          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE            FILED
                          FEBRUARY 1998 SESSION        November 3, 1998

                                                       Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE,               )    C.C.A. NO. 03C01-9708-CR-00353
                                  )
            Appellee,             )    McMINN COUNTY
                                  )
V.                                )
                                  )    HONORABLE R. STEVEN BEBB,
ELISA COCHRAN,                    )    JUDGE
                                  )
            Appe llant.           )    (FELONY MURDER)



FOR THE APPELLANT:                     FOR THE APPELLEE:

KENNETH F. IRVINE, JR.                 JOHN KNOX WALKUP
Eldridge, Irvine & Hendricks           Attorney General & Reporter
606 W. Main St., Suite 350
P. O. Box 84                           ELIZABETH B. MARNEY
Knoxville, TN 37901-0084               Assistant Attorney General
(App eal)                              425 Fifth Avenu e North
                                       Second Floor, Cordell Hull Building
THOMAS E. KIMBALL                      Nashville, TN 37243-0493
Assistant Public Defender
110 ½ Washington Avenue, N.E.          JERRY N. ESTES
Athens, TN 37303                           District Attorney General
(Trial)
                                       SANDRA DONAGHY
                                       Assistant District Attorney
                                       10th Judicial District
                                       Washington Avenue
                                       Athens, TN 37303




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
      The defendant, Elisa Cochran, was convicted of felony murder and received

a mandatory sentence of life imprisonment. This is an appeal as of right of that

conviction.



      The defend ant pres ents three issues for review: (1) whether the evidence was

insufficient to convict her of first degree-felony murder; (2) whether she was denied

a fair trial by the introduction of her husband’s testimony, and his prior statements,

and by the circumstances surrounding his interrogation; and (3) whether the trial

court erred in failing to require the state to elect between first degree felony murder

and pre medita ted first deg ree mu rder at the close of its p roof.



      The jud gmen t is affirmed .



      The relevant facts are as follows: On April 26, 1995, a body was discovered

in a remote area of McMinn County.           The Tennessee Bureau of Investigation

assisted the McMinn Coun ty Sheriff’s Department in the investigation. Special Agent

T. J. Jordan o f the T.B.I., was the prim ary investigating officer.



      Special Agent Jord an testified that the bod y was found on an old ro ad bed

some two hundred and ninety feet from county road 429. The old road bed was

acce ssible only by foot. The body was laying in a face down position and was fully

clothed. It was in an extreme state of decomposition and was totally unrecognizable.

The victim had been killed by a single gunshot wound to his head. The bullet had

entered the victim near the his left eye and exited from the back of his head. The

                                            2
evidence sugge sted that the victim had bee n shot whe re he was fou nd. One live

round of ammo was found at the scene.



         From dental records and finger prints, it was determined that the victim was

Benja min Smith. Mr. Smith graduated from the University of Tennessee in 1995 and

worked at Martin Marietta in Portsmouth, Ohio. His parents lived in Knoxville, and

he was visiting them on Easter weekend, 1995. Easter Day was April 16. When the

victim did not return, his parents reported him missing.



         After learning the iden tity of the victim, the investigators deve loped several

leads. From the victim’s bank records , they kn ew tha t he we nt to an ATM in

Knox ville at 2:45 a.m., on April 16, 1995, and withdrew $200.00. From the video at

the ATM machine, they knew that someone was in the driver’s seat of his truck at

that time. They learned from his credit card records that he had made a purchase

that evening at Hooter’s Restaurant in Knoxville. Perhaps more importantly, the

investigation revealed that the victim frequented strip clubs in the Knoxville area.

Several clubs were contacted, and the investigators learned that the victim had been

at the Mouse’s Ear West on Kingsto n Pike in Knoxville on Easter weekend. The

investigators then inquired as to whether any of the dancers at the Mouse’s Ear lived

in McMinn County. They found that the defendant, Elisa Cochran, a dancer, lived

there.



