28, 2018
ORDER
Upon the State’s Motion to Compel the

Surgical Removal of a Bullet.
Denied.

Stephen R. Welch, Jr., Esquire and Sean A. Motoyoshi, Esquire of the Department
of Justice, Dover, Delaware; attorneys for the State of Delaware.

Patrick J. Collins, Esquire of Collins & Associates, Wilmington, Delaware; attorney
for Defendant DePaul Wilson.

Suzanne MacPherson-Johnson, Esquire of the Offlce of the Public Defender, Dover,
Delaware; attorney for Defendant Guy E. Jones, Jr.

WITHAM, R.J.

State v. DePaul Wilson
I.D. NO. 1701()06481 WLW
March 28, 2018

Before the Court is the State’s Motion to Compel the Surgical Removal of a
Bullet from the Defendant, DePaul Wilson. Mr. Wilson has been indicted for two
counts of Murder First Degree; Attempted Robbery First Degree; two counts of
Possession of a Firearm During the Commission of a Felony; Possession of a Firearm
or Ammunition by a Person Prohibitedl; and Conspiracy Second Degree. Mr. Wilson
opposes the State’s motion on the following grounds: (l) removal of the bullet is
unnecessary, as other relevant evidence is available; (2) the State has failed to provide
any medical testimony that the bullet may be safely removed; and (3) the Defendant’s
speedy trial rights Would be violated if the Court is required to hold an evidentiary
hearing in regard to removal of the bullet. In accordance With Winston v. Lee, the
Court agrees that the State has failed to meet the burden imposed upon it. Therefore,
the State’s motion is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are largely not disputed. On January 10, 2017, the police responded
to the scene of a shooting at an apartment located in Dover, Delaware. Upon arrival,
officers located Javan Cale, lying on the floor of the apartment suffering from several
gunshot Wounds. On Mr. Cale’s lap Was a silver 9mm Smith and Wesson
semiautomatic handgun. Multiple shell casings of two different types Were located
inside the apartment, indicating to police that Mr. Cale had exchanged gunfire With

another individual or individuals Witnesses saw two men leave the apartment

 

l This charge is severed and to be tried immediately after the main case by agreement of the
parties.

State v. DePaul Wilson
I.D. No. 1701006481 WLW
March 28, 2018

matching the descriptions of Mr. Wilson and Mr. Jones, wearing masks and with guns
in their possession. One of the black males was walking slowly as if injured and the
other male yelled back to him “come on man.” Medical personnel arrived on the
scene and transported Mr. Cale to the hospital where he was pronounced dead as the
result of his injuries.

The morning after the shooting, Detective Stafford from the Middletown Police
Department advised Detective Warren of the Dover Police Department that at 8: 15
p.m. the previous night, a man, later identified as DePaul Wilson, arrived at
Christiana Care Hospital’s Middletown facility suffering from multiple gunshot
wounds to the lower extremities. Mr. Wilson was transported to Christiana Hospital
near Newark, Delaware, but signed himself out and left the hospital before Dover
officers arrived there. Detective Warren viewed a CT scan of Mr. Wilson’s body in
which he could see a projectile in Mr. Wilson’s buttocks. Medical records obtained
from Christiana Hospital state that Wilson had suffered a “gunshot wound involving
the right buttock with bullet lodged within subcutaneous tissue.” The records also
noted that three small metallic bullet fragments (apparently from a different bullet)
were located in Mr. Wilson’s left anterior thigh above the knee.

The police later contacted Mr. Wilson at his home in Worton, Maryland.
During a post-Mirana'a interview, Mr. Wilson acknowledged being present along
with Guy J ones and another individual named Andre Brown, when Javan Cale was
shot. Guy J ones also gave a post-Miranda statement admitting that he, Wilson, and

Brown were at Cale’s residence when the shooting occurred. Mr. J ones stated that,

State v. DePaul Wilson
I.D. No. 1701006481 WLW
March 28, 2018

at the time of the incident, Mr. Wilson possessed a handgun and had been struck with
multiple bullets. Mr. J ones also advised that as they drove from Cale’s residence to
the hospital, he saw Mr. Wilson’s injuries from multiple gunshot wounds and
attempted to render medical aid to stop the bleeding. Mr. J ones acknowledged that
they dropped Mr. Wilson off at the hospital before driving off.

According to the State, the projectile located in Mr. Wilson’s buttocks appears
to be the only intact projectile which is in position to be recovered and which seems
likely to have been fired from the firearm possessed by Javan Cale.

THE PARTIES’ ARGUMENTS

Relying on numerous cases from other jurisdictions, the State contends that
examination of the bullet currently lodged in Mr. Wilson’s buttocks could establish
that Mr. Wilson was shot by Javan Cale, while participating in an attempted robbery
of Mr. Cale. The State believes that such evidence is highly relevant to Mr. Wilson’s
involvement in the instant case. In addition, the State believes that the bullet may be
relevant to establish whether the person who actually shot and killed Javan Cale was
Mr. Wilson or Mr. Jones. Thus, the State contends that probable cause exists to
believe that the proposed medical procedure would result in recovery of the bullet.
Further, the bullet can be recovered in no other way than by surgical removal. And,
a hearing is necessary to allow the Court to make an informed determination about
the reasonableness of the State’s motion to compel the surgical removal of the bullet
from Mr. Wilson’s buttocks.

In response, Mr. Wilson contends that there is little dispute that he and Mr.

