Ex-NFLer Will Smith's death: Suspect didn't start fight, attorney says

Story highlights

  • Suspect's attorney suggests someone else at the scene may have had a gun
  • Suspect Cardell Hayes called 911, secured a witness, waited on police, his attorney says
  • Hayes is charged with murder, accused of shooting Will Smith after a traffic altercation

(CNN)Cardell Hayes did not know former New Orleans Saint Will Smith, and he was not the aggressor in the quarrel that ended with Smith dead in the street and Hayes charged with murder, an attorney for Hayes told reporters.

Hayes was the victim of a hit-and-run before his altercation with Smith, lawyer John Fuller said in remarks aired by CNN affiliate WDSU. The person who hit him sped off, and Hayes was trying to make out the license plate of the vehicle before he became involved in the deadly situation with the former NFL star.
    According to police, Smith and his wife were in a Mercedes G63 SUV late Saturday when Hayes rear-ended them in his Hummer H2, causing the Benz to hit a Chevrolet Impala carrying some of Smith's acquaintances.
    Smith and Hayes "exchanged words" before Hayes shot the former New Orleans Saints defensive captain multiple times and shot Smith's wife in the right leg, police said. Hayes now stands charged with second-degree murder.
    But questions about the high-profile case seem to be growing as quickly as the makeshift memorial near the crash site, where grieving fans of the former NFL player are leaving helmets, jerseys and signs.

    Memorial to a Saint. Flowers, balloons and colors of black and gold near where Will Smith was killed in NOLA.

    A photo posted by Martin Savidge (@martinsavidge) on

    Attorney: Hayes 'a lot nicer than he appears'

    Fuller says his client's actions tell a story that's different from the police account of what happened that night. Hayes called 911 before the shooting, secured a witness who was leaving the scene, and remained at the scene after the shooting until authorities arrived, Fuller said. Police have said they took 4 minutes to reach the scene.
    "Now, tell me if that's the behavior that's consistent with someone who's an animal out here looking for blood," he said. "His actions are totally consistent with someone that is complying with a police investigation."
    Fuller further described Hayes as soft-spoken, easily approachable and "a lot nicer than he appears."
    Dispatch audio from Saturday night shows that police and paramedics were dispatched to the scene after someone called 911 to report "there's a male down with about six gun wounds to the chest."
    The dispatcher asks for a description of the shooter, and a responding officer says he thinks the shooter is on the scene and the gun has been recovered. The officer later reports that two black males are in custody, with the firearm.
    Cardell Hayes is charged with second-degree murder, police say.
    Though he didn't provide some details about his client's actions -- he either couldn't or wouldn't say whether Hayes accuses Smith of committing the hit-and-run -- Fuller said the narrative that police have provided the media is not accurate.
    "Whether the victim is famous, infamous, popular, unpopular, black, white, Catholic, Baptists, the law applies equally to everyone," he said. "If the law is applied fairly in this case, I think the results are going to surprise a lot of folks."
    If toxicology tests are conducted "honestly," Fuller said, they will "absolutely" play a key factor in his client's case. He did not elaborate. Police have said toxicology reports won't come back for six weeks.
    Fuller also suggested someone else at the scene may have been armed.
    "Based on information that I have received today via a video from that night, we have reason to believe that there may have been a second gun on the scene, and there definitely were allusions to a second gun," he told reporters.
    A video obtained by CNN of the scene after the crash includes a witness account saying someone else at the scene claimed to have a gun before the shooting.
    Police have said they recovered one weapon from the scene.

    A night out in New Orleans

    Smith was at the French Quarter Fest earlier in the day before having dinner at the Sake Cafe with his wife, a former teammate, a former New Orleans police officer and a sports agent, restaurant general manager Dave Matherne said. They left the restaurant around 11:15 p.m., he said.

