 Kenneth Smith (right) with his attorney, David Jimenez-Ekman (Photo: Corryn Brock for Shaw Local)
Both robbers then fled on foot.
Two months later, police picked up 19-year-old Jennifer McMullan and questioned her about the crime. On May 11, 2001, after about 12 hours of interrogation, McMullan gave a video-taped statement in which she admitted driving 18-year-old David Collett, 19-year-old Justin Houghtaling, and 25-year-old Kenneth Smith to an area near the Burrito Express. She said she thought they planned to commit a robbery.
When police asked what she thought was going to happen when Houghtaling and Smith left the car, McMullan said, "Probably like just rob somebody on the street, I don't know. I thought they were maybe going to rob a person, not a store or anything." She said she heard shots and afterward drove Smith and Houghtaling from the scene. McMullan said in her statement that Smith admitted he shot someone.
Police arrested Collett and went searching for Houghtaling. He was not home, but his mother said he was on a bus headed for California. When the bus made a routine stop in Omaha, local police took him into custody. The following day, May 12, 2001, McHenry police flew to Omaha. During an interrogation, police falsely told him that McMullan, Collett, and Smith all had been arrested and all had been interviewed. According to the officers, Houghtaling said, “We were just supposed to rob the guy. I didn’t shoot him. Kenny did.”
Houghtaling gave a detailed statement that would later be shown to have numerous facts that contradicted the evidence gathered by police.
On May 14, Smith was arrested. All were charged with murder and attempted armed robbery.
In September 2001, Collett pled guilty to attempted armed robbery—the prosecution contended he knew a crime was about to be committed—and was sentenced to five years in prison. He maintained that he left the car before the shooting occurred. However, he agreed to testify against the other defendants.
On November 14, 2001, Houghtaling pled guilty to first-degree murder. He agreed to testify for the prosecution against McMullan and Smith. In return, he was sentenced to 20 years in prison.
In March 2002, McMullan went to trial in McHenry County Circuit Court. Based largely upon her confession and the testimony of Houghtaling and Collett, she was convicted of first-degree murder and attempted armed robbery.
In May 2002, Houghtaling wrote a letter to McMullan’s mother saying that he and McMullan were not involved in the crime. He said he agreed to plead guilty because he got the minimum sentence of 20 years. “I took the deal cause I was scared,” he wrote. “I can’t do hard time.”
McMullan’s lawyer presented the letter at McMullan’s sentencing and argued McMullan was entitled to a new trial. The judge rejected the recantation as untrustworthy and sentenced McMullan to 27 years in prison.
In the spring of 2003, Smith was about to go to trial when the prosecution reported it discovered ballistics tests on a .22-caliber pistol that had been misplaced. The gun had been recovered in November 2001 when Vicki Brummett said she believed that she possessed the gun used in the Burrito Express shooting. The police recovered the revolver from Brummett’s home and sent it to the state police for testing. A state firearms analyst reported that the gun could have been the murder weapon based on tests performed in the crime lab.
In June 2003, Smith went to trial in McHenry County Circuit Court. The prosecution called Houghtaling to testify. When Houghtaling took the witness stand, he invoked his Fifth Amendment protection against self-incrimination and refused to testify. The trial judge then allowed the prosecution to introduce Houghtaling’s statement to police during his interrogation in Omaha.
No physical or forensic evidence linked Smith—or Houghtaling, McMullan or Collett—to the crime.
On June 26, 2003, the jury convicted Smith of first-degree murder and attempted armed robbery. He was sentenced to 67 years in prison.
In 2004, the Illinois Appellate Court for the Second District vacated Smith’s conviction and ordered a new trial. The appeals court ruled that allowing the prosecution to present Houghtaling’s statement violated Smith’s right to cross-examine his accuser.
