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People v. Harper

Court of Appeals of Illinois, Fourth District

July 13, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LAFAYETTE HARPER, Defendant-Appellant.

         Appeal from Circuit Court of Vermilion County No. 10CF647 Honorable Nancy S. Fahey, Judge Presiding.

          POPE JUSTICE delivered the judgment of the court, with opinion. Justices Holder White and Knecht concurred in the judgment and opinion.

          OPINION

          POPE JUSTICE

         ¶ 1 In October 2014, defendant, Lafayette Harper, was convicted of first degree murder. In December 2014, the trial court sentenced him to 65 years in prison. Defendant appeals, raising the following arguments: (1) the State failed to prove his guilt beyond a reasonable doubt; (2) defendant's waiver of a 12-person jury was not knowing and intelligent; (3) the court erred in admitting the content of text messages from a cell phone registered to defendant because the messages lacked authentication and contained multiple layers of hearsay; (4) the court erred in admitting statements made by Davieon Harper under the coconspirator exception to the hearsay rule; (5) the State violated defendant's due process rights when it disposed of the vehicle where the shooting occurred before defendant could collect potentially exculpatory evidence from it; (6) the State erred in shifting the burden of proof to defendant during the State's rebuttal closing argument; and (7) defendant's 65-year prison sentence was excessive. We reverse defendant's conviction and remand for a new trial because the court erred in allowing the jury to see the inadmissible content of text messages stating unsubstantiated street rumors that defendant had killed a "white boy" after repeatedly telling defendant the jury would not see the content of those text messages.

         ¶ 2 I. BACKGROUND

         ¶ 3 In November 2010, the State charged defendant by information with four counts of first degree murder for the death of Timothy A. Shutes, Jr. Shutes was killed on October 24, 2009. This court has decided two interlocutory appeals in the case related to motions to suppress statements made by defendant to police during an interrogation. People v. Harper, 2012 IL App (4th) 110880, 969 N.E.2d 573; People v. Harper, 2013 IL App (4th) 130146, 1 N.E.3d 654. The interlocutory appeals are not relevant to our disposition here.

         ¶ 4 On January 8, 2013, defendant filed a motion to bar the prosecution from using fingerprint evidence it obtained from the vehicle where the shooting occurred because the State had not preserved the vehicle. The Illinois State Police crime lab identified some of the fingerprints lifted from the back passenger door of the vehicle as belonging to defendant. After the police processed the vehicle as part of their investigation, the car was towed to Coultas Recycling. The car was later crushed for scrap in October 2011, about two years after the murder and almost one year following the filing of the charges herein. On March 24, 2014, defendant filed an amended motion to bar the evidence for failure to comply with section 116-4 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/116-4 (West 2012)).

         ¶ 5 On June 30, 2014, the trial court denied defendant's motion to bar the State from using the fingerprint evidence. The court ruled the vehicle was not forensic evidence. Instead, the fingerprints taken from the vehicle were the forensic evidence. This evidence had been preserved and was available to defendant. The court noted, "the Defendant has not alleged that the vehicle in question contained any other specific evidence in or on the vehicle that was not already obtained that would exonerate the defendant." Further, the court found the fingerprints were not determinative to the outcome of the case. The order states, "The Defendant makes the argument that they are pivotal in this specific case, however, a First Degree Murder charge can be proven without fingerprint evidence unlike the situation in Newberry where the charge was possession of a Controlled Substance and the controlled substance was destroyed." The court also noted defendant did not allege the State or police did anything in bad faith.

         ¶ 6 At defendant's trial before a six-person jury, Randall Smalley testified he arranged for Shutes to buy marijuana through Davieon Harper. The parties agreed to a purchase price of $3500 for five pounds of marijuana. Shutes and his girlfriend, Ieca Smalley, who was Randall's sister, picked up Randall so they could meet Davieon on the east side of Danville. Davieon told Randall and Shutes they would have to ride with him because the seller did not want additional vehicle traffic. Randall got in the front passenger seat and Shutes got in the back seat on the passenger side. Ieca Smalley did not go with the men.

         ¶ 7 Davieon told Randall they were going to make the exchange at a park. Randall testified Davieon was on his cell phone on the way to the park. Randall could hear text messages being sent from and to Davieon's phone. Davieon called someone while they were driving and told the person on the other end of the call Randall and Shutes had the money for the drugs. When the person on the other end of the call asked if the buyers had $3500, Davieon took the call off speakerphone.

         ¶ 8 After arriving at the park, Davieon received a text message and then, about two minutes later, he got another text message. Almost immediately after the second message, someone opened the back door of the vehicle and reached for Shutes's backpack. Shutes and the man started fighting for the backpack. Randall looked down and saw Davieon had a gun. Davieon told Randall, "If you move, you're dead." Davieon, who weighed between 300 and 400 pounds, grabbed Randall around the neck and restrained him. Randall was "sitting sideways in the seat" and could see the struggle between the shooter and Shutes. Randall saw the other man hit Shutes in the head with the end of the shotgun and then he shot Shutes.

