FILED

November 3, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

FEBRUARY 1998 SESSION

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9708-CR-00353

)

Appellee, ) McMINN COUNTY

)

V. )

) HONORABLE R. STEVEN BEBB,

ELISA COCHRAN, ) JUDGE

)

Appellant. ) (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

(Appeal) 425 Fifth Avenue North

Second Floor, Cordell Hull Building

THOMAS E. KIMBALL Nashville, TN 37243-0493

Assistant Public Defender

110 1⁄2 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
2

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 defendant presents 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 premeditated first degree murder at the close of its proof.

The judgment 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 County Sheriff’s Department in the investigation. Special Agent

T. J. Jordan of the T.B.I., was the primary investigating officer.

Special Agent Jordan testified that the body was found on an old road bed

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

accessible 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
3

evidence suggested that the victim had been shot where he was found. One live

round of ammo was found at the scene.

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

Benjamin 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 identity of the victim, the investigators developed several

leads. From the victim’s bank records , they knew that he went to an ATM in

Knoxville 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 Kingston 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.
4

 A waitress from Hooter’s Restaurant testified that she sold the victim a carryout order of crab legs on April 15th. Two of the dancers observed the defendant

eating seafood that night.

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

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

Knoxville. Another dancer said that on April 15th, the victim asked her to go

shopping with him. 

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

at the Mouse’s Ear West on April 15, 1995. She claimed she left at 2:00 a.m. and

drove her boyfriend’s truck to his house where she spent the night. Her boyfriend’s

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

Cochran, had been to the Mouse’s Ear about three weeks prior to April 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 about the murder.

Mr. Jordan interviewed Brian Cochran on May 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

deception or was untruthful in his responses to three relevant questions. Those
5

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

man; and (3) do you know for sure who shot that man. The 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 polygraph 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 wife, Elisa, had told him about killing this

individual. 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 of ammo 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 May 12, 1995. She gave the following statement:

On Saturday the 15th of April, 1995, I met the guy in the Mouse’s

Ear while I was working. I don’t remember his name. He told me he

had taken some of the girls shopping 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 early

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 me about having sex with him. He
6

wanted to go to a teller machine. I don’t know why he got the money.

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 him no. I told him I lived alone. We

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, between my legs, and my breasts. I let him, because I was

scared. He played with himself too.

Once we got into McMinn County 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 was 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 shot him. I shot him in the head. The gun got hung up

after I shot him. I only shot him once. After he was shot, he fell on his

face. I left and went to my mother’s house in Englewood. I got my

brother’s car and went back. It was daylight then. I was by myself.

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 threw 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 remember where I threw his stuff out. His keys were

in my truck and they have a knife on them. I don’t know where his truck

is at. The keys are on top of a locker 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 remember how much money it was. I gave it to Burch. He

doesn’t know where I got it. I told Burch about it last night after Deputy

Joey Guy came to see him. I told him I had to do it, but didn’t give him

any details.

I had taken the gun from Burch’s. I got it, because someone tried

to get in my truck after work one night. I was leaving work and

someone flashed their lights at me and I pulled over. They came up to

me, forced a kiss on me, and tried to get me to go with them. That’s

why I had the gun.

The guy I shot was wearing a suit 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 people wouldn’t

understand. I knew I would have to go to jail.

The defendant was arrested after giving this statement. 
7

There was evidence which corroborated part of the defendant’s statement.

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

where the defendant said they would be. Eby Garwood and Burch Russell testified

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

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

rounds with aluminum casings in the clip. When he retrieved the gun, there were

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

corroborated the defendant’s testimony that she took the gun from Russell’s house.

There was evidence which refuted part of the defendant’s statement.

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

employee to escort the dancers to their vehicles after work. This 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 $200.00 taken from the victim to him. 

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 consider it.