In November 2007, the prosecution and Smith’s defense lawyer agreed that Smith would plead guilty to second-degree murder and receive a sentence that would allow him to be released in just under 12 years. The trial court judge, Sharon Prather, refused to accept the plea agreement. Judge Prather called the deal a “manifest injustice” to the county and the family of Raul Briseno. The prosecution said that the case had weakened and that Pardo, Briseno’s employee, had been deported and could not be located.
However, after family members of Briseno located Pardo in Louisiana, the prosecution moved ahead with a second trial, which began in August 2008. Houghtaling was again called as a witness. During his direct testimony, he testified that he and Smith committed the crime and that Smith shot Briseno.
However, when cross-examination began, Houghtaling recanted his direct testimony. He said that the story he told under questioning by the prosecutor, Michael Combs, was false. Houghtaling said the prosecution was forcing him to admit to a crime to convict Smith of a crime he did not commit. The prosecution then impeached him with his statement to police in Omaha.
The defense sought to introduce evidence that the crime was committed by a different group of people. The defense claimed that Russell “Rusty” Levand, his girlfriend, Susanne “Dallas” DeCicco, and her cousin, Adam Hiland, were responsible. The .22-caliber pistol that was said to possibly be the murder weapon had been recovered from the home of Vicki Brummett, DeCicco’s mother.
DeCicco and Hiland were called to testify, but both denied involvement in the shooting. Smith’s defense then sought to introduce evidence that DeCicco and Hiland had previously admitted to others that they were involved. The trial judge, however, barred Hiland’s confession entirely and almost all of DeCicco’s admissions.
On August 21, 2008, Smith was convicted a second time of first-degree murder and attempted armed robbery. He was once more sentenced to 67 years in prison.
In 2009, Houghtaling pled guilty to a perjury charge based on his testimony that Smith was not involved in the crime. He was sentenced to an additional five years in prison.
In 2010, the Illinois Appellate Court Second District reversed Smith’s conviction a second time. In a unanimous 88-page ruling, the Appellate Court ruled that the defense should have been allowed to impeach Hiland with his prior confession to involvement in the crime.
Prior to Smith’s third trial, the defense team moved to present evidence that Briseno was dealing drugs out of the Burrito Express. The defense claimed that DeCicco, Hiland and Levand—who came to be known as the DeCicco Group—decided to rob Briseno because he was said to keep large amounts of cash there from his drug business.
The defense sought to introduce the testimony of Patrick Anderson, who said he had purchased cocaine from Briseno through an employee of the restaurant. Anderson sold cocaine to Levand. In 2011, Anderson sent a letter to the defense saying that shortly before Briseno was killed, he and Levand went to the restaurant to buy cocaine. After the murder, Anderson and Levand were in jail together. During a conversation, Anderson said, Levand admitted he was involved in the murder. The trial judge said Anderson could testify about Levand’s admission, but not that Levand was aware of Briseno’s drug dealing. The judge also refused to allow Anderson to testify that he came forward because he said he had been wrongly accused of a crime in the past.
The defense also sought to introduce testimony from an undercover drug enforcement officer. The officer would have testified that less than six months prior to Briseno’s murder, he bought cocaine from Briseno at one of his restaurants. The judge barred that testimony.
The judge also refused to allow the defense to present testimony from a detective who brought a narcotics-sniffing dog to the Burrito Express the day after the shooting. The officer would have testified that the dog alerted to the presence of narcotics in two locations in the restaurant office.
The lead detective testified that he had received information as early as November 2001 from Vicki Brummett, the mother of Susanne DeCicco, that she believed she had the gun used to kill Briseno.
Joanne McIntyre, an Illinois State Police firearms analyst, testified that the bullet recovered from Briseno’s body was a .22-caliber long rifle bullet. She was able to fire ten test shots with the pistol recovered from Brummett. She compared the bullets to the bullet from Briseno’s body. She said she could not exclude the gun as the murder weapon, but was unable to say it was the gun used in the killing.
