Danville murder retrial, Day 3: Accused's cousin testifies to robbery scheme

Danville murder retrial, Day 3: Accused's cousin testifies to robbery scheme

DANVILLE — Davieon Harper testified Wednesday that he and his cousin, Lafayette Harper, laid a plan to make a drug deal with two men on Oct. 24, 2009, knowing they didn't have any marijuana to sell, with the intent to rob them of their money.

But Harper — who is serving a 30-year sentence for murder in the fatal shooting of one of the men, Timothy Shutes Jr. — claimed neither he nor his cousin planned to kill anyone at Elmwood Park that night.

"Did you know Lafayette was going to come with that shotgun?" special prosecutor William Bryant, an assistant Illinois attorney general, asked Harper on the stand.

"Nah," Harper said, acknowledging his cousin later told him the shooting was an accident.

Harper said that eventually the two had occasion to talk about the armed robbery-turned-murder, and he asked his cousin, "Why did you do that?"

"He said, 'Bro, I'm sorry, bro. I didn't mean to,'" Harper said. He said his cousin went on to say that after Davieon Harper's 2010 conviction, he, Lafayette Harper, went home and cried and drank for two days.

Harper testified on the third day of Lafayette Harper's second murder trial in the fatal shooting of Mr. Shutes, 20, of Danville.

Mr. Shutes died from a shotgun wound to the head and was shot at close range, according to the forensic pathologist who performed the autopsy.

Lafayette Harper, now 35, was convicted of murder in October 2014, and the jury found he personally fired that gun that caused the death. He was sentenced to 65 years in prison in December of that year.

However, in July 2017, the appellate court reversed the conviction, saying the trial court erred by allowing the jury to see the content of text messages sent to his phone the night of the murder, "which contained inadmissible hearsay regarding the defendant's rumored involvement" in the murder.

His second trial, which started Monday, is scheduled to continue at 9:30 a.m. today.

Davieon Harper, now 37, was convicted of murder and armed robbery in September 2010 and sentenced that November. Under state law, he must serve 100 percent of his sentence.

The plan: 'lay in wait'

Wearing handcuffs and shackles, Harper — an inmate at Stateville Correctional Center — testified that his brother, Donterrace Harper, hooked him up with Mr. Shutes and Randall Smalley, who were looking to buy five pounds of marijuana. When they wouldn't agree to his initial price of $800 a pound, he offered to sell it to them for $700, or $3,500, which they accepted.

Davieon Harper said he called around, but "nobody had that much on such notice." When he asked his cousin if he had any, he said, the two decided to set up the deal so they could steal the money.

"The plan was I was to get with Tim and Randy and sort of like befriend them," he recalled. "I was going to carry my .22 pistol."

He said his cousin would grab the money and run off. Then he would fire shots in the air, pretending to shoot at the thief, to make Mr. Shutes and Smalley believe it was an ambush.

He added that he didn't want to lose them as customers. "In the future, I was thinking I would do more business with them or give them a better deal," he said.

Davieon Harper said that on the evening of the deal, he picked up his cousin after he got done with his job, cutting hair. He said his cousin was carrying a bookbag, which he'd seen him with before. Then he dropped him off at Elmwood Park, chosen because they knew it would be secluded and dark.

"We decided he was going to lay in wait ... and wait 'til I pull up," Davieon Harper said, adding that he parked in front of the house of "one of my lady friends" to wait for Mr. Shutes and Smalley.

Davieon Harper said that as part of the ruse, he told the men the deal was to take place at a house on Moore Street, and he wanted to drive them there. He said they wanted to take their car but eventually got into his car.

He said Smalley sat next to him in the front passenger seat, while Mr. Shutes sat directly behind Smalley. He said earlier, he'd placed his son's car seat behind the driver's seat, "so they could be on one side — one behind the other."

'Just happened so fast'

Then, as part of the plan, he called his cousin on speakerphone. His cousin asked if they had the money, then said the location was changed to Elmwood Park. He also said he texted his cousin a number to let him know where the money was in the car.

"It was either a '1' or a '2,'" he said, adding that he couldn't remember.

Davieon Harper said that on the way to the park, he made small talk, including asking Mr. Shutes what his last name was. When he recognized it, he asked him if he knew a Josh Shutes.

"He said, 'Yeah, that's my brother,'" Harper recalled. "I said, 'I ain't talked to Josh since middle school.' By that time, that's when the door opened."

He said he saw Mr. Shutes struggling over something.

"Now I know it was the shotgun," he said, adding that he played his part, pretending it was an ambush. "It just happened so fast ... the gun go off, the shotgun."

Harper said he saw his cousin grab the bag with the money and run off through the park. He said Smalley panicked and ran off.

When he looked in the back seat, he said he saw smoke. Then he saw Mr. Shutes' wound. He then ran to a nearby shed and threw his pistol on the roof to hide it. Then, he put Mr. Shutes' legs in the car and drove him to the hospital. On his way out of the park, he saw Smalley and told him where he was going.

From the hospital, Harper said he went to the Public Safety Building, where he was questioned by police. When Bryant asked him why he lied about what happened, he said, "I knew if I told him the truth for this ... I would go down for murder," he said. "I wanted to get a lawyer, so I could work out a deal."

Harper also admitted to trying to delete numbers on his phone prior to turning it over to police.

'Cooperation agreement'

During cross-examination, Vermilion County Public Defender Mike Mara, who is representing Lafayette Harper, tried to cast doubt on the elder Harper's honesty, asking him why he didn't tell police about the plan or name his cousin as the shooter the multiple times he was interviewed.

He also asked Harper if he remembered saying at his sentencing in 2010 that he didn't set up a robbery, that Mr. Shutes and Smalley were the ones who tried to rob him, "and I had to pay for it."

Mara also questioned Harper about the current status of his case and how that would change under a "cooperation agreement" he made with the Illinois Attorney General's Office.

Earlier under questioning by Bryant, Harper acknowledged he's filed a petition for post-conviction relief and was hoping to have the murder charge thrown out and sentence reduced. He also acknowledged signing an agreement on April 6 with prosecutors in which he would receive 141 months for armed robbery in exchange for providing truthful testimony at his cousin's trial. He would only have to serve 85 percent of the sentence.

Under that deal, he could be released as early as October or have to serve another nine years and nine months at most.

Firearms expert testifies

Also on Wednesday:

— Former Danville police Sgt. Josh Campbell testified Davieon Harper and later Lafayette Harper turned over their cellphone numbers to him during interviews, and he subpoenaed their phone records for the day of the shooting.

Campbell testified the records showed outgoing calls were made from Davieon Harper's number to his cousin's number at 7:05 p.m., 7:54 p.m. and 8:15 p.m. that night, and an outgoing call was made from Lafayette Harper's number to Davieon Harper's number at 7:25 p.m. that night.

Campbell said the records also showed that a text message was sent from Davieon Harper's number to Lafayette Harper's number at 7:15 p.m. The content, he said: "\ n 1"

— Carolyn Kersting, a firearms expert with the Illinois State Police Forensic Science Lab in Springfield, testified she tested a Ruger 9 mm pistol, another handgun, a shotgun and two fired shotgun wads sent to the lab by Danville police.

Kersting said she determined the shotgun was either a 10-gauge or a 12-gauge and that all of the guns fired.

During cross-examination by Mara, she said she was unable to match the lead and wadding to a specific gun, because the lead was "so mutilated" that there weren't any unique characteristics to observe.

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