In the Supreme Court of Georgia



                                          Decided: September 22, 2014


                     S14A0988. MOORE v. THE STATE.


      HUNSTEIN, Justice.

      Appellant Patrick Ramon Moore was convicted by a jury of murder and

related offenses for the January 3, 2011 shootings of Erica Peterson, Fabian

Ellis, and Jervod Jarvis, and shooting death of Tracy Burton. Appellant appeals

the denial of his amended motion for new trial, contending that the evidence was

insufficient for a jury to find him guilty, and also asserting that the trial court

erred by (1) excluding evidence of a victim’s possession of drugs, (2) admitting

evidence concerning Appellant’s Facebook page, and (3) refusing to give a

voluntary manslaughter jury charge. Finding no error, we affirm.1


      1
        On December 11, 2011, a Clayton County grand jury indicted Appellant for
malice murder, two counts of felony murder, four counts of aggravated assault, two
counts of aggravated battery, four counts of possession of a weapon during the
commission of a crime, theft by receiving stolen property, and possession of a firearm
by a convicted felon. During September 17-21, 2012, Appellant was tried before a
jury. On September 21, 2012, the jury returned a verdict of guilty on all counts
except one count of felony murder and possession of a firearm by a convicted felon,
both of which had been severed prior to trial and were nolle prossed. On the same
      Viewed in the light most favorable to the jury’s verdict, the evidence

adduced at trial established as follows. On January 3, 2011, Appellant and his

girlfriend, Toni Hale, returned to their apartment to find the door open and that

they had been burglarized. Hale and Appellant suspected that Erica Peterson,

Fabian Ellis, Jervod Jarvis, and Tracy Burton had burglarized their apartment.

      Later that evening, Peterson, Burton, Jarvis, and Ellis approached

Appellant, who was standing in a darkened area of the apartment complex.

Jarvis attempted to speak with Appellant about the theft. Appellant pulled an

AK-47 from under his jacket and began firing. All of the victims were unarmed

and ran. Appellant shot Burton twice from behind, and he died instantly from

a gunshot wound to the back of his head. Appellant struck Jarvis in the back,



day, the court sentenced Appellant to life imprisonment without the possibility of
parole for malice murder; a concurrent 20-year term for one count of aggravated
assault and two counts of aggravated battery; a concurrent 10-year term for theft by
receiving stolen property; and a consecutive five-year term for each count of
possession of a weapon during the commission of a crime to run concurrently with
each other. The remaining counts merged or were vacated as a matter of law.
Appellant filed a motion for new trial on September 26, 2012, which was amended
on August 16, 2013. In lieu of an evidentiary hearing, the parties agreed to submit
arguments by brief. The trial court denied Appellant’s motion for new trial as
amended on November 4, 2013. Appellant filed a notice of appeal on November 14,
2013. The appeal was docketed to the April 2014 term of this Court and submitted
for a decision on the briefs.
                                         2
with a bullet exiting his chest and exposing his right lung. Jarvis initially fell

down but then was able to get up and keep running. A bullet hit Peterson's

phone, which was in her pocket. Appellant shot Ellis in the hand, and he

collapsed and pretended to be dead. Appellant continued to fire the gun as he

pursued Jarvis and Peterson around the corner of an apartment building in the

complex. Appellant then fled into one of the apartment buildings. Meanwhile,

Ellis got up, ran to Peterson and Jarvis, and called 911.

      Appellant left the AK-47 at Jessica Pettis’ apartment and fled the

apartment complex. Appellant later called Pettis and told her to put the gun

away and that “he tried to shoot them all in their head. But the girl had ran

[sic].” Pettis hid the AK-47 in a closet. Later that evening, at the direction of

police, Pettis called Appellant, placed the call on speaker phone, and Appellant

again told Pettis to put the gun away. Pettis then disclosed to police where she

had hidden the AK-47. After police left, Pettis called Appellant and told him

that they had found the gun, to which Appellant responded, “F***, they got me

then.”

