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April 1, 1992


Henry County. Hon. Julian P. Guinn, Judge. (Probation Revocation)

Tipton, Byers, Jones

The opinion of the court was delivered by: Tipton

The defendant, Vernon Lee Ricker, appeals as of right from the revocation of his probation by the Henry County Circuit Court. His sole issue is whether or not the trial court erred in accepting a drug screen test result into evidence without the presence of the person who conducted the test. We affirm the revocation.

The defendant had entered pleas of guilty to five counts of vandalism, two counts of burglary and two counts of theft. He received a total sentence of two years and was placed on probation in December, 1990. A condition of probation was that he refrain from using marijuana. On February 27, 1991, his probation officer filed a report of violation and on April 29, 1991, the trial court revoked the probation after a hearing.

The sole basis of the revocation was a drug screen test report which reflected that a urinalysis showed the presence of cannabinoids, which are substances in marijuana. Ms. Teresa Pentecost, the probation officer, testified that she obtained the test sample from the defendant and delivered it the same day to Allied Clinical Laboratories in Chattanooga, Tennessee. The lab performs tests for her office pursuant to state contract. Ms. Pentecost submitted the lab's report over the defendant's objection. The defendant, his wife and his mother testified that he did not use drugs or alcohol.

The defendant contends that his constitutional right to confrontation was violated by the admission of the report without the person who prepared the test being present to testify. He relies upon State v. Henderson, 554 S.W.2d 117, 122 (Tenn. 1977) in which our Supreme Court stated that in the "face of an objection by the person charged, the State cannot prove an essential element of a criminal offense by test results introduced through a witness other than the one who conducted the tests." Henderson dealt with the right to confrontation afforded to the accused in a prosecution for a criminal offense. However, the same rights do not necessarily apply to a probation revocation hearing.

Although due process entitles a defendant to a hearing when revocation of probation is at issue, Practy v. State, 525 S.W.2d 677 (Tenn. Crim. App. 1975), there is no prohibition against the trial court receiving hearsay for its consideration.

In Tennessee and elsewhere it is generally recognized that there is a wide distinction between a probation revocation proceeding and a trial where the questions of guilt or innocence are at issue. At such a revocation hearing the strict rules of evidence do not apply.

While by case law, and by statute in Tennessee, probationers facing revocation are entitled to counsel still courts have not gone so far as to grant probationers the full panoply of rights and procedural safeguards.

Barker v. State, 483 S.W.2d 586, 589 (Tenn. Crim. App. 1972). The fact that hearsay may be considered by a trial court does not indicate that a defendant has the full right to confrontation which is provided for a criminal prosecution.

This Court has upheld the use of a similar lab report in a probation revocation hearing, noting that such a hearing is similar to a sentencing hearing in purpose. State v. James Ray Wade, No. 02C01-9108-CC-00188, Henry Co. (Tenn. Crim. App., Jackson, February 12, 1992). In Wade, we viewed the lab report as reliable hearsay which was admissible.

We do not question the defendant's right to require the presence of the lab personnel for cross-examination. See, e.g., State v. Hughes, 713 S.W.2d 58, 62 (Tenn. 1986). In this case, the defendant was notified several months before the hearing that revocation was sought because of the lab's findings, which were contained in a report attached to the probation violation report. However, the defendant admitted that he neither subpoenaed the lab personnel nor gave notice that he desired to question the validity of the report. He had ample opportunity to take either action. His reliance upon a claim of right to confrontation was inappropriate in this case.

The trial court was justified in considering the lab report, which was a sufficient basis upon which to allow the trial court to make a conscientious and intelligent judgment as to revocation. See State v. Harkins, ...

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