Federal appeals judges raise questions in Kenny Smith’s conviction in 2001 Burrito Express murder

Three judges from the U.S. Court of Appeals for the Seventh Circuit appeared to cast doubts Thursday over evidence that three times has led to the conviction of Kenneth Smith in McHenry’s infamous 2001 Burrito Express murder.

“I have to say, Mr. Malamuth, it is hard for me to imagine a case with thinner evidence,” Chief Judge Diane P. Wood said, interrupting Assistant Attorney General Eldad Malamuth as he began his oral argument for the appellate court as to why a March decision to vacate Smith’s conviction should be reversed.

Smith, 44, of Park City, has served 19 years of a 67-year sentence for the shooting death of restaurant owner Raul Briseno, 34. Three others also have been convicted in connection with the murder.

Smith has continually denied any part in the murder as rumors and alleged confessions have been made over the past 20 years pointing the finger at another man as the shooter.

McHenry County prosecutors stand by their case and could seek a fourth trial. McHenry County State’s Attorney Patrick Kenneally did not respond to a request for comment.

The case stems from a botched armed robbery the night of March 6, 2001, when two masked men entered the restaurant. They were chased out of the restaurant by Briseno and a co-worker. A scuffle ensued utside the restaurant, and one of the masked men shot and killed Briseno.

Smith has been convicted three times since 2001 of first-degree murder and armed robbery. Malamuth said the motive was to rob the restaurant for money to buy drugs.

The federal court vacated Smith’s conviction earlier this year based on evidentiary errors and said Smith’s constitutional rights to present a fair trial had been violated.

According to the 70-page federal opinion, the state’s case against Smith was “extremely thin” and his rights to a fair trial were violated because of the “exclusion” of evidence. The constitutional errors in particular “were far from minor,” according to the opinion.

Malamuth said physical evidence, eyewitness testimony and alleged confessions should be upheld as credible in his argument Thursday that the appellate court should reverse the federal district court’s habeas relief and reconfirm Smith’s convictions.

“The petitioner’s allegations do not meet the high standard applicable to constitutional claims based on alleged state court evidentiary error,” Malamuth said.

However, the appellate judges seemed to lean toward siding with the trial court’s ruling that there was not enough evidence to convict Smith beyond a reasonable doubt. Judges said he did not receive a fair trial based on the exclusion of evidence.

Wood said the trial court erred in excluding evidence that pointed the finger at a separate group of individuals. She cast doubt that a green jacket worn the night of the murder was the same jacket described by a witness. She also doubted Smith’s connection to the gun used to kill Briseno and whether sketches of the assailants were credible since the would-be robbers’ faces were covered.

Wood found witness statements and confessions less than credible. She also questioned why jurors never heard statements that Briseno allegedly kept cash and cocaine at Burrito Express, which could have been motive for another group of rumored perpetrators of the crime.

Malamuth said the evidence was omitted because prosecutors thought it could confuse jurors and lead to a mini trial on whether Briseno was selling drugs.

Drugs were never found at the restaurant, he said. Briseno’s son, Raul Briseno Jr., has vehemently denied that his father ever sold drugs. On Thursday, however, Judge Amy St. Eve rebutted Malamuth’s argument, saying that drug-sniffing dogs “hit” on a scent of drugs.

Judges also questioned statements made over the years which point to another group often referred to as “the DeCicco Crew.” They also noted the connection between this group and the gun suspected to be used in the shooting.

Wood specifically noted the “plethora” of alleged confessions made over the years by members of this group that includes Russell “Rusty” Levand, 37, of McHenry, as the alleged shooter; his girlfriend, Susanne “Dallas” DeCicco, who has since died; and her cousin, Adam Hiland of Wonder Lake.

Smith’s attorneys from Chicago-based Jenner and Block alleged that it was Levand and Hiland who went into 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 the federal appeal and Smith’s defense attorneys.

