So that Thursday that morning, everybody goes to work. Jordan is spending the time. They come home that evening. They all have dinner together. They end up watching a movie, the three [music] of them. Around 9:30, the defendant and Tim go to bed. And Jordan goes in her room. Sometime that evening of the 23rd, the defendant secretly overdoses Tim with diphenhydramine. Diphenhydramine is the in medicines like Tylenol PM and Benadryl. Diphenhydramine is the ingredient that makes you tired in those medicines. Now a normal dose of diphenhydramine, if you tested somebody's blood, would be 65 nanograms per milliliter. When they tested Tim's blood after he died, his level of diphenhydramine was 2,000 nanograms per milliliter. Tim was probably not even awake when the attack began. But he certainly couldn't fight back. The defendant beat him. He had a black eye. Tim had bruising on his face. He had cuts and swelling. And then the defendant put that ligature over Tim's neck. And he squeezed it so tight and for so long that he broke Tim's neck. And you will hear that the type of injury is called a hyperextension type of injury, which means Tim's neck was bent backwards this way until it broke. >> [music] [music] >> There she goes, just a walking down the street singing doo wah diddy diddy dum diddy doo. She looks good. She looks fine. She looks good, looks fine, baby's going to blow your mind. >> If there's one word that best describes the most recent season of Timothy Floyd's life, it's transformation. After years of struggling with obesity and alcohol addiction, Timothy made a decision to change the direction of his life. Over time, he lost a significant amount of weight, joined Alcoholics Anonymous, and remained sober for nearly [music] 3 years. But his transformation didn't stop with him. Friends say he poured that same energy into others. >> [music] >> It's C chord, a double C chord. The hammers are the chords. I'm but an instrument designed by my master, my higher power, God, however known to you and to me. >> [snorts] >> I'm grateful today that I can be that instrument. Going a little bit further with an actual hammer, it can actually be a tool of construction or it can be used as a tool of destruction. In the master carpenter's hand, it is a tool of destruction that builds up. It can be used to take away, to tear down, to destruct. And sometimes things need to be destructed, but not necessarily in a destructive manner. >> A respected businessman and executive at an assisted living facility, Timothy spent his days caring for the elderly and lifting up people fighting their own battles. That's what made the morning of March 25th, 2023 so impossible to comprehend. Because on that day, every step forward Timothy had taken, every life he had touched, every promise he had made to himself, >> [music] >> came to a sudden and devastating end. And by the time the news broke, the entire community of Ocala, Florida would be left searching for answers. >> On the morning of March 25th, Marion County Sheriff's deputies found Timothy's body in his home in the Citrus Park neighborhood. >> I never thought anything bad would happen. I don't think anyone thinks bad things would [music] happen to your family or your friends or, you know, anyone you know. >> It was just as hard for his sister, Sandy Riles, to accept [music] as they lost her mother just months prior. >> And then for him to, you know, something to happen to him, it was just it's just been devastating. [music] >> In a one-on-one interview about the case, Lieutenant Paul Bloom described Timothy's murder as brutal. [music] >> The level of violence done to the victim from the body that they saw, uh, was certainly appalling. >> Saturday, March 25th, 2023. It's a pleasant 76° in Ocala, Florida, and by outward appearances, everything was calm. except for one man. 55-year-old Herbert Swilling, a local handyman with a habit of keeping close tabs on his world, called police to report he hadn't seen his spouse in almost 2 days and he was worried. Minutes later, Marion County deputies were dispatched to the 1900 block of Southeast 40th Street for a welfare check. >> We called in because my other half I haven't seen since late Thursday night. When we went to bed, he didn't show up for work yesterday. They've called, they've text. Everybody's called and text. We don't actually live here. This is his secondary apartment that he uses for his massage studio and other stuff. But his Jeep's been here. The girl's now saying for almost 2 to 3 days it hasn't moved. And we can't get a hold of him. We've called, y'all called, y'all did a wellness check yesterday. They can't couldn't go in cuz I don't have a key, so they told me to get a hold of the landlord. He actually has a key. >> Okay. >> But they told us