IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
CALVIN E. MITCHELL, ) January 28, 1998
)
Plaintiff/Appellant, ) Cecil W. Crowson
) Appellate Court Clerk
) Davidson Circuit
VS. ) No. 95C-2496
)
)
WAYNE ARCHIBALD and )
METROPOLITAN GOVERNMENT ) Appeal No.
OF NASHVILLE AND ) 01A01-9706-CV-00264
DAVIDSON COUNTY, )
)
Defendant/Appellee. )
APPEAL FROM THE DAVIDSON COUNTY CIRCUIT COURT
AT NASHVILLE, TENNESSEE
THE HONORABLE MICHAEL MONDELLI, JUDGE BY INTERCHANGE
For Plaintiff/Appellant: For Defendant/Appellee:
Mark M. Mizell James L. Murphy, III
LLOYD T. KELSO & ASSOCIATES Director of Law
Nashville, Tennessee
Lizabeth D. Foster
Metropolitan Attorney
AFFIRMED AND REMANDED
WILLIAM C. KOCH, JR., JUDGE
OPINION
This appeal involves the admissibility of an audio recording of the statement
of an eyewitness to an accident involving a bicyclist and a city-owned dump truck.
The bicyclist filed suit against the city and the driver of the truck in the Circuit Court
for Davidson County. When the only disinterested eyewitness to the accident
disclosed during the trial that intervening brain surgery had impaired his memory, the
trial court permitted the defendants to introduce an audio recording of a statement
given by the witness less than one week after the incident. The trial court, after
comparing the fault of the respective parties, entered a judgment for the defendants.
On this appeal, the bicyclist challenges the admissibility of the tape recorded
statement and the evidentiary foundation of the trial court’s decision. We have
determined that the trial court’s decision to admit the audio recording of the
eyewitness’s statement was not reversible error and that we have no basis for
disregarding the trial court’s determination of the weight of the evidence.
I.
Calvin E. Mitchell was riding his bicycle north on Second Avenue in Nashville
on August 16, 1994. At the same time, a city dump truck with an attached trailer
driven by Wayne Archibald was also driving north on Second Avenue. The parties’
accounts of what transpired after Mr. Archibald passed Mr. Mitchell differ. Mr.
Mitchell testified that Mr. Archibald returned to the northbound lane of Second
Avenue too quickly after passing him and that he lost control of his bicycle when he
became trapped between the truck and the curb. Mr. Archibald testified that he
returned to the northbound lane approximately one block after passing Mr. Mitchell.
He also stated that he activated his turn signals prior to returning to the northbound
lane and that he did not see Mr. Mitchell in his rearview mirror. Mr. Mitchell was
thrown to the pavement when his bicycle came into contact with the trailer’s wheels.
He sustained injuries to his back, shoulder, and knee as well as property damage to
his bicycle.
Albert Gardner was also driving north on Second Avenue when Mr. Archibald
passed Mr. Mitchell. He was the only eyewitness to the accident and had a clear view
because he was traveling behind Mr. Mitchell and Mr. Archibald. In February 1995,
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Mr. Gardner underwent surgery to repair a burst aneurysm in his brain, and as a result
of the aneurysm and surgery lost his memory of the accident. When he testified in
March 1997 that he had no independent recollection of the accident, the trial court
permitted the defendants, over Mr. Mitchell’s objection, to play an audio recording
of a telephone interview between Mr. Gardner and a lawyer for the city that took
place six days after the accident.
Mr. Gardner stated during his recorded interview that Mr. Archibald did not
attempt to return to the northbound lane until he was fifty or sixty yards past the point
where he had overtaken Mr. Mitchell. He also stated that Mr. Mitchell suddenly sped
up after the dump truck passed him and that Mr. Mitchell “flew up beside” the trailer
and was in the blind spot in the truck’s rearview mirrors when Mr. Archibald returned
to the northbound lane. Mr. Gardner confirmed that Mr. Archibald had activated his
turn signals before he returned to the northbound lane and that Mr. Mitchell was
thrown from his bicycle when the bicycle came into contact with the trailer’s wheels.
The trial court ruled from the bench that Mr. Mitchell contributed to his injuries in
an amount sufficient to bar recovery.
II.
