### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs D ecember

18, 2001
ELISA COCHRAN v. S TATE OF TENNES SEE
Direct Appeal from the Criminal Court for Mc Minn 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 judgmentof the post-conviction court denying relief. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

R OBERT W. W EDEMEYER , J., delivered the opinion of the court, in which J OSEP H M. T IPT ON and T HOM AS T. W OODALL , JJ., joined. Cynthia M. Fort, Nashville, Tennessee, for the Appellant, Elisa Cochran.

Paul G. Summers, Attorney Generaland Reporter; J. Ross Dyer, Assistant Attorney General; Jerry N. Estes, Dis trict Atto

rney Ge neral; 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 pr ison. On a

ppeal, th is Court af

firmed th e convic ti on. S ee 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 peti tion 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 “pr ior to tria l my attorney and I o nly met four times to discuss my case.” She also states that during the period o f time af te r her arrest and prior to trial, she was suffe ring from severe emotional and mental stress, that her attorney did not request a mental evaluation for her , and that-2-

an eva luation was not performed prior to trial. She also complains that her attorney did no t investiga te her fam

ily’s ment

al health history a nd that she

had extr eme difficulty communicating with her trial attorney.

In a memorandum supporting the petition for post-conv iction relief, the Petitioner all eges 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 c ontact with the Defendan t’ s family members caused the attorney confusion regar ding 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 limite d contac t with his client, he failed to “recognize and appr eciate” 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 c laims t hat her t rial atto rney wa s ineffe ctive fo

r failing to object to testimony from a witness at tr ial who re

peated “inculpat

ory state ments” ma

de by the Petitioner’s husband. In addition, the Petitione r compl ains that her trial attorney failed to object to testimony at trial pertaining to the fact that her husband had failed a p olygraph test. The Petitioner further alleges that her

trial atto rney wa s ineffe ctive be cause 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 atto rney fa iled to re quest a

curative instruction regarding this issue. The trial court conducted a hearing on the petition and denie d post-conviction relief.

II. Analysis

In order to obtain post-conviction relief, a petitioner must show that his or her conviction or sentenc e is void or voidable because of the abridgme nt of a constitutional right. Tenn. Code Ann. § 40-30-203. The petitioner bears the burden of proving factual allega

tions in the petition forpostconviction 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; howeve r, we must ac cord the se factual fin dings a pr esumption of correctness, which is overcome only when a preponderance of the evidence is contrary to the post-c onviction court’s factual findings. Fields v. State , 40 S.W.3d 450, 456 (T enn. 2 001) ( citi ng 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 def icient or whether that deficiency

was pr ej ud ic ia l, ar e s ub

je ct to a p ur el y de novo review by this Court, with no presumption of correctness. Id. at 457.

The right of a criminally accused to representation is guar anteed by both t he Sixth Amendment

to the United States Constitution and Article I, Section 9 of the Tenne ssee Constitution. Statev. Burns , 6 S.W.3d 453, 461 (Tenn. 1 999); Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). This right to representation includes the right to “re asonably ef fective” assistance. Burns , 6 S.W.3d at 461.-3-

In reviewing a claim of ineffective assistance of counsel, this Court must determine whether the advice given

or services rendered by

the attorney a

re within the range of competence demanded of attorneys in criminal ca ses. Baxter , 523 S.W.2d at 936. To prevail on a claim of ineff ective assistance of

counsel, a petitioner must sho w that “c ounsel’srepres entation fell below an objective standardof reasonableness,” Strickland v. Washington , 466 U.S. 668, 688 ( 1984), and that t his performance

prejudiced the defense, resulting in a f ailure to produce a reliable res ul t, id. at 687 ; Cooper v. State , 849 S.W.2d 744, 747 (Tenn. 1993).

When evaluating an ineffective a ssis tance o f coun sel cl aim, t he revi ewing c ourt s houl d jud ge the attorney’s pe

rformance within the context of the case as a whole, taking into account all relevant circumst ances. Strickland , 466 U.S. at 690 ; State v. Mitchell , 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court must evalua te the ques tionable conduct from the attorney ’s perspective at the time. Strickland , 466 U.S. at 690; Cooper , 849 S.W.2d a t 746; Hellard v. State , 629 S.W.2d 4, 9 (Tenn. 1982). In doing so, the revie wing court must be highl y defer ential and “should indulge a strong presumpt

ion that c ounsel’sconduct f alls within th e wide range of
reasona ble professional assistance.” Burns , 6 S.W.3d at 462. Counsel should not be deemed to have been ineffective merely

because a different proce dure or strategy

might have produced a differe nt result. Williams v. Sta

te , 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 concerne d about her daughter’s phy sical and emotiona

l state, a nd she sta

ted that sh

e had expr

essed thi s concer

n to the Pet

itio ner’s tr

ia l counsel prior to trial. The Petitioner’s mother also testified that she asked trial counsel for help in having the Petitio ner hospi talized fo r an eva luation a nd that tri al counse

l said he could not do it. The Petitioner’s mother stated that she and the Petition er’s fa th er hired a psy chiatrist to treat the Petitioner, but this was done after t he 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 time s during

the two mon

ths befor e the tria l.

