author: JANICE M. HOLDER, J.,

text:
    STATE of Tennessee v. Eddie L. COLEY, Jr.
    Supreme Court of Tennessee, at Nashville.
    Oct. 13, 2000.
    Reconsideration Denied Nov. 22, 2000.

      John P. Cauley and Larry D. Drolsum, Franklin, TN, for the appellant, Eddie L. Coley, Jr.
    Paul G. Summers, Attorney General and Reporter, Michael E. Moore, Solicitor General, and Kathy Morante, Deputy Attorney General, Ronald L. Davis, District Attorney General, Derek Smith, Assistant District Attorney General, for the appellee, State of Tennessee.
   OPINION

BIRCH, J., delivered the opinion of the court, in which DROWOTA, and BARKER, JJ., joined.

This appeal arises from the trial court’s exclusion of expert testimony concerning eyewitness identification sought to be offered by the defendant in his trial for aggravated robbery. At trial, Eddie L. Coley, Jr., the defendant, sought to introduce expert testimony concerning eyewitness identification; at the State’s objection, the trial court refused to admit the testimony. Coley appealed to the Court of Criminal Appeals. The intermediate court affirmed his conviction and sentence. Appealing to this Court, Coley contends that the trial court abused its discretion in refusing to admit the expert testimony. We accepted review in this case to determine the admissibility of expert testimony concerning eyewitness identification. We hold that the testimony proffered here is inadmissible under Tenn. R. Evid. 702 and that the trial court, therefore, properly excluded the testimony of Coley’s expert witness.

I. Facts and Procedural History

Coley does not challenge the sufficiency of the evidence upon which he was convicted; thus, only those facts necessary to this appeal are provided. On July 15, 1995, Sarah Blumberg and Jennifer McMillen were working at an ice cream shop in Brentwood. At approximately 1 p.m., a male entered the store. After placing an order, the male brandished a gun and instructed one of the employees to put the store’s money into a bag. The male then forced both employees into the store’s walk-in freezer where they remained until they heard a customer enter the store. After exiting the freezer, they called the police.

The police uncovered no physical evidence at the crime scene. Both employees, however, separately described the robber as an obese “Black” man around 5' 9" tall and about twenty years old. The employees then helped the police prepare separate composite pictures of the robber. Nine days after the robbery, Blumberg observed a photographic line-up which included Coley’s picture. She identified him as the robber. Five months after the robbery, McMillen saw the same photographic line-up. She too identified Coley.

At trial, the critical issue was identification. The State’s case relied heavily on Blumberg’s and McMillen’s pre-trial and in-court identifications of Coley. Coley, on the other hand, offered an alibi defense, maintaining that another person had committed the robbery. Coley desired to adduce the testimony of Michael G. Johnson, Ph.D., J.D., an expert in the field of eyewitness identification. The State objected to Johnson’s testimony on the ground that it would not assist the jury in deciding the identification issue. The trial court agreed and refused to admit Johnson’s testimony.

The trial court, nevertheless, allowed Johnson to make a proffer of his testimony for the record. The proffered testimony included information covering the following topics:

1. the process of eyewitness identification;
2. the relationship between stress and memory of an event;
3. cross-racial identification;
4. the confidence the witnesses have in the accuracy of their identifications and the actual accuracy of their identifications;
5. the effect of time on the accuracy of memory; and
6. the suggestibility of the photographic line-up used in this case.

The jury found Coley guilty of aggravated robbery, and sentenced him to twelve years in the Department of Correction. Coley appealed, contending that the trial court erred in excluding the expert’s testimony and that the sentence was excessive. The intermediate appellate court affirmed Coley’s conviction and sentence. On appeal to this Court, Coley contends that the trial court abused its discretion in excluding Johnson’s testimony and that he was prejudiced by its exclusion. The State, on the other hand, contends that Johnson’s testimony was properly excluded. We accepted review in this case to determine the admissibility of the proffered expert testimony concerning eyewitness identification.

II.Standard of Review

Determinations of the admissibility of expert testimony are made within the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993). The standard of review on appeal is whether the trial court abused its discretion in excluding the expert testimony. The abuse of discretion standard contemplates that before reversal the record must show that a judge “applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining.” State v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999); State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997).

III.Analysis

As a general rule, the admissibility of expert testimony in Tennessee is governed by TenmR.Evid. 701-706. This case is governed specifically by Tenn. R.Evid. 702 which provides that expert testimony is admissible if it will “substantially assist the trier of fact to understand the evidence or to determine a fact in issue....” (Emphasis added.). Expert testimony regarding eyewitness identification arguably fails to satisfy the plain meaning of this language. Eyewitness testimony has no scientific or technical underpinnings which would be outside the common understanding of the jury; therefore, expert testimony is not necessary to help jurors “understand” the eyewitness’s testimony. Moreover, expert testimony about the eyewitness’s accuracy does not aid the jury in determining a fact in issue because the question whether an eyewitness should be believed is not a “fact in issue” but rather a credibility determination.

Tennessee Rule of Evidence 702 is more stringent than its federal counterpart. As a matter of contrast, while Fed. R.Evid. 702 requires only that the evidence “assist the trier of fact,” Tenn. R.Evid. 702 requires that expert testimony “substantially assist the trier of fact....” Compare Fed.R.Evid. 702 (emphasis added) with Tenn.R.Evid. 702. “This distinction indicates that the probative force of the testimony must be stronger before it is admitted in Tennessee.” McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 264 (Tenn.1997). In McDaniel, we discussed the principles guiding a trial court’s determination whether to admit scientific or technical evidence. First, the evidence must be relevant to a fact at issue in the case. Tenn.R.Evid. 401, 402. Second, the expert must be qualified by specialized knowledge, skill, experience, training, or education in the field of expertise, and the testimony in question must substantially assist the trier of fact to understand the evidence or determine a fact in issue. Tenn.R.Evid. 702; McDaniel, 955 S.W.2d at 265; State v. Begley, 956 S.W.2d 471, 475 (Tenn.1997). Finally, when the expert witness offers an opinion or states an inference, the underlying facts or data upon which the expert relied must be trustworthy. Tenn.R.Evid. 703; McDaniel, 955

S.W.2d at 265. The reliability of scientific evidence is determined by considering the following nonexclusive list of factors:

(1) whether the scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether ... the evidence is generally accepted in the scientific community; and (5) whether the expert’s research in the field has been conducted independent of litigation.

McDaniel, 955 S.W.2d at 265. Here, the question is whether the evidence is inadmissible because expert testimony describing the general reliability of eyewitness testimony “is not reliable enough to ‘substantially assist’ a jury in an inquiry of whether” the two employees’ testimony should be believed. See e.g., State v. Ballard, 855 S.W.2d 557, 562 (Tenn.1993).

Though the admissibility of each expert’s testimony generally rests within the sound discretion of the trial judge, Tennessee courts have, on occasion, excluded specific categories of expert testimony. See State v. Ballard, 855 S.W.2d 557, 561-63 (Tenn.1993); see also State v. Schimpf, 782 S.W.2d 186, 189-95 (Tenn.Crim.App.1989). Applying Tenn.R.Evid. 702 to the instant case, we first note that this case is analogous to State v. Ballard. In Ballard, we held that expert testimony concerning symptoms of post-traumatic stress syndrome exhibited by victims of child abuse was inadmissible. 855 S.W.2d at 563. In reaching this conclusion we reasoned that:

[i]n the context of the criminal trial, expert scientific testimony solicits the danger of undue prejudice or confusing the issues or misleading the jury because of its aura of special reliability and trustworthiness. This ‘special aura’ of expert scientific testimony, especially testimony concerning personality profiles of sexually abused children, may lead a jury to abandon its responsibility as a fact finder and adopt the judgment of the expert. Such evidence carries strong potential to prejudice a defendant’s cause by encouraging a jury to conclude that because the children have been identified by an expert to exhibit behavior consistent with post-traumatic stress syndrome, brought on by sexual abuse, then it is more likely that the defendant committed the crime. Testimony that children exhibit symptoms or characteristics of post-traumatic stress syndrome should not suffice to confirm the fact of sexual abuse. The symptoms of the syndrome are ‘not like a fingerprint in that it can clearly identify the perpetrator of a crime.’ Expert testimony of this type invades the province of the jury to decide on the credibility of witnesses.

855 S.W.2d at 561-62 (internal citations omitted).

Here, as in Ballard, we are presented with testimony of a general nature designed to affect the juror’s decision on the credibility of witnesses. Using the Ballard rationale, expert testimony concerning eyewitness identification “solicits the danger of undue prejudice or confusing the issues or misleading the jury....” Id. at 561. As a result, it may “lead a jury to abandon its responsibility as fact finder and adopt the judgment of the expert,” rather than “assist” the jury in making its own determination of credibility. See Id.

We also note that the closest we have come, thus far, to the issue posed in the case under submission was in State v. Dyle, 899 S.W.2d 607 (Tenn.1995). In Dyle, we were asked to approve certain jury instructions, known as the United States v. Telfaire instruction, given in eases where identification of the perpetrator is a material issue. Id. “[Acknowledging that accuracy of eyewitness testimony is affectable by the usual universal fallibilities of human sense perception and memory,” we rejected both our own pattern jury instruction on identity approved for use in Tennessee as well as the specific instruction created by the District of Columbia Circuit Court of Appeals in Telfaire choosing instead to promulgate our own new instruction for cases involving eyewitness identifications. Id. at 612. In rejecting the Telfaire instruction, we noted its inappropriateness “because it imper-missibly comments on the evidence; thus invading the province of the jury.” Id. Thus, we emphasized that the assessment of witness credibility and the role of fact-finder is always left to the jury, regardless of the issue present in the case. Moreover, the reassessment and revamping in Dyle of our pattern jury instructions on identification suggests, by analogy, that expert testimony on the issue of identity should be excluded.

Though we have not specifically addressed the issue of the admissibility of expert evidence concerning the reliability of eyewitness testimony, the Court of Criminal Appeals has articulated several reasons for excluding such evidence. In State v. Ward, 712 S.W.2d 485, 487 (Tenn.Crim.App.1986), the court stated,

We are of the opinion that there are too many variables involved including individual power of observation, individual reaction to stress or the threat of violence, the visual acuity of a particular witness, as well as numbers of general, common factors unamenable to charting and categorizing.

