McHenry Burrito Express murder conviction overturned again, for 3rd time

About 7:15 p.m. March 6, 2001, two masked men entered the Burrito Express in McHenry in an attempted armed robbery. The owner and an employee chased the men outside into the parking lot, where an altercation ensued, shots were fired and the restaurant owner was killed.

But that seems to be where much agreement in the killing of Raul Briseno ends.

The fatal shooting of a beloved 34-year-old business owner and family man has three times led to the conviction of Kenneth Smith of Park City.

Smith, 44, was found guilty of first-degree murder and attempted armed robbery and sentenced to 67 years in prison after each conviction. Today, he is housed at the Lawrence Correctional Center in Sumner, awaiting news of his fate now that a federal court ruled he is entitled to yet another trial.

Smith’s convictions and sentence have been vacated, and the court now will need to either start the process of retrying Smith – for a fourth time – or release him by mid-June.

Smith’s brother, Robert Smith, 39, of Ringwood, said he and his family “are praying” the McHenry County State’s Attorney’s Office “does the right thing” and sets him free without a fourth trial.

Robert Smith said he told his brother of the reversal March 10 “as soon as we found out.”

Robert Smith said his brother was “in disbelief.”

“It’s been such a long, strange trip these 19 years,” Robert Smith said.

Calling the state’s case against Smith “extremely thin” and his conviction a “miscarriage of justice,” U.S. District Court Judge Andrea R. Wood cited numerous errors violating Smith’s constitutional rights – including the exclusion of evidence that pointed to another possible suspect.

“Smith’s habeas petition is granted on the basis of the evidentiary errors, and his conviction and sentence are vacated,” Wood wrote.

Later in the opinion she wrote, “The constitutional errors in particular were far from minor.”

Wood also wrote that the Illinois appellate court was wrong in affirming the 2012 trial court conviction when it found “that there was sufficient evidence supporting his convictions.”

The appellate court “violated [Smith’s] constitutional rights to present a complete defense and his rights under the Sixth Amendment’s Confrontation Clause when it affirmed certain trial court evidentiary rulings,” Wood wrote.

In her 70-page opinion, Wood listed several violations of Smith’s right to a fair trial. Among those points, Wood said that the trial court judge erred in excluding testimony that revealed possible drug dealings at the restaurant, which did not include Smith. Those dealings, in turn, could have been motive in the crime, Wood wrote.

The Illinois Attorney General’s Office is appealing both the reversal and the order vacating Smith’s sentence and release from prison.

“All of the conflicting testimony in this case was heard and considered by 36 jurors, all of whom resolved the conflicts in the testimony against Mr. Smith beyond a reasonable doubt,” said McHenry County State’s Attorney Patrick Kenneally, who was not the state’s attorney at the time and did not try the case.

Kenneally noted that Smith’s case had been appealed to the Illinois 2nd District Court as well as the Illinois Supreme Court, each of which “ultimately affirmed the decision of the unanimous jury.”

Kenneally said the federal court “cherry-pick[ed] and fram[ed] the facts in an unbalanced way.”

“It’s disappointing that 19 years later a federal judge can unilaterally usurp the role of jurors as well as state appellate court’s after not hearing a single word of testimony to reach their preferred result,” he said. “We will be appealing.”

Meanwhile, Smith’s attorneys, from the Chicago-based Jenner & Block law firm, are working on a request to immediately release him, pending the state’s appeal of Wood’s order.

In her ruling, Wood said that although there was some evidence to convict him, she did not see how there was enough to convince a “rational” juror to convict beyond a reasonable doubt.

Smith was convicted of the crime along with three other defendants. Justin Houghtaling, 37, of Burlington, Wisconsin, pleaded guilty in 2001 to first-degree murder and was sentenced to 20 years in prison.

Jennifer McMullan of Round Lake was convicted of murder and attempted armed robbery in 2002 and sentenced to 25 years in prison. She currently is appealing her sentence and is being represented by the Illinois Innocence Project, based out of the University of Illinois at Springfield.

David Collett, 37, of Spring Grove pleaded guilty to aggravated armed robbery in September 2001 and was sentenced to five years in prison.

At trial, prosecutors argued that when Smith and Houghtaling entered Burrito Express, Briseno chased the would-be robbers with a butcher knife out into the parking lot.

Eduardo Pardo, an employee of the restaurant, also chased the men and grabbed one man who was wearing a green jacket, according to trial testimony and the federal appeal.

Pardo tried to drag the man in the green jacket back into the restaurant when the second man began shooting.

Briseno was struck and died from gunshot wounds. The two men fled the scene and jumped into McMullan’s car, police and prosecutors have said.

The group was arrested months later after Houghtaling gave statements to police who had captured him in Omaha, Nebraska, while Houghtaling was on a bus headed for California.

However, the validity of his statements has come into question. Defense attorneys and the federal appeal said Houghtaling had been taking hallucinogenic drugs the day of the questioning. Attorneys also questioned the tactics used by police in their interview.

Houghtaling recanted his story and accused prosecutors of telling him what to say to convict Smith in exchange for a plea deal, according to Smith’s defense attorney, David Jimenez-Ekman, and the federal appeal.

Smith’s attorneys have argued that there is no physical evidence or fingerprints indicating his involvement in the crime, and no positive identification was ever made. When Pardo was shown photos of a lineup, including Smith and Houghtaling, he could not identify either of them, Smith’s attorneys said.

