Dean v. State, 31970
| Decision Date | 10 March 1977 |
| Docket Number | No. 31970,31970 |
| Parties | Bobby Joe DEAN v. The STATE. |
| Court | Georgia Supreme Court |
Peter J. Krebs, Decatur, for appellant.
Lewis R. Slaton, Dist. Atty., R. David Petersen, Carole E. Wall, Asst. Dist. Attys Arthur K. Bolton, Atty. Gen., Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.
Appellant was convicted of murder. He was sentenced to life imprisonment and appeals.
1. Appellant Dean claims that the verdict is strongly against the weight of the evidence because the chief prosecution witness gave "biased" testimony. The State's evidence showed that Dean went to the apartment of his ex-wife at approximately midnight, carrying a rifle; that he falsely identified himself as a neighbor, in order to get his ex-wife to open the door to her apartment; that when the door was opened Dean shot the night chain off the door, and entered proclaiming something to the effect of "I got y'all"; that a struggle ensued between Dean and the victim, the fiance of the ex-wife; and that the victim was killed by a shot in the back, fired far enough away so that no "powder burns" were present around the wound. This was the account given of the incident by Dean's ex-wife. Dean argues that this testimony must be disregarded because in a subsequent trial, in which he was tried for kidnapping his ex-wife, evidence was presented which discredited the testimony of the ex-wife in that trial, and an acquittal was obtained.
There is no merit in this contention. The credibility of a witness is a question solely reserved to the jury, and we must affirm the finding of the jury if there is any evidence in the record to support the verdict. Proctor v. State, 235 Ga. 720, 221 S.E.2d 556 (1975). The evidence clearly supports the verdict.
2. The court reporter failed to record the closing argument of counsel, in spite of the fact that the trial court ordered that it be reported. Dean asserts that the trial court should have granted a new trial because the court reporter's mistake "deprived him of preservation of harmful error." However, Dean does not assert that any harmful error was committed during the closing arguments. "Harm as well as error must be shown to authorize a reversal by this court." Bateman v. Bateman, 224 Ga. 20, 159 S.E.2d 387 (1968). This enumeration is without merit.
3. The fifth and sixth enumerations of error complain of the trial court's overruling of the defendant's motion to prohibit jury dispersal. It is first argued that, because the state could have sought the death penalty in this case, the judge had no discretion to allow the jury to disperse. See Code Ann. § 59-718.1 (Ga.L.1972, p. 622). The point is, the...
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