Bharadia v. StateBharadia v. State
In 2003, a jury convicted appellant Sandeep Bharadia of burglary, aggravated sodomy, and aggravated sexual battery with respect to his breaking into the victim‘s apartment and physically attacking her. Additional details of the facts shown at trial are set forth in the opinion of the Court of Appeals which affirmed the trial court‘s denial of appellant‘s initial motion for new trial (Bharadia v. State, 282 Ga. App. 556 (639 SE2d 545) (2006) (Bharadia I)), and the Court of Appeals opinion affirming the trial court‘s denial of appellant‘s extraordinary motion for new trial. Bharadia v. State, 326 Ga. App. 827 (755 SE2d 273) (2014) (Bharadia II). We granted appellant‘s petition for a writ of certiorari to review Bharadia II.
1. Additional facts and procedural history.
Bharadia‘s co-defendant, Sterling Flint, was also charged with these crimes. Flint negotiated a guilty plea and testified against appellant at appellant‘s trial. While appellant‘s first motion for new trial was pending, appellant, represented by new counsel, sought and was granted funds to conduct DNA testing upon gloves that were seized ten days after the crimes from the home of Flint‘s girlfriend, where Flint occasionally resided. The victim identified these gloves at trial as the type her assailant wore during the assault upon her. DNA testing on the gloves at a private testing facility showed none of the DNA recovered from the gloves matched appellant‘s DNA. Instead, the testing revealed the DNA of an unknown male and an unknown female. Appellate counsel informed the trial court and the prosecutor of the results, and provided them with a written report prepared by the expert who tested the gloves recommending additional testing to compare the DNA found on the gloves to the DNA of the victim and the co-defendant, but the State opposed appellant‘s request for additional funding for such testing, and the trial court denied the request. Appellant amended his first motion for new trial to assert the DNA test result was newly discovered evidence.
In the order denying the first motion for new trial, as amended, the trial court conducted an analysis based upon the factors set forth in Timberlake v. State1 for granting a new trial on the basis of newly
After the first motion for new trial and appeal was lost, appellant‘s counsel sought and received assistance from the Georgia Innocence Project (GIP). In early 2009, appellate counsel informed the prosecutor that the GBI had agreed to perform its own DNA analysis on the gloves if requested by the prosecutor. The prosecutor responded that, in order to obtain DNA testing, appellant would be required to comply with the procedure set forth in
Bharadia appealed the denial of his extraordinary motion for new trial and, in Bharadia II, the Court of Appeals affirmed the trial court‘s finding that Bharadia had failed to meet the due diligence standard. 326 Ga. App. at 832 (2). Having affirmed the finding that Bharadia did not meet this Timberlake factor, the Court of Appeals expressly did not reach the issue of whether the trial court erred in concluding the evidence was not newly discovered; the court also did not address the State‘s argument that the trial court reached the right result because the new evidence was not, in fact, material. This Court granted appellant‘s petition for a writ of certiorari to review whether the Court of Appeals properly analyzed the due diligence prong of the standard for determining whether to grant a new trial set forth in Timberlake and
2. Analysis of Bharadia‘s compliance with the due diligence requirement.
Application of the six factors set forth in Timberlake has long formed the standard by which the courts of this state determine whether to grant a new trial on the basis of newly discovered evidence. Timberlake, supra, 246 Ga. at 491 (1). One of the requirements is a showing of due diligence in acquiring the newly discovered evidence. Id. In the case of an extraordinary motion for new trial, whether founded on a claim of newly discovered evidence or other grounds,
The evidence at issue in Bharadia‘s extraordinary motion for new trial is evidence confirming that the DNA previously found on biological material on the gloves, and tested at the time his first motion for new trial was pending, matches that of the co-defendant. The record reflects that Bharadia asked for DNA testing of his co-defendant at the time of his first motion for new trial, but that request was denied. Bharadia did not challenge that denial on appeal. See Bharadia I, supra, 282 Ga. App. at 559-560 (6) (denial of motion for new trial was challenged, inter alia, on the trial court‘s alleged error in finding Bharadia received effective assistance of counsel with respect to counsel‘s failure to obtain an expert to test and testify about DNA on certain crime scene evidence other than the gloves). Accordingly, the trial court‘s initial decision to deny the request for testing the co-defendant‘s DNA for purposes of comparing it to the DNA found on the gloves can no longer be contested because it remains unreversed and unmodified.
