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STATE v. McKIBBEN

July 18, 1986.

STATE OF KANSAS, Appellee,
v.
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 found.

  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 car.

  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 & Hedges cigarettes.

  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 defendant's car.

  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 markers.

  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 ...


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