The opinion of the court was delivered by
The defendant, Lonnie Stewart McKibben, appeals from his
conviction by a Saline County, Kansas, jury of second-degree
murder. Issues asserted on appeal are whether the trial court
erred in denying various pretrial motions made by the defendant,
whether certain evidence concerning the victim should have been
admitted at trial, whether the defendant was denied effective
assistance of counsel, and whether the evidence is sufficient to
support the defendant's conviction.
A fifteen-year-old girl, Sheleen McClain, was found at
approximately 8:30 a.m. on Saturday, November 3, 1984, sitting by
a hedgerow in rural McPherson County. She was wearing only a
cotton top and underpants. She had been shot in the back and was
covered with blood. The victim was first taken to a Lindsborg
hospital where it was decided to transport her to Salina. The
victim died approximately one hour after her arrival at the
Asbury Hospital in Salina, Kansas. Medical personnel questioned
Ms. McClain if she knew who had shot her, but Ms. McClain turned
away. A fresh, opened package of Benson & Hedges cigarettes was
recovered from the driveway into the field where the victim was
The preceding evening, Friday, November 2, 1984, Sheleen and
her friend, Melody Hoeffner, had phoned the defendant, a
43-year-old Salina man, and asked him to take them to two
football games. Melody had called the defendant before when she
needed a ride. The number she would call belonged to Brenda
Deupree, with whom the defendant used to live. The defendant
drove a 1979 copper-colored Ford Pinto station wagon. The
defendant picked the two girls up at 6:30 p.m., and drove them to
the football games and anywhere else they wanted to go. The
defendant took Sheleen home first at approximately 12:15 a.m.
Then, before taking Melody home, the defendant stopped at a Quik
Trip and bought two packages of Benson & Hedges cigarettes.
Melody got home at approximately 12:45 a.m.
Melody testified the defendant had also given Sheleen and her a
ride on Halloween, October 31, 1984. That was the first time
Sheleen met the defendant. On both nights, Halloween and Friday,
November 2, the defendant picked the girls up at Sheleen's house.
On November 2, Melody noticed two long guns in the defendant's
Mr. Trow, who lived across the street from Sheleen, was leaving
his house at approximately 1:40 a.m., on November 3, 1984, when
he saw a white male at Sheleen's door. Mr. Trow observed the man
for twenty minutes. The man smoked a cigarette, walked to the
side of Sheleen's house, and then sat in a brown Ford Pinto
station wagon with Saline County tags. When Mr. Trow returned at
approximately 3:00 a.m, the car and the man were gone.
The defendant was interviewed by police Saturday afternoon at
1:45 p.m. (November 3), and admitted he had spent most of Friday
evening with Melody and Sheleen. The defendant told police he
took Sheleen home first, then Melody, and then went to Hardee's
for a cup of coffee. Then, as he was living out of his car, he
parked somewhere between Western Sizzlin and Super 8 Motel and
slept in his car. During the defendant's interrogation the police
noticed the defendant was wearing new shoes and smoking Benson &
One rifle, a .357, was recovered from the defendant's car when
he was arrested. The defendant had given a second rifle, a .284,
to Brenda Deupree earlier that Saturday morning to pawn. Seven
empty Benson & Hedges cigarette packages were found in the
The Benson & Hedges cigarette packages found near the
victim's body and those recovered from the defendant during
police interrogation both had tax stamp number 43667 on their
respective cellophane wrappers. The distributor who was assigned
tax stamp number 43667 supplied the Salina Quik Trip stores with
all their cigarettes in November 1984. On November 9, 1984, a
Benson & Hedges cigarette butt was found by police in the street
in front of the victim's house. An analysis of the cigarette butt
showed it was smoked by a blood type A secretor. The defendant is
a type A secretor.
The new pair of shoes defendant was wearing when he was
arrested at 1:40 p.m., on November 3, 1984, had been purchased at
12:15 p.m., that same day. His old shoes were discovered in a
ditch and an analysis showed the possible presence of blood. The
jeans the defendant was wearing at the time of his arrest were
also analyzed. The right rear pocket was stained with human
blood, Type O, containing two genetic markers. The victim's blood
sample was found to be Type O and contained the same two genetic
An autopsy revealed the victim had recently experienced
forceful sexual intercourse and the victim had had sex within
twelve hours preceding her death. The victim was on her menstrual
period at the time of her death. Analysis of the defendant's
penile washings contained blood.
The defendant was charged with first-degree murder and was
convicted of second-degree murder. After the Habitual Criminal
Act was invoked, the defendant was sentenced to a prison term of
30 years to life.
The defendant made three pretrial motions, all of which were
denied by the trial court. The defendant argues on appeal it was
error to deny these motions.
