State v. Baham

• Decision Date: 06 June 2016
• Docket Number: NUMBER 2015 KA 1741
• Citation: State v. Baham, NUMBER 2015 KA 1741 (La. App. Jun 06, 2016)
• Parties: STATE OF LOUISIANA v. DEVIN MICHAEL BAHAM
• Court: Court of Appeal of Louisiana

STATE OF LOUISIANA v. DEVIN MICHAEL BAHAM

NUMBER 2015 KA 1741

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

June 6, 2016

NOT DESIGNATED FOR PUBLICATION

Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana

Docket Number 534157 "H"

Honorable Allison H. Penzato, Judge Presiding

Warren L. Montgomery

District Attorney

Covington, LA

Counsel for Appellee

State of Louisiana

Prentice White

Louisiana Appellate Project

Baton Rouge, LA

Counsel for Defendant/Appellant

Devin Michael Baham

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

GUIDRY, J.

The defendant, Devin Michael Baham, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1 (count one); aggravated arson, a violation of La. R.S. 14:51 (count two); and obstruction of justice, a violation of La. R.S. 14:130.1 (count three). The defendant entered a plea of not guilty to all counts. Following a jury trial, he was found guilty of the responsive offense of manslaughter, a violation of La. R.S. 14:31, on count one and guilty as charged on counts two and three. He filed motions for new trial and postverdict judgment of acquittal, both of which were denied.

The State then filed a habitual offender bill of information alleging that the defendant was a fourth-felony habitual offender on count one, and the defendant denied the allegations of the bill. After a hearing, the defendant was adjudicated a fourth-felony habitual offender.¹ He was then sentenced to fifty-five years at hard labor without the benefit of probation or suspension of sentence on count one. On count two, the defendant was sentenced to fifteen years at hard labor, with two years to be served without the benefit of parole. On count three, he was sentenced to ten years at hard labor. The district court ordered that the sentences for counts two and three run concurrently with each other and consecutively to count one. The defendant filed a motion to reconsider sentence, which was denied. He now appeals, alleging two assignments of error. For the following reasons, the defendant's convictions and sentences are affirmed.

FACTS

On February 23, 2012, at approximately 5:30 a.m., Slidell Police Department Detective Richard Walden received a call concerning a possible arson at the Bayou Lane Apartment complex in Slidell. Once firefighters extinguished the fire, Detective Walden learned that a deceased body was located inside of the apartment. The body was later identified as that of the thirty-two year old victim, Ashley King. Louisiana State Fire Marshall's Office Arson Investigator Jason Johnston testified that the victim was most likely deceased before the fire was set because of the lack of soot on her teeth, tongue, and mouth, indicating that she was not breathing at the time of fire. He noticed marks on the victim's chest and contacted the Slidell Police Department.

Slidell Police Department officers found the front bedroom of the apartment in disarray. According to Lieutenant Barry Van Shoubrouek, the bed inside of the master bedroom was covered with items. Officers collected several prescription bottles in the victim's name from the apartment. Rags and cloths found near the victim's head were tested and determined to have gasoline on them.

The Orleans Parish Chief Forensic Pathologist, Doctor Samantha Huber, testified that she believed that the victim died prior to being burned and that the knife that the State had in evidence was consistent with the wounds suffered by the victim. The autopsy revealed that the victim suffered thirteen sharp force injuries on the back of her neck, chest, the back of her right arm, and her thumb. At least four were potentially fatal, and three penetrated her heart. A majority of the wounds were caused by a single-edged blade, one caused by a single-edged blade with serrations, and all were consistent with a knife.

The victim's father, Joseph King, testified at trial. According to Joseph, the victim sold her BMW vehicle for $10,000.00 cash in order to purchase a tanning bed. On February 22, 2012, he picked up the victim's prescription for Oxycodoneand drove her to Walmart to purchase a table for the tanning bed around 9:30 a.m. After purchasing the table, Joseph drove the victim back home. He called her at 6:00 p.m., but the call was sent straight to voicemail. The victim's boyfriend contacted Joseph the following morning and said that he could not get in touch with the victim.

The victim's friend, Erin Marks, testified that she spoke with the victim on February 22, 2012, and the victim told her that Andrew Sumner was coming over to help her put together a desk. Later that day, the victim's boyfriend contacted Marks stating that he was unable to get in touch with the victim. Marks drove to the victim's apartment to check on her, but no one answered the door. Marks looked through the window and saw that the lights were on and a candle was lit.