The defense offered no evidence.
8

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 defendant was indicted for especially

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 under five hundred dollars ($500.00), 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 whether the evidence was sufficient to

convict the defendant of first degree felony 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. App. 1990), 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 by the evidence are

resolved by the trier of fact, not this Court. 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. Hatchett, 560 S.W.2d 627, 630. (Tenn. 1978). Since a verdict

of guilty removes the presumption of innocence and replaces it with a presumption
9

of guilty, the accused has the burden in this Court of illustrating why the evidence is

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

913, 914 (Tenn. 1982). This Court will not disturb a verdict of guilty due to the

sufficiency of the evidence unless the facts contained in the record and any

inferences which may be drawn from the facts are insufficient, as a matter of law, for

a rational trier of fact to find the accused guilty beyond a reasonable doubt. Id.

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

principle 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 reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

99 L.Ed. 2d 2781 (1979); State v. Duncan, 698 S.W.2d 63, 67 (Tenn.1985).

The State established that Benjam in Smith had been shot to death in a remote

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 robbery. T.C.A. §39-13-202 (a)(2). In order to obtain a conviction for especially

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

property from the person of another by violence or putting the person in fear, (2)
10

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

injury. T.C.A. §39-13-401 (1991), §39-13-403 (a).

It is a long-standing tenet 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. App. 1988). In other words, for a murder to be done in “perpetration

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

with the felony and not be separate, distinct, and independent from it.” Farmer v.

State, 201 Tenn. 107, 296 S.W.2d 879, 883 (1956) (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

another after killing him and appropriated it to his own use is sufficient to sustain a

conviction of murder in an attempt to commit a robbery, though no previous purpose

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

he afterwards voluntarily did. Mellendore 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 money. However, the defendant’s statement was that the money was in

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

The defendant relies upon the unreported case of State v. Dunn, (No. 03S01-

9211-CR-00104, S.Ct. 1993). In that case, the Supreme Court found that the
11

evidence was inadequate to support the conviction of the defendant for felony

murder.

In Dunn, the evidence established that the badly 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 evening and into

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

drinking beer and ingesting prescription drugs. Icenhour was eventually dropped off

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

found, she was naked below the waist. Bruises were found around the neck. 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

murder occurred during the commission or attempt to commit a rape. 

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 attempt to commit a rape. Although there was circumstantial

evidence of sexual 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 reasonable 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
12

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

the second degree.

However, absent the portions of Defendant’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 company of the Defendant after she got off work

from the Mouse’s Ear West in the early morning hours of April 16, 1995. At

approximately 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 money was withdrawn. The Defendant shot 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 McMinn County

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

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

the victim were turned out as if someone had reached in to empty the contents. A

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

missing. The victim’s pickup truck was later found at a motel parking lot after his

body had been discovered. The keys 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. 
13

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

majority of a panel of our court in State v. James Clayton Young, Jr., C.C.A. No.

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

1998). It reads as follows: 

In our view, a jury is entitled to accept that portion of the defendant’s

pre-trial statement or testimony that it deemed credible and reject that

which it deemed to be false. State v. Gilbert, 612 S.W .2d 188, 190

(Tenn. Crim. App. 1980)(citing Batey v. State, 527 S.W.2d 148 (Tenn.

Crim. App. 1975)). ‘In confessions or statements of the kind voluntarily

made by the accused 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 reason to do so under all the

evidence as it is introduced.’ Espitia v. State, 288 S.W.2d 731, 733

(Tenn. 1956). This quote from the Espitia opinion is consistent with the

general rule:

It is for the jury to say what weight shall be given to the

several parts of the statement, for they may well believe

that part which charges the prisoner, and reject that which

tends to exculpate him.

20 Am. Jur., Evidence, § 488 (1939 & Supp. 1966); see 29A Am. Jur.

2d, Evidence, § 1431 (1994).

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

In light of the majority opinion in Clayton, the evidence was suficient to sustain

the conviction of felony m urder.

This issue is without merit. 

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.
14

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 failedthe 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.
15

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.

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 murder at the close of its proof.

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

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 occurrences in an indictment, the State

is not required to elect between separate charges in the same indictment. State v.

Henley, 774 S.W.2d 908, 916 (Tenn. 1989).

This issue is without merit.

For the reasons hereinabove set forth, the judgment of the trial court is

affirmed.

___________________________________

THOMAS T. W OODALL, Judge

CONCUR:
16

____________________________________

JERRY L. SMITH, Judge 

____________________________________

WILLIAM B. ACREE, JR., Special Judge