NEW ORLEANS (AP) A New Orleans man who lives near where former Saints star Will Smith was killed last year insisted Wednesday that he heard two different weapons fired that night.
Michael Burnside, 53, made the assertion in emotional, sometimes rambling testimony supporting the defense motion for a new trial for Cardell Hayes, who killed Smith and wounded his wife Raquel during a traffic dispute last year.
Burnside, who has owned guns and served in the military, said he heard “baps” from a smaller weapon, then “booms” from a larger one. “There were four baps before there were eight booms,” he said.
Burnside acknowledged that he didn’t witness the killing, and said he didn’t realize the sounds could be related to Smith’s death until reading newspaper accounts. He called himself a “coward” for failing to come forward immediately.
Assistant District Attorney Jason Napoli noted that Burnside – who said he doesn’t own a clock or a calendar – couldn’t be certain of the time and date of the shooting he heard, and in fact, another shooting had happened in the same area about 45 minutes before Smith was killed.
Napoli also noted the lack of evidence of any other guns being fired – no shell casings from a second gun, and no witnesses, other than Hayes, who indicated a second gun was involved.
Hayes, who killed Smith with repeated shots from his .45-caliber handgun, has insisted that he fired in self-defense. The evidence at trial showed that Smith’s .9-mm semi-automatic handgun was found loaded but unused inside Smith’s car.
Hayes appeared to have caught something of a break at his December trial when a jury rejected the prosecution’s push for a second-degree murder verdict, which would have meant mandatory life in prison.
But then New Orleans District Attorney Leon Cannizzaro said Hayes, 29, deserves a 60-year sentence: the maximum 40 years for manslaughter in Smith’s death, followed by another 20 for attempted manslaughter for wounding Smith’s wife, Racquel.
Hayes’ sentencing may be pushed to later in the week even if state District Judge Camille Buras rules out a new trial. A provision in the state criminal code says a sentence cannot be imposed until at least 24 hours after a new trial motion is overruled.
New Orleans Saints coach Sean Payton took a front row seat alongside Smith’s family and friends for Wednesday’s hearings.
Smith was cast during the trial not only as a football hero – part of the Saints team that lifted the stricken city’s spirits after Hurricane Katrina in 2005, and the one that won a Super Bowl in 2010 – but also a beloved community leader who settled in New Orleans after retirement.
The sentencing is likely to echo that drama, including testimony from Racquel Smith about how she and their three children have been affected.
“You’ll see a Cliff’s Notes version of the trial,” predicts Donald “Chick” Foret, a criminal attorney and legal analyst.
Expect the defense to again characterize Hayes, a former semi-pro football player and the owner of a tow truck business, as the affable, loving father to his 6-year-old son. The defense has noted the absence of any serious criminal record and has said Hayes feared for his life when he encountered a drunken, belligerent Smith in a traffic dispute last year.
Jurors heard that Hayes’s Hummer had rear-ended Smith’s Mercedes SUV that night, shortly after the SUV appeared to have tapped the rear of Hayes’s car.
Although prosecutors said Hayes deliberately rammed Smith’s vehicle, Hayes insisted he was trying to get Smith’s license number when the second crash occurred. The jury appeared to believe Hayes on this point, finding him not guilty of aggravated criminal damage to property.
Hayes said he armed himself only after he and his own passenger were accosted by Smith and Richard Hernandez, a passenger in Smith’s Mercedes. He insisted he fired at Smith, hitting him once in the side and seven times in the back, only because he believed Smith had retrieved a gun from the SUV. He insisted on the stand that he heard a “pop” before he started shooting and that he did not shoot at Racquel Smith, who was hit in the legs.
Prosecutors have acknowledged that the former Saint had a high blood-alcohol level after spending a day at the city’s annual French Quarter festival and the evening dining and drinking with friends. But they said he did nothing to provoke the shooting.
For all the expected emotion, legal experts say there is little chance Buras will be influenced by either side. She presided over the trial and is familiar with all the issues raised in pre-hearing motions and a pre-sentence report she ordered.
“She’s well aware of the facts of the case,” said attorney and Loyola University law professor Dane Ciolino. “There’s not going to be a whole lot that can be said.”
Ciolino said the judge likely will have a sentence in mind when she enters the courtroom.
Foret agrees: “Most judges have their minds made up when they take the bench the morning of sentencing,” he said. “I would be very surprised if either the state or the defense will present any information to Judge Buras that will significantly change the sentence that she is prepared to impose.”