Farid Sediqi v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Lemons and Senior Judge Hodges
Argued at Alexandria, Virginia
FARID SEDIQI
MEMORANDUM OPINION * BY
v. Record No. 1550-97-4 JUDGE DONALD W. LEMONS
JANUARY 12, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
Joseph J. McCarthy (Delaney, McCarthy,
Colton & Botzin, P.C., on briefs), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Farid Sediqi appeals his conviction for aggravated malicious
wounding, a violation of Code § 18.2-51.2. On appeal, he argues
that the trial court erred in refusing to grant his motion for a
new trial. Because we hold that the trial court committed no
error, we affirm.
BACKGROUND
On September 2, 1996, Mohammad Riaz, the victim, left the
home that he shared with his wife, Rubina Riaz, to meet his
girlfriend, Najlah Sediqi, in the stairwell of her apartment
building. Riaz testified that while he was seated with Najlah,
he saw her two brothers, Farid Sediqi ("Farid"), the appellant,
and Mohammad Haroon Sediqi, enter the stairwell and attack him
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
with steel pipes, 12 to 20 inches in length. Riaz was struck in
the head until he lost consciousness. He sustained a total of 15
lacerations to his head and face that required more than 100
stitches. The doctor who treated the victim testified that his
upper body was "totally purple" across the back of his shoulders
and neck.
The Sediqi brothers were tried together on February 4, 1997,
without a jury. At trial, Riaz was the only witness to identify
the brothers as his attackers. Rubina Riaz testified that she
was aware of the relationship between her husband and Najlah and
that she knew that her husband was on his way to meet her on the
night of the attack. Her testimony revealed that Rubina Riaz had
two brothers who lived in Northern Virginia. On February 5,
1997, the court found both Farid and his brother guilty of
aggravated malicious wounding.
On May 29, 1997, the trial court heard the codefendants'
joint motion for a new trial based on the claim of newly
discovered evidence. At the hearing, Abdullah John Allouzai
("John Allouzai") testified that he had spoken with Riaz on
October 31, 1996. John Allouzai admitted that he approached Riaz
pursuant to a request by the "elderlies," leaders of the Afghan
community in Northern Virginia. John Allouzai stated that Riaz
told him during their meeting that he had not seen the persons
who had attacked him. John Allouzai testified that Riaz told him
that, although he had not actually seen his attackers, he thought
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that it was Najlah's brother "because she was the only one who
knew to meet me at the stairway." John Allouzai also testified
that "when elderlies say something to you, you often -- 99.9
percent of the time you support that, and you listen to that."
John Allouzai admitted that he suggested to Riaz that he accept a
financial settlement from Farid and his brother.
At the same hearing on the joint motion, Jobib Allouzai,
John Allouzai's brother and Riaz's friend, testified that Riaz
"usually says that he knows who attacked him." Riaz testified at
the hearing that John Allouzai approached him and suggested that
the case should be settled out of court for money. Riaz stated
further that he never told John Allouzai he had not seen the men
who had attacked him. The court ruled that: (1) the Sediqis
could have discovered John Allouzai's testimony through due
diligence; (2) the evidence was not credible; and (3) it would
not have affected the outcome of the trial.
MOTION FOR A NEW TRIAL
On appeal, Farid argues that the trial court erred in
refusing to grant his motion for a new trial.
Motions for new trials based on
after-discovered evidence are addressed to
the sound discretion of the trial judge, are
not looked upon with favor, are considered
with special care and caution, and are
awarded with great reluctance. . . . The
applicant bears the burden to establish that
the evidence (1) appears to have been
discovered subsequent to trial; (2) could not
have been secured for use at trial; (3) is
not merely cumulative, corroborative or
collateral; and (4) is material, and such as
should produce opposite results on the merits
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at another trial.
Stockton v. Commonwealth, 227 Va. 124, 149, 314 S.E.2d 371, 387
(1984) (citation omitted).
On March 27, 1997, at the first scheduled sentencing
hearing, Farid and Mohammed Sediqi requested a continuance,
alleging that they had discovered a new witness who could testify
that Riaz had told different versions of who had attacked him.
