State of Tennessee v. Lucian Henry Marshall, III ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 11, 2005
STATE OF TENNESSEE v. LUCIAN HENRY MARSHALL, III
Appeal from the Criminal Court for Sumner County
Nos. II-11612, II-CR03168 Jane Wheatcraft, Judge
No. M2004-02442-CCA-R3-CD - Filed June 3, 2005
The appellant, Lucian Henry Marshall, III, appeals the order of the Sumner County Criminal Court,
signed by appellant’s counsel, agreeing to the disposition of money and his vehicle which had been
seized pursuant to a forfeiture warrant. Alleging he was not properly informed of the procedure for
recovering his seized assets, the appellant asks us to void the agreed order. We affirm the order of
the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.
William N. Ligon, Gallatin, Tennessee, for the appellant, Lucian Henry Marshall, III.
Paul G. Summers, Attorney General and Reporter; Lizabeth A. Hale, Assistant Attorney General;
Lawrence R. Whitley, District Attorney General; and Dee Gay, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
FACTS
From the sparse record on appeal, it appears that the appellant, suspected of driving under
the influence, was stopped by Gallatin Police Officer Eben Bates on July 9, 2004. Although the
appellant apparently was not arrested, his vehicle and a large sum of cash in the vehicle were seized
by Officer Bates. The record contains a forfeiture affidavit detailing the events surrounding the
seizure:
On Friday, July 9th, 2004, at approximately 2146, I, Officer Eben Bates, was
dispatched to the area of Nashville Pike and Brown’s Lane, Gallatin, TN, Sumner
County, in reference to a possible intoxicated driver. The complainant stated that a
blue Toyota Corolla, TN license plate #QHA928, was driving erratically inbound
toward Gallatin. I made contact with the vehicle and observed the vehicle to cross
over the white line with the right tires and then immediately cross over the yellow
centerline with it’s [sic] left tires. I conducted a traffic stop with the vehicle in the
parking lot of Walgreens at W. Main and Maple.
I made contact with the driver, Lucian Henry Marshall III. I explained the
reason I stopped him and he stated that he had not been drinking and that he had just
left work. Marshall then gave consent to a search of the vehicle. I located a small
black case with a large sum of cash inside. I asked Marshall where the money came
from and he told me it was from gambling and that he had a lot of pay role [sic]
checks in there also. I read Marshall his Miranda Rights and then asked him again
about the money. Marshall stated, “I won the money from shooting dice and playing
the numbers at a number house.” He continued to say that he traveled to these houses
in Nashville, Lebanon, Gallatin, and “all around”, to shoot dice, play the numbers,
and gamble. The money was counted and totaled $11,050.00, which was rolled in
individual denominations of money. Also in the case were fourteen non-cashed pay
role [sic] checks from IBP Tyson Foods. Marshall’s money was seized in accordance
with T.C.A. 39-17-502 and T.C.A. 39-11-703, with the moneys being illegal
proceeds of gambling.
On Monday, July 12th 2004, Marshall came to the Gallatin Police Department
and spoke with Investigator Shane Woodard and Captain Denise Thrasher in [an]
attempt to get his money back. He told the Investigator and Captain that he wished
he had not told me the money was from gambling and should have told me something
different on the night of the stop. When Investigator Woodard asked where he did
get the money he again stated that he gained the money over several games of
shooting dice.
The record also contains a Notice of Property Seizure and Forfeiture of Conveyances form
signed by the appellant on July 9, 2004, detailing that the appellant’s 1988 Toyota Corolla and
$10,998.00 in cash had been seized and noting that because it was a “Category IV” seizure, the
appellant should “refer to instructions provided by seizing agency for filing a claim on the above
property.”1 A forfeiture warrant finding probable cause to believe that $11,050.00 was subject to
forfeiture as proceeds from gambling pursuant to Tennessee Code Annotated sections 39-17-502 and
39-11-703, was signed by the trial court on July 16, 2004.
1
Categories I, II, and III dealt with seizures that were narcotics related, DUI related, or related to vehicles with
altered vehicle identification numbers. Each of those categories contained lengthy explanations of the seizure and
forfeiture provisions of the Tennessee statutes, as well as procedures to be followed for filing a claim to the seized assets.
Category IV, however, contained no similar explanations.
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On August 30, 2004, the trial court entered an order, “approved for entry” by the State and
the appellant’s counsel, stating that the parties had agreed that $3050.00 and the vehicle would be
returned to the appellant, while $8000.00 would be retained by the Gallatin Police Department Drug
Fund. It is from that order the appellant now appeals to this court.
