Jacob Scott Hughes v. State of Tennessee

                                                                                                             12/16/2022
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                             Assigned on Briefs December 13, 2022

              JACOB SCOTT HUGHES v. STATE OF TENNNESSEE

                   Appeal from the Criminal Court for Davidson County
                       No. 2013-A-43     Mark J. Fishburn, Judge
                        ___________________________________

                                No. M2022-00186-CCA-R3-PC
                            ___________________________________

The Petitioner-Appellant, Jacob Scott Hughes, appeals from the denial of his petition
seeking post-conviction relief from his convictions of first-degree felony murder and
aggravated child abuse, for which he was sentenced, respectively, to life and twenty-five
years’ imprisonment, to be served consecutively, as a result of the death of the sixteen-
month-old daughter of his girlfriend. State v. Jacob Scott Hughes, No. M2016-01222-
CCA-R3-CD, 

, at *1 (Tenn. Crim. App. Aug. 29, 2017), no perm. app.
filed. In this appeal, the Petitioner argues that he was denied effective assistance of counsel
based on trial counsel’s failure to pursue plea negotiations, failure to obtain a forensic
pathologist to provide expert testimony, and failure to prevent a reference to the phrase,
“Hammer Skin” during trial. 1 Upon our review, we affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which TIMOTHY L.
EASTER and JILL BARTEE AYERS, JJ., joined.

Wesley Clark, Nashville, Tennessee, for the Petitioner-Appellant, Jacob Scott Hughes.

Jonathan Skrmetti, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                                OPINION



        1
          The Petitioner raised several other issues in his post-conviction petition and at the post-conviction
hearing, all of which we deem to be waived. We further note that “Hammer Skin” is referenced
inconsistently throughout the record as “Hammer Skin,” “Hammer Skins,” and “Hammerskins.” We will
use “Hammer Skin,” consistently with this Court’s direct appeal opinion.
        On the morning of the sixteen-month-old victim’s death, the Petitioner drove the
victim’s mother to work, with the victim in her car seat. Jacob Scott Hughes, 

, at *1. Upon their arrival, a co-worker of the victim’s mother spoke with the
victim in the car “for just a minute” and observed the victim to be “happy and dancing” to
a song on the car radio. 

 There were no visible injuries to the victim at that time. Later
that afternoon, paramedics responded to the victim’s home, observed that the victim had
extensive injuries, and she was taken to the hospital. The victim died shortly thereafter of
extensive injuries, which will be discussed in detail below. The Petitioner claimed that the
victim’s death was accidental. He told the victim’s mother’s co-worker that “because the
victim had ‘black tarry stools,’ he had put her in the bathtub to clean her, and when he
returned from getting some bleach, the victim had fallen between the bathtub and the
toilet.” 

 The Petitioner repeated a similar version of his account of the events that
morning while at the hospital and explained that “he put the victim in the bathtub after she
had vomited and ‘pooped brown stuff.’” He then “left her alone while he went to get
something to clean her up and found her as she was when the paramedics arrived.” 

       The facts underlying the Petitioner’s convictions as outlined in this court’s opinion
on direct appeal pertinent to the issues raised herein are as follows:

       [Dr. Deborah Lowen’s, the Director of the Center for Child Protection and
       Well-Being at the Vanderbilt University School of Medicine], examination
       of the victim revealed a broken bone to the right side of her skull, a subdural
       hematoma, and swelling of her brain. Tests performed on the victim showed
       “significant brain injury, throughout the brain, all parts of the brain” and
       swelling to the back of her eyes. The victim had “massive amounts of
       bilateral retinal hemorrhages, bleeding in the very back of her eyes, both
       sides, with areas of retinal detachment,” and multiple bruises. Based upon
       the injuries, Dr. Lowen concluded that the victim “had been a victim of child
       physical abuse and abusive head trauma,” which was “nonaccidental.” As to
       whether all of the victim’s injuries could have been caused by her falling
       from a bathtub, Dr. Lowen responded, “[A]bsolutely not.” She said that while
       a fall from a bathtub could result in a skull fracture, it “would not explain all
       the different sites of impact on [the victim’s] head or the subdural or the
       retinal hemorrhage and retinoschisis and the bruises everywhere.” Dr. Lowen
       said that the victim would have been “symptomatic immediately after
       suffering” the head trauma and would not have been able to sing or appear
       happy. Further, none of the victim’s injuries could have resulted from CPR,
       as the Defendant claimed to have performed on her, and any delay in
       obtaining medical care lessened her chance for survival.



