Herbert Smulls

Case details

Defendant: Herbert Smulls Accomplice: Norman Brown

Victims:

• Stephen Honickman (jewelry store owner) — died from gunshot wounds
• Florence Honickman (Stephen Honickman’s wife) — suffered permanent injuries

Business / location: Stephen and Florence Honickman owned and operated a jewelry business, F & M Crown Jewels, including a basement level store below the American Bank building.

Timeline

• Early July 1991 — A person identifying himself as “Jeffrey Taylor” called Stephen and Florence Honickman and made an appointment to buy a diamond. “Jeffrey Taylor” was later identified as Herbert Smulls.
• July 22, 1991 — Smulls and Norman Brown went to the Honickmans’ store; after viewing several diamonds, they left without making a purchase.
• July 27, 1991 — Smulls and Norman Brown followed another customer into the store in the afternoon; Florence Honickman suggested she might be able to help them later. Smulls and Brown returned to the store that evening.
• July 27, 1991 (evening/after diamonds viewed in hallway) — Smulls aimed a pistol at Florence Honickman; Florence ran and hid behind a door. Smulls fired three shots at Florence, striking her arm and side. Smulls then fired several shots at Stephen Honickman, striking him three times. Smulls and Brown stole jewelry worn by Florence and other items in the store, then fled.
• After the robbery (short time after) — Florence Honickman contacted the police.
• Around 1:00 am — Stephen Honickman was taken to the hospital and died from his wounds.
• Following the robbery (shortly after; during police stop for speeding) — Police stopped Smulls and Brown for speeding; a 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 ran from his car but was apprehended while hiding near a service road.
• Following the stop (police found stolen items) — Police found jewelry and other stolen items from the store in the car and in Brown’s possession.
• Following morning after the robbery — 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.

The offence

Smulls and Norman Brown followed customers into the Honickmans’ jewelry store and returned later the same day. After viewing diamonds and going into a hallway purportedly to discuss diamond prices, Smulls aimed a pistol at Florence Honickman, who ran and hid behind a door. Smulls fired three shots at Florence Honickman, striking her arm and side. Smulls then fired several shots at Stephen Honickman, who was struck three times. After the shootings, Smulls and Brown stole jewelry worn by Florence Honickman and other items in the store, then fled.

Stephen Honickman died from his wounds. Florence Honickman suffered permanent injuries from the attack.

Investigation

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 then ran from his car but was apprehended while hiding near a service road. 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.

Arrest / custody

Smulls was apprehended after running from his car while hiding near a service road following the speeding stop.

Trial

Charges described in the later Missouri Supreme Court record

In 1991, Smulls was charged with:

• first-degree murder
• first-degree assault
• two counts of first-degree robbery
• two counts of armed criminal action

Evidence of identity

In early July 1991, a caller identifying himself as “Jeffrey Taylor” made an appointment to buy a diamond; “Jeffrey Taylor” was later identified as Herbert Smulls.

Procedural history of verdicts

At Smulls’ first trial, the jury was unable to reach a verdict on anything but robbery charges. At retrial, the jury convicted Smulls on all remaining counts.

Trial court

Judge William Corrigan presided at both trials.

Jury findings (guilt phase)

On retrial, the jury found Smulls guilty as charged of:

• first degree murder
• first degree assault
• first degree robbery

Sentencing

In the punishment phase, the State presented evidence of three statutory aggravating circumstances based on the murder of Stephen Honickman, including that:

• the murder was committed while the defendant was engaged in the attempted unlawful homicide of Florence Honickman;
• the defendant murdered Stephen Honickman for the purpose of receiving money or any other thing of monetary value from Stephen Honickman; and
• the murder was committed while the defendant was engaged in the perpetration of a robbery.

The State also introduced evidence of eleven prior felony convictions for robbery, stealing, and operating a vehicle without the owner’s consent, along with evidence of a prior robbery conducted in a manner similar to that employed by Smulls in the robbery and shooting of the Honickmans.

The jury returned a sentence of death upon Smulls for his murder of Stephen Honickman, finding three statutory aggravating circumstances as a basis for consideration of capital punishment.

Smulls was sentenced as a prior, persistent and class X offender to five concurrent life terms for his remaining offenses.

Smulls declined to take the stand at his retrial and presented no testimony in his defense.

Appeals

Missouri Supreme Court (direct and post-conviction procedural history)

Smulls v. State is described with multiple remands involving Rule 29.15 post-conviction proceedings and judicial disqualification issues connected to Judge Corrigan.

