FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-975,
SECTION "H" Honorable Camille Buras, Judge
Cannizzaro District Attorney Laura Rodrigue Donna Andrieu
Kyle Daly Jason Napoli Assistant District Attorneys DISTRICT
ATTORNEY'S OFFICE COUNSEL FOR STATE/APPELLEE
J. Barker, Christen E. DeNicholas LAW OFFICES OF PAUL J.
BARKER, LLC 700 Camp Street, Suite 418 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins
Jenkins, J., Concurs with Reasons
Cossich Lobrano, Judge.
defendant, Cardell Hayes, ("Defendant"), appeals
his convictions for manslaughter in the death of William
Smith ("Smith") and for attempted manslaughter in
connection with the injuries to Raquel Smith ("Raquel
Smith"). After reviewing the record and applicable law,
we affirm the convictions.
April 28, 2016, the State of Louisiana ("State")
filed a true bill indicting Defendant as follows: (1) one
count of aggravated criminal damage to a vehicle in violation
of La. R.S. 14:55; (2) one count of attempted second degree
murder in violation of La. R.S. La. R.S. 14:30.1 and La. R.S.
14:27; and (3) one count of second degree murder in violation
of La. R.S. 14:30.1. Defendant pled not guilty to all of the
charges. The State filed a motion to invoke the firearm
sentencing provision under La. C.Cr.P. art. 893.1,
allow Smith's family to observe the court proceedings
under La. C.E. art. 615.
began on December 6, 2016, at which numerous witnesses
testified. On December 11, 2016, the jury, by votes of ten to
two, found Defendant guilty of the lesser-included offenses
of manslaughter and attempted manslaughter, and not guilty of
aggravated criminal damage to a vehicle. Defendant filed a
motion for a new trial based on newly discovered evidence,
which the district court denied the following day after
hearing proffered testimony of an alleged recently-discovered
April 20, 2017, the court sentenced Defendant to serve
fifteen years imprisonment at hard labor on the charge of
attempted manslaughter, and twenty-five years imprisonment at
hard labor on the charge of manslaughter, both sentences to
be served concurrently, and without the benefit of probation,
parole, or suspension of sentence, as provided by the firearm
sentencing enhancement law under La. C.Cr.P. art.
filed this timely appeal and has assigned the following
errors for our review:
1. The district court abused its discretion in denying his
motion for new trial;
2. The State failed to prove beyond a reasonable doubt that
Defendant did not act in self-defense;
3. The district court abused its discretion when it
prohibited Defendant from introducing rebuttal character
evidence of Smith;
4. The district court abused its discretion in allowing
victim impact testimony during the guilt phase of the trial;
5. The district court abused its discretion when it
suggestively re-read its instructions to the jury.
record, exhibits, and testimony reveal the following:
evening of April 9, 2016, Smith was driving in his
Mercedes-Benz SUV with his wife, Raquel Smith, and their
friends, Richard and Rebecca Hernandez. They were traveling
from the Sake Café on Magazine Street in Uptown New
Orleans to the downtown Windsor Court Hotel. Richard was in
the front passenger seat while Raquel Smith and Rebecca sat
in the back seat behind their respective husbands.
and his passenger, Kevin O'Neal, were also traveling
downtown in a Hummer that abruptly stopped in front of
Juan's Flying Burritos near the intersection of St.
Andrew and Magazine Streets. Smith stopped directly behind
the Hummer. According to Defendant and O'Neal, the
Mercedes struck the rear of the Hummer causing Defendant to
pull over to the side of the street to exchange information.
According to all three passengers in the Mercedes, no contact
was made between the vehicles. The Mercedes continued through
the intersection, turning slightly left onto Sophie Wright
Place with the intention of continuing downtown on Camp
that the Mercedes had left the scene of the accident,
Defendant in his Hummer followed behind the Mercedes.
Defendant's intention was to obtain the vehicle's
license plate number to file a police report. Within a minute
or two, the Mercedes stopped in front of the Hummer in the
1800 block of Sophie Wright Place. It is undisputed that
Defendant's Hummer struck the rear of the Mercedes.
Defendant claims that the accident was not intentional; but
this was challenged at trial.
Thomas, who had been joined by Smith and the others at Sake
Café and was headed downtown, heard a loud crash from
behind and realized that Smith had been in a car accident.
Thomas exited his vehicle and walked to the scene of the
accident. He saw that the rear end of Smith's Mercedes
was damaged and the back windshield was completely shattered.