Questions surrounding the green jacket supposedly worn by Houghtaling also are an issue casting doubt over Smith’s convictions, according to Wood’s ruling.

Smith’s attorneys argue that there was evidence excluded from the trial pointing to another group of potential suspects referred to as “the DeCicco group.”

This crew includes Russell “Rusty” Levand, 36, of McHenry as the alleged shooter; his girlfriend, Susanne “Dallas” DeCicco, who has since died; and her cousin, Adam Hiland, 35, of Wonder Lake.

Smith’s attorneys allege that it was Levand and Hiland who went to the restaurant to rob Briseno. The pair knew he would have large sums of cash, as Briseno allegedly was selling cocaine at the restaurant, according to Smith’s defense attorneys and the federal appeal.

Attorneys also point to multiple alleged confessions made by members of the DeCicco group, including Hiland and Levand.

In 2011, before Smith’s third trial, fellow McHenry County Jail inmate Patrick Anderson came forward about an alleged jailhouse confession. Anderson said Levand confessed to him that he killed Briseno. Anderson also claimed that he and Levand previously bought cocaine from Briseno.

DeCicco, who died in 2015, also made incriminating statements to several friends and family, as well as police, according to the appeal.

In 2005, when being held by police in Quincy on suspected shoplifting charges, DeCicco tearfully told Illinois State Police that Smith was not the shooter and laid all blame on Levand.

In an almost two-hour video of the questioning, a visibly scared and shaken DeCicco recounted graphic details of Hiland covered in blood and the men jumping in her car and screaming at her to flee the scene.

“Rusty just looked crazy and told me to get out of there,” DeCicco told police.

DeCicco said the gun that was used belonged to her stepfather. The gun was tested against a bullet removed from Briseno, and although it is possible the .22-caliber weapon could have fired the bullet that killed Briseno, it was too damaged to make a conclusive finding, according to a ballistics expert who testified at trial.

DeCicco said that she saw them go into the restaurant that evening before being chased out by two other men. She then drove off and went home to her dad’s house, which was behind the restaurant.

While in the driveway, she said she heard six pops that sounded like a cap gun. She saw Levand and Hiland running through a wooded area, and they jumped into her car. Hiland’s face was covered in blood. They yelled at her to “just go,” and she drove away. Levand threw the gun into her back seat, and Hiland tried to clean it, she told police.

“I was scared,” she said in the police interview. “They had just killed somebody.”

She said she had no knowledge of the planning or commission of the crime and offered to take a lie detector test.

Both men threatened that if she ever told anyone, they would hurt her and her mom, DeCicco said. The men also burned their clothing that night and later drove DeCicco’s car to Racine, Wisconsin, where it was burned, she said.

The car was reported stolen, and police later found it burned in Racine. She said she thought that if she told enough people, someone would go to the police.

“DeCicco confessed to at least six people over the course of five years, including twice to the police,” Wood wrote. “Hiland confessed to at least four people over a two-year period. And a fellow inmate reported that Levand confessed his involvement over 10 years later.”

The confessions also contained details that never were released to the public. In her confessions, DeCicco said Briseno yelled into her car to call police. She also said that Briseno had been hit in the head with the butt of the gun, details never made public by the police, authorities said.

Hiland also alleged that Levand hit Briseno in the head with his gun, a detail Houghtaling’s confession did not include, according to the federal appeal.

“In the court’s view, the evidence of the ‘DeCicco group’s’ involvement is highly compelling, if not conclusive,” Wood wrote. “At the very least, the court is confounded as to how the evidence could not give a rational jury reasonable doubt as to Smith’s guilt, especially in combination with exceedingly thin evidence supporting Smith’s convictions.”

But to muddy the waters further, in Smith's previous trials, Hiland and DeCicco denied their involvement in the crime, according to the federal petition.

“Yet, when Smith sought to introduce evidence of their prior confessions, the court barred Hiland’s confession entirely and only admitted portions of DeCicco’s confession,” Wood wrote in her opinion.

While in prison, Kenneth Smith has kept busy studying the law and helping other inmates, his brother said. Kenneth Smith also has missed out on a lot while incarcerated, including his sister’s recent wedding, Robert Smith said.

“[He’s missed] entire chapters of people’s lives: [the] birth of his nephew, [our] grandparents have all since passed on. … We lost other relatives, very close dear relatives,” Robert Smith said.

Still, Robert Smith said he tries to share life’s moments with his brother over the phone the best he can.

“I would like to think if this didn’t happen, all of our paths would probably have been different than where we are now,” he said.

In a comment made through his brother Monday, Kenneth Smith said, “We want the same thing that the Briseno family wants and that Patrick Kenneally wants, which should be in the truth coming out and innocent people freed, and the actual guilty people of the crime arrested and charged. We are willing to stand with the Briseno family in the pursuit of true justice here and not settle for anything less than it.”

Levand currently is being held at the McHenry County Jail on unrelated drug-induced homicide charges. His attorney declined to comment on the allegations against him in the Briseno case.

After learning this week of the federal ruling, Briseno’s widow, Leticia Briseno, only had a few words.

“When and if this goes to court, we will stand united as a family, as we have for the last 19 years,” she said. “This will not bring us down.”