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.
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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
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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
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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 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
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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 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.
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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.
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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
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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 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.
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THOMAS T. W OODALL, Judge
CONCUR:
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JOSEPH M. TIPTON, Judge
___________________________________
JOE G. RILEY, Judge
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