July 18, 1986.
STATE OF KANSAS, Appellee,
LONNIE STEWART McKIBBEN, Appellant.
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
[239 Kan. 576]
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
[239 Kan. 577]
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.
[239 Kan. 578]
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
[239 Kan. 579]
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 and Julie McKenna, public defender, was
[239 Kan. 580]
appointed to represent the defendant at the time of his first
appearance on November 5, 1984. Ms. McKenna represented the
defendant from that time until an order was entered on December
28, 1984, permitting her to withdraw. During that time, Ms.
McKenna represented the defendant at his preliminary hearing and
his arraignment, and had filed various motions such as motions to
dismiss for lack of venue. Ms. McKenna sought leave to withdraw
because she had accepted a job effective March 1, 1985, as an
assistant Saline county attorney.
A hearing was held February 5, 1985, on defendant's motion to
appoint a special prosecutor. No testimony was given but oral
arguments were heard. The defendant requested either the entire
three-person staff of the Saline County prosecutor's office be
disqualified or, in the alternative, restraints be placed on Ms.
McKenna. The Saline county attorney, Mickey Mosier, represented
to the court he had prosecuted the case from its inception and
would continue to do so. He stated Ms. McKenna would have no
responsibilities with this case and there would be no
communication with her about the case. The trial court denied the
defendant's motion to disqualify the entire county attorney's
staff. The trial court stated it felt comfortable in believing
Ms. McKenna fully understood her ethical obligations not to
participate, either directly or indirectly, in the prosecution of
the defendant. In order to avoid the appearance of impropriety,
the trial court specifically disqualified Ms. McKenna from
engaging directly or indirectly in the prosecution of the
The defendant argues the trial court's order precluding Ms.
McKenna from any participation is not a sufficient precaution to
insure public confidence and avoid the appearance of impropriety.
The trial court properly disqualified Ms. McKenna from any
direct participation and that issue is not raised on appeal. See
State v. Leigh, 178 Kan. 549, 552-53, 289 P.2d 774 (1955). The
issue is whether the entire staff of the county attorney's office
should be disqualified because of Ms. McKenna's former
representation of the defendant.
Whether an entire prosecuting staff should be disqualified
because one prosecuting attorney has formerly represented the
defendant on a prior, unrelated, criminal matter was discussed in
State v. Laughlin, 232 Kan. 110, 114, 652 P.2d 690 (1982). It
[239 Kan. 581]
"In any particular case where the issue is raised,
the trial court must determine whether the
prosecutor, by reason of his prior professional
relationship with the accused, has obtained knowledge
of facts upon which the later case is predicated or
facts which are closely interwoven therewith. The
important consideration is to protect the confidence
inherent in the attorney-client relationship and thus
to avoid a breach of trust between the client and his
attorney. The determination of whether there is a
conflict of interest actually present or whether the
prior relationship creates an appearance of
impropriety lies within the sound discretion of the
trial court. In re Estate of Richard,
4 Kan. App. 2d 26, 31, 602 P.2d 122 (1979)."
The defendant in Laughlin admitted there was no actual breach
of confidence or prejudice shown and this court ruled the trial
court did not abuse its discretion in refusing to disqualify the
entire district attorney's office from participating in the trial
of the accused.
Here, Ms. McKenna represented the defendant on the very matter
for which he was being prosecuted. There is a split in authority
concerning whether the entire staff of a prosecutor's office
should be disqualified in such a case.
Some states have adopted a per se disqualification rule,
i.e., the mere appearance of impropriety alone is enough to
warrant disqualification of an entire prosecuting office based on
one member's prior representation of the defendant in the same
prosecution. Disqualification is necessary irrespective of
whether confidences were breached or prejudice to the defendant
resulted. See State v. Latigue, 108 Ariz. 521, 502 P.2d 1340
(1972); People v. Stevens, 642 P.2d 39 (Colo. App. 1981);
Banton v. State, 475 N.E.2d 1160 (Ind. App. 1985); State v.
Croka, 646 S.W.2d 389 (Mo. App. 1983); State v. Chambers,
86 N.M. 383, 524 P.2d 999 (1974); People v. Shinkle, 51 N.Y.2d 417,
434 N.Y.S.2d 918, 415 N.E.2d 909 (1980); State v. Cooper,
63 Ohio Misc. 1, 409 N.E.2d 1070 (1980).
A majority of the jurisdictions, however, have refused to adopt
such a blanket rule. These courts> look at the circumstances of
the particular case to determine whether confidences have been
breached resulting in prejudice to the defendant, and whether the
defendant's former attorney participated in any way in
prosecuting the defendant. If any impropriety is found, the
entire office must be disqualified. The trial court makes such a
determination and absent an abuse of discretion the appellate
[239 Kan. 582]
