NEW ORLEANS (CN) – A New Orleans judge on Wednesday denied a request for a new trial for the man convicted in December of the fatal shooting of former Saints player Will Smith.
Cardell Hayes, 29, was convicted of killing Smith during an April 2016 road rage incident in which Smith’s wife was also injured.
He was in court Wednesday to be sentenced for that crime, but his attorney, John Fuller, filed a motion for a new trial based on purported new evidence that two weapons were fired the night of the murder.
“The motion for a new trial is based on the supposition that injustice has been shown to the defendant,” Criminal District Judge Camille Buras said Wednesday.
“The court … rejects that assertion. This court took appropriate safeguards to assure the rights of the defendant were protected, This verdict is not contrary to the law or the evidence.”
Fuller objected to the denial of a new trial and invoked Hayes’ right for a 48-hour delay of the imposition of his sentence.
However, both Fuller and prosecutors agreed to proceed with victim-impact testimony Wednesday afternoon.
Fuller wanted a new trial to present a new witness with a military background who said he lives near where the shooting took place and claims to have heard two different types of firearms used at the time of the incident.
Michael Burnside, 53, testified in often rambling fashion Wednesday morning before Judge Buras as part of Fuller’s effort to secure a new trial for his client.
He grew emotional as he recalled the night of the incident and backed Fuller’s assertion that he was a former member of the military and has a familiarity with guns.
Hayes shot Smith to death and shot Smith’s wife, Racquel, in the legs, during a traffic dispute in the New Orleans’ trendy Lower Garden District off Magazine Street last year.
The neighborhood is not heavily populated, but nearby Magazine Street is a major thoroughfare, leaving an odd gap in the lack of witnesses.
Burnside said he heard “baps” from a smaller weapon and then “booms” from something larger.
“There were four baps before there were eight booms,” Burnside said Wednesday.
Burnside called himself a “coward” for not coming forward immediately as a witness, but said he didn’t realize the sounds he heard were related to Smith’s death until he read about the shooting in the newspaper later on.
Assistant District Attorney Jason Napoli said a shooting happened in the same area about 45 minutes before Smith was fatally shot and said it would be impossible for Burnside, who does not even own a clock or a calendar, to say for certain at exactly what time he heard the shots.
Napoli also said no other witnesses have pointed to a second gun. No additional shell casings have been found, he said, and no witnesses other than Hayes have pointed to a second gun.
Hayes has consistently maintained he shot Smith in self-defense.
Hayes filed a lawsuit in state court on April 10 in which he says after he accidentally hit Smith’s Mercedes SUV with his Hummer, the former NFL player threw a drink in his face, punched him, and then pulled a gun.
But Hayes wasn’t the only participant in the incident to file a lawsuit last week.
Racquel Smith filed one against Hayes, and Richard Hernandez, a passenger in Smith’s car that night, sued both Smith and Hayes, accusing both of aggressiveness and drunkenness, and seeking damages for personal injuries.
Evidence presented during Hayes’ trial showed that Smith’s 9 mm semi-automatic handgun was found loaded but unused inside his SUV.
Hayes’ lawsuit said Smith’s blood tested nearly two times the legal limit for alcohol. Prosecutors have acknowledged this is true. Smith had been drinking all day during a music festival in the French Quarter and had gone out with friends to drink more afterward, but they say his shooting death was not provoked.
Following trial in December, a Jury declined to slap Hayes with a verdict of second-degree murder, which would have meant a mandatory life in prison.
At the time, District Attorney Leon Cannizzaro said Hayes deserved 60 years: the maximum 40 for manslaughter for killing Smith, and an additional 20 for attempting to kill Smith’s wife.
Smith, a former Saints player and one of the stars on the team, played in the year following Hurricane Katrina in 2005, as well as in 2010 when the team went to the Super Bowl for the first time in its history and won. During trial, Smith was hailed as not just a football star but as a community leader who loved New Orleans so much he chose it as his home after his retirement.
Saints coach Sean Payton took a front row seat among Smith’s family and friends during the Wednesday morning hearing.