Ben Allen File July 20 2017

Case: 25CI1:16-cr-00110-WLK Document #: 116 Filed: 07/19/2017 Page 1 of 1

.
IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI
FIRST JUDICIAL DISTRICT
STATE OF MISSISSIPPI
v. CAUSE NO. 25CI1:16-cr-00110-WLK
BENJAMIN W. ALLEN, III DEFENDANT
TO: Zack Wallace Honorable Winston Kidd

Hinds County Circuit Court Clerk Hinds County Circuit Court Judge
Post Office Box 327 Post Office Box 327
Jackson, Mississippi 39225-0327 Jackson, Mississippi 39225-0327
Robert Smith
Office of the Hinds County District Attorney
Post Office Box 22747
Jackson, Mississippi 39225-2747
AMENDED NOTICE OF APPEAL
BY THIS NOTICE, Benjamin W. Allen, Defendant/Appellant hereinabove, does hereby
file this Amended Notice of Appeal pursuant to Rule 4 of the Mississippi Rules of Appellate
Procedure and M.R.Cr.P. 25.3, notifying the Court that he is aggrieved by the Court's Final
Judgment of Conviction finding him guilty of the charge of Embezzlement (97-11-25) entered on
February 7, 2017 and Order of Sentence entered herein on March 6, 2017. Mr. Allen's post-trial
motion has not yet been ruled upon but due to M.R.Cr.P. going into effect on July 1, 2017 and
the uncertainty as to whether those rules, specifically 25.3, will be treated retroactively, the
Defendant is filing this Amended Notice of Appeal.
RESPECTFULLY SUBMITTED, THIS the lih day of July, 2017.
BY:
,-
OF COUNSEL:
MERRIDA "BUDDY" COXWELL (MB# 7782)

CHARLES R.MULLINS (MB# 9821)
COXWELL & ASSOCIATES, PLLC
Telephone: (601) 948-1600
Facsimile: (601) 948-7097
CERTIFICATE OF SERVICE
I, Merrida "Buddy" Coxwell, counsel of record for the Appellant, Benjamin Wage Allen,
in the above-styled and referenced matter do hereby certify that I have this day filed the
foregoing Amended Notice ofAppeal with the Clerk of Court, together with the docket fee to be
received by the Clerk on behalf of the Supreme Court of Mississippi, and have also served a
copy of this Amended Notice of Appeal via United States mail, postage pre-paid, upon the
following persons of interest:
Zack Wallace Honorable Winston Kidd

Hinds County Circuit Court Clerk Hinds County Circuit Court Judge
Post Office Box 327 Post Office Box 327
Jackson, Mississippi 39225-0327 Jackson, Mississippi 39225-0327
Robert Smith
Office of the Hinds County District Attorney
THIS, the 12th day of July, 2017.


V. CAUSE NO. 25CI1:16-cr-00110-WLK
DEFENDANTS MOTION FOR J.N.O.V. OR, IN THE ALTERNATIVE, A NEW TRIAL
Due to the multitude of reversible errors in this trial, Defendant, Benjamin Wade Allen,
III (Mr. Allen), by and through undersigned counsel of record, requests a Judgment
Notwithstanding the Verdict or, in the alternative, a new trial, and presents the following in
support:
1. The embezzlement verdict in Count 4 was against the overwhelming weight of the
evidence. Embezzlement cannot occur when the supposed victim voluntarily approves of the use
of the property. In the present case, according to the Indictment, Downtown Jackson Partners
(DJP) was the owner of the property. DJP consented to Mr. Allen having a phone line for his
wife. The testimony was uncontroverted that Mr. Allen reimbursed DJP under their approved
procedure. Both the investigation by Board Attorney Robert Gibbs and the Board of DJP found
as a fact that Mr. Allen had fully reimbursed DJP. Therefore, there can be no embezzlement.
Roberts v. State, 960 So. 2d 529 (Miss. 2006); Hooker v. State, 516 So.2d 1349 (Miss. 1987).
Further, the State failed to present any witness from [DJP] who testified that [DJP] was injured
or suffered any detriment as a result of the transactions. Gordon v. State, 458 So. 2d 739 (Miss.
1984).
2. The evidence was insufficient to support the embezzlement verdict in Count 4.
Mr. Allen incorporates the points raised in number 1 above.
3. Mr. Allen was indicted for embezzlement under Miss. Code Ann., 97-11-25.
This Code Section deals with public officials, trustees, or lawyers, none of which applies to Mr.
Allen. Mr. Allen specifically incorporates the Motion to Dismiss, the exhibits attached thereto,
the hearing, and the motion for a directed verdict argument in support of this point. The
Indictment against Mr. Allen was void, and therefore, the verdict must be overturned because
Mr. Allen cannot be convicted for allegedly violating a statute that does not apply to him.
4. The Trial Court erred by allowing, over objection, the undisclosed testimony of
Councilman Kenneth Stokes. This last minute production of this witness, which the prosecution
was fully aware of before trial, was a violation of discovery. Mr. Allen has a constitutionally
protected right to voir dire the jury to determine which members of the panel might have known
Mr. Stokes and this right was denied.
5. Additionally, Mr. Stokes testimony was improper rebuttal testimony. Mr. Stokes
gave improper opinion testimony that the assessment collected by DJP was a tax. Councilman
Stokes was not tendered or accepted as an expert under M.R.E., Rule 702. No report was
provided to Mr. Allens attorneys prior to trial. If Mr. Stokes is an expert, then the Rules required
a report prior to his testimony. If not an expert, then his testimony was improper under Rule
701. If offered as an expert, then Mr. Allen should have been offered his expert report prior to
trial. In no event was Mr. Stokes testimony proper rebuttal testimony. The Mississippi Supreme
Court has consistently held that the prosecutor cannot withhold for rebuttal evidence that which
should be brought in its case-in-chief. Slaughter v. State, 752 So.2d 1092 (Miss. 1999).
6. The Trial Court erred by allowing the State to argue that DJP was dealing with
public money or that the assessment collected by DJP was a tax. The indictment clearly
alleged that the money in Count 4 was the property of DJP, a private non-profit corporation. The
proof was unconverted that DJP is a private corporation. The employees were private
employees, a fact admitted to by the States own witness, Melissa Patterson. DJP was in no way
affiliated with a public agency or subdivision of the State, County or City. Further, the
2
indictment never mentions that the money in question was a tax. In fact, this issue was clearly
addressed in McGowan v. Capital Ctr., 19 F. Supp2d 642 (S.D. Miss. 1998) a case in which both
the City of Jackson and the State of Mississippi argued that the assessment collected by
Business Improvement Districts was not a tax but rather an assessment. Judge Tom S. Lee
ultimately held that the money collected was not a tax. The State of Mississippi, by and through
the Hinds County District Attorneys Office, is judicially estopped from arguing otherwise.
7. The introduction of this evidence was confusing to the issues and substantially
prejudiced Mr. Allens right to a fair trial. The introduction of these issues also amounted to an
improper variance in the Indictment.
8. The Trial Court erred by granting the States elements jury instruction,
Instruction No. 14 as to Count 4. The States instruction failed to instruct the jury about the
proper elements contained in the indictment. The instruction failed to track the statutory
language of M.C.A. 97-11-25 (though inapplicable to Mr. Allen, see number 3 above) and the
indictment. First, the statute requires the State to prove beyond a reasonable doubt that Mr. Allen
held an office or (of?) his authority. Secondly, the State was required to prove beyond a
reasonable doubt how Mr. Allens office allowed him to come into these funds. In addition, the
State was required to prove beyond a reasonable doubt that Mr. Allen was lawfully required to
turn over such money immediately do so according to his legal obligation. Finally, the
elements instruction omitted the crucial element that the taking of the money was without the
consent or authority of the property owner. Miss. Code Ann. 97-11-25. See also Mississippi
Model Jury Instruction 11:4
9. The Trial Court erred by granting the District Attorneys acting in concert jury
instruction, Instruction No. 21, as there was no proof to support it. Assuming solely for
arguments purpose that an acting in concert instruction could have been given, the States
3
proposed instruction was an improper acting in concert instruction. The State provided no
authority for this instruction and for good reason. No Mississippi Appellate Court has ever
approved of such an instruction. In 2001, the Mississippi Supreme Court resolved the confusion
regarding acting in concert instructions and held that [w]e adopt the Fifth Circuit's Pattern
Jury Instruction on Aiding and Abetting to avoid continuing litigation and confusion. Milano v.
State, 790 So. 2d 179 *, 2001 Miss. LEXIS 110 (Miss. 2001). That instruction is as follows:
The Court instructs the Jury that the guilt of a defendant in a