THE ADMISSIBILITY OF MR. GARDNER’S RECORDED STATEMENT
Mr. Mitchell challenges the admissibility of Mr. Gardner’s recorded statement
on numerous grounds. He has, however, waived all but two of these grounds by
failing to assert them at trial. See Tenn. R. App. P. 36(a); Tenn. R. Evid. 103(a)(1);
State v. Coker, 746 S.W.2d 167, 173 (Tenn. 1987); Monteeth v. Caldwell, 26 Tenn.
13, 13-14 (1846); Cheek v. Fox, 7 Tenn. Civ. App. (Higgins) 160, 184 (1917); Neil
P. Cohen et al., Tennessee Law of Evidence § 103.3, at 8 (3d ed. 1995). The two
grounds we will consider involve Mr. Mitchell’s objections that opposing counsel did
not notify him in advance of her intent to use Mr. Gardner’s recorded statement and
that the recorded statement is hearsay.1
1
At trial, Mr. Mitchell’s lawyer objected to the introduction of Mr. Gardner’s recorded
statement because it was hearsay and because he had been unfairly surprised by the defendants’
failure to provide him with advance notice of the recording’s contents. In addition to these grounds,
Mr. Mitchell asserts on appeal that (1) the recorded statement contains improper statements of
opinion, (2) that the recorded statement contains statements that were not made on Mr. Gardner’s
personal knowledge, and (3) that the recorded statements are tainted by the improper leading
questions and statements by the city attorney who interviewed Mr. Gardner.
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A.
Mr. Mitchell first argues that the lawyers representing the Metropolitan
Government violated Rule 13 of the Davidson County Local Rules of Practice by
failing to notify him prior to trial that they intended to rely on Mr. Gardner’s recorded
statement in lieu of his live testimony.2 This argument overlooks the fact that Rule
13 did not apply to this case. Rule 13, by its own terms, “applies in civil and criminal
jury cases.” It had no application here because this case was simply a bench trial
under the Governmental Tort Liability Act.
Mr. Mitchell’s “unfair surprise” argument has little merit aside from his
unwarranted reliance on Rule 13. All parties knew or should have known that Mr.
Gardner was an eyewitness to this accident. He underwent brain surgery more than
two years before the trial, and during this time the lawyers for all parties were free to
question him about his memory of the incident and the substance of his testimony.
The record contains no indication that Mr. Mitchell’s lawyer ever attempted to
interview Mr. Gardner prior to trial or that the city’s lawyers failed to respond
appropriately to discovery requests concerning the substance of Mr. Gardner’s
testimony or the existence of any statements he might have given. Because Mr.
Mitchell’s lawyer’s surprise is his own doing, we find nothing reversibly unfair about
it.3
B.
Mr. Mitchell also argues here as he did at trial that Mr. Gardner’s recorded
statement was hearsay and that it should not have been admitted because Mr. Gardner
was beyond the reach of effective cross-examination. The Metropolitan Government
does not deny that Mr. Gardner’s recorded statement is hearsay but asserts that it is
admissible under Tenn. R. Evid. 803(5) as a recorded recollection. The trial court
agreed with the Metropolitan Government’s position, and so do we.
2
Rule 13 requires parties who intend to offer an audio or video recording as evidence to
provide written notice to adversary counsel ten days prior to trial. The rule also permits adversary
counsel to review and obtain a copy of the recording and provides for a motion in limine to resolve
disputes concerning all or any portion of the recording.
3
Mr. Mitchell’s complaint that his lawyer was prevented from effectively objecting to
inadmissible statements in Mr. Gardner’s recorded statement is undermined by his lawyer’s failure
to ask for an opportunity to review the recording before it was played or to raise these objections in
a proper Tenn. R. Civ. P. 59 motion.
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Hearsay testimony is inadmissible in judicial proceedings unless it fits within
one of the recognized exceptions to the hearsay rule. See Tenn. R. Evid. 802; Estes
v. Woodlawn Mem’l Park, Inc., 780 S.W.2d 759, 764 (Tenn. Ct. App. 1989). One
recognized exception to the hearsay rule relates to the recorded recollections of a
witness who is no longer able to recall the substance of his or her testimony. Tenn.
R. Evid. 803(5) provides:
A memorandum or record concerning a matter about
which a witness once had knowledge but now has
insufficient recollection to enable the witness to testify
fully and accurately, shown to have been made or adopted
by the witness when the matter was fresh in the witness’s
memory and to reflect that knowledge correctly. If
admitted, the memorandum or record may be read into
evidence but may not itself be received as an exhibit unless
offered by an adverse party.