not to go in that Well, since I'm not legally on the lease or anything, so >> What's his name? >> Timothy Clayton. But it's not like him cuz he's normally He's the executive director at the Brother's Keeper Chamber of Commerce, so he's very responsible about it. You know, that's his job. He does everything. >> 3631 >> 3631 Okay, that's his wife. >> Didn't start minute. >> This way. >> Yeah, but >> What is it? Seat? >> Yeah. >> Yeah. >> Herbert told the deputy that he and his spouse shared a primary residence and a rental unit 5 minutes away, the apartment about to be checked. The afternoon before, after learning Timothy hadn't shown up to work and wasn't answering calls or texts, Herbert drove to the apartment and spotted Timothy's car outside. He requested a welfare check then, too, but without a key or any visible signs of emergency, deputies had no grounds to force entry. This time, the landlord is here and has provided a key. >> Sheriff's office. >> As the deputy walked through the apartment, he discovered the lifeless body of Timothy Smith inside a bedroom. Timothy was wearing only a tank top and appeared to have ligature marks around his neck along with visible injuries to his face and groin area. >> All right. >> Need some medics, signal seven. >> 10-4, signal seven. >> Yeah. Okay. Mhm. >> So, he's in there and he's not okay? >> Yeah. >> Sorry about Well, they would have been here last night if I hadn't give out the wrong phone number. I didn't give him Jack's phone number for the landlord because I have it in his jacket in Ocala with an L. So, I thought it was Jack for landlord and it's Jack of AA that we saw at our retreat and I gave him that number and he called me this morning and said, "Herbie, I'm not Jack's landlord, so why are you calling me?" And I'm like, "Oh my god." I said, "So, I've been scrolling through." It took me 45 minutes to find his number and I had to find it via text. I've got to call him. >> Um >> When was the only >> When's the last time you saw him? >> I went to bed on Thursday night and I go to bed about 9:30. He finishes taking his medication. I would say about 11:00 I heard him get up. But that's not uncommon cuz he gets up and he'll go to Facebook posting for this stuff called Thrive and he'll just relax and stuff but I assumed he was still home to be honest with you. I got up my regular time 4:40. I went straight to the gym like I normally do the Planet Fitness. I came home very quietly cuz if he's asleep I try not to wake him cuz he doesn't have to be to work until 8:00 or 9:00. So I went in took my shower. I left with my work trailer to go to work. I got back cuz I picked up all the materials and before I went to the Villages I figured I'd stop back by the house cuz I had forgot to get a change of clothes. So I stopped back by the house real quick. I went in. The bed was unmade. He wasn't in the house. >> stop by the house not here? >> No, my house cuz we don't live here. We live at um is our physical house. This is just his massage office, his our playroom and stuff like that cuz that's what this was set up for so that way we could host parties occasionally cuz we have a 20-year-old daughter and we didn't want to do it at home. And so when I went home this was out of the garage on Thursday morning before 8:00. This was not there so I don't know when he left and he wasn't there. So I went on to work and at 4:00 yesterday afternoon I got a phone call from Tammy Warner at Brookdale and said that they have not seen Tim or heard from him. They've been texting all day. So that's when I told her about the apartment. >> was that? >> That was around 4:00. >> p.m.? >> Yeah. So, then I drove over here. I knocked on the I saw the Jeep here, so I knocked on the door and everything. And um no answer, no nothing. I called the Sheriff's Department. And they told me not to go in since I'm not on the lease. So, I went on and did that. >> What 4:00 last night? I mean, interrupt you. 4:00 yesterday? >> Yeah. >> Okay. >> Yes. >> And you haven't seen him since Thursday. >> Well, since I went to bed cuz once I go to sleep, I don't hear anything because I take um a couple of sleeping pills and stuff because >> So, Thursday he was at the house at 26 Court. >> Yep. >> Thursday morning? >> He was not. Cuz when I went back there, >> So, you mean Friday morning? >> Well, yeah, Friday Sorry, Friday morning. Sorry, Friday morning, yeah. Getting confused because just kind of Yeah. Friday morning. >> Okay. >> Which would have been yesterday morning. >> Mhm. >> And um And then this morning I've texted him several times. We've had everybody calling and texting and all day and everything. >> All right. So, our major crimes detective will probably have to come out and take over the investigation. Um >> Thanks. >> Cuz that's