By Kevin Murphy
KANSAS CITY, Missouri (Reuters) - 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 drugs.
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 executions.
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 punishment.
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 Powell)
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