# FILED
November 3, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE FEBRUA RY 199 8 SESSI ON
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. IRVI NE, JR. JOHN KNOX WALKUP Eldridge, Irv ine & Hendricks Attorney General& Reporter 606 W. Main St., Suite 350 P. O. Box 84 ELIZABETH B.MARNEY Knoxvill e, TN 37901-0084 Assistant Attorney General (App eal) 425 Fifth Avenu e North Second Floor, Cordel l Hull Bui lding THOMAS E. KIMBALL Nashvill e, TN 37243-0493 Assistant Public Defender 110 1⁄2 Washington Avenu e, N.E. JERRY N. ESTES Athens, TN 37303 Distri ct Attor ney General (Trial) SANDRA DONAGHY Assistant Distri ct Attor ney 10th Judicial Dist rict Washington Avenue Athens, TN 37303

OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE2 

# OPINION

The defendant, El isa Cochran, was convicted of felony

murder and recei ved
a mandatory sent ence o f lif e imprisonment. This is an appealas of ri ght of that convicti on.

The defend ant pres ents three iss ues for rev iew: (1) whetherthe evidence was insuffi cientto convic

t her of f irst degr

ee-felony

murder; (2) whether she was denied
a fair t rial by the int roduction of her husband’s testimony, and h is prior statements, and by the cir

cumstances surroundi ng his inter rog ation; and (3) whether the tri al court erred in faili ng to requir e the state to elect bet ween 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 are a of Mc Mi nn County. The Tennessee Bureau of Investi gation assisted the McMinn Coun ty Sheriff’ s Department in t he investi gation. Speci al 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 ninet y feet f rom county road 429. The old road bed was
acce ssible only by

foot. The body was l aying i n a face dow n positi on and was fully clothed. It was in an extreme state of decompositi on and was total ly unrecogni zable. The victi m had been killed by a singl e gunshot wound to his head. The bullet had enter ed thevi cti m n ear the his left eye and exited f rom the back of hi s head. The3

evidence sugge ste d that the victim had bee n shot whe re he was fou nd. One live round of ammo was found at t he scene.

From dental records and finger prints, it was determined that t he victi m was Benja min Smith. Mr. Smith graduated f rom the University of Tennessee i n 1995 and worked at Marti n Marietta in Portsmouth, Ohio. His parents li ved in Knoxvi lle, and he was visit ing them on Easter weekend, 1995. Easter Day was April 1 6. When the victi m did not retu rn, his par ents reported him missing.

After learning the iden tity of the victim, the investigators deve lop ed several leads. From the victim’s bank records , t hey kn ew tha t he we nt to an ATM in Knox ville at 2:45 a.m. , on April16, 1995, and wi thdrew$200.00. From thevideo at the ATM machine, they knew t hat someone was in the driver’s seat of hi s truck at thattime. They learned f rom his credi t card recor ds thathe had made a purchase thatevening at Hooter’s Restaur ant in Knoxvi lle. Perhaps more important ly, th e investi gation revealed that the victim fr equen ted stri p clubs in t he Knoxvill e area. Several clubs were contacted , and the i nvestigators learned t hat the victi m had been at the Mouse’s Ear West on Kingsto n Pike in Knoxv ille on Easter weekend. The investigators then inquired as to whether any of the dancers at t he Mouse’s Ear lived in McMinn County. They f ound tha t t he defendant, Elisa Cochran, a dancer, l ived there.

The manager and three dancers from the Mouse’s Ear testif ied. The manager testif ied that the defendant worked on the night of April15th from 5:50 p.m. to 12:56
a.m.. The three dancers knew t he victi m, and theyall saw hi m at the Mouse’s Ear on Ap ri l 15th. Two o f t he da ncer s saw th e def

enda nt talk ing wit h th e vi cti m.4 A waitress f rom Hooter’ s Restau ran t t est if ied that sh e so ld t he v ict im acarryout order of crab legs on April 15th. Tw o of the dance rs observed thedefendant eating se afood th at night.

