Appellate court again overturns guilty verdict in '01 restaurant slaying

Two years ago, a McHenry County jury convicted Kenneth Smith for a second time in the 2001 slaying of Lakemoor businessman Raul Briseno during a botched restaurant holdup.

And now, for a second time, a state appellate court has decided the jury did so wrongly.

In a unanimous 88-page ruling, the Illinois Second District Appellate Court overturned Smith's first-degree murder conviction, vacated his 67-year prison sentence and ordered a third trial in the killing.

McHenry County State's Attorney Louis Bianchi now has to decide whether to make plans for that third trial or first ask the Illinois Supreme Court to take a look at the case and consider overruling the appellate court.

"We are going to review the opinion and also talk with the appellate prosecutor's office to see what our appeal options are," he said Monday.

Authorities say Smith, 34, formerly of Park City, fatally shot Briseno March 6, 2001, while trying to rob the Lakemoor man's Burrito Express restaurant in McHenry. The 35-year-old victim was gunned down in a parking lot, police said, while chasing Smith and a second would-be robber, Justin Houghtaling, from the business.

Houghtaling, formerly of Round Lake, pleaded guilty and received a 20-year prison term in exchange for his promise to testify against Smith. He later reneged on the deal, however, causing problems for prosecutors throughout both of Smith's trials.

A jury first convicted Smith in 2003, but the appellate court set aside the verdict and ordered another trial, ruling that jurors heard improper testimony. McHenry County prosecutors retried Smith in 2008, again winning a conviction at jury trial.

Among the reasons cited for overturning the second verdict was a decision by presiding Judge Sharon Prather to bar testimony from a McHenry man who, according to other witnesses, claimed to have shot Briseno.

"The jury could not have given Mr. Smith a fair trial without hearing that another man confessed to three people that he killed Raul Briseno," Smith attorney David Jiminez-Ekman said Monday.

Justices also took issue with testimony from a female acquaintance of Smith's who told jurors he pointed a gun, or something that looked like a gun, at her several days before the murder.

For now Smith remains locked up in the maximum-security Menard Correctional Center downstate, but he would be transferred back to the McHenry County jail if county prosecutors move forward with a third trial.