will not reverse. See Hannon v. State, 48 Ala. App. 613,
266 So.2d 825 (1972); Upton v. State, 257 Ark. 424, 516 S.W.2d 904
(1974); Chadwick v. Superior Court, 106 Cal.App.3d 108,
164 Cal.Rptr. 864 (1980); State v. Jones, 193 Conn. 70,
475 A.2d 1087 (1984); Thompson v. State, 246 So.2d 760 (Fla. 1971);
Surrette v. State, 251 So.2d 149 (Fla. Dist. App. 1971); State
v. Orozco, 202 N.W.2d 344 (Iowa 1972); State v. Bell,
346 So.2d 1090 (La. 1977); State v. Brown, 274 So.2d 381 (La.
1973); Young v. State, 297 Md. 286, 465 A.2d 1149 (1983); Pisa
v. Commonwealth, 378 Mass. 724, 393 N.E.2d 386 (1979); Collier
v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982); State v. Cline,
122 R.I. 297, 405 A.2d 1192 (1979); State v. Smart, 278 S.C. 515,
299 S.E.2d 686 (1982), cert. denied 460 U.S. 1088 (1983);
Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App. 1977);
State v. Miner, 128 Vt. 55, 258 A.2d 815 (1969). Accord United
States v. Caggiano, 660 F.2d 184 (6th Cir. 1981), cert. denied
455 U.S. 945 (1982). See also Annot, 31 A.L.R.3d 953.
The American Bar Association committee on professional ethics
has also ruled that it is not necessary to disqualify the entire
governmental office. The individual lawyer should be screened
from having direct or indirect participation in the matter and
communication with colleagues concerning the prosecution is
prohibited. Formal Opinion 342, 62 A.B.A.J. 517 (1976).
We choose to follow the majority of jurisdictions and reject
the per se rule of disqualification. In the instant case, the
trial court ordered Ms. McKenna not to participate directly or
indirectly in the defendant's prosecution. Mr. Mosier, the county
attorney, represented to the trial court there would be no
communication with her concerning the defendant's case. Thus, the
confidences inherent in the attorney-client relationship between
the defendant and Ms. McKenna were protected. We find the trial
court did not abuse its discretion in refusing to appoint a
The defendant next argues the trial court erred regarding the
admission of evidence. First, the defendant argues the victim's
blood samples were inadmissible and, second, the defendant argues
evidence taken from the victim's bedroom was admissible.
The trial court overruled defendant's objection based on lack
[239 Kan. 583]
of foundation in allowing the admission of the victim's blood
samples. The defendant argues the evidence is inadequate to show
the blood sample did not contain transfused blood.
The issue in Divine v. Groshong, 235 Kan. 127, 679 P.2d 700
(1984), was whether a blood test not taken in compliance with
K.S.A. 8-1001 is admissible in a civil negligence case. The
following language of the court in determining that issue is
applicable to the issue raised in the instant case:
"If the blood sample is taken under appropriate
conditions to guard against contamination, if the
sample is properly marked and conveyed to the
laboratory, if the chemical testing is properly
conducted by competent personnel, and if the test
results are relevant and material to the issues
presented in the litigation, then those results are
admissible in a civil action whether or not they are
taken in conformity with the statute." 235 Kan. at
See also Annot., 2 A.L.R.4th 500.
Here, the defendant is not complaining that the proper chain of
custody was not established after the blood sample was drawn from
the victim. Rather, the defendant is complaining that at the time
the blood was drawn, the evidence is inadequate to show the
victim had not already received a blood transfusion which
contaminated the blood sample from the beginning.
Dr. Loder, the victim's treating physician at the Lindsborg
hospital, testified no attempt was made to give the victim any
whole blood either in Lindsborg or in the ambulance on the way to
the Salina hospital. Dr. Loder testified that, upon arrival at
the emergency room in Salina, blood was drawn from the victim
before fluids of any kind were given. The blood was then given to
Mr. Emler, the emergency medical technician who had transported
the victim from the scene of the crime to the Lindsborg hospital
and then to the Salina hospital. Mr. Emler testified no blood
transfusions were given before he handed the blood sample to the
medical technologist for blood typing. Barbara Mallon, the
medical technologist, testified she did not know whether blood
transfusions had been given at the time she received the blood
sample from Mr. Emler. While medical records indicate that blood
was checked out to the victim within two minutes of her arrival
at the emergency room, that does not establish transfusions were
given prior to the drawing of the sample. The State established
to the satisfaction of the trial court that the victim's blood
sample had not been contaminated; therefore, the trial court did
not err in allowing the blood sample to be admitted into
[239 Kan. 584]
evidence and in permitting the forensic serologist to testify
concerning his findings.
At two different times during the trial, the defendant
attempted to have admitted into evidence a package of Winston
cigarettes and two condoms found in the victim's bedroom. The
defendant offered the evidence as relating to the character of
the victim. Each time the court sustained the State's objection
on the ground of relevancy. The defendant's argument on appeal
that the trial court erred is without merit. Relevant evidence is
any evidence having any tendency to prove any material fact.
K.S.A. 60-401, State v. Gauger, 200 Kan. 563, 565, 438 P.2d 463
(1968). The character of the victim was not an issue, and the
trial court properly held the evidence irrelevant.
