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The Will Smith Case - Justifiable Homicide? Manslaughter? Second Degree Murder? First Degree Murder?

Here is what we know. Former NFL and New Orleans Saints football star Will Smith was shot and killed on Saturday night, April 9, 2016, in New Orleans. Cardell Hayes was arrested shortly thereafter by officers of the New Orleans Police Department and charged with second degree murder. The District Attorney has yet to charge Cardell Hayes.

There are many questions surrounding the death of Will Smith.

1. Was Cardell Hayes acting in self- defense?

2. Was Cardell Hayes the aggressor?

3. Was Will Smith the aggressor?

4. Will the District Attorney or the grand jury charge Cardell Hayes at all, or will Cardell Hayes be charged with manslaughter or second degree murder?

5. Was Will Smith able to get his gun or was he simply reaching for his gun?

6. Was Will Smith reaching for his gun while standing on the street?

The answers to these questions may not be known until there is a trial. But here is a bit of information for those who are interested in the case. If the District Attorney charges Cardell Hayes with first degree murder or second degree murder, the District Attorney must charge Hayes by way of a grand jury indictment. If he is charged with manslaughter or aggravated battery or some other crime, the District Attorney must use a charging document called the “information,” also known as the “bill of information.”

Although the facts of all cases are different, below you will find a legal decision decided by a Louisiana court of appeal that discusses the issues of manslaughter, the aggressor doctrine, and defense of others. The case has facts that are similar to the facts in the Will Smith case. The legal decision involved a hit and run driver (Martin) who fled after the initial hit-and-run accident. The defendant, Gonday, gave chase and forced Martin (the victim) to stop. When Martin reached for his gun in the glovebox of his car, Gonday shot Martin. Martin died fourteen days later.

Although the defendant was charged with manslaughter and found guilty by the trial court, the defendant’s conviction was reversed by the Court of Appeal because the evidence was not sufficient to support the charge of manslaughter.

We have added this case so that readers can read about the issues in the Will Smith. It is not designed to predict what will happen in the actual case, what the District Attorney will do, or what Cardell Hayes’ ultimate fate will be. This case is added to our blog because we have received numerous questions about this issue and it is what people are currently talking about.


442 So.2d 703 (La. App. 1 Cir. 1983)

CRAIN, Judge.

Roger Gonday was charged by grand jury indictment with manslaughter in violation of

La.R.S. 14:31. He pled not guilty and waived his right to a jury trial. The trial court found him guilty as charged.

We reverse.

In his first assignment of error, defendant contends that the trial court erred in failing to

properly apply La.R.S. 14:18, 14:20, 14:21 and 14:22. Essentially, defendant argues that there was no evidence to enable the trial court to find that the state proved the homicide was not justified. Defendant claims the homicide was committed in defense of a third person.

At approximately noon on November 2, 1981, defendant and Russell Williams were

riding in defendant's truck with defendant driving when another truck driven by the victim, Homer Martin, III, (Martin) struck defendant's vehicle. Martin did not stop after the accident. Defendant made Martin stop by chasing him and forcing him off the road into a paved parking area in front of a business establishment named Cayard's. After Martin stopped, defendant stopped his truck in the roadway to the left side of Martin's truck. Williams exited defendant's truck and walked up to the driver's side of Martin's truck.

The evidence at this point is from an alleged dying declaration of Martin admitted into

evidence by the trial court. [Footnote 1] Martin stated he observed Gonday standing on the far side of his truck holding a shotgun instructing Williams to "make him turn the motor off." Martin told Williams to "tell him to put that shotgun down." Williams was again instructed to "get his keys." Either Williams or defendant mentioned calling the police. At this point Martin reached for his glove compartment to get his gun because "no one's getting my keys." By the time Martin got his gun out and cocked it, defendant was at his door with the shotgun. Williams stepped aside and defendant shot Martin. Martin felt it necessary to get his gun for protection. He told them all they had to do was put their gun up--that he wasn't going anywhere. Until Martin reached for his gun, defendant was standing with the butt of the shotgun resting on defendant's truck. Defendant did not point the shotgun until after Martin reached for his gun.

Martin got his gun when he felt Williams was going to get the keys to his truck.