Retired New Orleans Police Department ("NOPD")
Officer Billy Ceravolo, who also had dinner with Smith and
the others at Sake Café, had already arrived at the
Windsor Court when he received a call that there had been an
accident. He left the Windsor Court and went to the scene of
following individuals testified at trial and were independent
eyewitnesses who were present at the scene while the events
unfolded: Stephen Cacioppo, who lived on Sophie Wright Place
near the area where the shooting occurred, and had a clear
view of the events as they occurred, and Justin Ross and
Abigaelle Levray, who were eating together at the outside
patio at the Half Moon Bar, located on the corner of St. Mary
Street and Sophie Wright Place.
Smith, Rebecca Hernandez, and Thomas testified that Smith
exited his vehicle and confronted Defendant about the crash,
but had retreated from the argument before the shooting
began. This testimony was corroborated by Cacioppo and Ross.
Raquel Smith testified that she pleaded with her husband,
saying that she and Smith "were not like this,"
they had children, and they would "take care of
this." She looked into Smith's eyes and asked him to
think about their children. Once she said their
children's names out loud, Smith walked away with her. At
no time did Raquel Smith see any physical contact between
Defendant and her husband.
approximately 11:30 p.m., Smith was shot and killed by
Defendant. Defendant fired his Ruger .45-caliber pistol
numerous times at Smith. Dr. Samantha Huber, Chief Forensic
Pathologist for the New Orleans Parish Coroner's Office,
testified that she performed the autopsy on Smith and that he
suffered a total of eight gunshot wounds in which the first
one entered the "left lateral side" under his arm
and seven bullets entered Smith's back. She testified
that his injuries included fractured ribs, vertebrae, and
other bones, one bullet lacerated his spinal cord, and
bullets also perforated his lungs, spleen, stomach, carotid
artery, aorta, and heart. She explained that the trajectory
of all the bullets that entered Smith's back were the
same: from his left side, and at a steep angle upward toward
his head and shoulders. The lateral wound was nearly level
with slightly downward trajectory. From her analysis of the
wound pattern, Dr. Huber concluded that the lateral shot
entered Smith while he was standing upright, and the
remaining seven bullets entered Smith's back while he
leaned forward, assuming the shooter was standing upright
Smith testified that as she and Smith retreated toward their
vehicle, she believed the altercation had terminated. She
then "heard a pop, pop." She was not immediately
aware of what had happened, "and then someone screamed,
'They're shooting!' and [she] felt burning all
through [her] body." Realizing she had been shot, Raquel
Smith collapsed on the opposite side of the Mercedes and
played dead. Within seconds she "heard a pop, pop, pop,
pop, pop," then "a man screaming, 'You want to
F-ing show off for the white boy? Now, look at you now. Look
at you now. You want to F-ing show off for the white
boy.'" She described the voice as loud and angry.
Hernadez also testified that she believed that the argument
had ended and the incident diffused. She saw Smith returning
to his vehicle "to get his phone to call the
police." Rebecca saw Defendant walking toward Smith with
a gun, then she heard a shot fired and saw Smith's
"body jolt." Smith fell into his vehicle, then
Defendant fired additional shots at Smith and into the
Mercedes as he laid there. She stated: "I just remember
seeing [Defendant] walking towards [Smith] and continue to
shoot, and [Smith] wasn't even moving. At that point I
just ran off, and I heard [Defendant] talking over
[Smith's] body." She heard Defendant shout,
"Look at you now. You were showing off," and
"Where's that white boy at?"
Homicide Detective Robert Bachelder was the first detective
to arrive at the scene. NOPD Homicide Detective Bruce
Brueggeman, who was assigned as lead detective in the case,
first went to police headquarters to speak to Defendant and
O'Neal and then went to the crime scene. Det.
Bachelder's primary responsibility was to document the
crime scene. Det. Brueggeman arrived later and assigned
several detectives to canvas the area looking for
justified the killing of Smith claiming that he acted in
self-defense. Defendant testified that Smith threatened him,
walked to his vehicle to retrieve a gun, and pointed a gun at
him. No other witness who testified at trial, whether for the
prosecution or the defense, placed a gun in Smith's hand
that evening. Smith's holstered gun was later found in
the Mercedes wedged between the driver's seat and console
after the vehicle was impounded and taken to the police lot.
also claims that Smith told Defendant, "N-r, you got
your gun. Well, I'm going to get mine and I'm going
to show you what to do with it. I'm going to show you
what to do with it." Defendant claims he observed Smith
enter his vehicle while still "tussling with his
wife," who kept repeating, "No, baby no." No
evidence or testimony at trial collaborated this testimony.