                                             -2-
Dr. Adele Lewis testified that she was a forensic pathologist, the Tennessee
Interim State Chief Medical Examiner, and the Deputy Chief Medical
Examiner for Metro Nashville Davidson County. She said that she performed
the autopsy on the sixteen-month-old victim who weighed about twenty
pounds at the time of her death, which was the result of multiple blunt force
injuries. Dr. Lewis detailed the injuries sustained by the victim:

       She had many, many bruises and scrapes of her head and of her
       face. She had bleeding underneath her scalp, as well as
       underneath her skull and on her brain. She had bleeding all
       around her spinal cord. She had injuries to her brain itself, her
       brain was very swollen and soft. She had a skull fracture and a
       broken bone in her skull. She had some bleeding in the back of
       her neck right where your neck kind of attaches to your head....
       She also had multiple bruises of her chest, abdomen, back and
       buttocks and genitalia and also multiple bruises to her arms and
       legs. She had a bite mark on her left lower leg.

Dr. Lewis explained why there was “no question” that the victim had been
beaten to death:

       [T]here’s definitely evidence that she was beaten, with the
       bruising that we see on the outside of the body, you don’t get a
       big bruise on your face from being shaken. You don’t get a bite
       mark on your leg being shaken. So those are specific injuries
       that tell me that there definitely was some kind of impact or her
       body striking an object or an object striking her body.

Dr. Lewis further testified that there were five or six separate impacts to the
victim’s head, which could not have resulted from a fall.

                                     ....

Detective Chad Gish of the [Metro Nashville Police Department], accepted
by the trial court as an expert in computer and mobile device forensic
analysis, testified that Detective Bruner contacted him on July 9, 2012,
regarding the Facebook messages. After Ms. Costanza gave Detective Gish
her identification and password, he logged in to her live Facebook account
and obtained messages exchanged on July 8, 2012, between her and the
Defendant, as well as messages between the Defendant and a friend of his,
Mark Denton. Detective Gish verified that the printed copy of the Facebook
                                     -3-
       messages were the same messages as those on the live account and took
       screenshot photographs of the messages, which were admitted into evidence.
       The Defendant sent Mr. Denton a message at 12:33 p.m., saying, “I’m headed
       over to the Hammer Skin hangout house here in a few, if you want to come
       with,” and another message at 12:52 p.m., saying, “You bring the smoke, I
       got some percs 7.5 too.”

Jacob Scott Hughes, 

, at *2-3.

        This court affirmed the Petitioner’s convictions on direct appeal, and there was no
application for permission to appeal to the Tennessee Supreme Court. On February 26,
2018, the Petitioner filed a pro se petition seeking post-conviction relief, and the post-
conviction court appointed counsel shortly thereafter. Appointed counsel filed an amended
petition incorporating the issues raised in the Petitioner’s pro se petition and the matter was
set for an evidentiary hearing on November 18, 2021.

        At the post-conviction evidentiary hearing, the Petitioner testified that he recalled
the testimony of Dr. Lowen during his trial. Specifically, he recalled that she discussed the
injuries to the victim including “more than thirty-five bruises . . . . a skull fracture [and]
subdural hematoma.” The Petitioner said that trial counsel had not discussed the medical
testimony with him prior to trial and that he was “surprised” by Dr. Lowen’s testimony
because it was the first time that he had heard medical evidence of the victim’s injuries.
The Petitioner also said that he was surprised to hear Dr. Lowen testify that the victim’s
death could not have been the result of a fall. The Petitioner testified that trial counsel
never discussed getting an expert to refute the expert testimony of Dr. Lowen and Dr.
Lewis. The Petitioner was particularly aggrieved because trial counsel did not provide him
with an alternative trial strategy based on the expert testimony of Dr. Lowen. The
Petitioner agreed that he was shown “the exhibits to the testimonies of the doctors for the
State,” prior to trial. He explained these were part of the discussion to redact some of the
photographs, which were graphic. In other words, the Petitioner agreed that he saw all of
the photographs of the victim prior to trial and was not surprised by their admission in
evidence.