ANALYSIS
The appellant, now represented by different counsel, asserts that the agreed order should be
set aside and the $8000.00 returned to him because he “was not afforded any reasonable opportunity
to redeem his funds” and was not “charged with an underlying or supporting crime.” The State
responds that the appellant agreed to the disposition of the funds, which he admits in his brief, and
he has not shown by “clear and convincing evidence that an injustice has occurred.” The State also
asserts that the appeal should be dismissed because the appellant’s brief fails to cite to the record or
to any legal authorities to support his contentions, thereby constituting waiver under Rule 10(b) of
the Rules of the Court of Criminal Appeals.
We begin our analysis by noting that it is the appellant’s duty to prepare an adequate record
for appellate review. Tenn. R. App. P. 24. Our supreme court, in State v. Ballard, 855 S.W.2d 557(Tenn. 1993), stated:
When a party seeks appellate review[,] there is a duty to prepare a record
which conveys a fair, accurate and complete account of what transpired with respect
to the issues forming the basis of the appeal. State v. Bunch, 646 S.W.2d 158, 160
(Tenn. 1983). Where the record is incomplete and does not contain a transcript of
the proceedings relevant to an issue presented for review, or portions of the record
upon which the party relies, an appellate court is precluded from considering the
issue. State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Absent the
necessary relevant material in the record an appellate court cannot consider the merits
of an issue. See T.R.A.P. 24(b).
Id. at 560-61.
In the absence of an adequate record on appeal, this court must presume that the trial court's
actions below are correct and are supported by sufficient evidence. State v. Oody, 823 S.W.2d 554,
559 (Tenn. Crim. App. 1991). Because the record in this case is incomplete, we must presume that
the trial court’s approval of the agreed-upon forfeiture order was proper. State v. Smith, 891 S.W.2d
922, 932 (Tenn. Crim. App. 1994).
Additionally, the appellant fails to cite to any legal authority from this or any other
jurisdiction which would support this court setting aside an agreed-upon order disposing of the
seized funds. See Tenn. Ct. Crim. App. R. 10(b). (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in this
court.”); Tenn. R. App. P. 27(a)(7) (“The brief of the appellant shall contain . . . [a]n argument . .
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. with citations to the authorities and appropriate references to the record[.]”) (emphasis added). The
appellant cites to Tennessee Code Annotated section 40-33-201, which he asserts “clearly mandates
how the claimant may attempt to redeem funds seized by the authorities.” However, the record
indicates that the cash was seized, as illegal gambling proceeds, from the appellant in accordance
with Tennessee Code Annotated section 39-11-703 (2003). Tennessee Code Annotated section 40-
33-201 provides that personal property seized under authority of Tennessee Code Annotated section
39-11-703 is not subject to the procedures set forth in Title 40, Chapter 33, Part 2 of the Code.
Instead, the procedures to be followed for seizure and forfeiture of illegal gambling proceeds, as in
this case, are governed by Title 39, Chapter 11, Part 7. The appellant has not identified any specific
procedure set forth in Title 39, Chapter 11, Part 7 which was not followed in this case, and the record
is insufficient for us to determine its full procedural history. Additionally, there is no requirement
that a criminal prosecution be commenced as a prerequisite to seizure and forfeiture. See Tenn.
Code Ann. § 39-11-707(a) (2003) (“Any property subject to forfeiture under this chapter may be
seized by . . . any law enforcement officer when acting pursuant to a lawful arrest or search[.]”)
(emphasis added). In fact, Tennessee Code Annotated section 39-11-708 contemplates seizures and
forfeitures that are “part of a criminal prosecution,” as well as those which are not part of a criminal
prosecution. See Tenn. Code Ann. § 39-11-708(b), (c), (d) (2003). The legislature has made its
intent clear: “protect[ing] bona fide interest holders and innocent owners of property” under Chapter
11. See Tenn. Code Ann. § 39-11-701(c) (2003) (emphasis added); State v. A Tract of Land Known
as 141 Belle Forest Circle, No. M2000-01827-CCA-R3-CD, 2001 WL 1517028, at *4 (Tenn. Crim.
App. Nov. 29, 2001) (“[I]f neither an innocent owner nor interest holder as defined in the 1998 Act,
the appellant is not afforded protection under the Act.”) (emphasis added). The only explanation in
the record for the appellant’s possession of the money is his statement to officers that he won it
“playing the numbers” and “shooting dice;” therefore, he is not an “innocent owner” and has not
shown that he is entitled to the forfeited money.
CONCLUSION
Following our review, we affirm the order of the trial court.
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ALAN E. GLENN, JUDGE
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