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Appeals court hears challenge to gun evidence and unpreserved texts in Abston rape conviction
Summary
At oral argument, defense counsel challenged admission of a handgun photograph recovered 11 months after the alleged assault and argued the state failed to preserve text messages; the state said the photograph was relevant and any error was harmless. The court took the matter under advisement.
Junie Ganguly, attorney for Cleotha Abston, argued on appeal that the trial court erred by admitting evidence of a handgun recovered during Abston's September 2022 arrest and by refusing to instruct the jury that the state had a duty to preserve text messages viewed by investigating officers.
The issue over the firearm arose because the state introduced a photograph of a handgun officers recovered when they arrested Abston in September 2022. "We submit that was error," Ganguly told the panel, arguing that Alicia Franklin had only described the weapon in vague terms and that there was "absolutely no way" to prove the firearm introduced at trial was the same gun she described in September 2021.
The question of prejudice under Tennessee Rule of Evidence 404(b) became central in the argument. Ganguly told the court the presence of Federal Bureau of Investigation task force officers and numerous Memphis Police Department officers at the 2022 arrest could lead jurors to connect that arrest with another high-profile case — the murder of Liza Fletcher in September 2022 — despite there having been "no point, to be clear, did anybody refer to Liza Fletcher at this trial," Ganguly said.
The state, represented by Will Lundy, disputed that the photograph was improperly admitted or that any error was prejudicial. "The victim consistently and repeatedly testified that the defendant threatened her with a gun and that he used this gun," Lundy said, noting the photograph was offered to corroborate the victim's testimony. Lundy argued relevance is a low bar and that, even if admission of the photograph was error, it was harmless in light of the other evidence, including the victim's testimony and forensic evidence.
On preservation of texts, Ganguly argued Sergeant Shameka Love reviewed text messages between Franklin and Abston and did not preserve them. He said the omission raised a Ferguson-type preservation issue because the messages were relevant to credibility and possible impeachment. The state replied that the messages were the defendant's texts and therefore the defendant had access to them, meaning the state bore no duty to preserve under the cited precedent.
The attorneys also debated sufficiency and credibility. Lundy characterized the evidence as "overwhelming," pointing to the victim's consistent statements, officers' observations of her demeanor, and DNA evidence introduced at trial. Ganguly countered that the record showed the jury asked during deliberations what would happen if it were deadlocked and that other points in the record undercut a claim of overwhelming proof.
Neither side sought immediate relief from the court at argument. The panel told counsel it appreciated the briefing and oral argument and said the matter would be taken under advisement.