Nevertheless, when the trial court ordered a CODIS database search, and that search identified the co-defendant‘s DNA as a match to the DNA previously found on the glove, the trial court ordered DNA testing of the co-defendant to confirm the match. A post-trial motion for DNA testing pursuant to
Even after DNA testing of the co-defendant confirmed a match to the male DNA found on the gloves, the trial court denied the extraordinary motion for new trial. The trial court again examined the six Timberlake factors and denied the extraordinary motion for new trial on the ground that Bharadia failed to meet two of them: the first prong of the test because he failed to demonstrate the evidence was newly discovered; and the second prong of the test, because he failed to demonstrate the delay in acquiring the evidence was not the result of a lack of due diligence. In explaining its reason for reaching its conclusion on the due diligence issue, the trial court stated:
Trial counsel for the Defendant was aware of the existence of the evidence — i.e. the gloves — at the time of trial and aware that the gloves were identified by the victim as having been worn by the attacker. The fact that trial counsel elected not to have the gloves tested for DNA shows a lack of due diligence which resulted in a delay in acquiring this evidence.
This reasoning demonstrates the trial court‘s inconsistent use of the term “evidence.” The trial court order first refers to the gloves as the
The inconsistent use of the term “evidence,” however, does not require reversing the order denying the extraordinary motion for new trial. Clearly, the defense knew of the existence of the gloves in this case which potentially contained biological material, namely epithelial skin cells, on or inside the gloves because the victim said the assailant wore gloves. Since the gloves and the biological material on them were available to the defense before trial, they are not newly discovered evidence. The evidence at issue in the initial motion for new trial was the existence of this biological material and the DNA test results that showed the DNA in that biological material was not Bharadia‘s.6 The trial court determined the original DNA test results did not constitute “newly discovered” evidence since DNA testing of the gloves was available to Bharadia prior to trial. Nevertheless, when the CODIS database match came back identifying the co-defendant, the court then ordered confirmation testing from a new DNA sample taken from the co-defendant. The evidence at issue in the extraordinary motion for new trial was the CODIS search results and direct evidence matching the male DNA on the gloves to the co-defendant‘s DNA.
The trial court determined in this case that the evidence of the DNA match to Bharadia‘s co-defendant was material and could have changed the result of the trial.7 Nevertheless, the trial court determined that due diligence was not shown to support the extraordinary motion for new trial. We agree. The gloves could have been tested for DNA prior to trial, and once the test results showed the DNA was not a match to Bharadia, he could have requested, prior to trial, the DNA testing of his co-defendant. Instead, Bharadia waited over a year after trial to determine that DNA relevant to the identity of the assailant was on the gloves and that the DNA did not belong to him, and then waited again until almost nine years after trial and almost
The grant of an extraordinary motion for new trial on the ground of newly discovered evidence is reserved for cases in which the facts at issue in the motion were previously impossible to ascertain by the exercise of proper diligence. Patterson v. State, 228 Ga. 389, 390 (2) (185 SE2d 762) (1971). Even though Bharadia demonstrated significant post-trial efforts were made to obtain the evidence implicating his co-defendant as the victim‘s assailant, “diligence before trial will not be inferred from diligence after conviction.” Timberlake, supra, 246 Ga. at 491 (1). In fact, just as in Timberlake, the record reflects no evidence showing that Bharadia was unable to obtain this evidence prior to trial. Compare id. at 492. The only argument made on appeal is that Bharadia was an indigent defendant. But he was represented by counsel both before trial and in his initial motion for new trial proceeding, and still failed to obtain the DNA evidence implicating his co-defendant,10 and those are the time periods that establish a
Judgment affirmed. All the Justices concur.
Notes
The standard for granting a new trial on the basis of newly discovered evidence is well established. “It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.”(Citation omitted.) Id. at 491.