         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 18, 2001

                   ELISA COCHRAN v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for McMinn County
                            No. 00-396    R. Steven Bebb, Judge



                                  No. E2000-02795-CCA-R3-PC
                                        January 29, 2002

The Petitioner was convicted of felony murder and sentenced to life in prison. This Court affirmed
the conviction on direct appeal. The Petitioner subsequently filed a petition for post-conviction
relief, alleging that her trial attorney was ineffective. The post-conviction court denied relief, and
this appeal ensued. Finding no error, we affirm the judgment of the post-conviction court denying
relief.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
THOMAS T. WOODALL , JJ., joined.

Cynthia M. Fort, Nashville, Tennessee, for the Appellant, Elisa Cochran.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; Jerry
N. Estes, District Attorney General; and William A. Reedy, Assistant District Attorney General, for
the Appellee, State of Tennessee.

                                             OPINION

                                           I. Background

         The Petitioner was convicted in 1996 of felony murder and is currently serving a sentence
of life in prison. On appeal, this Court affirmed the conviction. See State v. Elisa Cochran, No.
03C01-9708-CR-00353, 1998 WL 783343 (Tenn. Crim. App., Knoxville, Nov. 3, 1998), perm app.
denied (Tenn. May 10, 1999).

         The Petitioner filed a timely petition for post-conviction relief, alleging that she received
ineffective assistance of counsel at trial. Specifically she states in her petition for post-conviction
relief that “prior to trial my attorney and I only met four times to discuss my case.” She also states
that during the period of time after her arrest and prior to trial, she was suffering from severe
emotional and mental stress, that her attorney did not request a mental evaluation for her, and that
an evaluation was not performed prior to trial. She also complains that her attorney did not
investigate her family’s mental health history and that she had extreme difficulty communicating
with her trial attorney.

         In a memorandum supporting the petition for post-conviction relief, the Petitioner alleges that
her trial attorney’s “inexcusable lack of contact with her resulted in ineffective representation of her
at trial.” The Petitioner also asserts that trial counsel’s “excessive contact with the Defendant’s
family members caused the attorney confusion regarding the facts of the case, impaired his ability
to properly represent her and violated her attorney/client privilege.” The memorandum alleges that
because the trial attorney had limited contact with his client, he failed to “recognize and appreciate”
the Petitioner’s impaired mental and emotional capacities. The Petitioner avers that had trial counsel
investigated the Petitioner’s “apparent impairment,” he would have discovered a “family history of
mental illness and incapacity.”

         The Petitioner also claims that her trial attorney was ineffective for failing to object to
testimony from a witness at trial who repeated “inculpatory statements” made by the Petitioner’s
husband. In addition, the Petitioner complains that her trial attorney failed to object to testimony
at trial pertaining to the fact that her husband had failed a polygraph test. The Petitioner further
alleges that her trial attorney was ineffective because he failed to request that the testimony
pertaining to the husband’s statements and any reference to a polygraph be “stricken.” Finally, the
Petitioner alleges that her trial attorney failed to request a curative instruction regarding this issue.
The trial court conducted a hearing on the petition and denied post-conviction relief.

                                             II. Analysis

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tenn. Code Ann.
§ 40-30-203. The petitioner bears the burden of proving factual allegations in the petition for post-
conviction relief by clear and convincing evidence. Id. § 40-30-210(f). A post-conviction court’s
factual findings are subject to a de novo review by this Court; however, we must accord these factual
findings a presumption of correctness, which is overcome only when a preponderance of the
evidence is contrary to the post-conviction court’s factual findings. Fields v. State, 40 S.W.3d 450,
456 (Tenn. 2001) (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). A post-conviction
court’s conclusions of law, such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial, are subject to a purely de novo review by this Court, with no presumption
of correctness. Id. at 457.

        The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and Article I, Section 9 of the Tennessee Constitution.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975).
This right to representation includes the right to “reasonably effective” assistance. Burns, 6 S.W.3d
at 461.



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        In reviewing a claim of ineffective assistance of counsel, this Court must determine whether
the advice given or services rendered by the attorney are within the range of competence demanded
of attorneys in criminal cases. Baxter, 523 S.W.2d at 936. To prevail on a claim of ineffective
assistance of counsel, a petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984), and that this
performance prejudiced the defense, resulting in a failure to produce a reliable result, id. at 687;
Cooper v. State, 849 S.W.2d 744, 747 (Tenn. 1993).

        When evaluating an ineffective assistance of counsel claim, the reviewing court should judge
the attorney’s performance within the context of the case as a whole, taking into account all relevant
circumstances. Strickland, 466 U.S. at 690; State v. Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim.
App. 1988). The reviewing court must evaluate the questionable conduct from the attorney’s
perspective at the time. Strickland, 466 U.S. at 690; Cooper, 849 S.W.2d at 746; Hellard v. State,
629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the reviewing court must be highly deferential and
“should indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Burns, 6 S.W.3d at 462. Counsel should not be deemed to have
been ineffective merely because a different procedure or strategy might have produced a different
result. Williams v. State, 599 S.W.2d 276, 279-80 (Tenn. Crim. App. 1980).