         The manager and three dancers from the Mouse’s Ear testified. The manager

testified that the defendant worked on the night of April 15th from 5:50 p.m. to 12:56

a.m.. The three dancers knew the victim, and they all saw him at the Mouse’s Ear

on April 15th. Two of the dancers saw the defendant talking with the victim.

                                             3
       A waitress from Hooter’s Restaurant testified that she sold the victim a carry-

out order of crab legs on April 15th. Tw o of the dance rs observed the defendant

eating se afood th at night.



      One of the dancers testified that she had known the victim for about two yea rs

and that she and another dancer had gone shopping with the victim in downtown

Knoxville.   Anothe r dance r said that on Apr il 15th, the victim asked her to go

shopp ing with him .



       Agent Jordan interviewed the defendant. She admitted that she had worked

at the Mouse’s Ear We st on A pril 15, 1 995. S he cla imed she le ft at 2:00 a.m. and

drove her boyfriend’s truck to his hou se whe re she sp ent the nig ht. Her b oyfrien d’s

name was Burch Russe ll. She also told the investigator that her ex-husband, Brian

Cochran, had be en to the Mou se’s Ea r about th ree wee ks prior to A pril 15th and had

become jealous over a customer watching her dance. She said that her ex-husband

owned a nine millimeter handgun. She told the investigator that she did not know

anything abo ut the murde r.




       Mr. Jordan interviewed Brian Cochran on Ma y 12, 1995.               He and the

defendant had divorced four days earlier.          He was also given a polygraph

examination.



       The polygraph examiner testified without objection that Cochran practiced

decep tion or was untruthful in his responses to three relevant questions. Those

                                           4
questions were (1) were you present when the man was shot; (2) did you shoot that

man; and (3) do you know for s ure who sh ot that man. T he trial judge gave the jury

the following instructions after the polygraph examiner testified:

      I think that I should instruct the jury at this time that the polygraph has
      not been recognized in Tennessee courts as reliable enough to be
      admitted into evidence as probative of a witness’ truthfulness or
      untruthfulness. The polyg raph is used by law enforcement as an
      investigative tool. This evidence is not admitted and should not reflect
      on the credibility of any witness.


      After Cochran was told that he failed the test, he told Special Agent Jordan

and the polygraph examiner that his w ife, Elisa , had to ld him abou t killing this

individu al. He also told them that his wife had described how she shot the individual

and where she got the gun. No objection was made by the defense to that testimony

nor to similar testimony from Special Agent Jordan.



      With the information he received from Brian Cochran as to the location of the

gun, Special Agent Jordan went to the residence of Eby Garwood. Mr. Garwood

produced a nine millimeter semi-automatic handgun which was manufactured by

Glock. Agent Jordan unloaded the weapon and found a round o f amm o similar to

the round found at the murder scene.



      The defendant was brought to the McMinn County Justice Center at 3:30 a.m .,

on Ma y 12, 199 5. She g ave the fo llowing sta temen t:


             On Saturday the 15th of April, 1995, I met th e guy in the Mo use’s
      Ear while I was working. I don’t remember his name. He told me he
      had taken som e of the girls shopp ing and stuff. He left after I talked to
      him. We didn’t set up anything for when I got off. I think I got off e arly
      that night. It was a slow night. When I walked outside I went to my
      truck and he was hiding in my truck and he had a gun. He made me
      drive to his truck. We got in his truck and we drove around for awhile.
      I was driving his truck. He talked to m e abou t having se x with him. He

                                          5
wanted to go to a teller machine. I don’t know why he got the m oney.
I don’t remember which one we went to. I drove up to it and he got out
to get the money. He still had the gun on him. I think. I don’t know why
I didn’t drive off. I was scared. We went back to my truck and we got
in my truck and drove. He told me to drive to my house. He had asked
me if I had a boyfriend and I told h im no. I told h im I lived alon e. W e
headed straight to McMinn County. I didn’t talk much, but he did. He
told me I looked good and he touched me and stuff. He rubbed my
legs, betwee n my leg s, and m y breasts . I let him , because I was
scared. He played with himself too.