State v. DePaul Wilson
I.D. No. 1701006481 WLW
March 28, 2018

J ones were shot by Javan Cale, as both defendants have admitted to being present at
the shooting, having gone to the apartment to purchase marijuana The Defendants’
presence was also confirmed by an uncharged cooperator, Andre Brown. Thus,
removing the bullet from Mr. Wilson’s buttocks does not have any evidentiary value.
Secondly, Mr. Wilson contends that the State’s motion should be denied because the
State has failed to present any expert opinion about the reasonableness of the
proposed surgery, even though the State has known about the bullet in Mr. Wilson’s
buttocks since January ll, 2017. This not only violates Winston v. Lee, but also
implicates Mr. Wilson’s right to a speedy trial. Thus, the State’s motion should be
denied.
DISCUSSION

As the parties suggest, the seminal case involving court ordered surgery on a
criminal defendant is Winston v. Lee, 470 U.S. 753 (1985), where a defendant in
Virginia state court, charged with malicious wounding and attempted robbery, was
ordered to undergo surgery to remove 'a bullet lodged under his left collarbone. The
defendant alleged that such an intrusion would violate his Fourth Amendment ri ghts.
The State, however, argued that the bullet would provide evidence of the respondent’ s
guilt or innocence.

After several unsuccessful attempts to enjoin the court-ordered surgery, the
defendant ultimately obtained an order from a federal district court enjoining the

surgical procedure. The district court ruling was affirmed by the Court of Appeals

State v. DePaul Wilson
I.D. No. 1701006481 WLW
March 28, 2018

for the Fourth Circuit.2 Upon review, the Supreme Court upheld the ruling, holding
that the proposed surgery would violate the respondent’s rights to be secure in his
person and that the search would be “unreasonable” under the Fourth Amendment.3

In reaching its conclusion, the Supreme Court adopted the framework set forth
in Schmerber v. California,4 as well as an additional factor that must be specifically
considered when the government seeks to retrieve a bullet from a defendant’s body.5
Accordingly, a Court faced with a motion such as the present one must consider four
key factors, beyond the probable cause threshold. First, the Court must determine
“the extent to which the procedure may threaten the safety or health of the
individual.”6 The first criteria is a result of earlier jurisprudence which considered

the proposed procedure’s threat to the defendant’s health.7 Second, a Court must

 

2 See Lee v. Winston, 717 F.2d 888 (4th Cir. 1983).
3 Winston v. Lee, 470 U.S. at 757-66.

4 Schmerber v. California, 384 U.S. 757 (1966).

5 See Winston, 470 U.S. at 760.

6 “Notwithstanding the existence of probable cause, a search for evidence of a crime may be
unjustifiable if it endangers the life or health of a suspect.” Id at 761.

7 For pre- Winston cases where the surgical procedure was shown to pose no considerable risk
to the defendant, and thus granted, see, e.g., Hughes v. Um`ted State, 429 A.2d 1339 (D.C. App.
1981) (operations just under the skin of a murder suspect was permitted over the defendant’s
objections); United States v. Crowder, 543 F.2d 312 (C.A.D.C. 1976) (minor wrist surgery
constitutionally permissible); and Doe v. State, 409 So.2d 25 (Fla. App. 1981) (surgery to remove
bullet from below the defendant’s skin did not pose a sufficient risk to warrant denial of request).

For instances in which courts denied such requests since the proposed surgery was found to

6

State v. DePaul Wilson
I.D. No. 1701006481 WLW
March 28, 2018

consider the extent of intrusion upon the individual’s dignitary interests in personal
privacy and bodily integrity.8 Third, weighted against the defendant’s individual
interests, is the community’s interest in fairly and accurately determining guilt or
innocence. Finally, the government must show a “compelling need for [removal of_|
the bullet” before the surgery is ordered.9

In this case, in light of Winston ’s requirements, the Court is unable to grant the
State’s request to remove the bullet from Mr. Wilson’s buttocks for two distinct
reasons. First, the State has failed to provide the Court with any medical evidence
that the bullet can be removed safely from Mr. Wilson. The medical records reviewed
at the hearing are not enough. The Court cannot justify the removal without some
medical evidence to indicate that it can be accomplished with safety. Although the
Court acknowledges that it could delay trial to have an expert testify as to the safety
of the bullet’s removal, the Court declines to do so, especially in light of the fact that
the State has been aware of the bullet’s existence for more than a year prior to the

filing of the State’s motion. Second, the Court is unconvinced that the State actually

 

present a possible risk to the defendant, see, e.g., State v. Allen, 277 S.C., 291 S.E.2d 459 (1982)
(surgery to remove bullet from beneath a defendant’s rib was too severe to be permitted as
reasonable under the Fourth Amendment); Bowden v. State, 256 Ark. 820, 510 S.W.2d (1974)
(surgery to remove a bullet from a defendant’s spinal canal was deemed improper because of the
dangers posed to the defendant); People v. Smith, 80 Misc.2d 210, 362 N.Y.S.2d 909 (N.Y. 1974)
(surgery to remove bullet from a defendant’s back impermissible due to dangers posed).

8 Winston v. Lee, 470 U.S. at 761.

9 Id. at 765.

State v. DePaul Wilson
I.D. No. 1701006481 WLW
March 28, 2018

“needs” the bullet to prove the State’s case, as the Court believes that the facts
already have established that Mr. Wilson was at the scene of the shooting, The Court
understands that the bullet would logically support the fact that Mr. Wilson was
present at the scene. However, the Court cannot assume that the location and removal
of the bullet can be considered a minor operation without medical evidence. The real
question, nevertheless, is who shot Mr. Cale, not who shot Mr. Wilson.

In sum, the State’s Motion to Compel the Surgical Removal of a Bullet fi'om

Mr. Wilson is DENIED. IT IS SO ORDERED.

//%/M

Hon. William L. Witham, Jr.
Resident Judge

WLW/dmh
oc: Prothonotary
xc: Stephen R. Welch, Jr., Esquire
Sean A. Motoyoshi, Esquire
Patrick J. Collins, Esquire
Suzanne MacPherson-Johnson, Esquire

