On motion for leave to appeal an interlocutory order of the Superior Court, Law Division, Essex County.
Botter, Ard and King. The opinion of the court was delivered by King, J.A.D.
This case presents the issue of the right of the State to have a bullet surgically removed from a suspect's body for use as evidence in a murder prosecution. Because the issue is important and has not been addressed in this State, we granted defendant's motion for leave to appeal from the Law Division order of May 4, 1982. R. 2:5-6.
That order granted the State the right to proceed by surgical means to extract a metallic object, suspected to be a .38-calibre bullet, lodged in the soft tissue of defendant's thigh. We have chosen to accelerate the matter and reach the merits. R. 2:11-2.
On December 11, 1980 defendant was indicted for the murder of a Newark police officer and other related crimes committed during a bank robbery on December 6, 1980. He promptly confessed. Thereafter, on January 14, 1981 defendant, through his counsel, filed a notice of alibi, R. 3:11, contending that he was not at the scene of the bank robbery. The prosecutor's interest in retrieving the bullet thereupon heightened. On May 13, 1981 the State moved for judicial permission to compel defendant to submit to a physical examination, x-rays and ultimately surgery for removal of the suspected bullet.
The State's application for surgical intervention contained a verified petition alleging that defendant had been arrested on the day of the homicide and "had given a sworn statement to police in which he admitted his participation in the robbery of the Howard Savings Bank and the murder of Police Officer Gottfried." In that statement defendant also had admitted being shot in the left leg by Officer Gottfried during an exchange
of gunfire during the robbery. On the day after his arrest, defendant had been taken to College Hospital for treatment of the gunshot wound in his left thigh. An x-ray of his thigh revealed a metallic object which appeared to be a .38-calibre slug.
Based on the probable cause established by the prosecutor's verified petition, the judge ordered a medical examination by Dr. Donald Brief, a general surgeon, and an x-ray examination. Thereafter, he reported as follows:
I have reviewed the films and the accompanying records in the matter of Willie Lawson. The bullet lies in the soft tissues in the posteromedial side of the upper thigh inferior to the ischiac tuberosity. In this location it is readily accessible and is not in bone. It can be removed without jeopardizing limb function or circulation to the limb. I do not think surgery imposes any unusual problems in this matter.
In June Dr. Brief, upon re-examination filed a follow-up report stating, "The position of the bullet [is] unchanged" from February, and repeating, "using proper localization procedures pre-operatively in the x-ray department with the insertion of needles to further secure the position of the metallic object, this bullet can be safely removed without threatening the patient's life or jeopardizing his limb."
In the fall of 1981 an evidentiary proceeding was conducted. Dr. Brief, a graduate of Harvard Medical School, who received his surgical training at the Peter Bent Brigham Hospital and was board-certified in general surgery, testified. He said that the patient would be placed in the safe lithotomy position with the legs flexed. Then, "through a relatively small incision in the back of the thigh the bullet would . . . be extracted with minimal tissue damage." He said that the bullet was not lodged in the bone, nor was it near any major nerve or vascular structure. The bullet was three-quarters to one inch below the surface of the skin. Local anesthesia could be used if the patient cooperated; if not, general anesthesia would be used. The ...