         The post-conviction court heard the testimony of the Petitioner’s mother, the Petitioner, and
trial counsel. The Petitioner’s mother testified that she was concerned about her daughter’s physical
and emotional state, and she stated that she had expressed this concern to the Petitioner’s trial
counsel prior to trial. The Petitioner’s mother also testified that she asked trial counsel for help in
having the Petitioner hospitalized for an evaluation and that trial counsel said he could not do it. The
Petitioner’s mother stated that she and the Petitioner’s father hired a psychiatrist to treat the
Petitioner, but this was done after the trial. The Petitioner testified that her trial counsel did not
believe her and had his own theory about the crime. She testified that she met with her trial counsel
three or four times during the two months before the trial.

        Trial counsel testified that he had been practicing law since 1983 and that he was an assistant
public defender when he represented the Petitioner. His testimony indicated that he was experienced
in criminal matters and had handled numerous other murder cases. He stated that in this case, he had
the assistance of “everybody in the office.” He characterized the Petitioner as “manipulative,” and
stated that he had difficulty getting her to come to his office after she made bond. Trial counsel did
not remember the Petitioner’s family expressing concerns about the Petitioner’s mental health. Trial
counsel indicated that he had no reason to believe that a mental evaluation of the Petitioner was
needed. Trial counsel cited “trial strategy” as the reason that he did not object to the testimony of
witnesses concerning a polygraph and statements by the Petitioner’s husband.

        In its findings of fact and conclusions of law, the post-conviction court determined that trial
counsel’s handling of the issues pertaining to testimony from witnesses as to statements made by the
Petitioner’s husband and testimony about a polygraph examination taken by the Petitioner’s husband



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were “a matter of trial strategy and [the court felt] like that does not rise to the level of ineffective
assistance of counsel.”

        On direct appeal, this Court addressed these issues as follows:
               The second issue presented for review is that the defendant was
               denied a fair trial by the introduction of her husband’s testimony and
               his prior statements and by the circumstances surrounding his
               interrogation.

                Statements attributed to Brian Cochran or made by him came into
                evidence three times. Special Agent T.J. Jordan 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
                considered as evidence of guilt.

                Polygraph examiner Malcomb Elrod testified that Cochran failed the
                polygraph examination. Cochran then stated that his wife told him
                about killing this individual. She also told him that she had described
                how she had shot him and where she had obtained the gun. The
                defendant did not 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 told him someone had been shot. The defendant
                objected to Cochran’s testimony, and he was not allowed 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 substantial right
                of a party was affected and unless a timely 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 defendant, then the
                error would have been harmless.

                The testimony of Brian Cochran at the trial was not incriminating to
                the defendant, and, therefore, it did not affect a substantial right of the
                defendant. Furthermore, the trial court instructed the jury to disregard
                the evidence.

                This issue is without merit.


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Elisa Cochran, 1998 WL 783343, at *7.

        In our view, this Court on direct appeal effectively ruled that any error pertaining to these
issues was harmless. Therefore, the Petitioner has failed to satisfy the second prong of Strickland,
that any ineffective performance by counsel prejudiced the defense, resulting in a failure to produce
a reliable result. Strickland, 466 U.S. at 687. The Petitioner’s claim that her trial counsel was
ineffective for failing to object to certain portions of the testimony of Special Agent T. J. Jordan of
the TBI, polygraph examiner Malcomb Elrod, and the Petitioner’s former husband, Brian Cochran,
is without merit.

        With regard to Petitioner’s claim that her trial attorney was ineffective because he failed to
request a mental evaluation for her, the post-conviction court stated the following:
               it all comes down to whether he was ineffective for failure to ask for
               a mental evaluation. I’ve complained for years about lawyers coming
               in here in every case wanting a mental evaluation and I’ve made them
               state objective reasons, things that they’ve seen or feel from
               conversations or things they have found in an investigation of one’s
               background that would require a mental evaluation, and in this
               particular case, it makes no difference to me whether she told him or
               didn’t tell him about this prior admission, which I think had to do
               with some sort of drug problem, I don’t think that was enough of a
               red flag in my mind to require him to ask for a mental evaluation, or
               even the fact that he knew that someone in the family suffered from
               that particular infliction [sic]. She was able to communicate with him
               and he was able to communicate with her.
After a de novo review, we conclude that the post-conviction court’s determination that counsel’s
performance was not deficient concerning this issue is proper. This issue is also without merit.

       Accordingly, we AFFIRM the judgment of the post-conviction court.



                                               ________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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