And in State v. Wooden, 658 S.W.2d 553, 556 (Tenn.Crim.App.1983), the court found the following:

To admit such testimony in effect would permit the proponent’s witness to comment on the weight and credibility of opponents’ witnesses and open the door to a barrage of marginally relevant psychological evidence. Moreover, we conclude, as did the trial judge, that the problems of perception and memory can be adequately addressed in cross-examination and that the jury can adequately weigh these problems through commonsense evaluation.

In other jurisdictions as well, an overwhelming majority of courts have upheld the trial court’s finding that the testimony is inadmissible. These courts have provided many reasons for excluding this type of expert testimony. For example, some courts have upheld the exclusion because such testimony is unhelpful and simply offers generalities. See Brien, 59 F.3d at 277. As the Nebraska Supreme Court has noted:

the knowledge of behavioral scientists, such as psychologists, is probabilistic, couched in terms of averages, standard deviations, curves, and differences between groups. A court, however, is not concerned with the average eyewitness’ reliability but with the reliability of the specific eyewitness before it, who may vary from the average in probabilistic but ultimately unknown ways. It is not the research behavioral social scientist who is in a position to assess a specific witness’ reliability; the jury, which views the witness as an individual, is best able to collectively determine, on the basis of common human experience as yet unsurpassed by laboratory research, how to weigh what an individual witness has to say.

State v. Trevino, 230 Neb. 494, 432 N.W.2d 503, 520 (1988).

Other courts have excluded this type of testimony because “ ‘[s]uch expert testimony will not aid the jury because it addresses an issue of which the jury is already generally aware, and it will not contribute to their understanding of the particular dispute.’ ” Hall, 165 F.3d at 1104 (quoting United States v. Hudson, 884 F.2d 1016, 1024 (7th Cir.1989)). Thus, the “ ‘reliability of eyewitness identification is within the knowledge of jurors and expert testimony generally would not assist them....’” McClendon, 730 A.2d at 1114 (citation omitted).

In excluding expert testimony concerning eyewitness identification, courts have also noted that the “minimal probative value of the proffered expert testimony is outweighed by the danger of juror confusion.” Kime, 99 F.3d at 884. Such testimony has the potential to confuse and mislead the jury and create prolonged trials by battles of experts. See Brien, 59 F.3d at 277; Campbell v. People, 814 P.2d 1, 5 (Colo.1991).

Finally, courts have reasoned that this testimony invades the province of the jury by evaluating witness credibility. Campbell, 814 P.2d at 5 (citation omitted). Rather than permit experts to testify in such cases, usurping a function traditionally left to juries, courts have found that “juries may be made to understand psychological factors which affect the accuracy of an identification when these factors are brought to light at cross-examination and during closing argument.” State v. Percy, 156 Vt. 468, 595 A.2d 248, 252 (1990). Thus, “jurors using common sense and their faculties of observation can judge the credibility of an eyewitness identification, especially since deficiencies or inconsistencies in an eyewitness’s testimony can be brought out with skillful examination.” Smith, 156 F.3d at 1053 (quoting Harris, 995 F.2d at 535). Courts have also reasoned that along with cross-examination, jury instructions specifically tailored to cases involving eyewitness identification sufficiently aid the jury in determining the credibility of the witnesses. As the Kansas Supreme Court has reasoned:

we have concluded that requiring trial courts to admit this type of expert evidence is not the answer to the [eyewitness identification] problem. We believe that the problem can be alleviated by a proper cautionary instruction to the jury which sets forth the factors to be considered in evaluating eyewitness testimony. Such instruction, coupled with vigorous cross-examination and persuasive argument by defense counsel dealing realistically with the shortcomings and trouble spots of the identification process, should protect the rights of the defendant and at the same time enable the courts to avoid problems involved in the admission of expert testimony on this subject.

State v. Gaines, 260 Kan. 752, 926 P.2d 641, 647 (1996) (quoting State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981)).

Governed by the fundamental principles of McDaniel, and the rationale of Ballard and Dyle, we find that expert testimony concerning eyewitness identification simply offers generalities and is not specific to the witness whose testimony is in question. Moreover, we are of the opinion that the subject of the reliability of eyewitness identification is within the common understanding of reasonable persons. Therefore, such expert testimony is unnecessary. It may mislead and confuse, and it could encourage the jury to abandon its responsibility as fact-finder. Such responsibility is a task reserved for and ably performed by the jury, aided by skillful cross-examination and the jury instruction promulgated in Dyle when appropriate. For these reasons, we find that general and unparticularized expert testimony concerning the reliability of eyewitness testimony, which is not specific to the witness whose testimony is in question, does not substantially assist the trier of fact. Thus, we hold that such testimony is inadmissible under Tenn.R.Evid. 702 and that the trial court, therefore, properly excluded Johnson’s testimony.

We recognize that we are in the minority of jurisdictions which find such testimony per se inadmissible, rather than leaving the determination of admissibility to the discretion of the trial court. Nonetheless, we are convinced that a per se rule of exclusion is appropriate. First, leaving the admissibility of this type of expert testimony to the discretion of the trial court would require us, at least implicitly, to reject the sound reasoning of Ballard. Second, the rules of evidence from those jurisdictions which leave the admissibility of expert testimony concerning eyewitness identification to the discretion of the trial court require, as does Fed.R.Evid. 702, only that expert testimony “assist the trier of fact.” Under Tenn.R.Evid. 702, however, expert testimony is admissible only if it “substantially assists the trier of fact.” (Emphasis added.). Thus, Tenn.R.Evid. 702 requires a greater showing of probative force than the federal rules of evidence or the rules of evidence from those states that have followed the federal rules, making the per se exclusion appropriate. See McDaniel, 955 S.W.2d at 264.

IV. Conclusion

For the reasons articulated above, general and unparticularized expert testimony concerning eyewitness testimony, which is not specific to the witness whose testimony is in question, is inadmissible under Tenn.R.Evid. 702, and the trial court properly excluded the testimony of Coley’s expert. The judgment of the Court of Criminal Appeals is, therefore, affirmed on the separate grounds stated herein.

Costs of this appeal are assessed to the defendant, Eddie L. Coley, Jr.

HOLDER, J., filed a dissenting opinion, in which ANDERSON, C.J., joined.

JANICE M. HOLDER, J.,

with whom E. RILEY ANDERSON, C.J., joins, dissenting.

I respectfully dissent. The admission of expert testimony on the reliability of eyewitness testimony is governed by our opinion in McDaniel v. CSX Transp., Inc., 955 S.W.2d 257 (Tenn.1997), which established the test for admissibility of scientific evidence in Tennessee. McDaniel requires a trial court to consider, based on a nonexclusive list of factors, “whether the evidence will substantially assist the trier of fact to determine a fact in issue and whether the facts and data underlying the evidence indicate a lack of trustworthiness.” Id. at 265. Accordingly, McDaniel provides the trial court with a test to be applied on a case-by-case basis to admit or to exclude expert testimony.

In rejecting the expert testimony in this case, the trial court did not conduct a McDaniel hearing. This Court, therefore, is without an adequate record upon which to judge the propriety of the exclusion of the evidence under our own precedent. The effect of the majority’s decision is to exclude from consideration under McDaniel one class of proffered scientific evidence. The majority’s approach forecloses judicial recognition of future scientific advances in this area, a result seemingly in conflict with our rationale for adoption of the McDaniel standard. Id. at 262 (stating that formerly adopted Frye test for admissibility was criticized as “too restrictive of relevant evidence, particularly new or ‘cutting edge’ scientific theory”). The majority opinion effectively shuts the door to future legal development in this area by requiring a litigant to overturn Tennessee Supreme Court precedent before his proffered evidence could even be considered by a trial court.

I agree with the majority that our Dyle jury instruction adequately addresses those factors affecting eyewitness testimony that are within jurors’ common understanding. The Dyle factors, however, share one common characteristic not found in the testimony proffered in this case: they relate to non-scientific factors affecting eyewitness testimony. I am unconvinced that the testimony omitted in this case is within the “common understanding” of the jury.

Most, if not all, of the proffered testimony is scientific in nature and therefore falls outside the realm of common knowledge. Cf. State v. Murphy, 953 S.W.2d 200, 202-03 (Tenn.1997) (categorizing horizontal gaze nystagmus (“HGN”) sobriety tests as “scientific” because of necessity of explanation of underlying scientific basis before test becomes meaningful to a jury). There are many scientific and legal publications regarding eyewitness identification, and the body of work, including case law, is growing. See generally Roger B. Hand-burg, Expert Testimony on Eyewitness Identification: A New Pair of Glasses for the Jury, 32 Am.Crim.L.Rev. 1013 (1995); Robert J. Hallisey, Expeiis on Eyewitness Testimony in Court — A Short Historical Perspective, 39 How. L.J. 237 (1995); Hon. D. Duff McKee, Challenge to Eyewitness Identification Through Expert Testimony, 35 Am.Jur. Proof of Facts 3d 1 (1996 & Supp.1999); Gregory D. Sarno, Annotation, Admissibility, at Criminal Prosecution, of Expert Testimony on Reliability of Eyewitness Testimony, 46 A.L.R.4th 1047 (1986 & Supp.2000). It is difficult to conclude that so much scientific study, scholarly debate, and comment have been engendered by what is simply a matter of common knowledge.

Even assuming that these matters are truly within jurors’ common understanding, there still exists the question of validity of that understanding. Authorities indicate that, in reality, many commonly-held notions regarding the reliability of eyewitness testimony are wrong. See United States v. Smithers, 212 F.3d 306, 312 n. 1 (6th Cir.2000) (noting “many of the factors affecting eyewitness impressions are counter-intuitive”). Thus, the majority’s per se rule may actually serve to sanction judicially and preserve for all time a common understanding that is, in fact, invalid.

Finally, the majority’s contention that this evidence “may mislead and confuse, and it could encourage the jury to abandon its responsibility as fact-finder” speaks to a risk present in every case involving expert testimony. It does not warrant a per se rule. Accordingly, I would not adopt a per se rule of inadmissibility and would remand for a determination of admissibility under McDaniel.

I am authorized to state that Chief Justice Anderson joins in this dissenting opinion.