Trial counsel testified that he had been practicing law since 1983 a nd that he was an assistant public defender when he repre sented the Petitioner. His testimonyindicated that he was experienced in criminal matters and had handled numerous other murder case s. He stated that in this case, he had the assistance of

“every body in the office .” He characterized the Petitioner as “manipulative,” and stated that he had difficulty g etting her to come to his office after she ma de bond. Trial counsel did notremember the Petitioner ’s family expressing concerns about the Petitioner’s mental health. Trial counsel indicate d that he h ad no rea son to beli eve that a mental e

valuatio n of the Pe

titi onerwas needed. Trial counsel cited “trial strategy” as the reason that he did not object to the testimony of witnesses concerning a poly graph and statements by

the Petitioner’s husband.

In its f indi ngs 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 husba

nd an d test

imony about a po ly gra

ph exa m ination taken by the Petitioner’s husband-4-

were “a matter

of tri al str ategy and [the court felt] like that does not rise to the level of ineffective assistance of counsel.”

On direc t appeal , this Court address ed these

issues as follows: Th e second issue presented for review is that the def endant was denied a fair trial by

the introduction of her

husband’s testimony and his prior sta

tements a

nd by the circumstance s surroun ding his interrogation.

Statemen ts attributed to Bri an Cochr an or mad

e 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 defenda nt. Although the def

endant di d no t o bj ec t t o t ha t t es ti mo ny, the trial cou

rt instructed the ju

ry that that s tate ment was not to be consider ed as evi dence o f guilt. Polygraph

examiner Malcomb Elrod testified that Cochran failed the polygra ph examinatio n. Cochra

n then sta ted that h is wife to ld him about killing this individual. She also told him that she had described how she had shot him and where she had obtained t h e gun. The de fe nd an t d id no t o bj ec t t o t hi s t es ti mo ny. Finally, Br

ian Cochran testified that his ex-wife, the defe ndant, tol d him she had a set of key s from a truck and that s he need

ed to talk to him. She also told him someo n e had been shot. The defendant objectedto Cochra

n’s test imony , and he was not allowed to testify further. The trial court instructed the jury to disregard the

te st im on y.
The testimony

of Specia

l Ag ent Jordan and polygr aph examiner, Elrod, wa s clearly ina

dmissible. However, error may not be predicated

upon a ruling admitting evidenc e unless a substantial right of a party was aff ected a nd unless a

timely objectio n was mad

e. Rule 103(a), Tenn. R. E

vid. No obj ection wa s made by the defe ndant to this te st im on y. Furthermore, the evidence was c umulative and even had it been admitted over the objection of the defendant, then the
error w ould have

been ha rmless.

The testimony of

Brian Cochran at the

trial wa s not incr

iminating to the defendant, and, therefore, it did not affe ct a substantial right of the defenda nt. Furthermore, the trial court instructed the jury to disregar d the evidence.

This issue

is without me

rit.-5-

Elisa Cochran , 1998 WL 783343, at *7.

In our view , this Court

on direc t appeal

e ffe ctively

ruled tha t any error p ertainin g to thes e issues was harmless. Therefore, the Petitioner has failed to satisfy the second prong of Strickland , that any ineff ective performance by

counsel prejudiced

the defense, resulting in a failure to produc e a r el iable result. Strickland , 466 U.S. at 687. The Petitioner’s claim that her trial counsel was ineffective for fail

ing to obj ect to ce

rtain portions of the testimony of Special Ag ent T. J. Jordan of the TBI, poly

graph examiner Malcomb Elrod, and the Petitioner’s former husba nd, Brian Cochran, is without me

rit.

With regar

d to Petition

er’s cla imthat her trial attorney

was ineffective

because he faile d to reques t a men tal ev aluat ion fo r her, t he pos t-con victi on cou rt st ated t he fol lowi ng:

it all comes down to whether he was ineffective for failure to ask for
a mental evaluation. I’ve c omplained for ye ars about lawyers c oming in here in every case w antin g a mental evaluation and

I’ve made them state obj ective reasons, things that they ’ve seen or feel from
conve rsati ons or thin gs they have f ound in an investigation of one’s background

that would require a mental evaluation, and i n this particular case, it makes no diffe

rence t o me wheth

er she to ld him or didn’ttell him about this prior admission, which I think h ad to do withsome sort of drug problem , I don’t think that was enough of a redflag 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 particu lar infli ction [sic]. She was a ble to com

municate 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 perfor mance w as not def

icient co ncernin g this issu e is prope r. This iss ue is also

without me

rit.

Accord ingly , we AFF

IRM the judgme

nt of the p ost-conviction court.



### _________________

_______________ ROBERT W. WEDEMEYER, JUDGE