standard procedure. >> Should I stay out here? >> Yeah, they're going to need to talk to you. Um just They're going to ask you pretty much the same questions I asked, but they might ask a few more. >> I know. >> At this point, the deputy was no longer dealing with a routine welfare check. It was a violent homicide. But exactly what happened inside that apartment was far from clear. Oddly, outside of the trauma to the victim, the detective observed no obvious signs of a violent struggle in the apartment. After alerting major crimes, he broke the news to one of Timothy's long-time friends and co-workers, then briefed a responding sergeant. >> How do you know >> Tim and I have been friends for about We worked together. We just worked together in the medical field forever and we've been close friends with him for 10 years or longer. That's what he told me. He's really dead? >> Yes, ma'am. >> They rent this place as a >> massage, party, playroom. And then his husband would be cuz they don't want their daughter seeing them. He was as much into sex, swinging, and bondage as Tim. Um Cuz I'm a furry. I always got to wear a shirt on. Any shoes? And this is a lot of his stuff. Burn? And he likes to do things like asphyxiation and stuff. Yeah. But he His phone is He can't find his phone. I don't see any keys. His truck's here. He's been here since Friday morning, so that's why I'm here. Yeah, okay. So, the landlord came cuz he didn't want Landlord being the one that's renting this thing out? Yeah. Did he Did he give you the yeah. He rents it to them. He's first time he met them was like a week ago cuz they He rents it to the husband and the husband. Or one of them in here or just some random dude. So, this is husband of husband who rents this place. Um but he's the landlord. Is he in there? No, he he ran. He's coming back. He Okay. He doesn't know like I told him that somebody's going to need to talk to him, but I didn't think he knew anything to All he did was show up today and give me the key. He hasn't seen him since him this morning. That I don't I don't know that for a fact. >> According to court transcripts, Herbert and Tim had known each other for years. When they first met, Herbert was married to a woman and raising a young daughter. After that marriage ended, he and Tim eventually became romantically involved. By 2023, the two had been legally married for nearly 8 years, living together with Herbert's [music] 19-year-old daughter, Jordan. Herbert also told deputies the couple had an open relationship and that [music] Timothy often used the rental property to host parties with people he met on social media [music] apps. That detail changed everything. Suddenly, the suspect pool wasn't limited to the household. Timothy's killer could have come from inside the home or from a long list of men who had passed through that apartment. >> Is this primarily his place? Is that why you didn't have a key? >> This is not a primary >> No, no, no. I mean >> No. I have a key, but my daughter thinks he took it off the key ring at the beginning of the week because when he goes and plays, he wants the key so that way he's not over here using it. So, I have a key, but I think it's with his stuff here. >> Okay. >> Cuz when he goes and plays during the week, >> Mhm. >> he takes the key. >> Got you. >> Cuz he doesn't want me interrupting. And his thing to me tells me I'm doing a massage. So, I I know what it means and I let it go and you know. Lisa daughter thinks he may have taken the key off the key ring. Otherwise, I lost them because they're supposed to be on a key ring like this. >> didn't you? >> Yeah, supposed to be on this and this piece is not in my key. So, this whole assembly on my other truck key, this is gone with the other three keys. So. >> Herbert was questioned briefly at the scene, then released. Timothy's body was transported to the medical examiner for autopsy. Inside the rental, one detective noticed a strong chemical odor, bleach. A luminol sweep lit up the scene, returning a presumptive positive for blood. Detectives also spoke with Jordan. She said she'd been home the night Timothy was last seen and noticed nothing unusual, but recalled her father later claiming Timothy had abruptly left the house late that night, contradicting what Herbert told deputies. She also mentioned driving him to the apartment after the first welfare check. He never knocked on the door. The autopsy ruled Timothy's death a homicide caused by neck trauma, ligature asphyxia, and a fractured cervical spine. Toxicology was still pending. Armed with what they had, detectives reached back out to Herbert to clarify his timeline. >> I'm glad you called me back. >> Yes. >> Um >> I just want to let you know that real quick, I have a friend of mine, she's sitting