State of Louisiana Versus Daniel Tenner AKA "Danny" AKA "Lil Danny"

• Court: Louisiana Court of Appeal
• Decided: October 16, 2024
• Docket: 24-KA-51
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 24-KA-51

VERSUS FIFTH CIRCUIT

DANIEL TENNER AKA "DANNY" AKA "LIL COURT OF APPEAL DANNY" STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 22-2183, DIVISION "H" HONORABLE DONALD L. FORET, JUDGE PRESIDING

October 16, 2024

SCOTT U. SCHLEGEL JUDGE

Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Scott U. Schlegel

AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED SUS JGG MEJ COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Juliet L. Clark

COUNSEL FOR DEFENDANT/APPELLANT, DANIEL TENNER AKA "DANNY" AKA "LIL DANNY" Bertha M. Hillman SCHLEGEL, J.

Defendant, Daniel Tenner a/k/a “Danny” a/k/a “Lil Danny,” appeals his

convictions and sentences for first-degree murder, armed robbery, and obstruction

of justice. Defendant’s appellate counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and a motion to

withdraw alleging that there are no non-frivolous issues to raise on appeal. After a

thorough review of the record, we agree with counsel’s assessment of the case,

affirm defendant’s convictions and sentences, remand on errors patent review with

instructions, and grant appellate counsel’s motion to withdraw as counsel of record

for defendant.

PROCEDURAL HISTORY

On September 8, 2022, a grand jury indicted defendant for first-degree

murder in violation of La. R.S. 14:30(C)(2) (count one), armed robbery in violation

of La. R.S. 14:64 (count two), and obstruction of justice in violation of La. R.S.

14:130.1 (count three). Defendant pled not guilty at arraignment. On April 21,

2023, the trial court denied defendant’s motions to suppress evidence,

identification, and statements.

A jury trial commenced on August 14, 2023, and the following day on

August 15, 2023, a unanimous 12-person jury found defendant guilty as charged

on all three counts. The trial court sentenced defendant on September 15, 2023 to

life imprisonment at hard labor without the benefit of parole, probation, or

suspension of sentence as to count one (first-degree murder); ninety-nine years

imprisonment at hard labor without the benefit of parole, probation, or suspension

of sentence as to count two (armed robbery); and forty years imprisonment at hard

labor as to count three (obstruction of justice). The judge ordered the sentences to

be served consecutively.

24-KA-51 1 On October 14, 2023, defendant timely filed a motion for appeal, which the

judge granted on October 16, 2023. His appointed appellate counsel filed a brief in

conformity with the procedure outlined in State v. Bradford, 95-929 (La. App. 5

Cir. 6/25/96), 676 So.2d 1108, 1110-11, asserting that she thoroughly reviewed the

district court record and cannot find any non-frivolous issues to raise on appeal.

Accordingly, pursuant to Anders, supra, and State v. Jyles, 96-2669 (La. 12/12/97),

704 So.2d 241, appointed appellate counsel requests permission to withdraw as

counsel of record for defendant.

FACTS

On April 8, 2022, the victim, Morgan Tyrone, searched Facebook

Marketplace to purchase a phone. She messaged a female who had posted a phone

for sale.1 They agreed to a purchase price of $300.00 and planned to meet in

Terrytown, Louisiana. On April 10, 2022, Ms. Tyrone drove from Pascagoula,

Mississippi to Friedrichs Street in Terrytown with her girlfriend, Tiara Overstreet,

and Ms. Overstreet’s one-year old child. They arrived at the address in question

around 10:00 p.m., but no one was at the agreed location. Ms. Tyrone then

received a message from Ms. Weston that she was down the street with friends.

Ms. Tyrone drove further down the street, but they still did not see anyone. After

driving further down the street, a man wearing a black hoodie and black pants

approached their vehicle. Ms. Overstreet recalled seeing two “short dreads” with

pink beads sticking out of the hoodie.

