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 ...