In the Supreme Court of Georgia



                                               Decided: June 29, 2015


                  S14G1149. BHARADIA v. THE STATE.


      BENHAM, Justice.

      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.

                                        2
State1 for granting a new trial on the basis of newly discovered evidence, and

found that a new trial was not required because Bharadia failed to meet two of

the six factors. The first Timberlake factor requires a showing that the newly

discovered evidence has come to the movant’s knowledge since the trial.

Timberlake, supra, 246 Ga. 488, 491 (1). With respect to this factor, the trial

court found “that DNA testing of the gloves was available to the Defendant prior

to trial. Therefore, the DNA testing is not ‘newly discovered.’” The trial court

also found Bharadia failed to meet the third factor set forth in Timberlake in that

the evidence was not so material that it would probably produce a different

verdict. The trial court did not make any finding in this order relating to the

second of the Timberlake factors–the due diligence requirement. In Bharadia

I, the Court of Appeals, in 2006, affirmed the trial court in an opinion that did

      1
          246 Ga. 488 (271 SE2d 792) (1980). In Timberlake, this Court stated:

          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.

                                                  3
not address Timberlake or the newly discovered evidence issue because these

issues were not raised by appellant.2

       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 OCGA § 5-5-41 for filing

an extraordinary motion for new trial and a motion for DNA testing. After

apparently taking the time to explore all potential grounds for filing such a

motion, on February 23, 2012, GIP assisted appellate counsel in filing an

extraordinary motion for new trial, as well as a motion for additional DNA

testing to compare the DNA on the gloves with that of the co-defendant or,

alternatively, for a comprehensive CODIS3 database search to compare the

       2
           Bharadia I, 282 Ga. App. at 559-560 (6).
       3
            CODIS       is     the     FBI’s      Combined         DNA      Index    System.
Http://www.nij.gov/266/pages/backlogs-codis.aspx. “Since its authorization in 1994, the CODIS
system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA
profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic
evidence found at crime scenes.” Maryland v. King, ___ U.S. ___ (133 SCt 1958, 186 LEd2d 1)
2013).

                                                4
results of the previous DNA testing to DNA profiles in the database. The trial

court denied the request for further DNA testing but granted the request for a

CODIS database search. That search found a match to the co-defendant’s DNA.

The trial court then granted Bharadia’s motion for a DNA sample to be obtained

from the co-defendant for confirmation testing, and the match was confirmed.

Nevertheless, the trial court denied the extraordinary motion for new trial.

Applying again the Timberlake factors for granting a new trial on the basis of

newly discovered evidence, the trial court found that Bharadia satisfied all but

the first two factors. The trial court again found that Bharadia failed to show

that the evidence came to his knowledge since the trial and thus was not newly

discovered (as required by factor 1), and, unlike the initial motion for new trial

order, the trial court addressed the due diligence issue and found Bharadia failed

to show that the delay in acquiring the evidence was not the result of a lack of

due diligence (as required by factor 2). This time, however, in apparent

consideration of the fact that the DNA evidence did not merely show the lack

of a match to Bharadia’s DNA but showed the DNA was, in fact, a match to co-

defendant Flint’s DNA, the trial court found Bharadia met the requirement of

showing the evidence is so material that it would probably produce a different

                                        5
verdict (as required by factor 3). The trial court also found the other factors set

forth in Timberlake were met.

      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 OCGA §

5-5-41 (c).

      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

                                         6
(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, OCGA § 5-5-41 also applies, and sets forth certain requirements and

standards for judging whether such a motion should be granted. Pursuant to

subsection (a) of the statute, when, as here, a motion for new trial is made after

the expiration of the 30 day period allowed for such motions, good reason must

be shown by the movant, and found by the trial judge, why the motion was not

made within the 30 day period. OCGA § 5-5-41 (a). “Good reason exists only

where the moving party exercised due diligence but, due to circumstances

beyond [his] control, was unable previously to discover the basis for the claim

[he] now asserts.” Ford Motor Co. v. Conley, 294 Ga. 530, 541 (2) (757 SE2d

20) (2014). Thus, both statutory and case law require a showing of due

diligence to authorize the trial court’s exercise of discretion to grant an

extraordinary motion for new trial on the ground of newly discovered evidence.

