Guilty verdict for 2001 McHenry restaurant owner's murder
A jury deliberated 20 hours over three days before finding Kenneth E. Smith guilty of shooting and killing the owner of a McHenry burrito restaurant during a botched robbery in 2001.
Smith, 36, formerly of Park City, was convicted in 2003 and 2008 and sentenced to 67 years in prison, but both convictions were overturned by an appellate court.
He will be resentenced to 67 years on April 26. “Thirty-six people (on three juries) have found him guilty because he's guilty as sin,” said Assistant State's Attorney Michael Combs, the lead prosecutor in the case.
During Smith's most recent trial in Woodstock, Combs argued that Smith gunned down Raul Briseno, a 35-year-old father of two who authorities said chased Smith and another man on March 6, 2001, from the Burrito Express off Route 120.
During the seven-day trial, prosecutors argued that Smith and Justin Houghtaling, 30, of Round Lake, donned ski masks and went to rob the restaurant. But Briseno, a Wauconda resident who also owned a restaurant there, and a cook chased the pair out of the restaurant.
Houghtaling, who was unarmed, slipped in the parking lot and was grabbed by Briseno, who had a large butcher knife. But Smith, who had a gun, came back for Houghtaling, firing shots that killed Briseno, prosecutors said.
Houghtaling was arrested two months later and struck a deal with prosecutors to testify against Smith in exchange for the minimum 20-year sentence.
When called to the stand in this trial, Houghtaling said he and Smith had nothing to do with the robbery, that he was “tired of lying” and “the truth had to come out.”
Combs said he was hopeful the case could now be put to rest and Briseno's family could find some peace.
“They're obviously happy with the verdict and they're relieved. I hope for their sake this is over,” Combs said. “Raul's daughter was 7 when he was murdered. She's now 18 and an adult who has to go through this again.”
David Jimenez-Ekman, the lead attorney on Smith's defense team, said he will “continue the fight for justice.”
“We are deeply saddened and troubled by the jury's verdict,” Ekman said. “There was literally no sworn testimony against Kenneth Smith presented at this trial. The only evidence against him was an unsworn statement given 11 years ago by a 19-year-old boy (Houghtaling). That boy said and sounded like he was intoxicated, he was directly lied to by police and promised leniency, he gave a statement that conflicted mightily with the other evidence, and he took the stand in this trial to deny Mr. Smith's involvement even though he risked perjury for doing so.”
Ekman said he plans to appeal several issues, including Judge Sharon Prather's decision to ban evidence and testimony that Briseno was under investigation by police and could have had drugs and cash at the restaurant.
During trial, Ekman argued that there was no physical evidence to tie Smith to the scene and that the cook could not positively identify Smith or Houghtaling just days after the murder or during the trial.
Ekman pointed to several statements by a woman named Suzanne DeCicco, a 28-year-old heroin addict, who claimed she was the getaway driver when her boyfriend and cousin went to rob the burrito restaurant.
Ekman noted that DeCicco knew elements of the crime that were not public, such as Briseno being hit on the head with the pistol after being shot, and that a gun she claimed was used in the robbery could not be excluded as the murder weapon after being examined by a ballistics lab.