criminal case may be established without proof that the defendant
personally did every act constituting the offense alleged. The law
recognizes that, ordinarily, anything a person can do for himself
may also be accomplished by that person through the direction of
another person as his or her agent, by acting in concert with, or
under the direction of, another person or persons in a joint effort or
enterprise. If another person is acting under the direction of the
defendant or if the defendant joins another person and performs acts
with the intent to commit a crime, then the law holds the defendant
responsible for the acts and conduct of such other persons just as
though the defendant had committed the acts or engaged in such
conduct. Before any defendant may be held criminally responsible
for the acts of others it is necessary that the accused deliberately
associate himself in some way with the crime and participate in it
with the intent to bring about the crime. Of course, mere presence at
the scene of a crime and knowledge that a crime is being committed
are not sufficient to establish that a defendant either directed or
aided and abetted the crime unless you find beyond a reasonable
doubt that the defendant was a participant and not merely a
knowing spectator. In other words, you may not find any defendant
guilty unless you find beyond a reasonable doubt that every element
of the offense as defined in these instructions was committed by
some person or persons, and that the defendant voluntarily
participated in its commission with the intent to violate the law.
This jury instruction was adopted by the Supreme Court in
Milano v. State, 790 So. 2d 179 (P21) (Miss. 2001).
Sims v. State, 908 So. 2d 186 *, 2005 Miss. App. LEXIS 480 (Miss. Ct. App. 2005)(emphasis
supplied).
10. During the instruction conference, Assistant District Attorney Randy Harris
advised the Court that he had obtained his acting in concert instruction from a dictionary.
4
Indeed, it appears that Instruction 21 was generated with help from the online legal dictionary
which defines acting in concert very similarly:
act jointly, agree, be in collusion with, collude, combine, concur,