Shortly after they arrived, Ms. Tyrone and the man began arguing over

whether she would hand over the money first or whether he would give her the

phone first. Ms. Overstreet testified that Ms. Tyrone became frustrated and

realized that the sale was not going to occur. After Ms. Tyrone turned her head to

1 Detective Anthony Buttone with the Jefferson Parish Sheriff’s Office testified that the Facebook account Ms. Tyrone messaged belonged to Kenya Weston.

24-KA-51 2 put the money back in the center console, defendant demanded that she give him

the money and put a gun to the back of Ms. Tyrone’s head. Ms. Tyrone refused to

turn over the money and defendant shot her. Defendant next pointed the gun at

Ms. Overstreet and instructed her to gather the money. After she complied,

defendant reached through the car window, grabbed the money, and fled. Ms.

Overstreet called 9-1-1 and told the dispatcher that her girlfriend was shot in the

head. When she could not provide an address, Ms. Overstreet stopped an

approaching vehicle and the man in the vehicle provided the dispatcher with the

address where they were located.

Deputy Tiffany Reine with the Jefferson Parish Sheriff’s Office (JPSO)

arrived at the scene and spoke with Ms. Overstreet. During their conversation, Ms.

Overstreet described the shooter as a black male, 24 to 25 years old, and slender.

She stated that the shooter was wearing a hoodie, but that she saw his face and saw

dreads sticking out of the hoodie with pink beads.

Jasma Sawyer testified that defendant was at her apartment in Terrytown on

the day of the shooting, and that her apartment was less than a block from the

crime scene. She recalled that defendant “always had twists” in his hair and

thought there were beads on the twists. Ms. Sawyer stated that when defendant

was at her apartment on the day of the murder, he mentioned he was meeting a gay

woman from Mississippi to either buy or sell a game. She also recalled that prior

to April 10, 2022, she saw defendant with two firearms. Ms. Sawyer explained

that Kenya Weston was her friend, and that Ms. Weston previously allowed

defendant to use her Facebook account to sell phones.

Through search warrants, cell phone records, social media accounts, and a

crime stoppers tip, officers developed defendant as a suspect. Defendant was

arrested in Mississippi and transported to the investigations bureau on May 17,

2022. Detective Harold Wischan (JPSO) testified that he advised defendant of his

24-KA-51 3 Miranda2 rights. Defendant provided a recorded statement and initially claimed

that he had not been in Louisiana for two years, did not know Ms. Weston, and was

in Texas on the day of the shooting. However, defendant eventually admitted that

he was the individual who shot Ms. Tyrone. He claimed that he had agreed to sell

the phone for $450, but the driver only brought $300. He claimed that during their

dispute over the money, he pulled out his gun and shot the driver, because she

reached back and he thought she was pulling “something out.” Defendant further

admitted that he sold the gun used in the shooting because it made him think about

the incident.

Detective Steven Mehrtens with the JPSO testified that after they identified

defendant as a suspect, Ms. Overstreet came to the investigations bureau and they

presented her with a photographic lineup. Ms. Overstreet identified defendant’s

photograph as the shooter and she identified defendant at the trial.

Dr. Dana Troxclair with the Jefferson Parish Coroner’s Office was accepted

as an expert in forensic pathology. She conducted an autopsy of Ms. Tyrone and

determined that the cause of death was a gunshot wound to the neck and classified

the manner of death as a homicide. Dr. Troxclair described the wound as a tight

contact gunshot wound and that the muzzle of the gun was pressed against the skin.

ANDERS BRIEF

In Anders, supra, the United States Supreme Court stated that appointed

appellate counsel may request permission to withdraw if she finds the case to be

wholly frivolous after a conscientious examination of it. The request must be

accompanied by “‘a brief referring to anything in the record that might arguably

support the appeal’” so as to provide the reviewing court “with a basis for

determining whether appointed counsel have fully performed their duty to support

their clients’ appeals to the best of their ability” and to assist the reviewing court

2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

24-KA-51 4 “in making the critical determination whether the appeal is indeed so frivolous that

counsel should be permitted to withdraw.” McCoy v. Court of Appeals of

Wisconsin, Dist. 1, 486 U.S. 429, 439, 108 S.Ct. 1895, 1902, 100 L.Ed.2d 440

(1988).

