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Judge: No new trial for Smith murder conviction

Published: Monday, May 6, 2013 11:41 a.m. CDT • Updated: Monday, May 6, 2013 11:29 p.m. CDT

WOODSTOCK – A McHenry County judge denied a motion for a new trial for a man convicted of first-degree murder.

Judge Sharon Prather ruled Monday that Timothy Smith's right to a fair trial had not been violated. A jury in February found Smith, 28, guilty of first-degree murder for the death of Kurt Milliman.

Prosecutors said Milliman responded to an online ad in May 2011 for sex with Smith's wife, Kimberly; after a scuffle, Timothy Smith shot him.

At the trial, Kimberly Smith testified she was pregnant at the time and didn't want to have sex with Milliman, so she asked him to leave. She said Milliman grabbed her arm and slapped her. Her husband then came around the corner with a .38-caliber handgun and shot Milliman once in the back, she said. "Mr. Smith, however wrong that is, believed he was acting in self-defense," Public Defender Kim Messer said.

Messer's arguments for a new trial centered primarily on the admission of certain evidence, including Timothy Smith's gun, Milliman's cellphone and the shirt Milliman was wearing the day he died.

But Messer also called Assistant State's Attorney Michael Combs' closing argument "outrageous and abusive," specifically when he called Timothy Smith names, such as "pimp," and shouted at him to "stop crying." These statements prevented the Woodstock man from receiving a fair trial, she said.

Prather said attorneys are granted "wide latitude" when making closing arguments.

While Combs' behavior may have walked the line of inappropriate, Prather said, his comments were "somewhat invited by [Timothy Smith] for openly crying in front of the jury when the rest of the trial he remained calm."

Prather also denied a second motion in which Messer asked to acquit Timothy Smith. Messer said there was sufficient evidence to prove that he acted in self-defense, believing there was an imminent threat to his wife.

Timothy Smith faces a minimum of 45 years in prison and a maximum of 85 years. He will be sentenced May 22.

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