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Case: 25CI1:16-cr-01018-WLK

Document #: 14

Filed: 12/28/2017

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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VS.

WAYNE MITCHELL PARISH

PLAINTIFF

CAUSE NO. 16-1-018

DEFENDANT

MOTION FOR ISSUANCE OF A SUBPOENA DUCES TECUM

COMES NOW Wayne Parish, by his counsel, and files this Motion pursuant to Rule 33,

MRCrP, for the Issuance of a Subponea Duces Tecum, and for cause would show the following:

1. Mr. Wayne Parish is currently charged with deliberate design murder in the above

styled and numbered cause. The deceased, Charles McDonald, had run off from Youth Court and

was breaking into a car on the private property of Performance Oil when Mr. Parish confronted

him. Mr. Parish walked outside his business after witnessing Mr. McDonald attempting to break a

window on an automobile. According to witnesses, Mr. Parish asked Mr. McDonald to stop trying

to break a window and leave the property at least ten (10) times. Rather than leave, Mr. McDonald

began chasing Mr. Parish around the car. Mr. McDonald began swinging his fist/hands at Mr.

Parish, and then grabbed Mr. Parish’s gun. In the ensuing struggle, Mr. McDonald was

continuously attempting to take Mr. Parish’s gun from him. Prior to the shooting of Mr. McDonald,

he was committing the crimes of attempted auto burglary, trespass, and assault.

2. Witnesses to the shooting of Mr. McDonald reported that he continuously tried to

throw a hard metal object at the window of the car even as Mr. Parish asked him repeatedly to

leave the property. As Mr. McDonald began attacking Mr. Parish, Mr. Parish fired a warning shot

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Case: 25CI1:16-cr-01018-WLK

Document #: 14

Filed: 12/28/2017

Page 2 of 3

into the ground. This did not deter Mr. McDonald; rather he began pursuing Mr. Parish around the

car as Mr. Parish attempted to avoid a confrontation.

3. Mr. Parish is entitled to the presumptions afforded by Miss. Code Ann., Section 97-

3-15 (3) and (4). In addition, since this is a case of self-defense, Mr. Parish is entitled to inquire

into the background of the deceased, Mr. Charles McDonald. Counsel has learned that Mr.

McDonald has been involved in repeated drug treatments and in significant criminal offenses,

which were handle in Youth Court. While they are not considered criminal offenses in Youth

Court, there are types of violent behavior, which could be relevant during the trial of this case.

Drug treatment and drug use are relevant because drugs can effect both the behavior of a person

and that person’s ability to see, remember and act in accordance with social behavioral norms, and

can lead to aggressive action, which is relevant in self-defense cases.

WHEREFORE PREMISES CONSIDERED, Mr. Parish moves the Court to issue an Order

directing the Hinds County Youth Court to produce an exact duplicate of the entire file(s) of Mr.

Charles McDonald at the offices of Coxwell & Associates, PLLC. The file will review for relevant

evidence or for information that will lead to relevant evidence and an exact duplicate will be

provide to the Hinds County District Attorney’s Office.

RESPECTFULLY SUBMITTED,

PARISH, WAYNE MITCHELL, DEFENDANT

BY:

/s/ Mérrida (Buddy) Coxwell

MÉRRIDA (BUDDY) COXWELL

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Case: 25CI1:16-cr-01018-WLK

Document #: 14

Filed: 12/28/2017

CERTIFICATE OF SERVICE

Page 3 of 3

I, Mérrida (Buddy) Coxwell, counsel for Defendant, Wayne Mitchell Parish, do hereby

certify that I have this day electronically filed the above and foregoing Motion for Issuance of

Subpoena Duces Tecum with the Clerk of Court using the ECF system, which sent notification of

same to:

Via Electronic Mail: Wkidd@co.hinds.ms.us Honorable Judge Winston Kidd Hinds County Circuit Court Judge 407 E. Pascagoula St. Jackson, MS 39205

Via Electronic Mail: Swashington@co.hinds.ms.us Honorable ADA Shaunte Washington Hinds County District Attorney’s Office Post Office Box 22747 Jackson MS 39225

THIS, the 28 th day of December, 2017.

PREPARED BY:

BY:

/s/ Mérrida (Buddy) Coxwell

MÉRRIDA (BUDDY) COXWELL

Mérrida (Buddy) Coxwell (MB #7782) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, Mississippi 39215-1337 Telephone: (601) 948-1600 Fax: (601) 948-7097 Merridac@coxwelllaw.com

William E. Ready, Jr. (MB# 4676) Ready Law Firm 2103 5 th Street Meridian, Mississippi 39301-5131 Telephone: (601) 693-5050 Email: Bill@ReadyLawFirm.com

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IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT HINDS COUNTY, MISSISSIPPI

STATE OF MISSISSIPPI

VS.

PARISH, WAYNE MITCHELL

MOTION TO SET BOND

PLAINTIFF

CAUSE NO. 16-1-018

DEFENDANT

COMES NOW, the Defendant, PARISH, WAYNE MITCHELL, by and through

undersigned counsel of record, pursuant to the Fifth, Eighth and Fourteenth Amendments

to the United States Constitution and Article 3, Section 29 of the Mississippi State

Constitution, and moves this Court to set bond in this matter. In support thereof, Mr.