        Once we got into Mc Minn Cou nty I told him I had a live-in
boyfriend and he got mad. He told me to pull over. I pulled over off the
side of the road. He told me to get out of the truck. I just started
walking towards the woods up a hill. We had to go under a wire and
then there wa s a rock. He had the gun and he was mad at me. I knew
he was going to kill me. We just walked up the hill and I was in front of
him. I heard something behind me and turned around. He stumbled or
something. He was looking around and I picked the gun up off the
ground. I don’t know if he came toward me. I told him to leave me
alone, and I just sh ot him. I sh ot him in th e head . The gun got hung up
after I shot him. I only shot him once. After he wa s sho t, he fell o n his
face. I left and went to my mother’s house in Englewood. I got my
brothe r’s car and went back. It was daylight then. I was by m yself.
When I got back to him, I took his wallet and check book. The money
he had gotten was in my truck. I took the stuff, because I didn’t know
what to do. I th rew the wallet and check book out the window of my
truck after I picked it up from my mom’s. I drove around on back roads
for awhile. I don’t re mem ber wh ere I thr ew his stuff ou t. His keys were
in my truck and they have a knife on them. I don’t know where his truck
is at. The k eys are o n top of a lo cker at the Mouse ’s Ear. I haven ’t
seen the truck since that night. After I drove around I went to Burch’s.
I don’t rememb er how much money it was. I gave it to Burch. He
does n’t know w here I go t it. I told Burch a bout it last nig ht after De puty
Joey Guy ca me to see him . I told him I had to do it, bu t didn’t g ive him
any details.

      I had taken the gun from Burch’s. I got it, because someone tried
to get in my truck after w ork one night. I was leaving work and
someone flashed their lights at m e and I pu lled over. They c ame u p to
me, forced a kiss o n me , and trie d to ge t me to go with them . That ’s
why I had the gun.

      The guy I sh ot was wearin g a su it and had a hat on. He wore
glasses. He had boots on. He said he was from Ohio.

      I didn’t report it because of my job. I knew peop le wou ldn’t
unde rstand . I knew I would have to go to ja il.


The d efenda nt was a rrested a fter giving this s tateme nt.

                                       6
       There was evid ence w hich corro borated part of the d efenda nt’s statem ent.

The keys to the victim ’s truck were found on top of the locker at the Mouse’s Ear

where the defen dant sa id they wo uld be. Eby Garwood and Burch Russell testified

that Garwood took the Glock handgun to Russell’s house and that it rema ined there

for about a week. Garwood also testified that when he left the gun, there we re fifteen

rounds with aluminum ca sings in the clip. W hen he retrieved the gun, there w ere

two to four brass casings in the clip in addition to the aluminum casings . This

corroborated the defendant’s testimony that she took th e gun from R usse ll’s house.



       There was evidence which refuted part of the defendant’s statemen t.

Employees of the Mouse’s Ear testified that the club’s policy was for a ma le

employee to esco rt the da ncers to their ve hicles after wo rk. Th is cast some doubt

upon the defendant’s testimony that the victim was waiting for her in her truck.

Burch Russell testified that he was not the defendant’s boyfriend.         Rather, he

allowed her to live at his house because she was pregnant and because she had

told him that the child may be his child. He also refuted her testimony that she gave

the $20 0.00 take n from th e victim to h im.



       Brian Cochran, the defendant’s ex-husband, was called as a witness by the

State. Cochran testified the defendant told him she had a set of keys from a truck

and that she needed to talk to him. She told him someone had been shot. Upon

objection by the defendant, the trial court disallowed Brian Cochran’s testimony and

instructed the jury not to conside r it.



       The defense offered no evidence.

                                            7
      The indictment was a three count indictment. In the first count, the defendant

was indicted for premeditated first degree murder. The jury found her guilty of

second degree murder. In the second count, the defendant was indicted for felony

murder while in the perpetration of especially aggravated robbery. She was found

guilty as charged. In the third count, the de fenda nt was indicte d for es pecia lly

aggravated robbery. The trial court had instructed the jury that if it found the

defendant guilty of Count Two or of a lesser included offense, then it should not

return a verdict upon Count Three. However, the jury apparently misunderstood the

trial court’s instructions and found the defendant guilty of the lesser included offense

of theft unde r five hund red dollars ($500.0 0), a misdemeanor. The trial court merged

the second degree murder conviction into the felony murder conviction and

dismissed the theft conviction.



