# FILED
January 28, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

## IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE
CALVIN E. MITCHELL, ) ) Plaintiff/Appell

ant, )

) ) Davidson Circuit VS. ) No. 95C-2496 ) ) WAYNE ARCH

IBALD and ) METROPOLITAN GOVERNMENT ) Appeal No. OF NASHVILLE AND ) 01A01-9706-CV-00264 DAVIDSON COUNTY, ) ) Defendant/Appellee. )

APPEAL FROM THE DAV IDSON COUNTY CIRCUIT COURT AT NASHVILLE, TENNESSEE THE HONORABLE MICHAEL MONDELLI, JUDGE BY INTERCHANGE

For Plaintiff/Ap

pellant : 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-2- 

## O P I N I O N
This appeal involves the

admissibility of an au

dio recording of the

statement of an eyewitness to

an accident involving a bicyclist and a city-owned dump truck. The bicyclist filed suit a

gainst the city and the

driver of the truck

in the Circuit

Court for Davidson County. W hen the only disinteres ted eyewitness to the

accident disclosed during the trial that intervening brain surgery had impaired his mem ory, the trial court permitted the defe ndants to introduce an a

udio recording of a st

atement given by the witness less than one week after the incident. The trial court, after comparingthe fault of the re spective parties, entered a judgment f

or the defendants. On this appeal, the bic

yclist challenges the

admis s ibility of the tape recorded statement and the evidentiary foundation of t he trial court’s de cision. We have determined that the trial court ’s decisi on to admit the audio re cording of the eyewitness’s statement was not r eversible error a

nd th at we have no basis for disregarding the trial court’s determination of the weight of the evidence.

I.

CalvinE. Mitchell wa

s riding his bicycle nor

th on Second Avenue in N ashville
on August 16, 1994. At

the same time, a city dump truck with a n attached trailer driven by Wayne

Archibald

was also driving nort

h on Second Avenue.The parties’ accounts of what transpire d after Mr. Ar

chibald passed Mr. Mit chell differ. Mr. Mitchell testi fied t

hat Mr. Archiba

ld returned to the nor

thbound lane of Second Avenuetoo quicklyafter

passing him and that he

lost control of his bic

ycle when he became trapped betwee n th e truck and the curb. Mr. Archibald testified that he returned to the northbound lane approximately

one block after pass

ing Mr. Mitchell. He also stated that he activated his tur n signals prior to returning to the northbound lane and that he did not see Mr. Mitchell i n his rearview mirror. Mr. Mitchell was thrown to the pavement whe n his bicycle came i

nto contact with the

trailer’s whee

ls. 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 Avenu

e when Mr. Arc

hibald 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 1995,1 At trial, Mr. Mitchell’s lawyer objec ted to t he introduction of Mr. Gardner’s recorded statement because it was hearsay and because he had been unfairly surprised by the defen dants’ failure to provide him with advance notice of the recording’s contents. In addition to these grounds, Mr. Mitchell asserts on app eal 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 t he improper leading questions and statements by the city attorney who interviewed Mr. Gardner. -3- Mr. Gardner underwe

ntsurgery to repair a burst a neurysm in his brain,

and as a result of th e aneurysm and surger y 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 telepho ne intervie w between Mr. G ardner and a lawy

er for the city tha

t took place six days after t he accident.

Mr. Gardner sta

ted du ring his recorded int erview that Mr.Archibald did not attempt to return to the north

bound lane until he was

fifty or sixty yards past the poi

nt 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 whenMr. Archibald returned to the northbound lane. Mr. Gardner confirmed that Mr. Archibald had activated his turn signals before he r

eturned to the northbou

nd lane and th at Mr. Mi tchell was thrown from his bicycle when the bic ycle came into conta

ct with the trailer’s wh

eels. The trial court ruled f

rom the be nch that M r. Mitchell contr ibuted to his injuries in an amount sufficien

t to bar recovery.

II. T HE A DMISSIBILITY OF M R . G ARDNER ’ S R ECORDED S TATEMENT

Mr. Mitchell challenge s the admissibility of Mr.Gardner’s reco rded statement
on numerous grounds. H e has, however,

waived all but two o

f 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. Caldw ell , 26 Tenn. 13, 13-14 (1846); Cheek v. Fox , 7 Tenn. Civ. A

pp. (Higgins) 160, 184 (1917); Neil P. Cohen et al., Tennessee Law of Evi dence § 103.3 , at 8 (3d ed. 1995). The two grounds we will consider i nvolve Mr. Mitchell ’s objections that op p osing counsel did not notify him in advance of her intent to use Mr. Gardner’s recorded stateme nt and that the recorded st

atement is hearsa

y. 12 Rule 13 requires part ies who intend to of

fer an audio or v

ideo recording a

s evid enc e 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 ef fecti vely objecting to inadmissible

statements in

Mr. Gardner’s recorded statement is undermined by his lawyer’s failure to ask for an opport

unity to review the rec

ording before it w

as played or to ra

ise these objections in a proper Tenn. R. Civ. P. 59 motion. -4- A.

