On Monday, a Florida man accused of murdering his husband and staging the crime scene heard the opening statements in his murder trial.
Herbert Swilley, 55, was arrested in November 2023, months after his husband, 59-year-old Timothy Smith, was discovered dead in their apartment. Swilley allegedly gave Smith a large dose of diphenhydramine, an antihistamine, as their family settled in for the night on March 23, 2023. Swilley allegedly beat Smith after he passed out and strangled him to death.
Prosecutors said in their opening statements on Monday that Swilley transported his husband’s body to their other apartment and staged a crime scene to blame on another sexual partner. Following the murder, Swilley famously created a GoFundMe page to raise funds for a “celebration of life” for Smith, which was later removed, according to authorities.
Following jury selection, prosecutor Amy Beth Berndt described Smith and Swilley’s tumultuous marriage. Swilley continued to work as a handyman while Smith became the breadwinner, and they both relied on Smith’s income to maintain their desired lifestyles. “Over time,” Berndt said, Swilley “grew bitter.”
Both men struggled with alcohol and joined Alcoholics Anonymous. But Berndt responded: “Once the drinking stopped, the problem is, the arguing started.”
Smith was looking for a new job in another county that would allow him to leave Swilley, Berndt explained.
Swilley allegedly told a friend, “If Tim thinks he’s leaving me and taking a new job in DeLand, he’s got another thing coming.” He then allegedly referred to Smith in the past tense, claiming that he and his daughter “loved Tim.”
Berndt informed the court that Swilley was “mad.” He feels cheated. He believes Tim owes him. “And he’s not going to let Tim abandon him like that.” Swilley allegedly had only one option: Smith must die. Berndt cited Smith’s $333,000 life insurance policy and his $48,000 retirement plan. Swilley benefited from both.
“He picked the date: March 23, Thursday, of 2023.” This occurred right before Smith’s final job interview.
Swilley needed the “easiest and quietest way” to kill Smith, so he decided to drug him, Berndt explained. “That way, Tim couldn’t fight back.” He allegedly chose diphenhydramine, and Smith had so much in his system that he probably didn’t feel the attack. Berndt stated, “The defendant beat him,” and then “placed that ligature around Tim’s neck.” And he squeezed it so hard and so long that he broke Tim’s neck.
Swilley allegedly planned to blame Smith’s death on one of his other sexual partners. Berndt claims Swilley drove Smith’s body to their second apartment, where the couple used to have other sexual partners and engage in other sexual activities away from Swilley’s teenage daughter. Swilley then staged the scene to make it appear as if Smith had been murdered in that apartment during a disastrous date.
Berndt said it all happened while Swilley’s daughter was at home. The next morning, she asked her father where Smith was. He said he didn’t know and asked if she had heard anything. She replied that she might have heard a door. He allegedly told her, “You haven’t heard anything. That’s all you have to remember.
He also allegedly told her, “If anybody asks, I was at home all night.”
According to Berndt, Swilley attended an AA meeting in the days that followed, where he was described as “red-faced, sweaty, nervous, fidgety.” He allegedly told his friends that he and Smith had gotten into a fight and that he didn’t know where he was except for Smith’s Jeep, which was at the apartment. They told him, “You are a handyman. Take the lock off the door to see if he’s inside.”
Swilley claimed his name was not on the lease and that he could be arrested for burglary. Eventually, the landlord let the sheriff’s office in, where Smith was discovered dead.
Following the state’s opening statement, defense attorney John Nicholas Klein presented a different scenario involving the couple’s not-so-secret apartment. Klein told the court that Smith stopped using the Life360 location app because he didn’t want Swilley to know where he was. Klein described both men as “imperfect,” claiming Smith was able to overcome his issues with alcohol and food through recovery programs but instead turned to sex. Klein also claimed that Smith was the only one who used the apartment to interact with other men.
The neighbors of that apartment began to notice “traffic” coming in and out of the apartment, including a blonde, white man who was seen around the area, Klein said, noting that DNA found in the apartment matched prior offenders who, he claimed, were not thoroughly investigated. According to the attorney, one of the detectives “made up his mind” that Swilley committed the crime and did not investigate other suspects who were found to have been inside the apartment at some point.
Klein stated that there was reasonable doubt that Swilley was the only person capable of murdering his husband. He went on to say that evidence that appeared to show Swilley driving Smith’s vehicle or his own vehicle to Smith’s apartment could not be confirmed.
Klein also stated that there was no evidence linking Swilley to the apartment on the night Smith was killed.
Swilley is now charged with first-degree premeditated murder after his tampering with evidence charge was dropped. Prosecutors are not pursuing the death penalty.
