Gross v. Vannoy

Decision Date28 December 2018
Docket NumberCIVIL ACTION NO. 18-4871 SECTION "A"(4)
PartiesWILLIE GROSS, JR. v. DARREL VANNOY, WARDEN
CourtU.S. District Court — Eastern District of Louisiana
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 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, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).1

I. Factual Background

The petitioner, Willie Gross, Jr. ("Gross"), is a convicted inmate incarcerated in the Louisiana State Penitentiary, in Angola, Louisiana.2 In 2008, Gross and co-defendant Calvin King were initially indicted by a Grand Jury in Jefferson Parish for aggravated battery, second degree kidnapping, and theft. A hearing was held on September 29, 2008, after which the state district court denied the Gross and King's motions to suppress evidence, identifications, and statements.3At a hearing on August 30, 2010, the state district court confirmed its ruling.4 A trial was never held on those charges.

On February 10, 2011, Gross and co-defendant King were indicted for one count of second degree murder and one count of armed robbery based on the same events.5 Gross and King both entered pleas of not guilty in the case.6

The record reflects that, on November 2, 2007, Marie Abreu and Javier Sanchez, her boyfriend, lived together at a Metairie apartment.7 Abreu, who was home alone that evening, answered the door after hearing a knock. A man said something in English about a Mustang and the police. Abreu, who is Hispanic, did not understand the man so she closed the door and retrieved her car keys and cell phone. When she reopened the door, she yelled when she saw three men with handguns. The men pointed their guns at her head, told her to be quiet, and they all went inside the apartment.

The men sat Abreu on the sofa and then began searching the apartment. Two men went upstairs while the third man was stationed by the door. The men asked Abreu where her boyfriend was and told her they were looking for two kilograms of cocaine. Abreu, despite knowing that Sanchez had gone to return movies and was then getting food at Popeye's Chicken, told the menshe did not know where Sanchez was. At some point, two men took Abreu upstairs to continue the search.

While the men were searching, Abreu attempted to call 911 and Sanchez, but the calls did not go through. One of the men seized her cellphone and tied her to the bed with duct tape. Abreu yelled because the tape was causing her hands to swell so one of the men removed the tape. Gross then used a telephone cord and a belt to tie up Abreu. The men took $9,500.00 that they found in a briefcase in the bedroom and $3,000 worth of jewelry.

Abreu heard Sanchez's car alarm indicating that he had returned and then heard him enter the apartment and say that she had a bad habit of not answering the phone. Abreu next heard a sound like a bottle or a glass fall onto the floor. Within seconds, she heard the car alarm again and was able to move to a window. Abreu saw Sanchez and the men leave in Sanchez's black Ford Expedition. Abreu saw Sanchez in the back seat with one man on each side of him and someone in the driver's seat. After they drove off in the car, Abreu untied her legs and went to look for help.

She initially drove her Mustang to Bud's Broiler, where she worked, and then to the Harvard Street home of Sanchez's friend, Rene Izaguirre. She hoped that Izaguirre would have some information as to Sanchez's location. She blew the vehicle's horn when she was outside of Izaguirre's house, but no one came outside. Abreu returned to Bud's Broiler and found a police officer on the premises. She attempted to tell him what happened, but he did not understand her. She returned to the apartment to get her dog and some clothes. At that time, she saw the suspects' truck, but Sanchez's Expedition was not in the parking lot. She left the apartment again, closing the door behind her.

Abreu then returned to Bud's Broiler for a third time and told Deputy Christopher Bassil of the Jefferson Parish Sheriff's Office what happened and asked him to return with her to the apartment. According to Deputy Bassil, Abreu seemed frightened and panicked and her wrists were red. Their communication was limited due to a language barrier, but she was able to tell Bassil that something happened to her boyfriend at the apartment across the street. Bassil accompanied Abreu back to her apartment. When they arrived at the apartment building, the suspects' vehicle was gone and the door to the apartment was open.

