                   IN THE SUPREME COURT OF TENNESSEE
                              AT KNOXVILLE
                                      May 4, 2000 Session

                     STATE OF TENNESSEE v. GUY BINETTE

                  Appeal by Permission from the Court of Criminal Appeals
                           Criminal Court for Hamilton County
                            No. 216632    Rebecca Stern, Judge



                     No. E1998-00236-SC-R11-CD - Filed October 5, 2000




JANICE M. HOLDER , J., dissenting.

        I respectfully dissent. There is no need to adopt a new standard to review the videotaped
evidence presented in this case. I would hold that an application of the standard of review
traditionally applied in Tennessee establishes that the officer in this case had reasonable suspicion
to stop Binette.

        The majority reviews the videotaped evidence in this case de novo with no presumption of
correctness afforded to the trial court. The standard of review is contrary to our decision in State v.
Odom, 928 S.W.2d 18 (Tenn. 1996). In Odom, we held that a trial court’s findings of fact in a
suppression hearing will be upheld unless the evidence preponderates otherwise. See id. at 23. The
majority rejects this standard based on its conclusion that the trial court was “in no better position”
than the appellate court to review the evidence because there are no issues of credibility.

        Contrary to the majority’s position, there are credibility issues in this case. Questions of
credibility arise whenever opposing evidence is presented. See, e.g., Thomas v. Lloyd, 17 S.W.3d
177, 187 (Mo. Ct. App. 2000) (“A reviewing court’s deference to a trial court’s resolution of
credibility is not limited to the issue of witness credibility, but also to conclusions of the trial
court.”). The trial court had before it three competing descriptions of the events: the officer’s
subjective interpretation as stated in the audio portion of the videotape, the defendant’s subjective
explanation, and the videotape’s record of the event. Even if we assume that the trial court based
its decision solely on the videotaped evidence, the trial court did so only after determining that the
videotape was a more credible version of the facts than the explanation offered by the defendant.
Trial courts are not otherwise entitled to disregard admissible evidence. Cf. State v. Hornsby, 858
S.W.2d 892, 895 n.2 (Tenn. 1993) (allowing appellate courts to disregard testimony of facts that are
“inherently impossible and absolutely at variance with well-established and universally recognized
physical laws” because it is “not credible evidence.”) (quoting Nelms v. Tennessee Farmers Mut.
Ins. Co., 613 S.W.2d 481, 483 (Tenn. Ct. App. 1978)).
        The majority relies upon the “deposition rule” enunciated in workers’ compensation cases.
The rationale for the “deposition rule” is that deposition evidence reaches the appellate court in the
same form in which it was presented to the trial court. Accordingly, the trial court occupies no better
position than the appellate court in reviewing and interpreting that evidence. The majority has
determined that the videotape is in a similar posture – it comes to this Court in a form identical to
that presented to the trial court. The majority therefore concludes that we are not bound by the trial
court’s interpretation of the videotape because the trial court was not required to determine
credibility.

        Strong policy reasons exist, however, for presuming a trial court’s factual findings correct,
even where credibility is not an issue. In Mitchell v. Archibald, 971 S.W.2d 25 (Tenn. Ct. App.
1998), the Court of Appeals was asked by a party to consider de novo the credibility of a witness’s
testimony because that testimony was on videotape. The court declined to do so, citing precedent
that the trial court is in the best position to observe the witness and to determine that witness’s
credibility. The court also noted that there are reasons, unrelated to credibility, for deferring to the
trial court’s factual findings:

                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.

Id. at 29 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574-75 (1985) (internal
quotations omitted)).

        It is telling that three different judicial interpretations of the facts of this case were elicited
by three independent reviews of the videotape at each level of review. The majority’s opinion now
becomes the “correct” interpretation. But cf. Anderson, 470 U.S. at 574 (stating “Where there are
two permissible views of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.”). By failing to give any presumption of correctness to the trial court, the majority
essentially endorses a “last in line is right” rule.

        If a trial court is truly in “no better position” than the appellate court to evaluate evidence,
then the rationale for eliminating the presumption of correctness of the trial court’s findings is that
the true facts are more likely to be gleaned from three interpretations of the evidence (at the
intermediate appellate level), and eventually five interpretations of the evidence (at the Supreme
Court level), than from the trial court’s single interpretation. This rationale ignores a fact that
Mitchell and Anderson recognize: trial judges are the expert fact-finders. I am convinced that trial


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courts are in a better position than appellate courts to make findings of fact, irrespective of the form
of the evidence.

       Giving a presumption of correctness to the trial court in this case, I would hold that the
evidence supports a finding that the stop in this case was based upon reasonable suspicion. Under
Odom, appellate courts give a presumption of correctness to the trial court’s factual findings as long
as the record does not preponderate against those findings. See Odom 928 S.W.2d at 23.
Application of the law to the facts is de novo. State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

        The only factual finding made on the record in this case was that there was “fairly significant
weaving.” Under Odom, I presume this finding to be correct. This presumption stands so long as
the evidence in the record does not preponderate against it.

        I cannot agree with the majority opinion in that there is no “evidence of pronounced weaving
or hard swerving by Binette.” The officer states in the audio component of the videotape that “the
vehicle just made a hard swerve.”1 The officer was in a good position to judge the severity of the
swerve, which was barely caught on camera. Further, Binette’s vehicle does weave from side to side
within his lane of travel throughout the video, albeit in slow repetition. Thus, I would hold that the
record does not preponderate against the trial court’s finding of “fairly significant weaving.”

       The remainder of the evidence includes the officer’s assertion that Binette had “already
crossed the yellow line twice” and that Binette’s “vehicle is running about 60 miles per hour in a 45
mile per hour zone.” The trial court did not make findings of fact as to these statements. We must,
however, consider the entire record to determine whether the officer had reasonable suspicion to stop
Binette. The officers’s statements were admissible evidence.2 The statements, therefore, may be
considered in determining whether the officer had reasonable suspicion.

        The trial court’s specific finding of fact and the remainder of the evidence, including the trial
court’s implicit rejection of Binette’s version of the facts, convinces me that the officer had
reasonable suspicion that Binette was driving while impaired. I would therefore affirm.



                                                                    ___________________________________
                                                                    JANICE M. HOLDER, JUSTICE




         1
          I cannot agree with the majority’s assumption that the trial court “bas[ed] its decision solely on the visual
portion of the videotape.” The trial court’s order specifically references the point at which “the blue lights were
activated.” That event can be determined only from the officer’s statement that was recorded on the videotape.
         2
          Both parties stipulated to the admissib ility of the vid eotape in its entirety. Th e officer’s h earsay statem ents
may th us be con sidered as su bstantive e vidence . See State v. Sm ith, 24 S.W.3d 274 (Ten n. 2000).

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