[Copyrighted Material Omitted]
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-4758, DIVISION " D" . HONORABLE SCOTT U. SCHLEGEL, JUDGE PRESIDING.
CONVICTIONS AND SENTENCES AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ANNE M. WALLIS, SETH W. SHUTE, MATTHEW R. CLAUSS, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.
OVERTON T. HARRINGTON, JR., ATTORNEY AT LAW, Gretna, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson and Stephen J. Windhorst.
STEPHEN J. WINDHORST, J.
[14-653 La.App. 5 Cir. 2] Defendant, Carl Baham, was convicted of attempted second degree murder of Byron C. Matthews, Jr. in violation of La. R.S. 14:27:30.1 (count one) and illegal use of a weapon while committing a crime of violence as to Matthews' two children in violation of La. R.S. 14:94F (counts two and three). Defendant was sentenced to imprisonment at hard labor for fifty years without benefit of parole, probation, or suspension of sentence on count one; imprisonment at hard labor for twenty years without benefit of parole, probation, or suspension of sentence on count two; and imprisonment at hard labor for ten years without benefit of parole, probation, or suspension of sentence on count three, with the sentences on counts one and two to run concurrently with one another, and the sentence on count three to run consecutively to the sentences on counts one and two. For the reasons that follow, we affirm defendant's convictions and sentences and remand this matter for correction of the commitment.
[14-653 La.App. 5 Cir. 3] FACTS
On July 25, 2013, at approximately 4:00 P.M., Byron Matthews, Jr. picked up his children, a two-year-old boy and a five-month-old girl, from a daycare facility and drove them to his mother's house at 1616 Apache Drive, an apartment complex in Marrero. Matthews' son was seated in the rear driver's side seat, and his daughter was seated in the rear passenger's side seat. When Matthews arrived at his mother's residence, he brought his car to a stop on the curb in front of the door. Matthews exited his car and walked around the front to the rear passenger's door. He was about to unbuckle his daughter's seat belt when he saw somebody with a gun exit a black Nissan. Matthews made eye contact with that individual and then walked around, got back inside of his car, and started it. At that time, he heard gunshots.
When Matthews realized that his car had been hit, he backed up, turned the car around, put his foot on the brake, and " hopped" toward the back seat to cover his daughter. Matthews then went to the
main office of the apartment complex. When he arrived, he looked in the back seat and saw blood and his son pointing toward his face. He put his son in his lap and drove to Ochsner Hospital on the Westbank. Matthews pulled up to the hospital and told two nurses that his son had been shot. The nurses grabbed his children and took them inside for medical treatment.
[14-653 La.App. 5 Cir. 4] Matthews told the police that he did not know the individual who shot at him. He identified defendant as the shooter in a photographic lineup and in court during the trial. Matthews testified that he did not have an AK-47 in his car when he picked up his children, nor did he shoot an AK-47 next to the car where his children were present. He did not shoot anyone that day. Matthews further testified he has never owned a firearm.
JPSO Deputy William Boersma was dispatched to Ochsner Hospital in connection with a shooting. Deputy Boersma met with Matthews who told him what had happened. Matthews gave the police permission to search inside of his car. Deputies examined Matthews' vehicle and observed a bullet hole in the rear driver's side door where a bullet had apparently gone through and struck Matthews' son in the face. Matthews told the deputies that the bullet hole was not there previously. One projectile and a child's tooth were found inside the vehicle. JPSO Deputy Jerry Pettit went to the crime scene and found four fired cartridge casings on Apache Street and two projectiles on the " other side of the gate." 
The day after the incident, JPSO Detective Sergeant Eddie Klein obtained information that a subject by the nickname of " Dooney" was responsible for the shooting and subsequently determined that defendant went by that nickname. Additionally, Matthews' description of the suspect vehicle matched a vehicle associated with defendant, namely, a black Nissan. Detective Klein presented a photographic lineup to Matthews, after which Matthews positively identified defendant as the perpetrator.
[14-653 La.App. 5 Cir. 5] Sgt. Klein and another deputy went to defendant's residence at 6144 Ray Street in Marrero, knocked on the door, and defendant and Joshua Hawkins walked outside. Deputies conducted a safety pat down on defendant and Hawkins and found a 9 mm handgun in Hawkins' right front pocket. A search warrant was then
obtained for defendant's residence. During that search, JPSO recovered the following: a box containing five 9 mm TulAmmo Luger rounds from a drawer of a dresser located in the rear bedroom; a Taurus 9 mm magazine model 24/7 with a 15 round capacity on top of a dresser in the room to the right of the kitchen; a .380 auto cartridge in a container in that same room; and cell phones. The ammunition was the same brand and caliber as the shell casings found at the scene.
Defendant was brought to the detective bureau to Captain Dennis Thornton for interrogation. Defendant was advised of his rights via a waiver of rights form. After defendant initialed next to his rights and waived them, he gave three different statements. When the initial questioning started, defendant said in his first statement that he could not provide any information and that he was not present at the scene where the shooting occurred. Defendant then changed his story, admitted he lied, stated he was present at the scene, and agreed to give an audiotaped statement reflecting those changes.
In his first recorded statement dated July 26, 2013, at 6:06 P.M., defendant said he took Stephanie Taylor, his girlfriend, and their baby to the apartment complex in Harvey and brought them upstairs. Defendant walked downstairs, got into his vehicle, and saw a black Dodge Charger with tinted windows turning off from Manhattan. The Charger then pulled on the side of him, and a passenger dressed in black exited the vehicle, pulled a gun out from under his shirt, and fired multiple shots hitting his vehicle, a black Nissan. The Charger pulled off, and the passenger was still firing. Defendant stated that he did not carry a gun, he did not [14-653 La.App. 5 Cir. 6] fire a gun back at them to protect himself, and he never had a gun at all. He denied shooting at the other vehicle. Defendant also stated that when he returned to his house, he checked his car and it had bullet holes in the back by the trunk.
Defendant said that he did not call the police because he was scared since people were saying that the black Nissan did the shooting. He also said that he did not see a baby at the scene, just a man " standing out there," who was " minding his own business." The man " looked like he was doing something with somebody else or something." After he arrived home, defendant's girlfriend called and asked if he was alright because she heard the gunshots. Defendant stated that his girlfriend did not see anything because she was inside.
The police investigated defendant's story in an attempt to corroborate defendant's facts and officers were ordered to contact defendant's girlfriend, Taylor. Captain Thornton testified that Taylor made several statements that were inconsistent with those made by defendant. As a result, he decided to question defendant again. Defendant admitted he had been untruthful about the black Dodge Charger and gave another statement.
In his second recorded statement dated July 26, 2013, at 9:11 P.M., defendant said that he brought his family upstairs and put his baby down on the stairs. He saw a man looking at him and " shaking his head just looking at me like this. Like he knew me from somewhere, but I don't - -, I never seen him before." Defendant stated that the man made eye contact with him. Defendant went back to his vehicle and started to get in. The man then went to the passenger side of ...