         The Petitioner said he did not testify at trial because he had an “open” domestic
violence charge, and he was advised that it would be unfavorable to do so. The Petitioner
testified that much of his pretrial preparation was spent on two different self-mental health
evaluations. He said trial counsel “never” discussed pre-trial plea negotiations. The
Petitioner also believed that trial counsel should have interviewed his co-defendant, Nina
Costanza, the victim’s mother. The Petitioner theorized that “[m]aybe possibly something
. . . happened prior to [him] being awoke that morning because [he] was the last person …

                                             -4-
in the whole apartment.” The Petitioner denied working with a private investigator in this
case.

       The Petitioner was also aggrieved because trial counsel failed to adequately address
the State’s reference to “Hammer Skin” at trial. The Petitioner said because the majority
of the jurors in his case were African American, he believed that he was “prejudice[ed]”
by the reference in the Facebook messages to “Hammer Skin,” an organization, according
to him, which was “a well-known violent neo-Nazi skinhead group.” The Petitioner was
asked about multiple tattoos on his hands and body; but he agreed that none of them were
visible during his trial.

       On cross-examination, the Petitioner agreed that he was aware prior to trial that Dr.
Lowen was a doctor at Vanderbilt University in the Children’s Hospital. His complaint
centered on the fact that he was unaware of her status as an expert in child abuse. He also
agreed that trial counsel reviewed “some” of Dr. Lowen’s reports prior to trial.

       Trial counsel testified that the Office of the Public Defender had handled the
Petitioner’s case prior to him being retained to represent the Petitioner. Trial counsel said
a motion to sever the co-defendant, the victim’s mother, had already been granted and that
she was represented by another attorney. Although trial counsel attempted to talk with the
co-defendant, her attorney declined to allow it and insisted on keeping the cases separate.

       Trial counsel investigated and interviewed other medical experts to counter the
expert testimony of Drs. Lowen and Lewis. Trial counsel said “none of them could give
him an explanation . . . as to anything other than” the explanation provided by the State’s
experts, except Dr. Kenner. Trial counsel explained that Dr. Kenner agreed to work with
him and was present during the Petitioner’s trial. While trial counsel did not tell the
Petitioner explicitly that none of the experts interviewed agreed to help him, trial counsel
said the Petitioner was aware that trial counsel was seeking out medical experts to
challenge the State’s experts in his case.

        Asked if he pursued plea negotiations on behalf of the Petitioner prior to the trial,
trial counsel said that although there were “some discussions,” the prosecutrix “never made
me an offer.” He described the discussions as the State telling him that he could “make
[her] an offer of fifty years or something, but . . . none of that was attractive” to the
Petitioner. Trial counsel intimated that a formal offer was never extended by the State
because, based on the evidence, “there was no reason for the State to make an offer quite
frankly.”

       Asked if he believed he did a “reasonable job in evaluating and pursuing a plea” for
the Petitioner, trial counsel replied:
                                            -5-
       Let me explain something to you. There is nothing I would have enjoyed
       more than reaching an agreement in this case and not having to try the thing,
       okay. Nobody wanted to try this case the way it was positioned and with the
       amount of evidence there was. So[,] if there was any possibility of there
       being a plea or something that [the Petitioner] would have accepted, I
       absolutely would have done that, but that wasn’t on the table.