In Jyles, 704 So.2d at 241, the Louisiana Supreme Court stated that an

Anders brief need not tediously catalog every meritless pretrial motion or objection

made at trial with a detailed explanation of why the motions or objections lack

merit. The supreme court explained that an Anders brief must demonstrate by full

discussion and analysis that appellate counsel “has cast an advocate’s eye over the

trial record and considered whether any ruling made by the trial court, subject to

the contemporaneous objection rule, had a significant, adverse impact on shaping

the evidence presented to the jury for its consideration.” Id.

When conducting a review for compliance with Anders, an appellate court

must conduct an independent review of the record to determine whether the appeal

is wholly frivolous. Bradford, 676 So.2d at 1110. That review should include an

examination of (1) the bill of information to insure the defendant was properly

charged; (2) all minute entries to insure the defendant was present at all crucial

stages of the proceedings, the jury composition and verdict were correct, and the

sentence is legal; (3) all pleadings that are in the record; and (4) all transcripts to

determine if any ruling provides an arguable basis for appeal. Id. at 1110-11.

If, after an independent review, the reviewing court determines there are no

non-frivolous issues for appeal, it may grant counsel’s motion to withdraw and

affirm the defendant’s conviction and sentence. However, if the court finds any

legal point arguable on the merits, it may either deny the motion and order the

court-appointed attorney to file a brief arguing the legal point(s) identified by the

court, or grant the motion and appoint substitute appellate counsel. Id. at 1111.

24-KA-51 5 DISCUSSION

Defendant’s appellate counsel asserts that after a detailed review of the

record, she could find no non-frivolous issues to raise on appeal. Counsel states

that the indictment shows that defendant was properly charged and that the minute

entries reflect that defendant appeared at all crucial stages of the proceedings

against him. Counsel explains that the trial was properly conducted, that the

verdicts rendered by the twelve-person jury were unanimous and in proper form,

and that the trial court imposed legal sentences within the statutory ranges after the

proper delays.

Appellate counsel filed a motion to withdraw as attorney of record that states

she has notified defendant of the filing of this motion and his right to file a pro se

brief in this appeal. Additionally, this Court sent defendant a letter by certified

mail informing him that an Anders brief had been filed and that he had until May

10, 2024 to file a pro se supplemental brief. Defendant has not filed a brief as of

the date of this opinion.

An independent review of the record supports appellate counsel’s assertion

that there are no non-frivolous issues to be raised on appeal. The bill of indictment

properly charged defendant and plainly and concisely stated the essential facts

constituting the charged offenses. It also sufficiently identified defendant and the

crimes charged. See generally La. C.Cr.P. arts. 464 and 466. The record reflects

that defendant appeared at each stage of the proceedings against him, including his

arraignment, motion hearing, trial, and sentencing. We further find that the jury

was properly comprised of twelve members, that the offenses were properly joined,

and that the jury reached unanimous verdicts on each of the three counts. See La.

C.Cr.P. arts. 782, 819.

24-KA-51 6 Defense counsel filed omnibus motions, including motions to suppress the

evidence, identification, and statement that were denied after a hearing. We find

that the testimony adduced at the motion to suppress hearing and at trial

established that defendant was advised of his Miranda rights, understood his rights,

and voluntarily waived them prior to making the statement. Defendant was not

under duress and gave the statement freely and voluntarily. As to defendant’s

motion to suppress evidence, the record establishes that the evidence was seized

pursuant to search warrants. Finally, the record shows that the process involving

Ms. Overstreet’s identification of defendant by photographic lineup was not

suggestive and there was not a substantial likelihood of misidentification. In our

review of all transcripts in the record, including those from the motion hearings

and trial, we find no ruling which would support an arguable basis for appeal.

Our review of the record for sufficiency of evidence pursuant to State v.

