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Lafayette Harper

Other Illinois Murder Exonerations
At about 7:30 p.m. on October 24, 2009, 20-year-old Timothy Shutes Jr. and Randy Smalley agreed to meet 28-year-old Davieon Harper to purchase five pounds of marijuana for $3,500 in Danville, Illinois. At the last minute, Harper asked Smalley and Shutes to get into his car and they drove to a park.

Harper was behind the steering wheel, Smalley was in the front passenger seat, and Shutes was in the back seat with a backpack containing the cash and a handgun. As they chatted, the back seat door suddenly opened and a man wearing a hood pointed a shotgun at Smalley and grabbed for the backpack. At the same time, Harper grabbed Smalley in a headlock and held a handgun to his body.

When Shutes resisted, the shotgun discharged and Shutes was hit in the head at point-blank range. The gunman grabbed the backpack and fled. Smalley bailed out of the car and ran. Harper drove Shutes to the hospital where he died shortly after arrival.

Later that night, based upon a statement from Smalley, Harper was charged with first-degree murder, armed robbery, and unlawful use of a weapon.

In September 2010, Harper went to trial in Vermilion County Circuit Court. He was convicted, largely based on the testimony of Smalley, and sentenced to 30 years in prison.

On November 22, 2010, Harper’s cousin, 36-year-old Lafayette Harper, was charged with first-degree murder. Police said that in May 2010, about seven months after the crime, Smalley had identified Harper as the man who shot Shutes with the shotgun.

In October 2014, Harper went to trial in Vermilion County Circuit Court before a six-person jury. Smalley testified that he arranged for Shutes to buy five pounds of marijuana from Davieon Harper for $3,500. Shutes and Smalley met Davieon on the east side of Danville. Davieon told Smalley and Shutes they would have to ride with him because the seller did not want additional vehicle traffic. Smalley got in the front passenger seat and Shutes got in the back seat on the passenger side.

Smalley testified Davieon was on his cell phone on the way to the park and that he could hear text messages being sent to and from Davieon's phone.

At the park, Smalley said 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 the backpack. When Shutes and the man started fighting for the backpack, Davieon, who weighed well over 300 pounds, pulled a gun, grabbed Smalley around the neck, and said, “If you move, you're dead.”

Smalley said he was “sitting sideways in the seat” and could see the struggle between the shooter and Shutes. He said he saw the other man hit Shutes in the head with the end of the shotgun and then Shutes was shot.

Smalley said Davieon left the car, said something to the shooter, and then tossed his gun onto the roof of a nearby building. Smalley said he ran until he saw someone whom he asked to call police.

That night, Smalley told police that he did not know who the shooter was. He said the gunman was a black man wearing a tan jacket, a dark shirt, and blue jeans. However, at Davieon’s trial in September 2010, nearly a year after the shooting, he said for the first time that the gunman was wearing a hooded sweatshirt with the hood up and the strings pulled creating a smaller opening for the gunman’s face. He said that although it was dark and the park was not well lit, he saw the lower half of the gunman’s face.

Two days after the shooting, Smalley viewed a photographic lineup that included a photograph of Harper, but he did not identify him as the gunman.

Smalley testified that police gave him the names of three or four other possible suspects in early 2010. Although he looked them up on the internet, he did not identify any of them as the gunman.

Smalley also testified that he told police that he had figured out that Harper was the gunman after seeing Harper’s mugshot online, although he could not say how he came across it.

Brian Long, a fingerprint examiner, testified that he matched three prints from the rear passenger door of the vehicle to Harper’s right thumb and middle and ring fingers. Long said he did not know when those prints were left on the vehicle or whether Harper had been in his cousin’s car in the past.

Jennifer Aper, a forensic scientist at the Illinois State Police forensic science laboratory, testified that she found a mixture of DNA on the backpack and that Harper could not be excluded as the contributor. She said that approximately 25 percent of unrelated African Americans, Caucasians, and Hispanics also could not be excluded as being contributors. She also testified that she excluded Harper as the source of DNA found on the recovered shotgun.