      . (a) Aggravated robbery is robbery as defined in § 39-13-401:
      (1) Accomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon; or
      (2) Where the victim suffers serious bodily injury.
      (b) Aggravated robbery is a Class B felony. Tenn.Code Ann. § 39-13-402 (1997).

      . Three separate opinions were filed by the Court of Criminal Appeals panel. One held that the admissibility of expert evidence on the credibility of eyewitness testimony should be determined on a case-by-case basis, but affirmed the exclusion of the evidence in this case. A concurring opinion found that Tennessee has previously followed a per se exclusionary rule. The third, a dissenting opinion, concluded that the case should be remanded for a hearing to determine whether the expert testimony should be admitted.

      .We observe initially that Coley’s argument, that had the testimony in question been admitted the jury would have acquitted him, is fatally flawed. The admission of the questioned testimony would not, necessarily, lead to acquittal. The jury, considering the testimony in dispute, may have convicted Coley anyway.

      . 469 F.2d 552 (D.C.Cir.1972).

      . The instructions promulgated in Dyle as are follows:
      One of the issues in this case is the identification of the defendant as the person who committed the crime. The state has the burden of proving identity beyond a reasonable doubt. Identification testimony is an expression of belief or impression by the witness, and its value may depend upon your consideration of several factors. Some of the factors which you may consider are:
      (1) The witness' capacity and opportunity to observe the offender. This includes, among other things, the length of time available for observation, the distance from which the witness observed, the lighting, and whether the person who committed the crime was a prior acquaintance of the witness;
      (2) The degree of certainty expressed by the witness regarding the identification and the circumstances under which it was made, including whether it is the product of the witness’ own recollection;
      (3) The occasions, if any, on which the witness failed to make an identification of the defendant, or made an identification that was inconsistent with the identification at trial; and
      (4) The occasions, if any, on which the witness made an identification that was consistent with the identification at trial, and the circumstances surrounding such identifications.
      Again, the state has the burden of proving every element of the crime charged, and this burden specifically includes the identity of the defendant as the person who committed the crime for which he or she is on trial. If after considering the identification testimony in light of all the proof you have a reasonable doubt that the defendant is the person who committed the crime, you must find the defendant not guilty.

        Id. at 612.

      . See, e.g., United States v. Hall, 165 F.3d 1095, 1103-08 (7th Cir.1999); United States v. Smith, 156 F.3d 1046, 1052-54 (10th Cir.1998); United States v. Smith, 122 F.3d 1355, 1357-60 (11th Cir.1997); United States v. Kime, 99 F.3d 870, 883-85 (8th Cir.1996); United States v. Ginn, 87 F.3d 367, 370 (9th Cir.1996); United States v. Brien, 59 F.3d 274, 275-78 (1st Cir.1995); United States v. Harris, 995 F.2d 532, 534-36 (4th Cir.1993); Johnson v. State, 272 Ga. 254, 526 S.E.2d 549 (2000); State v. McClendon, 248 Conn. 572, 730 A.2d 1107, 1114-16 (1999); McMullen v. State, 714 So.2d 368, 369-73 (Fla.1998); State v. Miles, 585 N.W.2d 368, 370-72 (Minn.1998); Commonwealth v. Santoli, 424 Mass. 837, 680 N.E.2d 1116, 1118-21 (1997); State v. Sabetta, 680 A.2d 927, 932-33 (R.I.1996); State v. Roscoe, 184 Ariz. 484, 910 P.2d 635, 646 (1996); White v. State, 112 Nev. 1261, 926 P.2d 291, 292 (1996); State v. Abraham, 338 N.C. 315, 451 S.E.2d 131, 148-49 (1994); Jones v. State, 314 Ark. 289, 862 S.W.2d 242, 244-45 (1993); State v. Wilson, 179 Wis.2d 660, 508 N.W.2d 44, 50-51 (1993).

      . See Smith, 122 F.3d at 1358 (quoting United States v. Thevis, 665 F.2d 616, 641 (5th Cir.1982)); Sabetta, 680 A.2d at 933 (quoting State v. Porraro, 121 R.I. 882, 404 A.2d 465, 471 (1979)); Roscoe, 910 P.2d at 647; Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 631 (1995); Abraham, 338 N.C. at 348, 451 S.E.2d at 149.

      . See Kime, 99 F.3d at 884 (quoting Bachman v. Leapley, 953 F.2d 440, 441 (8th Cir.1992)); State v. Poland, 144 Ariz. 388, 698 P.2d 183, 193 (1985); Currie v. Commonwealth, 30 Va. App. 58, 515 S.E.2d 335, 338 (1999).

      . See Ginn, 87 F.3d at 370; Miles, 585 N.W.2d at 372 (quoting State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.1980)); Roscoe, 910 P.2d at 647; Simmons, 662 A.2d at 631; Abraham, 451 S.E.2d at 149.

      . See Smith, 122 F.3d at 1359; Miles, 585 N.W.2d at 372 (quoting Helterbridle, 301 N.W.2d at 547); Santoli, 680 N.E.2d at 1120-21; Campbell, 814 P.2d at 5; State v. Kinsey, 797 P.2d 424, 427-29 (Utah Ct.App.1990).

      . Our conclusion is further supported by the fact that the trial court provided the jury with instructions substantially similar to those promulgated in Dyle.

        . See, e.g., Smith, 122 F.3d at 1358; Gaines, 926 P.2d at 649; Simmons, 662 A.2d at 630-31; Gibbs v. Commonwealth, 723 S.W.2d 871, 874 (Ky.Ct.App.1986). By excluding the evidence in question as a class, it may appear that we are finding such evidence presumptively inadmissible. We are under the guidance of Ballard, Dyle, and Schimpf. We do not intend to remove from the trial judge the discretion to decide about marginally-admissible evidence. In cases such as the one at bar, however, the evidence is clearly inadmissible.

      . See, e.g., Fed.R.Evid. 702; Ariz.R.Evid. 702; Ark.R.Evid. 702; Conn.R.Evid. 702; Fla.R.Evid. § 90.702; Minn.R.Evid. 702; Nev.Rev.Stat. § 50.275 (1999); N.C.R.Evid. 702; R.I.R.Evid. 702; Vt.R.Evid. 702.

      .In so holding, we also reject Coley's additional argument that the trial court's exclusion of his expert’s testimony violated his constitutional right to present a defense. When considering whether the constitutional right to present a defense has been violated by the exclusion of evidence, the analysis should consider whether: (1) the excluded evidence is critical to the defense; (2) the evidence bears sufficient indicia of reliability; and (3) the interest supporting exclusion of the evidence is substantially important. See Chambers v. Mississippi, 410 U.S. 284, 298-301, 93 S.Ct. 1038, 1047-49, 35 L.Ed.2d 297, 310-12 (1973). For the reasons stated above, the evidence excluded in this case is not critical to Coley’s defense. Thus, Coley’s claim that his constitutional rights were violated is without merit.


source: Caselaw Access Project

author: BARKER, J., JANICE M. HOLDER, J.,

license: Public Domain

text:
    Cassandra Lynn LIPSCOMB v. John DOE.
    Supreme Court of Tennessee, at Jackson.
    Nov. 30, 2000.

      A. Wilson Wages, Millington, TN, for appellant, Cassandra Lynn Lipscomb.
    Fred P. Wilson, Memphis, TN, and Stuart A. Wilson, Memphis, TN, for appel-lee, Amerisure Companies.
    John A. Day, Nashville, TN, and John D. Wood, Nashville, TN, for amicus curiae, Tennessee Trial Lawyers Association.
   OPINION

BARKER, J.,

delivered the opinion of the court,

in which, ANDERSON, C.J., and BIRCH, J., joined.

The primary issue in this case is whether a plaintiff properly initiates suit pursuant to the “John Doe” provisions of the uninsured motorist statutes when (1) the plaintiff is aware that the driver of the other vehicle is one of several persons, but (2) the plaintiff does not actually know which of the other possible drivers was responsible for the accident. The trial court dismissed the original “John Doe” complaint, finding that because the plaintiff was aware the other driver was one of three people, the other driver was not “unknown” within the meaning of the “John Doe” provisions. The trial court also denied the plaintiffs motion to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119. The Court of Appeals affirmed the dismissal of the “John Doe” complaint, holding that because the plaintiff was not entitled to a remedy against the actual uninsured motorists, then she was also without a remedy against her insurance carrier. Upon review of the record and the applicable legal authority, we hold that the plaintiffs suit was properly commenced under the “John Doe” provisions of the uninsured motorist statutes. The judgment of the Court of Appeals is reversed, and this case is remanded to the Shelby County Circuit Court for further proceedings consistent with this opinion.

On the early morning of September 24, 1995, the plaintiff, Cassandra Lynn Lipscomb, completed her night-shift at work and ate an early breakfast with several of her friends. At about 5:00 a.m., the plaintiff started her trip home to Memphis, and at some point during this journey, her car was struck from behind by another car. This other car struck the plaintiff several more times before finally forcing her off of the road. The other car had three occupants, one of whom went to the plaintiffs car and shot the plaintiff in the chest through the car window. After stealing the plaintiffs money and her cellular phone, the three individuals left the plaintiff to die on the side of the road.

After her attackers left, the plaintiff, who apparently did not realize that she had been shot, ran to a nearby phone to call the police. While dialing the phone, she saw blood coming from her chest, causing her to collapse into unconsciousness. Arriving shortly thereafter, the police rushed the plaintiff to the hospital, where doctors discovered that the bullet was lodged between her heart and lungs. The plaintiff remained hospitalized for a week and was released.

Within days of the plaintiffs shooting, officers of the Memphis Police Department arrested three individuals believed to be the persons involved in the plaintiffs accident and shooting. These three individuals, Antonio Chaney, James Logan, and Cory Dyson, were charged with attempted murder and aggravated robbery. In a later criminal proceeding arising out of this episode, Cory Dyson apparently admitted to being the driver of the car causing the plaintiffs accident.

On October 7, 1995, the Memphis Commercial Appeal ran an article containing an interview with the plaintiff following her release from the hospital. The newspaper article also listed the names and addresses of three individuals arrested and charged with the plaintiffs robbery and attempted murder. About a month after the printing of the article, the plaintiff contacted her uninsured motorist carrier, Amerisure Companies, and informed an agent of Am-erisure of the names of the suspects arrested and charged with her attack. In addition, the plaintiff told the Amerisure agent that the names and addresses of her alleged assailants were contained in the October 7 Commercial Appeal article, and she faxed a copy of the article to Ameri-sure.