      Peterson, Jarvis, and Ellis, as well as a maintenance worker for the

apartment complex identified Appellant as the shooter in a photographic lineup

                                        3
and also at trial. The maintenance worker also testified that he saw Appellant

raise his weapon and start firing at the four victims and that Appellant was the

only person with a gun.

      At trial, a detective testified that the path of the bullet wound that killed

Burton was consistent with him running away from the bullet. The investigator

testified further that the first cluster of shell casings recovered at the scene was

consistent with someone standing in one place and firing in the direction of

where Burton's body was found, and the second cluster of shell casings was

consistent with someone advancing while continuing to fire. A firearms

examiner testified at trial that the shell casings found at the scene had been fired

from the AK-47 found at Pettis’ apartment. The owner of the AK-47 identified

the serial number on the AK-47 found in Pettis’ apartment as the same one that

had been stolen from his home in December 2010.

      Additionally at trial, a copy of Appellant’s Facebook page was admitted

into evidence over Appellant’s objection. Hale read several of Appellant’s

Facebook posts into evidence, including the following from December 30, 2011:

      Man, this some sh [sic] I got to be behind the walls instead of being
      behind my chick come 2012. Next time lames run in da [sic] spot,
      ima [sic] b**** up and call the law. Maybe den [sic] I’ll stay on the

                                         4
      streets. Happy New Years. The resolution is not to scratch my
      trigger finger so often.

      1. Appellant argues that the evidence was insufficient to convict him and

that he was legally justified in firing his weapon in self-defense. He contends

that the four victims approached him in the dark and he believed they would

harm him, just as they had burglarized his apartment earlier that day. Appellant

asserts further that a clip loaded with bullets for a 9 millimeter handgun was

found in Ellis’ pocket and that Ellis told the 911 dispatcher that he “should (or

could) have shot him,” which confirms that Ellis brandished his weapon at

Appellant.

      We find that the evidence was sufficient to enable a rational trier of fact

to conclude beyond a reasonable doubt that Appellant was guilty of the crimes

of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781,

61 LE2d 560) (1979).       The court charged the jury on self-defense and

justification, and it was within the province of the jury to assess the evidence

and determine whether Appellant acted in self-defense. See White v. State, 287

Ga. 713, 715 (1) (b) (699 SE2d 291) (2010) (“the issues of witness credibility

and justification are for the jury to decide, and the jury is free to reject a


                                        5
defendant’s claim that he acted in self-defense”). Four eyewitnesses testified

that Appellant fired at the victims unprovoked, and the only weapon recovered

from the crime scene was Appellant’s AK-47. No evidence was presented at

trial to suggest that any of the victims was armed. The 9 millimeter clip found

in Ellis’ pocket was not missing any bullets, nor did it show any evidence of

having been used in conjunction with firing a weapon. Finally, statements

Appellant made after the shooting did not support a theory of self-defense and

instead indicated that Appellant was excited, was hoping for news coverage of

the shooting, and shot the victims “to show people that he was nothing to play

with.” See Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“‘It was

for the jury to determine the credibility of the witnesses and to resolve any

conflicts or inconsistencies in the evidence.’”) (citation omitted).

      2. Appellant argues that the trial court erred by excluding evidence that

Burton was in possession of drugs at the time of the shooting. Appellant asserts

that this evidence was relevant to support his theory that he was acting in self-

defense and feared bodily harm from Burton, who was under the influence of

drugs, and his contention that the victims were armed because they were

involved with the distribution of drugs.

                                        6
      We review the admission of evidence for an abuse of discretion. Burgess

v. State, 292 Ga. 821 (4) (742 SE2d 464) (2013).

      Generally, a murder victim's character is irrelevant and, thus,
      inadmissible. Evidence that impugns a victim's character cannot be
      admitted unless it has some factual nexus with the conclusion for
      which it is being offered. Sheer speculation is insufficient.
      Otherwise, character evidence would be admitted routinely,
      disguised as relevant to whatever speculative theory the proponent
      managed to put forth.

