         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE              FILED
                         AUGUST SESSION, 1998         October 30, 1998

                                                     Cecil W. Crowson
                                                    Appellate Court Clerk
STATE OF TENNESSEE,       )          C.C.A. NO. 01C01-9802-CC-00065
                          )
         Appellee,        )
                          )          CANNON COUNTY
V.                        )
                          )
                          )          HON. DON ASH, JUDGE
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, Cordell Hull Building
                                     425 Fifth Avenue North
                                     Nashville, TN 37243

                                     WILLIAM C. WHITESELL, JR.
                                     District Attorn ey Ge neral

                                     JOH N W. P RICE , III
                                     Assistant District Attorney General
                                     303 R utherford Coun ty Judicial B ldg.
                                     Murfreesboro, TN 37130




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
              The Defendant, Thomas Michael Davenport, appeals as of right from

the trial court’s ord er revokin g his prob ation. In this a ppea l, Defendant argues that

the trial court erred by admitting into evidence a labora tory rep ort in viola tion of h is

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 probatio n. W e

affirm the ju dgme nt of the trial co urt.



              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 a n order sente ncing Defe ndant 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 prob ation violation warrant o n Octo ber 6, 19 97.



              Chris tie 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 senio r at Mid dle Te nnes see S tate U niversit y and had received training on

performing drug scr eens a nd had passe d 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 tes ts were positive for

marijuana. The documentation of the screenings were admitted into evidence

without ob jection from Defen dant.

                                             -2-
             William James Scollon, an employee of the inte nsive s uperv ision u nit

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 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 Robert, a ssista nt labo ratory d irector a t Aegis

Analytical Labo ratorie s, Inc. in Nash ville, Te nnes see, te stified 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 generate s quantitative test

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

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

confirmation. He further explained that spec imen s are re ceived in the lab through

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

match up identification on the specime n with necess ary paperwo rk, 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




                                           -3-
container for analyzation by a licensed technologist in the laboratory. A chain of

custody docu men t is gen erated to acc ount fo r all stages in the processing of the

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

and control proced ures are und ertaken, Dr. Robe rt perso nally examin es test res ults

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

he perso nally examined the test results involving the Defendant and certified them

by affixing his sig nature to the repo rt. Dr. Robert testified 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 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, wa s not ava ilable to testify.



              The reports of the labora tory were admitted into evidence over

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

positive for marijua na at a concentration of greater than 1 35 nanog rams per m illiliter.



              During cross-examination, the following colloquy occurred between

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 does the test, does the test, and he brings you a




                                            -4-
             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 tes ting proce sses tha t occur in th e
             labora tory. 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
             comp onents of the testing , the results , chain of custody
             documentation that is associated w ith the specime ns 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 techn icians wh o 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 pres ence o f his sister wh o was s mokin g mariju ana.



             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 scien tific literatu re ass ociate d with s tudies addressing the issue of

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

levels of specim ens from people who ha d been subjecte d to passive inhalation were

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

Spectrom etry results on De fenda nt’s Ju ly 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



                                          -5-
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 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 upon 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 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. Furth ermore, the s upreme court

held that the record in that case did not meet the minim al due pr ocess re quirem ents

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 c ause” re fers to the denial of a defendant’s right to confront and cross-

examine the technician that prepared the report introduced into eviden ce. Id. at 409.




                                             -6-
              In Gregory, our court affirmed the revocation of probation by the trial

court and distin guishe d the facts in that cas e from th e factual s ituation 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 ce rtified the dru g test, a

spec ific description of the method of testing, a statement that the method was the

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

the test res ults we re reliab le and accurate, and a declaration that all established

proced ures an d protoc ols were followed. Id.



              Desp ite 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 th e report as a “director of labo ratorie s.” Th ere wa s no sp ecific

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 reliab ility of the test rep ort.

                                           -7-
946 S.W .2d at 831, (em phasis add ed).



             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 proba tion by the d efenda nt. In

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

along with the report of the laboratory results. As discusse d above, D r. Robert m ore

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 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, the

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

Defendant that his tests were positive from passive inhalation. The labo ratory

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 oth er issue, De fendan t argue s that th e trial co urt erre d in

concluding the evidence was sufficient to show a violatio n of the cond itions o f his

probation. As is usual, the conditions of probation required th e Defe ndant to

main tain “good and lawful con duct.” During his tes timony, Defendant acknowledged

that he was a ware 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 prob ation office rs were s ufficient evide nce 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

                                           -8-
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 suppo rt the trial cour t’s conclus ion. State

v. Leach, 914 S.W .2d 104 (Te nn. Crim. Ap p. 1995).



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

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

affirmed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:


___________________________________
JOSEPH M. TIPTON, Judge


___________________________________
JOE G. RILEY, Judge




                                           -9-