On September 24, 1996, the plaintiff filed suit under the uninsured motorist statutes claiming damages sustained in her attack, which occurred exactly one year earlier. Pursuant to Tennessee Code Annotated section 56 — 7—1206(b), she named “John Doe” as the nominal defendant, alleging that the accident was “caused by an unknown driver who left the scene of the accident.” The plaintiff, who made no specific mention of Chaney, Logan, or Dyson in her allegations, also forwarded a copy of the complaint and summons to Amerisure.

Amerisure filed an answer in its own behalf as the- plaintiffs uninsured motorist insurer, and alleged that the “name of the driver of the [other] vehicle was known or should have been known to the plaintiff prior to the filing of the lawsuit....” Pursuant to Tennessee Rule of Civil Procedure 36, Amerisure also requested that the plaintiff admit, among other things, that she knew (1) that an article appeared in the Commercial Appeal on October 7, 1995 which contained the names and addresses of her attackers; (2) that the Memphis Police Department arrested and charged these individuals with her attack after investigation of the accident; and (3) that the plaintiff knew “the names and addresses of the person or persons who struck the rear of [her] car and shot [her] on September 24,1995.”

In her response to the requests for admission, the plaintiff admitted the existence of the Commercial Appeal article and that the Memphis police arrested and charged the persons mentioned in the article. The plaintiff specifically denied, however, that she knew who actually drove the car the morning of her attack. In response to the last request for admission, the plaintiff stated: “Denied. I still do not know for sure who was driving the car. I honestly [believe] that Antonio Chaney was driving[,] but I believe in Court that Cory Dyson said he was driving.”

On December 5, 1995, Amerisure filed a motion to dismiss the complaint, alleging among other things, that “the plaintiff has failed to comply with the requirements of [Tennessee Code Annotated section] 56-7-1201 et seq.” More specifically, Amerisure argued that because the plaintiff was aware that the driver of the other car was one of three people, the “John Doe” provisions of Tennessee Code Annotated section 56-7-1206 could not be properly used. The plaintiff then moved to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119 to allege a cause of action against Dyson, Logan, and Chaney as defendants. The amended complaint asserted that the “[p]laintiff, after diligent inquiry and effort has been unable to ascertain for sure the driver of the vehicle occupied by the Defendants. Plaintiff believes that one of the Defendants was driving[,] but in Criminal Court, a different Defendant [was] alleged to have been driving.”

On February 13, 1997, Amerisure filed motion to dismiss any claims asserted by the plaintiff against Dyson, Logan, and Chaney, and by consent of the parties, the trial court consolidated all motions pending before it. After holding hearings on the issues presented by the motions, the trial court granted Amerisure’s motion to dismiss the plaintiffs original complaint on October 31, 1997 for improper use of the “John Doe” procedures. The trial court also denied the plaintiffs motion to amend the complaint pursuant to Rule 15 or section 20-1-119.

The Court of Appeals affirmed the judgment of the trial court in all respects. Addressing the amendment issue first, the court held that Rule of Civil Procedure 15 could not be used to amend the complaint because Dyson, Logan, and Chaney were not given notice of the pendency of the suit “within the applicable statute of limitations or within 120 days after commencement of the action” as required by the rule. Moreover, the court held that section 20-1-119 could not be used to assert a claim against Dyson, Logan, or Chaney, because the statute “is applicable only when the plaintiff is unaware of the fault of the third party at the time the plaintiff filed his or her complaint.” As to the proper use of the “John Doe” procedures, the Court of Appeals held that the plaintiffs “John Doe” complaint was properly dismissed because the plaintiff had no remedy against the driver(s) of the other car. The court then reasoned that the “John Doe” procedures could not give a plaintiff greater rights against the insurance carrier than the plaintiff would have against the uninsured motorist. The Court of Appeals did not address whether the plaintiffs “John Doe” complaint was properly filed in the first instance.

The plaintiff then requested, and we granted, permission to appeal on the following issues: (1) whether the plaintiffs “John Doe” suit was properly dismissed; and (2) whether the trial court properly denied the plaintiffs motion to amend her original complaint to add additional defendants pursuant to Rule of Civil Procedure 15 or Tennessee Code Annotated section 20-1-119. For the reasons given herein, we hold that the plaintiffs initial “John Doe” suit was properly filed. Because this issue is dispositive of the other issues in this case, we reverse the judgment of the Court of Appeals and remand this case to the Shelby County Circuit Court for further proceedings consistent with this opinion.

STANDARD OF APPELLATE REVIEW

In this case, we are asked to decide questions involving the proper scope of the uninsured motorist statutory scheme, as well as issues concerning the scope of Tennessee Rule of Civil Procedure 15 and Tennessee Code Annotated section 20-1-119. Because issues of statutory construetion are questions of law, see Wakefield v. Crawley, 6 S.W.3d 442, 445 (Tenn.1999); Jordan v. Baptist Three Rivers Hosp., 984 S.W.2d 593, 599 (Tenn.1999), we review the issues in this case de novo without any presumption that the trial court’s legal determinations were correct, see Lavin v. Jordon, 16 S.W.3d 362, 364 (Tenn.2000); Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999); Nelson v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999).

ANALYSIS

Tennessee Code Annotated section 56-7-1206(b) (1994) allows a plaintiff to file a “John Doe” action in order to recover damages from his or her uninsured motorist policy for injuries caused by an “unknown” owner or operator of another motor vehicle. Before a plaintiff may recover in a “John Doe” action under this section, however, the owner or operator of the other vehicle must be “unknown,” and the plaintiff must satisfy the three requirements listed in section 56-7-1201(e) (1994). This section reads as follows:

(e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured shall have no right to recover under the uninsured motorist provision unless:
(1)(A) Actual physical contact shall have occurred between the motor vehicle owned or operated by such unknown person and the person or property of the insured; or
(B) The existence of such unknown motorist is established by clear and convincing evidence, other than any evidence provided by occupants in the insured vehicle;
(2) The insured or someone in the insured’s behalf shall have reported the accident to the appropriate law enforcement agency within a reasonable time after its occurrence; and
(3) The insured was not negligent in failing to determine the identity of the other vehicle and the owner or operator of the other vehicle at the time of the accident.

Amerisure essentially argues that because the plaintiff was aware that the driver or operator of the other vehicle was among a known universe of drivers, then the other driver was not “unknown” within the meaning of the uninsured motorist statute. Conversely, the plaintiff argues that because she does not actually know of the identity of the other driver and because the driver’s identity is still at issue in this case, the suit was properly initiated under the “John Doe” procedures. According to the plaintiffs interpretation, the fact that the potential universe of drivers has been narrowed does not mean that the other driver is “known” within the meaning of the uninsured motorist statutes. We agree.

Our primary purpose in construing statutes is “to ascertain and give effect to the intention and purpose of the legislature.” See, e.g., Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802 (Tenn.2000). “Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language.” Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn.1997). When the language of the statute is clear and unambiguous, then this Court usually applies the plain language of the statute to resolve the issue. See, e.g., State v. Nelson, 23 S.W.3d 270, 271 (Tenn.2000). Where the plain language of the statute does not directly address the issue or leads to an absurd result, however, this Court will look beyond the language of the statute and adopt a reasonable construction that provides for harmonious operation of the laws. See State v. Flemming, 19 S.W.3d 195, 197 (Tenn.2000); Fletcher v. State, 951 S.W.2d 378, 382 (Tenn.1997).

The plain language of the statute is not determinative of the issue in this case. Neither section 56-7-1206(b), nor section 56-7-1201(e), explicitly defines the phrase “unknown motorist.” As indicated by section 56-7-1201(e), the legislature probably intended that an “unknown motorist” be one whose identity is not discoverable after reasonable investigation. Indeed, this conclusion is strengthened by the fact that the General Assembly has elsewhere required “diligent inquiry” before permitting the conclusion that a person is “unknown.” Despite this conclusion, though, the issue still remains whether a motorist remains “unknown” for purposes of the “John Doe” provisions when, after reasonable inquiry and investigation, the plaintiff has narrowed the possible universe of drivers but has no actual knowledge of the identity of the driver of the other vehicle.

Where the language of the statute does not speak to the precise issue, courts should “give consideration to the purpose, objective and spirit behind the legislation.” See Dorrier v. Dark, 537 S.W.2d 888, 892 (Tenn.1976). This Court has previously recognized that the purpose of each of the three requirements of section 56-7-1201(e) is “to eliminate fraudulent claims [against an insurer] based [upon allegations of] a phantom driver.” Hoyle v. Carroll, 646 S.W.2d 161, 162 (Tenn.1983) (discussing section 56-7-1201(e)(l)(A) specifically). See also Fruge v. Doe, 952 S.W.2d 408, 411 (Tenn.1997) (“The high standard of proof required by [section 56 — 7—1201(e)(1)(B) ] ... obviously was intended by the legislature as a safeguard against bogus claims arising from one-vehicle accidents”). Although the General Assembly was obviously concerned that plaintiffs are not without an adequate remedy against unknown tort-feasors, this concern was carefully balanced in the uninsured motorist statutes with protections for insurance carriers against fraudulent claims. As such, when determining whether the driver of the other vehicle in this case was “unknown” at the time the suit was originally filed, we should be mindful that the purpose of section 56-7-1201(e) was to eliminate fraudulent claims against a plaintiffs insurance carrier.

With this purpose in mind, we conclude that no intent to defraud can be inferred where an insured diligently discovers information on possible operators of the other vehicle, and where the insured communicates this information directly to the insurer within a reasonable time before filing suit. Consequently, the failure of the plaintiff to rename the possible drivers in the complaint is not materially prejudicial in any way. Because the plaintiff in this case informed Amerisure of the possible — though not certain — identity of the other driver who caused her accident, the insurer had an adequate basis from which to begin investigation and preparation for litigation. The plaintiffs failure to rename these individuals in her complaint, especially when such naming would amount to some degree of speculation, did not deprive Amerisure of any notice or opportunity to present a defense beyond that normally present in a “John Doe” action. If, and when, the identity of the other driver actually becomes known through the course of litigation, then the parties are free to proceed under the procedures outlined by the General Assembly in section 56-7-1206(e).

