Court affirmed Dyal subpoena
State v. Ross State appealed the denial of its search warrant application for a bullet and a Dyal subpoena for hospital medical records pertaining to surgery to remove the bullet. Daily Briefing January 04, 2023
State appealed the denial of its search warrant application for a bullet and a Dyalsubpoena for hospital medical records pertaining to surgery to remove the bullet. Defendant was shot in an exchange of gunfire with police officers and was treated at hospital in December 2017. He was indicted on multiple counts of first-degree attempted murder, second-degree aggravated assault, fourth-degree aggravated assault and weapons offenses in February 2018. In July 2018, prosecutor asked hospital if any bullet or metal fragments had been removed from defendant's body during his treatment. Hospital replied a bullet in defendant's abdomen had not been removed during emergency surgery. Motion judge denied State's motion to compel discovery in October 2021. Defendant had elective surgery in June 2022 to remove the bullet in his abdomen. Hospital informed police of the removed bullet and prosecutor applied for a search warrant. Motion judge denied the application, finding it tantamount to a motion to compel defendant to turn over potentially incriminating evidence. Court found motion judge erred by treating the search warrant application as if it were the functional equivalent of a motion to compel reciprocal discovery. The reciprocal discovery process implicated different constitutional rights than those raised by the issuance of a search warrant. Defendant's right to conduct a defense investigation did not foreclose State from obtaining a warrant to seize tangible evidence in the custody of a third party