here with me, so that way I have somebody that can kind of make sure I don't mess up on everything and get more confused than I am today, okay? >> No, that's fine. That's fine. The what I wanted to verify with you was I know before you told me that you went to um Helen's house around 8:00 or 8:30. This is all on Friday. Um and then you went to Sue News Towel a little bit before 10:00. Um when you went to >> Well, actually I finished up there around Yeah, cuz I left there around 10:00 something, so yeah. >> Okay. And then you came back home around 11:00, right? >> Sometime close to 11:00 I got here because I know that once I got here then me and Jordan decided to go eat lunch at Ivy on the Square. >> Okay. >> Yeah. >> You went home, then you went to lunch. Um what time did you go to Lowe's? Or I'm sorry, which one um cuz I have that you went to Planet Fitness and Lowe's. What time did you go to Planet Fitness? >> Actually I went to Planet Fitness this around Well, I I I wake up around 4:40, so it's close to 5:00. Somewhere around 5:00 that I get there and I'm there for about an hour and then I come back home. >> Okay, so you were there around 5:00. >> And then Yeah. And then there was one thing we forgot. >> Okay. >> Cuz I had I have a thing for that I when I went to Lowe's I went to Lowe's and they didn't have what I needed, so then I continued on to the public landfill and I got to the public landfill at 7:00. So I did do my I did do my I did dump my um dump my truck and stuff out and all that that I had to take care of and then I came back home and that would have been sometime right after 7:00 that I got back here cuz I had to have enough time to go in there, do that, come back in and that's when I woke Jordan up to make sure she was ready for the dog groomer that was going to be here at the house between 8:00 and 8:30. >> I think that that covers it for now. I'm sure that we'll be in contact again just with anything else that we need to you know anything that comes up that we want to clarify with you, but I believe that that covers it for now. So I do appreciate you taking the time to return my call. >> Um real quick um just real quick before you go we we do have we have some follow-up questions. Uh one of which is um the the most obvious question is is Herbert currently a suspect in something? >> Um we >> Yes, he's >> Obviously we're in the beginning stages of the investigation and at this point I can't answer that for sure. Um I'm just sitting Detective Pender so he would be a better point of contact for that. Um but we're just trying to run through every option at the moment right now and just trying to gather as much intelligence as we can. >> Detectives already suspicious of possible clean-up activity inside the apartment privately questioned the timing of the landfill visit and why it was not initially disclosed to them. Additionally, police records show the lead detective later reviewed body camera footage from the second welfare check and observed what he believed was a lack of emotional reaction from Herbert to the news that Timothy had died. >> Yeah. Are you okay? >> Mhm. >> So he's in there and he's not okay? >> Yeah. Sorry, bud. Well, they would have been here last night if I hadn't give out the wrong phone number. >> The detective found Herbert's behavior noteworthy, though grief and shock affect people differently, making demeanor a highly subjective indicator. One detail stood out, though. Herbert had mentioned visiting the landfill the day before Timothy's body was discovered. So, investigators asked him to bring Timothy's Jeep to the sheriff's office, hoping to pull data from its on-board system. Herbert agreed at first, but by March 28th, he'd lawyered up and gone silent. The Jeep was eventually towed, but oddly yielded no usable data. Behind the scenes, detectives were quietly zeroing in on Herbert. Still, much of the case remained circumstantial as they worked to piece together Timothy's final days. Meanwhile, Herbert grieved publicly. He launched a GoFundMe that raised over $2,000, ostensibly for funeral costs and a celebration of life. And in August, on what would have been their wedding anniversary, he posted a tribute on Facebook, which read, "I just want to wish you a happy anniversary to my very loving husband. I miss you every day and wish you were here. Life isn't the same without you." Investigators took notice. That same day, Herbert was officially named a suspect. But one question still hung over the case. Were detectives uncovering a carefully staged homicide or building a circumstantial case around a grieving husband whose behavior simply didn't add up? The answer came on November 3rd, 2023, nearly 8 months after Timothy's body was found. Marion County deputies made their move, and loved