Drug defense rejected
By BRANDON COUTRE - bcoutre@nwherald.com
WOODSTOCK – A McHenry County judge Friday denied a request from defense attorneys to allow allegations of infidelity and drug dealing to be presented to jurors during the April murder trial for Kenneth Smith.
Smith, 32, is the accused triggerman in the 2001 slaying of Raul Briseño outside the McHenry Burrito Express restaurant. A jury already convicted him in 2003 of first-degree murder for the slaying, but the case was overturned by an appellate court.
As the new trial approaches, attorneys were in court Friday to settle requests by defense attorneys to present evidence that Briseño was a known drug dealer and that his wife was having an affair with another man.
“There is credible evidence that Briseño was known to deal drugs out of at least one of his restaurants and it is likely that a drug purchaser – rather than [Smith] – committed the murder,” said Smith’s attorney, Christopher Parente.
Prosecutors called the request to present the drug dealing allegations as an attempt to smear the victim in the eyes of the jury.
Parente alleged that Briseño was “inviting trouble into his restaurant” through his drug dealings. The defense asserts that the March 6, 2001, murder was a drug deal turned sour.
Specifically, Parente based his request on the fact that police were investigating Briseño six months before his murder after an undercover officer allegedly bought cocaine at another of Briseño’s restaurants in Wauconda.
Judge Sharon Prather ruled that Smith’s defense would not be allowed to call the investigator who allegedly bought the drugs, because police reports indicated Briseño didn’t sell the drugs. Rather, reports indicated that it was another man who made the sale at the restaurant.
“There is no close connection between this and the crime,” Prather said. “It is purely speculation.”
Smith’s defense still could indirectly bring up the alleged drug dealing by questioning police on leads they followed after the murder.
“It is telling that one day after this murder occurred, the McHenry police thought it was a good idea to do a drug search of the scene,” Parente said.
A drug dog alerted police to a file cabinet and desk drawer in the McHenry Burrito Express, Parente said, but no drugs were found.
Prather issued a similar denial of another defense request, denying their motion to present testimony to jurors that Briseño’s wife was having an affair with another man.
Parente said he wanted to tell jurors of the affair to show that someone else had a motive to kill Briseño.
“[The man] had the motive,” Parente said. “He wanted to continue the relationship. The only thing standing in the way was Mr. Briseño.”
Prosecutors acknowledged the affair, but said it was irrelevant to the crime.
”We know that Raul was having an affair, and we know his wife was having an affair,” McHenry County Assistant State’s Attorney David Johnston said. “But there is no evidence to justify bringing into evidence talk about their affair.”
Also Friday, Prather granted immunity to co-defendant Justin Houghtaling, should he testify at Smith’s trial.
Prosecutors want to force the accomplice in murder to live up to his plea agreement, in which he agreed to testify against Smith in exchange for a 20-year prison sentence.
During Smith’s first trial, Houghtaling reneged on the deal, although the plea deal already was put through.
Now if he refuses to testify, he could be held in contempt of court and face further punishment.
Smith’s trial is set to start April 14.