The first is defendant's motion to dismiss for improper venue.
The applicable statute is K.S.A. 22-2611 which states, "If the
cause of death is inflicted in one county and the death ensues in
another county, the prosecution may be in either of such
counties. Death shall be presumed to have occurred in the county
where the body of the victim is found."
Here, the victim was found alive in McPherson County, Kansas,
along a roadway, about 3/4 mile south of the Saline/McPherson
County line. She was first taken to a hospital in Lindsborg,
Kansas, (McPherson County) where she was treated by Dr.
Loder. Dr. Loder determined the victim required surgery which the
Lindsborg hospital could not provide in time because surgeons and
nurses would have to be called in from out of town. The decision
was made to transport her to Asbury Hospital in Salina, Kansas,
where surgeons were available. Dr. Loder accompanied the victim
in the ambulance, and testified she was still alive when they
reached the Asbury Hospital emergency room. They arrived at
Asbury Hospital at 9:49 a.m. The victim later died in the
operating room at approximately 11:05 a.m.
The defendant argues venue lies in McPherson County and not
Saline County. He argues the victim was all but officially dead
upon her arrival at Asbury Hospital and the "last ditch effort"
to save her life by transporting her to Salina is not sufficient
to vest venue in Saline County. He argues venue should not be
subject to an official pronouncement of death.
The defendant argues the presumption that death occurred in the
county where the body was found was not overcome in this case.
Legislative research does not reveal the intent of the
legislature in amending K.S.A. 22-2611 in 1970 to include such a
presumption. However, clearly the presumption is necessary in
cases where a dead body is discovered and it is not known where
death occurred. Here, the evidence clearly establishes death
occurred in Saline County.
The defendant's arguments are without merit and the trial court
did not err in refusing to dismiss for lack of venue in Saline
County. The victim was found alive in McPherson County, where it
is assumed she had been shot. She was alive when she arrived in
Asbury Hospital in Saline County, and she died there
approximately an hour later. Under the facts of this case, K.S.A.
22-2611 clearly provides that venue is proper in either
McPherson County where the cause of death was inflicted, or in
Saline County where death ensued.
The defendant also filed a motion for a change of venue based
on prejudicial pretrial publicity in the event the trial court
ruled venue was proper in Saline County. This motion was denied
and the defendant asserts such denial was improper because he
established prejudice as a demonstrable reality. In support of
his motion for a change of venue, the defendant submitted copies
of 14 local newspaper articles, 30 local radio news broadcasts,
and 25 affidavits of Saline County residents who stated defendant
could not receive a fair and impartial trial at the hands of a
jury in Saline County.
K.S.A. 22-2616(1) allows a change of venue once "the court is
satisfied that there exists in the county where the prosecution
is pending so great a prejudice against the defendant that he
cannot obtain a fair and impartial trial in that county." The
granting of a change of venue lies within the sound discretion of
the trial court. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559
(1977). The burden is on the defendant to establish prejudice
as a demonstrable reality, and not as a matter of speculation.
Specific facts and circumstances must be established to indicate
it will be practically impossible for the defendant to obtain an
impartial jury to try the case. State v. Haislip, 237 Kan. 461,
485-86, 701 P.2d 909, cert. denied ___ U.S. ___ (1985); State
v. Hill, 233 Kan. 648, 650-51, 664 P.2d 840 (1983). Media
publicity alone will not establish prejudice per se. State v.
May, 227 Kan. 393, 395, 607 P.2d 72 (1980); State v. Gander,
220 Kan. 88, 92, 551 P.2d 797 (1976). Nor does the mere inclusion
of identical conclusory type affidavits, as here, establish
prejudice. State v. Foy, 224 Kan. 558, 562, 582 P.2d 281
(1978); State v. Black, 221 Kan. 248, 249, 559 P.2d 784 (1977).
We have reviewed the newspaper articles, radio releases, and
affidavits submitted by the defendant to the trial court and find
the trial court did not abuse its discretion in denying the
defendant's motion for a change of venue. The reports were
published or released over three months prior to trial and for
the most part the reports were factual, objective, and matters of
public interest. The defendant did not request that a transcript
of the voir dire be prepared and, therefore, we cannot review
whether any prospective juror had viewed the articles or the
photograph of the defendant in handcuffs and prison garb, or
heard the other reports. The affidavits submitted are identical
and conclusory in their wording to the effect that the defendant
cannot receive a fair and impartial trial in Saline County,
Kansas. Here, the defendant failed to establish prejudice beyond
the level of speculation and the trial court did not err in
denying his motion to change venue.
The defendant argues the trial court erred in denying his
motion to appoint a special prosecutor. Here, the defendant was
found to be indigent ...