The focus in the Will Smith murder case turned Wednesday to the former Saints star’s state of mind when he was shot dead after a three-car collision in the Lower Garden District the night of April 9.
A toxicology report that Orleans Parish District Attorney Leon Cannizzaro’s office turned over to Smith’s attorneys at a court hearing Wednesday showed Smith’s blood-alcohol level was .235 percent, nearly three times the legal limit for driving, a source said.
An attorney for Cardell Hayes, who is accused of killing the former Saints linemen with eight shots — seven to the back — said the test results will give a jury a more accurate picture of the altercation sparked by a three-car collision on Sophie Wright Place.
Defense attorney John Fuller, who has said Hayes was “not the aggressor,” described his client as being “extremely sober” that night.
Fuller called the toxicology report on Smith “just a factor for consideration for the jury” that will add to video and other evidence supporting a claim that Hayes was “legally not guilty.”
Hayes, a 28-year-old tow truck driver and semi-pro football player, faces a four-count indictment charging him with murder in Smith’s killing and attempted murder for shooting Smith’s wife, Racquel, once in each leg. The indictment also charges Hayes with aggravated assault and criminal damage to property.
Heated words and physical aggression led to gunfire after Hayes’ orange Hummer H2 crashed into the rear of Smith’s Mercedes SUV about 11:30 p.m. at Sophie Wright Place and Felicity Street. Smith’s Mercedes then smacked into a Chevy Impala driven by another person in the Smith party.
Video shows that two blocks earlier, Smith’s Mercedes had lightly bumped the rear of Hayes’ Hummer, then driven around it as Hayes pulled toward the curb.
Fuller has said Hayes then followed the Mercedes to get its license plate number but crashed into Smith’s vehicle, prompting what witnesses described as a loud confrontation before Smith was shot dead in the driver’s seat.
Hayes’ defense team has suggested that Smith had returned to his car and was reaching for a fully loaded, never-fired handgun when he was gunned down.
Fuller has never said explicitly that Hayes was the shooter, though he has suggested a self-defense claim.
“I think it’s only right the jury knows the state of mind of all the parties,” Fuller said Wednesday.
But an attorney for Racquel Smith said the reported toxicology figures can never justify what Hayes did that night.
A few days after the killing, that attorney, Peter Thomson, insisted that Smith wasn’t inebriated “to the point where he could not drive.”
On Wednesday, Thomson said he hadn’t yet seen the toxicology report but that “nothing that’s happened changes the fact, or justifies the fact, that the person driving the Hummer (rammed) into the back of Will Smith’s car, then shot his wife, Racquel, who was just standing there, twice with a .45-caliber handgun, almost killing her.
“Nothing justifies the fact that this same person shot Will Smith seven or eight times in the back and murdered him. And nothing changes the fact Will Smith and Racquel are the victims in this case. Their children now have no father. Racquel has suffered. They’re not on trial.”
Hayes’ defense team, however, has signaled that it intends to depict a long day of partying for the Smiths and others who were with the couple that night.
At the hearing Wednesday, they filed subpoenas seeking evidence from three establishments: Ruth’s Hospitality Group, Sake Cafe and Kirkendoll Management.
Following a day at the French Quarter Festival, the Smiths went to Ruth’s Chris Steak House, then to Sake Cafe on Magazine Street before heading downriver on Magazine minutes before the fatal confrontation.
Hayes’ attorneys also said they believe the Smiths went to one or more strip clubs in the French Quarter that day. Kirkendoll Management operates the Penthouse Club on Iberville Street.
The subpoenas are “merely an effort to ensure the jury receives the big picture of what happened that night,” Fuller said,
Assistant District Attorney Jason Napoli turned over toxicology and autopsy reports for Smith to Hayes’ defense team, along with a supplemental police report.
Jay Daniels, another attorney for Hayes, told Criminal District Court Judge Camille Buras that the police report came with the names of witnesses blacked out, making it “hard to follow who’s doing what and who the detective is speaking with.”
Napoli told Buras he had “grave concerns” about the safety of several witnesses. After a brief meeting behind closed doors, Buras asked Cannizzaro’s office to give her an unredacted copy of the report in advance of a hearing Friday.
Hayes has remained behind bars since his arrest at the scene of the shooting. He will seek a reduction Friday in the $1.75 million bail that a different judge set upon his April 28 indictment. Fuller described Hayes as being “in good spirits.”