       On cross-examination and further questioning by the post-conviction court, trial
counsel explained that he had plea discussions with the Petitioner but there was no offer
the Petitioner was willing to accept. Trial counsel said the charges in the instant case were
too “serious,” there was no middle ground, and the Petitioner maintained his innocence
throughout the proceedings. He confirmed that neither prosecutor assigned to the case was
interested in plea negotiations. Trial counsel interviewed five or six potential experts he
obtained from the Tennessee Association of Criminal Defense Lawyers (TACDL) and
National Association of Criminal Defense Lawyers (NACDL) databases. He provided
each potential expert with the casefile to review, and none of them were willing to disagree
with or testify against the State’s expert witnesses.

       Trial counsel was not asked about the reference to “Hammer Skin” at trial.

        On February 7, 2022, the post-conviction court entered a written order denying
relief and determined that the Petitioner failed to establish through clear and convincing
evidence that trial counsel was ineffective. The Petitioner filed a timely notice of appeal,
and this case is now properly before this court for review.

                                       ANALYSIS

        The Petitioner argues trial counsel was ineffective in failing to pursue plea
negotiations, in failing to obtain a forensic pathologist to provide expert testimony, and in
failing to prevent the introduction of the “Hammer Skin” reference at trial. In response,
the State contends, and we agree, that the post-conviction court properly denied relief.

       In review of these issues, we apply the following well-established legal framework.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgment of a constitutional
right. 

. A post-conviction petitioner has the burden of
proving his or her factual allegations by clear and convincing evidence. 

 § 40-30-
110(f); see Tenn. Sup. Ct. R. 28, § 8(D)(1); Nesbit v. State, 

 (Tenn.
2014). Evidence is considered clear and convincing when there is no serious or substantial
doubt about the accuracy of the conclusions drawn from it. Lane v. State, 

,
                                            -6-
562 (Tenn. 2010); Grindstaff v. State, 

 (Tenn. 2009); Hicks v. State,

 (Tenn. Crim. App. 1998).

       This court reviews “a post-conviction court’s conclusions of law, decisions
involving mixed questions of law and fact, and its application of law to its factual findings
de novo without a presumption of correctness.” Whitehead v. State, 

(Tenn. 2013) (citing Felts v. State, 

 (Tenn. 2011); Calvert v. State,

 (Tenn. 2011)). However, a post-conviction court’s findings of fact
are conclusive on appeal unless the evidence in the record preponderates against
them. Calvert, 

 (citing Grindstaff, 

; State v. Burns, 

 (Tenn. 1999)). As a result, “appellate courts are not free to re-weigh or
re-evaluate the evidence, nor are they free to substitute their own inferences for those drawn
by the post-conviction court.” Whitehead, 

 (citing State v. Honeycutt,

 (Tenn. 2001)). “As a general matter, appellate courts must defer to a
post-conviction court’s findings with regard to witness credibility, the weight and value of
witness testimony, and the resolution of factual issues presented by the
evidence.” 

 (citing Momon v. State, 

 (Tenn. 1999)).

       The right to effective assistance of counsel is protected by both the United States
Constitution and the Tennessee Constitution. U.S. Const. amend. VI; Tenn. Const. art. I, §
9. A claim for post-conviction relief based on alleged ineffective assistance of counsel is
a mixed question of law and fact. Moore v. State, 

 (Tenn.
2016); Mobley v. State, 

 (Tenn. 2013) (citing Calvert, 

).

        In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) this deficient performance
prejudiced the defense. Goad v. State, 

 (Tenn. 1996); Strickland v.
Washington, 

 (1984). A petitioner successfully demonstrates deficient
performance when the petitioner establishes that his attorney’s conduct fell “below an
objective standard of reasonableness under prevailing professional norms.” Goad, 

 (citing Strickland, 

; Baxter v. Rose, 

(Tenn. 1975)). Prejudice arising therefrom is demonstrated once the petitioner establishes
“‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.’” 

 at 370 (quoting Strickland, 

). “Because a petitioner must establish both prongs of the test, a failure to prove either
deficiency or prejudice provides a sufficient basis to deny relief on the ineffective
assistance claim.” Goad, 

.



