Murder Case Still Unproved, Defense Says : Trial: Kevin Kolodziej’s attorney makes his final argument. The judge will issue his ruling Wednesday.

Kevin Kolodziej should be convicted of nothing more than involuntary manslaughter for the fatal stabbing of a 90-year-old Ventura woman, a defense attorney said Thursday.

In his final argument, Deputy Public Defender Steve P. Lipson said the prosecution had failed to prove the intent or the malice needed to convict Kolodziej of a more serious charge in the slaying of Velasta Johnson.

Ventura County Superior Court Judge James M. McNally, who is hearing the case without a jury, said he plans to announce his verdict Wednesday.

The judge said he would take “whatever time it takes” to review the evidence and the 275 pages of notes he took during the five-week trial.

Kolodziej is accused of first-degree murder and two counts of burglary. The charges stem from incidents that occurred Jan. 17, after the 25-year-old drifter from Virginia left his hospital bed at Ventura County Medical Center, wandered from house to house and ended up in Johnson’s Agnus Drive home.

Deputy Dist. Atty. Peter D. Kossoris argued Wednesday that Kolodziej entered the house planning to steal food and clothing. When the elderly woman surprised him in her kitchen, the prosecutor said, Kolodziej picked up a knife and stabbed her in the heart.

The alleged burglary is what makes the slaying first-degree murder, Kossoris said.

But Lipson said Kossoris had failed to prove that Kolodziej intended to steal anything--a necessary element for a burglary conviction.

“He entered the house to get help, not to steal,” Lipson said, adding that nothing was taken from the Johnson home.

Lipson acknowledged that Kolodziej had asked several people where he could take a shower, and in some instances where he could get clean clothes or something to eat. But that does not prove that he intended to steal those things at the Johnson home, Lipson said.

“Getting help is not stealing,” the attorney said.

No one can say what was going on in Kolodziej’s mind, but the psychiatric evidence presented at the trial offers some clues, Lipson said. Both court-appointed experts and psychologists hired by the defense agreed that “Kevin was and is seriously mentally ill,” Lipson said.

“We’re not saying that because he’s mentally ill, he’s not guilty,” Lipson said. “We’re saying his mental status is circumstantial evidence as to what his intent was.”

Kolodziej’s mental illness, diagnosed by several experts as schizophrenia, made him act on “an inner reality rather than the outer reality,” Lipson said.

A rational person would not have seen the frail elderly woman as a threat, Lipson said. But in the opinion of several psychological experts, Kolodziej had not been rational for nearly two weeks before the slaying, Lipson said.

On Jan. 5, 12 days before the slaying, Kolodziej slit his own throat, stabbed himself in the chest and cut his abdomen so severely that his intestines were hanging out when police found him, according to trial testimony.

Throughout his hospital stay, Kolodziej pulled out tubes from his veins and trachea, Lipson said. The day before the slaying, Kolodziej was “acutely psychotic,” a county mental health official testified.

On the day of the slaying, “he lashed out due to paranoid fear and impaired judgment,” Lipson said.

If the defendant wanted to kill Johnson, why did he stab her only once? Lipson asked. And if he stabbed her so he could get away, Lipson said, why did Kolodziej walk less than 50 yards from the Johnson home, curl up on a neighbor’s back porch and pull a blanket over his head?

Lipson asked McNally to find Kolodziej guilty of involuntary manslaughter, which could result in a maximum sentence of four years in prison.

If convicted of burglary and first-degree murder, by contrast, Kolodziej could be sentenced to life in prison without possibility of parole.

In a brief rebuttal, Kossoris said the parade of experts, which he described as a “psychiatric convention,” provided little insight into the defendant’s intentions. More telling, Kossoris said, was the defendant’s own statement tape-recorded by Ventura police hours after he was arrested.

In that interview, the prosecutor said, Kolodziej seemed clear-headed and “acted the way you would expect a not-very-bright guilty person to act.” He said Kolodziej denied responsibility for the slaying and kept changing his story--indications that he was alert and conscious of guilt.

As the attorneys wrapped up their case, Kolodziej appeared to be paying more attention than earlier in the trial. He tapped his left foot rapidly during much of Lipson’s summation, giving him the thumbs-up sign at one point.

After McNally decides what homicide charge applies to the case--and even Kolodziej’s attorneys say that he will be found guilty of something--the second phase of the trial will begin. In that phase, Lipson and co-counsel Neil B. Quinn will seek to prove that Kolodziej is not guilty by reason of insanity.

If they succeed, he would be housed at a mental hospital until a judge determined that he was no longer insane.