# FILED October 30, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE AUGUST SESSION, 1998
STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9802- CC-00065 ) Appellee, ) ) CANNON COUNTY V. ) ) ) HON. DON ASH, J UDGE THOMAS MICHAEL DAVENPORT, ) ) (REVOCATION OF Appe llant. ) SUSP ENDE D SEN TENC E)

FOR THE APPELLANT : FOR THE APPELLEE : GUY R. DOTSON,JR. JOHN KNOX WALKUP 102 South Maple Street Attorney General& Reporter Murfreesboro, TN 37130 TIMO THY B EHAN Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 WILLIA M C. WHITESE LL, JR. District Attorn ey Ge neral JOH N W. P RICE , III Assistant Distri ct Attor ney General 303 R utherford Coun ty Judicial B ldg. Murfreesboro, TN 37130

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION
The Defendant, Thomas MichaelDavenport, appeal s as of ri ght from the trial court’s ord er revokin g his prob ation. In this a ppea l, Defendant argues t hat the trial court erred by admit ting int o evidence alabora tory rep ort in viola tion of h is constit utional rights t

o confront and cross-examinewitnesses and by concluding t hat the evidence was suffici ent to show a violati on of the terms of his probatio n. W e affirm the ju dgme nt of the trial co urt.

On March 15, 1996, Defendant pled guilty to burglary i n the Circu i t Court of Can non Co unt y. A sentenci ng hearing was subsequent ly held, and on August 16, 1996, the trial court entered a n order sente ncing Defe ndant to serve two (2) years in t he Department of Corr ection. The sentence was then suspen ded and he was placed on intensive superv ised pr oba tion. On August 12, 1997, a warr

ant was issued all eging that Defendant vi olated hi s probation by testi ng po siti ve for marijuanaon July 9, 1997, and on July 22, 1997. The trialcourt helda hearing on the prob ation violation warrant o n Octo ber 6, 19 97.

Chris tie McGee, an intern with the pr obation off ice in M urf reesboro, testif ied th at on e of her duti es was to run dr ug screens on probat ioners. She was a senio r at Mid dle Te nnes see S tate U niversit y and had receivedtraini ng on performing drug scr eens a nd had passe d a test on the procedure. She worked under the supervi sion of pro bation depart ment personnel. She tested uri ne samples provided by the Defendant on July 9 and July 22 , 1997. Both tes ts were positi ve for marijuana. The documentation of the scr eenings were admitted into evi dence without ob jection from Defen dant.-3- William James Scollon, an employee ofthe inte nsive s uperv ision u nit of the Department of Correctio n probation of fice in Murfreesboro, testif ied that Defendant was one of hi s probationer s. He testified concer ning his supervi sion of Ms. McGee in administering the drugscreening test at theprobation offi ce. He also explained how the remaini ng portion of each specimen was pl aced into anot her cup, se aled, and init ialed by t he probationer . The cup was then pl aced in a pouch t ha t was again seale d and then fro zen u ntil a courier c ould pick up the sp ecime n to be transported for furthe r testing by a laborato ry.

Dr. Timothy A lbert R obert, a ssista nt labo ratory d irector a t Aegis Analyti cal Labo ratorie s, Inc. in Nash ville, Te nnes see, te stif ie d that he h as a Ph. D. in microbiot ic medical science. Dr. Robert is r esponsible f

or the daily oper

ations of all aspects of t he laborator y. Among his duti es, he serves as the certify ing scientist forpositive test results, revi ew ing all aspects of t he testi ng. He explai ned that the Aegis Laboratory uses a reagent test system whi ch ge nerate s quantitativ e test results. The sam ple is first tested on an Im munoa ssay t est, and if t hat is posi tive, a Gas Chromatography/Mass Spectrometry test is administered on the speci men as confirmati on. He further explained t hat spec imen s are re ceived in the lab t hrough a courier sy

stem and are processed by a receivi ng and accession ing staf f who m atch up identification on the specime n with necess ary paperwo rk, verify th e intactn ess of seals, and log the demographi cs or pati ent information into the computer system of

the lab. A portion of

the specimen is

then removed fr

om the-4-

container

for analy

zation by a licensed tec hnologist in the l aboratory. A chain of custodydocu men t is gen erated to acc ount fo r all stages in the processing of t he laboratory. In addition to training a ll of the staff and ensuring that qualit y assurance and control proced ures are und ertaken, Dr. Robe rt perso nally examin es test res ults to make the determinat ion ofwhet her atest is p osit iveor ne gati ve. He testif ied that he perso nally examined the test result s involv ing the Defendant and certif ied them by affixing his sig nature to the repo rt. Dr. Robert testifi ed that he was familiar with the records of Ae gis Laboratory a nd that he m aintained those records in his cus tody.