Parish would show the following:

I. Applicable Law

In pertinent part, Article 3, Section 29 of the Mississippi Constitution provides:

(1) Excessive bail shall not be required, and all persons shall, before conviction, be

bailable by sufficient sureties, except for capital offenses (a) when the proof is evident or

presumption great; or (b) when the person has previously been convicted of a capital

offense or any offense punishable by imprisonment for a maximum of twenty (20) years

or more.

Article 3, Section 29 has been interpreted to provide a “non-discretionary right to bail

before conviction for all offenses, except those offenses punishable by death when the

proof of guilt is evident or the presumption of guilt is great.” Lee v. Lawson, 375 So.2d

1019, 1020 (Miss. 1979); Ex Parte Dennis, 334 So.2d 369 (Miss. 1976); Royalty v. State,

235 So.2d 718 (Miss. 1970); Resolute Ins. Co. v. State, 233 So.2d 788 (Miss. 1970). “Bail

is a fundamental, constitutionally protected right.” Resolute Ins. Co., 233 So.2d 788

(Miss. 1970).

The purpose of bail is to secure the presence of the accused at trial, not necessarily

to expedite the judicial process. Clay v. State, 757 So.2d 236, 241 (Miss. 2000) (citing

Lee, 375 So.2d at 1021). “The constitutional right to bail before conviction … has been

so fundamental that it is favored by the public policy of this state.” Clay, 757 So.2d at

241. To that end, Article 3, Section 29 further provides that “[i]n any case where bail is

denied before conviction, the judge shall place in the record his reasons for denying bail.

Where excessive bail is required, it is considered tantamount to a denial of bail which is

in direct contradiction to Article 3, Section 29 of the Mississippi Constitution. Clay, 757

So.2d at 241. (Trial Judge abused her discretion in setting excessive bail beyond the

means of an indigent defendant without the appropriate rationale).

The muddled exception within Section 29(1),

when the proof is evident or

presumption great

,”

found plain expression in Huff v. Edwards: Before a person can be

denied bail the court must find that there is proof beyond a reasonable doubt that the

defendant guilty. Miss. Const. of 1890 Art. 3 § 29; Huff v. Edwards, 241 So.2d 654

(Miss. 1970). Generally, if a reasonable doubt or well-founded doubt of guilt can be

entertained, then proof of guilt is not evident nor the presumption great and the

reasonable doubt standard Mr. Parish is not require exclusion of every reasonable

hypothesis of guilt. Huff, 241 So.2d 654 (Record providing support for finding that

petitioner had motive and intent but which was silent on any connection between

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petitioner and the murderer, did not warrant denial of bail on theory that proof was

evident or presumption great).

It has long been recognized that “[u]nless the right to bail before trial is preserved,

the presumption of innocence, secured only after centuries of struggle, would lose its

meaning.” Stack v. Boyle, 342 U.S. 1, 72 (1951). Bail set at figure higher than an amount

reasonably calculated to secure the presence of the accused at trial is “excessive under the

Eighth Amendment.” Id. Further, with respect to the Fifth Amendment’s Due Process

Clause ---applicable to the states via the Fourteenth Amendment’s Due Process Clause—

where an accused is being detained without bond (or a bond so excessive it cannot be

made) on the ground that he is a danger to the community, the Fourteenth Amendment

prohibits the deprivation of his liberty without due process of law.

The following factors should be considered as guidelines when determining the

amount of bail:

1) The Defendant’s length of residence in the community; 2) Employment status,,

history,

and

financial

condition;

3)

Family

ties

and

relationships;

4)

Reputation,

character,

and

mental

conditions;

5)

Prior

criminal

record,

including any record of prior release on recognizance or on bail; 6) The

identity of responsible members of the community who would vouch for

defendant’s

reliability;

7)

probability of

conviction,

Nature

and

the

of

the

offense

likely sentence

charged,

and,

8)

the

apparent

other

factors

indicating the defendant’s ties to the community or bearing on the risk of

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willful failure to appear. Clay, 757 So.2d at 240 (citing Lee v. Lawson, 375

So.2d at 1024).

II. Lee v. Lawson Factors Applied

1) Defendant’s length of residence in the community:

Mr. Parish currently resides in Crystal Springs in Copiah County where

he owns a home for the five (5) years. He is a resident of the State of

Mississippi for the last thirty-five (35) years.

2) Employment status, history, and financial conditions

For 28 years, Mr. Parish is a co-owner of Performance Oil Equipment.

Performance Oil Equipment is located at 920 E. McDowell Rd. Jackson,

Mississippi 39204, in Hinds County, Mississippi. Mr. Parish expects to

resume his position immediately upon release.

3) Family ties and relationships:

Mr.

Parish

has

a

son

and

a

daughterboth

are

adults

living

in

Louisiana.

Mr.

Parish

has

12

grandchildren.

Further,

Mr.

Parish

maintains a strong and meaningful relationship with his children and

grandchildren.

