Battiest v. State, F-86-21

• Decision Date: 12 May 1988
• Docket Number: No. F-86-21,F-86-21
• Citation: 755 P.2d 688
• Parties: Melvin James BATTIEST, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 688

755 P.2d 688

Melvin James BATTIEST, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-21.

Court of Criminal Appeals of Oklahoma.

May 12, 1988.

An Appeal from the District Court of Wagoner County; William H. Bliss, District Judge.

Melvin James Battiest, appellant, was convicted in the District Court of Wagoner County, Case No. CRF-84-73, of the crime of Murder in the First Degree, was sentenced to life imprisonment, and brings this appeal. AFFIRMED.

Joe P. Robertson, Wagoner, for appellant.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Melvin James Battiest, was convicted in the District Court of Wagoner County, Case No. CRF-84-73, of the crime of Murder in the First Degree, was sentenced to life imprisonment, and he appeals.

The facts disclosed by the parties and the record reveal that the appellant and a codefendant were in the company of Donald Cantrell, the victim of the murder, on April 22, 1984, at Wahoo Bay on Fort Gibson Lake. The following day, Cantrell's body was found by the lake, robbed and murdered. On April 24, a person who had been in Cantrell's company shortly before he disappeared on April 22, learned of the murder and contacted the Sheriff's Office, telling them that she had been with the victim, the appellant, and the codefendant at Wahoo Bay, had left them alone, and upon returning saw only the appellant and the codefendant. Later that day, on April 24, the appellant and his common-law wife were taken into custody by Muskogee Police. Appellant's wife was booked as a material witness; appellant was booked and eventually charged with murder. Appellant made a confession to the police, who took his statement and held him in custody until his first trial. A mistrial was declared when appellant's attorney became ill to the point that he could not speak. Approximately 7 months later, appellant's case was retried, and he was convicted and sentenced to life imprisonment.

For his first assignment of error appellant asserts that he was charged and tried in the District Court of Wagoner County and prosecuted by an Assistant United States Attorney who was without authority to prosecute the case. Sheldon Sperling, the prosecuting attorney in this case, took the oath of office as an Assistant United States Attorney for the Eastern District of Oklahoma prior to appellant's trial; however, at the motion hearing held on the issue, Mr. Sperling testified that he had been retained as an Assistant District Attorney to try this case and one other case. Appellant, however, argues that Article II, § 12 of the Oklahoma Constitution mandates that Sperling's tenure as an Assistant District Attorney terminated upon his taking the oath of office and beginning his duties as an Assistant United States Attorney. Article II, § 12 of the Oklahoma Constitution provides that:

No member of Congress from this State, or person holding any office of trust or profit under the laws of any other State, or of the United States, shall hold any office of trust or profit under the laws of this State.

However, since an Assistant District Attorney does not occupy a public office, but instead is an employee of an elected official, Article II, § 12 of the Oklahoma Constitution is inapplicable to this case. See Grand Jury of McCurtain County v. Cecil, 679 P.2d 1308 (Okl.App.1983). Also, the State's Motion to Supplement the Record on Appeal contains copies of...