One of the dancers testifi ed that she had known t he victi m for about two yea rs and that she and anot her dancer had gone shoppi ng with the victi m in d owntow n Knoxvill e. Anothe r dance r said that on Apr il 15th , the vi ctim asked her to go shopp ing with him
. Agent Jordan int erviewed t he 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 t ruck to his hou se whe re she sp ent the nig ht. Her b oyfrien d’s
name was Burch Russe ll. She also tol d the invest igator t hat 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 beco me jealous over a customer watc hing her dance. She said t hat her ex-husband owned a nine mil li me ter handgun. She told the i nvestigator that she d id not know anything abo ut the murde r.

Mr. Jordan interviewed Bri an Coch ran on Ma y 1 2, 1995. He and th e defendanthad divorced f our days earl ier. He was al so given a po lygra ph examination.

The polygraph examiner testified wit hout object ion that Cochran practi ced d ecep tio n or was untruthful i n his responses to three rel evant questions. Those5

questionswere (1) were y ou present when t he 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 foll owing inst ructions after t he polygraph examiner testified: I think that I should instruct the jury at this

time that the polygr

aph has not been recognized in Tennessee courts a s relia ble enough to be admitted into evidence as probati ve of a witness ’ trut hfulness or untruthfulness. The polyg ra ph is used by l aw enforcement as an investigative tool. This evidence is not admitted and should not reflect on the credibili ty of any wit ness.
After Cochran was told that he fail ed the test, he tol d Speci al Agent Jo rdan and the polygr

aph examine r th at 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 indi vidual and where she got t he gun. No object ion was made by the defense to that testimony nor to simi lar test imony from SpecialAgent Jordan.

With the informati on he received from Brian Cochran as to the l ocation of the gun, Special Agent J ordan went to t he residence of Eby Garwood. Mr. Garwood produced a nine mill imeter semi-aut omatic handgun which was manufactured by Glock. Agent Jordan unl oaded the weapon and found a round o f amm o similar to the round found at the murder scene.

The defendantwas brought to the McMinn County Just ice Center at 3:30 a.m ., on Ma y 12, 199 5. She g ave the fo llowing sta temen t:

On Saturdaythe 15th of April, 1995, I met th e guy in the Mo use’s Ear whi le I was wor kin g. I don’t rememb er h is name . He tol d 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 t hink I got off e arly thatnight. It was a sl ow night. When I walked ou tsi de I went to my tru ck and he wa s hi din g in my t ruc k an d he had a gun. He mad e me drive to his

truck. We got in his

truck a nd we drove around for awhi le. I was dr ivi ng hi s tr uck. He talked to m e abou t having se x with him. He6 wanted to go to a tell er machine. I don’t know why he got the m oney. I don’t remember whic h one we went to. I drove up to it and he got out to get the money. He stillhad the gun on him. I think. I don’t know why I didn’t drive of

f. I was scared. We went back to my truc k and we got in my truck and drove. He told me to drive to my house. He had ask ed me if I ha d a boyfri end and I told h im no. I told h im I lived alon e. W e headed straig ht to McMinn County . I did n’t tal k much, but he did. He told me I looked good and he touched me a nd st uff . Herub bed m y legs, betwee n my leg s, and m y breasts . I let him , because I was scared. He played with hi mself too. Once we got into Mc Minn Cou nty I t old him I had a live-in boyfri end and he got mad . Hetol d me to pull over. I pull ed 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 atme. I knew he was going to ki ll me. We just wal ked up the hil l and I was i n front of him. I heard somethi ng behind me and turned around. He stumbled or something. He was looking ar ound and I picked t he gu n u p off the ground. I don’t

know if he came towa rd me . I tol d hi m to l eav e me alone, and I just sh ot him. I sh ot him in th e head
. The gun got hung up after I shot hi m. I only s hot him once. After he wa s sho t, he fell o n his fac e. I l eft