         ¶ 9 After the shooting, both Davieon and the shooter left the vehicle. The shooter ran around the car and the two said something to one another. The shooter ran off, and Davieon then tossed his gun onto the roof of a building. Randall got out of the car and ran to the closest person he saw outside, so he could use the person's phone.

         ¶ 10 Randall called the police and then ran back toward the car. Davieon was back in the car and drove off with Shutes. Randall got a ride to where his sister was waiting. The two then drove to the hospital. When they got to the hospital, his sister hopped out of the car, but Randall left because he saw the police approaching his sister. Instead, he drove to his parents' house and called the police.

         ¶ 11 Randall talked to the police that night. At that time, he did not know who the shooter was. He only saw the bottom half of the shooter's face, from the nose down, because the shooter had on a hooded sweatshirt, the hood was up, and the strings were pulled, making the opening for the shooter's face smaller. He did not tell the police during the initial questioning about the hooded sweatshirt. His first testimony regarding the shooter wearing a "hoodie" was in September 2010, presumably at Davieon's trial. Randall could see the shooter had sideburns and some facial hair.

         ¶ 12 On cross-examination, Randall testified he met with Detective Stark and Officer Pat Alblinger around 9:15 on the night of the shooting. He described the shooter as a black man in his late 20s to 30s, 6 feet 4 inches to 6 feet 5 inches tall, with a skinny build, wearing a tan jacket, dark shirt, and blue jeans. Two days later, on October 26, 2009, Randall was shown a photo lineup that included defendant. He did not identify defendant in the lineup.

          ¶ 13 Randall testified he had been given the names of three or four other possible suspects prior to May 2010. He looked these people up on the Internet. He did not identify any of those individuals as the shooter. Randall admitted he previously testified at a hearing in September 2010 (again presumably at Davieon's trial) that he did not see the shooter's face. It was during this testimony that Randall first mentioned the shooter was wearing a dark "hoodie." On redirect examination at defendant's trial, Randall clarified his earlier testimony regarding what he saw, stating he meant he did not see the shooter's entire face.

         ¶ 14 On May 24, 2010, Randall told Detective Bransford he knew defendant was the shooter after seeing defendant's picture online. The record is unclear how Randall came across defendant's picture online. The record reflects Randall had been given the names of other potential suspects in the murder. However, the record is not clear whether anyone provided defendant's name to Randall. The photograph he saw online, which the State introduced as People's exhibit No. 51-1, was a mug shot of defendant. He also saw People's exhibit No. 51-2 online, a side-profile mug shot of defendant, whom he identified as the shooter. Randall admitted it was dark when the shooting occurred, and the park was not well lit.

         ¶ 15 Logan Vance testified he was in cosmetology school with defendant in 2009. He obtained shotgun shells for defendant in September or October 2009.

         ¶ 16 John Scott Denton, a forensic pathologist, testified he performed an autopsy on Shutes and determined the cause of death was a shotgun wound to the head.

         ¶ 17 Brian Long, a forensic scientist specializing in the examination of latent prints, testified he examined fingerprint evidence collected from the vehicle. He matched three prints from the rear passenger door of the vehicle to defendant's right thumb and middle and ring fingers. Long stated he did not know when those prints were left on the vehicle.

         ¶ 18 Jennifer Aper, a forensic scientist at the Illinois State Police forensic science laboratory, testified she tested deoxyribonucleic acid (DNA) found on a backpack. Defendant could not be excluded as the contributor of the DNA on the backpack. When asked about the statistics assigned to that evidence, she stated that approximately 25% of unrelated African-Americans, Caucasians, and Hispanics could not be excluded as being contributors to the mixture of DNA profiles found on the backpack. On cross-examination, Aper testified she excluded defendant as the source of DNA found on the recovered shotgun.

         ¶ 19 Detective Josh Campbell of the Danville police department testified he was involved in the murder investigation. He met with Davieon Harper on the night of the shooting. Davieon provided Campbell with his cellular phone. The number for the phone was 217-712-0758.

         ¶ 20 Dan Markus, a customer service analyst and legal liaison at Verizon, testified the phone number 217-474-3731 was registered to defendant. Through Markus, the State introduced a call log showing calls to and from this number. Around the time of the shooting, the phone records showed numerous calls between the phone Davieon provided to the police and the phone registered to defendant.

         ¶ 21 Near the end of the second day of trial, when the parties and the trial court were discussing the State's exhibits, defense counsel made an objection with regard to the Verizon phone records for a cellular phone registered to defendant. In part, defendant argued the records included text messages that contained inadmissible hearsay. The court admitted the records over defendant's objection. Shortly after the court agreed with the State that the phone records were admissible, defense counsel asked the court to revisit the issue. Defense counsel noted:

"With regard specifically to the text messages, I believe when we were discussing objections [prior to the trial], Your Honor, [the State] indicated to the Court specifically that there was not going to be any text messages that were going to be introduced through the witnesses which she called in her case in chief. I would like to add that as an addition to my objection to the fact that the records themselves are hearsay. I understand she-it's her position that they are kept in the ordinary course of business, but they are not just the records of the phone contacts themselves. There's actual information in that, and it's not relevant- those messages are not relevant to this case at hand, Your Honor, and no one has testified about those, the contents of those. All this being said, Judge, I don't think the ...

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