Unlike writings used to refresh a witness’s present recollection under Tenn. R. Evid.
612, recorded recollections admitted in accordance with Tenn. R. Evid. 803(5) are
themselves substantive evidence. See Leach v. State, 420 S.W.2d 641, 642 (Tenn.
1967).
To utilize Tenn. R. Evid. 803(5)’s recorded recollection exception, a party must
(1) provide a memorandum or record4; (2) about a matter that the witness once had
knowledge of; (3) establish that the witness now has insufficient recollection to
testify fully and accurately; (4) that the statement was made or adopted by the
witness; (5) while fresh in the witness’s memory, and; (6) that the record accurately
reflects the witness’s knowledge. See State v. Mathis, No. 01C01-9605-CC-00186,
1997 WL 284582, at *3 (Tenn. Crim. App. App. May 30, 1997) (Tenn. R. App. P.
11 application denied, Pet. Reh. pending); Neil P. Cohen et al., Tennessee Law of
Evidence § 803(5).2, at 557-58 (3d ed. 1995). The purpose of these requirements is
to minimize the danger that the mind will “‘remember’ something that never
happened.” Martin v. Caution, No. 85-303-II, 1986 WL 2868, at *4 (Tenn. Ct. App.
March 7, 1986) (No Tenn. R. App. P. 11 application filed).
The audio recording of Mr. Gardner’s statement meets Tenn. R. Evid. 803(5)’s
requirements as a past recollection recorded. The record was in the form of an audio
recording and a written transcript of the recording. Mr. Gardner had first-hand
4
The record may be a tape recording. See United States v. Sollars, 979 F.2d 1294, 1298 (8th
Cir. 1992); State v. Marcy, 680 A.2d 76, 82 (Vt. 1996); 2 McCormick on Evidence § 281 (John W.
Strong 4th ed. 1992).
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knowledge of the accident because he witnessed it as it happened. He testified that
he was unable to testify fully and accurately about the accident because the aneurysm
and subsequent brain surgery had impaired his memory, but he also testified that he
remembered giving the interview several days after the accident while it was still
fresh in his mind. Finally, Mr. Gardner testified that when he gave the interview, his
memory was fine and that his statements accurately reflected his knowledge at the
time. While the attorney for the Metropolitan Government could have laid a more
thorough foundation for the introduction of Mr. Gardner’s recorded statement, we
find that the trial court did not err by admitting it into evidence.
III.
RE-WEIGHING THE EVIDENCE ON APPEAL
Mr. Mitchell also invites this court to re-weigh the evidence and to make our
own independent determination of the witness’s credibility because the official record
of the proceedings is in a videotape rather than a written transcript.5 We decline this
invitation.
One of the most time-honored principles of appellate review is that trial courts
are best situated to determine the credibility of the witnesses and to resolve factual
disputes hinging on credibility determinations. See State v. Pruett, 788 S.W.2d 559,
561 (Tenn. 1990); Tenn-Tex Properties v. Brownell-Electro, Inc., 778 S.W.2d 423,
425-26 (Tenn. 1989). Accordingly, appellate courts routinely decline to second-
guess a trial court’s credibility determinations unless there is concrete, clear, and
convincing evidence to the contrary. See Bingham v. Dyersburg Fabrics Co., Inc.,
567 S.W.2d 169, 170 (Tenn. 1978); Thompson v. Crewell Indus. Supply, Inc., 936
S.W.2d 955, 957 (Tenn. Ct. App. 1996).
The most often cited reason for this principle can be traced to the fact that trial
judges, unlike appellate judges, have an opportunity to observe the manner and
demeanor of the witnesses while they are testifying. See Bowman v. Bowman, 836
5
Tenn. S. Ct. R. 26 empowers the Tennessee Supreme Court to authorize the use of videotape
equipment to preserve the official record of court proceedings. The court entered an order
designating the Sixth Circuit Court of the Twentieth Judicial District as a court authorized to use
videotape equipment. See In re Order for Use of Videotape Equipment to Record Court Proceedings
(Tenn., Oct. 31, 1996). Over four years ago, the court authorized the use of videotape equipment
in the Circuit Court for the Twenty-First Judicial District.