testified that he heard a gunshot before he fired his weapon
at Smith, initially striking Smith in the side. ATF Firearm
Examiner Meredith Acosta, who was stipulated as an expert in
the field of ballistics and firearms examination, testified
that all nine bullet casings found at the scene were fired
from Defendant's weapon and no other ballistics evidence
was recovered. Additionally, ATF Examiner Acosta
testified that gunshot residue results of Smith's hands
were inconsistent with someone who had recently fired a
St. Tammany Parish Sheriff's Office Crime Lab Deputy
Madelyn Collins, a forensic scientist and stipulated as an
expert in the field of "trace evidence," including
gunshot residue, testified for the defense. In her opinion,
Smith likely had either discharged a firearm, had been near a
discharged firearm, or contacted a surface that contained
later proffered the testimony of a witness by way of a motion
for new trial, whose testimony alleged that the witness heard
four gunshots from a small-caliber weapon before
Defendant's weapon was discharged. Based on the
unreliability of the testimony, the court denied the motion
for new trial.
contends that Smith was the aggressor in that he advanced
upon him, first throwing alcohol in his face, followed by a
punch in the side. Defendant testified that Smith pushed
Raquel Smith to the ground when she tried to intervene and
that several men were preventing Smith from engaging in
further physical contact. However, various witnesses,
including Raquel Smith, Rebecca, Richard, Thomas, Cacioppo,
and Levray, testified that they did not see any physical
contact between Defendant and Smith.
claims that he was not the aggressor in that he did not
intentionally rear-end the Mercedes. This testimony was
contradicted by Michael Sunseri, qualified by the court as an
expert in the fields of automobile crash reconstruction and
crash data retrieval and analysis, who testified that, in his
expert opinion, the collision was intentional. He stated that
crash data and other evidence showed that Smith did not come
to a sudden stop and that Defendant had not applied the full
force of his brakes at any time in an attempt to avoid or
reduce the impact.
Smith was also shot and severely injured. Defendant denied
shooting her, claiming that Smith accidentally shot her after
pulling his weapon from the Mercedes while aiming at
Defendant. However, all nine bullet casings found at the
scene were fired from Defendant's weapon as confirmed by
ATF Examiner Acosta.
took the stand on his own behalf and testified as follows:
day of April 9, 2016, O'Neal called Defendant and invited
him to a house party. Defendant described the house party as
"more of a family gathering and just playing
games," so he and O'Neal decided to leave; neither
of them had consumed any alcohol at the party. As Defendant
and O'Neal were driving to retrieve O'Neal's
vehicle, Defendant applied his brakes at a red light on
Magazine Street and was "bumped" by the vehicle
behind him (Smith's Mercedes). Defendant pulled over to
the side of the road but the Mercedes "veers to the left
and speeds off." Defendant pursued the Mercedes and
asked O'Neal to record the license plate number while
Defendant called the police. He testified that he was
"looking down trying to unlock [his] iPhone," and
when he looked up, he noticed the Mercedes was braking. He
attempted to "pump [his] brakes to make a complete
stop," but accidentally ran into the back of the
testified that he must have been pursuing the Mercedes for
less than a minute before the accident, because it was
"right around the corner from where the first accident
happened." Defendant explained that he did not
"smash" his brakes because a Hummer is a large,
heavy vehicle, and it "could slide and still hit
somebody." Instead, he stated, "you really want to
pump your brakes to try to get a quick stop." Defendant
admitted that "pumping" his brakes had not worked
for him in this case, but maintained that he had not hit the
the accident, Defendant exited his vehicle and noticed a
"Spanish guy" running towards him from the
passenger side of the Mercedes. The man removed his shirt and
reached into his pocket, and "wrap[ped] like a shiny
object in his pocket." Defendant then retrieved the
firearm he kept in the door compartment of his vehicle.
Defendant stated that the Spanish man "swung at [him]
with…whatever he had wrapped up in the shirt,"
but Defendant moved backwards and told the man to calm down.
The man swung at him again and, as Defendant backed up a
second time, he was hit in the face by a cup filled with what
he believed was alcohol. As he turned to see who threw the
cup, Smith punched him in the side. Defendant explained that
he did not return to his vehicle and flee because he wanted
to stay and "do the right thing."
testified that after Smith punched Defendant, they began to
argue. Defendant further testified that Raquel
Smith attempted to intervene. Defendant did not know if
anyone was aware that he was in possession of a firearm,
although he believed that "it was obvious [his gun] was
on [his] side." Defendant testified that another
"Spanish guy" had attempted to restrain the
shirtless man (Richard) while O'Neal was attempting to
break up the argument between Defendant and Smith. When
O'Neal confronted Smith, Smith threw Raquel Smith to the
ground and began shoving O'Neal.
attempted to get a better view of O'Neal, he "was
swung at or hit maybe three or four more times,"
although he could not recall where he was struck. Raquel
Smith, the "other Spanish guy," and another woman
were attempting to restrain Smith. Richard ran over to Smith
and said, "Yeah, he got his gun on him, but he's
scared. He's not going to do anything with it. He's
scared." Defendant claims that Smith then told
Defendant, "N-r, you got your gun. Well, I'm going
to get mine and I'm going to show you what to do with it.