The defendant argues he was denied the effective assistance of
counsel. On appeal the defendant cites five specifics to
establish Mr. Robertson's representation of him was ineffective:
(1) Mr. Robertson made no objection to the introduction of the
defendant's two weapons when there was no evidence connecting
them to the victim's death; (2) he failed to obtain ballistics
testing on the two weapons; (3) he failed to lay proper
foundation for the expert testimony of a gunsmith; (4) he failed
to call several witnesses who had been subpoenaed to testify for
the defendant; and (5) he failed to request an instruction
In State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986),
this court held that in an appeal from conviction of a crime, the
allegation that the defendant did not have effective assistance
of counsel will not be considered for the first time on appeal.
Our holding to the contrary in State v. Pink, 236 Kan. 715,
696 P.2d 358 (1985), was overruled. The procedure to be followed to
properly present the issue on appellate review is stated in
State v. Van Cleave. The trial court must first be given the
opportunity to rule upon the issue.
Additionally, much deference and reliance must be placed upon
the wisdom and determination of the trial judge who viewed the
entire proceedings first hand. Chamberlain v. State,
236 Kan. 650, 659-60, 694 P.2d 468 (1985).
Here the appellant filed a motion in the trial court for
appointment of new counsel on April 23, 1985, on the ground that
he was dissatisfied with his present counsel. The motion was
signed by the appellant, and his trial counsel certified delivery
[239 Kan. 585]
the motion for the appellant upon the prosecuting attorney. The
motion was scheduled for hearing and heard by the trial court
upon arguments presented by the appellant and the prosecuting
attorney. The trial court by an order filed April 29, 1985,
denied the motion for appointment of new counsel. The substance
of the foregoing is that the issue concerning incompetence of
trial counsel was never effectively presented to the trial court.
We adhere to State v. Van Cleave and will not consider the
issue on ineffective assistance of counsel raised for the first
time on appeal.
Finally, the defendant argues the circumstantial evidence is
insufficient to support his conviction. The defendant argues that
to conclude the defendant is guilty beyond a reasonable doubt
requires the stacking of inference upon inference.
The scope of review applicable when the sufficiency of the
evidence is challenged on appeal has been often stated: the
question is whether the evidence, when viewed in a light most
favorable to the prosecution, convinces the appellate court that
a rational factfinder could have found the defendant guilty
beyond a reasonable doubt. The appellate court looks only to the
evidence in favor of the verdict to determine if the essential
elements of the charge are sustained. State v. Zuniga,
237 Kan. 788, 794, 703 P.2d 805 (1985). When considering the sufficiency
of circumstantial evidence to sustain a conviction on appeal, the
appellate court's function is limited to ascertaining whether
there is a basis in the evidence for the jury's verdict. If the
essential elements of the charge are supported by any competent
evidence, the conviction must stand. State v. Soverns,
215 Kan. 775, 529 P.2d 181 (1974). A conviction of even the gravest
offense may be sustained by circumstantial evidence. State v.
Hanks, 236 Kan. 524, Syl. ¶ 3, 694 P.2d 407 (1985).
We find the circumstantial evidence introduced at trial is
sufficient to support the defendant's conviction of second-degree
murder. The victim was shot in the back and left to die in a
field in the country. The defendant had spent the previous
evening with the victim. The defendant had given one of his
friends a rifle to pawn the next morning. The right rear pocket
of defendant's jeans had blood smears which matched the blood of
the victim. Only ten percent of the population have blood similar
to the victim's, containing the two genetic markers. A package of
[239 Kan. 586]
Benson & Hedges cigarettes recovered from the defendant at the
time of his arrest and another package recovered near the
victim's body had the same tax stamp number 43667. The supplier
who was assigned that tax stamp number distributed Benson &
Hedges cigarettes to Quik Trip stores in Salina. Melody Hoeffner
testified the defendant stopped at a Quik Trip store after he had
taken Sheleen home in the early morning hours of November 3,
1984, and bought two packages of Benson & Hedges cigarettes. At
the time of his arrest, the defendant was wearing new shoes,
purchased approximately one hour earlier. His old shoes were
recovered from a ditch, and an analysis showed the possible
presence of blood. The victim had been involved in a forceful act
of sexual intercourse within twelve hours of her death. Seminal
fluid was found on the inside of the fly of defendant's jeans.
The victim had been on her menstrual period when she died. The
defendant was found to have blood on his penis.
The probative value of each bit of circumstantial evidence
permitting its individual inference was for the jury to
determine, and the accumulation of these inferences supports the
jury's finding of guilt beyond a reasonable doubt. There was no
stacking of inference upon inference to establish guilt.
The defendant asserts the inconsistencies in Mr. Trow's
testimony cause the evidence to be insufficient to establish the
defendant was with the victim at 1:40 a.m., on November 3, 1984.
The credibility of witnesses is within the province of the trier
of fact, and not the appellate court. It is not the duty of this
court to weigh the evidence. State v. Holt, 221 Kan. 696,
700-01, 561 P.2d 435 (1977).
The evidence, while circumstantial, could lead a rational
factfinder to find the defendant guilty beyond a reasonable
The judgment of the lower court is affirmed.
[239 Kan. 587]
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