The Georgia Court of Appeals recently heard the appeal of a convicted an automobile driver of two counts of homicide by vehicle in the first degree and one count each of reckless driving, failure to exercise due care, and failure to stop at a stop sign. The defendant filed a motion for a new trial, which the trial court denied. Part of the appeal focused on a video of the accident posted on social media. Social media is used every day. Our Atlanta personal injury lawyer tells our clients not to post to Facebook.
The evidence at trial showed that the defendant failed to yield the right of way and was distracted by her use of a cellphone. This evidence supported her convictions. But among other things, she argued that the evidence wasn’t enough and that the trial court erroneously admitted video-recorded evidence.
Senior Appellate Judge Herbert E. Phipps explained that on appeal from a criminal conviction, the appellate court views the evidence in the light most favorable to the verdict. As a result, an appellant doesn’t enjoy the presumption of innocence. The appellate court determines if the evidence was sufficient and doesn’t weigh the evidence or determine witness credibility. Provided there’s some competent evidence—even though it may be contradicted—to support each fact necessary to make out the State’s case, the reviewing court must uphold the jury’s verdict.
The Evidence at Trial
The defendant was driving with her three children when they were involved in a collision with a truck driven by another motorist and occupied by his wife. The other driver and the defendant’s nine-year-old daughter were killed in the crash. The defendant, her other two children, and the truck driver’s wife were severely injured. This collision occurred at the intersection of Spring Flats and County Line Road in Dougherty County.
In his opinion, Judge Phipps explained that a Georgia State Patrol officer who specializes in accident reconstruction and was qualified as an expert at trial, testified that he’d investigated more than a thousand accidents. During the accident reconstruction in this case, the officer:
- Walked through the scene;
- Marked roadway evidence, including gouges, tire marks, and final resting place of the vehicles and victims;
- Noted damage to vehicles and road structures, including a stop sign and guy wire pole;
- Photographed the scene;
- Took measurements at the scene;
- Spoke with family members;
- Inspected the vehicles at the scene and at the wrecker yard; and
- Created a diagram of the evidence.
Following this, he concluded that the defendant was driving on Spring Flats, which has stop signs at the intersection, and the other motorist was driving on County Line Road, which doesn’t have a stop sign at the intersection. Based on his investigation, the front of the defendant’s car struck the driver’s side of the other vehicle. The crash happened during the day, and there were no weather conditions or anything else that would have obstructed one’s vision at the scene.
A second State Patrol officer also specializing in collision reconstruction and qualified as an expert at trial, testified that he used a crash data retrieval program to recover black box data from both vehicles involved in the collision. This trooper had worked on about 1,500 crashes, was certified to analyze the data and, at the time of the trial, had analyzed data from 30-40 black boxes since receiving specialized certification in black box data recovery.
Vehicle black box data can include information such as when or if brakes were applied, whether cruise control was on, the speed of the vehicle, and any vehicle acceleration. According to the second trooper, his data interpretation showed that both vehicles were traveling in excess of 60 miles per hour immediately before the collision. He visited the site and reviewed the accident reconstruction diagram, and concluded that based on his investigation that the truck had the right of way and that the defendant failed to stop her vehicle at the stop sign. In addition, an officer who responded to the scene testified that based on his observations and evidence he recorded at the crash site, he issued citations to the defendant.
The Aunt’s Facebook Video
The aunt of the defendant’s children testified that after the crash, her mother showed her a video posted on the defendant’s Facebook account. The aunt used her cell phone to record the Facebook video from her mother’s phone. That recording was admitted by the trial court and played for the jury. The seven-minute video showed the events immediately prior to, during, and following the collision. During the video, the defendant and her three children are seen in the car while the defendant is driving and presumably holding the phone. Those in the car wished everyone a happy Thanksgiving as the phone pans the car, and the defendant twice comments that the group is “on the road.”
The group continues talking while music is playing, and the phone continues to pan the car, then a scream is heard, and the phone begins filming the interior roof of the car while the occupants are silent. The phone twice records someone asking about injuries. Later, one of the boys begins crying and asking for his mom, and finally someone leans in the car and asks if everyone is okay before the video stops.