connive, conspire, cooperate, federate, form a coalition, involve,
join, participate, pool, unite.
http://legal-dictionary.thefreedictionary.com/act+in+concert
11. The State has no excuse not to be familiar with Milano. It is also contained in the
Mississippi Model Jury Instructions, 6:5. The States Google instruction falls short of that
which was required in Milano and simply failed to inform the jury of the necessary elements
required in a criminal case to find that Mr. Allen was acting in concert with anyone. This
instruction was essential to the States theory and the Court must grant a new trial for giving this
erroneous instruction. It would constitute a waste of judicial resources to have Mr. Allen appeal
this case when the Court can clearly see that Instruction 21 was an improper statement of law.
12. The Trial Court erred by allowing the State to utilize M.R.E. 404(b) evidence, i.e.
990 Forms and the conflicts of interest of board of directors, without identifying its proper
purpose. The State actually admitted that this evidence was offered to go toward the veracity of
Mr. Allen, which is clearly prohibited under M.R.E. 404(b). See Edlin v. State. A recent
Mississippi Court of Appeals case reversed and remanded a trial court for committing this same
error:
[the circuit court judge] failed to find under which permitted use
listed in Rule 404(b) the evidence would be admitted. The circuit
court merely cited the entirety of the Rule in its decision to admit
the evidence, which would allow an inference to be made that the
evidence was admitted to show preparationa permitted use under
which a nine-year-old, factually dissimilar act certainly could not
properly be admitted. This Court finds that the circuit court abused
its discretion in admitting the highly prejudicial and minimally
probative nine-year old, uncharged statutory-rape evidence, and as
such, committed reversible error.
5
White v. State, No. 2015-KA-01458-COA (Feb. 14, 2017) (emphasis supplied).
A copy of the White opinion is attached as Exhibit 1 hereto for the Courts convenience.
13. The Trial Court committed reversible error by allowing the State to introduce the
cell phone bills/statements without proper authentication. The introduction of these items also
violated Mr. Allens Federal and State confrontation rights.
14. The Trial Court erred by not declaring a mistrial on numerous occasions.
15. The Defense also raises each objection made on the record as grounds for the
relief requested. The cumulative errors require a J.N.O.V. or, in the alternative, a new trial.
RESPECTFULLY SUBMITTED, THIS the 16th day of February, 2017.
BY: _/s/ Merrida Buddy Coxwell________________

MRRIDA BUDDY COXWELL
OF COUNSEL:
MRRIDA BUDDY COXWELL (MB# 7782)

CHARLES R. MULLINS (MB# 9821)
Jackson, MS 39215-1337
Telephone: (601) 948-1600
Facsimile: (601) 948-7097
merridac@coxwelllaw.com
chuckm@coxwelllaw.com
Attorneys for Defendant, Benjamin Wade Allen, III
6
This is to certify that I, Mrrida Buddy Coxwell, have this day filed the above and
foregoing Motion for J.N.O.V. or, in the Alternative, a New Trial with the Clerk of Court via
the MEC system, which sent notice of same to the following persons of interest:
Robert Shuler Smith, Esquire

Assistant Hinds County District Attorney
Evelyn Hunter, Circuit Court Administrator to

Judge Winston L. Kidd
Post Office Box 327
Jackson, Mississippi 39205
THIS, the 16th day of February, 2017.
/s/Merrida Buddy Coxwell_____________

7
STATE OF MISSISSIPPI, PLAINTIFF
v. CAUSE NO. 16-110
BENJAMIN ALLEN DEFENDANT
MOTION OF JERRY MITCHELL TO QUASH TRIAL SUBPOENA
Jerry Mitchell, by and through his attorneys, moves this Court to quash the trial subpoena
served on him and in support of this motion would state the following:
SUMMARY
1. The subpoena was issued on Wednesday, January 25, 2017, to Jerry Mitchell,
investigative reporter for The Clarion Ledger, purportedly under Miss. Code Ann. 99-9-11, and
it requires him to appear before the Court on Monday, January 30, 2017, at 9 a.m. This
subpoena should be quashed because it is repugnant to the First Amendment of the United States
Constitution as it threatens the freedom of the press by forcing Mr. Mitchell to testify about
matters he has reported on behalf of The Clarion Ledger and because the State cannot show that
the information is not obtainable through any other source. This subpoena should be quashed
because the information sought from Mr. Mitchell is not the Best Evidence. Finally, this
subpoena should be quashed because it fails to allow a reasonable time for compliance.
PERTINENT FACTS
2. Mr. Mitchell is employed as a professional journalist for The Clarion Ledger,
with offices located in Jackson, Mississippi, where he is as investigative reporter.
3. On Wednesday, January 25, 2017, Honorable Randy Harris, Assistant District
Attorney, caused a subpoena to be issued to Mr. Mitchell requiring him to appear at trial on
Monday, January 30, 2017, and to give testimony in this case. A copy of the subpoena is
attached as Exhibit A.
ARGUMENT
I. The Subpoena Must Be Quashed As It Is Repugnant to the First Amendment of the

