WOODSTOCK – Prosecutors say they want to force Kimberly A. Smith to testify at her husband’s upcoming murder trial and won’t use what she says against her in her own criminal case.
The couple are accused of placing an online ad for sex, which police say was answered on May 28, 2011, by Kurt Milliman. A dispute broke out, possibly over money, and Milliman was shot. He died early the next morning.
Prosecutors are asking McHenry County Judge Sharon Prather to grant “use immunity” for Kimberly Smith and force her to testify against her husband, Timothy S. Smith.
There is no deal between Kimberly Smith and prosecutors, but whatever she says would be off-limits when it comes to her case, Assistant State’s Attorney Michael Combs said.
Prosecutors said in court documents that they are “not inclined to offer Kim Smith any promise or expectation of leniency” in exchange for her testimony. As such, they expect that she would invoke her right against self-incrimination – the Fifth Amendment.
They contend that under the law, by granting her use immunity, she would be compelled to testify. She has no right to refuse, Combs said.
“She can’t get up there and plead the Fifth, and she can’t refuse to testify,” he said. “We’re making her testify. There’s no deal with her.”
Kimberly Smith’s attorney, Mark Facchini, declined to comment.
Combs said he knows what Smith will testify because he spoke with her attorney. Had he not known, it would have been irresponsible to offer the immunity agreement, he said.
He declined to comment, however, on what he expects Smith to say on the stand.
Timothy Smith, 28, is charged with first-degree murder, pandering, obstruction of justice and pimping. His trial is set for scheduled Feb. 25.
Kimberly Smith, 30, is charged with two counts of obstructing justice, making a false police report and prostitution. Her trial is expected to start March 11, two weeks after her husbands’ trial.
Timothy Smith’s attorney, assistant public defender Kim Messer, has said her client shot Milliman in self defense.
According to the McHenry County Coroner’s Office, Milliman was shot once. The bullet entered his right shoulder blade, traveled across the chest and lodged near the left collarbone.
Milliman 48, of Prairie Grove, was a former court security officer and brother of a former sheriff’s deputy. He owned an Island Lake bar.