      The first issue presented for review is w hether th e eviden ce was sufficient to

convict the defen dant of first degree felon y murder.



      In determining the sufficiency of the convicting evidence, this Court does not

reweigh or re-evaluate the evidence. State v. Matthews, 805 S.W.2d 776, 779

(Tenn. Crim. A pp. 199 0), State v. Butler, 900 S.W.2d 305, 309 (Tenn. Crim. App.

1994). Questions concerning the credibility of the witnesses, the weight and value

to be given the evidence, as well as all the factual issues raised b y the evidence a re

resolved by the trier of fact, n ot this Co urt. State v. Cabbage, 571 S.W.2d 832, 835

(Tenn. 1978). A guilty verdict, approved by the trial judge, credits the testimony of

the State’s witnesses and resolves all conflicts of testimony in favor of the theory of

the State. State v. H atchett, 560 S.W .2d 627 , 630. (Tenn. 1978). Since a verdict

of guilty removes the presumption of innocence and replaces it with a presumption

                                           8
of guilty, the accused has the burden in this Court of illustrating why the eviden ce is

insufficient to support the verdict returned by the jury. State v. Tug gle, 639 S.W.2d

913, 914 (Ten n. 1982). Th is Court will not disturb a ve rdict of guilty due to the

sufficiency of the e videnc e unle ss the facts co ntaine d in the record and any

inferences which m ay be dra wn from the facts a re insufficien t, as a matter of law, for

a rational trier of fact to find the accused g uilty beyon d a reas onable doubt. Id.

Because the sufficiency of the evidence is the key inquiry in this case, the guiding

princip le is whether, after viewing the evidence in a light most favorable to the State,

any rational trier of fact could have found the essential elements of the crime beyond

a reason able do ubt. Jack son v. V irginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

99 L.Ed . 2d 278 1 (1979 ); State v. Duncan, 698 S.W .2d 63, 67 (T enn.1985 ).



       The State established that Benjam in Smith had be en sho t to death in a remo te

area in McMinn County. The State placed the defendant with the victim on the

evening of his death. The State located the murder weapon and placed it in the

hands of the defendant during the time period the victim was killed.                 Most

significantly, the State obtained a confession from the defendant in which she

admitted that she shot and killed the victim. Finally, the State proved that the

defendant did not report the death of the victim and attempted to avoid prosecution.



       In order to obtain a conviction for felony murder in this case, the State was

required to prove (1) a reckless killing of another, (2) committed in the perpetration

of a robbe ry. T.C.A . §39-13 -202 (a)(2 ). In order to obtain a conviction for espe cially

aggravated robbery, the State had to prove (1) the intentional or knowing theft of

property from the person of another by viole nce or putting the person in fear, (2)




                                            9
accomplished with a deadly weapon, and (3) when the victim suffers serious bodily

injury. T.C.A. §39-1 3-401 (199 1), §39-13-40 3 (a).



         It is a long-standing tene t of Tennessee law that to sustain a conviction for

felony murder, the killing must have been done in pursuance of the felony and must

not merely be collateral to the unlawful act. State v. Severs, 759 S.W.2d 935, 938

(Tenn. Crim. A pp. 19 88). In o ther wo rds, for a murd er to be done in “perp etratio n

of” the felony, “the killing mus t have had an intimate relation and close connection

with the felony a nd not b e sepa rate, distinct, and indepen dent from it.” Farmer v.

State, 201 Ten n. 107, 296 S .W.2d 879, 883 (1 956) (citing Wharton on Homicide,

§126).



         The State contends the defendant robbed the victim of $200.00 which the

victim took from the ATM machine.         Evidence that a person took the property of

anoth er after killing him and a pprop riated it to his ow n use is sufficie nt to su stain a

conviction of murd er in an atte mpt to com mit a robbery, though no previous purpose

to rob ap pears , since his act raises a strong presumption that he intended to do what

he afterw ards vo luntarily did. Mellend ore v. State , 191 S.W.2d 149, 142 (Tenn.