United States Constitution.
4. The subpoena is void under the First and Fourteenth Amendments to the United
States Constitution as well as Section 13 of the Constitution of the State of Mississippi as the
State of Mississippi has other sources for the information sought, and it has not exhausted those
sources.
5. Subpoenas threaten the freedom of the press when they require journalists to
testify concerning matters they have written. Journalists should be free to write about
controversial matters without the burden of subpoenas requiring them to give testimony not
necessary to a case. Without constitutional protection, reporters would be subjected to
burdensome and harassing subpoenas and would be harmed in their ability to collect material for
controversial stories.
6. For these reasons, the courts have adopted a three-part test for determining the
constitutionality of a subpoena issued to a journalist:
a. Is the information relevant?
b. Can the information be obtained by alternative means?
c. Is there a compelling interest in the information?
Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980), followed in In re
Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).
7. Here, the information sought from Mr. Mitchell can be obtained by alternative
means, and there is no compelling need for his testimony.
2
II. The Subpoena Should Be Quashed As It Is Not the Best Evidence.
8. Mr. Mitchell interviewed witnesses who are identified in his new articles, and
their knowledge cannot be verified for trial purposes through Mr. Mitchells testimony because it
is inadmissible hearsay.
9. Additionally, to the extent the State seeks to obtain information contained in his
article - published more than two and one-half years ago - about the ownership of the 1988
pickup truck, the information can be obtained through various public records and witnesses with
first-hand knowledge. Specifically, information regarding ownership, payment of taxes, and
payment for repairs can be obtained through public records or through a subpoena to the repair
shop that performed the work. Ironically, the sources for much of this information are found in
the news article, and the State should not be permitted to treat Mr. Mitchell, who does not have
any notes or papers related to the article published in 2014, as a funnel for this information, or to
annex him as an investigative arm of government. Branzburg v. Hayes, 408 U.S. 665, 709
(1972) (Powell, J., concurring).
10. Finally, Mr. Mitchell has conducted hundreds of interviews and written about a
myriad of other subjects since the publication of the 2014 article, he has no independent
recollection of his work other than what appears in the article.
11. Mr. Mitchell should not be required to appear and testify because any information
he has would be inadmissible because it is not the Best Evidence or because it is hearsay.
Requiring him to testify about his news sources for stories will interfere with his ability to
perform the duties of his job as a reporter and will have a chilling effect on his ability to report
the news.
3
III. The Subpoena Should Be Quashed Because It Fails To Allow Reasonable Time for
Compliance.
12. Mr. Mitchell was served on January 25, 2017, with a subpoena to appear on
Monday, January 30, 2017. This does not provide a reasonable time for compliance.
13. The subpoena served three business days before Mr. Mitchell is required to
appear is unreasonable as it does not provide timely notice. It was issued in violation of Rule
2.01 of the Uniform Circuit and County Court Rules and Rule 45 of the Mississippi Rules of
Civil Procedure which provides:
On timely motion, the court from which a subpoena was issued shall quash or
modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii)
requires disclosure of privileged or other protected matter and no exception or
waiver applies, (iii) designates an improper place for examination, or (iv) subjects
a person to undue burden or expense.
Miss. R. Civ. P. 45(d)(1)(A).
14. A subpoena which is not timely issued is void. See Bowman Dairy Co. v. United
States, 341 U.S. 215 (1951); see also AM. JUR. 2D Process 81.
15. Clearly, a subpoena requiring Mr. Mitchell to appear and testify with less than
three business days notice is not reasonable and subjects Mr. Mitchell to an undue burden of
having to scramble and stop his regular work and appear for a trial in less than a week. The
subpoena is completely void of any description of the subject matter which Mr. Mitchell is
expected to testify.
16. Mr. Mitchell should be released from the subpoena because news articles are self-
authenticating under Miss. R. Evid. 902(6).
17. The subpoena should be quashed as it is unreasonable and unduly burdensome
because it does not provide timely notice to Mr. Mitchell.
4
IV. The Subpoena Should Be Quashed Because It Does Not Comport With the
Mississippi Constitution or the Rules of Procedure.
18. The subpoena should be quashed because the docket does not reflect that it has
been issued by the Clerk of Court.
19. Rules 4 and 45 of the Mississippi Rules of Civil Procedure require that all
summonses and subpoenas be issued by the clerk under the seal of the court.
20. Article 3 Section 24 of the Mississippi Constitution mandates that [a]ll courts
shall be open, which implicitly requires that the subpoena once issued should have been filed in
the court record.
21. Because the subpoena is not filed in the docket of this action, it should be
quashed.
WHEREFORE, PREMISES CONSIDERED, Jerry Mitchell prays that the Court will
quash the subpoena wrongfully issued to him.
THIS, the 27th day of January, 2017.
Respectfully submitted,
BUTLER SNOW LLP
/s/ Haley F. Gregory

Luther T. Munford (MB # 3653)
Haley F. Gregory (MB # 104532)
Butler Snow LLP
1020 Highland Colony Parkway
Suite 1400
Ridgeland, Mississippi 39157
Telephone: (601) 948-5711
Facsimile: (601) 985-4500
E-mail: luther.munford@butlersnow.com
haley.gregory@butlersnow.com
ATTORNEYS FOR MOVANT

JERRY MITCHELL
5
I hereby certify that a true and correct copy of the foregoing is being electronically filed
through the Courts electronic filing system, which has provided notice of such filing to all
counsel of record.

Haley F. Gregory
35100955v1
6
Case: 25CI1:16-cr-00110-WLK Document #: 63-1 Filed: 01/27/2017 Page 1 of 1
EXHIBIT A
STATE OF MISSISSIPPI, PLAINTIFF
v. CAUSE NO. 16-110
BENJAMIN ALLEN DEFENDANT
MOTION OF JERRY MITCHELL TO QUASH TRIAL SUBPOENA
Jerry Mitchell, by and through his attorneys, moves this Court to quash the trial subpoena
served on him and in support of this motion would state the following:
SUMMARY
1. The subpoena was issued on Wednesday, January 25, 2017, to Jerry Mitchell,
investigative reporter for The Clarion Ledger, purportedly under Miss. Code Ann. 99-9-11, and
it requires him to appear before the Court on Monday, January 30, 2017, at 9 a.m. This
subpoena should be quashed because it is repugnant to the First Amendment of the United States
Constitution as it threatens the freedom of the press by forcing Mr. Mitchell to testify about
matters he has reported on behalf of The Clarion Ledger and because the State cannot show that
the information is not obtainable through any other source. This subpoena should be quashed
because the information sought from Mr. Mitchell is not the Best Evidence. Finally, this
subpoena should be quashed because it fails to allow a reasonable time for compliance.
PERTINENT FACTS
2. Mr. Mitchell is employed as a professional journalist for The Clarion Ledger,
with offices located in Jackson, Mississippi, where he is as investigative reporter.
3. On Wednesday, January 25, 2017, Honorable Randy Harris, Assistant District
Attorney, caused a subpoena to be issued to Mr. Mitchell requiring him to appear at trial on
Monday, January 30, 2017, and to give testimony in this case. A copy of the subpoena is
attached as Exhibit A.
ARGUMENT
I. The Subpoena Must Be Quashed As It Is Repugnant to the First Amendment of the