We are reluctant to adopt the position advocated by Amerisure, which would have us hold that the plaintiff must name all persons within the possible universe of drivers before an action is proper under the uninsured motorist statutes. It appears to be uncontroverted from the record that (1) the plaintiff acted with due diligence in uncovering the identity of the possible drivers of the other car which caused her accident; (2) the plaintiff has no actual knowledge of the identity of the owner or operator of the other vehicle; and (3) the plaintiff acted reasonably in communicating her findings to her insurance company a full nine months before filing suit. To dismiss the plaintiffs suit for failing to name all possible defendants, in the absence of prejudice to the insurer, improperly shifts the focus of the inquiry from diligent discovery to the failure to name all other possible drivers. We decline to strictly focus upon the pleadings of the case without looking to the larger purposes underlying section 56-7-1201(e), which are to prevent fraudulent claims by the plaintiff against his or her uninsured motorist carrier.

We are also reluctant to adopt the approach advocated by the dissent in this case, which concludes that because the plaintiff “honestly believed” that a specific individual, such as Chaney, was the driver of the other car, she was not entitled to “abandon! ] the traditional rules of pleading” in favor of invoking the “John Doe” procedures. The dissent apparently ignores that the jury is not bound to accept as true the plaintiffs “honest belief'’ as to the identity of the other driver, and in ignoring this potentially critical fact, the dissent turns a blind eye to the plaintiffs plight if the jury were to determine that her suspected driver was not the actual driver.

This very concern was expressed by the Georgia Court of Appeals in Smith v. Doe, 189 Ga.App. 264, 375 S.E.2d 477 (1988). In Smith, the plaintiff was the victim of a hit-and-run accident, and although the plaintiff did not actually know the identity of the other driver, several witnesses identified the other driver from photographs. In the subsequent suit for damages under his uninsured motorist policy, the plaintiff named “John Doe” as the nominal defendant, and in an alternative count, he alleged the suspected driver as the person responsible for the accident. The insurer then successfully moved to dismiss the “John Doe” complaint, arguing that the other driver was not “unknown” as evidenced by the plaintiffs alternative count. In reversing the dismissal, the Georgia Court of Appeals stated the plaintiffs quandary as follows:

If a jury should find against the appellant, that would establish that [the named party] was not the tortfeasor. That being so, the identity of the tort-feasor would be unknown, but the earlier grant of summary judgment to John Doe would foreclose a judgment against an unknown tortfeasor. [The ajppellant would then be unable to obtain the judgment against the tortfeasor which is a condition precedent to recovery against the uninsured motorist carrier.

Smith, 375 S.E.2d at 479. As such, even though the identity of the other driver was reasonably suspected, the court permitted the plaintiff to allege alternative counts of liability against both “John Doe” and the suspected, though not certain, driver.

We agree with the rationale of the Georgia Court of Appeals in Smith, and we choose to follow a similar course. As such, where the plaintiff has no actual knowledge of the identity of the other driver, but the universe of suspected drivers has been narrowed through the plaintiffs reasonable investigation, the prudent plaintiff should allege alternative theories of liability against “John Doe” and the suspected driver(s). A trial court should then dismiss a “John Doe” complaint only when the identity of the other driver is no longer at issue. In this way, plaintiffs are able to protect themselves against the possibility that the jury could determine that someone other than the specific individuals named in the complaint is at fault, and the goal of the General Assembly to provide remedy against uninsured motorists is furthered.

Although the plaintiff in this case did not allege alternative theories of liability in her original complaint, we disagree with the dissent that complete dismissal is the appropriate remedy for this shortcoming. The fact still remains (1) that the identity of the other driver is the subject of some dispute, notwithstanding the plaintiffs suspicions, and (2) that the insurer in this case has not been prejudiced in any material way by the plaintiffs failure to allege an alternative count of liability against Chaney. Dismissal the plaintiffs “John Doe” complaint under these circumstances is unreasonably harsh as it would unduly restrict the scope of the uninsured motorist statutes and would reach a result not contemplated by the General Assembly.

This Court has previously recognized that the uninsured motorist statutes reflect the “intention of the General Assembly to permit the insured to pursue, insofar as possible, [his or her] ordinary tort remedy against the uninsured motorist.” Cavalier Ins. Corp. v. Osment, 538 S.W.2d 399, 403 (Tenn.1976). Section 56-7-1206 specifically is remedial in nature, see Hutchison v. Tennessee Farmers Mut. Ins. Co., 652 S.W.2d 904, 906 (Tenn.Ct.App.1983), and this Court traditionally gives a liberal construction to remedial statutes, so long as the legislative intent is not disturbed and the result is not clearly contrary to the language of the statutes, see, e.g., Dailey v. State, 225 Tenn. 472, 477, 470 S.W.2d 608, 610 (1971). Allowing the plaintiff to pursue her “John Doe” suit under the unique facts of this case in no way interferes with the legislature’s legitimate concerns of fraud prevention, and because the statute does not directly address this issue, our result today is not plainly contrary to the language of section 56-7-1201(e). We therefore conclude that the plaintiff properly commenced suit in this case under the “John Doe” provisions of the uninsured motorist statutes.

The Court of Appeals in this case reasoned that because the plaintiff could not assert a cause of action against the driver of the other car, then she was also without a remedy against her insurer. Respectfully, however, this analysis is incomplete for all practical purposes, because it fails to take into account the effect of section 56-7-1206(e) on the pleading process. This section states that

[i]n the event the uninsured motorist’s whereabouts is discovered during the pendency of the proceedings, an alias process may issue against the uninsured motorist. In such a case, the uninsured motorist shall be allowed a reasonable time within which to plead to the original process, and then the case may proceed against the uninsured motorist as if the motorist was served with process in the first instance.

Tenn.Code Ann. § 56-7-1206(e).

Significantly, the General Assembly has provided that when “the uninsured motorist’s identity and whereabouts are discovered during the pendency of the proceeding,” then section 56-7-1206(e) “shall govern the proper course of action following such discovery.” See Tenn.Code Ann. § 56-7-1206(b). With the use of this language, it is clear to us that the General Assembly intended to abrogate application of Rules of Civil Procedure 3 and 15 when the plaintiff seeks to amend a “John Doe” complaint upon discovery of the identity of the “John Doe” defendant. See Lady v. Kregger, 747 S.W.2d 342, 345 (Tenn.Ct.App.1987). Because the plaintiff has a “reasonable time within which to plead to the original process” once the identity of the “John Doe” motorist becomes known, expiration of the time limits in Rules 3 and 15 cannot affect the plaintiffs remedy against the newly identified motorist under an action that was properly commenced in the first instance. Therefore, we conclude that the Court of Appeals improperly affirmed the dismissal of the plaintiffs “John Doe” complaint.

AMENDMENT OF THE COMPLAINT

Because we hold that the “John Doe” procedures were not improperly used by the plaintiff in this case, we need not reach the issues of whether the trial court improperly denied the plaintiffs motion to amend her complaint pursuant to Tennessee Rule of Civil Procedure 15 or Tennessee Code Annotated section 20-1-119. In the course of further proceedings, the parties may use the provisions of Tennessee Code Annotated section 56-7-1206(e) to pursue litigation against other parties.

CONCLUSION

Although the facts of this case are rather unique, we hold that a plaintiff may properly commence an action under the “John Doe” provisions of the uninsured motorist statutes, Tenn.Code Ann. §§ 56-7-1201(e), 56-7-1206(b), when: (1) the plaintiff satisfies the requirements of section 56-7-1201(e), including undertaking reasonable efforts to identify the owner or operator of the other vehicle; (2) the plaintiff does not actually know the identity of the owner or operator of the other vehicle at the time of filing the “John Doe” action; and (3) the plaintiff has notified her insurer, before commencing the “John Doe” action, of the reasonable efforts taken to discover the identity of the other owner or operator and of the results of the investigation.

Although both parties in this case have apparently narrowed the universe of possible drivers of the other vehicle, the identity of the other driver is still at issue, and he remains the subject of some dispute. Accordingly, because the plaintiff took reasonable steps to discover the identity and addresses of the possible drivers, and because the plaintiff communicated this information to her insurer a full nine months before she filed suit, we conclude that the plaintiff properly commenced suit under the “John Doe” procedures of the uninsured motorist statutes. The judgment of the Court of Appeals is reversed, and this case to the Shelby County Circuit Court is remanded for further proceedings consistent with this opinion.

Costs of this appeal are assessed to the appellee, Amerisure Companies.

HOLDER, J., filed a dissenting opinion.

DROWOTA, J., not participating.

JANICE M. HOLDER, J.,

concurring and dissenting.

Lipscomb has failed to show, as required by Tenn.Code Ann. § 56-7-1206(b), that the driver who struck her vehicle was unknown. I would therefore affirm the judgment of the Court of Appeals that Lipscomb is precluded from using the John Doe statute. I would, however, hold that Lipscomb is not required to show that the driver was “unknown” to invoke Tenn. Code Ann. § 20-1-119. I would therefore reverse the judgment of the Court of Appeals on this issue and remand to the trial court.

The “Unknown” Requirement

The majority correctly states that “[b]e-fore a plaintiff may recover in a ‘John Doe’ action ... the owner or operator of the other vehicle must be ‘unknown,’ and the plaintiff must satisfy the three requirements listed in section 56-7-1201(e) (1994).” (emphasis added). Thus, the majority initially concedes that an “unknown” driver is a separate and distinct requirement that must be met before John Doe filing is permitted.

Nevertheless, the majority effectively dispenses with the threshold “unknown” requirement on grounds that there is no question under these facts that the other statutory requirements are satisfied:

[Bjecause the plaintiff took reasonable steps to discover the identity and addresses of the possible drivers, and because the plaintiff communicated this information to her insurer a full nine months before she filed suit, we conclude that the plaintiff properly commenced suit under the “John Doe” procedures of the uninsured motorist statutes.

Accordingly, the majority treats the “unknown” and due diligence requirements of the John Doe statute as a unitary concept. The statute, however, makes no provision for due diligence to act as a substitute for the requirement that the driver be “unknown.” The statute plainly requires that the driver first be found to be “unknown” before due diligence becomes an inquiry. The majority’s view converts what is clearly a multi-prong statute into a balancing test.