    Having a blast at the #fqf2016

    A photo posted by Will Smith (@iwillsmith) on

    "You could hear them laughing at the table," Matherne said. "It seemed they were having a really good time."
    In the strangest of twists -- and one that police say they are considering in their investigation -- the ex-police officer who was at Sake Cafe, Billy Ceravolo, was named in a lawsuit that Hayes filed a decade ago after officers with the New Orleans Police Department killed his father.
    Ceravolo, who was not accused of shooting Hayes' dad, responded in court that Anthony Hayes tried to stab him and he feared for his life, as did other officers, who opened fire. The case was settled in 2011 for an undisclosed sum.
    Fuller brushed it off as coincidence and questioned how Hayes could have possibly known Smith had been at dinner with Ceravolo. New Orleans Police Department Superintendent Michael Harrison, too, said there's no indication that any of this played a factor in Saturday's shooting, though investigators are working to make sure that's the case.
    Hayes is being held in New Orleans Central Lockup on a $1 million bond, according to police and jail records.

    Hayes a football player, too

    Saturday was not Hayes' first run-in with the law. He was arrested in 2010 for codeine possession, illegally carrying a gun and possession of drug paraphernalia.
    He pleaded guilty in June 2012 and was sentenced to five years, and it was suspended. The next month, he withdrew his guilty plea and showed up in court in September 2012 with Fuller as his attorney, according to Orleans Parish Sheriff's Office records.
    In June 2013, Hayes rejected a plea deal, the records show, and in January 2014, he pleaded guilty to weapon and drug paraphernalia charges, and he received two six-month suspended sentences, the court records indicate.
    Hayes attended high school in New Orleans. He was a standout defensive tackle at Warren Easton Charter High School and, at 6-foot-3, 260 pounds, was considered one of the state's top recruits. It's unclear whether he went on to play college football or if he knew Smith through football.
    At the time of the shooting, Hayes played for the Crescent City Kings of the Gridiron Developmental League, a pro league based out of Memphis, Tennessee. It appears he did not play much in 2015, as the stat sheet on the team website says he had only 10 tackles.
    The team issued a statement and said it was aware of the incident and was cooperating with the police, but it would not be commenting.
    "First, we would like to extend our deepest condolences to the Smith family and friends. Our organization is saddened by this tragedy. Will Smith was a pillar of the community, that exemplified the overwhelming kindness and generosity that New Orleans is known for," the statement said. "We are stunned and saddened by this senseless tragedy. The Crescent City Kings do not enable or condone violence in any shape, form, or fashion."

    'Where's my husband?'

    Smith and his friends in the Impala were about 10 blocks away from Sake Cafe when the violence erupted.
    As the vehicles approached a five-point intersection in the city's Lower Garden District neighborhood, Hayes was driving behind them in an orange Hummer H2, police said.
    Hayes rear-ended the Mercedes, causing Smith's SUV to hit the Impala. Smith and Hayes argued, and then Hayes "produced a handgun and shot Smith multiple times, the female victim was also shot to the leg," a police statement said.
    Janis Baehr says she was in a nearby bed-and-breakfast when she heard the crash, dispute and at least five shots fired.
    The Florida resident, who was in town to celebrate a friend's birthday at French Quarter Fest, told CNN she went outside after she heard a woman shout, "Please, God, somebody, please help me!"
    There, she found Smith's wife, Racquel, on the sidewalk screaming, she said. Baehr got on the ground with her, and they prayed together before paramedics arrived.
    Baehr recalled Racquel Smith crying out, "Where's my husband? Where's my husband?"

    Hayes scheduled to appear in court

    According to the police report, Will Smith was "in the middle of the street partially inside of his vehicle suffering from multiple gunshot wounds to the body. He died at the scene."
    Hayes was still on the scene. Investigators recovered the weapon they believe he used, and it had no record, said Harrison, the police superintendent. Hayes also had a male passenger in the car with him. He was not identified, and Harrison said he had no information suggesting the passenger was involved in the shooting.
    Hayes appeared in court Monday afternoon to determine his counsel going forward in the case. Attorney Jay Daniels will also represent Hayes, CNN affiliate WWLTV reported. Fuller cannot represent Hayes for the entirety of his case because he begins a temporary stint as a judge in Orleans Parish Criminal District Court in May.