Herbert Swilley was convicted after jurors heard evidence of a lethal drug dose and staged scene.
OCALA, Fla. — A common allergy medicine became central to the murder trial of Herbert Swilley, whose husband, Timothy Smith, was found strangled in a Marion County apartment in 2023.
Prosecutors said Swilley used diphenhydramine to make Smith helpless before killing him and moving his body. The state’s case linked that drug evidence to a broken neck, surveillance video, life insurance and a second apartment that investigators said was staged to resemble a sex encounter that turned deadly.
Smith, 59, was discovered March 25, 2023, after Swilley called the Marion County Sheriff’s Office and reported he could not reach him. Deputies used a landlord’s key to enter the apartment and found Smith dead on a bedroom floor. The first visible signs were violent: trauma to his face and neck, ligature marks and evidence suggesting his body had been exposed and posed in a misleading way. Investigators also detected the smell of a cleaning chemical similar to bleach. Detective Karla Santana Palau later said in a televised account of the case that Smith had been left naked and exposed after being strangled. The apartment’s contents drew attention because the couple used it for sexual encounters outside their main home, but detectives soon looked beyond the surface of the scene.
The medical findings shifted the case. Forensic pathologist Tracey Corey testified that Smith had diphenhydramine in his system at a level far above a normal dose. Trial coverage reported the level at about 2,000 nanograms per milliliter, more than 30 times the therapeutic range. Corey also testified that Smith’s neck had been broken and that he died from trauma to the neck linked to ligature asphyxia. Prosecutors argued the drug explained why Smith did not defend himself against the attack. Assistant State Attorney Amy Berndt told jurors that Swilley needed an easy and quiet way to kill Smith, and that the antihistamine gave him that opening. The defense did not dispute that Smith was dead but challenged the state’s proof that Swilley was the person who caused it.
Investigators then worked backward from the body. Smith had failed to show up for work, and people close to him tried to reach him. Swilley said he had last seen Smith at home after they watched television. He said he later woke up, went to the gym and assumed Smith had left for work. Deputies said Swilley’s response when told Smith was dead did not appear emotional. Major Crimes detectives took over and compared that account with phone data and video. The state said the records showed Swilley leaving the primary home early on March 24, going to the apartment and later moving Smith’s Jeep there. Prosecutors argued the Jeep was parked at the apartment to support a false story that Smith had driven there himself and met another person.
The staging theory was important because the apartment had a known private purpose. Swilley told investigators he and Smith had an open marriage and used the apartment for encounters with people they met through social media. Defense attorney John N. Klein IV told jurors the lead detective had settled on Swilley and had not fully chased other leads. He said the open marriage and Smith’s use of the apartment left room for an outside killer. Prosecutors answered with the lack of digital evidence for any planned meeting and with witnesses who described Swilley’s actions after Smith died. Sgt. Daniel Pinder of the sheriff’s office said the fake scene was designed to blame an anonymous sexual partner. That theory became the bridge between the apartment’s appearance and the state’s claim of premeditation.
The state also described a motive built around money and control. Smith worked in senior care and was described as the household’s main financial support. Prosecutors said he had been looking at a job in DeLand and that Swilley believed Smith might leave. They pointed to life insurance policies totaling $333,000 and a retirement account valued at about $48,000. Berndt told jurors that Swilley felt cheated and thought Smith owed him. A friend testified that Swilley had spoken about needing insurance paperwork after the death. Another witness said he moved quickly to clear out Smith’s possessions. Baker, one of Smith’s close friends, said the pace of removing belongings disturbed her. “There wasn’t a person he wouldn’t help,” she said of Smith, recalling the shock of learning he was dead.
Jurors heard from people who knew both men before the killing. Some described parties, community events and the couple’s social life. Others described arguments and unease in the home. Jordan Swilley, the defendant’s daughter, testified about hearing noises around the time prosecutors said Smith was killed. According to trial coverage, she said her father later told her to say she had not heard anything and that he had been home all night. Friends said Herbert Swilley’s conduct after the death seemed focused on belongings, cleaning and insurance. A witness from an Ocala store said Swilley came in days after the killing with items that had belonged to Smith. The defense used other testimony to suggest investigators had not ruled out every possible outsider, but the prosecution argued the witness accounts matched the forensic and digital records.
Smith’s identity outside the courtroom gave the case added weight in Marion County. He was known as a health care executive and as part of the LGBTQ community. Michael Orsini, a drag entertainer who performs as Twila Holiday, described Smith as joyful and drawn to feathers, sequins and rhinestones. Friends said he was outgoing, generous and visible at gatherings. Local reports also noted that Smith and Swilley married in 2015 in The Villages, after the U.S. Supreme Court ruling that opened marriage to same-sex couples nationwide. That history made the later trial especially painful for people who had seen the couple as part of a broader community milestone.
Swilley was arrested Nov. 3, 2023, and later tried in September 2025. The jury heard a week of testimony, including medical evidence, detective testimony, friends’ accounts and arguments about the apartment. Court TV reported that the jury deliberated for a little less than two hours before finding him guilty of first-degree murder. The judge sentenced him to life in prison without parole. Local coverage said the judge denied defense motions seeking a mistrial and judgment of acquittal. Prosecutors Richard Buxman and Amy Berndt handled the case for the state attorney’s office, which said jurors had reviewed substantial evidence before reaching the verdict.
Swilley remains imprisoned for Smith’s murder. The public record now centers on the conviction, the life sentence and any future appellate filings that may follow the September 2025 judgment.
Author note: Last updated July 6, 2026.