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S.W.2d 563, 566 (Tenn. Ct. App. 1991). There are, however, other reasons for this
principle. As the United States Supreme Court has observed:
The trial judge’s major role is the determination of fact,
and with experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion
of judicial resources. In addition, the parties to a case on
appeal have already been forced to concentrate their
energies and resources on persuading the trial judge that
their account of the facts is the correct one; requiring them
to persuade three more judges at the appellate level is
requiring too much.
Anderson v. City of Bessemer City, 470 U.S. 564, 574-75, 105 S. Ct. 1504, 1512
(1985).
The advisory committee note to Fed. R. Civ. P. 52(a), which requires that
deference be given to the trial judge’s opportunity to judge the credibility of
witnesses, lists three important policy concerns behind the rule: (1) upholding the
legitimacy of the trial courts to litigants; (2) preventing an avalanche of appeals by
discouraging appellate retrial of factual issues, and (3) maintaining the allocation of
judicial authority. The policy underpinnings of Fed. R. Civ. P. 52(a) advance the
public’s interests in stability and judicial economy, and we view them as equally
important to Tennessee’s citizens and courts.
The policy reasons disfavoring appellate weighing of credibility are buttressed
by practical considerations. Most important, videotapes of trial proceedings provide
only a narrow view of the trial court proceedings. The current automated cameras
focus only on the speaker and cannot record everything going on in the courtroom
that the trial court can see. Thus, while the video recording may capture a witness
while he or she is testifying, the recording does not preserve the conduct of other
participants in the trial or even spectators in the courtroom that may be the cause of
the witness’s demeanor, voice inflections, or body language.
In addition to the limited scope of the proceedings preserved on videotape, the
limited availability of videotape equipment and the possibility of equipment failure
militate against appellate credibility determinations. Videotape equipment is
currently being used in only two of the over one hundred and fifty state courts, and
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thus, a vast majority of the trial court proceedings are presently not being recorded
on videotape. Permitting a small number of litigants to obtain broader appellate
review of credibility determinations will unfairly provide these litigants with an
additional appellate ground that will not be available to others. In a similar vein,
equipment malfunction or failure could further reduce the availability of broader
appellate review. While these malfunctions or failures are rare, they could result in
incomplete video records or poor quality or inaudible recordings that will also
undermine broader appellate credibility determinations. See generally, Fredric I.
Lederer, Technology Comes to the Courtroom, And . . ., 43 Emory L.J. 1095, 1111-13
(1994); Don J. DeBenedictis, Excuse Me, Did You Get All That?, A.B.A. J., May
1993, at 85-86.
Embarking on independent appellate credibility determinations would be a
drastic change in the settled principles of appellate review. 6 At least one intermediate
appellate court has specifically declined to make these determinations, see Moustakas
v. Dashevsky, 30 Cal. Rptr. 2d 753, 754 (Ct. App. 1994), and two other intermediate
appellate courts have strongly disapproved the practice because it frustrates effective
appellate review. See Travieso v. Golden, 643 So.2d 1134, 1136 (Fla. Dist. Ct. App.
1994); Shillington v. K-Mart Corp., 402 S.E.2d 155, 157 (N.C. Ct. App. 1991). We
share these concerns and, accordingly, decline to alter our long-standing deference
to the trial court’s credibility determinations in videotaped trial proceedings.7
IV.
We affirm the judgment and remand the case to the trial court for whatever
further proceedings may be required. We tax the costs of this appeal to Calvin E.
Mitchell and his surety for which execution, if necessary, may issue.
6
Several authors have predicted that the use of videotape records will prompt appellate judges
to make credibility determinations. See Adele Hedges & Robert Higgason, Videotaped Statements
of Fact on Appeal: Parent of the Thirteenth Juror, 33 Hous. Law. 24 (July/Aug. 1995); William E.
Hewitt, Video Court Reporting: A Primer for Trial and Appellate Judges, 31 Judge’s J. 2, 6 (Winter
1992).
7
Our decision not to expand the appellate court’s existing role in weighing and determining
witness credibility does not mean that videotape records cannot be used either to point out other
errors in the trial proceedings, see Deemer v. Finger, 817 S.W.2d 435, 436-37 (Ky. 1991), or to
provide concrete, clear, and convincing evidence that a trial court’s conclusions regarding a
witness’s credibility were erroneous.
-8-
______________________________
WILLIAM C. KOCH, JR., JUDGE
CONCUR:
__________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
SAMUEL L. LEWIS, JUDGE
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