FILED

October 30, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9802-CC-00065

)

Appellee, )

) CANNON COUNTY

V. ) 

)

) HON. DON ASH, JUDGE

THOMAS MICHAEL DAVENPORT, ) 

) (REVOCATION OF 

Appellant. ) SUSPENDED SENTENCE) 

FOR THE APPELLANT: FOR THE APPELLEE:

GUY R. DOTSON, JR. JOHN KNOX WALKUP 

102 South Maple Street Attorney General & Reporter

Murfreesboro, TN 37130 

TIMOTHY BEHAN

Assistant Attorney General

2nd Floor, Cordell Hull Building

425 Fifth Avenue North 

Nashville, TN 37243

WILLIAM C. WHITESELL, JR.

District Attorney General 

JOHN W. PRICE, III

Assistant District Attorney General

303 Rutherford County Judicial Bldg. 

Murfreesboro, TN 37130 

OPINION FILED ________________________

AFFIRMED 

THOMAS T. WOODALL, JUDGE
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OPINION

The Defendant, Thomas Michael Davenport, appeals as of right from

the trial court’s order revoking his probation. In this appeal, Defendant argues that

the trial court erred by admitting into evidence a laboratory report in violation of his

constitutional rights to confront and cross-examine witnesses and by concluding that

the evidence was sufficient to show a violation of the terms of his probation. We

affirm the judgment of the trial court.

On March 15, 1996, Defendant pled guilty to burglary in the Circuit

Court of Cannon County. A sentencing hearing was subsequently held, and on

August 16, 1996, the trial court entered an order sentencing Defendant to serve two

(2) years in the Department of Correction. The sentence was then suspended and

he was placed on intensive supervised probation. On August 12, 1997, a warrant

was issued alleging that Defendant violated his probation by testing positive for

marijuana on July 9, 1997, and on July 22, 1997. The trial court held a hearing on

the probation violation warrant on October 6, 1997. 

Christie McGee, an intern with the probation office in Murfreesboro,

testified that one of her duties was to run drug screens on probationers. She was

a senior at Middle Tennessee State University and had received training on

performing drug screens and had passed a test on the procedure. She worked

under the supervision of probation department personnel. She tested urine samples

provided by the Defendant on July 9 and July 22, 1997. Both tests were positive for

marijuana. The documentation of the screenings were admitted into evidence

without objection from Defendant.
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William James Scollon, an employee of the intensive supervision unit

of the Department of Correction probation office in Murfreesboro, testified that

Defendant was one of his probationers. He testified concerning his supervision of

Ms. McGee in administering the drug screening test at the probation office. He also

explained how the remaining portion of each specimen was placed into another cup,

sealed, and initialed by the probationer. The cup was then placed in a pouch that

was again sealed and then frozen until a courier could pick up the specimen to be

transported for further testing by a laboratory.

Dr. Timothy Albert Robert, assistant laboratory director at Aegis

Analytical Laboratories, Inc. in Nashville, Tennessee, testified that he has a Ph.D.

in microbiotic medical science. Dr. Robert is responsible for the daily operations of

all aspects of the laboratory. Among his duties, he serves as the certifying scientist

for positive test results, reviewing all aspects of the testing. He explained that the

Aegis Laboratory uses a reagent test system which generates quantitative test

results. The sam ple is first tested on an Immunoassay test, and if that is positive,

a Gas Chromatography/Mass Spectrometry test is administered on the specimen as

confirmation. He further explained that specimens are received in the lab through

a courier system and are processed by a receiving and accessioning staff who

match up identification on the specimen with necessary paperwork, verify the

intactness of seals, and log the demographics or patient information into the

computer system of the lab. A portion of the specimen is then removed from the 
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container for analyzation by a licensed technologist in the laboratory. A chain of

custody document is generated to account for all stages in the processing of the

laboratory. In addition to training all of the staff and ensuring that quality assurance

and control procedures are undertaken, Dr. Robert personally examines test results

to make the determination of whether a test is positive or negative. He testified that

he personally examined the test results involving the Defendant and certified them

by affixing his signature to the report. Dr. Robert testified that he was familiar with

the records of Aegis Laboratory and that he maintained those records in his custody.

The Defendant interposed an objection to the lab result being admitted

into evidence. His counsel argued that the report was hearsay. Defendant argued

to the trial court that even though Dr. Robert could certify the document from the

technician, he could not certify that the test was conducted properly. Defendant

argued that Dr. Black, who had also signed the report and had apparently performed

the test, was not available to testify. 

The reports of the laboratory were admitted into evidence over

Defendant’s objection as stated above. Each report states that the specimen was

positive for marijuana at a concentration of greater than 135 nanograms per m illiliter.

During cross-examination, the following colloquy occurred between

defense counsel and Dr. Robert:

Q. I’m trying to make sure I’ve got this understood. The laboratory

guy, whoever does the test, does the test, and he brings you a
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piece of paper showing you the results; is that really how

it comes out?

A. Yes. I have copies of the data with me, but I receive the original

data as generated from the activities of the technicians and

laboratory staff in the testing processes that occur in the

laboratory. So all of the data is accumulated and gathered and

presented to me in what we call a job jacket, and I review all the

components of the testing, the results, chain of custody

documentation that is associated with the specimens that are

undergoing analysis and the quality control data that’s generated

in association with those tests. And if I find it acceptable by our

laboratory established procedures, I then certify the results.

Dr. Robert confirmed that he was familiar with the technicians who perform the tests

and with their various degrees of certification and training.

