NEW ORLEANS (WWL-TV) – Thursday is shaping up to be a pivotal day in the Will Smith homicide case.
The former Saints defensive captain was gunned down after a traffic accident and ensuing argument on April 9, in the Lower Garden District of New Orleans.
Police arrested Cardell Hayes, 28, at the scene. He is accused of shooting Smith eight times, seven times in the back.
A preliminary hearing is scheduled for Thursday morning before Orleans Parish Magistrate Judge Harry Cantrell. A preliminary hearing comes after a criminal complaint has been filed to determine whether there is enough evidence to hold a defendant until a trial.
Last week, sources told WWL-TV, several witnesses were called to testify before a grand jury in the case, which could lead to an indictment of Hayes. Now the clock is running out on an indictment before Thursday’s scheduled hearing.
An indictment would cancel the preliminary hearing, but it would have to be handed up by mid-morning before the preliminary hearing begins.
Hayes’ attorneys, John Fuller and Jay Daniels, expect the preliminary hearing to take place as scheduled. They have issued subpoenas to multiple witnesses, including former Saint’s running back Pierre Thomas and retired NOPD Captain Billy Ceravolo, both of whom dined with Smith the night he was killed.
A number of NOPD officers also have been called to testify, including lead investigator Lt. Bruce Brueggeman, homicide division commander Lt. Jimmie Turner and 6th District Lt. Nick Gernon.
Police said Hayes’ Hummer hit Smith’s Mercedes SUV from behind. An argument ensued, and Hayes then shot Smith. Smith’s wife Racquel was also shot, once in each leg, but Hayes has not yet been booked with any charges related to her shooting.
According to the police incident report the first officer who arrived on the scene found a gun, a .45-caliber Ruger on the hood of Hayes’ Hummer with the empty magazine removed. A single round remained in the gun’s chamber. Hayes remained on the scene and was arrested without incident.
Several days after NOPD Superintendent Michael Harrison announced that only one weapon had been “confiscated” at the scene, detectives found two more guns: a fully loaded 9mm handgun inside Smith’s Mercedes, as well as a fully loaded revolver inside the Hayes’ Hummer.
The discovery of the additional guns has added considerable intrigue to the case, with two very different narratives emerging about what happened.
Defense attorney Fuller claims Hayes is “legally not guilty” of murder. He said a witness told him that Smith brandished a gun at some point during the argument following the accident.
“Cardell Hayes was not the aggressor and during the course of the preliminary hearing and the trial, that will become readily apparent,” Fuller said.
Peter Thomson, attorney for the Smith family, countered that Smith was not aggressor, but was retreating when Hayes opened fire. He said an “enraged” Hayes followed Smith and his wife, Racquel, back to their SUV after the situation had been “defused” and then fired multiple rounds in rapid fire succession.
“That is specific intent – specific intent to shoot and kill him and specific intent shoot or kill or cause great bodily harm to his wife,” Thomson said.
Under Louisiana law, a homicide is justifiable when committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm. A person must also be acting lawfully in order to claim a stand-your-ground defense. The defense does not apply to a person who is an aggressor.
“The question of who is the aggressor is the most significant question as it relates to the application of Louisiana’s stand-your-ground law,” WWL-TV Legal Analyst Chick Foret said.
Raising the stakes even higher is a request by Fuller that Hayes be allowed to tell his side of the story to the grand jury, a request that is rarely granted. It’s unclear if Hayes will be called to testify at the preliminary hearing.
(© 2016 WWL)