I'm going to show you what to do with it." Defendant
believed Smith planned to kill him.
began walking back toward his vehicle, while Raquel Smith was
"grabbing on him," saying, "No, baby, no;
it's not worth it." At the same time, Richard and
the other lady fled the scene. Defendant chose not to retreat
because he did not know where O'Neal was and refused to
drive away leaving his friend behind. Defendant
believed he had only a few seconds until Smith returned from
his vehicle with a gun, so he pulled his weapon from his hip
and held it down by his side. He did not follow directly
behind Smith, but instead walked on an angle "towards
the sidewalk," and told Smith, "No, man, no,
don't do that."
observed Smith enter his vehicle while still "tussling
with his wife," who kept repeating, "No, baby
no." Defendant's testimony continued as follows:
And I just see him, like he steers her off of him and as he
turns out the vehicle toward me I see a black weapon in his
hand and I fired…everything happened so
fast…when I see him spin, I hear a "pop" and
I see-I see the weapon and I fired my weapon and it's
like when it hit him it like [spun] him, but my gun just poom
(phonetic), poom, poom, poom. And I tried to-I was trying to
stop my gun from actually shooting that many times, but I
didn't expect it to go off that many times in a row and I
dropped my gun to my right side.
testified that he neither wanted nor intended to kill Smith;
he would never want to kill anybody. After he fired his
weapon, he looked at Smith and said, "Man, breathe,
breathe," then screamed for someone to call an
ambulance. Defendant removed the magazine from his gun,
cleared the weapon, and set it on the hood of his Hummer.
looked at the rear of his Hummer to assess the damage from
the hit-and-run on Magazine Street. When he realized the
damage was minor, he sat on his tailgate and cried. He could
not understand why they wanted to fight over an accident.
Nevertheless, he remained at the scene because he
"didn't feel like [he] was wrong." Once the
police arrived, Defendant informed them that he was the
shooter and "got down on [his] knees."
testified that as he was being arrested, he walked passed
Raquel Smith, who was lying on the ground screaming at him
that he had shot her husband, and saw for the first time that
she had also been shot. He had not intended to shoot Raquel
Smith, and never would have done so intentionally because she
had done nothing to him. Once Defendant was taken to the
police station, he learned that Smith, then deceased, was
former New Orleans Saints player Will Smith. As a football
fan, Defendant was aware Smith was a New Orleans Saints
football player, although he did not recognize him at the
time of the encounter. Defendant believed the State was going
to "try to make me like I just shot and killed this
man," and that his life was likely over, so he put his
head down and "cried like a baby."
cross-examination, Defendant denied that he was the aggressor
during the incident and said the shooting was a result of
Richard's and Smith's behavior, stating, "I have
a right to protect myself." Defendant offered no
explanation as to why he sustained no injuries from
Smith's alleged beating, or why several eyewitnesses
testified that no physical contact had taken place. He also
could not explain why no other witness saw Richard wrap his
shirt around his hand, or heard Richard tell Smith that
Defendant had a gun. The State asked Defendant why he had not
told anyone before trial that he had seen Smith physically
holding a firearm, and Defendant responded that he had never
given a full statement to anyone, but offered no explanation
as to why he chose to omit that detail from the several
statements he did make. The colloquy then proceeded as
Q: And in no statement did you ever say that [Smith] fired a
A: No. And I'll answer that question again by saying I
never made a full statement to anyone but my lawyers.
Q: Did you see the gun actually discharged by [Smith]
A: I heard a pop as he turned towards me with the gun in his
Q: [Cacioppo] also testified that the first shots that night
were fired by yourself. He got that wrong?
denied that he repositioned himself behind Smith to fire
seven additional gunshots, and denied that he fired his
weapon directly into the Mercedes. He claimed to be at least
five feet from Smith at all times, yet he could not explain
why a shell casing was discovered inside the Mercedes
underneath Smith's body, or why a bullet struck the
interior of the Mercedes passenger door.
also could not explain why the coroner testified that the
bullets entered Smith's back at the opposite angle from
which Defendant claims he fired, or why no eyewitness
corroborated his version of events. Defendant denied pulling
the trigger eight times, and did not "know why [the gun]
went off like it went off." Defendant also could not
explain why Smith's handgun was discovered in a location
other than Smith's hand. Defendant confirmed that he saw
Smith fire his weapon and he did not believe that he
(Defendant) fired the bullet that struck Raquel Smith.
Defendant also denied saying, "That's what you get
for showing off for the ...