A man who was convicted of first-degree murder and robbery for a downtown slaying outside Palo Alto City Hall in 2008 lost his appeal in California State Appellate Court on Tuesday (Nov. 22).
Otto Emil Koloto, a Gilroy resident, was convicted in March 2010 for the July 12, 2008, murder of Philip Lacy during a robbery, in which he had demanded Lacy's gold chain and diamond-studded crucifix. He was sentenced to life in prison without the possibility of parole for the murder, plus five years for the robbery. The robbery sentence was stayed.
In his appeal Koloto argued a juror had engaged in misconduct and was compromised. The trial court also erroneously instructed the jury, his defense said. But the appellate judges ruled unanimously against the arguments.
Juror No. 3 admitted to the trial court that he spoke with a forensics expert witness during a recess because both were from the same country. The juror said he told the expert he was impressed that anyone could work in forensics, and they discussed neonatal and stem-cell biology and plants. The juror said the interaction had no effect on his ability to be fair and impartial. The trial judge agreed, and the juror remained on the jury.
The appeals court unanimously ruled against Koloto, saying there was no dispute that the juror committed misconduct but that the subject matter did not involve information before the jury or Koloto's guilt or innocence. No presumption of prejudice arose from the conversation, the court said.
Koloto also argued that the trial judge erred when he told jurors that although they all had to agree Koloto committed murder under one of two theories, they did not all need to agree on the same theory. Defense attorneys said the judge's instructions were misleading because only one theory supported first-degree murder and the other supported second-degree murder.
But the appeals court disagreed and found there was no error or likelihood that the jury misunderstood the instruction.