Second jury agrees with the first: guilty

More than seven years after a masked gunman cut short his life, Lakemoor businessman Raul Briseno finally can rest in peace, his family said Thursday after a McHenry County jury found his accused killer guilty in his slaying.

The jury of nine men and three women deliberated about 8 hours Thursday before finding Kenneth Smith guilty of first-degree murder and attempted armed robbery for the shooting during a March 2001 holdup of Briseno's Burrito Express restaurant in McHenry.

Smith, 32, of Park City, hunched over and bowed his head as Judge Sharon Prather read the guilty verdicts. He now faces a minimum 45-year prison term when sentenced Oct. 22.

Jurors declined to comment on the verdict as they left the McHenry County courthouse.

Briseno's seven siblings and son exchanged hugs outside the courtroom then offered praise for the assistant McHenry County state's attorneys who prosecuted the case.

"We can finally close the book on this and (Raul) can rest in peace," Briseno's sister, Maria Carrera, said.

"Justice has been done," his son, Raul Briseno Jr., added.

Smith's attorneys promised an appeal.

"We're very disappointed by the verdict and believe we have a number of good issues on appeal," defense lawyer David Jimenez-Ekman said.

Chief among those issues is Prather's refusal to accept a plea bargain that would have allowed Smith free in about 10 years. Defense lawyers believe Prather acted outside her authority by blocking the deal they negotiated with prosecutors.

Authorities said Briseno, 35, was murdered as he chased two would-be robbers from his restaurant March 6, 2001. Briseno, according to a witness, had caught one of the men and was pulling him back toward the business when the second - Smith, according to the jury - fatally shot him.

It is the second time a jury ruled Smith guilty of killing Briseno. He was convicted of the charges after a 2003 trial, but a state appeals court overturned the verdict two years later and ordered a retrial.

The trial was a challenging one for county prosecutors, who had to contend with a co-defendant, Justin Houghtaling, going back on his deal to testify against Smith. Under questioning by prosecutors last week, Houghtaling initially told jurors he and Smith were responsible for the murder. But moments later, in response to defense questions, he testified that prosecutors were forcing him to lie and, in reality, he and Smith had nothing to do with the slaying.

Prosecutors also surprised many by choosing not to call another co-defendant, convicted getaway driver Jennifer McMullan, after cutting a deal to let her out of prison 20 years early if she testified against Smith. They will go to court Friday to argue that McMullan violated her end of the deal and should remain behind bars for her full 27-year sentence.

During closing arguments earlier Thursday, prosecutors repeatedly pointed to Kenneth Smith and called him "murderer" in front of jurors.

"This guy right here irrevocably changed so many lives when he chose to arm himself that night," Assistant McHenry County State's Attorney Michael Combs said, pointing to Smith. "Raul Briseno had too much pride to give in to a couple of punks and he chased them out, and he paid for it with his life."

Defense lawyers hammered on the lack of physical evidence linking Smith to the murder, noting that even the coat police say Houghtaling was wearing when Briseno was shot in his arms had no blood on it. Houghtaling even wore the jacket into the McHenry Police Department the next day to be questioned by detectives.

"The suggestion that no blood transferred onto that jacket and Mr. Houghtaling was so confident that no blood transferred onto it that he wore it into the police station is totally incredible," Jimenez-Ekman said.

Both sides spent large portions of their closing arguments on Houghtaling, a 26-year-old former Round Lake resident serving a 20-year prison sentence as part of the deal he took to testify against Smith.

"The man, as I think we all saw, is crazy," Jimenez-Ekman said. "That's the crux of the state's case and there's nothing there."

Prosecutors, however, said Houghtaling could be believed when he first confessed to the murder in May 2001 after police arrested him in Omaha, Neb.

"He had no motivation to implicate himself in the crime, yet he gave specific details," Assistant McHenry County State's Attorney Philip Hiscock said. "Justin Houghtaling was there. The defendant was there."