This case implicates construction of the word “unknown” and no more. In its brief discussion of the meaning of the word “unknown,” the majority states, “Although both parties in this case have apparently narrowed the universe of possible drivers of the other vehicle, the driver still has not been positively identified and he remains the subject of some dispute.” I find “not positively identified” and “subject to some dispute” to be exceedingly generous definitions for “unknown” under the uninsured motorist statutes. Under these definitions, any degree of ambiguity as to the other driver’s identity would necessarily convert a garden-variety automobile accident into a John Doe case.

Lipscomb stated in her response to Am-erisure’s request for admissions, “I honestly belie[ve] that Antonio Chaney was driving but I believe in Court Cory Dyson said he was driving.” The majority apparently finds Dyson’s claim legally sufficient to undermine Lipscomb’s honest belief as to the driver’s identity. I cannot agree.

The majority also points to the “unique facts”' of this case as somehow justifying its conclusion. Lipscomb professed an honest belief that Chaney was the driver. Chaney has not denied that he was driving the vehicle. The only fact that undermines Lipscomb’s belief is Dyson’s claim that he was the driver. I do not find that fact so unique as to justify the majority’s holding.

I would hold that a plaintiff cannot claim a driver is unknown when that plaintiff can narrow the universe of potential defendants to a reasonable number. In such cases, the course most closely aligned with the spirit, if not the letter, of our rules of procedure would be for a plaintiff to name in the complaint all reasonably suspected wrongdoers.

The filing of a John Doe complaint is essentially an assertion to the court that the identity of the defendant or defendants could not be reasonably ascertained. See Tenn. R. Civ. P. 11.02 (“By presenting to the court ... a pleading ..., an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, ... (3) the allegations and other factual contentions have evidentiary support ... and (4) the denial of factual contentions ... are reasonably based on a lack of information or belief.”). Attorneys and parties who file such actions without a reasonable basis not only risk dismissal, but may be sanctioned in an appropriate case. See Tenn. R. Civ. P. 11.03. Accordingly, John Doe pleading alone should be employed only when no person or persons can be reasonably suspected of being the driver who allegedly caused the accident.

I find no justification for abandoning the traditional rules of pleading in this case. I cannot agree that a choice between two persons is a sufficient basis upon which to invoke the “John Doe” statute. A choice between two known persons does not make the driver “unknown.” One of those persons was undoubtedly the driver. Lipscomb admitted that she honestly believed that she knew which of those persons met that description. Lipscomb should simply have named both Dyson and Chaney as defendants.

For the above stated reasons, I would hold that the John Doe statute was unavailable to Lipscomb because the driver was not “unknown.”

Amendment Under Tennessee Code Annotated § 20-1-119

As I would hold that the driver of the other vehicle was not unknown to Lipscomb, there remains the issue of whether Lipscomb could properly amend her complaint pursuant to Tenn.Code Ann. § 20-1-119. That statute states, in pertinent part:

(a) In civil actions where comparative fault is or becomes an issue, if a defendant named in an original complaint initiating a suit filed within the applicable statute of limitations, or named in an amended complaint filed within the applicable statute of limitations, alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery, and if the plaintiffs cause or causes of action against such person would be barred by any applicable statute of limitations but for the operation of this section, the plaintiff may, within ninety (90) days of the filing of the first answer or first amended answer alleging such person’s fault, either:
(1) Amend the complaint to add such person as a defendant pursuant to Rule 15 of the Tennessee Rules of Civil Procedure ....
(2) Institute a separate action against that person by filing a summons and complaint....

TenmCode Ann. § 20-1-119 (emphasis added.).

The Court of Appeals ruled that Tenn. Code Ann. § 20-1-119 was not applicable to Lipscomb’s case, citing with approval the following language in Whittlesey v. Cole, 142 F.3d 340 (6th Cir.1998):

Even without legislative history to guide us, we may assume that one of the concerns was to prevent a defendant from naming and attributing fault to a previously unknown responsible party in its answer when the time for the plaintiff to bring the newly named party into the suit was insufficient or had passed. This concern, of course, arises only where the plaintiff has been unaware, until the defendant’s answer, of the fault of another individual. Indeed, a review of Tennessee case law suggests that § 20-1-119 is implicated only where the defendant’s answer apprises the plaintiff for the first time of a responsible party. It is, thus, plain that § 20-1-119 was not intended to apply to a plaintiff like Whittlesey who, long before the defendant’s answer to the complaint, had knowledge that a third party may be at fault for the complained of injuries.

Whittlesey, 142 F.3d at 345 (emphasis added) (citing Owens v. Truckstops of Am., 915 S.W.2d 420, 427 (Tenn.1996); Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (M.D.Tenn.1996)). Relying upon Whittlesey and the cases it cited, the Court of Appeals held that § 20-1-119 is applicable only when the plaintiff is unaware of the fault of the third party when the complaint is filed. In this case, Lipscomb clearly knew that Logan, Chaney, and Dyson were potentially responsible parties. Section 20-1-119 was therefore unavailable to Lipscomb.

The Court of Appeals’ rebanee upon Whittlesey is misplaced. If a statute’s language is expressed in a manner devoid of ambiguity, courts are not at hberty to depart from the statute’s words. See Carson Creek Vacation Resorts, Inc. v. Department of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). Accordingly, courts are restricted to the “natural and ordinary” meaning of a statute unless an ambiguity necessitates resorting elsewhere to ascertain legislative intent. Austin v. Memphis Publ’g Co., 655 S.W.2d 146, 149 (Tenn.1983).

Nothing in the statute requires that the party sought to be added be unknown at the time of the fihng of the complaint. The language simply requires that the person “not [be] a party to the suit.” A plaintiff may know the identity of a suspected tortfeasor but may, for any number of reasons, justifiably refrain from naming that person as a defendant. See, e.g.,Tenn. R. Civ. P. 11.02. A defendant, however, may name a person in its answer or amended answer whom it believes is liable for the plaintiffs injury or damages. See TenmCode Ann. § 20-1-119. If the defendant so answers, the plaintiff is given the opportunity to amend the complaint, despite the decision to omit that person from the original complaint. See id. Lipscomb should not be precluded from amending her complaint pursuant to § 20-1-119 merely because Logan, Dyson, and Chaney were “known” to her at the time the complaint was filed.

Our decision in Owens does not compel a contrary result. In Owens, we stated that the plaintiff could not avail himself of § 20-1-119 because § 20-1-119 was enacted in 1993 after the plaintiffs claims had already been barred by the statute of limitations. See Owens, 915 S.W.2d at 427. We stated that the statute “now allows a plaintiff a limited time within which to amend a complaint to add as a defendant any person alleged by another defendant to have caused or contributed to the injury, even if the statute of limitations applicable to a plaintiffs cause of action against the added defendant has expired.” Id. (emphasis added). This Court made no comment regarding whether the party to be added was required to be known at the time the complaint was filed. We simply tracked the plain language of the statute.

The Court of Appeals also cites with approval Soper v. Wal-Mart Stores, Inc., 923 F.Supp. 1032, 1038 (M.D.Tenn.1996). In matters of interpretation of Tennessee law, the decisions of federal courts are not binding upon the courts of this state. See, e.g., Driver v. Tennessee Farmers Mut. Ins. Co., 505 S.W.2d 476, 478 (Tenn.1974). Further, Soper did not require that the third party be unknown at the time of the filing of the complaint. The issue in that case concerned the adequacy of the defendant’s pleading and the timing of the plaintiffs amendment pursuant to Tenn.Code Ann. § 20-1-119.

I would conclude that, despite Lipscomb’s improper use of the John Doe statute, Lipscomb is not barred from amending her complaint pursuant to Tenn.Code Ann. § 20-1-119 solely because the driver was “known” at the time the complaint was filed. Accordingly, I would affirm in part and reverse in part the judgment of the Court of Appeals.

      . The record in this case does not contain the actual statements made by Dyson in this regard, nor does it contain other evidence from Dyson’s trial collaborating the veracity of his alleged statement. The record also does not reveal whether Dyson or any one of the other defendants were convicted of any crime resulting from this episode.

      . See, e.g., Tenn.Code Ann. § 29-18-115(a)(4) — (5) (1980) (requiring the plaintiff to make "diligent inquiry” before allowing a person to be unknown so as to dispense with personal service of process in forcible entry and detainer actions); Tenn.Code Ann. § 21-1 — 203(a)(4)—(5) (1994) (requiring the plaintiff to make "diligent inquiry” before allowing a person to be unknown so as to dispense with personal service of process in chancery court actions); Tenn.Code Ann. § 54-14-103(a)(3) (1998) (requiring petitioner requesting an easement or right of way to diligently inquire as to the identity of the owner of affected lands).

      . A much different situation would be presented if the plaintiff in this case knew of the possible drivers but did not inform her insurer. In such a case, the legislature’s concerns with prevention of fraudulent claims would not be minimized, and a different result may therefore be compelled.

      . This is precisely the route attempted by the plaintiff, albeit unwittingly, when she attempted to amend her “John Doe” complaint to include an alternative theory of recovery against the suspected drivers, Dyson and Chaney. Apparently, the dissent would deny the plaintiff the opportunity to assert an alternative cause of action against "John Doe” even if the identity of the other driver was not actually known and is still a fact in issue. We simply do not believe that the General Assembly intended to force the plaintiff into the dissent’s all-or-nothing scenario in which the possibility exists that she could be denied an adequate remedy merely for the sake of neatness in pleading.

      . The Court of Appeals found that the statute of limitations had run against the three possible drivers of the other car and that the complaint was amended outside of the time limitation in Rule of Civil Procedure 15. Consequently, the Court of Appeals ruled that because the plaintiff could not maintain an action against the actual driver of the other car, she could not maintain an action against her insurer.

      . The Court of Appeals in Lady v. Kregger, reasoned that because rules of civil procedure are "laws,” they are "subject to being superseded in the same manner as statutes.” 747 S.W.2d at 345. Although Lady only addressed service of process under section 56-7-1206(e), its reasoning applies with equal strength to formal amendment of the pleadings.

