| KANSAS CITY, Mo.
KANSAS CITY, Mo. Jan 28 Missouri is due to
execute early Wednesday a man convicted of killing a St.
Louis-area jewelry store owner during a robbery after a federal
court overruled his objections to the state's choice of lethal
Herbert Smulls, 56, is to die by a lethal dose of
pentobarbital, a fast-acting barbiturate. The state Corrections
Department said the execution would be after 12:01 a.m. Central
Time on Wednesday at a state prison.
If it is carried out, Smulls would be Missouri's third
execution since November and the sixth person put to death in
the United States in 2014.
Smulls was convicted of shooting jewelry store owner Stephen
Honickman to death while robbing his store in July 1991.
Honickman's wife, Florence Honickman, was also shot during the
attack, sustaining permanent injuries.
On Monday, U.S. District Court Judge Beth Phillips denied
Smulls a 60-day stay of execution, citing earlier U.S. appeals
court rulings that pentobarbital does not inflict "cruel and
unusual punishment" in violation of the constitution.
Missouri and several other states have turned to
compounding pharmacies, which are not regulated by the U.S. Food
and Drug Administration, to acquire drugs for executions after
an increasing number of pharmaceutical manufacturers have
objected to their drugs being used in capital punishment.
The state has used compounded pentobarbital in its last two
Lawyers for Smulls had argued that the non-FDA approved
drugs acquired from a compounding pharmacy in Oklahoma cannot be
trusted and using them would amount to cruel and unusual
The U.S. Eighth Circuit Court of Appeals on Friday ruled for
Missouri on the use of pentobarbital, finding that Smulls'
lawyers did not propose a "feasible or more humane alternative"
and haven't shown that Missouri sought to cause him unnecessary
pain by using the drug.
The appeals court also denied a motion by lawyers for Smulls
that Missouri be required to identify the physician prescribing
the pentobarbital, the pharmacy or pharmacist who compounded it,
and the laboratory testing its purity.
Lawyers for Smulls asked a federal judge on Tuesday to order
Missouri to preserve physical evidence from the execution,
including leftover pentobarbital.
(Reporting by Kevin Murphy; Editing by David Bailey and Stephen