from Circuit Court of Vermilion County No. 10CF647 Honorable
Nancy S. Fahey, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justices Holder White and Knecht concurred in the judgment
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
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
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
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 ...