      . In reaching its conclusion, the Court of Appeals in this case relied upon the unreported decision in Gafford v. Caruthers, No. 91C-2709, 1994 WL 420917 (Tenn.Ct.App. Aug.12, 1994). In Gafford, the plaintiff filed suit against a number of identified defendants alleged to have contributed to a car accident, and after the running of the statute of limitations, the plaintiff also filed suit against a "John Doe” defendant. The Court of Appeals held that because the statute of limitations had run against the "John Doe” defendant, then the plaintiff could not maintain an action against her uninsured motorist carrier.
      In this case, however, the "John Doe” complaint was properly filed within the applicable statute of limitations, and it otherwise met all of the criteria of section 56-7-1201(e). When a "John Doe” action is properly commenced and the identity of "John Doe” is later discovered in the course of litigation, section - 1206(e) allows the plaintiff a "reasonable time” to amend the pleadings and to affect service of process on the "John Doe” defendant. Because the Gafford plaintiff did not properly commence the "John Doe” action in the first instance, that case is clearly not applicable to the issue in this case, and the Court of Appeals erred in relying upon Gaf-ford to affirm dismissal of the plaintiff's "John Doe” complaint.

      . Dyson’s claim may be viewed with some skepticism as it is arguably self-serving. Whomever was driving the vehicle was the least likely person to have shot Lipscomb.

      . I do not disagree with the Georgia Court of Appeals’s decision in Smith v. Doe, 189 Ga.App. 264, 375 S.E.2d 477 (1988), relied upon by the majority. In that case, the plaintiff properly named as a defendant a person reasonably suspected of being the driver who struck his car. In addition, the plaintiff named "John Doe.” Such alternative pleading may be an appropriate way both to protect a plaintiff’s suit and to comply with the rules of pleading. Alternative pleading is not present in this case, however. Lipscomb named no defendant other than John Doe.

      .The same Georgia Court of Appeals that authored Smith v. Doe would apparently agree. In Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga.App. 492, 448 S.E.2d 374 (1994), the court was faced with facts remarkably similar to those under consideration here. The plaintiff was aware of the name of the putative driver, Pannell, and attended a hearing in which Pannell was found guilty of failing to render assistance. The record contained no evidence that Pannell denied being the driver. The court concluded on these facts that "John Doe” pleading was improper despite the plaintiff's stated inability to identify the driver who struck her. See id. at 376.


author: PRICE, J., WOMACK, J.,

text:
    The STATE of Texas, v. Rodney Dee ROSS, Appellee.
    No. 1618-99.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 29, 2000.
    Conrad Day, Bellville, for appellant.

      Betty Marshall, Asst. St. Atty., Matthew Paul, State’s Atty., Austin, Daniel W. Leedy, Bellville, for the State.
   PRICE, J.,

delivered the opinion of the Court in which

MEYERS, MANSFIELD, HOLLAND, and JOHNSON, JJ., joined.

Appellee filed a motion to suppress evidence that alleged no probable cause for his arrest. At the hearing on the motion, the only witness to testify was the arresting Texas Alcoholic Beverage Commission (TABC) agent. Following the testimony, the judge granted the motion and did not file findings of fact. On appeal, the Court of Appeals found that the agent’s testimony, if believed, showed reasonable suspicion for the initial detention and probable cause for the eventual arrest. However, the Court of Appeals held that the trial court, sitting as trier of fact, was the sole judge of credibility and could disbelieve any or all of the agent’s testimony. The Court then applied the “almost total deference” standard of review and affirmed the trial court. We granted review to determine whether “an appellate court may uphold a trial court’s decision to suppress evidence as within its discretion, instead of de novo, because the trial court might have disbelieved some or all of the State’s un-controverted evidence.” Because the trial court is the sole judge of credibility of the witnesses and we will uphold a trial court’s ruling on any theory of law applicable to the case, and because this involves an application of law to facts, the outcome of which turns on the credibility and demean- or of the witness, we will affirm the Court of Appeals.

BACKGROUND

Agent Darnell testified to the following events at the motion to suppress hearing. At approximately 12:50 a.m., on November 2, 1997, Agent Darnell and two other TABC agents finished inspecting a local bar. When they walked out the front door, Agent Darnell noticed the windows of a nearby pickup truck were fogged up. He looked inside the truck and saw two young children sleeping, without any blankets or coverings, in the front seat. Because the night was cold and someone could have broken into the truck, Agent Darnell sent another agent into the bar to find the owner of the pickup. When the owner of the pickup, Ross, came out, Agent Darnell noticed that he held on to things for balance and support, spoke with a thick tongue, had bloodshot eyes, and his breath smelled of alcohol. Agent Darnell asked appellee how he was going to get the children home, and Ross replied that he was going to drive them home. Agent Darnell then arrested appellee for public intoxication.

Ross filed a motion to suppress all evidence surrounding his arrest due to a lack of probable cause. At the hearing on the motion, Agent Darnell was the only witness. Ross presented no evidence himself, although Agent Darnell was cross-examined. The trial court granted the motion to suppress without entering findings of fact or conclusions of law. The State appealed.

The Court of Appeals affirmed, holding that it was within the trial court’s discretion to grant the motion to suppress if the trial court did not believe any material portion of the State’s evidence. However, the Court noted an apparent conflict in precedent on the standard of review for suppression hearings. Under Guzman and Maestas, mixed questions of law and fact that do not turn on an evaluation of credibility and demeanor are reviewed de novo. A footnote in Maestas indicates that an issue does not turn on an evaluation of credibility and demeanor where the evidence is uncontroverted because the trial court does not have to decide which conflicting testimony deserves more weight. The Court of Appeals found that the State’s evidence was uncontroverted and showed both reasonable suspicion for appellee’s initial detention and probable cause for his arrest. Because granting the motion on the grounds that the facts simply did not add up to probable cause would be a misapplication of the law to the facts, the Court of Appeals reasoned that the trial court sustained the motion based on the credibility and demeanor of the witness. Since the trial court was the sole judge of credibility, it was within the discretion of the trial court to accept or reject Agent Darnell’s testimony and therefore within the discretion of the trial court to grant the motion to suppress.

In its petition to this Court, the State argues that there is no indication that the trial court actually disbelieved the testimony of the Agent Darnell. As such, the appellate court should assume the trial court found the facts testified to were le-gaily insufficient to show reasonable suspicion and probable cause. Because the evidence was sufficient to prove probable cause, the State argues that the trial court should be reversed under a de novo review. Furthermore, the State argues that if we affirm the Court of Appeals’s decision, we will create a way for trial courts to completely insulate their motion to suppress rulings, and thus limit the State’s right to appeal under article 44.01(a)(5) of the Code of Criminal Procedure.

DISCUSSION

In a motion to suppress hearing, the trial court is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given their testimony. Accordingly, the judge may believe or disbelieve all or any part of a witness’s testimony, even if that testimony is not controverted. This is so because it is the trial court that observes first hand the demeanor and appearance of a witness, as opposed to an appellate court which can only read an impersonal record.

Furthermore, when the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court’s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. If the trial judge’s decision is correct on any theory of law applicable to the case, the decision will be sustained.

While discussing the appropriate level of appellate review, we stated in Guzman v. State:

[1] [T]he appellate courts, including this Court, should afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. [2] The appellate court should afford the same amount of deference to trial courts’ rulings on “application of law to fact questions,” also known as “mixed questions of law and fact,” if the resolution of those ultimate questions turns on an evaluation of credibility and demean- or. [3] The appellate courts may review de novo “mixed questions of law and fact” not falling within this category. [citations omitted]

As we pointed out in Carmouche, the typical motion to suppress case alleging a lack of probable cause will be reviewed through a bifurcated standard of review combining the first and third categories of Guzman: we will give almost total deference to a trial court’s express or implied determination of historical facts and review de novo the court’s application of the law of search and seizure to those facts. This is because in most instances, the appellate court will have facts established by the trial court, either impliedly or expressly, to which the law may be applied. But, not every probable cause case will be reviewed under this bifurcated standard.

In a motion to suppress hearing where the only evidence presented is the testimony of the arresting officer (which, if believed, adds up to probable cause) and the trial court grants the motion without any explanation, there is not necessarily a “concrete” set of facts that can be implied from such a ruling. The trial court may have disbelieved the officer on at least one material fact, or the trial court may be in a situation in which it does not know what exactly the facts are, but it does know (on the basis of demeanor, appearance, and credibility) that they are not as the witness describes. In this situation, the appellate court does not necessarily have a set of historical facts to which it may apply the law. The determination of probable cause rests entirely on the credibility of the lone witness. This scenario is a mixed question of law and fact, the resolution of which turns on an evaluation of credibility and demeanor. The proper standard of review is therefore the second category of Guzman, “almost total deference” to the trial ruling.

In applying these principles to the case at bar, we will review the trial court’s ruling under the “almost total deference” standard. As no findings of fact were filed, we must view the evidence in the light most favorable to the trial court’s ruling and will uphold the ruling on any theory of law applicable to the case.

We see two possible theories upon which the trial court’s ruling may rest, either the testimony of the agent was credible, but the facts established by that testimony do not constitute probable cause (or reasonable suspicion for the initial detention); or the trial court did not find the testimony of the agent to be credible. Because we agree with the Court of Appeals’s conclusion that Agent Darnell’s testimony (if believed) added up to reasonable suspicion for the initial stop and probable cause for the eventual arrest, we will not presume that the trial court impliedly found that the facts simply did not add up to reasonable suspicion or probable cause; to do so would be to presume error. The trial court, however, was free to disbelieve all of the agent’s testimony. As the sole trier of fact and judge of credibility, the trial court was not compelled to believe the agent’s testimony, even if uncontroverted, based on credibility and demeanor. Because the evidence, if believed, would compel a denial of the motion to suppress, the record supports the second theory that the trial court did not find the agent’s testimony to be credible based on demeanor, appearance, and tone.

“Given the absence of any factual findings, the appellate presumption of the regularity of a trial court’s judgment, and which party had the burden of proof, the trial court’s implied factual findings were dispositive of the ultimate constitutional question of probable cause.” We hold that the trial court was within its discretion in disbelieving the testimony of the agent and granting the motion to suppress. We further find that this case falls within the second category of review under Guzman and affirm the trial court’s use of the “almost total deference” standard of review.