ones finally felt a small measure of relief. >> I just started crying and thanking Jesus because there's been so many prayers going up that we get justice for Tim. >> Sandy Swartz is breathing a sigh of relief after getting a call from Marion County deputies telling her that Herbert Swilley was arrested for the murder of her brother, 59-year-old Timothy Floyd Smith, who was married to Swilley. In March, deputies found Smith's body at an apartment the couple shared in Ocala. The investigation found that Smith had been drugged, beaten, and choked to death. >> I mean, my brother's not a small person or wasn't. He was tall and he was strong and I just I can't imagine what he went through and it breaks my heart to think of it. That's the worst part. >> Investigators believe Swilley took Smith's body from their home to an apartment they also shared and staged a fake crime scene and then tried to destroy evidence with household cleaners. >> Initially, Swilley kind of faked cooperation with us. Uh gave us a lot of conflicting statements about what happened, about, you know, his involvement uh with Mr. Smith's death. Uh and even about what he was doing the night uh that Timothy was murdered. >> Deputies pieced the details together by looking at nearby surveillance video, tracking the various locations of Smith's cell phone, and then talking with people who knew them. Riles says her brother and Swilley had been together for 13 years. She says after her brother's death, she didn't even get a phone call from Swilley and had to call him after hearing the news on Facebook. It was the first of many red flags. >> Just from the first initial conversation I had with him, he changed his story in that conversation three times. >> Deputies say there had also been a history of domestic abuse, that Smith had been previously abused by Swilley, and that Smith was trying to leave the relationship just before his murder. >> Herbert Swilley was ultimately charged with first-degree murder and tampering with evidence. Given the severity of the allegations, a judge ordered Herbert held without bond while prosecutors prepared their case. More than 2 years after Timothy Smith's death, the case against Herbert Swilly finally arrived in a Marion County courtroom. In its opening statement, >> [music] >> Assistant State Attorney Amy Berndt argued Herbert Swilly carried out a calculated killing and then attempted to stage the scene to mislead investigators. She told jurors the evidence would show Timothy was [music] heavily sedated, killed at the couple's primary residence, and his body later moved to the rental apartment. Attorney Berndt also previewed the state's motive theory. Timothy, she explained, was the household's primary breadwinner, while the relationship itself had become increasingly strained due to allegations of abuse. She added [music] that Timothy had recently interviewed for a new job in DeLand and was preparing to leave Herbert behind. >> So, things got worse as time went by. And the defendant had to face some cold, hard facts. It's the end of March now. He knows Tim's leaving him. Tim's moving to another city to get a new job. And he can't support himself without Tim. He's mad. He feels cheated. He thinks Tim owes him. And he's not going to let Tim leave him like that. So, to the defendant, there was only one option. Tim had to die. Cuz that would solve all his problems. Because Tim had a life insurance policy worth $333,000. Tim also had a 401 retirement plan with $48,000 in it. And guess who was the beneficiary of both of those things? The defendant. Herbert Swell. $381,000 surely would go a long way for the defendant once Tim was dead. >> A key piece of the state's timeline came from surveillance footage reviewed by Detective Pinder. According to prosecutors, Timothy's phone showed no movement for about 4 hours after he was last seen alive, then suddenly began traveling away from the couple's [music] primary residence. At that exact moment, a vehicle resembling Herbert's truck was caught on camera leaving the area. To prosecutors, this wasn't a coincidence. It was evidence that Timothy was already dead and that his body, along with his phone, was being moved to stage the scene at the rental apartment. [music] >> Before I play State's 31, can you describe, using the map, State's 44, the path of travel that we're going to see the vehicle take? >> The path of travel is going to be this way, which is northbound up this road here. >> And what is the timestamp of the video that we just looked at? >> 1:59 a.m. >> Is that consistent with the geolocation data on the victim's phone showing the phone beginning to travel around 1:58? >> Yes. >> Another camera angle. What's the timestamp of this one? >> 1:59 a.m. >> Based on the timing and direction of