THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, August 11, 1995 TAG: 9508110200
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON AND JUNE ARNEY, STAFF WRITERS
LENGTH: Long : 160 lines
A federal appeals court in Florida has overturned the murder conviction of Thomas Smolka, the former Virginia Beach lawyer and real estate developer sentenced to life in prison for the murder of his wife, Betty Anne.
The opinion, filed Wednesday in the 5th U.S. Circuit Court of Appeals in Daytona, reverses Smolka's March 1993 jury conviction in Ocala for first-degree murder. The panel of three judges ruled that the circumstantial nature of the case did not justify the conviction.
Barring an appeal, Smolka, 48, could be freed within two weeks, said a prosecutor and a defense attorney. However, prosecutors say they plan to appeal.
``There is no doubt that the state's case against Smolka creates a strong suspicion that he murdered his wife,'' the judges wrote in a 30-page opinion. ``The number of suspicious circumstances is especially troubling. But suspicions cannot be the basis of a criminal conviction.''
Smolka, who would not have been eligible for parole until 2018, could now be released from prison as early as Aug. 24, said Assistant State Attorney Reginald Black in Ocala.
Smolka is being held in Union Correctional Institute, a maximum-security prison in Raiford, Fla.
Because of the court's opinion, Smolka cannot be retried on the evidence, Black said Thursday. Instead, the state has 15 days to challenge the appeals court's decision.
``We have asked the state attorney general to file a motion for a rehearing before the full appeals court,'' Black said. ``Failing that, we have asked the attorney general to appeal to the Florida Supreme Court.''
The appeals court, in its opinion, quoted the Florida state code: ``Florida law requires that when the state relies on circumstantial evidence to convict the accused, the state must prove the circumstantial evidence is consistent with the defendant's guilt and inconsistent with any reasonable hypotheses of innocence.''
Thomas Smolka was part owner of the Ocala Radisson Inn when his wife disappeared on July 10, 1991. He had sent her to the local Phar-Mor store to buy light bulbs and grease pencils for the hotel.
Betty Anne Smolka's rented van was found parked across the street the next day, its interior spattered with blood. Three days after that, roller skaters found her body near a dirt road in an abandoned, half-completed subdivision west of the city. She had been shot twice in the chest.
According to the judges' opinion, ``The sole fact that approaches the required test (to meet Florida law) is Smolka's apparent guilty knowledge about where the bloodstains were found in his wife's rented van, but given the surrounding circumstances, this fact is not persuasive of guilt.
``Because a duly constituted jury found Smolka guilty of murder after hearing the evidence, we have tried to be thorough in our review of the evidence and cautious in our decision,'' the judges wrote. ``Nevertheless, a special standard of review of the sufficiency of the evidence applies where a conviction is wholly based on circumstantial evidence.''
Prosecutors told jurors that the case against Smolka was circumstantial. Despite a massive and meticulous investigation, no direct physical evidence ever was found to link him to his wife's killing. Instead, prosecutors focused on Smolka's desperate financial situation and on the fact that he had insured his wife's life for $500,000.
``We told the courts from the beginning that the evidence did not show guilt and there was a reasonable and legitimate basis for a hypothesis of innocence,'' said David K. Tucker, one of Smolka's trial attorneys. ``The state didn't meet its burden of proof.
``I'm very pleased with the outcome,'' Tucker said Thursday from his Miami office. ``It was something we argued from the very beginning. I know Tom and his family are looking forward to putting this behind him as soon as possible.''
Miguel M. de la O, another defense attorney, said: ``We are overjoyed. We feel like Tom was finally vindicated. It's what we've been saying from day one. . . . There's nothing that said that Tom Smolka must have killed her.''
The jury found Smolka guilty on March 19, 1993, after 14 hours of deliberation. Smolka sat stone-faced as the jury read its verdict.
Ocala prosecutor Ric Ridgway convinced the jurors that Smolka killed his wife to collect the $500,000 death benefit. Two months before Betty Anne Smolka was murdered, her husband was ``not only out of money, he was out of resources,'' Ridgway told the jury.
Smolka had spent all of the $2.3 million he had borrowed against a piece of bayfront property in Virginia Beach in 1988. He had used all of the equity in each of three pieces of land he owned. And he had gone through his last windfall: $126,000 in insurance money he got when his beach house in Duck, N.C., burned down in 1990.
Smolka needed $28,000 every month to keep up with his mortgage and loan payments, prosecutors said. By May 1991, he was making those payments with credit cards. The Ocala Radisson Inn was his last hope of any income, and an Indianapolis bank was threatening to foreclose.
At that point, Smolka took out a second $250,000 insurance policy on his wife's life, Ridgway told jurors. He arranged for the money to go into a trust that would protect the Radisson from creditors. Smolka controlled the trust, but it was structured to benefit his three children.
Prosecution witnesses testified that relations between Smolka and his wife were often bitter. A painting contractor hired several times to work on the Smolkas' houses overheard the couple argue about their children and money. ``Specifically, he remembered Smolka saying, after Betty Anne had left the room, that `he would have his way with that bitch,' `she'll be dead,' and `someday she'll be out of my life,' '' the judges wrote.
The opinion noted that in fall 1989, after another argument, the painter overheard Smolka say: ``Someday, that day's getting closer.''
Betty Anne Smolka's new insurance policy was delivered to her husband on July 2, 1991. On July 3, Smolka made arrangements for her to fly to Florida from Norfolk. On July 8, he picked her up at the Gainesville Airport. Two days later, she was missing and presumed dead.
According to the state's theory, Smolka shot his wife in the heart and then panicked.
He washed his hands when police asked him to take a test to determine whether he had recently fired a gun, and he told them he had seen blood on the van's middle seat even though he had been kept far away from the vehicle, prosecutors said.
He fled the city, refused to cooperate with the investigation and called criminal defense lawyers - all before his wife's body was even found, Ridgway said.
Yet prosecutors never provided any physical evidence to tie Smolka to the killing. None of the fingerprints lifted from the minivan matched Smolka's. A semen stain found in the van did not match Smolka's blood type. A firearms expert could not find any gunpowder in Smolka's briefcase and could not determine if a weapon had ever been carried in it. No murder weapon was ever found.
A crime scene technician did find several grass seeds in the door runners of the van Betty Anne had been driving. A police sergeant testified that a similar grass seed was removed from a cuff on a pair of Smolka's trousers found in his room at the Radisson. None was found at the Ocala Radisson, but seeds were at the site where Betty Anne's body was found.
The seed from Smolka's pants cuff, while stored in police evidence lockers, was eaten by a mouse. ILLUSTRATION: Graphic
ANATOMY OF THE SMOLKA CASE
Color photos
Betty Anne Smolka
OCALA (FLA.) STAR-BANNER
Thomas Smolka during trial.
[For complete graphic, please see microfilm]
KEYWORDS: MURDER SHOOTING VERDICT CONVICTION
APPEAL by CNB