State Supreme Court Upholds Death Sentences in 2 Cases

SAN FRANCISCO — The state Supreme Court, ruling in what it called two “brutal” crimes, on Monday affirmed the death sentences imposed in two Los Angeles County murder cases--including one that previously had been overturned under Chief Justice Rose Elizabeth Bird.

In a 6-1 decision, the court upheld the death sentence of Darnell Lucky for the fatal shootings of two Wilshire Boulevard jewelers in a 1981 robbery.

The justices said that, contrary to a decision made by the court in 1985, any procedural errors in Lucky’s trial were harmless and did not warrant reversing his sentence.

In another 6-1 ruling, the court affirmed the death penalty for Joseph Carlos Poggi for the 1980 rape, robbery and stabbing murder of a 24-year-old Cudahy nurse.

The justices rejected contentions that it would be cruel and unusual punishment to execute a defendant, who, although found sane, had a long history of mental illness.

The two rulings brought to 17 the number of death penalties affirmed by the court in the 23 capital cases it has decided since a new conservative majority emerged last year. By contrast, the previous court affirmed only four of 68 capital decisions before Bird and two other liberal justices were defeated in a 1986 election that focused heavily on the court’s death penalty record.

In Poggi’s case, the court for the first time made clear that a ruling it made last fall overturning a controversial 1983 decision by the Bird court applied also to cases brought before the 1983 ruling.

The Bird court, in a decision that had jeopardized dozens of death sentences awaiting review, had held that juries in capital cases must find that a defendant accused in a felony murder intended to kill his victim. The new court overturned the 1983 ruling last October, finding that there was no need to show such intent for actual killers.

Defense lawyers had held out hope that the new court might not apply its ruling to cases that arose before the 1983 ruling. But in Monday’s decision, the justices explicitly rejected that plea, finding that there was no constitutional violation in retroactive application of their ruling.

“The court now has clearly rejected any claim of ex post facto violation in applying its ruling on intent to kill to crimes committed before the 1983 ruling,” said state Deputy Atty. Gen. Dane R. Gillette.

Poggi, now 38, was convicted and sentenced to death in the stabbing assault on Patricia Ann Musgrove in the home she shared with her husband and son in Cudahy. An officer responding to a call found the woman bleeding profusely from several wounds to the chest.

The officer later testified that before she died, Musgrove told him her assailant broke into the home at mid-morning, took $90, beat her and raped her and then tried unsuccessfully to drown her in the bathtub. The man then stabbed her, saying, “You gotta die.”

At trial, Poggi pleaded not guilty and not guilty by reason of insanity--but withdrew the insanity plea when two court-appointed psychiatrists concluded that he was legally sane.

On appeal, Poggi’s attorney cited the defendant’s long history of mental illness, noting that he had suffered brain damage in an accident as a 6-year-old boy, had been diagnosed as schizophrenic and had spent seven years in state mental hospitals--at one time being committed as a mentally disordered sex offender.

The court, in a majority opinion by Justice Edward A. Panelli, rejected the contention that Poggi should not be sentenced to death because of his mental condition. The justices noted that even a defense psychiatrist had testified that Poggi’s mental illness was not sufficient to “negate or diminish” his responsibility for the crime.

Panelli’s opinion was joined by Chief Justice Malcolm M. Lucas and Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman. Justice Allen E. Broussard concurred separately.

In dissent, Justice Stanley Mosk said that while he agreed that Poggi deserved to be convicted and punished, the penalty should be reduced to life in prison without parole because of the defendant’s history of mental illness.

The constitutional prohibition against cruel and unusual punishment is violated when the death penalty is disproportionate to a defendant’s “personal responsibility and moral guilt,” Mosk said.

Poggi’s attorney, Robert L. Walker of San Francisco, expressed disappointment with the ruling and said he hoped the U.S. Supreme Court would agree to hear an appeal.

Lucky, now 36, in 1985 had won a reversal of the death penalty in a 4-3 decision rendered by the court under Bird. However, with a pivotal vote from Panelli--then a new appointee of Gov. George Deukmejian--the court in 1986 voted to rehear the case.

In Monday’s ruling, only Broussard, who had voted with the majority in the 1985 ruling, concluded that while Lucky’s conviction should be upheld, he should not be executed because of the cumulative effect of several procedural errors at his trial.

Lucky was sentenced to death for the murders of Diran Odel and Kegam Toran, the owners of the O&T; jewelry store in Los Angeles, during a robbery that was one of a series of crimes he committed in 1981. An accomplice to the crime later testified that Lucky told him he had “had” to kill the two men and that when he got home that night, “he wanted to watch it on the news.”

The court majority, in an opinion by Eagleson, noted Lucky’s 10-year history of crime, including robberies, prison violence, participation in a gang rape and the shooting and wounding of his mother and a friend with a shotgun after they attempted to help him during an episode when he was a drug abuser.

“The capital crimes were brutal,” Eagleson wrote. “(Lucky) personally committed two premeditated murders to eliminate witnesses to an armed robbery.”

Broussard, in dissent, cited several procedural errors during Lucky’s trial, including an improper argument to jurors by the prosecutor that the defendant might escape prison if he were not given the death penalty.