travel, is the surveillance footage consistent with the victim's phone leaving the house and traveling in the direction of the apartment? >> Yes. >> Along with the pickup truck? >> Yes. >> Investigators also focused on Herbert's behavior in the hours after Timothy was last seen alive. Some of the most important testimony came from inside Herbert's own household. >> Good. >> Thank you. Good afternoon. >> Hello. >> I just need to make sure that you speak up so everybody can hear you. Talk into the mic. Can you tell the jury your name? >> Jordan Swilley. >> How old are you, Jordan? >> Um 22. >> Now, I want to move on to the the next day, Sunday, March 26th of 2023. On that day, did you learn that Tim's death had been ruled a homicide? >> Yes. >> How did you find out? >> Um I believe my dad told me. >> And did you and your dad start getting rid of Tim's things on Sunday? >> Yes, I believe so. >> And how did that happen? How did that start? >> Um he had just said that he wanted to start cleaning stuff up. >> You So, was your dad's idea? >> Yes. >> And what sort of things were you and your dad throwing away? >> Um I believe it was like clothes and stuff. I can't remember exactly. >> All right. Did you throw away any any of his like snacks, the medications, and vitamins that were in the kitchen? >> Um yes. >> All right. And you said clothes. What about um knickknacks, the little beach things that he had? >> Probably, yeah. >> All right. And um what about some portraits that were on the wall that were professionally taken of you and Tim um and your dad? Did those get taken down? >> Yes. >> All right. Who took those down? >> Um I believe my dad. >> Okay. And they were going to get thrown away as well? >> Um I'm not sure if they got thrown away or not. >> Okay. They were taken down, though. >> Yes. >> Okay. >> Now, right around the time that around the time that Tim was killed, did your dad get rid of a large area rug that was in one of the living rooms when you walk in the front door? >> Yes. >> And why did your dad tell you he got rid of it? >> Um because the dogs peeing on it a lot. >> Because the dogs peed on it a lot. >> Yes. >> All right, I want to move on to the next day now, which is Monday, March 27th 2023. That morning, did your dad ask you to help him get Tim's Jeep to the Marion County Sheriff's Office the next day? >> Um yes. >> Okay. All right. And what did he want you to do to help him to get the Jeep there? >> Um I believe follow him. >> It's okay. So, he asked you to follow him. He was going to drive the Jeep. You would follow him, and he would drop the Jeep off at the Sheriff's Office. >> Yes. >> Did you agree to help him with that? >> Um yes. >> Later that Monday evening, did you help your dad clean the Jeep? >> Yes. >> Okay. And how did that happen? >> Um I can't remember exactly. He had said something about wanting to clean it. >> It was his idea? >> Yes. >> Okay. And where did you go? >> Um to AutoZone. >> At AutoZone in Ocala? >> Yes. >> All right. What did you get at the AutoZone? >> Um some type of cleaning stuff. >> And where did you and the defendant or your dad clean the Jeep? >> Um at the house, I believe, in the garage. >> In the garage at your at the house that you lived [clears throat] at. Okay. And the next morning, that Tuesday, did you follow your dad to the Sheriff's Office to take the Jeep? >> Um no. >> Okay. Now, after Tim died, did your dad ever tell you that he needed more money or the life insurance from Tim? >> Um yes. >> Okay. How many times did he say that? >> Um I feel like quite a few. >> Quite a few times. All right. What would he say? >> Um I can't remember exactly. It was just different times. He'd be like, "We just need to get the life insurance money." or something. >> All right. Did he ever talk about um the mortgage on the house, if he could afford that without the life insurance? >> Um yes, I don't think he could afford it without it. >> All right. And after Tim died, did a man named Kevin move into the house with um you and your dad? >> Yes. >> Okay, and who was Kevin? [clears throat] >> Um their friend. >> Okay. A friend of Tim and your dad's? >> I believe so, yes. >> All right. And where did Kevin sleep? >> Um I believe in the main room. >> In the main room with your dad? >> Yes. >> All right. >> Prosecutors then turned to the state of Herbert and Timothy's relationship behind closed doors. Friends described growing tension inside the marriage and troubling comments they claimed Herbert had made long before Timothy's death. >> Have a seat. Thank you. Good morning. >> Good morning. >> Can you please tell the jury your name and spell it? >> Diane Deluski, d i a n e Deluski, d y l e w s k i. >> Thank you. Are you currently employed? >> Uh sometimes, part-time. >> Okay. What do you do