Lamb v. State , 185 Ga. App. 231 ( 1987 )

Deen, Presiding Judge.

Appellant and one John Albers were tried before a jury for violating the Georgia Controlled Substances Act. During the presentation of the defendants’ case, the State attempted to impeach a witness by asking her about a prior arrest. An objection was made and sustained. Albers made a motion for a mistrial, but appellant did not join in the motion. The court granted the motion as to both defendants. On appeal, appellant contends that the court below erred in denying his plea in bar alleging double jeopardy because it erred in granting a mistrial over his objection. Held:

Decided December 4, 1987. Michael C. Clark, for appellant. Robert E. Wilson, District Attorney, Gregory A. Futch, Elisabeth MacNamara, Assistant District Attorneys, for appellee.

The trial court found that the questioning on cross-examination of the defense witness was so prejudicial that it denied both defendants a fair trial and that the testimony so prejudiced them in the eyes of the jury “by their association with the witness who had worked with both of the defendants and been employed at a location where drugs were alleged to have been found, that the defendants could not possibly have received a fair trial even with proper curative instructions.”

The trial court has a broad discretion where there is a “manifest necessity” for declaring a mistrial and it may be granted without a defendant’s consent and over his objection. Abdi v. State, 249 Ga. 827, 828 (294 SE2d 506) (1982). Although the trial court made findings of fact in its order, this court is unable to review the evidence because appellant specifically requested in his notice of appeal that a trial transcript not be filed with this court. In the absence of a transcript, this court must assume that the trial court’s findings of fact were correct and that the prosecution’s line of questioning did in fact prejudice the defendant to the extent that he could not receive a fair trial even if the court gave proper curative instructions. See State v. Mintz, 179 Ga. App. 451 (346 SE2d 591) (1986); Brannon v. State, 176 Ga. App. 781 (337 SE2d 782) (1985).

Judgment affirmed.

Birdsong, C. J., and Pope, J., concur.