State of Missouri v. Herbert L. Smulls

935 S.W.2d 9 (Mo.banc 1996)
Herbert L. Smulls was executed on January 29, 2014

smullsCase Facts: Stephen and Florence Honickman owned and operated a jewelry business. Typically, customers would make an appointment to examine the jewelry for sale. In early July 1991, a person identifying himself as “Jeffrey Taylor” called the Honickmans and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as Smulls. On July 22, 1991, Smulls and Norman Brown went to the Honickmans’ store. After viewing several diamonds, Smulls and Brown left the store without making a purchase.

On the afternoon of July 27, 1991, Smulls and Norman Brown followed another customer into the store. Florence Honickman was unable to show them any jewelry at that time but suggested she might be able to help them later. Smulls and Brown returned to the store that evening. After viewing some diamonds, Smulls and Brown went into a hallway, purportedly to discuss the diamond prices. A short time later, Florence Honickman looked up and saw Smulls aiming a pistol at her. She then ran and hid behind a door. Smulls fired three shots at her, striking her arm and side. Smulls then fired several shots at Stephen Honickman, who was struck three times. Smulls and Brown stole jewelry worn by Florence Honickman and other items in the store. After the two men left the store, Florence Honickman contacted the police. Stephen Honickman died from his wounds, and Florence Honickman suffered permanent injuries from the attack.

A short time after the robbery, police stopped Smulls and Brown for speeding. While Smulls was standing at the rear of his car, the police officer heard a radio broadcast describing the men who robbed the Honickmans’ store. Smulls and Brown fit the descriptions. The officer ordered Smulls to lie on the ground. Smulls then ran from his car but was apprehended while hiding near a service road. The police found jewelry and other stolen items from the store in the car and in Brown’s possession. The following morning police found a pistol on the shoulder of the road on which Smulls drove prior to being stopped for speeding. Bullets test fired from the pistol matched bullets recovered from the store and Stephen Honickman.

Smulls was charged with first degree murder, first degree assault, two counts of first degree robbery and two counts of armed criminal action. The State subsequently filed an information in lieu of indictment charging Smulls with the six offenses and as a prior, persistent and class X offender. The jury found Smulls guilty of first degree robbery of Florence Honickman but failed to reach a verdict as to the remaining counts. Upon retrial, the jury found Smulls guilty of the five remaining counts. After the penalty hearing, the jury recommended the death penalty. The trial court sentenced Smulls to death for the murder count and to concurrent terms of life imprisonment for each of the remaining counts.

The jury found three aggravating circumstances supporting imposition of capital punishment.

  1. The murder of Stephen Honickman was committed while Smulls was engaged in the attempted commission of another unlawful homicide of Florence Honickman.
  2. Smulls murdered Stephen Honickman for the purpose of receiving money or any other thing of monetary value from Stephen Honickman.
  3. The murder of Stephen Honickman was committed while Smulls was engaged in the perpetration of robbery.

Source: Media packet distributed at Smulls’ execution

January 29, 2014 — Text of statement (PDF) by Florence Honickman at Eastern Reception, Diagnostic and Correctional Center, Bonne Terre, Mo.. following the execution of Herbert Smulls for the July 27, 1991 murder of Stephen Honickman¬†

Legal Chronology

1991
July 27 – Herbert Smulls and his co-defendant, Norman Brown shot Stephen Honickman three times. They also shot his wife Florence and stole the Honickman’s jewelry.
July 27 – St. Lousi County area police arrest Smulls and Brown
August 16 – The grand jury indicts Smulls for first-degree murder and other felonies

1992
August 24 – The jury trial begins
August 30 – The jury returns a verdict of guilty of first-degree robbery. As to the other count, the jury was deadlocked.
November 9 – The retrial begins
November 13 – The jury finds Smulls of first-degree murder, first-degree assault, first-degree robbery and two counts of armed criminal action.
November 14 – The jury returns a death sentence for the first-degree murder conviction.
December 18 – The St. Louis County Circuit Court sentences Smulls to death for the first-degree murder conviction and to life sentences for the other felonies.
December 24 – Smulls files a notice of appeal.

1993
June 18 – Smulls files a Rule 29.15 motion for post-conviction relief in the St. Louis County Circuit Court

1994
October 7 – The Circuit Court denies post-conviction relief.

1996
June 25 – The Missouri Supreme Court affirms Smull’s conviction and sentence. State v. Smulls, 935 S.W.2d 9 (Mo. banc 1996). The court also remands the post-convication relief motion for further consideration.

1997
June 2 – The United States Supreme Court denies certiorari review of the direct appeal. Smulls v. Missouri 520 U.S. 1254 (1997).

1998
September 11 – The Circuit Court denies post-conviction relief.

2000
January 11 – The Missouri Supreme Court remands the denial of Rule 29.15 relief. Smulls v. State, 10 S.W.3d 497 (Mo banc 2000).
October 2 – The United State Supreme Court denies certiorari review. Smulls v. Missouri, 531 U.S. 881 (2000).
October 2 – The Circuit Court denies post-conviction relief.

2002
February 26 – The Missouri Supreme Court affirms the denial of post-conviction relief. Smulls v. State, 72 S.W.3d 138 (Mo. banc 2002).
November 4 – The United States Supreme Court denies certiorari review. Smulls v. Missouri, 537 U.S. 1009 (2002).

2003
April 22 – Smulls files a petition for writ of habeas corpus in the united States District Court for the Eastern District of Missouri.

2005
February 1 – The District Court denies the petition for writ of habeas corpus.

2006
November 1 – The Court of Appeals reverses the denial of habeas relief. Smulls v. Roper, 467 F. 3d 1108 (8th Cir. 2006).

2008
July 29 – The Court of Appeals, sitting en banc, affirms the denial of habeas relief. Smulls v. Roper, 535 F.3d 853 (8th Cir. 2008) (en banc)

2009
April 6 – The Supreme Court denies review.

2014
January 28 – Governor Nixon denies clemency application