Mr. Mitchell first ar

gues that the lawyer

s representing the M

etropo l itan Government

violated Rule 13 of the Davidson County Local Rul es 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 testi

mony. 2 This argument over looks 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 a

ppl ication here b ecause this case was simply a bench trial under the Governme

ntal Tort Liabilit

y Act.

Mr. Mitchell’s “unfair

surprise” argumen

t ha s little merit aside

from his unwarranted reliance on Rule 13. All parties knew or should have known that Mr. Gardner was an eyewitnes s to this accident. He underwent brain surgery more than two years before the t

rial, and during

this time the lawyers for all parties were free to question him about his memory of the incident and

the substan ce of his testimony. The record contains no

indicat ion that Mr. Mitche ll’s lawyer ever

attempted to interview Mr. Gardner pr ior to trial or that t

he city’s la

wyers failed to respond appropriately

to disc over y requests concerning the substance of Mr. Gardner’s t estimony or the existence of any statements he might have given. Because Mr. Mitchell’s lawyer’s surprise is his own doing, we find n othing reversibly unfa

ir about it. 3

B.

Mr. Mitchell also argues here as he did at tr ial th at Mr. Gard ner’s recorded statement was hearsay and tha

t it should not havebeen admitted because Mr. Gardner
was beyond the reach of eff ective cross-examin ation. The Metropolitan Government does not deny that Mr. Gardner’s recorded stateme

nt is hearsay but

asserts that it is admissible

under T enn. R. Ev id. 803(5) as a recorded recollection. The trial court agreed with the Metropolitan Government’s position, and so do we.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). -5- Hearsay testimony is inadmissi ble in judicial proce

edings unless it

fits within
one of therecognized exceptio ns to the hearsay rul e. See Tenn. R. Evid.802; Estes
v. Woodlawn Mem’ l Park, Inc. , 780 S.W.2d 759, 764 (Tenn. Ct. A

pp. 1989). One recognized exception to the hear say rule relates to

t he recorde d recollections of a witness who is no longer able t o recall the substanc

e of his or her testi

mony. Tenn. R. Evid. 803(5) pr

ovides: A memorandum or rec

ord concerning

a matter about which a witn ess once had knowledge but now has insufficient

recollection to

e nable the witness to testify fully and accurately, shown to have been ma de or adopted by the witness when the matter was fresh in the witness’s memo r y and to reflect that knowledge correctly. If admitted, the memorandum or r ecord m ay be read into evidence but

may not itself be rece

ived as an exhibit unle ss offered by an adver

se party. Unlikewritings used to refresh a witn ess’s present rec

ollection under Ten

n. R. Evid. 612, recorded recollectio ns admitted in accor dance with Tenn. R. Evid. 803(5) are themselv es substantive evid ence. See Leach v. State , 420 S.W.2d 641, 642 (T enn . 1967).

To utilize Tenn. R. Evid. 803(5)’s reco rded recollection exception, a part

y must (1) provide a memorandum or record 4 ; (2) about a matter that the w

itness once had knowledge

of; (3) establish tha

t the witness now ha

s i nsufficient recoll

ection to tes tify fully and accurate ly; (4) that the state

ment was made or a

dopted b y th e witness; (5) while fresh i

n the witness’s mem

ory, and; (6)that the record ac curately reflects the witness’s knowledge. See State v. Mathis , No. 01C01-9605-C C-00186, 1997 WL 284582, at *3 (T enn. Crim. App.App. May 30, 1997) (Tenn. R. App. P. 11 ap pli cation denied, Pet. Reh . pending); Neil P. Cohe n et al., Tennessee Law of Evidence § 803(5).2, at 557- 58 (3ded. 1995). The pur pose of these requirement

s 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 state ment meets Tenn. R. Evid. 803(5)’s requirements

as a past recollection recorded. The record was in the form of an audio recordingand a w ritten transcript o f the recording. M

r. Gardner had f

irst-hand5 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 a n ord er designating the Sixth Circuit Court of the Twentieth Judicial District as a c ourt auth orized 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 equ ipme nt in the Circuit Court for the Twenty-First Judicial District. -6- knowledge

of the accident because he witnessed it as it h appened. He testified that he was unable

to testify fully and ac

curately about the a

ccident because the

aneurysm and subsequent

brain surgery had im

paired his memory,

but he also testified tha

t he
rem embered giving the interview several days afte

r the accident whi

le it was st

il l fresh in his mind. Finally,

Mr. Gardner testified that when he gave the interview, hi s memory was fine and t

h at his statements ac

curately reflec

ted his knowledge at t

he time. While t he at torney for the Metropolitan Government could have laid a more thorough foundation for the introduction of Mr. Gardner ’s record ed statement, we find that the trial court did not err by admitting it into evidence.

III. R E - WEIGHING THE E VIDENCE ON A PPEAL

Mr. Mitchell also invites this court to re-weigh the evidence and to make our own independent deter mination of the wi tness’s credibility becau se the official record of the proceedings

is in a videotape

rather than a wr

itten transcript. 5 We decline this invitation.