                                            -7-
        The Petitioner first argues that trial counsel was ineffective in failing to pursue or
relay plea negotiations with him prior to trial. A criminal defendant is entitled to the
effective assistance of counsel throughout the plea negotiation process. See Harris v. State,

 (Tenn. 1994); see also Hill v. Lockhart, 

 (1985)
(applying the two-part Strickland test to claims of ineffective assistance of counsel during
plea negotiations). “[A]s a general rule, defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused.” Missouri v. Frye, 

 (2012); James McKinley
Cunningham v. State, No. M2017-00348-CCA-R3-PC, 

, at *5 (Tenn.
Crim. App. Nov. 28, 2017). A defendant claiming that trial counsel’s performance was
deficient in the plea negotiations process has the burden to show by a reasonable
probability that, but for counsel’s deficient representation, (1) the defendant would have
accepted the plea, (2) the prosecution would not have withdrawn the offer, and (3) the trial
court would have accepted the terms of the offer, such that the penalty under its terms
would have been less severe than the penalty actually imposed. Nesbit v. State, 

 (Tenn. 2014) (citing Lafler v. Cooper, 

 (2012)). The
post-conviction court accredited the testimony of trial counsel who testified that there was
no plea agreement available in this case. Trial counsel desired a plea agreement; however,
this was “moot” because the State would only accept an “open plea” from the Petitioner.
Trial counsel further testified that the State did not convey any offers and that the Petitioner
was unwilling to accept an offer because he maintained his innocence throughout the
proceedings. The record fully supports the determination of the post-conviction court. The
Petitioner failed to establish that there was an offer from the State and, even had one been
extended, that he would have accepted it prior to trial. Accordingly, the Petitioner is not
entitled to relief.

        The Petitioner next argues that trial counsel was ineffective in failing to obtain a
medical expert to refute the testimony of Drs. Lowen and Lewis. The post-conviction court
determined that trial counsel consulted with multiple medical experts to develop alternative
theories as to the victim’s injuries. None of the experts disputed the findings of Drs. Lowen
and Lewis, and none of the experts consulted were willing to aid in the Petitioner’s defense.
The post-conviction court also determined that the Petitioner failed to produce a medical
expert at the post-conviction hearing in support of the Petitioner’s accidental death theory
of defense. See Black v. State, 

, 757 (Tenn. Crim. App. 1990). Upon our
review, we agree with the post-conviction court, and conclude that the Petitioner is not
entitled to relief.

        Finally, the Petitioner claims ineffective assistance of counsel based on trial
counsel’s failure to exclude a reference to the phrase “Hammer Skin” which was included
in his Facebook messages. On direct appeal, the Petitioner argued that the trial court erred
in not redacting from his Facebook message a racial slur, “Hammer Skin” which previously
                                             -8-
had been ruled inadmissible. State v. Jacob Scott Hughes, 

, at *4. Trial
counsel had, in fact, successfully moved in limine to exclude the Petitioner’s affiliation, if
any, with the “Hammer Skins,” and “any other gang or racial organization, or any
affiliation with members of such groups.” However, while the lead prosecutor who was
aware of the motion in limine was absent from the courtroom, the Petitioner’s Facebook
reference to “Hammer Skin” was admitted into evidence. Trial counsel was unsuccessful
in moving to redact the reference. The Petitioner argued, much as he does now, that the
“Hammer Skins” are “violent and [the] best-organized neo-Nazi skinhead group in the
United States.” This court noted that there was simply no evidence regarding this
designation and that it was not clear from the message that the reference is not to a person
named “Hammer Skin.” In any case, this court determined that the error in admitting the
Facebook reference was harmless given the overwhelming evidence of the Petitioner’s
guilt. Because the Petitioner has failed to establish deficient performance or prejudice to
his defense, he is not entitled to relief.

       The Petitioner also contends that he is entitled to relief based on the cumulative
effect of trial counsel’s errors. We have determined that none of the Petitioner’s claims
merit relief; thus, we need not address this issue.

                                      CONCLUSION

       The judgment of the post-conviction court is affirmed.


                                              ____________________________________

                                                      CAMILLE R. MCMULLEN, JUDGE




                                            -9-