United States Constitution.
4. The subpoena is void under the First and Fourteenth Amendments to the United
States Constitution as well as Section 13 of the Constitution of the State of Mississippi as the
State of Mississippi has other sources for the information sought, and it has not exhausted those
sources.
5. Subpoenas threaten the freedom of the press when they require journalists to
testify concerning matters they have written. Journalists should be free to write about
controversial matters without the burden of subpoenas requiring them to give testimony not
necessary to a case. Without constitutional protection, reporters would be subjected to
burdensome and harassing subpoenas and would be harmed in their ability to collect material for
controversial stories.
6. For these reasons, the courts have adopted a three-part test for determining the
constitutionality of a subpoena issued to a journalist:
a. Is the information relevant?
b. Can the information be obtained by alternative means?
c. Is there a compelling interest in the information?
Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980), followed in In re
Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).
7. Here, the information sought from Mr. Mitchell can be obtained by alternative
means, and there is no compelling need for his testimony.
2
II. The Subpoena Should Be Quashed As It Is Not the Best Evidence.
8. Mr. Mitchell interviewed witnesses who are identified in his new articles, and
their knowledge cannot be verified for trial purposes through Mr. Mitchells testimony because it
is inadmissible hearsay.
9. Additionally, to the extent the State seeks to obtain information contained in his
article - published more than two and one-half years ago - about the ownership of the 1988
pickup truck, the information can be obtained through various public records and witnesses with
first-hand knowledge. Specifically, information regarding ownership, payment of taxes, and
payment for repairs can be obtained through public records or through a subpoena to the repair
shop that performed the work. Ironically, the sources for much of this information are found in
the news article, and the State should not be permitted to treat Mr. Mitchell, who does not have
any notes or papers related to the article published in 2014, as a funnel for this information, or to
annex him as an investigative arm of government. Branzburg v. Hayes, 408 U.S. 665, 709
(1972) (Powell, J., concurring).
10. Finally, Mr. Mitchell has conducted hundreds of interviews and written about a
myriad of other subjects since the publication of the 2014 article, he has no independent
recollection of his work other than what appears in the article.
11. Mr. Mitchell should not be required to appear and testify because any information
he has would be inadmissible because it is not the Best Evidence or because it is hearsay.
Requiring him to testify about his news sources for stories will interfere with his ability to
perform the duties of his job as a reporter and will have a chilling effect on his ability to report
the news.
3
III. The Subpoena Should Be Quashed Because It Fails To Allow Reasonable Time for
Compliance.
12. Mr. Mitchell was served on January 25, 2017, with a subpoena to appear on
Monday, January 30, 2017. This does not provide a reasonable time for compliance.
13. The subpoena served three business days before Mr. Mitchell is required to
appear is unreasonable as it does not provide timely notice. It was issued in violation of Rule
2.01 of the Uniform Circuit and County Court Rules and Rule 45 of the Mississippi Rules of
Civil Procedure which provides:
On timely motion, the court from which a subpoena was issued shall quash or
modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii)
requires disclosure of privileged or other protected matter and no exception or
waiver applies, (iii) designates an improper place for examination, or (iv) subjects
a person to undue burden or expense.
Miss. R. Civ. P. 45(d)(1)(A).
14. A subpoena which is not timely issued is void. See Bowman Dairy Co. v. United
States, 341 U.S. 215 (1951); see also AM. JUR. 2D Process 81.
15. Clearly, a subpoena requiring Mr. Mitchell to appear and testify with less than
three business days notice is not reasonable and subjects Mr. Mitchell to an undue burden of
having to scramble and stop his regular work and appear for a trial in less than a week. The
subpoena is completely void of any description of the subject matter which Mr. Mitchell is
expected to testify.
16. Mr. Mitchell should be released from the subpoena because news articles are self-
authenticating under Miss. R. Evid. 902(6).
17. The subpoena should be quashed as it is unreasonable and unduly burdensome
because it does not provide timely notice to Mr. Mitchell.
4
IV. The Subpoena Should Be Quashed Because It Does Not Comport With the
Mississippi Constitution or the Rules of Procedure.
18. The subpoena should be quashed because the docket does not reflect that it has
been issued by the Clerk of Court.
19. Rules 4 and 45 of the Mississippi Rules of Civil Procedure require that all
summonses and subpoenas be issued by the clerk under the seal of the court.
20. Article 3 Section 24 of the Mississippi Constitution mandates that [a]ll courts
shall be open, which implicitly requires that the subpoena once issued should have been filed in
the court record.
21. Because the subpoena is not filed in the docket of this action, it should be
quashed.
WHEREFORE, PREMISES CONSIDERED, Jerry Mitchell prays that the Court will
quash the subpoena wrongfully issued to him.
THIS, the 27th day of January, 2017.
Respectfully submitted,
BUTLER SNOW LLP

Luther T. Munford (MB # 3653)
Haley F. Gregory (MB # 104532)
Butler Snow LLP
1020 Highland Colony Parkway
Suite 1400
Ridgeland, Mississippi 39157
Telephone: (601) 948-5711
Facsimile: (601) 985-4500
E-mail: luther.munford@butlersnow.com
haley.gregory@butlersnow.com
ATTORNEYS FOR MOVANT

JERRY MITCHELL
5
I hereby certify that a true and correct copy of the foregoing is being electronically filed
through the Courts electronic filing system, which has provided notice of such filing to all
counsel of record.