A forensic pathologist testified that Briseno died of a gunshot wound. A state police fingerprint analyst testified that fingerprints lifted from the Burrito Express door and a set of doorknobs did not belong to Houghtaling, Smith, Collett, or McMullan.
Houghtaling testified and denied that he and Smith were involved in the crime. He said that on the night of the crime, Smith and McMullan picked him up. They drove to a friend of McMullan’s over the border in Wisconsin to borrow a laptop computer. They then drove to McHenry where they stopped at a “head” shop known as Cloud 9. Thereafter, they went to the home of Jimmy Wiesenberger, a friend of Smith, where they spent the night. Wiesenberger’s home was not far from the Burrito Express.
Houghtaling admitted that he had pled guilty to first-degree murder for the shooting of Briseno and was serving a 20-year sentence. The prosecution also introduced his admissions in Omaha.
Houghtaling said that he learned details from newspaper articles and word of mouth. The trial judge refused to allow the defense to elicit testimony about the specific sources of that information.
David Collett testified that he had “no clue” who committed the crime. When asked why he had pled guilty to being involved, Collett said it was a “plea of convenience” that he took because it meant a short prison term. Collett said that on the night of the crime, he was with Smith, Houghtaling, and McMullan. He said they drove to Wisconsin to pick up a laptop and then, during the drive back to McHenry, he got into an argument with Houghtaling because Houghtaling had Collett’s green jacket and would not give it back. McMullan let him out of the car, and he walked to Cloud 9. While walking, he heard a noise that sounded like a car backfiring, he said.
The prosecution was allowed to introduce Collett’s statement at his sentencing apologizing to the Briseno family. At that time, he said, in part, “[I]f I would have known that any of this would have happened, I really would have tried to do something to stop it.”
The shooting had occurred around 7:30 p.m. Surveillance video at Cloud 9 showed Collett entering at 7:38 p.m. and leaving at 7:44 p.m. Collett said that when he left, he got back into the car with McMullan, Smith, and Houghtaling. There was no evidence they had just been involved in a bloody crime, he said.
Smith’s defense team from the Chicago law firm of Jenner & Block, led by attorney David Jimenez-Ekman, introduced evidence that implicated the DeCicco Group in the crime.
A police officer testified that he interviewed Houghtaling the day after the crime. Houghtaling was wearing a green jacket and no blood was visible on it. Another police officer testified that he showed Pardo—Briseno’s employee—photographic arrays that included photos of Smith, Houghtaling, and Collett. Pardo did not identify anyone.
Jimmy Weisenberger testified that Smith, Houghtaling, McMullan, and Collett spent the night at his house on the night of the crime. He said they arrived at some point after the shooting and there was no indication any of them had been involved in the crime.
Patrick Anderson testified that while in the McHenry County Jail in July 2011, Levand admitted that he and Hiland attempted to rob the restaurant. When Briseno chased them out with the knife and Pardo grabbed Hiland, Levand fired his gun over his shoulder and struck Briseno.
Anderson testified that Levand and Hiland then ran to DeCicco’s car and drove to Levand’s mother’s house to clean up. There, they burned the masks and clothing they were wearing. They tried, but could not, clean blood from the backseat of DeCicco’s car. Several months later, Levand stole DeCicco’s car, drove it to Wisconsin, and set it afire.
The defense presented evidence that in 2005, Susanne DeCicco was interviewed by police in Quincy, Illinois, about a shoplifting offense. During the interview, which was videotaped, DeCicco admitted that she, her boyfriend Levand, and her cousin Hiland, committed the murder.
Vicki Brummett, DeCicco’s mother, testified that on the day of the crime, she saw DeCicco, Levand and Hiland at her home. She said Hiland had scratches on his hands and knees which were not present when she saw him earlier in the day. Brummett said DeCicco confessed to her that she, Hiland, and Levand had committed the crime. Brummett said that one of the victims had been struck in the head with the gun, which left a crack in the barrel. At that time, police knew that Briseno had an abrasion on his forehead, but kept that information from the public.