Bassil found Popeye's chicken that appeared to have been dropped in the doorway and a soda was spewed across the tile floor. The apartment had been ransacked as if someone had been looking for something. After an interpreter arrived, Bassil was able to learn that three black males entered the apartment, restrained Abreu, and searched for two kilograms of cocaine. According to Bassil, Abreu told him that when she was restrained upstairs, she heard Sanchez arrive and say "why aren't you answering the phone?" followed by "Where's my wife?" Abreu told him that she heard a scuffle and the door close. Abreu advised that money, jewelry, and a computer were taken.

Detective Frank Renaudin of the Criminal Investigations Bureau of the Jefferson Parish Sheriff's Office was the first detective to arrive at the apartment and assumed the role of lead investigator. At that time, Abreu was crying and appeared "terrified" and "hysterical." She had abrasions to her wrists and from her calves down, which she attributed to being taped up and bound by a telephone cord and a belt. Abreu, through a deputy who was fluent in Spanish, told Renaudin that three armed black men had invaded the apartment, taken her cellphone, a 9 mm pistol and cash, and abducted Sanchez.

Abreu consented to a search of the apartment. Law enforcement recovered drug paraphernalia and white powdery residue from the apartment. Pieces of duct tape which hadfingerprint evidence were recovered from the bed. Law enforcement contacted Sanchez's cell phone carriers in an effort to activate GPS devices that may have been on his phone, but the cell phone providers would not cooperate. Deputies went to the Harvard Avenue address in an attempt to make contact with someone, but no contact was ever made.

That same evening, Detective Kevin Burns of the New Orleans Police Department was notified of a homicide investigation and was dispatched to I-510 at the Lake Forest Boulevard exit in New Orleans. On scene, there was the body of a male with a wound to his torso consistent with a gunshot wound. Two spent 9 mm bullet casings, a cigarette, and a receipt from Popeye's Chicken that showed a time of 8:39 p.m., were recovered from the scene. Surveillance video from Popeye's Chicken showed that Sanchez went through the drive-through alone at that time in a dark-colored or black SUV.

The New Orleans Police Department contacted the JPSO to advise that they had found a body on the side of the road at the I-510 exit in New Orleans East. Abreu identified Sanchez from a picture taken at the morgue.

Abreu gave additional statements to the JPSO over the following days. A fingerprint obtained from the duct tape was positively identified as belonging to co-defendant Calvin King. Abreu positively identified King as one of the assailants from a photographic lineup. Subsequently, another law enforcement agency provided Renaudin with information that Gross, who had close ties to King, fit the description of one of the suspects. Abreu was shown a six-person lineup and identified Gross as another assailant. Fingerprints that were recovered from a box of liquor in the apartment were identified as belonging to Gross.

Sanchez's vehicle, which had been burned, was located days later on Lynhuber in New Orleans near 4715 Francis Drive, a residence to which Gross had connections. Ultimately, Abreuwas arrested for possession of drug paraphernalia and residual powder cocaine and held for a number of months.

Detective Renaudin obtained arrest warrants for King and Gross. King was arrested and found with $1600 on his person. Gross was arrested after a traffic stop in Chamber's County, Texas on December 4, 2007. On December 5, 2007, Detective Renaudin and Sergeant Troy Bradberry drove to Antioch, Texas to get Gross and search his vehicle, which appeared to look like an unmarked police car. They located New Orleans Police Department clothing, a badge, and a blue strobe light in the vehicle. Renaudin advised Gross of his rights. They drove Gross back to Jefferson Parish arriving at approximately midnight on December 6, 2007. Upon their return, Gross advised that he wished to give a statement. He was advised of his rights and initialed a right of arrestee form waiving them and gave a taped statement that was played for the jury at trial.

According to his statement, King contacted Gross and asked him to go with him and King's cousin "Ben" to get a shipment of cocaine. The three men met at Gross's relative's house on Francis Drive in New Orleans East on November 2, 2007. They drove to the victim's apartment in Gross's truck. Gross knocked on the door while King and Ben waited behind a wall. When Abreu opened the door, Gross told her he had hit her car. When she came outside, King, who was armed with a 40 caliber Glock, and Ben, who had an Oozie type gun, escorted her back into the apartment. Gross pulled his truck to the back and then entered the house. They searched the house looking for money and drugs. During the search, King brought Abreu upstairs and taped her to the bed using duct tape because she would not be quiet. When Gross went upstairs, he saw Abreu...

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