Prosecutors hope to force killer to testify in retrial

A former Round Lake man serving time for the 2001 slaying of Lakemoor businessman Raul Briseno may get immunity to testify against co-defendant Kenneth E. Smith -- whether he likes it or not.

McHenry County prosecutors Thursday filed court documents asking a court to grant "use" immunity to Justin Houghtaling, a ruling they believe would prevent the 25-year-old convicted murderer from invoking the Fifth Amendment to avoid giving testimony.

The request comes as Judge Sharon Prather reluctantly postponed Smith's trial again Thursday at the request of defense lawyers who say they still are examining information about the case recently disclosed by prosecutors. The trial had been set to begin Sept. 24, but its start now seems unlikely before late October or November.

Smith, 31, of Park City, faces charges of first-degree murder and attempted armed robbery stemming from the March 2001 killing of Briseno outside his Burrito Express restaurant in McHenry. Briseno, 35, was gunned down when he grabbed a kitchen knife and chased two would-be robbers out of the business, authorities say.

Smith was found guilty in 2003. But an appellate court overturned the verdict a year later, setting up the pending re-trial.

When that new trial finally does begin, prosecutors hope to call Houghtaling to testify he and Smith were those would-be robbers. Houghtaling took a plea deal in November 2001 under which he received the minimum 20-year sentence for first-degree murder in return for his promise to testify against Smith.

Houghtaling broke that promise at Smith's first trial when he refused to answer questions by citing his Fifth Amendment rights. Now prosecutors hope to remove that option by forcing immunity on him.

"If we give him immunity, then the court can order him to testify," Assistant McHenry County State's Attorney David Johnston said.

If Houghtaling still refuses after receiving immunity, he could be held in contempt of court and have his 2001 plea deal revoked, exposing him to another 40 or more years in prison. Johnston said that is something he would rather avoid.

"We would much rather have him live up to his agreement," he said.

In the meantime, Smith's defense said Thursday is examining information that Briseno's murder was the result of "drug activity" associated with one of his restaurants.

Johnston said there is no evidence Briseno himself was involved in drug trafficking.

"I don't think there's any proof he dealt drugs to anybody," he said.