Three of DeCicco’s friends testified. All told the jury that DeCicco had admitted her involvement, as well as that of Hiland and Levand in the crime.
A friend and former roommate of Hiland, R. Daniel Trumble, testified that in the summer of 2002, Hiland confessed to the crime to him. Trumble, however, was not allowed to testify that he arranged a meeting between an attorney named Ed Edens and Hiland. During that meeting, when Hiland acknowledged involvement, Edens—according to Trumble—told Hiland he should not come forward because other people had been charged with the crime.
Hiland’s two sisters and his cousin all testified that he had confessed to them that he committed the crime.
In rebuttal, the prosecution, led by deputy district attorney Michael Combs, who had prosecuted Smith’s second trial, called Levand. Levand denied committing the crime or ever confessing to it. DeCicco testified that she had lied about being involved and lied about the involvement of Levand and Hiland.
On February 29, 2012, following 21 hours of deliberation over three days, the jury convicted Smith of first-degree murder and attempted robbery. He was sentenced once more to 67 years in prison.
Smith appealed the conviction. The Illinois Appellate Court Second District upheld the verdict and sentence in May 2013.
In January 2015, Jimenez-Ekman and two other lawyers, Anne Ray and Katharine Ciliberti, filed a federal petition for a writ of habeas corpus. The petition claimed that Smith’s third trial was constitutionally unfair because he was not allowed to present all the evidence pointing to the DeCicco group.
In March 2020, U.S. District Court Judge Andrea Wood granted the petition. Judge Wood ordered Smith’s convictions vacated. The judge concluded there was evidence sufficient for a conviction and so directed the McHenry County District Attorney’s Office to retry him within 120 days or release him.
Judge Wood ruled that Smith was not allowed to fully develop the evidence pointing to the DeCicco Group. In addition, Judge Wood ruled that the trial judge erroneously kept out certain other defense evidence and erroneously allowed the prosecution to present evidence that was prejudicial to Smith.
The judge noted that “the evidence of the DeCicco Group is highly compelling if not conclusive. At the very least, the Court is confounded as to how that evidence could not give a rational jury reasonable doubt as to Smith’s guilt. Especially in combination with the exceedingly thin evidence supporting Smith’s convictions, the Court is concerned that a miscarriage of justice has occurred here.”
Judge Wood also ruled that Smith should have been permitted to present evidence of Briseno’s drug dealing, calling that evidence “highly probative” in establishing a motive for the DeCicco Group to commit the crime.
Smith’s defense should have been allowed to present testimony that Hiland confessed to the crime in the presence of a defense attorney, Judge Wood ruled. Such testimony would have provided important context and enhanced the reliability of the confession, the judge said.
Judge Wood also said the trial judge had erroneously limited the defense cross-examination of Pardo. The defense was prevented from asking questions that would have exposed inconsistencies between Pardo’s description of the green jacket worn by one of the perpetrators and the green jacket seized from Houghtaling.
Jimenez-Eckman appealed the order allowing for a retrial. On April 19, 2021, the Seventh Circuit U.S. Court of Appeals concluded the evidence was insufficient to merit a retrial. “We reverse...the district court’s holding that the evidence was constitutionally sufficient to sustain Smith’s conviction,” the appeals court declared. “Accordingly, we remand the case to the district court to grant the petition for a writ of habeas corpus unconditionally and order the immediate release of Kenneth Smith from state custody.”
The following day, April 20, 2021, Smith was released from prison. On May 24, 2021, Judge Wood signed an order dismissing the charges.
McMullan, who maintained that she was innocent, had been represented by the Illinois Innocence Project for several years. On June 18, 2021, her convictions were vacated. She then pled guilty to a charge of armed robbery and was released.
Smith filed a federal lawsuit in March 2023.
– Maurice Possley
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