Haley F. Gregory
35100955v1
6
Case: 25CI1:16-cr-00110-WLK Document #: 63-1 Filed: 01/27/2017 Page 1 of 1
EXHIBIT A

MOTION IN LIMINE WITH REGARD TO THE STATES CONTINUED USE OF

IMPROPER 404(B) EVIDENCE, OTHER EVIDENTIARY ISSUES AND A REQUEST
FOR A CONTINUING OBJECTION
In an effort to move this trial forward, the Defendant, Benjamin W. Allen, III
(Defendant), is requesting a continuing objection with regards to several issues. It is apparent
that the Court will continue to permit the State to continue down its path despite the objections,
bench conferences, and hearings outside of the presence of the jury. These proceedings are
simply becoming futile despite the State improperly being allowed to utilize 404(b) evidence and
question witnesses improperly. In an effort to expedite the trial and still preserve the
Defendants rights, the Court is requested to allow the Defendant a continuing objection
regarding the following issues and for the following grounds:
1. The State has been utilizing 404(b) evidence, over objection, with regards to the
so-called conflicts of interests of Board members who either directly or indirectly receive money
for services performed by them or family members. The State has been allowed to continually
misconstrue the conflicts of interest as improper despite the fact that the Downtown Jackson
Partners (DJP) conflict of interest disclosure does not prohibit Board members, or their
families, from contracting with DPJ; the only requirement is for the DPJ Board member to recuse
himself/herself from voting on any such contact. Despite the plain language of this policy, the
State continues to mischaracterize this as a conflict of interest. The State is also utilizing 990
Forms to accomplish this improper attack over objection.

2. The Defendant has continually argued that this evidence is inadmissible. It is
not relevant to the charges contained in the indictment. It constitutes improper 404(b) evidence.
The Supreme Court has stated that the proponent of 404(b) is required to show the following:
Rule 404(b) is a specialized rule of relevancy. Accordingly, as with

any determination pursuant to Rule 401, counsel must be prepared
to (1) identify the consequential fact to which the proffered
evidence of other crimes, wrongs or acts is directed, (2) prove the
other crimes, wrongs, or acts, and (3) articulate precisely the
evidential hypothesis by which the consequential fact may be
inferred from the proffered evidence. Evidence which passes
muster up to this point must, in addition, satisfy the balancing test
imposed by Rule 403 which requires the probative value of the
other crimes evidence to outweigh the harmful consequences that
might flow from its admission. (Footnotes omitted)
Edlin v. State, 533 So. 2d 403 (Miss. 1988).
The State has not shown this nor has the Court required them to.
3. On February 2, 2017, the Defendant requested that the Court require the State to
identify for what purpose the conflict of evidence was offered under 404(b) and its relevance
under 403. The State first said the evidence on the 990 Forms was offered as a character trait of
untruthfulness of the defendant. This is a direct violation of the use of 404 evidence, which was
pointed out to the Court. The Court was asked once again to have the State identify the 404(b)
purpose for which this evidence was offered. The State stumbled through some sort of hybrid
403 balancing act but failed to identify any purpose for which the evidence was admissible under
404(b). It is unsure at this point whether the State understands 404(b). Despite the State
advising the court that the evidence was used to attack the Defendants truthfulness (improper
under 404(b), the State has been allowed to continue to utilize this evidence.
2
4. The Defendant is required to request a limiting instruction when 404(b) evidence
is offered. However, the limiting instruction must identify the particular 404(b) purpose and
instruct the jury to use it simply for that purpose. The burden should properly be upon the trial
counsel to request a limiting instruction. This was our Rule before Smith, in accord with Rule
105 of the Mississippi Rules of Evidence. The Rule provides in pertinent part that when
evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is
admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the
jury accordingly." Miss. R. Evid. 105 (emphasis added). Brown v. State, 890 So. 2d 901 (Miss.
2004).
5. Since the State cannot identify a proper purpose for the 404(b) evidence and the
Court will not require them to do so, the Defendant cannot request a proper limiting instruction.
The Defendant wishes to preserve this error and requests the Court to allow a continuing
objection to any testimony regarding the conflicts of interest of Board members and utilizing
the 990 Forms to show the Defendants character for untruthfulness. Should the State identify
a proper 404(b) purpose for such evidence, or if the Court requires them to do so, the
Defendant will request a limiting instruction. A limiting instruction now would be fruitless
given the States inability to identify a purpose for such 404(b) evidence.
6. Additionally, questioning the witnesses regarding the conflicts of interest is
improper impeachment evidence under M.R.E. 608, which prohibits questions concerning
wrongful conduct not resulting in conviction.
7. Throughout this trial, the State has been allowed to question witnesses utilizing
documents with which the witnesses are unfamiliar. With recent witness Mike Peters, the State
was allowed to question him about checks and 990 Forms with which the witness was not
3
familiar. Despite being advised that the witness was unfamiliar with the documents and the State
being unable to lay a foundation, the Court permitted the State to have Mr. Peters simply read
from documents which are not in evidence, despite objections from the Defense. It is improper
for a witness to be allowed to read from a document which is not in evidence and with which
they are not familiar. In order to avoid continually objecting to this improper practice, the
Defendant requests a continuing objection to the State showing documents to witnesses with
which they are not familiar and questioning about them. M.R.E. 103(b).
The Defendant submits that the above actions have denied him, and will continue to deny
him, a fair trial and due process as set forth in the State and Federal Constitutions.
The Court is requested to acknowledge the Defendants continuing objection to these
items for the reasons set forth herein.
RESPECTFULLY SUBMITTED, THIS the 3rd day of February, 2017.
BY: _/s/ Merrida Buddy Coxwell________________

OF COUNSEL:

CHARLES R. MULLINS (MB# 9821)
Jackson, MS 39215-1337
Telephone: (601) 948-1600
Facsimile: (601) 948-7097
merridac@coxwelllaw.com
chuckm@coxwelllaw.com
Attorneys for Defendant, Benjamin Wade Allen, III
4
This is to certify that I, Mrrida Buddy Coxwell, have this day filed the above and
foregoing Motion in Limine with Regard to the States Continued Use of Improper 404(B)
Evidence, Other Evidentiary Issues and a Request for a Continuing Objection with the Clerk
of Court via the MEC system, which sent notice of same to the following persons of interest:
Robert Shuler Smith, Esquire


