              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT NASHVILLE                      FILED
                              AUGUST 1998 SESSION
                                                                     October 30, 1998

                                                                    Cecil W. Crowson
STATE OF TENNESSEE,       )                                        Appellate Court Clerk
                          )
         Appellee,        )                No. 01C01-9802-CC-00065
                          )
                          )                Cannon County
v.                        )
                          )                Honorable Don Ash, Judge
                          )
THOMAS MICHAEL DAVENPORT, )                (Revocation of Suspended Sentence)
                          )
         Appellant.



                                  DISSENTING OPINION



              I respectfully dissent. I believe that in State v. Wade, 863 S.W.2d 406

(Tenn. 1993), our supreme court provided under state constitutional due process more

stringent standards for revocation hearings based upon positive drug test results than

were followed in this case. In Wade, the court stated that minimal due process

requirements under Article I, Section 9, of the Tennessee Constitution for such

probation revocation proceedings include the probationer’s right to confront and cross-

examine adverse witnesses unless (1) good cause for not allowing confrontation is

shown and (2) evidence is presented reflecting that the report is reliable. 863 S.W.2d

at 409-10. In terms of reliability, the court stated that the report at issue in Wade did

not indicate the method of testing, the name of the technician, or the fact that the test

was made in conformity with established and reliable procedures. Id.



              I believe that the person contemplated by our supreme court in Wade as

the “adverse witness” is the person who actually conducted the tests and obtained the

results or a witness thereto. Only such a witness, not one who only reviews documents

and instrument readings after the fact, is in a position to testify from first-hand
knowledge as to the actual procedures followed and operations of the instruments that

are the key to the drug identification process.



              In the present case, no explanation exists in the record to show good

cause why the person who conducted the drug tests was not required to be confronted

and cross-examined regarding the test results. In my view, the appearance of a

“certifying scientist” whose knowledge of the matter came from a review of documents

provided to him by the actual testing technician and others does not suffice under

Wade. Therefore, I would vacate the order of revocation.



                                                  _____________________________
                                                  Joseph M. Tipton, Judge




                                             2