and went

to my moth er’ s ho use in E ngl ewoo d. I got my brothe r’s car and went back. It was day light t hen . I was by m yself. When I gotback to him, I tookhis wall et and check book. The money he had gotten was in my truck. I took the stuff , because I di dn’t know what to do. I th rew the walle t a nd c heck book out thewin dow of my truckafter I pi cked it up from my mom’s. I drove around on backroads forawhile. I don’t re mem ber wh ere I thr ew his stuff ou t. His keys were in my truck and t hey 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 sincethat night. After I drove around I went to Burch’s. I don ’t rememb er h ow much mo ney i t was . I gave it toBurch . 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 thegun from Burch’s. I got i t, because someone tried to get in my truck after w ork one night. I w a s 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 f rom Ohio. I didn’t report i t because of my j ob . I knewpeop 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.7 T here 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 testifi ed thatGarwood took the Glock handgun to Russell’s house and that it rema ined there forabout a week. Garwood al so testi fied that when he left the gun, there we re fifteen rounds wi th a lumi num ca sings in the clip. W hen he retrieved the gun, there w ere two to f our bra ss c asi ngs in t he c li p in additi on t o th e al umin um ca sings . This corroborated the defendant ’s test imony that shetook th e gun from R usse ll’s house.

There was evidence which refuted part of the defendant’s s ta temen t. Employees of the Mouse’s Ear testi fied 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 test imony that t he victi m was waiting for he r in her truck. Burch Russell testif ied that he was not the defendant’ s b oyfri end . Rather, he allowed her to live at

his house because she was pregnant and because sh e had told him that t he child may be hi s child. He also refuted her testi mony thatshe 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 testif ied the defendant told him she had a set of keys from a truck and that she needed to tal k to him. She told him someone had been shot. Upo n objecti on by the defendant , the trial court dis allowed Bri an Cochran’s test imony and instructed the jury not to conside r it.

The defense offer

ed no evidence.8 The indictment was a three count indi ctment. In the fir st count, the defendant
was indicted for premeditated fir st degree murder. The jury found her guil ty of second degree murder. In t he second count, th e defendant was i ndicted for felony murder while i n the perpetr ation of especiall y aggravated robbery. She was found guilty as charged. I n the thir d c ount, t he de fenda nt was indicte d for es pecia lly aggravated robbery. The trial court had i nstructed t he jury t hat if it found the defendantguilty

of Count Two or of a lesser in cluded offense, then i t should not return a verdict

upon Count Three. However, the jury apparently

misunderstood t he trialcourt’s instruct ions and found the defendant guil ty of t he lesser included offense of theft unde r five hund red dollars ($500.0 0), a misdemeanor. The tri al court merged the secon d d egree murder convi ction i nto the fel ony murder convi ction and dismissed the t heft convi ction.

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 suffi ciency of the convict ing evidence , this Court does not reweigh or re-eval uate the evi den ce. Stat e v. Mat thews , 805 S.W.2d 776, 779 (Tenn. Crim. A pp. 199 0), Stat e v. Butler , 900 S.W.2d 305, 309 (Tenn. Cr im. App. 1994). Questions concer ning the credibil ity of the witnes ses, the weight and val ue to be given the evidence, as well as al l 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 verdi ct, approved by the tri al judge, credits the testi mony of the State’s wi tnesses and resolves all conflic ts of testimonyin favor of the theory

of the State. State v. H atchett , 560 S.W .2d 627 , 6 30. (Tenn. 1978). Since a verdict of guilty removes the presumpti on of innocence and r eplaces it

with a presu mption9

of guilty , the accused has the burden in this Court of ill ustrati ng why the eviden ce is insuffi cientto support t he 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 d ue to the sufficiency

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

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

of fact to find t he a cc used g uilty beyon d a reas onable doubt. Id
. Because the suffi ciency of the evidence i s the key i nquiry i n this case, the gu iding princip le is whether, after viewing t he evidence i n a light most favorabl e to the State, any rationaltrier

of f act cou ld h avefou nd t he es sent ialele ments of thecri me 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 establ ished that Benjam in Smith had be en sho t to death in a remo te
area in McMinn County. The State p laced the defendant with the v ictim on t he evening of his deat h. The State l ocated the murder weapo n and p laced it in t he h a nds of the defendant during t he time period the vict im was killed. Most signifi can tly, the State obtained a confessi on from the defend ant in whi ch she admitted that she s hot and kil led the vi ctim. Fi nally, the State pr oved that t he defendantdid not repo rt the deat h of the victi m and attempted to avoid prosecut ion.