Post Office Box 327
THIS, the 3rd day of February, 2017.
/s/Merrida Buddy Coxwell_____________

5

RESPONSE TO MOTION FOR ADDITIONAL DISCOVERY BY

DISTRICT ATTORNEY
COMES NOW Ben Allen, by and through his attorney and makes this Response to the
Request for Additional Discovery, and for cause would show the following:
1. Mr. Allen, by and through his attorney provided discovery to the Hinds County
District Attorney on or around June 23, 2016. On that date a Motion to Dismiss was filed
together with numerous exhibits. The Motion to Dismiss and the Exhibits contained the names of
witnesses and exhibits that constituted reciprocal discovery. It has been in the possession of the
District Attorney since June 2016. Included in those Exhibits were the audited tax returns of the
Downtown Jackson Partnership. (Exhibit H to the Motion to Dismiss). The Tax returns were
performed by BKD, Inc., the twelfth (12th) largest accounting firm in the United States with over
250 partners and 2500 employees. The Downtown Jackson Partners is a private, nonprofit
corporation organized and existing under the laws of the State of Mississippi. It was originally
incorporated in 1993 under the name Capital Center, Inc. It is in good standing in Mississippi.
The name was later changed to Downtown Jackson Partners, and it qualified as a 503(c)(4)
nonprofit under the I.R.S. Code. Downtown Jackson Partners operates and manages the Business
Improvement District Plan, which is a group of private land owners in Jackson who established
1
and voted to set up the B.I.D. under Mississippi Law. All of the supporting documents for the
B.I.D. and incorporation were filed with the Motion to Dismiss. See Exhibits A-G. Downtown
Jackson Partners is a private corporation and the BID is a private entity established by law.
2. In his motion, the District Attorney seeks additional so-called reciprocal
discovery from Mr. Allen pursuant to 9.04, URCCC. However, the District Attorney seeks
discovery from Mr. Allen and his attorneys as if this were a civil matter. 9.04 does indeed require
Mr. Allen to provide reciprocal discovery but with two very important limitations. First, the
disclosures are subject to constitutional limitations. Secondly, the defendant is only required to
produce discovery which he may offer in evidence. 9.04 (C) 1-3. The documents requested
from Mr. Allen do not constitute reciprocal discovery for the simple reason that Mr. Allen
does not plan to offer any of these items in evidence at trial.
3. The District Attorney is seeking the personal tax returns of Mr. Allen. The
personal tax returns of Mr. Allen are not relevant to any inquiry before the Court and are not the
subject of discoverable material sought under 9.04 since they will not be offered in evidence by
the defense. Mr. Allen does not seek to introduce his person income tax returns into evidence.
4. In paragraph six (6) the District Attorney asking for a broad range of documents
that do not constitute reciprocal discovery under Rule 9.04 and that are not relevant. To the
extent any such documents exist, some would be protected by the work product privilege and the
attorney-client privilege. Nevertheless, Rule 9.04 does not require the production of this
evidence for the District Attorney since the items will not be offered in evidence by the defense.
If the District Attorney believes this evidence exits, he is free to make the calls and inquiries to
law enforcement agencies. Nothing in the law or rules requires the accused to do the work for the
prosecutor.
2
5. In paragraph 7, the District Attorney asks for the production of new rules, by-laws
which are implemented and approved by Downtown Jackson Partners. There is no requirement
under Rule 9.04 for the accused to provide documents belonging to Downtown Jackson Partners
to the District Attorney. Furthermore, there is no definition of what is meant by new. Does it
mean since 1996, or after 2000, or after former employee Linda Brune was found to have
wrongfully taken money for Downtown Jackson Partners. No guidance is provided in this regard.
Mr. Allen does not seek to introduce any documents beyond those produced in the Exhibits.
6. In paragraph 8 the District Attorney asks for any campaign contributions made to
any sitting Judge in Hinds County, Mississippi. First, campaign contributions are recorded at the
Secretary of States Office and the District Attorney is capable of finding this information on his
own. Second, the Downtown Jackson Partners are not charged with any crime in this matter.
Downtown Jackson Partners is the victim of a crime due to a former employee theft. The
nonprofit corporation does not make contributions to Judges and the Executive Committee, the
Board of Directors, or the Advisory Board is under no obligation to provide this information. All
of the prior Board Members, Advisory Members, and Executive Members are listed in the
discovery provided to the District Attorney. Since Mr. Allen will not introduce such evidence at
trial 9.04 does not require him to produce it to the District Attorney. This information is readily
available to anyone at the Secretary of States Office and the District Attorney can obtain it if he
so desires.
7. In paragraph 9 the District Attorney asks for payments to any and all media
outlets, including blogs and/or websites, from any and all members of Downtown Jackson
Partners. The Downtown Jackson Partners is not subject to Rule 9.04 and does not have to
3
provide information to the District Attorney. Furthermore, this information is not relevant to the
issues before the Court.
8. In paragraph 10 the District Attorney asks for payments by Downtown Jackson
Partners to Brad Franklin aka Kamikazi. Whatever this matter concerns it is not relevant to the
issues before the Court. Downtown Jackson Partners is not subject to Rule 9.04, since it is not a
party to this matter. DJP is a victim of theft yet the district attorney is treating the nonprofit like a
criminal defendant. Rule 9.04 requires reciprocal discovery, it does not require and accused to
help the district attorney or any law enforcement agency develop their theory. The tax returns for
audit tax returns for DJP are included in the Exhibit and the information sought might be in those
documents.
9. In paragraph 11 the District Attorney asks for a smorgasbord of information from
Coxwell & Associates, PLLC, Downtown Jackson Partners, and anyone else that might be
connected with the arrest of District Attorney Robert Shuler Smith. It is difficult to answer this
request because of its bizarre nature. First, it is not relevant to any inquiry before the Court. The
request by the District Attorney would seem to suggest that all the entities are involved in a
conspiracy against him, which is nonsensical. Second, Downtown Jackson Partners is not
subject to the discovery rule in this case. None of the entities set forth in the District Attorneys
request are subject to the reciprocal discovery rule.
Lastly, and as a way of setting the record straight, no person at Coxwell & Associates, PLLC,
had anything to do with Mr. Robert Shuler Smiths arrest or indictment. Mr. Smiths scurrilous
allegation should be stricken from the record. Mr. Smith has absolutely no basis for making this
allegation. Mr. Allens attorneys request that the District Attorneys remarks about Coxwell &
4
Associates, its attorneys and employees be stricken from the record and request any and all other
relief as deemed appropriate from the Court.
BENJAMIN W. ALLEN, III
BY: /s/ Mrrida Buddy Coxwell

