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State v. Hayes

Court of Appeals of Louisiana, Fourth Circuit

March 27, 2019


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-975, SECTION "H" Honorable Camille Buras, Judge

          Leon Cannizzaro District Attorney Laura Rodrigue Donna Andrieu Kyle Daly Jason Napoli Assistant District Attorneys DISTRICT ATTORNEY'S OFFICE COUNSEL FOR STATE/APPELLEE

          Paul 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

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Jenkins, J., Concurs with Reasons

          Joy Cossich Lobrano, Judge.

         The 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.

         On 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;[1] (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.[2] 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, [3] and allow Smith's family to observe the court proceedings under La. C.E. art. 615.[4]

         Trial 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 witness.

         On 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. 893.3(E).[5]

         Defendant 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; and
5. The district court abused its discretion when it suggestively re-read its instructions to the jury.

         The record, exhibits, and testimony reveal the following:

         On the 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.

         Defendant 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 Street.

         Believing 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.

         Pierre 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 the accident.

         The 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.

         Raquel 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.

         At 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 while shooting.

         Raquel 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.

         Rebecca 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?"

         NOPD 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.[6] Det. Brueggeman arrived later and assigned several detectives to canvas the area looking for witnesses.[7]

         Defendant 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.

         Defendant 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.

         Defendant 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.[8] Additionally, ATF Examiner Acosta testified that gunshot residue results of Smith's hands were inconsistent with someone who had recently fired a gun.[9] 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 gunshot residue.

         Defendant 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.

         Defendant 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.

         Defendant 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.[10]

         Raquel 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.

         Defendant took the stand on his own behalf and testified as follows:

         On the 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 vehicle.

         Defendant 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 Mercedes intentionally.

         After 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."[11] 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."

         Defendant testified that after Smith punched Defendant, they began to argue.[12] 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.

         As he 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.

         Smith 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.[13] 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."

         Defendant 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.

         Defendant 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.

         Defendant 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."

         Defendant 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."

         On 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 follows:

Q: And in no statement did you ever say that [Smith] fired a gun?
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 hand.
Q: [Cacioppo] also testified that the first shots that night were fired by yourself. He got that wrong?
A: Yes.

         Defendant 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.

         Defendant 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 ...

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