The prosecution presented testimony that around the time of the shooting, cellular telephone records showed numerous calls between Harper and Davieon. The prosecution also sought to introduce text messages on Harper’s phone. The text messages, which began approximately three hours after the shooting, included a message saying, “I heard you had something to do with a white boy getting killed today[.]”

One minute later, a response was sent from Harper’s phone, stating: “What white boy[?]”

Several minutes later, another message was sent from Harper’s phone saying “Hello [.]” A message was then sent to Harper’s phone: “Out in the hood[.]” A message was then sent from Harper’s phone, saying: “What are [you] talking about[?]”

The person on the other phone then texted, “I heard a white boy got killed in the hood and you and some of your guys did it[.] [T]hat's the word on the streets[.]”

Harper's defense attorney objected to text messages, arguing that they contained inadmissible hearsay. Judge Nancy Fahey said, “There's no way I am going to allow those business records with the attached text messages to go back to the jury. The text messages are not going to be included when that goes back to the jury.”

However, the next day, the judge changed her ruling and said she would allow the jury to see the text messages.

On October 2, 2014, the jury convicted Harper of first-degree murder. He was sentenced to 65 years in prison.

In July 2017, the Illinois Appellate Court reversed Harper’s conviction and ordered a new trial. The court noted that the defense had argued that in addition to the text messages being inadmissible hearsay, the prosecution, prior to the trial, said it would not introduce any of the text messages.

The appeals court said that the judge’s reversal of her initial ruling to bar the text messages put Harper at a disadvantage in defending himself. “The trial court's decision to allow the jury to see the content of these inadmissible text messages sent to defendant was extremely prejudicial,” the court declared.

“One of the main points of (the defense) case was the weakness of Smalley's identification of defendant as the shooter. The hearsay text messages to defendant regarding his involvement in the murder strengthened… Smalley's identification,” the court said.

“Unlike Smalley's identification, which came months after the murder, the inadmissible text messages showed unknown people in the community were identifying defendant as the killer within hours of the murder,” the court said. Because the prosecution did not identify who sent the messages or where the sender of the message received the information that was texted, Harper was not able to challenge the reliability of the person sending the message or the individuals spreading this ‘word on the street,’” the court ruled.

Prior to Harper's retrial, Davieon accepted a prosecution offer to reduce his 30-year-old prison sentence to 10 years if he testified for the prosecution.

In January 2019, Harper went to trial a second time. Davieon testified that Harper was the gunman. He testified that the drug deal was a set up, and the intent was to rob Shutes and Smalley.

Harper’s defense attorney, Vermilion County public defender Michael Mara, presented evidence that in 2013, prior to Harper's first trial, Davieon wrote a letter to Harper. In the letter, Davieon said that he would testify on Harper’s behalf that Harper’s fingerprints were on the car because Harper was frequently in the car.

Mara also called Dr. Aaron Benjamin, an expert on eyewitness identification. Benjamin testified that Smalley’s identification was suspect because memories begin to fade almost immediately after the incident. He said that not only was the shooting a traumatic event, but it occurred at night under poor lighting conditions when Smalley’s own life was being threatened.

Benjamin said that Smalley’s identification of Harper was suspect because he was unable to pick Harper out of a photographic lineup two days after the shooting. Benjamin also testified that when Smalley saw Harper's photograph on the internet many months later, he may have identified him then because he saw Harper's photograph in the initial photo lineup, not because he saw him at the scene of the crime.

On January 14, after two hours of deliberation, the jury acquitted Harper and he was released from prison. In August 2019, Harper filed a lawsuit in U.S. District Court against the city of Danville and several of its police officers. The lawsuit was dismissed in 2022.

– Maurice Possley

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Posting Date: 2/14/2019
Last Updated: 6/29/2023
Most Serious Crime:Murder
Additional Convictions:
Reported Crime Date:2009
Sentence:65 years
Age at the date of reported crime:35
Contributing Factors:Mistaken Witness ID
Did DNA evidence contribute to the exoneration?:No