• Smulls’ convictions and sentence were affirmed on direct appeal.
• Judge Corrigan’s denial of Rule 29.15 relief was reversed, and the case was remanded for a new hearing, with the case described as requiring disqualification of Judge Corrigan after comments made during a Batson hearing at voir dire were treated as providing an objective basis for reasonable doubt about racial impartiality.
• On remand, Judge Emmett O’Brien was assigned. Smulls filed motions to voir dire and disqualify Judge O’Brien and all other past and present St. Louis County judges. Judge O’Brien overruled those motions and denied the Rule 29.15 motion on the merits.
• On further appeal, the case was remanded for determination of the recusal issue, with a proviso that if no basis for disqualification of Judge O’Brien existed, the Rule 29 proceedings could be reassigned to Judge O’Brien for re-entry of his judgment.
• After an evidentiary hearing, Judge James Hartenbach determined that the motion to disqualify Judge O’Brien was properly overruled. Judge Hartenbach ordered reassignment to Judge O’Brien, and Judge O’Brien re-entered the judgment overruling Smulls’ Rule 29.15 motion.
• The judgment was affirmed.

United States Court of Appeals (federal habeas)

Herbert Smulls v. Don Ropert, Superintendent was handled in the U.S. Court of Appeals for the Eighth Circuit as described in the case summary.

Outcome

Herbert Smulls was executed by lethal injection in Missouri on January 29, 2014.

Aftermath / execution details (from the included narrative)

Smulls was pronounced dead at 10:20 p.m. local time at a state prison in Bonne Terre after receiving a lethal dose of pentobarbital, described as a fast-acting barbiturate. Smulls was reported to have asked which way he should look from the gurney to see his witnesses and nodded at them before being declared dead nine minutes after being injected with the drug. It was reported that Smulls did not make a final statement.

A final meal was described as: fried chicken, steak, collard greens, macaroni and cheese, candied yams, corn bread, chocolate cake, and cola.

Final words were stated as none.

It was also reported that Smulls was the sixth person executed in the United States in 2014 and the third in Missouri since November, and that the U.S. Supreme Court lifted a temporary stay of execution and vacated a stay from the Eighth Circuit that had prevented the execution. Lawyers for Smulls filed another request with the Supreme Court but Missouri proceeded before the midnight expiration of the state’s death warrant.

Other details

Accomplice sentencing (Norman Brown)

Accomplice Norman Brown was convicted and was serving two life sentences without parole plus 90 years.

Additional details of the attack and victim statements included in the record

Florence Honickman was unable to show jewelry at the time of the afternoon visit, but suggested she might be able to help them later. After Florence saw Smulls aiming a pistol, she ran and hid behind a door. Stephen Honickman pleaded with them not to shoot but to take whatever they wanted from the store. Smulls fired several shots at Stephen Honickman, who was struck three times.

After the attack, Florence Honickman contacted the police.

Quotes appearing in the provided narrative

• Attorney General Chris Koster made a statement after the execution: "My thoughts and prayers are with Florence Honickman and the family and friends of Stephen Honickman."
• St. Louis County prosecutor Bob McCulloch made a statement on Tuesday: "It was a horrific crime," and "With all the other arguments that the opponents of the death penalty are making, it's simply to try to divert the attention from what this guy did, and why he deserves to be executed."
• Stephen Honickman was described as yelling during the shooting: "Stop shooting, you can have anything you want!"
• A neighbor and business associate, Roy Post, said: "I never expected anything like this to happen, " and "It was out of the blue, a hell of a shock."
• Herbert L. Smulls, during execution procedure, asked: which way he should look from the gurney to see his witnesses, and nodded before being declared dead.

Prior felony convictions referenced at sentencing

The punishment phase evidence included eleven prior felony convictions for robbery, stealing, and operating a vehicle without the owner’s consent, plus evidence that Smulls had committed a prior robbery in a manner similar to that used in the Honickmans robbery and shootings.

Retrial and testimony

At his first trial, he testified and the jury could not reach a verdict on the murder count.

Gunshot residue testing referenced in post-conviction analysis

Gunshot residue tests were performed on Smulls and his accomplice. No residue was detected on Smulls, and the test on his accomplice was inconclusive. During the first trial, the State’s expert, Dr. Rothove, was unavailable, and the parties agreed to a short stipulation regarding the test results. At the second trial, Smulls’ counsel subpoenaed Rothove but did not call him. Smulls’ motion in the post-conviction analysis included claims about presentation of gunshot residue evidence, which were addressed in the appellate decision describing the Rule 29.15 proceedings.