1945) (quoting Wharton on Homicide, 3d.Ed. 188). The evidence relied upon by the

State to establish the underlying felony is the admission of the defendant that she

took this mon ey. How ever, the d efenda nt’s statem ent was that the money w as in

her truck and not on the person of the victim when he was killed.



         The defendant relies upon the unre ported c ase of State v. Dunn, (No. 03S01-

9211-CR-00104, S.Ct. 1993). In that case, the Supreme Court found that the




                                             10
evidence was in adeq uate to supp ort the c onviction of the defendant for felony

murder.



      In Dunn, the evidence established that the ba dly decomposed body of 16 year

old Kathy Able was found in a creek bed in Washington County. She had

last been seen alive on March 18, 1989, which was almost two months before her

body was discovered. The record also established that on the day beforehand, the

victim was seen kissing the defendant. For the remainder of the eve ning an d into

the next morning, the victim, the defendant, and Mary Icenhour drove around

drinking beer an d ingestin g presc ription drug s. Icenho ur was e ventually d ropped off

at her home, and the victim remained with the defendant. When the victim was

found, she was n aked below the waist. Bruises w ere found aro und the ne ck. There

were no signs of trauma to the genital region of the body nor was it possible to test

for the presence of sperm. Based upon that evidence and other circumstantial

evidence, the jury convicted the defendant of felony murder after concluding that the

murde r occurre d during the com mission or attem pt to com mit a rap e.



      The Supreme Court concluded that the evidence was insufficient to support

the conclusion beyond a reasonable doubt that the murder occurred during the

commission of or in an a ttempt to commit a rape. Although there was circumstantial

evidence of sexua l activity, this evidence was not sufficient to establish that the

defendant raped or attempted to rape the victim.            The Court then held that

circumstantial evidence was sufficient to establish beyond a reaso nable doubt that

the defendant killed Kathy Able. The Court reversed the conviction for felony murder

and modified the judgment to reflect a conviction of second degree murder relying




                                           11
upon the rule of law that a homicide, once established, is presumed to be murd er in

the second degree.



       Howeve r, absent the portion s of De fenda nt’s statement to police which allude

to a kidnapping by the victim and a shooting in self-defense, a review of the evidence

in this case, and all inferences which may be drawn therefrom, reveals the following.



              The victim was in the co mpany o f the Defenda nt after she got off wo rk

from the Mouse ’s Ear W est in the early mo rning hours o f April 16, 1995. At

appro ximate ly 2:44 a.m . on April 16, the victim withdrew $200.00 from an ATM

machine, and a person (the strong inference being the Defendant) was driving the

victim’s vehicle at the time the mon ey was withdra wn. T he De fenda nt sho t the victim

once in the head with a nine millimeter pistol which had been in her possession prior

to the homicide. The victim was shot at a remote location approximately 100 yards

from a county highway in McMinn County. The Defendant resided in McM inn Cou nty

and the victim had no ties to McMinn County. All of the cash which had been

recen tly withdrawn by the victim from the ATM was missing. The pants pockets of

the victim were turned out as if som eone h ad reac hed in to e mpty the conten ts. A

few coins were found near the victim’s body. His wallet and checkbook were also

missing. The victim’s pickup tru ck wa s later fo und a t a mo tel park ing lot a fter his

body had been discov ered. T he ke ys to the vehicle were located on top of a locker

at the Mouse’s Ear West where the Defendant stated she had placed them. When

initially interviewed by a T.B.I. agent, the Defendant denied having any knowledge

of the victim ’s death.




                                           12
             The controlling principle of law on this issue is succinctly stated by the

majority of a panel of our court in State v. Jame s Clayton You ng, Jr., C.C.A. No.