Defense attorney David Jiménez-Ekman argued a strong level of reasonable doubt exists in the case, pointing to multiple alleged confessions made by all members of the DeCicco group. He said family members of DeCicco and Hiland have testified in support of their loved ones’ incriminating statements.

“It’s almost an embarrassment of riches on the DeCicco group, [a] case that got better and better as time went by,” Jiménez-Ekman said. “It’s overwhelming.”

Hiland, at the age of 15, and a friend met with a defense attorney, where he allegedly tearfully confessed his involvement in Briseno’s murder. Hiland told this defense attorney, who was not named Thursday, that he and Levand entered the restaurant to rob it and his hand was cut in the process, Jiménez-Ekman said. This was never presented to jurors.

Judge David Hamilton said he was “mystified” that Hiland’s statements were kept out of trial.

Another man, Patrick Anderson, came forward 10 years after the murder, and prior to the third trial said he and Levand knew Briseno had cash at the restaurant and that they went to the restaurant the week before to buy cocaine. Anderson also said Levand allegedly confessed to the murder.

The appellate judges said the lower court erred in excluding these statements from trial. Malamuth said prosecutors dismissed the statements and alleged confessions made by members of the DeCicco group to friends, family and authorities as attempts at bragging to gain street credibility, sympathy or money.

Wood said the exclusion of such evidence is the “heart” of the federal appellate court’s opinion in reversing the conviction. Even if it is “scraps of evidence coming together,” jurors should have been presented with it, she said.

Wood said the small restaurant is not a place that “screams out there is gonna be money there. … This is a little, tiny burrito stand with two tables inside it.” Therefore, the judge said, it is possible Levand and his crew had an “association” with the restaurant and a “reason to go there that night,” yet jurors “were deprived” of hearing this evidence.

It was statements by Justin Houghtaling of Burlington, Wisconsin, that led police to initially cast Smith as the shooter, leading to his arrest. Houghtaling took a plea deal to first-degree murder in 2001 and was sentenced to 20 years in prison.

The appellate judges questioned Houghtaling’s statements and whether he was fed details of the crime that had not yet been made public by police.

Throughout the hearing, Wood described Houghtaling’s confession as “hearsay,” “mixed up” and “not reliable,” to which Malamuth said, “the confession doesn’t have to be perfect to be used as evidence.”

Others convicted of Briseno’s murder were Jennifer McMullan of Round Lake and David Collett of Spring Grove. McMullan was convicted of murder and attempted armed robbery in 2002 and sentenced to 25 years in prison. She currently is appealing her conviction. Collett pleaded guilty to aggravated armed robbery in September 2001 and was sentenced to five years in prison.

In defending Smith’s conviction, Malamuth also noted Collett’s statements at sentencing, in which he apologized for Briseno’s death and “implied he had responsibility for the crimes.”

But Wood saw little substance in Collett’s statements.

“It doesn’t actually say Mr. Smith did anything,” Wood said to Malamuth. “You’re reading a lot into that. I’m not sure it can bear the weight that you are trying to put on it.”

Malamuth said Collett did not only say he was sorry but that “it wasn’t supposed to turn out this way. If I had known it was gonna turn out this way, I would have done something different.”

Wood did not agree that Collett’s statement implicates Smith.

Hamilton described the case as “extraordinary,” yet said he struggled to find any Supreme Court case law to base affirming the appellate ruling on.

“Evidence of multiple confessions from both group A and group B competing for credit for the murder,” Hamilton said. “I’ve never seen anything quite like it.”

Jiménez-Ekman agreed and said that although his team did research, he does not know whether relief has ever been granted in another case exactly like this one. But he emphasized that Smith is innocent.

“Mr. Smith is an innocent man,” Jiménez-Ekamn said. “The wrong guy, really the wrong guy who has nothing to do with this ... has been in jail for 19 years.”

The judges will take the arguments under advisement and announce their decision at a later date. They could either rule to require a fourth trial or grant Smith release and vacate the sentence.