Timothy Smith was just protecting his pregnant wife when he fatally shot the “400-pound goon” who’d turned violent when she backed out of their sex-for-money arrangement, Smith’s defense attorney said Thursday.
But prosecutors at Smith’s retrial in McHenry County countered during closing arguments Thursday that he has tried to rewrite the history of the night he killed Kurt Milliman. They say Smith should again be found guilty of first-degree murder and resentenced to 50 years in prison.
Milliman, a bar owner and former McHenry County sheriff’s employee, had answered Smith’s Craigslist ad offering sex with his wife, Kimberly, in exchange for money.
More Top Picks Best Weighted Pencils For Handwriting
He arrived at the Smiths’ Woodstock-area home after 11 p.m. May 28, 2011, and was led by Kimberly Smith to a back bedroom while, apparently unbeknownst to Milliman, Timothy Smith was hiding in the next room, according to testimony and authorities.
But when Kimberly Smith decided she did not want to complete the sex act with Milliman, he turned violent, grabbing her and slapping her, according to testimony. She yelled out to her husband for help, and Timothy Smith quickly emerged with a loaded gun and shot Milliman.
Smith’s attorney, Matthew Haiduk, said his client was scared and protecting his wife from a “400-pound knuckle dragger” and a “goon” who had her “pinned against the wall … intent on having his way with her.”
Milliman, who was 6 feet 6 inches tall, “is twice the size of Tim Smith … he is bigger than most NFL players. He wore (size) XXXXL. … This is not a normal dude,” Haiduk said. “This is a monster manhandling (Smith’s) wife because he didn’t get to have sex with her. … He had bad intentions. He was going to get what he wants to get.”
Haiduk said a conviction for involuntary manslaughter or second-degree murder would be more fitting than the first-degree murder conviction Smith received at his first trial in 2013.
The defense attorney also said the shot that killed Milliman, who was 48, rang out when he was inches away from Smith, as Smith attempted with his other hand to pull Milliman off his wife. Smith took the stand in his own defense Wednesday to say his handgun went off accidentally.
“This is a tragedy for everybody involved,” Haiduk said. “Tim Smith did not intend to kill Kurt Milliman.”
Prosecutors, though, contend Smith, now 34, was about 2 feet away from Milliman when the gun went off.
After the shooting, Timothy and Kimberly Smith made a false report to 911, claiming that he’d shot a home intruder. Prosecutors asserted that showed “consciousness of guilt.”
In arguing for a first-degree murder conviction, McHenry County Assistant State’s Attorney Robert Zalud said the state only needed to prove that Smith pulled the trigger knowing it would cause great bodily harm. Zalud pointed to earlier expert testimony indicating that Smith’s handgun required 12 pounds of pressure to shoot.
“This idea the gun just went off doesn’t make sense,” Zalud said. “He shot him right in the back. … He shot an unarmed man who he invited into his house.”
Zalud added that Smith “staged a break-in scene,” “made a false 911 call” and continued to lie during a six-hour police interview.
“If he felt justified in shooting (Milliman), he would have come clean right away,” Zalud said. “Tim Smith is a dangerous revisionist historian and he’s a murderer. … Kurt Milliman didn’t have a gun, knife, never knew Tim Smith was there. … (Smith) overreacted. He ran around the corner and shot him in the back, killed him without any thought. … Tim Smith is not the victim here.”
Smith was found guilty of first-degree murder by a jury in 2013, but his conviction was overturned by an appeals court that ruled jurors should have been given the option of finding him guilty of involuntary manslaughter.
The same judge, Sharon Prather, is overseeing the retrial. Because Smith waived a jury trial this time, Prather will render the verdict, which she said she plans to announce Aug. 30.
The Smiths have since divorced. Kimberly Smith, now Kimberly Niccolai, testified this week against her ex-husband but said she remembered little about the events from seven years ago.
Amanda Marrazzo is a freelance reporter.