The Defendant interposed an objecti on to the l ab result b eing admitted into evidence. His counsel argued that the report was hear say. Defendant

argued to the tr ial court that even t hough Dr. Robert coul d certif y the document fr

om the technici an, he cou ld not cer tif y th at t he te st wa s cond ucte d pro perl y. De fen dant argued that Dr. Black, who had also signed the report and had apparently

performed the test, wa s not ava ilable to testify.

The reports of the labora tory w ere admitted i nto evidence over Defendant’s obj ection as stated above. Each r eport states thatthe specimen was positive for marijua na at a concentrati on of greater than 1 35 nanog rams per m illiliter.

During cros s-ex amination, the foll owing coll oquy occurred bet ween defens e coun sel and D r. Robe rt:
Q. I’m trying to make s ure I’ve got this unde rstood. The laboratory guy, whoeve r do es the test , does the test, and he br ings you a-5- piece of paper showing you the resul ts; is that real ly how it comes out? A. Yes. I have copi es of the data with me, but I receiv e the origi nal data as generated from the activi ties of the technicians a nd laboratory staff in the tes ting proce sses tha t occur in th e labora tory. So all of the data is accumulatedand gathered and presented to me in what we call a job jacket , and I rev iew all the comp onents of the testing , the results , c hain ofcustody documentation tha t is associated w ith the specime ns that are undergoing analysis

and the quali ty contr

ol data th at’s generated in associati on with those tests. And if I f ind it acceptable by our laboratory establ ished procedures, I then cert ify the resul ts.
Dr. Robert confi rmed that he wasfamiliar with the techn icians wh o perform the tests and with thei r variou s degrees of cer tifi cation and t raining.

The Defendant test ified an d denied that he had used m arijuana. He a dmitted that he may have br eathed some marijuana f rom second -hand smoke whil e he was in the pres ence o f his sister wh o was s mokin g mariju ana.

Dr. Robert was call ed in rebutt al by the State. Without obj ection by defense counsel, Dr. Robert test ified t hat he had r ea d several ar ticles which had appeared in scien tific literatu re ass ociate d with s tudie s addre ssing the i ssue of passive inhalat ion of marij uana smoke. He testi fied that the studies showed that levels of specim ens from people who ha d been subjecte d to passive i nhalation were under 100 nanograms per mill iliter. He furt her testifi ed that Chromatography/Mass Spectrom etry results on De fenda nt’s Ju ly 9 sp eci men h ad a val ue of 379 nano gra ms per milli liter . He did not testify as to the specific l evel on the J uly 22 speci men.
On each written report f rom Aegis Laborator y which was admit

ted into evidence, Defendant had signed his name and dated the ini tial “chain of custody and-6-

request form” dir ectly be low a printed statement on t he form that i ncluded the language that Def e ndant certified that he provided t he urine speci men to the collector and that the specimen was in the co llecti on container marked with an identif icatio n number identi cal to t he n umbe r on the form. The form furt her stated thatthe collectio n con tainer w as se aled w ith a tam per-e videnc e sea l in his presence. Each o f the repo rts had the correct ide ntifying num ber.

Defendant relies prima rily u pon the cases o f State v. Wade , 863 S.W.2d 406 (Tenn. 1993) and State v. Grego ry , 946 S.W.2d 829 (Tenn. Crim. App. 1997), in arguing that

the laborat

ory test results were erroneousl y admitted into evi dence.

In Wade , o ur supreme court hel d that under t he United States Constitut ion, the State i s not entitl ed to revoke pr obation “base d on an unidenti fied laboratory test admitted into evidence without a findingof good cause and proof of the reliabi lity

of the test report.” 863 S.W .2d at 410. Furth ermore, the s upreme court held that the record i n that case di d not meet theminim al due pr ocess re quirem ents of the Tennessee Constitution, Articl e I, Secti on 9. The court spe cifically hel d:
The report was not

admissible i nto evidence b ecause there was no showing of good cause, and, had there been a showi ng of good cause, the revocati on of probati on based on the uncorroborated report which contains no si gnificant indi cia of rel iability, coul d not be sustai ned. Id
.
The “good c ause” re fe rs to the denial of a defendant’s right to confront and crossexamine the technici an that prepar ed the report

introducedinto eviden ce. Id . at 409.-7- In Greg ory , our court affirmed the revocati on of probati on by the trial court and distin guishe d the facts in that cas e from th e factual s ituati o n in Wade
. Specifically, in Gregory , the recor d identi fied the p erson who conducted the test, the method o f testing, the teste r’s qualificati ons, the sci entifi c reliabi lity of the testing method, and that th e test was conducted under established and reli able procedures. 946 S.W .2d at 832
.

