A conviction was overturned Tuesday for a man who was found guilty of murder after pimping out his wife and shooting her customer.
The ruling means that Timothy S. Smith, 30, is entitled to a new trial in the death of Kurt Milliman, a bar owner and former McHenry County sheriff employee.
An appeals court ruled that McHenry County Judge Sharon Prather should have allowed jurors to consider an involuntary manslaughter verdict as an alternative to first-degree murder.
Involuntary manslaughter involves acting recklessly, while murder requires that the defendant had the intention to kill or knew his acts created a strong probability of death or great bodily harm. In a video statement to police that was played at trial, Smith said he didn’t mean to shoot Milliman but was trying to scare him.
Milliman, 48, of Prairie Grove, had gone to Smith’s home near Woodstock on May 28, 2011, in response to an online ad Smith placed offering sex with his wife for money, according to authorities and testimony at Smith’s trial.
Timothy Smith’s wife, Kimberly, who was pregnant at the time, testified that she had decided she didn’t want to have sex with Milliman. An argument ensued, and when Milliman grabbed her arm and slapped her, Smith emerged from hiding, told Milliman to take his hands off his wife and shot him.
Timothy Smith initially told police that Milliman was an unknown intruder but later admitted that Milliman had been there to pay for sex.
At trial, Assistant Public Defender Kim Messer argued that jurors should consider a charge of involuntary manslaughter because the defendant claimed the gun “just went off.”
Prosecutors argued that the idea that the shooting was an accident conflicted with Timothy Smith’s statements that he was defending his wife. They argued Smith was either intentional or reckless and “can’t have it both ways.”
Prather had noted that the defendant repeatedly told police his actions were “justified.” She did instruct the jury to also consider a verdict of second-degree murder.
Smith’s appeals lawyer, Matthew Haiduk, said Tuesday that Smith was merely trying to “scare” Milliman, not kill him.
Smith is serving a 50-year prison term for the first-degree murder conviction. Involuntary manslaughter is punishable by three to 14 years in prison.
In their unanimous opinion, written by Judge Donald Hudson, the 2nd District Appellate Court judges noted there was sufficient evidence to find Timothy Smith guilty of murder, but there was also at least some evidence that he acted recklessly.
Kimberly Smith was initially sentenced to probation for filing a false police report but last year was sentenced to three years in prison for violating probation stemming from a DUI charge. Court records showed she also filed for divorce last year.
Prosecutors have about a month to decide whether to try to appeal the decision to the Illinois Supreme Court. Michael Combs, chief of the criminal division of the McHenry County state’s attorney’s office, declined to comment.
Twitter @RobertMcCoppin
