More blows to defense in murder trial

Lawyers for a man charged in the 2001 slaying of Lakemoor businessman Raul Briseno cannot present evidence claiming the victim sold drugs out of a successful restaurant he owned and that it may have led to his murder, a McHenry County judge ruled Friday.

The decision, one of four to go against defense lawyers Friday, is a blow to Kenneth E. Smith as he prepares to face a second trial in April on a first-degree murder charge alleging he fatally shot Briseno during a botched robbery of the victim's Burrito Express restaurant in McHenry.

Attorneys for Smith, 32, of Park City, want jurors to hear testimony that Lake County narcotics agents were investigating allegations drugs were being sold out of Briseno's Wauconda restaurant, Dos Hermanos, in the months leading up to his March 2001 killing.

In one police report created as part of that investigation, defense lawyer Christopher Parente said, an undercover officer states that he purchased cocaine from Briseno and another man.

"He was inviting trouble similar to what occurred March 6, 2001," Parente said.

McHenry County prosecutors objected to the defense request, arguing that there is no evidence that Briseno himself sold drugs or that his murder was drug-related.

Judge Sharon Prather agreed, saying the defense cannot establish a connection between the slaying and the drug allegations.

"It is purely speculation," she said. "It cannot be tied in to (the murder)."

Prather also rejected a defense request she allow evidence Briseno's wife was having an extramarital affair in 2001 and that could have led to the fatal shooting.

"You have to have some evidence to connect your theory to the crime, and you do not," she told defense lawyers.

The biggest blow for Smith's defense, however, may have come when Prather granted prosecutors' motion to give co-defendant Justin Houghtaling immunity if he testifies at next month's trial. Houghtaling, serving 20 years in prison after pleading guilty to his role in the Briseno murder, refused to testify against Smith at his first trial in 2003, citing his right against self-incrimination.

Now with immunity forced upon him, Houghtaling may be barred from citing the Fifth Amendment to avoid testifying. That would leave him with the option of testifying against his former friend or being found in contempt of court and having time added onto his sentence.

Authorities say it was Smith and Houghtaling who burst into the Burrito Express the night of March 6, 2001, armed with a handgun and planning to rob the business. However, police said, instead of handing over his money, Briseno grabbed a chef's knife and chased the would-be robbers out of the store.

During the case, police say, Smith fired his gun toward Briseno, striking and killing him.

Despite Houghtaling's refusal to testify, Smith was convicted of first-degree murder after his first trial and sentenced to 67 years in prison. An appellate court overturned the verdict a year later and ordered a second trial.