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Facebook Messages Authenticated by Recipients Who Set Up Fake Facebook Accounts to Draw Admissions from Sender — Sender’s ID Confirmed by Use of Rap Name, Fact That His Relatives and Friends Were Facebook Friends, and from Contents of Messages

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Cotton v. State, 2015 Ga. 362, (Ga. Sup. Ct. June 1, 2015):

Dustin James Cotton was tried by a Clayton County jury and convicted of murder and other crimes in connection with the fatal stabbing of Tyriss Turner. Cotton appeals, contending that the verdict is against the weight of the evidence. Cotton also asserts that the trial court erred when it denied his motion for pretrial immunity, when it admitted evidence of incriminating messages that he sent through Facebook, and when it refused his request to charge the jury on defense of others. We see no error, and we affirm.

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3. Cotton also alleges that the trial court erred when it admitted evidence of two incriminating messages that he sent through Facebook.3 In the first message, Cotton wrote that "I KILLED TY AND IT FELT REAL GOOOOOOOOD DOING IT," and in the second message he wrote, "im [sic] happy i killed ty."4 On appeal, Cotton claims that these messages were not properly authenticated.5 But Cotton's only objection to the Facebook messages at trial was that they were "prejudicial and not probative." As a result, Cotton has waived any other claim about the admissibility of the messages. See OCGA § 24-1-103 (a) (1); see also Quintanilla v. State, 273 Ga. 20, 21 (2) (537 SE2d 352) (2000); Sowell v. State, 327 Ga. App. 532, 536 (1) (759 SE2d 602) (2014) (defendant waived claim that document was not properly authenticated [*6]  when he failed to make such an objection at trial).

3   Cotton sent the messages to Facebook accounts set up in fictitious names by Turner's mother and her friend. Turner's mother testified that, after Cotton killed her son and fled to Pennsylvania, she and her friend used false names to become Facebook "friends" with "Bucky Raw," which Cotton acknowledged was a "rap name" that he used. Turner's mother testified that, while her friend was at her house, they contacted Cotton via Facebook using their fake names and were able to engage him in online conversations, in the course of which he sent the incriminating messages to them.

4   Cotton acknowledged that he was the author of these messages, but he said that he wrote them because he believed Turner was dangerous and he came to realize that Turner could have eventually killed his sister if Cotton had not stabbed him.

5   In the heading for this enumeration of error in his brief, Cotton says that the introduction of the Facebook messages also violated his right to confront the witnesses against him. But Cotton never again refers to this claim, and we consider it abandoned. See Supreme Court Rule 22 ("[a]ny enumerated error not supported by argument or citation of authority [*7]  in the brief shall be deemed abandoned."); see also Zamora v. State, 291 Ga. 512, 516 (6) (731 SE2d 658) (2012).

Even if it were otherwise, Cotton's claim about the authentication of the Facebook messages appears to be meritless. We have held that "[d]ocuments 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 v. State, 292 Ga. 821, 823 (4) (742 SE2d 464) (2013) (citations and footnote omitted).6 Here, Turner's mother testified that she knew Cotton went by the name "Bucky Raw" because she saw videos that he had posted -- and in which he appeared -- on YouTube using that alias, because she saw that Cotton's friends and family were Facebook "friends" with "Bucky Raw," and because she was able to discern Cotton's identity through the conversations she had with him on the accounts that she and her friend had set up. As a result, even if Cotton had made an objection to this evidence on authentication grounds, the trial court would not have abused its discretion in overruling it.

6   Although Burgess was based on the old Evidence Code, there is nothing in the new Evidence Code that forbids the use of circumstantial evidence to authenticate [*8]  these types of electronic communications. See OCGA § 24-9-901; Paul S. Milich, Ga. Rules of Evidence, § 7:6 (2014) ("Personal websites, such as Facebook, are authenticated in the same way as other documentary evidence, though the court must be alert to the possibility of unauthorized access to or counterfeiting of websites. A website may be authenticated by traditional means such as the direct testimony of the purported author or circumstantial evidence of distinctive characteristics on the site that identify the author.") (Citations and punctuation omitted).

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New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

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