MOUNT VERNON – St. Clair County Associate Judge Zina Cruse should have told jurors that a person in the process of aiding and abetting a crime can withdraw from the crime, Fifth District appellate judges ruled on Nov. 28.  

They granted a new trial to Timothy Hillyer, age 60, on a charge of concealing a homicidal death.  

Sminchak
Sminchak

They divided blame between Cruse and public defender Karen Craig, finding Craig’s failure to request a withdrawal instruction constituted ineffective assistance.  

Hillyer testified at trial that when acquaintance Jeff Sminchak asked him to help drag the body of Russell Miller, he dropped his end and said he couldn’t do it.  

Justice Richard Goldenhersh wrote, “After considering the record before us, we find there is a reasonable probability that the jury would have found defendant withdrew from Sminchak’s offense had they been given that option.  

“Under these circumstances, the trier of fact could have found that defendant wholly detached himself from the crime.”  

His opinion cast Sminchak as a suspect in Miller’s death and clearly showed that Sminchak concealed the body, but Sminchak never faced charges.  

State’s Attorney Brendan Kelly responded to a question about the lack of charges against Sminchak on Dec. 5, by saying he didn’t remember the case.  

The case has memorable aspects.  

Hillyer slept on St. Clair Court in Collinsville, in a tent behind Sminchak’s trailer.  

On April 23, 2012, Hillyer called police and reported a body on the property.  

A friend of Miller, Mark Reinacher, had reported him missing on April 15.  

When major David Roth and detective Mark Krug arrived, Sminchak and Hillyer pointed them to a tarp.  

Police interviewed Hillyer, after he signed a statement of his rights.  

“The video of the first interview shows defendant having difficulty signing the Miranda form,” Goldenhersh wrote.  

At trial, he said his hand was weak from two strokes.  

After another interview the next day, police arrested him.  

Two days after that, he told them he believed Sminchak strangled Miller.  

Hillyer said it happened March 29, and it concerned drugs and money.   

He said he heard yelling and a gasping or gurgling sound in the living room; he heard a thumping sound, like someone being hit.  

Hillyer said he went into the trailer about 15 minutes later and found Sminchak smoking a cigarette.  

He said he saw Miller on the floor, on his back.  

“The victim was purple, so defendant assumed he was dead,” Goldenhersh wrote.  

Hillyer told police that Sminchak got a long plastic bag and put it over Miller.  

He said Sminchak told him to grab the head and help him carry Miller out.  

“I couldn’t carry him,” Hillyer said. “I had no grip in my hand. I was shaking like a leaf.  

“I dropped my end. So he drug him the rest of the way out of there and threw him out like a piece of garbage.”  

Hillyer said Sminchak layered beer cans and clothes over Miller.  

He said he stayed in the trailer that night but couldn’t sleep because he feared Sminchak would kill him; Sminchak told him to forget what happened and everything would be okay.  

He said he asked to at least bury Miller, and Sminchak said not to worry about it. He said he didn’t say anything and he hoped someone would find the body.  

He said he knew he’d be in trouble for not saying something, but he also knew he’d be in trouble with Sminchak if he did say something.  

Sminchak was “the kind of person that would kill my kids, and then he’d probably sit down and eat a meal,” he said.  

He said he hadn’t seen Sminchak since April 8, and didn’t know his whereabouts.  

Kelly charged him with concealment on April 27.  

Hillyer pleaded not guilty on May 11, before Associate Judge Julie Katz.  

Chief judge John Baricevic assigned himself to the case on May 16, and after months without action he set trial on March 25, 2013.  

In March he postponed it to April, and in April he postponed it to May.  

On April 30, six days before trial, he assigned it to Cruse.  

Trial didn’t amount to much, beyond Hillyer’s interviews.  

Assistant state’s attorney Laura Reppert asked for a jury instruction on accountability, and Cruse granted it.  

Jurors convicted Hillyer, and Cruse imposed 30 months of probation.  

The appeal took longer than that, but it succeeded.  

“The only question in the instant case is whether defendant shared in the criminal intent of the principal,” Goldenhersh wrote.   

“We point out that consent to the commission of the crime, or mere knowledge of it, is insufficient to establish aiding and abetting.  

“In order to withdraw from a crime, a defendant must not merely withdraw, but also effectively communicate his intent to withdraw.”  

He wrote that evidence against Hillyer was far from overwhelming.  

Justices Eugene Schwarm and Thomas Welch concurred.  

They rejected an argument that Collinsville police abused Hillyer’s rights, ruling that the new jury could watch the interviews.  

Appellate defender Johannah Weber represented Hillyer at the Fifth District, and appellate prosecutor Stephen Norris represented the state.

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