I n order to obtain a convi ction fo r felony murder in thi s case, the State was required to prove (1) a reckl ess kill ing of anot her, (2) committed in t he perpetrat ion of a robbe ry. T.C.A . §39-13 -202 (a)(2 ). In order to obtain a conv iction forespe cially aggravated robbery, the State had to p rove (1) t he intenti onal or knowi ng theft of property from the person of another by viole nce or putti ng the person i n fear, (2)10

accomplished with a deadl y weapon, and (3) when the v ictim suf fers seri ous bodily injury. T.C.A. §39-1 3-401 (199 1), §39-13-40 3 (a).

It is a long- standi ng tene t of Tennessee law th at to sustain a convi ction fo r felony murder, the kil ling must have been done in pursuance of the felony and must not merely be collateral to t he unlawful act. State v. Severs , 759 S.W.2d 935, 938 (Tenn. C rim. 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 inti mate relati on and close connecti on with the felony a nd not b e sepa rate , d istinct, and indepen dent from it.” Farmer v. State , 201 Ten n. 107, 296 S .W.2d 879, 883 (1 956) (citi ng Wharton on Homicide , §126).

The State contends the defendant robbed the vi ctim of $200. 00 whi ch th e victim took from theATM machine. Evidence t hat a p erson took t he property of anoth er after killing him and a pprop riated it to his ow n use is sufficie nt to su stain a convicti on of murd er in an atte mpt to com mit a robbery, though no previous purpose to rob ap pears , since his act rais es a strong presumption that he intended to do what he afterw ards vo lu n tarily did. Mellend ore v. State , 191 S.W.2d 149, 142 (Tenn. 1945) (quoting Wharton on Homicide , 3d.Ed. 188). The evidence relied upo n by the State to establ ish the u nderlyi ng felony i s the admission of the defenda nt that sh e tookthis mon ey. How ever, the d efenda nt’s statem ent was that t he m oney w as in her truck and not on the pers on of the vi ctim when he was kil led.

The defendant rel ies 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 the11

evidence was in adeq uate to supp ort the c onvic tion of the defe ndant for felony murder.

In Dunn , the evi dence establi shed thatthe ba dly decomposed body of 16 year old Kathy Abl e was found in a cr eek 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 al so establi shed that on the day beforehand, the victim was seen kissi ng the defendant . For the r emainde r of the eve ning an d into the next morning, the vict im, the defendant, and Mary Icenho ur drove around drinkingbeer an d ingestin g presc ription drug s. Icenho ur was e ventually d ropped off at her home, and the vi ctim remained wi th the defenda nt. Whe n the vict im was found, she was n aked below the waist. Bruises w ere found aro und the ne ck. There
were no signs of t rauma to the geni tal regi on of the body nor was it possibl e to test forthe presence of

sperm. Based u p on that evi dence and other ci rcumstantial evidence, the jury

convicted the defendant of felony murder after

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

The Supreme Court concluded t hat the evidence was insufficient to support the conclusion bey

ond a reasonable doubt that the murder occu rred duri ng the commission of or in an a ttempt to commit a rape. Al though there was ci rcumstantial evidence of sexua l acti vity, this evi dence was not suff icient to establ ish that

the defendantraped o r attempted t o rape the vi ctim. The Court then held t hat circumstant ial evidence was suf ficien t to estab lish beyond a reaso nable doubt that the defendantkill ed Kathy Able. The Court revers ed the convic tion for felony murder and modified the judgment to refl ect a convict ion of second degree murder relyi ng12

upon the rule of

law that a homicide, once establis hed, is pre sumed to be murd er in the second degree.

Howeve r, absent the portion s of De fenda nt’s statement to police whi ch allude to a kidnapping by

the vict im and a shooting i n self-def ense, a revi ew of the evidence in this case, and all i nferences whi ch may be drawn therefr om, reveals t he 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 Apri l 16, 1995. At appro ximate ly 2:44 a.m . o n Apr il 16, t he vi cti m wit hdrew $200. 00 fr