4) Reputation, character, and mental condition:

Mr. Parish’s continued residency in Copiah County coupled with a

sound record of mental health, further bolsters a reputation founded on

hard work ethic as well as deep commitment to his job, his friends, and

his employees.

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5) Prior criminal record, including any record of prior release on recognizance or

on bail:

Mr. Parish has no criminal records other than in his youth, he was

charged with driving under the influence.

6) The identity of responsible members of the community who would vouch for

defendant’s reliability:

As previously noted, Mr. Parish enjoys the support of immediate family

members and extended family members in the community who can

vouch for his reliability.

Business

Partner

Jimmy

Ratcliff,

who

co-owns

Petroleum

Oil

Equipment and has worked with Mr. Parish for over 28 years.

Employees of Petroleum Oil Equipment.

Other Business Owners in the Community.

7) Nature of the offense charged, the apparent probability of conviction, and the

likely sentence:

Although Murder is a serious offense, the nature of the offense is not

dispositive in consideration of a bond.

A video exists, although parts were blocked from view, but it was

apparent what was taking place.

The deceased youth, a 17-year-old boy, repeatedly tried to break into an

employee’s vehicle at Petroleum Oil. Mr. Parish asked the youth to just

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run and leave the premises. The youth did not leave. Both Mr. Parish

and the deceased tussled with the youth grabbing onto Mr. Parish. Both

were holding onto the gun when it went off. From the video it appears

clear that Mr. Parish had an opportunity to shoot the deceased, but he

did not do so, rather the deceased ran at Mr. Parish and grabbed the gun

where a struggle ensued and the deceased was shot. All of this is on

video.

It is unknown, who actually pulled the trigger.

Upon information and belief, at the time of the incident, the youth had

two warrants out for his arrest. In one incident, he was involved in

police chase. Further, on the morning of the incident, the youth was

involved in a house burglary and almost shot by the homeowner.

8)

Mr. Parish has a recognizable defense of self-defense.

WHEREFORE, PREMISES CONSIDERED and pursuant to the Fifth, Eighth, and

Fourteenth Amendments to the United States Constitution and Section 29 of the

Mississippi State Constitution, Mr. Parish respectfully moves this honorable Court to set

a condition of release commensurate with both the competency of the state’s proof of

guilt and Mr. Parish ’s constitutionally protected right to release.

This the 4th day of January, 2017.

RESPECTFULLY SUBMITTED, PARISH, WAYNE MITCHELL, DEFENDANT

BY:

AMMIE T. NGUYEN

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PREPARED BY:

Ammie T. Nguyen (MB #104936) KHALAF & NGUYEN, PLLC Post Office Box 320067 Flowood, Mississippi 39232 Tel: (601) 288-6763 Fax:1(844) 350-8299

Mérrida (Buddy) Coxwell (MB #7782) COXWELL & ASSOCIATES, PLLC Post Office Box 1337 Jackson, Mississippi 39215-1337 Tel: (601) 948-1600 Fax: (601) 948-7097 Merridac@coxwelllaw.com

CERTIFICATE OF SERVICE

I, Ammie T. Nguyen, Attorney for the Defendant in the above-styled referenced matter, do certify that I have on this day mailed by United States mail, postage prepaid, and by electronic mail delivery, a true and correct copy of the foregoing Motion to Set Bond to the following:

Via Electronic Mail: Wkidd@co.hinds.ms.us Honorable Judge Winston Kidd Hinds County Circuit Court Judge 407 E. Pascagoula St. Jackson, MS 39205

Via Electronic Mail: Swashington@co.hinds.ms.us Honorable ADA Shaunte Washington Hinds County District Attorney’s Office Post Office Box 22747 Jackson MS 39225

THIS, the 4th day of January, 2017.

AMMIE T. NGUYEN

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Case: 25CI1:16-cr-01018-WLK

Document #: 7

Filed: 01/10/2017

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Case: 25CI1:16-cr-01018-WLK

Document #: 7

Filed: 01/10/2017

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Case: 25CI1:16-cr-01018-WLK

Document #: 1

Filed: 10/28/2016

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INDICTMENT pt degree murder 97-3-19

CIRCUIT COURT NO. \ (o- \ 0 \ 13

FILED

THE STATE OF MISSISSIPPI FIRST DISTRICT, HINDS COUNTY

Circuit Court September Term, A.D., 2016

First Judicial District of

OCT 28 2016

ZACK WAUACE. ORCUITCLERK

Hinds County. The Grand Jurors for the State of Mississippi, taken from the ~ody of good and lawful persons of Hinds County, in the State of Mississippi, elected, impaneled, sworn and charged to inquire in and for said District, County and State aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present: That

D.t

WAYNE PARISH

in said District, County and State, on or about the 21st

day of June, 2016

in the county aforesaid and within the jurisdiction of this Court, did willfully, unlawfully and feloniously kill Charles McDonald, a human being, without authority of law, with deliberate

Charles

design to effect the death of said person or of any human being, by shooting the said

McDonald multiple times in the chest with a firearm, in violation of Section 97-3-19 (1972), as

amended,

contrary to the form of the statute in such cases made an and dignity of the State of Mississippi.

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GRAND JURY FOREMAN

AS