Hearing: March 27, 2018
the State's Motion to Compel the Surgical Removal of a
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 Office of the
Public Defender, Dover, Delaware; attorney for Defendant Guy
E. Jones, Jr.
William L. Witham, Jr. Resident Judge.
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
Prohibited; and Conspiracy Second Degree. Mr. Wilson
opposes the State's motion on the following grounds: (1)
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.
AND PROCEDURAL BACKGROUND
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 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.
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.
police later contacted Mr. Wilson at his home in Worton,
Maryland. During a post-Miranda interview, Mr.
Wilson acknowledged being present along with Guy Jones and
another individual named Andre Brown, when Javan Cale was
shot. Guy Jones also gave a post-Miranda statement
admitting that he, Wilson, and Brown were at Cale's
residence when the shooting occurred. Mr. Jones stated that,
at the time of the incident, Mr. Wilson possessed a handgun
and had been struck with multiple bullets. Mr. Jones 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. Jones acknowledged that they dropped Mr.
Wilson off at the hospital before driving off.
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.
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 ...