Social Media Authentication by Testimony That Pages Ostensibly Belonging to Parties Were Found by Using Their Names, DOB, Zip Codes & Other Identifying Info, and That Printouts of Photos & Captions Accurately Reflected What Was Posted on Those Pages

Blackledge v. State, 2016 Ga. LEXIS 462 (Ga. Sup. Ct. July 5, 2016):

Along with several co-defendants, Milton Blackledge was tried by a Cobb County jury and convicted of murder, violation of the Georgia Street Gang Terrorism and Prevention Act (the "Street Gang Act"),1 and other crimes, all in connection with the killing of Justin Brown. Blackledge appeals, contending that the evidence is insufficient to sustain his conviction for violation of the Street Gang Act, that the trial court erred when it refused to sever his trial from that of his co-defendants, and that the trial court erred when it admitted certain evidence. We find no error and affirm.2

1   OCGA § 16-15-1 et seq.

2   Brown was killed on August 2, 2007. Blackledge, David Hayes, Miracle Nwakanma, Louis Francis, and Muhammed Abdus--Salaam were indicted on December 21, 2007, and each was charged with malice murder, three counts of felony murder, one count of conspiracy to commit armed robbery, four counts of aggravated assault, one count of violation of the Street Gang Act, and one count of unlawful possession of a firearm during the commission of a crime. In addition, Hayes and Nwakanma were charged with unlawful possession of a firearm by a convicted felon and felony murder predicated on unlawful possession of a firearm by a convicted felon. Francis [*2]  also was charged with possession of cocaine and possession of less than one ounce of marijuana, but those charges were later dead docketed. The prosecution elected to try Abdus-Salaam separately, and it deferred his trial until a later date, after his co-defendants were tried; he eventually entered a plea of guilty to reduced charges. Beginning on May 4, 2009, Blackledge, Hayes, Nwakanma, and Francis were tried by a single jury. The trial court directed a verdict of acquittal for each defendant on one count of aggravated assault, and the jury returned its verdict on May 20, 2009, finding Blackledge, Hayes, Nwakanma, and Francis each guilty of the remaining counts, except malice murder. On June 24, 2009, Blackledge was sentenced to imprisonment for life for the felony murder of Brown predicated on an aggravated assault upon Brown, a concurrent term of imprisonment for ten years for conspiracy to commit armed robbery, a consecutive term of imprisonment for twenty years for aggravated assault upon Scott Keller, a consecutive term of imprisonment for ten years for aggravated assault upon Josh Washington, a concurrent term of imprisonment for fifteen years for violation of the Street Gang Act, and a consecutive [*3]  term of imprisonment for five years for unlawful possession of a firearm during the commission of a crime. The verdicts as to the other counts of felony murder were vacated by operation of law, Malcolm v. State, 263 Ga. 369, 371-372 (4) (434 SE2d 479) (1993), and the remaining aggravated assault upon Brown merged with the felony murder. Blackledge timely filed a motion for new trial on June 25, 2009, and he amended it on January 19, 2012 and February 17, 2012. The trial court denied his motion on May 8, 2013, and Blackledge timely filed a notice of appeal on May 10, 2013. The case was docketed in this Court for the January 2016 term and submitted for decision on the briefs.

1. Viewed in the light most favorable to the verdict, the evidence shows that on the evening of August 1, 2007, Blackledge, David Hayes, Miracle Nwakanma, Louis Francis, and Muhammed Abdus-Salaam made plans to rob Dylan Wattecamps, who recently had been involved in a dispute with Abdus-Salaam concerning a sale of marijuana. Early on the morning of August 2, Hayes gave Nwakanma a .380 caliber pistol (which Nwakanma later gave to Francis), and Blackledge drove Nwakanma, Francis, and Abdus-Salaam to the Smyrna apartment complex in which Wattecamps lived. Hayes drove there separately [*4]  in his pickup truck, arranged entry for the other four men through a resident that he knew, parked his truck across the street from the entry gate, and waited there as the others entered the apartment complex. Blackledge parked his car near Wattecamps's apartment, and Blackledge and his passengers exited the car, with Blackledge and Nwakanma carrying silver semi-automatic handguns.