Before addressing the State’s argument, we pause to address the apparent conflict as noted by the Court of Appeals concerning Maestas. Maestas involved a defendant’s motion to suppress a confession alleging a violation of the Fifth Amendment. The officers’ testimony was uncontroverted and the trial court denied the motion to suppress. It appears that findings of fact were not filed. We found that a de novo review was appropriate as the resolution of the issue did not turn on an evaluation of credibility and demeanor. In footnote eight, we said this was because the officers’ testimony as to what transpired was uncontroverted. We stated, “Under different circumstances, where the police and the appellant provide conflicting testimony, resolution of this question would involve an evaluation of credibility and demeanor because the trial court would have to decide which testimony deserved more weight.”

Footnote eight is a correct statement of the law in that when faced with conflicting testimony, the trial judge will have to determine which testimony is the more credible. However, a de novo review in Maestas was appropriate because the dis-positive facts were uncontroverted and there was no indication that the trial court did not believe that testimony. In other words, the trial court’s ruling was consistent with the uncontroverted testimony. Because it suggests that an issue turns on credibility and demeanor only when the testimony is controverted, we expressly disavow footnote eight of Maes-ias. As former Presiding Judge Onion recently explained:

Nothing in Guzman [or its progeny] should be interpreted as catapulting an appellate court into the seat of a second trier of fact determining the credibility and demeanor of witnesses, in whole or in part, from a cold record. This is true whether the resolution of the ultimate question falls within the second or third category of Guzman or whether the standard of review is ... an abuse of discretion or a de novo review.

Having determined that the Court of Appeals’s resolution of this case was correct, we address the State’s arguments. The State argues that because the testimony was uncontroverted and sufficient to show probable cause, and because there is nothing in the record that indicates that the trial court “actually” disbelieved the testimony, reversal of the trial court through a de novo review is proper. We decline to do this.

The theory that the trial court disbelieved the agent’s testimony, either in whole or in part, supports the ruling of the trial court. The State is asking us to disregard the theory that supports the trial court and adopt the theory that results in error and leads to reversal. We will not adopt a rule that presumes error when there is a viable legal theory that supports the trial court’s ruling.

Finally, the State argues that by not conducting a de novo review in this case, we will be limiting appeals under article 44.01(a)(5), and give trial courts a way to insulate then* rulings on motions to suppress from review by merely not filing findings of fact. We do not accept these conclusions.

Our holding does nothing to limit the State’s right to appeal under article 44.01(a)(5). The State is just as free to make the appeal today as it was before the decision today. If a non-prevailing party wishes to avoid the effects of these appellate presumptions, then it should attempt to get the rationale for the trial court’s ruling on the record through either a verbal explanation at the hearing or express findings of fact and conclusions of law.

CONCLUSION

In most motion to suppress cases where probable cause is challenged, there will be historical facts found, either expressly or impliedly, to which a Guzman/Carmouche style de novo review will be applied. It is only in cases, like this one, when no findings of fact are filed, the uncontroverted testimony of the witness adds up to probable cause if believed, and the motion is nevertheless granted, will Guzman’s second category of review be applied. In other words, the resolution of the issue in such cases turns completely on the credibility of the witness.

The judgment of the Court of Appeals is affirmed.

WOMACK, J., filed a concurring opinion in which KELLER and KEASLER, JJ., joined.

McCORMICK, P.J., dissented.

WOMACK, J.,

filed a concurring opinion in which KELLER, and KEASLER, JJ., joined.

I agree with what the Court has done, but I wish we would change what we say.

No matter how many times we have said it, there is no justification for us to “assume that the trial court made implicit findings of fact that support its ruling,” ante at 856. There is no more reason to assume that the trial court made implicit findings of fact that support its ruling than there is to believe that the trial court made implicit conclusions of law that support its ruling.

It is not correct that “in cases like this one, when no findings of fact are filed, [and] the uncontroverted testimony of the witness adds up to probable cause if believed, and the motion [to suppress evidence] is nevertheless granted, ... the resolution of the issue in such cases turns completely on the credibility of the witness,” ante at 859. It is just as possible that the resolution of the issue turned on the trial court’s understanding of the law. Indeed, it is more likely that the trial court’s ruling is one of law when the evidence was uncontradicted.

It is not correct that there are “two possible theories upon which the trial court’s ruling may rest[:] either the testimony of the agent was credible, but the facts established by that testimony do not constitute probable cause (or reasonable suspicion for the initial detention)[,] or the trial court did not find the agent to be credible,” ante at 856. An almost infinite number of theories, each of them resting on a different legal error, also would explain the trial court’s ruling.

We should abjure such statements, not only because they are unjustified or incorrect, but also because they encourage unexplained rulings. In a system in which appellate courts make unjustified and incorrect assumptions to uphold rulings, a trial judge who is more concerned about being affirmed than being right has every incentive to make one-word rulings. I hope and believe that such judges are few. But countless errors of law can be hidden behind unexplained rulings if we are willing to assume that judges have rejected uncontroverted testimony, for no apparent reason, without saying so.

None of the Court’s statements is necessary to our judgment. The simple and correct resolution of this recurring problem is to say that, when the party that is challenging a trial court’s ruling fails to request findings of fact, an appellate court will not reverse a ruling that could be reasonably based on adverse findings of fact. If we couple this rule with a rule that the failure to make findings of fact, on request that was timely presented and refused over objection, is an independent ground for reversal of the trial court’s judgment, we will have taken a step toward the just resolution of these appeals— a resolution that is based on the reality of what happened rather than on assumptions that may be entirely fictitious.

I concur in the judgment of the Court.

      . See State v. Ross, 999 S.W.2d 468, 472-73 (Tex.App.—Houston [14th Dist.] 1999).

      . See id. at 470.

      . See id. at 474.

      . Agent Darnell testified that he was concerned that the offense of endangering a child was being committed.

      . The trial court gave no indication as to the basis for its ruling. The transcript merely reads, "The Court grants the motion to suppress.” Ct. R. at 36.

      . See Ross, 999 S.W.2d at 474.

      . Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . Maestas v. State, 987 S.W.2d 59, 62 n. 8 (Tex.Crim.App.1999).

      . See Guzman, 955 S.W.2d at 89.

      . See Maestas, 987 S.W.2d at 62 n. 8.

      . See Ross, 999 S.W.2d at 471-73.

      . See id. at 473-74.

      . See id.

      . See State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999).

      . See Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App.2000); Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991); Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). See also, State v. Feed, 9 S.W.3d 212, 221 (Tex.App.—San Antonio 1999, no pet. h.).

      . See Mattias v. State, 731 S.W.2d 936, 940 (Tex.Crim.App.1987).

      . See Garcia, 15 S.W.3d at 535; Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990).

      . See Carmouche v. State, 10 S.W.3d 323, 328 (Tex.Crim.App.2000).

      . See Romero, 800 S.W.2d at 543.

      . 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

      . See Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 88 n. 3 & 90-91.

      . For example, even if there is only the testimony of the officer, which adds up to probable cause if believed, and the trial court denies the motion without express findings of fact, there will be two implied fact findings: the officer’s testimony was credible and the facts are as the officer testified. See e.g., Guzman, 955 S.W.2d at 88 n. 3 & 90-91.

      . See Loserth v. State, 963 S.W.2d 770, 772-73 (Tex.Crim.App.1998); Guzman, 955 S.W.2d at 89 ("Our decision is also meant to reaffirm the longstanding rule that appellate courts should show almost total deference to a trial court’s findings of fact, especially when those findings are based on an evaluation of credibility and demeanor ...”).

      . See Romero, 800 S.W.2d at 542.

      . We reiterate that the nature of demeanor and credibility is not such that it would readily appear in the record. Demeanor and credibility assessments are based in large part on visual and audio observations and are not usually found in the record. A presence or absence of contradiction or inconsistency in the record is not therefore dispositive.

      . Villarreal v. State, 935 S.W.2d 134, 140 (Tex.Crim.App.1996).

      . 987 S.W.2d 59 (Tex.Crim.App.1999).

      . See id. at 61.

      . See id. at 61 & 62 n. 8.

      . See id. at 62.

      . See id. at 62 n. 8.

        .Id. In its entirety, the footnote reads:
      This is because the officers' testimony as to what transpired from Appellant's arrest up to Appellant’s confession is uncontroverted. Appellant did not provide conflicting testimony or contradict the officers’ presentation of the facts in any way. In addition, Appellant did not present any complaints, for example complaints concerning the conditions of her jail cell, or complaints that she was coerced, intimidated, or forced to speak with police. Under different circumstances, where the police and the appellant provided conflicting testimony, resolution of this question would involve an evaluation of credibility and demeanor because the trial cotut would have to decide which testimony deserved more weight. In that case, our review would "afford almost total deference” to the trial court’s determination, in accordance with Guzman.

      .We note that in Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999), we stated that "the instant case presents us with a question of law based on undisputed facts, thus we apply a de novo review.” Oles involved a motion to suppress test results from clothing. The defendant was lawfully arrested but his clothing was tested for an unrelated crime and there was no visible evidence on the clothing that would link the defendant to the second crime. The trial court denied the motion. The testimony was uncontroverted and the trial court's ruling was not contrary to the testimony. Oles simply did not state the implied premise that the trial court found the testimony to be credible. Because the trial court found the testimony credible, it made its decision based on the facts testified to. As this gave the appellate court a "concrete” set of facts, through the presumption that arises when no findings of fact are filed, the appellate court could do a de novo review.

      . State v. Feed, 9 S.W.3d 212, 222 (Tex.App.—San Antonio 1999, no pet. h.)

      . State’s Brief on the Merits at 5 (“The Court of Appeals should therefore have assumed that the trial court believed the State’s evidence, conducted a de novo review, and held that the trial court’s granting of Ross’s motion to suppress could only have resulted from misapplying the law to the facts.”).

      . Tex.Code Crim.Proc.Ann. art. 44.01(a)(5) (Vernon 2000).

        Cf. Tex.R.Civ.P. 297 ("The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed”); id., R. 299 ("Refusal of the court to make a finding requested shall be reviewable on appeal”); TexR.App.P. 33.1(a)(2)(B) (prerequisite to complaint on appeal is satisfied by showing that request, objection or motion was properly made and "the trial court refused to rule on the request, objection, or motion, and the complaining party objected to the refusal”).