         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs July 16, 2003

                    STATE OF TENNESSEE v. JOHN BREWER

                   Direct Appeal from the Circuit Court for Maury County
                         Nos. 12425, 12864   Stella Hargrove, Judge



                  No. M2002-02749-CCA-R3-CD - Filed November 13, 2003


The defendant pled guilty to aggravated burglary, theft over $1000, and vandalism and was
sentenced to five years probation. Subsequently, after the defendant tested positive for marijuana
and his probation officer filed a probation violation report, the trial court revoked his probation
following a hearing. The defendant appeals, arguing that the trial court erred in relying upon a
laboratory report showing marijuana in his urine because the accompanying affidavit had not been
executed by the technician who performed the test but by the assistant laboratory director. Following
our review, we affirm the order of the trial court revoking the defendant’s probation.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS T.
WOODALL, JJ., joined.

Claudia S. Jack, District Public Defender, and Robin Farber, Assistant Public Defender, for the
appellant, John Brewer.

Paul G. Summers, Attorney General and Reporter; Helena Walton Yarbrough, Assistant Attorney
General; T. Michel Bottoms, District Attorney General; and Christi L. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                              FACTS

        On August 13, 2001, the defendant, John Brewer, pled guilty to aggravated burglary and theft
over $1000 in exchange for two, three-year post-plea diversions to be served concurrently. On
February 11, 2002, the defendant’s diversion was revoked because he failed to report to his probation
officer and tested positive for marijuana, and he was placed on supervised probation for three years.
On this date, the defendant also pled guilty to vandalism, for which he received a two-year suspended
sentence to be served on supervised probation. This two-year probationary period was ordered to
be served consecutively to his previous three-year probationary sentence for a total of five years of
probation.

        On April 2, 2002, Christie Dickey, the defendant’s probation officer, filed a probation
violation report because the defendant tested positive for marijuana. A probation revocation hearing
was held on October 7, 2002, during which Dickey testified that the defendant had “field tested
positive for marijuana.” Dickey stated that she forwarded the results to Aegis Analytical
Laboratories for testing. The laboratory report, which was admitted into evidence, showed that the
defendant had in fact tested positive for marijuana.

        At the hearing, the defendant objected to the introduction of the laboratory report and the
accompanying affidavit because the test was conducted by Mark Young, a laboratory technician, and
the affidavit certifying the results was executed by Dr. Timothy A. Robert, Assistant Laboratory
Director. The trial court admitted this report over the defendant’s objections and revoked the
defendant’s probation.

                                              ANALYSIS

        The defendant argues that the court erred in revoking his probation. A trial court is granted
broad authority to revoke a suspended sentence and to reinstate the original sentence if it finds by
the preponderance of the evidence that the defendant has violated the terms of his or her probation
and suspension of sentence. Tenn. Code Ann. §§ 40-35-310, -311. The revocation of probation lies
within the sound discretion of the trial court. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991);
State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997); State v. Mitchell, 810 S.W.2d
733, 735 (Tenn. Crim. App. 1991). To show an abuse of discretion in a probation revocation case,
“a defendant must demonstrate ‘that the record contains no substantial evidence to support the
conclusion of the trial judge that a violation of the conditions of probation has occurred.’” State v.
Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980)). The proof of a probation violation need not be established beyond a
reasonable doubt, but it is sufficient if it allows the trial court to make a conscientious and intelligent
judgment. Harkins, 811 S.W.2d at 82 (citing State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim.
App. 1984)). We review this issue, therefore, for an abuse of discretion.

       The affidavit of Dr. Robert sets out that he is the assistant laboratory director of Aegis
Analytical Laboratories and details his education and credentials, stating then in pertinent part:

                        This affidavit is made of my own personal knowledge and is
                true and correct and accurate in all respects. . . . The specimen and all
                portions thereof were handled with strict chain-of-custody
                documentation and all testing was performed according to accepted
                laboratory practices.           Confirmation testi ng by gas
                chromatography/mass spectrometry (GC/MS) for Cannabinoids
                (Marijuana) by Mark Young on March 26, 2002 was positive for


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               Carboxy-THC at a concentration of 88 ng/mL. After review and
               certification, these results were reported on March 26, 2002. These
               results are consistent with use of marijuana within 5 days prior to
               specimen collection.