Unbenownst to the would-be robbers, Wattecamps was having a party in his apartment, and as Blackledge and his three passengers approached the door, a guest came out, and Blackledge hit him in the face. The four men then ran away, pursued by Wattecamps and several of his guests. Brown, Scott Keller, and Josh Washington, who were walking to the party, heard Wattecamps yell "get them," and they began to chase the four men. Blackledge and Francis then fired several shots at Brown, Keller, and Washington, one of which fatally wounded Brown. Blackledge and his friends were able to climb over a fence and escape in Hayes's truck. Both Francis and Blackledge claimed to have shot Brown, and Hayes drove everyone to Abdus-Salaam's apartment. Six matching .380 caliber shell casings and three .380 caliber projectiles, [*5]  including the one that fatally wounded Brown, were recovered. All of the shell casings came from the same gun, and two of the projectiles, including the one that killed Brown, were fired from the same pistol. When questioned by investigators, Blackledge initially denied any involvement and provided an alibi, but he later admitted that he was present at the apartment complex at the time that Brown was shot. We previously considered the evidence in this case when we heard appeals by Nwakanma, Francis, and Hayes, whose convictions we affirmed. See Nwakanma v. State, 296 Ga. 493, 494-495 (1) (768 SE2d 503) (2015); Hayes v. State, 298 Ga. 339 (781 SE2d 777) (2016). We now consider this evidence anew with respect to Blackledge.

Blackledge claims that the evidence is legally insufficient to sustain his conviction for violation of the Street Gang Act.3 In Nwakanma, we indicated that the evidence, when viewed in the light most favorable to the verdict, showed that Blackledge and his three co-defendants were associated with "a criminal street gang known as 'MPRC 300,'" 296 Ga. at 494 (1), and we confirmed that finding in Hayes, 298 Ga. at 341 (a). Our present review of the evidence, viewed in the same light, confirms that the evidence was sufficient to show that "MPRC 300" was a "criminal street gang," that Blackledge was associated with that gang, and that [*6]  the planned robbery was intended to further the interests of the gang.4 As a result, the evidence adduced at trial was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Blackledge was guilty of violating the Street Gang Act. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

3   Blackledge also complains that the evidence is insufficient to sustain a conviction for felony murder in the commission of a violation of the Street Gang Act, but Blackledge was not sentenced for that crime, and no judgment of conviction as to that crime was entered against him because the verdict as to that felony murder count was vacated by operation of law. See note 2, supra. Accordingly, Blackledge's claim that the evidence is legally insufficient to sustain a conviction for the vacated felony murder is moot. See Hayes, 298 Ga. at 340, n. 2.

Notably, Blackledge does not dispute the legal sufficiency of the evidence as to felony murder predicated on the aggravated assault of Brown, conspiracy to commit armed robbery, the aggravated assault upon Keller, the aggravated assault upon Washington, and the unlawful possession of a firearm during the commission of a crime. We independently have reviewed the evidence that pertains to those crimes, and we are satisfied that the [*7]  evidence is sufficient to sustain those convictions. See Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

4   The evidence that MPRC 300 was a criminal street gang and that the planned robbery was intended to further the interests of the gang was described in Hayes, 298 Ga. at 341-343 (a). The evidence that Blackledge was associated with that gang includes testimony that MPRC 300 was a hybrid gang that included members of different gangs, that Blackledge admitted to being associated with the Crips gang, that Blackledge had tattoos that were common to members of gangs, and that -- just before leaving for the planned robbery of Wattecamps -- Blackledge participated in a "freak" during which he and his co-indictees had sex with the "first lady" of the MPRC 300 gang.

***

4. Blackledge claims that the trial court erred when it admitted photographs and photographic captions that had been posted, the State alleged, on MySpace pages maintained by Hayes and Francis. Blackledge says that this documentary evidence was not properly authenticated, but we already have held that "[d]ocuments from electronic sources such as the printouts from a website like MySpace are subject to the same rules of authentication as other more traditional documentary evidence and may be authenticated through circumstantial evidence." Burgess v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013) (citations omitted). Here, a law enforcement officer testified that he discovered the MySpace pages for Hayes (username "DavidMPRC300") and Francis (username "LuisMPRC300") by using their names, dates of birth, residential ZIP codes, and [*15]  other known identifying information. Testimony was presented that the printouts of the photographs and captions were an accurate representation of what was posted on those pages, and the officer testified outside the presence of the jury that the photographs posted on the pages depicted Hayes, Frances, and Nwakanma, among others.9 This testimony was sufficient to authenticate the photographs and captions, and the trial court did not abuse its discretion when it admitted that evidence. See Cotton v. State, 297 Ga. 257, 260 (3) (773 SE2d 242) (2015) (new Evidence Code case, but noting that rules for authentication of social media postings are unchanged from old Evidence Code).

9   In addition, the State presented the testimony of a legal compliance officer for MySpace, although we previously have held that such testimony is not necessary to authenticate printouts from a social networking site. See Burgess, 292 Ga. at 823 (4).

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