Roseberry v. State, 274 Ga. 301, 303 (2) (553 SE2d 589) (2001).

      There is no evidence of any connection between Burton’s purported drug

use or alleged involvement in drug distribution and Appellant’s shooting of

Burton in his back and the back of his head. Because there is only sheer

speculation by Appellant of any factual nexus, the trial court did not abuse its

discretion in excluding evidence of any drugs found in Burton’s pocket. See

McBride v. State, 291 Ga. 593 (3) (732 SE2d 757) (2012) (trial court did not

abuse discretion in excluding evidence showing that the victim may have used

drugs or been involved in the distribution of drugs prior to the defendant’s

shooting of him because there was no connection between the victim’s alleged

drug use or sale and the defendant’s shooting of the victim from behind).

      3. Appellant next asserts that the trial court erred in permitting testimony

                                        7
from Hale about a Facebook page in Appellant’s name. First, Appellant

contends that the Facebook page was not properly authenticated and there was

insufficient evidence to prove that Appellant actually made the comments on the

page. Appellant asserts that Hale was not present when the comments were

made, and she admitted that anyone could have posted the comments and

created the Facebook page.

      “Documents from electronic sources such as the printouts from a website

like [Facebook] are subject to the same rules of authentication as other more

traditional documentary evidence and may be authenticated through

circumstantial evidence.” Burgess, 292 Ga. at 823.2

      Hale testified that the picture on the Facebook page was of Appellant and

confirmed that his hometown was Gary, Indiana, as listed on the page. The

Facebook page included the cell phone number from which Appellant had called

Hale. Hale and other witnesses testified that Appellant went by the nickname

“Crown” or “Crown Hood,” and the Facebook page profile name was listed as

“Patrick Crown Hood Moore.” Appellant’s Facebook page contained details

      2
       This case was tried before January 1, 2013, which was the effective date of
Georgia's new Evidence Code, including OCGA § 24-9-901 (“Requirement of
authentication or identification”).
                                        8
about his life that were not public knowledge and made references to Appellant's

other girlfriend and his brothers. Hale also testified that the structure and style

of the comments posted on the page matched the structure and style of the texts

Appellant had sent Hale. Finally, Appellant admitted to Hale that the Facebook

page belonged to him. Based on this direct and circumstantial evidence, we find

that the Facebook page was properly authenticated. See id. at 823-24 (printout

from a MySpace profile page was sufficiently authenticated by testimony that

the defendant’s nickname matched the profile name, photos of the defendant

matched the images on the printout, and the defendant’s age and hometown were

accurately listed on the page); In re L.P., 324 Ga. App. 78 (2) (749 SE2d 389)

(2013) (Facebook page sufficiently authenticated by photos of the defendant and

the defendant’s biographical information).

      Second, Appellant contends that Hale’s testimony about Appellant’s

Facebook page improperly placed Appellant’s character in evidence. Hale

testified that Appellant told her he had a cell phone while he was in jail, and she

explained that the Facebook posts indicated that Appellant made them from a

cell phone rather than a computer. Hale also testified that when Appellant made

these posts to Facebook, Appellant was in prison and not in jail. A p p el l a n t

                                        9
contends that Hale’s testimony improperly placed his character in evidence

because (1) the jury could infer that Appellant had illegally smuggled a cell

phone into custody; and (2) Hale stated that Appellant was in both the county

jail and state prison. Appellant argues that this testimony was a direct comment

on his character, irrelevant, and prejudicial.

      At trial, although Appellant objected to the introduction of Appellant’s

Facebook page based on a lack of authentication, Appellant did not object to

Hale’s testimony based on improper character evidence. “Georgia ‘has long

followed the contemporaneous objection rule, which provides that counsel must

make a proper objection on the record at the earliest possible time to preserve

for review the point of error.’” Johnson v. State, 292 Ga. 785, 787 (3) (741

SE2d 627) (2013). In the absence of a contemporaneous objection and ruling

thereon at trial, this issue was not properly preserved for appeal. See id.