5
I, Mrrida Buddy Coxwell, attorney of record for the Defendant, Benjamin W. Allen,
III, do hereby certify that I have this day electronically filed the above and foregoing Response
to Motion for Additional Discovery by District Attorney with the Clerk of Court, using the MEC
electronic filing, and provided a copy of same to:
Greta Harris, Esquire


Post Office Box 327
This the 24th day of October, 2016.
/s/ Mrrida Buddy Coxwell


Telephone: (601) 948-1600
Facsimile: (601) 948-1600
Email: merridac@coxwelllaw.com
6


DISTRICT ATTORNEY
1
prosecutor.
2
so desires.
3
documents.
4

5


Post Office Box 327


Telephone: (601) 948-1600
Facsimile: (601) 948-1600
6


DISTRICT ATTORNEY
1
prosecutor.
2
so desires.
3
documents.
4

5


Post Office Box 327


Telephone: (601) 948-1600
Facsimile: (601) 948-1600
6

Ben Allen File July 20 2017

Încărcat de

Informații document

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Ben Allen File July 20 2017

Încărcat de

Drepturi de autor:

Formate disponibile

Case: 25CI1:16-cr-00110-WLK Document #: 116 Filed: 07/19/2017 Page 1 of 1

Case: 25CI1:16-cr-00110-WLK Document #: 115 Filed: 07/17/2017 Page 1 of 2

v. CAUSE NO. 25CI1:16-cr-00110-WLK

BENJAMIN W. ALLEN, III DEFENDANT

TO: Zack Wallace Honorable Winston Kidd

AMENDED NOTICE OF APPEAL

BY THIS NOTICE, Benjamin W. Allen, Defendant/Appellant hereinabove, does hereby

Defendant is filing this Amended Notice of Appeal.

RESPECTFULLY SUBMITTED, THIS the lih day of July, 2017.

MERRIDA "BUDDY" COXWELL (MB# 7782)

following persons of interest:

Zack Wallace Honorable Winston Kidd

THIS, the 12th day of July, 2017.

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

V. CAUSE NO. 25CI1:16-cr-00110-WLK

BENJAMIN W. ALLEN, III DEFENDANT

DEFENDANTS MOTION FOR J.N.O.V. OR, IN THE ALTERNATIVE, A NEW TRIAL

2. The evidence was insufficient to support the embezzlement verdict in Count 4.

Mr. Allen incorporates the points raised in number 1 above.

Mr. Stokes and this right was denied.

improper variance in the Indictment.

Model Jury Instruction 11:4

The Court instructs the Jury that the guilt of a defendant in a

which defines acting in concert very similarly:

act jointly, agree, be in collusion with, collude, combine, concur,

White v. State, No. 2015-KA-01458-COA (Feb. 14, 2017) (emphasis supplied).

violated Mr. Allens Federal and State confrontation rights.

RESPECTFULLY SUBMITTED, THIS the 16th day of February, 2017.

BY: _/s/ Merrida Buddy Coxwell________________

MRRIDA BUDDY COXWELL (MB# 7782)

Robert Shuler Smith, Esquire

Evelyn Hunter, Circuit Court Administrator to

THIS, the 16th day of February, 2017.

/s/Merrida Buddy Coxwell_____________

IN THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI, PLAINTIFF

v. CAUSE NO. 16-110

BENJAMIN ALLEN DEFENDANT

MOTION OF JERRY MITCHELL TO QUASH TRIAL SUBPOENA

2. Mr. Mitchell is employed as a professional journalist for The Clarion Ledger,

with offices located in Jackson, Mississippi, where he is as investigative reporter.

3. On Wednesday, January 25, 2017, Honorable Randy Harris, Assistant District

I. The Subpoena Must Be Quashed As It Is Repugnant to the First Amendment of the

necessary to a case. Without constitutional protection, reporters would be subjected to

constitutionality of a subpoena issued to a journalist:

a. Is the information relevant?

b. Can the information be obtained by alternative means?

c. Is there a compelling interest in the information?

Selcraig, 705 F.2d 789, 792 (5th Cir. 1983).

means, and there is no compelling need for his testimony.

II. The Subpoena Should Be Quashed As It Is Not the Best Evidence.

first-hand knowledge. Specifically, information regarding ownership, payment of taxes, and

(1972) (Powell, J., concurring).

recollection of his work other than what appears in the article.

Civil Procedure which provides:

Miss. R. Civ. P. 45(d)(1)(A).

authenticating under Miss. R. Evid. 902(6).

17. The subpoena should be quashed as it is unreasonable and unduly burdensome

because it does not provide timely notice to Mr. Mitchell.

been issued by the Clerk of Court.

the court record.

quash the subpoena wrongfully issued to him.

THIS, the 27th day of January, 2017.

BUTLER SNOW LLP