FILED

January 28, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

CALVIN E. MITCHELL, )

)

Plaintiff/Appellant, )

)

) 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
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O P I N I O N

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,
1At 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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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

 
2Rule 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.

3Mr. 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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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.
4The 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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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
5Tenn. 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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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 credibilitybecause 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 secondguess 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
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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
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).

7Our 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.

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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.
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______________________________

WILLIAM C. KOCH, JR., JUDGE

CONCUR:

__________________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION 

_______________________________

SAMUEL L. LEWIS, JUDGE