Cole v. Vannoy

TERROL COLE v. DARREL VANNOY, WARDEN LOUISIANA STATE PENITENTIARY

CIVIL ACTION NO. 19-10876 SECTION "B"(2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

January 2, 2020

REPORT AND RECOMMENDATION

This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing, if necessary, and to submit proposed findings and recommendations for disposition pursuant to 28 U.S.C. §§ 636(b)(1)(B) and (C) and, as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the entire record, I have determined that a federal evidentiary hearing is unnecessary. See 28 U.S.C. § 2254(e)(2).¹ For the following reasons, I recommend that the instant petition for habeas corpus relief be DENIED and DISMISSED WITH PREJUDICE.

I. STATE COURT PROCEDURAL BACKGROUND

The petitioner, Terroll Cole, is incarcerated in the Louisiana State Penitentiary in Angola, Louisiana.² On June 17, 2010, Cole was charged by bill of indictment in Jefferson Parish with the second degree murder of Donald Bates in violation of La. Rev. Stat. § 14:30.1.³

The Louisiana Fifth Circuit Court of Appeal summarized the facts determined at trial as follows in relevant part:

On January 29, 2010, Donald Bates was murdered in his home at 2217 Eastmere Street in the Woodmere neighborhood of Harvey, Louisiana. At trial, Carolyn Bates, the victim's wife, testified that she returned to the couple's shared home from work at approximately 3:00 p.m. to find her husband's van gone and the front door of the residence ajar. Upon entering the home, Ms. Bates saw blood on the floor of the entry hallway, closet doors open, and sofa pillows tossed aside. The blood and disorder within the entryway to the home prompted Ms. Bates to exit and have a friend call police to the home.

Jefferson Parish Sheriff's Office's Deputy Jeffrey Easterly responded to the 9-1-1 call along with another deputy. Deputy Easterly testified that, upon entering the home, the two deputies observed blood on the floor and walls of the hallway, along with a used bullet casing and a live round on the floor of the hallway. The two officers proceeded further into the residence where they observed blood in the entrance to a bedroom, and in a bathroom within this bedroom, the officers discovered the victim's body. Doctor Susan Garcia, a forensic pathologist with the Jefferson Parish Forensic Center, performed an autopsy of the victim the following day and testified that the cause of the victim's death was a lethal gunshot through his heart and lung. Doctor Garcia also testified that the victim was shot at least three times andthat there was evidence of blunt force trauma present on the victim's body, indicating a struggle took place prior to the victim's death. Sergeant Gary Barteet with the Jefferson Parish Sheriff's Office homicide division was the scene detective responsible for documenting the scene of the crime. Sergeant Barteet testified that lying on top of the victim's body was a pillow with a bullet hole through it, as if the shooter had attempted to muffle the sound of a gun with the pillow, and that the entire home was in disarray, suggesting that someone had been looking for something within the home.

Police officers investigating the murder obtained the victim's cell phone records to determine who had communicated with the victim prior to his death. Detective Solomon Burke, the lead investigator on this case, testified that the cell phone records showed that the victim received his last phone call around 8:53 a.m. the morning of his death and that the call was from Rhonda Skinner. Detective Burke was able to contact the phone company and track the location of Skinner's phone to the Siesta Motel in Marrero, Louisiana. Sometime after midnight following the murder, officers went to the motel and secured Skinner and her companion, Kenneth Devore, in their motel room. Skinner later admitted that she was alerted to the police officers' presence at the motel and flushed her phone's SIM card down the toilet in an attempt to avoid being located.

Detective Burke and other officers interviewed Skinner many times over the course of approximately one and a half to two days following her arrest. Detective Burke testified that initially Skinner gave investigating officers false information concerning the crime. Skinner also admitted during her testimony that she lied to police officers early in the investigation to protect other individuals involved in the crime, but that after police officers began catching her in her lies she told the officers the truth.