part-time? >> Uh family attorney. >> In May of 2022, did you hire the defendant to do some work on a shed at your house? >> Yes. >> Was he a handyman? >> That's what he said. >> Did the work he was doing at your house require him to come to your house more than one time? >> Yes. >> All right. Approximately how many times did he come [clears throat] to your house? >> I want to say three. He worked on the shed and then he did a fence around it and I think that was another day or two. >> Now, while he was at your house, did the defendant talk about Tim or his relationship with Tim? >> Yes. >> All right. And how What the defendant's demeanor when he would talk about Tim or their relationship? >> Horrible. Screaming, arms flailing, red in the face, I'm going to get back at him. He's an effing and I just kept walking away because Tim was a friend of mine, but I still heard what he said. >> All right. So, obviously he was very angry as you've described. What what sort of things you said um I'm going to get back at him. What are other sort of things that he say about Tim or their relationship? >> Well, one of the things that sticks out in my mind is that he said that early in their relationship he supported Tim. Tim was a lazy SOB and he owes me and I spent all this money and I BOUGHT THE HOUSE AND I DID THIS AND HE OWES ME. >> Talking about Tim owes the defendant. >> Yes. >> Okay. And did he talk about that he had to support Tim at some point in their relationship? >> And you've described that in a very angry tone. Is that how the defendant was saying those things about Tim? >> Yes. >> Now, what would you do when the defendant started to talk about Tim and their relationship? >> Most of the time I would walk away. Um but sometimes I would engage a little bit. I would say things like well, Tim always had a really good job. Why were you supporting him? Oh, Tim did work. He was lazy. But I'd always known Tim to have a good job. >> So, you would try to shut it down, but sometimes >> Yeah, sometimes it would keep going. >> And did this happen every time he came to work on the shed or the defense? >> Yes, every time. >> In its opening statement, the defense focused on what it believed was the biggest problem with the state's case. Despite months of investigation, where was the direct evidence linking Herbert Swilly to Timothy's murder? There was no eyewitness, [music] no confession, no known murder weapon, no publicly disclosed DNA evidence [music] placing Herbert in the act of killing Timothy, and no video of the killing itself. The state's case, they argued, was largely circumstantial, built on interpretations of behavior, timelines, and forensic opinion rather than direct proof. The defense also suggested that detectives had focused too narrowly on Herbert while overlooking others connected to the [music] apartment. One name surfaced repeatedly during trial as a potential alternate suspect, James [music] True, whose DNA was found inside Timothy's rental unit. >> What happened with you and James True's marriage? >> [clears throat] >> Uh it ended in divorce. >> Why? >> Um because he had um the second that I knew about extramarital affair uh with a same-sex partner and lied about it while drunk. >> Okay. And um did the divorce process go smoothly? >> No, sir, it did not. >> Why not? >> Uh per our prenuptial agreement, James had 30 days from the date of divorce to vacate the property. In those 30 days, he did significant damage to my premarital home. He punched holes in walls. He took a crowbar to my locked bedroom door to gain entry to it and me. Thankfully, I was not present. He broke every camera in my home. Uh he vomited and defecated in the bed in the bedroom in which he was staying. And uh and more. >> Did he threaten you with any violence? >> So, uh previously, uh he had uh physically assaulted me. I had bruises all over my body. I got a restraining order. I stayed married to him because he agreed to go to inpatient alcohol treatment. Um uh which he completed, but it was unsuccessful. Um he went back to drinking pretty quickly thereafter. Um but he did do additional treatment programs, again unsuccessful. I think about six in the course of our 18-month marriage. Um uh and uh after that, destruction to my home and property, um that physical violence and threatening to kill me multiple times, I was granted a second restraining order. Um uh he violated that restraining order uh when the police picked him up. Um he uh his father had called the police uh to state his whereabouts, and his father told the police and me, and it's captured on body cam, that James had threatened to kill me and kill himself. He was charged with an aggravated stalking third-degree felony. This past Friday, he accepted adjudication of that charge in a