                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                         ASSIGNED ON BRIEFS MAY 16, 2003

     JERRY RAY, Executor of the Estate of James Earl Ray v. STATE OF
                         TENNESSEE, ET AL.

                   Direct Appeal from the Circuit Court for Shelby County
                         No. CT-001003-02     Kay S. Robilio, Judge



                   No. W2002-01611-COA-R3-CV - Filed October 15, 2003


This case arises from a dispute involving the exercise of custody over certain property by the Shelby
County Criminal Court Clerk, William E. Key. The lower court granted Appellees’ motion to
dismiss based upon Appellant’s failure to prosecute. We affirm the lower court’s dismissal of the
action, though on different grounds.


   Tenn. R. App. P. 3; Appeal As of Right; Judgment of the Circuit Court Affirmed and
                                       Remanded

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY
M. KIRBY, J., joined.

Andrew N. Hall, Wartburg, TN; Barry A. Bachrach, Worcester, MA, for Appellant

Paul G. Summers, Attorney General & Reporter, Dianne Stamey Dycus, Deputy Attorney General,
Nashville, TN, for Appellee
                                          MEMORANDUM OPINION1

         This case arises from a dispute involving the exercise of custody over certain property by the
Shelby County Criminal Court Clerk, William E. Key.2 In 1969, James Earl Ray (“Decedent”) plead
guilty to the murder of Dr. Martin Luther King, Jr. and was convicted in the Criminal Court of
Shelby County. The Decedent filed many post-conviction appeals in the following years, until his
death in 1998. Thereafter, Jerry Ray (“Mr. Ray”), as Decedent’s brother and executor of his estate,
filed suit in the Probate Court of Davidson County, Tennessee. Mr. Ray sought the return of
property that had been used in the Decedent’s criminal proceedings and that had subsequently
remained in the custody of the Shelby County Criminal Court Clerk. The items sought by Mr. Ray
in that action included one .30-06 caliber Remington hunting rifle. The Probate Court dismissed the
action, ruling that Mr. Ray’s claim against the State of Tennessee for the property at issue was barred
by the doctrines of sovereign immunity and collateral estoppel. On appeal, this Court affirmed the
dismissal of the action, though on the alternative ground that the Probate Court lacked the authority
to determine the disposition of property in the custody of the Criminal Court Clerk.

       On February 25, 2002, Mr. Ray, acting pro se, then filed the present action in the Circuit
Court of Shelby County, Tennessee. Mr. Ray sought to regain possession of the .30-06 caliber
Remington hunting rifle that was, in part, the subject of his earlier action in the Probate Court of
Davidson County. In response to Mr. Ray’s complaint, William Gibbons, as the District Attorney
General of Shelby County and on behalf of the State of Tennessee, and William Key, as Criminal
Court Clerk of Shelby County,3 each filed a motion to dismiss. The trial court set the motions for
hearing on May 24, 2002. Mr. Ray failed to appear for the hearing, and the trial court granted the
Appellees’ motions to dismiss based upon Mr. Ray’s failure to prosecute. Mr. Ray then timely filed
an appeal from the decision of the trial court. As in the prior appeal referenced above, we affirm the
lower court’s dismissal of the action, though upon the alternate ground that the court lacked the
authority to order the transfer or disposition of property held in the custody of the Criminal Court
Clerk.

      This Court addressed the proper forum for Mr. Ray’s cause in Ray v. State, No. M1999-
00237-COA-R3-CV, 2000 WL 388718 at *1 (Tenn. Ct. App. 2000). In that case, as previously
mentioned, Mr. Ray sought to gain possession of the subject rifle by filing in the Probate Court of

         1
           Rule 10 (Court of Appe als). Mem orandum Opinion. - (b) The Court, with the concurrence of all judges
participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum op inion when a
formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated
“Mem orandum Opinion,” shall not be published, and shall not be cited or relied on for any reason in a subsequent
unrelated case.

         2
            W e note that, pursuant to Tenn. Code A nn. § 10-7-510 (Supp . 1997), Mr. Key transferred possession of the
rifle at issue to the Lo rraine C ivil Rights M useum Foundation in Novem ber 2000 . Appellant’s action, however, still lies
with the state rather than with the museum. The museum’s custody is only as good as that of the clerk who transferred
the subject property. The relevant issue , therefore, is the validity of the C riminal Court Clerk’s precedent custody.

         3
             Hereinafter, Mr. Gib bons and Mr. Key will be referred to collectively as “A ppe llees.”

                                                             -2-
Davidson County. On appeal from the Probate Court’s dismissal, we held that “the Probate Court
lacked the authority to determine the disposition of property held in the custody of the Criminal
Court Clerk . . . [T]he proper forum in which to seek return of the subject property is the court
having custody of that property.” Id. at *3-5 (emphasis added). The court with custody of the
subject rifle in this matter is the Criminal Court of Shelby County. It acquired custody when it
conducted the criminal proceedings involving Decedent in 1969. Mr. Ray erred in the present matter
by incorrectly filing with the Circuit Court of Shelby County, rather than with the Criminal Court.
This error is not mitigated by the fact that Mr. Ray filed in the correct county. Mere physical
proximity to the correct court is irrelevant in light of our prior reasoning on this issue:

        [T]he trial court “has the inherent authority to determine the custody and control of
        evidence held in the [trial court] clerk’s office. Ray v. State, 984 S.W.2d 236, 238
        (Tenn. Crim. App. 1997). This authority includes “the right to exercise control over
        physical evidence after a case has been concluded.” Id. at 238 n. 4 . . . “[T]o permit
        an interference with [the clerk’s] possession would be to interfere with the
        jurisdiction of the court, and [to] divert the property, from the purposes for which it
        is held.” Outerbridge Horsey Co, 120 A. 235, 236 (Md. 1923). When property “is
        in custodia legis, and subject to the order of the court having criminal jurisdiction of
        the offense, . . . neither by attachment proceeding nor by injunction should the
        criminal court’s power of disposition of the [property] be taken away or interfered
        with.” State v. Allen, 66 N.W.2d 830, 837 (Neb. 1954).

Id. at *3-4.4 The foregoing authority clearly admonishes a court not to interfere with property in the
custody of another court. Accordingly, our holding is the same as in our previous decision on this
matter.

         The trial court’s judgment is affirmed, and this cause is remanded for further proceedings
consistent with this opinion. Costs of this appeal are taxed to Jerry Ray, for which execution may
issue if necessary.



                                                              ______________________________
                                                              ALAN E. HIGHERS, JUDGE




        4
          W e also no te that Lawrence v. Mullins, 449 S.W.2d 224 (Tenn. 1969) and Hays v. Montague, 860 S.W.2d 403
(Tenn. Ct. App. 199 3) remain inapposite on this issue, for the reasons stated in Ray.

                                                       -3-