Based on these facts, the jury found the defendant guilty. However, she argued that the State “failed to prove beyond a reasonable doubt that [she] drove her vehicle in reckless disregard for the safety of persons or property, failing to yield the right of way and causing the deaths of the truck driver or [her daughter].” She said that the first trooper offered “purely conclusory” testimony regarding her fault, and no evidence supported the expert’s opinion. Judge Phipps disagreed and said that this assertion failed to recognize the first trooper’s testimony that he’d investigated more than a thousand accidents and, during the course of the accident reconstruction in this case, he:
- personally inspected the vehicles;
- observed and measured gouges and tire marks in the roadway, as well as the placement of the vehicles and victims;
- noted damage to a stop sign and guy wire pole; and
- requested data analysis of the vehicles’ black boxes, which revealed that both vehicles were traveling in excess of 60 miles per hour at the time of the collision.
The judge said that this evidence was enough to support the first trooper’s conclusion that the defendant was driving on Spring Flats and failed to stop her vehicle at the stop sign, striking the driver’s side of the truck. Therefore, the evidence was enough for a rational trier of fact to find that the defendant failed to stop at a stop sign, thus failing to yield the right of way.
Not only did the evidence authorize the jury to find the defendant guilty of the charged offenses based on her failure to yield the right of way, but the video allowed the jury to infer that the defendant failed to exercise due care and recklessly disregarded the safety of her passengers and others on the road by using a cellphone and not paying attention to the road in front while traveling in excess of 60 MPH. Thus, the judge held that her convictions were supported by the evidence, and the trial court didn’t err in denying her motion for a new trial on this ground.
The Admission of the Facebook Video
The defendant also claimed that the trial court erred in admitting, over her objection, the Facebook video recorded by the aunt and purportedly posted by the defendant. According to the defendant, the video shown to the jury was “a video (on the aunt’s phone) … of a video (on the aunt’s mother’s phone) … of a video (on a Facebook page),” and it should have been excluded because the State failed to authenticate it.
Judge Phipps explained that under Georgia’s Evidence Code, authentication of evidence may be achieved through a number of ways so long as there’s evidence sufficient to support a finding that the matter in question is what its proponent claims. Georgia Statute § 24-9-901(b)(1) provides that “[a]uthentication can be achieved through testimony of a witness with knowledge that a matter is what it is claimed to be.” And the Georgia Supreme Court has held that 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. Further, once the party seeking to authenticate evidence presents a prima facie case that the evidence is what it purports to be, the evidence is properly admitted, leaving the ultimate question of authenticity to be decided by the jury.
The Video was Properly Authenticated
Here, the aunt testified at trial that she knew the defendant shared information on Facebook and that she was familiar with her Facebook because, although the aunt didn’t have her own Facebook account, she used her mother’s account to keep up with her family. According to the aunt, the video she recorded was posted on the defendant’s Facebook page, and she recognized the people in the video. She identified those people at trial as the defendant and her three children. The aunt also identified a picture of her nine-year-old niece (who was killed in the collision) to corroborate the video identification. Plus, she testified that the State’s exhibit, which she initialed after viewing it with the investigator, was an accurate, unaltered depiction of the video she saw on her mother’s phone and the exact video she recorded from Facebook and gave to an officer. Based on this, Judge Phipps said that the trial court was authorized to find that the State established a prima facie case that the recorded video accurately reflected the contents of the video posted on the defendant’s Facebook account.
On appeal, the defendant asserted that the video wasn’t properly authenticated because the aunt failed to testify about any distinctive characteristics of the Facebook account, including biographical information, an IP address, a phone number, or other information identifying the Facebook account as belonging to the defendant. However, Judge Phipps noted that while Georgia Statute § 24-9-901(b)(4) permits authentication through “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances[,]” the State here presented ample circumstantial evidence to authenticate the video, such as the testimony of a witness with knowledge that a matter is what it is claimed to be.
The judge said that “the State was not limited to authenticating the video through [the defendant’s] preferred method,” citing a recent case. Accordingly, the trial court did not abuse its discretion by admitting the recorded video into evidence at trial and leaving the ultimate question of its authenticity to be decided by the jury. The judgment was affirmed. Holley v. State, 2022 Ga. App. LEXIS 129 (Ga. App. March 9, 2022).
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