om an ATM machine, and a person (the strong inference being the Defendant ) was driv ing the victim’s vehicle at the ti me the mon ey was withdra wn. T he De fenda nt sho t the victim
once in the head with a ni ne milli meter pistol which had been in her possession pri or to the homicide. The vi ctim was shot at a remote l ocation approximately 100 yards from a county hi ghway in McMinn County. The Defendant resided in McM inn Cou nty and the vict im had no ties to McMinn County. Al l of the cash which h ad been
recen tly withdrawn by the vict im 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 nearthe victim’s body. His wallet and checkbook were also missing. The victi m’s pi c kup 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 l ocker at the Mouse’s EarWest where the Defendant stated she had placed them. When initi ally i ntervi ewed by a T.B.I. agent, the Defendant denied havingany knowledge of the victim ’s death.13 The controll ing princ iple of law on this i ssue is succi nctly stated by the majority of a panel of our court i n State v. Jame s Clayton You ng, Jr. , C.C.A. No. 01C01-9605-CC-00208, Rutherford Count y (Tenn . Crim. App., Nashvill e, May 22, 1998). It rea ds as follow s:
In our view, a jury i s entitl ed to acc ept tha t portion of the d efend ant’s pre-tri al statementor testi mony thatit deemed credi ble and rej ect 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. Cri m. App. 19 75)). ‘In confessions or statements of

the kind volunta rily made by the accuse d the jury must take the whol e of this statementor confes sion a nd weigh it as they weigh the other ev idence, rej ecting some part if they

desire to do so and givi ng credit t o other parts of the statementif they have a sufficient reas on to do so u nder a ll the evidence as it is intro duce d.’ Espitia v . Sta te , 288 S.W.2d 731, 733 (Tenn. 1956). This quote from the Espitia opinio n is consistent with the general rul e: It is for the jury to s ay what w eight s hall be given to t he several pa rts o f the statemen t, for they may well believe thatpart which c harges the pri soner, and rej ect that which ten ds to ex cul pat e hi m. 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, sli p op. at 17.

In light of the majorit

y opinion i n 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 pres ented for r eview is t hat the defendant was d enied a fair trialby the int roduction of her husband’s testimony and hi s prior st atements and by the circu mstances surroundi ng his interrogati on.14 Statements att ributed to Brian Cochran or made by him came into evidence three times . Spec ial Age nt T. J. J ordan testifie d tha t he took a statement from Cochran in which Cochran implicated the defendant . Although the defendant di d not object to that testimony, t he trialcourt instructed the jury that that

statement was not to be con sidered as eviden ce of guilt.
Polygraph exam iner M alcom b Elrod testifie d that Cochran failed th e polygraph examination. Cochran then stated th at his wi fe told hi m about kill ing this ind ividual. She also tol d him that shehad described how shehad shot him and where sh e had obtained the g un. The de fendant did no t object to this testimony.
Finally, Brian Cochr an testi fied that his ex-wi fe, the def

endant, tol d him she had a se t of

keys fr om a truck and t hat she needed to talk to hi m. She also to ld him someone had been shot. The defendan t object ed to Cochran’s testimony, and h e was not allowe d to testify further. The trial court instructed the jury to disrega rd the testimony.
The testimony of

Special Agent J ordan and polygr aph examiner, El rod, was clearly inadmissibl e. However, err or may not be predi cated upon a rul ing admitt ing evidence unless a substan tial right of a p arty wa s affec ted an d unle ss a tim ely objecti on was made. Rule 103(a), Tenn. R. Evid. No objection was made by the defendantto this test imony. Furthermore, the evi dence was cu mulati ve and even had it been admit

ted over t he objecti on of the defen dant, th en the error w ould have been harmless.15 The testimony of Brian Cochran at the tri a l was not i ncriminati ng to the defend ant, and, theref ore, it did not af

fect a substantial right of t he defen dant. Furthermore, t he trialcourt instructed t he jury to disregard t he evidence.

This issu e is withou t merit.

The final issue presented for rev iew is whet her the trial court erred in f

ailing to require the State to elect between first degre e felony murder and premeditate d first degree murde r at the clos e of its proo f.

The defendant argues that because onl y one pe rson ha d been killed, the Sta te
was required to elect whet her it was s eeking a convi ction fo r fir st degree fel ony mu rderor for f irst degr ee premeditated murder. Alt hough the defendant may demand thatthe State el ect between fa ctual 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 f orth, t he judgment of the trial cou rt is affirmed.

___________________________________ THOMAS T. W OODALL, Judge

CONCUR:16

____________________________________ JERRY L. SMITH, Judge

____________________________________ WILLIAM B. ACREE, JR., Special Judge