One of themost time-honored pr inciples of appellat

e review isthat trial courts
are best sit

uate d 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). A ccordingly , appella

te courts routinely de

cline to secondguess a trial court’s cr

edibi lit y determinations unle ss there is concret e, clear, and convincing evidence to the contr ary. See Bingham v. Dyersburg Fabrics Co., Inc. , 567 S. W.2d 16 9, 170 (Tenn. 1978) ; Thompson v. Crewell Indus. Supply, Inc. , 936 S.W.2d 955, 957 (Tenn. Ct. Ap p. 1996).

The most often cited re

ason for this principl

e can be traced to the fact that trial judges, unlike appellate judges, have an opportunity to observe the manner a nd demeanor of the witnesses whil e they are testifying

. See B owman v. Bowman , 836-7-

S.W.2d 563, 566 (Tenn. Ct. App. 1991). There are, how ever, other rea

sons for this principle. As the

United States Supr

eme Court has obser

ved:

The tri al judge’s major role is the determination of fact, and withexperience in fulfilling that role comes expertise. Dupl ication

of the trial judge’s

efforts in the cour

t o f appeals would

very likely contribut

e only negligibly to the accuracy of fact determina tion at a huge

cost indiversion of j udicial resources. In addit ion, the parties to a

case on appeal have already been fo rced to concentrate thei r energies and resources on persuading the tri al jud ge that their account of the

facts is the correct one; requiring them to pe rsuade three more

judges at the appella

te level is requiring too much

. Andersonv. City of Besse mer City , 470 U.S. 564, 574-75, 10 5 S. Ct. 1504, 1512 (1985).

The advisory committe e note to Fed. R. C iv. P. 52(a), which requires that deference be given to the tri al jud ge’s opportunity to judge the credibility of wit nesses, lists three importa nt policy concerns beh

ind the rule: (1) uphol

di ng th e legitimacy of the trial courts to litigants; (2) preventing an avalanche of appea ls by discouraging

appellate retrial of factual issues, and (3) maintaining t

he allocation of judi cial authority. The pol icy underpinnings of Fe

d. R. Civ. P. 52 (a) advance the public’s interests in stabilit y and judicial economy , and we view the m as equally important to Tennes see’s citizens and courts.

The policy reasons disfa

voring appellate weighing of credibility

are buttressed by practical consider

ations. Most important, vide otapes of trial proc

eedings provide only a narrow view of the trial court proceedings. The cu r rent automated cameras focus only on the spe aker and c annot record every thing going on in the court room thatthe trial court ca

n see. Thus, whi

le the vide o recording may cap ture a witness while he or

she is testifying, th

e recording does not p

reserve the conduc

t of other participantsin 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 video tape equipment and

the possibility of

equipment failure militat e ag ainst appellate cr edibility determina

tions. Videotape e

quipment is currently being used in only two of the over one hundred and fifty state courts, and6 Several authors have pre dicted that the use

of videotape rec

ords will prompt appell ate judges to make credibility determinations. See Adele Hedges & Robert Higgason, Videotaped Statem ents 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 re cords can not 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, clea

r, and convincing

evidence that a t

rial court’s c

onc lusions regarding a witness’s credib

ility were erron

eous. -8- thus, a vast majority of th e trial court proce

edings are presentl

y not being r

e corded
on videotape. Perm

itting a s mall number of litiga

nts to obtain broader a

ppellate review of credibility dete rminations will unfairly provide these litigants with an additional appellate ground tha t will not be availab

le to others. In a s

imilar vein, equipment

malfunction or fai

lure could further reduce the availab ility of broader appellate review. While these malfunctions or failures are rare, they could result in incomplete

video records or poor

quality or inaud

ible recordings that wi

ll also undermine

broader appellate

credibility determ

inations. See ge nera lly , Fredric I. Lederer, Technology Comes to the Courtroom, And . . . , 43 Emory L.J. 1095, 1111-13 (1994); Don J. DeBenedic tis, Ex cuse Me, Did You Get All That? , A.B.A. J., May 1993, at 85-86.
Embarking

on independent appella

te credibility dete

rmination s wou ld be a drastic change in the settl ed principles of app ellate review. 6 At least one inter mediate ap pellate court h as specifically decl ined to make these de terminations, see Moustakas
v. Dashevsky , 30 Cal. Rptr. 2d 753, 754 (Ct. App . 1994), and two oth er intermediate appellate courts have strongly disapproved the practice because it frustrates eff

ective appellate review. See Travieso v. Golden , 643 So.2d 1134, 1136 (Fla. Dist. Ct. App. 1994); Shillington v. K-Mar t Corp. , 402 S.E.2d 155, 15 7 (N.C. Ct. App. 1991). We share these concerns and, accord ingly , decline to alter our long-standing deference to the trial court’s

credibility determ

inations in videotaped t

rial proceedings. 7

IV.

We affi rm the judgment and r emand the case to the

trial court for w

ha teve r further proceedings may be r equired. We tax t

he costs of this appea

l to C alvin E

. Mitchell and his surety for which execution, if necessary, may issue.-9- ______________________________ WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________ HENRY F. TODD, PRESIDING JUDGE MIDDLE SECTION

_______________________________ SAMUEL L. LEWIS, JUDGE