[Footnote: Martin was shot on November 2, 1981. He died from the gunshot wound fourteen days later. On November 7, 1981, the police took a statement from Martin in the hospital. The foundation laid for taking the statement was a Miranda foundation. There are serious questions as to the admissibility of this statement as a dying declaration. However, because of the result we reach we consider it because it is the only evidence which could possibly be construed to

support a conviction.]

Even though the testimony of independent witnesses conflicts with Martin's statement, in some instances the physical evidence conflicts with the statement, and there is serious question as to the admissibility of the statement; we use it because in our opinion even the statement produces no evidence to support the conviction.

Clearly, Martin's main concern was not that he was in physical danger from defendant or

Williams because he specifically stated that he had not been threatened with the shotgun when he reached for his own gun. He got his gun because he was not going to let anyone get his keys.

On the other hand, defendant saw Martin get his gun and we know from Martin's own

statement that he cocked it. Actually, the evidence is much stronger that not only did he cock it, but he tried to fire it and it jammed. The policeman who retrieved the gun testified a bullet had wedged in the chamber causing the gun to jam. Martin told his son at the scene of the incident after he had been shot that "my gun jammed and I put it on the seat." Martin obviously tried to use the gun. By his own statement he cocked it, and defendant at least knew this much. "It is justifiable to use force or violence or to kill in the defense of another person when it is reasonably apparent that the person attacked could have justifiably used such means himself, and when it is reasonably believed that such intervention is necessary to protect the other person." La.R.S. 14:22. However, "A person who is the aggressor or who brings on a difficulty cannot claim the right of self-defense unless he withdraws from the conflict in good faith and in such a manner that his adversary knows or should know that he desires to withdraw and discontinue the conflict." La.R.S. 14:21

Martin's statement makes it obvious that the defendant reasonably believed Martin was

about to shoot the unarmed Williams when Martin got his gun from the glove compartment and cocked it. The only question is whether defendant can use "defense of another" to justify his killing of Martin or whether he is prohibited from doing so by the aggressor doctrine. La.R.S. 14:21.

Not every act of a defendant will make him an aggressor. It is the character of the act

coupled with the intent of the defendant that determines whether the defendant is the aggressor.

The act of aggression which would thereafter preclude asserting the right of self-defense must be such that the response elicited from the victim by the aggressive act can be termed a reasonable response to that act. If a defendant curses a victim and the victim pulls a gun to kill the defendant certainly the defendant is not precluded by the original aggressive act of cursing from killing the victim in order to save his own life. Under these circumstances the victim's response to the aggressive act would be unreasonable.

Although the character of defendant's act in chasing Martin and stopping him after the

accident might make him an aggressor for some victim response, Martin knew and admitted knowledge of the fact that the defendant and Williams' intent was to stop him and keep him stopped until the accident could be reported to the police. Martin admitted such when he stated he told them he was not going anywhere. But when Williams and the defendant chose not to believe him because of the prior circumstances and wanted his keys, he was absolutely adamant that if necessary he would kill rather than allow anyone to take his keys. His concern was not over his physical well-being but his keys. Consequently, he knew defendant's intention and the character of his acts was not a reasonable response to the aggressive action taken towards him.

We hold that under these circumstances, which are supported by the only evidence in the record, neither defendant nor Williams were aggressors which would preclude defendant from taking the necessary action to save Williams' life. [Footnote 2]

[Footnote 2: This case cannot be analyzed as one involving an aggressor who has withdrawn from the conflict, because the victim did not give Williams or Gonday the opportunity to withdraw. La.R.S. 14:21. However, if Williams is considered the sole aggressor there is no question of his attempt to withdraw since the testimony of all witnesses is that he put his hands in the air and started backing away as soon as Martin went for his gun.]

We note that although we are required to review the record for sufficient evidence, this

record contains no evidence that would support the conviction for manslaughter. Consequently, we reverse the conviction and order defendant released.


If you are in need of a DWI/DUI, criminal defense, expungement, or personal injury lawyer, please contact Gaynell Williams today at 504-302-2462 for an appointment so that an aggressive lawyer who will be committed to your case can assist you today. Evenings and weekend sessions are available by appointment. We will work around your schedule. This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any specific situation under federal and/or Louisiana law and the applicable state or local laws that may impose additional obligations on you and/or your family member. © 2015-2020 Gaynell Williams LLC Attorney at Law.

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