      Even if Appellant had made a timely objection, we find no error.

      Evidence which is relevant and responsive but which minimally
      places the character of the defendant into issue, is nevertheless
      admissible where the relevance of the testimony outweighs any
      prejudice it may cause. Relevant evidence is not rendered
      inadmissible because it incidentally puts the defendant's character
      into issue.


                                        10
Roebuck v. State, 277 Ga. 200, 205 (5) (586 SE2d 651) (2003) (citations and

punctuation omitted). Additionally, a “passing reference to a defendant’s record

does not put his character into issue.” Id.

      Here, the focus of Hale’s testimony was not on Appellant’s character and

that he was in prison, but on whether he was making posts to Facebook. Such

a passing reference to Appellant being in prison does not render the evidence

inadmissible. See id. Additionally, there was no evidence presented to the jury

to indicate that Appellant’s possession of a cell phone while in custody was a

crime or that he had illegally smuggled a phone into custody. Furthermore,

Hale’s testimony about Appellant having a cell phone while in custody was

relevant to verify the phone number Appellant listed on his Facebook page and

to show that he was posting to Facebook via a cell phone. Hale’s testimony was

also relevant to show that Appellant, as opposed to a third person, made the

Facebook posts because the posts referenced him being in custody. Finally, the

Facebook posts were relevant because they were evidence from which a jury

could infer Appellant’s guilt. The relevance of this evidence outweighs any

prejudice.

      4. Appellant argues that the trial court erred by refusing to charge the jury

                                        11
on voluntary manslaughter. “A trial court is required to give a requested charge

on voluntary manslaughter if there is slight evidence showing that the victim

seriously provoked the defendant, causing the defendant to kill the victim solely

as the result of a sudden, violent, and irresistible passion, OCGA § 16-5-2(a).”

Merritt v. State, 292 Ga. 327, 331 (2) (737 SE2d 673) (2013) (punctuation

omitted).

      There is no evidence that Appellant killed Burton solely as a result of a

sudden, violent, and irresistible passion. Jarvis, Peterson, and Ellis each

consistently testified that they did not provoke Appellant and that Appellant did

not say anything to them before he pulled out the AK-47 and began firing at

them. Furthermore, Jarvis and Peterson testified that after they approached

Appellant, Jarvis asked Appellant “what was going on,” to which Appellant

never replied and instead began firing. This evidence, showing that the victims

did not seriously provoke Appellant, and that instead he shot unarmed victims

from behind and continued to pursue them as they tried to flee from him, did not

warrant a voluntary manslaughter charge. See Hicks v. State, 287 Ga. 260 (3)

(695 SE2d 195) (2010) (no voluntary manslaughter charge required where the

defendant assaulted the victim with a deadly weapon and then fired fatal shots

                                       12
into his back as he attempted to flee).

      In addition to the victims’ testimony, the maintenance worker testified that

he heard Appellant screaming and cursing just before the shots were fired. Yet,

“fighting prior to a homicide ‘does not constitute the type of provocation that

would warrant a charge of voluntary manslaughter.’” Nichols v. State, 275 Ga.

246, 246-47 (2) (563 SE2d 121) (2002); see Merritt, 292 Ga. at 331 (2013)

(“‘words alone [generally] are not sufficient provocation to excite the passion

necessary to give rise to voluntary manslaughter’”). Furthermore, Appellant’s

alleged fear that the victims might pull a gun on him was insufficient

provocation to warrant a voluntary manslaughter charge. See Funes v. State,

289 Ga. 793, 795 (2) (716 SE2d 183) (2011) (“fear that someone is going to pull

a gun” is not a type of provocation demanding a voluntary manslaughter

charge). Accordingly, the trial court did not err by refusing to charge the jury

on voluntary manslaughter.

      Judgment affirmed. All the Justices concur.




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