plea. >> Mhm. >> Investigators said they had looked into James Drew as a possible suspect, but ultimately concluded the evidence pointed more strongly to Herbert Swilley. Still, some of the most damaging testimony for the defense came from Herbert's own daughter, who described what prosecutors argued amounted to being instructed to lie. >> Now, the next morning, that Friday, what time did you wake up? >> Um probably like 9:00 I think. I'm not sure exactly. >> All right. And who was at the house when you woke up? >> Um my dad. >> Did you ask your dad where Tim was? >> Um yes. >> Okay. What did he say? >> Um I think he had said he was at work or something already. I don't remember exactly. >> Okay. He said he was at work. >> Hold on. Hold on. I believe one of the jurors couldn't hear you. Can you repeat your last answer? >> Um I think he had said he was at work. But I'm not exactly sure. >> I can't [clears throat] remember that either. Very well. Did your dad ask you if you heard anything that night? >> Um yes. >> Okay. And what did you say when your dad asked you if you heard anything that night? >> Um I told him yes I had. >> All right. Did you tell him what you heard? >> Um I can't like remember exactly what I said to him. >> You told him you heard something? >> Yeah. >> Okay. And what did he say when you told him you heard something? >> I can't remember. Sorry. >> It's okay. >> Um >> [clears throat] >> I think it was just something along the lines that um saying to me that I hadn't heard it or something. >> Okay. Would a refresh your recollection to look at your grand jury testimony? >> Hold on. Hold on one second. You're talking too low so some of the jurors can't hear you. Can you ask that repeat that last question and the answer again? Thank you. >> All right. And what did your dad say to you when you told him you heard some noise? >> Um he had said something I can't remember like exactly along the lines of that I hadn't heard it or >> Okay. Would a refresh your recollection to look at your grand jury testimony as to what your dad said when you told him you heard a noise? >> All right. And for the record I'm going to refer um defense to the grand jury testimony November 14th of 2023, page 35 line two. You want me to approach? >> Sure. >> I'm just read this to yourself. This is page >> 35 >> And you can start right here at the top and go to seven. One through seven. >> Okay, so that will refresh your recollection. >> Okay, what did your dad say to you when you told [snorts] him that you heard a noise the night before? >> Um, to say that I was sleeping. And I hadn't heard anything. >> All right. Did he also say that's all you need to remember? >> Yes. >> Okay. So, he said you were sleeping, that's all you need to remember. >> Yes. >> All right. Were you upset after that happened? >> Um, yes. >> Okay. Why? >> Um, just cuz I was confused. >> Okay. >> [clears throat] >> Cuz your dad said that to you, you were confused? >> Yes. >> All right. Now, were you awake when your dad went to the landfill that morning? >> Um, no, I don't believe so. >> All right. Did you help him load anything on his trailer? >> No. >> After days of testimony, forensic evidence, and emotional witness accounts, both sides rested. Prosecutors framed the case as a calculated, financially motivated homicide followed by a cover-up. The defense countered that the state leaned too heavily on circumstantial evidence and never fully ruled out other suspects. Now, the jury faced the same question that had followed this case from the start. Did the evidence prove her word that Shirley murdered Timothy Smith beyond a reasonable doubt? Or were too many questions still unanswered? >> My understanding you reached a verdict, is that correct? >> Yes, we have. >> I'm going to have the foreperson hand that to the bailiff. Thank you. >> Verdict, we the jury find as follows as to count one of the charge. The defendant is guilty of first degree murder as charged in the indictment. So say we all do this 19th day of September 2015. >> You just had want the jurors polled. >> Yes, your honor, please. >> [music] >> In the end, the jury rejected the defense's argument that too many questions remained unanswered. The autopsy findings, cell phone data, surveillance footage, signs of cleanup, and a string of witness statements were enough to convict. At sentencing, the court handed Herbert a life sentence for first-degree murder, closing a case that had gripped Marion County for more than 2 years. What began as a routine welfare check on a quiet spring afternoon had unraveled into something far more complex. [music] A homicide investigation pieced together through timelines, forensics, digital footprints, and the hidden dynamics of a relationship few outsiders ever truly understood. >> [music]