Sumner testified at trial and explained that he was currently incarcerated for charges related to the murder of the victim, in which he, the defendant, and Katelyn Lusich were involved. He admitted that he initially lied to police about any involvement in the murder, but ultimately pled guilty to manslaughter, obstruction of justice, and aggravated arson. At the time of the defendant's trial, Sumner had not yet been sentenced. Sumner was married to Lusich, and they had a son together. Lusich, who pled guilty to obstruction of justice, was sentenced to forty years imprisonment.

According to Sumner, at the time of the victim's murder, Lusich was seven-and-one-half months pregnant, and the two of them lived with his parents in Slidell. He was nineteen years old, and the defendant was twenty-one years old. Sumner's testimony established that he had access to his parents' accounts in order to purchase clothes, food, and drugs and that he did not need to work for money. Sumner claimed that he met the victim through a friend and purchased "Roxies" from her. Sumner attended high school with the defendant. According to Sumner's testimony, prior to the incident, the defendant told him that he wanted to"hit a lick" for money to buy a vehicle, and when discussing whom to rob, the defendant suggested the victim because he knew Sumner purchased pills from her.

Both Sumner and Lusich testified that the defendant traveled with them to the victim's apartment in Lusich's vehicle. According to Sumner, once inside the apartment, the defendant hit the victim in her face, ran up behind her, grabbed her from behind, and fell to the ground with her prior to him hearing the victim yell and say, "F***, I'm bleeding." Sumner testified that he heard a "thumping sound" before the victim stopped screaming. He admitted he had purchased a knife for the defendant from Academy on January 30, 2012, and had given the knife to the defendant the weekend before the incident. Sumner also admitted that the knife he purchased for the defendant was used to kill the victim. Sumner testified that the defendant told him that he needed to clean up and asked Sumner to return and pick him up when he called.

According to Sumner and Lusich, they returned to Sumner's house without the defendant, and Sumner later picked up the defendant. They testified that the defendant changed clothes upon returning to Sumner's home and put his clothes into a trash bag. They also testified that Sumner and the defendant siphoned gasoline from Sumner's boat. Sumner explained that he returned to the victim's apartment with the defendant, and the defendant poured gasoline on the victim, lit a sock on fire, and threw the sock. Lusich testified that when Sumner and the defendant returned to Sumner's home, both smelled like gasoline. Sumner and Lusich also testified that the defendant subsequently cleaned Lusich's car, and Sumner's father corroborated that testimony. Sumner and Lusich both stated that the defendant told them a version of events to tell the police.

Sean Bartley, a crime scene investigator with the Slidell Police Department, conducted a search of Lusich's vehicle. There were not many items in the front of the vehicle, and the carpet appeared to have been vacuumed or brushed. He founda receipt from the Dollar Tree dated February 22, 2012, at 9:13 p.m. The receipt was for three drinks, latex gloves, and adult hangers. A cardboard package for latex gloves was found in the back seat area of the vehicle. The defendant's driver's license was inside of the center console of the vehicle. Paychecks made out to Sumner were inside of the glovebox.

St. Tammany Parish Coroner's Office Forensic DNA Analyst Tara Johnson testified that she tested swabs taken from the center console of Lusich's vehicle on the passenger's side near the floorboard. The swab produced a profile consistent with the victim. The defendant, Sumner, and Lusich were excluded as DNA donors of that profile. A sample from the shifter area in the vehicle was also tested. The mixture produced a profile of at least two DNA donors. Sumner and Lusich could not be excluded as donors, but the victim and the defendant were excluded as donors. Swabs from the area around the victim's body as well as both sides of the melted gas can produced results consistent with the victim. The defendant, Sumner, and Lusich were all excluded. A pair of Sumner's sneakers tested positive for blood, and the samples of blood from the sneakers were consistent with Sumner. The victim, the defendant and Lusich were excluded.

Slidell Police Department Detective Michael Deckelman testified that he obtained the victim's cellular telephone number and noted that the last outgoing call from her phone was on February 22, 2012. at 1:53 p.m. Detective Deckelman further testified that he was present for the arrests of Sumner and the defendant, and both men were photographed. The detective testified that he heard the defendant yelling from his holding cell and repeating several times, "don't tell them...