Phillip Marldo Johnson was indicted for the malice murder of Michael Smialowicz, aggravated assault on Roger Smialowicz, and possession of a firearm during the commission of a felony. 1
At Johnson's first trial, the jury returned a not guilty verdict on the aggravated assault charge. The jury deadlocked on the other two counts, and the judge declared a mistrial. On the day that the retrial was to commence, Johnson filed a motion to dismiss the murder and firearm possession charges on grounds of double jeopardy. The trial court denied this motion, and Johnson appeals the denial. We affirm.
1. Johnson asserts that the recent case of Grady v. Corbin, 495 U. S. ---- (110 SC 2084, 109 LE2d 548) (1990), requires a change in Georgia's double jeopardy case law. In Grady, the court held that the double jeopardy clause "bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. at (110 SC at 2087, 109 LE2d 557).
The Grady decision, however, does not apply to the facts in this case. 2
The charged offenses of malice murder of one person and aggravated assault on another do not have identical statutory elements and one is not a lesser included offense of the other. Therefore, there is no double jeopardy violation under the traditional Blockburger test. See Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932). Nor can we perceive how the conduct the state was required to prove in the malice murder case, which resulted in a conviction for voluntary manslaughter, would be "the same conduct" that constituted the offense of aggravated assault on another person for which Johnson was earlier acquitted. Under these circumstances, there could be no double jeopardy under Grady.
2. The record on appeal includes no transcript or stipulation of evidence from either the first trial or the retrial. In his notice of appeal, Johnson directed the clerk to "omit the entire trial transcripts from both the first and second trials from this record." Without a transcript to review, this court must assume as a matter of law that the evidence presented at trial supported the court's findings. Smith v. State, 160 Ga. App. 26
, 27 (285 SE2d 749
Following a felony conviction when, as here, the appeal draws in question the evidence at trial, the appellant should state in the notice of appeal that the transcript of evidence is to be transmitted as part of the record. See Brown v. State, 223 Ga. 540
, 541 (156 SE2d 454
) (1967) (when consideration of the enumerated errors depends on the transcript of evidence and proceedings, the court has nothing to review without the transcript). Johnson intentionally did not follow this procedure. Therefore, he provides no support for his allegation that the state established an essential element of murder in the subsequent prosecution by proving the same conduct for which Johnson had already been prosecuted and acquitted in the first trial. Having no evidence that supports Johnson's contention of double jeopardy, we affirm the trial court.
Robert E. Wilson, District Attorney, Gregory A. Adams, Barbara B. Conroy, Assistant District Attorneys, for appellee.