Furthermore, in Gregory , there was no live testimony of a cer tif ying scientist of the l ab orat ory. I nstead, an af fidavi t of the “Certify ing Scienti st” was admitted into evidence certif ying the r

esult to be “reli able and accurate.” In addition, the affidav it prov ided the qual ificat i ons of the person who ce rtified the dru g test, a spec ific descripti on of the method of testing , a statement

that the met hod was the most accurate test for t he particul ar drug wh ich tested “positive,” a certif icatio n that the test res ults we re reliab le and ac curate, and a declarati on that al l establ ished proced ures an d protoc ols were followed. Id
.

Desp ite Defendant’s assertion that Dr. Black was th e one who performed the test, our re view of t he lab report indicates that Dr. David L. Black, Ph.D., signed th e report as a “di rector of labo ratorie s.” Th ere wa s no sp ecific testimony

in the record as to the i dentity of the tec hnician whoactuall y performed t he test.

Our court stated in Gregory as follows:
Wade held that

the statecould notrevo ke probation based upon an unidentifi ed laborator y report a dmitted into evi dence without a findi ng of good cause as to the a bsence of the l aboratory technician and pr oof of the reliab ility of the test rep ort.-8-

946 S.W .2d at 831, (em phasis add ed).

The laborator

y reports

admitted i nto evidence wer e identi fied thr

ough the testimony of

Dr. Robert. In Wade , the State simply submit ted an “unident ified” laboratory report as its sol e evidence of violat ion of proba tion by the d efenda nt. In Gregory , an affida

vit of the “cert ifyi ng scienti st” fr om the laborator

y was admitted along with the report of the laboratory r

esults. As discusse d above, D r. Robert m ore than substanti ally compl ied with the requir ements to establ ish the rel iability of t he laboratory report admitted into evidence. Implici t in his test imony was the fact that a qua lifi ed tech nician of A egis Lab oratories had pe rformed the tests. T he resu lts from the raw data h ad been e xamined a nd appro ved by Dr. Ro bert. D efend ant’s counsel was allow ed the o pportu nity to thoroughly cross-examine Dr . Robert, t he “certi fying sci enti st. ” Dr. Ro bert was able to specifically rebut t he testi mony of Defendant that his

tests were p ositiv

e from passive i nh alation. The labo ratory repo rts and the test imony of Dr. Rober t were proper ly admitted into evi de nce an d therefor e we decline to grant Defendant relief on his fi rst iss ue.

In his oth er is sue, De fe ndan t argue s that th e trial co urt erre d in concluding the evidence w as suff icient to show a violatio n of the cond itions o f his probation. As is usual, the condit ions of pro bat ion re quired th e Defe ndant to main tain “good and lawful con duct.” During his tes timony, Defendant acknowled ged that he was a ware that use of marijuanawas illegal. The laboratory reports whi ch were admitted into evi dence, along wi th the initial pos itive drug screen resul ts taken by the prob ation office rs were s ufficient evide nce to justi fy revocat ion of probati on. The trialjudge does not need to fi nd a violat ion of the terms of probati on beyond a reasonab le doubt. The evidence must onl y show that t he judge has exercised a-9-

conscienti ous judgment in making the decisi on rat her than acting arbitrarily. Gregory , 946 S.W.2d at 832. The judgment of th e trialcourt is not to be di sturbed on appeal unless it appears that there has been an abuse of discreti on where the record contains no substantialevidence to suppo rt the trial cour t’s conclus ion. State v. Leach , 914 S.W .2d 104 (Te nn. Crim. Ap p. 1995).

We conclude that

there was ample evidence to support the trialcourt’s revocati on of probati on in thi s case. Accordi ngly, t he judgment of the t rial cou rt is affirmed.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JOSEPH M. TIPTON, Judge

___________________________________ JOE G. RILEY, Judge