The Defendant testified and denied that he had used marijuana. He

admitted that he may have breathed some marijuana from second-hand smoke while

he was in the presence of his sister who was smoking marijuana. 

Dr. Robert was called in rebuttal by the State. Without objection by

defense counsel, Dr. Robert testified that he had read several articles which had

appeared in scientific literature associated with studies addressing the issue of

passive inhalation of marijuana smoke. He testified that the studies showed that

levels of specimens from people who had been subjected to passive inhalation were

under 100 nanograms per milliliter. He further testified that Chromatography/Mass

Spectrometry results on Defendant’s July 9 specimen had a value of 379 nanograms

per milliliter. He did not testify as to the specific level on the July 22 specimen.

On each written report from Aegis Laboratory which was admitted into

evidence, Defendant had signed his name and dated the initial “chain of custody and
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request form” directly below a printed statement on the form that included the

language that Defendant certified that he provided the urine specimen to the

collector and that the specimen was in the collection container marked with an

identification number identical to the number on the form. The form further stated

that the collection container was sealed with a tamper-evidence seal in his presence.

Each of the reports had the correct identifying num ber. 

Defendant relies primarily upon the cases of State v. Wade, 863 S.W.2d

406 (Tenn. 1993) and State v. Gregory, 946 S.W.2d 829 (Tenn. Crim. App. 1997),

in arguing that the laboratory test results were erroneously admitted into evidence.

In Wade, our supreme court held that under the United States

Constitution, the State is not entitled to revoke probation “based on an unidentified

laboratory test admitted into evidence without a finding of good cause and proof of

the reliability of the test report.” 863 S.W.2d at 410. Furthermore, the supreme court

held that the record in that case did not meet the minimal due process requirements

of the Tennessee Constitution, Article I, Section 9. The court specifically held:

The report was not admissible into evidence because there was no

showing of good cause, and, had there been a showing of good cause,

the revocation of probation based on the uncorroborated report which

contains no significant indicia of reliability, could not be sustained.

Id.

The “good cause” refers to the denial of a defendant’s right to confront and crossexamine the technician that prepared the report introduced into evidence. Id. at 409.
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In Gregory, our court affirmed the revocation of probation by the trial

court and distinguished the facts in that case from the factual situation in Wade.

Specifically, in Gregory, the record identified the person who conducted the test, the

method of testing, the tester’s qualifications, the scientific reliability of the testing

method, and that the test was conducted under established and reliable procedures.

946 S.W .2d at 832. 

Furthermore, in Gregory, there was no live testimony of a certifying

scientist of the laboratory. Instead, an affidavit of the “Certifying Scientist” was

admitted into evidence certifying the result to be “reliable and accurate.” In addition,

the affidavit provided the qualifications of the person who certified the drug test, a

specific description of the method of testing, a statement that the method was the

most accurate test for the particular drug which tested “positive,” a certification that

the test results were reliable and accurate, and a declaration that all established

procedures and protocols were followed. Id.

Despite Defendant’s assertion that Dr. Black was the one who

performed the test, our review of the lab report indicates that Dr. David L. Black,

Ph.D., signed the report as a “director of laboratories.” There was no specific

testimony in the record as to the identity of the technician who actually performed the

test. 

Our court stated in Gregory as follows:

Wade held that the state could not revoke probation based upon an

unidentified laboratory report admitted into evidence without a finding

of good cause as to the absence of the laboratory technician and proof

of the reliability of the test report.
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946 S.W .2d at 831, (emphasis added).

The laboratory reports admitted into evidence were identified through

the testimony of Dr. Robert. In Wade, the State simply submitted an “unidentified”

laboratory report as its sole evidence of violation of probation by the defendant. In

Gregory, an affidavit of the “certifying scientist” from the laboratory was admitted

along with the report of the laboratory results. As discussed above, Dr. Robert more

than substantially complied with the requirements to establish the reliability of the

laboratory report admitted into evidence. Implicit in his testimony was the fact that

a qualified technician of Aegis Laboratories had performed the tests. The results

from the raw data had been examined and approved by Dr. Robert. Defendant’s

counsel was allowed the opportunity to thoroughly cross-examine Dr. Robert, the

“certifying scientist.” Dr. Robert was able to specifically rebut the testimony of

Defendant that his tests were positive from passive inhalation. The laboratory

reports and the testimony of Dr. Robert were properly admitted into evidence and

therefore we decline to grant Defendant relief on his first issue.

In his other issue, Defendant argues that the trial court erred in

concluding the evidence was sufficient to show a violation of the conditions of his

probation. As is usual, the conditions of probation required the Defendant to

maintain “good and lawful conduct.” During his testimony, Defendant acknowledged

that he was aware that use of marijuana was illegal. The laboratory reports which

were admitted into evidence, along with the initial positive drug screen results taken

by the probation officers were sufficient evidence to justify revocation of probation.

The trial judge does not need to find a violation of the terms of probation beyond a

reasonable doubt. The evidence must only show that the judge has exercised a
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conscientious judgment in making the decision rather than acting arbitrarily.

Gregory, 946 S.W.2d at 832. The judgment of the trial court is not to be disturbed

on appeal unless it appears that there has been an abuse of discretion where the

record contains no substantial evidence to support the trial court’s conclusion. State

v. Leach, 914 S.W.2d 104 (Tenn. Crim. App. 1995).

We conclude that there was ample evidence to support the trial court’s

revocation of probation in this case. Accordingly, the judgment of the trial court is

affirmed.

____________________________________

THOMAS T. W OODALL, Judge

CONCUR:

___________________________________

JOSEPH M. TIPTON, Judge

___________________________________

JOE G. RILEY, Judge