                        I, Timothy A. Robert, certify that all established Aegis
                Analytical Laboratory and T.D.O.C. procedures, protocols, and chain
                of custody were followed in the testing of this specimen. The method
                of testing used is the most accurate for this particular drug and the
                results were reliable and accurate. I further affirm that the
                information provided in this affidavit is true and factual to the best of
                my belief and knowledge. I understand that submission of false
                information in this affidavit may subject me to prosecution for the
                criminal offense of perjury pursuant to T.C.A. 39-16-702.

        The defendant argues that the trial court’s admission of the affidavit of Dr. Robert and
reliance upon it to revoke his probation violate his rights both to confront the witnesses against him
and to due process. We will review these claims.

        To support his argument that the trial court erred in relying upon the affidavit of Dr. Robert,
the defendant cites State v. Wade, 863 S.W.2d 406, 409-10 (Tenn. 1993), in which our supreme
court determined that the revocation of the defendant’s probation could not be based upon a
laboratory report without a finding of proof that the report was reliable and good cause as to the
absence of the technician who had tested the sample. Subsequently, in State v. Gregory, 946 S.W.2d
829, 832 (Tenn. Crim. App. 1997), this court concluded that an affidavit and laboratory report were
admissible in the absence of a witness testifying as to the test results when the affidavit, unlike that
in Wade, identified the person certifying the drug test and stated his qualifications; specifically
described the method of testing and stated that it was the most accurate method for identifying the
particular type of drug which was found; certified that the results of the test were accurate and
reliable; and declared that established procedures and protocols were followed in the testing process.
In 1998, Tennessee Code Annotated section 40-35-311 was amended to add the following section
regarding admission of a laboratory report at a probation revocation proceeding:

                      A laboratory report regarding a defendant's drug test may be
               admissible in probation revocation proceedings, even though the
               laboratory technician who performed the test is not present to testify,
               when accompanied by an affidavit containing at least the following
               information:

                        (A) The identity of the certifying technician;
                        (B) A statement of qualifications from the certifying
                            technician;
                        (C) A specific description of the testing methodology;


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                       (D) A statement that the method of testing was the most
                           accurate test for this particular drug;
                       (E) A certification that the test results were reliable and
                           accurate;
                       (F) A declaration that all established procedures and
                           protocols were followed; and
                       (G) A statement of acknowledgment that submission of false
                           information in the affidavit may subject the affiant to
                           prosecution for the criminal offense of perjury pursuant
                           to § 39-16-702.

Tenn. Code Ann. § 40-35-311(c)(1).

         The defendant argues both that this statute is unconstitutional and that its requirements were
not satisfied because the affiant was the assistant laboratory director, rather than the technician who
performed the test. We respectfully disagree with these arguments. As the United States Supreme
Court explained in Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604, 33 L. Ed. 2d 484
(1972), the defendant at a revocation hearing has “the right to confront and cross-examine adverse
witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).”
Additionally, the court explained that “the process should be flexible enough to consider evidence
including letters, affidavits, and other material that would not be admissible in an adversary criminal
trial.” Id.

        We believe that the requirements set out in Tennessee Code Annotated section 40-35-
311(c)(1) are intended to comply with the holding in Morrissey, to balance the defendant’s rights to
due process and to confront witnesses with the need for certain flexibility at a revocation hearing.
Accordingly, the statute is not unconstitutional. Additionally, since this statute is intended to make
certain that only reliable evidence is allowed at a revocation hearing, including that appropriate
testing methods and protocols were utilized, knowledge which would not appear to be limited to the
technician who performed the tests, we disagree that only this person may be the affiant of an
affidavit submitted pursuant to Tennessee Code Annotated section 40-35-311(c)(1).

                                          CONCLUSION

       Based on the foregoing reasoning and authorities, we affirm the order of the trial court
revoking the defendant’s probation.


                                                       ____________________________________
                                                       ALAN E. GLENN, JUDGE




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