High Court to Rehear Death Case It Reversed

With newly appointed Justice Edward A. Panelli casting a pivotal vote, the state Supreme Court agreed Thursday to rehear a Los Angeles death penalty case that a slim majority of the justices had reversed on New Year’s Eve.

By voting to reconsider the case of Darnell Lucky, convicted of murdering two Wilshire Boulevard jewelers in 1980, the court signaled that it might uphold a death sentence, something it has not done since 1983.

“This case shows some promise,” said Assistant Atty. Gen. Stephen White, who is in charge of the state Justice Department’s criminal section. “ . . . Naturally, we’re hopeful. This is what we wanted.”

The court initially reversed Lucky’s death penalty by a 4-3 vote on New Year’s Eve, the day before Justice Otto Kaus retired. Kaus, who sided with the majority in Lucky’s case, was replaced by Panelli.

Since taking office, Panelli, an appointee of Gov. George Deukmejian, has voted at least three times to rehear death penalty cases that were reversed before he joined the court. But Lucky’s case was the first in which a majority of the justices agreed.

Besides Panelli, Justices Stanley Mosk, Malcolm Lucas and Joseph Grodin voted to rehear the case. Chief Justice Rose Elizabeth Bird and Justices Cruz Reynoso and Allen Broussard, who were in the original majority, voted against the rehearing.

Lucky’s case was one of 11 death penalty cases reversed Dec. 31. Besides the vote on Lucky, Kaus cast key votes in three more of the 11 cases. As it did in Lucky’s case, the state attorney general’s office requested rehearings in those three cases. The court is expected to act on them within the month.

Under the court’s procedure, the justices now must call on lawyers involved in Lucky’s case to argue it a second time and then issue a new opinion. No date was set for the new hearing.

The court seldom grants rehearings. When it does take that step, however, it generally reverses the original ruling. In a 1983 rehearing, for example, the court reversed a death penalty case, after first affirming it.

“I want to be very circumspect because we have a long way to go,” said Assistant Atty. Gen. Edward O’Brien, who is in charge of death penalty cases for the attorney general. “ . . . We don’t know where it is going to go from here.”

In his New Year’s Eve dissent, Grodin pointed out that the court had reversed a large number of death penalty cases--52 of the 55 it has decided--in a lengthy process of interpreting and honing the death penalty statute that was enacted in 1978.

“With all the respect for the contrary view of the majority, the principles which have emerged from that process do not in my opinion require reversal here,” Grodin wrote, noting that Lucky’s judge, Los Angeles Superior Court Judge Leslie W. Light, “anticipated many of the constitutional difficulties” in the law with “remarkable prescience.”

The jury in Lucky’s trial deliberated less than three hours before finding him guilty and only two hours more before recommending that he be put to death for the murders of Kegam Toran and Diran Odel during a robbery of their jewelry store. The holdup was part of a series of crimes committed on the Westside by Lucky in 1978, authorities said.