01C01-9605-CC-00208, Rutherford County (Tenn. Crim. App., Nashville, May 22,

1998). It rea ds as follow s:


      In our view, a jury is entitled to accept tha t portion of the d efend ant’s
      pre-trial statement or testimony that it deemed credible and reject that
      which it deeme d to be fals e. State v. Gilbert, 612 S.W .2d 188, 190
      (Tenn. Crim. App. 1980)(citing Batey v. S tate, 527 S.W.2d 148 (Tenn.
      Crim. App. 19 75)). ‘In confessions or statements of the kind volunta rily
      made by the accuse d the jury must take the whole of this statement or
      confession and weigh it as they weigh the other evidence, rejecting
      some part if they desire to do so and giving credit to other parts of the
      statement if they have a sufficient reas on to do so u nder all the
      evidence as it is intro duce d.’ Espitia v. State, 288 S.W.2d 731, 733
      (Tenn. 1956). This quote from the Espitia opinio n is consistent with the
      general rule:

             It is for the jury to s ay what w eight s hall be given to the
             several parts of the statemen t, for they may well believe
             that part which charges the prisoner, and reject that which
             tends to exculpate him.

      20 Am . Jur., Evidence, § 488 (1 939 & S upp. 19 66); see 29A Am. Jur.
      2d, Evidence, § 1431 (199 4).


Young, C.C.A. No. 01C01-9605-CC-00208, slip op. at 17.



      In light of the majority opinion in Clayton, the evid ence was s uficien t to sus tain

the conviction of felony m urder.



      This issu e is withou t merit.



      The second issue presented for review is that the defendant was d enied a fair

trial by the introduction of her husband’s testimony and his prior statements and by

the circumstances surrounding his interrogation.



                                            13
      Statements attributed to Brian Cochran or made by him came into evidence

three times . Spec ial Age nt T. J. J ordan testified that he took a statement from

Cochran in which Cochran implicated the defendant. Although the defendant did not

object to that testimony, the trial court instructed the jury that that statement was not

to be con sidered as eviden ce of guilt.



      Polygraph exam iner M alcom b Elrod testified that Cochran failed the polygraph

examination. Cochran then stated that his wife told him about killing this ind ividual.

She also told him that she had described how she had shot him and where she had

obtained the g un. The de fendant did no t object to this testimony.



      Finally, Brian Cochran testified that his ex-wife, the defendant, told him she

had a set of keys from a truck and that she needed to talk to him. She also to ld him

someone had been shot. The defendant objected to Cochran’s testimony, and he

was not allowe d to testify further. The trial court instructed the jury to disregard the

testimony.



      The testimony of Special Agent Jordan and polygraph examiner, Elrod, was

clearly inadmissible. However, error may not be predicated upon a ruling admitting

evidence unless a substan tial right of a party wa s affec ted an d unle ss a tim ely

objection was made. Rule 103(a), Tenn. R. Evid. No objection was made by the

defendant to this testimony. Furthermore, the evidence was cumulative and even

had it been admitted over the objection of the defen dant, th en the error w ould have

been harmless.




                                           14
       The testimony of Brian Cochran at the trial was not incriminating to the

defend ant, and, therefore, it did not affect a substantial right of the defendant.

Furthermore, the trial court instructed the jury to disregard the evidence.



       This issu e is withou t merit.



       The final issue presented for review is whether the trial court erred in failing

to require the State to elect between first degree felony murder and premeditated

first degree murde r at the clos e of its proo f.



       The defendant argues that because only one person had been killed, the Sta te

was required to elect whether it was seeking a conviction for first degree felony

murder or for first degree premeditated murder.         Although the defendant may

demand that the State elect between factual occurre nces in a n indictm ent, the S tate

is not requ ired to elec t betwee n sepa rate cha rges in the same indictme nt. State v.

Henley, 774 S.W .2d 908, 916 (Tenn. 198 9).



       This issu e is withou t merit.



       For the reasons hereinabove set forth, the judgment of the trial cou rt is

affirmed.


                                   ___________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:




                                             15
____________________________________
JERRY L. SMITH, Judge


____________________________________
WILLIAM B. ACREE, JR., Special Judge




                               16