Skinner testified that she had been friends with the victim for approximately two years prior to his death. On January 28, 2010, the day before the murder, Skinner accompanied the victim in his van to a check cashing business where the victim cashed a check for $12,500 he had obtained from the sale of his Cadillac. After accompanying the victim on several errands to pay off debts and purchase narcotics, the victim dropped Skinner off at her apartment building. Before departing from Skinner, the victim instructed her to call him after his wife left for work at 5:30 or 6:00 the next morning. Skinner testified that the next morning she participated in several phone calls with Kenneth Devore, her boyfriend, Darnell Turner, and defendant, to discuss robbing the victim of his recently acquired money. Skinner testified that, at the time of the crime, she had known Turner for a couple of months and defendant for most of his life.

Later that morning, defendant, along with Darnell Turner, Tanisha Stamps, and Katrice Batiste picked up Skinner in Batiste's car. After dropping off Tanisha Stamps at Turner's residence on Destrehan Avenue in Harvey, Louisiana, the remaining occupants of the vehicle travelled to the Woodmere neighborhood, where the victim had told Skinner he lived, to search for the victim's van in order to locate his residence. After locating and identifying the victim's van parked outside of his home, defendant and Turner exited the vehicle at a nearby intersection and approached the house to rob the victim. Skinner testified that the plan was for defendant and Turner to knock on the door, speak with the victim, and try to find the money within the house, but that murder was never part of their plan.

Skinner and Batiste remained in Batiste's car and returned to Turner's residence on Destrehan Avenue where they picked up Tanisha Stamps. Shortly after arriving at the Destrehan residence, Katrice Batiste received a phone call from defendant instructing them to meet him at his father's residence on Marine Street in Marrero. Skinner testified that when she arrived at the residence, she entered a room in the back of the house, where she noticed that defendant was sweating and wearing different clothes than he had been wearing earlier that day. She also testified that she noticed a black garbage bag in the same room containing a latex glove turned inside out. Skinner asked defendant what happened and he told her that when they attempted to rob the victim, Turner pulled out a gun and the victim charged Turner and struggled with him for the gun, so defendant had to "pop him with a gun." Defendant gave Skinner and Turner $900 each and kept $1,000 from the robbery. Tanisha Stamps and Katrice Batiste also testified that while at this residence Batiste attempted to lie down on a sofa and burnt her head on a hot gun lying on the arm of the sofa. Before departing from the Marine Street residence with Batiste, Turner, Skinner, and Stamps, defendant placed a black garbage bag in the trunk of Batiste's car. The group then made a short stop at defendant's mother's house so that defendant could get a pair of shoes before dropping off Skinner at her home.

Detective Burke testified that when officers recovered the victim's van, which was discovered on fire a couple of blocks away from Turner's Marine Street home on the day of the murder, they discovered, among other things, two pairs of burned shoes.

At some point in the days following the murder, defendant, Turner, Batiste, and Stamps traveled to Little Rock, Arkansas, in Batiste's car, where they stayed in various hotels for a few days. During the trip to Little Rock, Tanisha Stamps testified that she witnessed defendant carrying a gun on his person, though she did not know if the gun was the same one upon which Batiste had burned her head while lying on the sofa in the Marine Streetresidence. Batiste testified that while staying in a Little Rock hotel, she asked defendant what it meant when a gun was hot. Batiste testified that defendant did not go into detail, but that he replied that "it was hot because it had been shot" and that "he put the pillow over his face and hit it five times."

At some point thereafter, Batiste and Stamps departed Little Rock without defendant and Turner. The two women were arrested in Mississippi, where Detective Burke interviewed them. Both Batiste and Stamps gave police officers statements implicating defendant in the murder and both positively identified defendant in a photographic lineup.

Defendant and Turner were also arrested at some point after splitting ways with Batiste and Stamps. Detective Burke interviewed defendant while he was incarcerated in an Arkansas jail. During that interview, defendant told the detective that he was in Baton Rouge on the day of the murder and identified several individuals who could confirm his alibi. Detective Burke followed up with defendant's alibi, but he was unable to find any witnesses who could corroborate defendant's alibi, including defendant's wife and his girlfriend..

State v. Cole, No. 15-KA-358, 182 So. 3d 1192, 1195-1198 (La. App. 5th Cir. December 23, 2015); State Record Volume 8 of 10, Louisiana Fifth Circuit Court of Appeal Opinion, 15-KA-358, pages 3-7, December 23, 2015.

Cole was tried before a jury on August 19 through 22, 2014 and was found guilty as charged by a verdict of ten (10) to...