Raymo, 419 So.2d 858, 861 (La. 1982), establishes that the evidence presented was

sufficient under the Jackson3 standard to establish the essential statutory elements

of first-degree murder, armed robbery, and obstruction of justice. Additionally, the

sentences imposed are within the sentencing ranges prescribed by the statutes. See

La. R.S. 14:30; La. R.S. 14:64; La. R.S. 14:130.1. And considering the facts and

circumstances in this matter, the sentences imposed are not unconstitutionally

excessive. As such, defendant’s sentences do not provide a basis for appeal in this

matter.

Our review indicates that appellate counsel’s brief demonstrates by full

discussion and analysis that she has complied with the requirements of Anders,

3 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): “The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”

24-KA-51 7 supra. Accordingly, appellate counsel's motion to withdraw as attorney of record

is granted.

ERRORS PATENT REVIEW

The record was also reviewed for errors patent according to La. C.Cr.P. art.

920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d

175 (La. App. 5 Cir. 1990). The following matters require corrective action.

A discrepancy exists between the sentencing transcript, sentencing minute

entry, and the uniform commitment order (UCO). After sentencing defendant to

life imprisonment on count one, the judge imposed a sentence on count two and

said “that sentence is to run consecutive to the life imprisonment.” He next

imposed a sentence on count three. The judge then summarized, “So, it’s a

sentence on count one, life imprisonment without the benefit of probation, parole,

or suspension of sentence. Count two, 99 years without the benefit of parole,

probation, or suspension of sentence, consecutive. And count three, 40 years

imprisonment, consecutive.”

The sentencing minute entry initially states, “Life in prison at HARD

LABOR on count 1 consecutively. 99 years at HARD LABOR on count 2

consecutively. 40 years at HARD LABOR on count 3 consecutively.” Further

along in that minute entry, it provides, “The Court ordered that the above sentence

as to count 2 is to run consecutively with Count 1 and Count 3.” The UCO states,

“Count 2 is consecutive with Count 1 and Count 3.”

The transcript reflects that the judge ordered that the sentence for count one

be served first, followed by the sentence on count two, and then count three is to be

served last. The minute entry and UCO suggest otherwise. Generally, the

transcript prevails where there is an inconsistency between the minute entry and

the transcript. See State v. Lynch, 441 So.2d 732, 734 (La. 1983). As such, we

remand this matter to the trial court for correction of the minute entry and UCO.

24-KA-51 8 We also order the Clerk of Court for the 24th Judicial District Court to transmit the

original of the corrected UCO to the officer in charge of the institution to which

defendant has been sentenced as well as the Department of Corrections’ legal

department. See State v. Tate, 22-570 (La. App. 5 Cir. 6/21/23), 368 So.3d 236,

249-50.

Additionally, the trial court did not advise defendant of the prescriptive

period to seek post-conviction relief pursuant to La. C.Cr.P. art. 930.8. It is well-

settled that if a trial court fails to advise, or provides an incomplete advisal,

pursuant to La. C.Cr.P. art. 930.8, the appellate court may correct this error by

informing the defendant of the applicable prescriptive period for post-conviction

relief by means of its opinion. Tate, 368 So.3d at 250. Accordingly, we advise

defendant that no application for post-conviction relief, including applications that

seek an out-of-time appeal, shall be considered if filed more than two years after

the judgment of conviction and sentence has become final under the provisions of

La. C.Cr.P. arts. 914 or 922.

DECREE

Accordingly, for the reasons provided herein, defendant’s convictions and

sentences are affirmed and appellate counsel’s motion to withdraw as attorney of

record is hereby granted.

AFFIRMED; REMANDED WITH INSTRUCTIONS; MOTION TO WITHDRAW GRANTED

24-KA-51 9 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 16, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-51 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD L. FORET (DISTRICT JUDGE) JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED DANIEL TENNER #782290 (APPELLANT) HONORABLE PAUL D. CONNICK, JR. LOUISIANA STATE PENITENTIARY (APPELLEE) ANGOLA, LA 70712 DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053