State v. Hayes

315 So.3d 225

STATE of Louisiana

v.Cardell A. HAYES

NO. 2017-KA-0789

Court of Appeal of Louisiana, Fourth Circuit.

MARCH 27, 2019

Leon Cannizzaro, District Attorney, Laura Rodrigue, Donna Andrieu, Kyle Daly, Jason Napoli, Assistant District Attorneys, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, 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 )

Judge Joy Cossich Lobrano

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...