State v. McKibben

• Decision Date: 18 July 1986
• Docket Number: No. 58205,58205
• Citation: 239 Kan. 574,722 P.2d 518
• Parties: STATE of Kansas, Appellee, v. Lonnie Stewart McKIBBEN, Appellant.
• Court: Kansas Supreme Court

Page 518

722 P.2d 518

239 Kan. 574

STATE of Kansas, Appellee, v. Lonnie Stewart McKIBBEN, Appellant.

No. 58205.

Supreme Court of Kansas.

July 18, 1986.

Syllabus by the Court

1. Pursuant to K.S.A. 22-2611, when the cause of death is inflicted in one county and death ensues in another county, venue is proper in either county. Under the facts of this case, it is held the evidence clearly establishes death occurred in Saline County, Kansas, and, therefore, venue was proper in that county.

2. Pursuant to K.S.A. 22-2616(1), a change of venue is proper once the court is satisfied there exists in the county where prosecution is pending so great a prejudice against the defendant that a fair and impartial trial in that county cannot be obtained. The defendant bears the burden of establishing prejudice as a demonstrable reality and not as a matter of speculation. Media publicity alone will not establish prejudice per se. Nor does the mere inclusion of identical conclusory type affidavits establish prejudice. Under the facts of this case, it is held 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 based on prejudicial pretrial publicity.

3. In determining whether to disqualify the entire staff of a prosecutor's office and appoint a special prosecutor because one prosecuting attorney had formerly represented the defendant on the matter for which he is being presently prosecuted, the trial court shall consider the following: (1) the important consideration is to protect the confidence inherent in the attorney-client relationship and to avoid a breach of that trust; (2) the circumstances of the particular case should be considered to determine whether confidences have been breached resulting in prejudice to the defendant; and (3) consideration should be given to whether the defendant's former attorney participated in any way in prosecuting the defendant. 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. If any impropriety is found, the entire office must be disqualified by the trial court. Absent an abuse of the exercise of its discretion, the trial court's determination will not be reversed by the appellate court. Under the facts of this case, it is held the trial court did not abuse the exercise of its discretion in denying defendant's motion to appoint a special prosecutor.

4. 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. Following State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The trial court must first be given the opportunity to rule upon the issue. Under the facts of this case, it is held the issue concerning incompetence of counsel was never effectively presented to the trial court and, therefore, the issue cannot be raised for the first time on appeal.

5. When the sufficiency of circumstantial evidence to sustain a conviction is challenged on appeal, the appellate court's function is limited to ascertaining whether a rational factfinder could have found defendant guilty beyond a reasonable doubt. Under the facts of this case, it is held 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.

Patrick H. Thompson, Salina, argued cause and was on brief for appellant.

Mickey W. Mosier, County Atty., argued cause, and Robert T. Stephan, Atty. Gen., was with him on brief for appellee.

SCHROEDER, Chief Justice:

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 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 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. 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...