The court granted the continuance. On April 30, 1997, Mohammed
Sediqi filed a Motion for a New Trial. 1 Farid adopted his
brother's motion. On May 29, 1997, a hearing was held.
In its analysis of the motion for a new trial, the trial
court did not state whether it found that John Allouzai's
testimony was discovered subsequent to trial. The trial court
did find that Farid failed to show that the evidence could not
have been secured for use at his trial through the exercise of
reasonable diligence.
[A] party who seeks a new trial on the ground
of after-discovered evidence must show that
he used reasonable diligence to secure such
evidence before the earlier trial. It is not
sufficient merely to say that the evidence
could not have been discovered by the use of
due diligence. The applicant for a new trial
must set forth in affidavits facts showing
what his efforts were to obtain the evidence
and explaining why he was prevented from
securing it.
Yarborough v. Commonwealth, 15 Va. App. 638, 646, 426 S.E.2d 131,
1
Mohammad Haroon Sediqui's appeal on the identical issue was
denied by order of this Court dated March 20, 1998.
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136 (1993) (citation omitted).
Farid maintains that he did not know John Allouzai prior to
his trial. He argues that in order to secure this evidence for
use at his trial, he would have had to interview "approximately
7,000 Afghan families in the Northern Virginia area alone." He
contends that such efforts would have exceeded the scope of
reasonable diligence.
However, John Allouzai met with Riaz in an attempt to settle
the matter on October 31, 1996, three months prior to his trial.
Farid concedes that his own father was present when the elders
approached John Allouzai to request that he meet with Riaz.
Under the circumstances, the trial judge was entitled to reject
Farid's claim that he could not have discovered John Allouzai's
testimony before his trial with the exercise of reasonable
diligence. In addition, Farid failed to present evidence to the
trial court setting forth his efforts to obtain the evidence, and
explaining why he was prevented from obtaining it.
The nature of John Allouzai's testimony served to undermine
Riaz's identification of the Sediqi brothers as his attackers.
"However, newly discovered evidence which merely discredits,
contradicts, or generally impeaches a witness is not a basis for
granting a new trial." Mundy v. Commonwealth, 11 Va. App. 461,
481, 390 S.E.2d 525, 536 (1990). Because his testimony was
intended only to impeach Riaz's testimony, the court correctly
determined that it was an insufficient basis for granting a new
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trial.
The trial court also found that the new evidence was not
material. "Before setting aside a verdict, the trial court must
have evidence before it to show in a clear and convincing manner
'as to leave no room for doubt' that the after-discovered
evidence, if true would produce a different result at another
trial." Carter v. Commonwealth, 10 Va. App. 507, 513, 393 S.E.2d
639, 642 (1990) (citation omitted). Here, the court weighed the
evidence presented at the hearing, and determined that the
outcome would not have been different if the evidence had been
presented at trial.
At trial, Riaz positively identified Farid Sediqi and his
brother as his attackers. The evidence showed that at the time
of the beating, Riaz, a married man, was having a relationship
with the Sediqi brothers' sister. At the hearing on the joint
motion for a new trial, John Allouzai testified that Riaz told
him that he could not positively identify his assailants. At the
same hearing, Riaz again identified Farid and his brother as his
attackers. Jobib Allouzai also testified that Riaz "says he
knows who attacked him." Unlike Riaz, John Allouzai was not an
eyewitness to the beating.
Although the trial judge denied the motion for a new trial,
the court nonetheless treated it as a motion to reopen the
evidence. The judge, as the fact finder in the first trial,
considered the evidence, found that it was not credible, and
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affirmed the conviction of the Sediqi brothers. In summarizing
the "new" evidence presented at the hearing, the court stated,
only [one] fellow who comes forward and says,
well, on Halloween he told me that he didn't
really see it, and this is in the posture of
a negotiation to keep this thing under lid
within the Afghan community and not to bring
it before the civil authorities . . . [and] I
don't believe it affects the outcome in any
way, shape or form in the mind of this fact
finder, who was, in fact, the fact finder in
the trial.
Because we agree with the trial court that Farid Sediqi
failed to meet the requirements necessary to grant a new trial
based upon after-discovered evidence, we affirm his conviction.
Affirmed.
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