      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,

                                        7
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 OCGA §

5-5-41 (c) (3) (A) requires the person convicted of a felony and desiring such

testing to show that “[e]vidence that potentially contains deoxyribonucleic acid

(DNA) was obtained in relation to the crime and subsequent indictment, which

                                        8
resulted in his or her conviction.” The renewed request Bharadia made for DNA

testing of his co-defendant or for performing a CODIS database search did not

involve any new testing of the gloves or any other physical evidence that

potentially contained DNA obtained in the course of investigating or

prosecuting the crime in this case. Accordingly, it was not properly a request

for DNA testing made pursuant to OCGA § 5-5-41 (c), nor was it granted

pursuant to that statute. Instead, this request was in the nature of post-trial

discovery,4 and neither the order granting the CODIS database search nor the

order granting the confirmation testing of the co-defendant’s DNA indicates that

it was based upon the statute. The order granting DNA confirmation testing

states it was granted as a matter of routine policy to confirm a DNA match made

from a CODIS search. In granting the writ of certiorari, this Court directed the

parties to examine whether the Court of Appeals properly analyzed the due

diligence issue under both Timberlake and OCGA § 5-5-41 (c). Though we

have determined that OCGA § 5-5-41 (c) is not applicable to this case, the




       4
         See Hammond v. State, 282 Ga. App. 478, 479 (638 SE2d 893) (2006) (“A trial court is
under no obligation to grant a defendant’s post-trial discovery in the hope that it will lead to the
discovery of new evidence.”).

                                                 9
factors set forth in Timberlake are still relevant to this appeal.5

       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.


       5
           An amicus brief was filed by the Georgia Association of Defense Lawyers. We reject the
argument asserted by amicus curiae, and adopted by appellant as an alternative argument on appeal,
that the Timberlake factors should not apply to an extraordinary motion for new trial based on DNA
test results. Pursuant to OCGA § 5-5-41 (c), even if the trial court orders the requested DNA testing,
the issue of whether to grant a new trial is a separate decision. See subsection (c) (12: “The judge
shall set forth by written order the rationale for the grant or denial of the motion for new trial filed
pursuant to this subsection.” Moreover, subsection (c) begins by saying “[s]ubject to the provisions
of subsections (a) and (b),” one of which, as discussed above, is showing “good reason,” including
due diligence, for not filing the new trial motion within 30 days of trial.

                                                  10
This reasoning demonstrates the trial court’s inconsistent use of the term

“evidence.” The trial court order first refers to the gloves as the evidence at

issue in the motion, the existence of which was well-known prior to trial; then,

addressing the delay in acquiring “this evidence,” the order impliedly refers to

the DNA test results as the evidence at issue. Even the reference to the DNA

test results fails to specify whether it is the original DNA test results which

Bharadia showed a lack of due diligence in acquiring, or the results that matched

the DNA found on the glove to that of the co-defendant, or both.

      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




                                       11
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 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,

       6
          The distinction between physical evidence (here, the gloves) and the biological material
that may be found in or on such evidence (here, skin cells that contain DNA) is recognized in OCGA
§ 17-5-56 (requiring law enforcement agencies and prosecutors to maintain physical evidence
collected at the time of the crime that contains biological material relating to the identity of the
perpetrator of a crime).
       7
         The Court of Appeals did not address the State’s argument that this determination was
erroneous, and we also need not reach that question.

                                                12
the DNA testing of his co-defendant, who admitted to being at the crime scene,

to determine if the DNA was a match to him. 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 seven years after his initial

motion for new trial proceeding was completed to establish that the DNA was

a match to his co-defendant.8 His defense at trial was that he was not present at

the scene of the crimes, yet Bharadia failed to show that circumstances beyond

his control prevented him from seeking and obtaining any and all of this testing

and resulting evidence prior to trial. Instead, he avoided the risk that pre-trial

DNA test results from the gloves would implicate him in the crimes and waited

until after his trial and conviction to request these initial tests, at which time he

would have been no worse off by a positive test result than he was before taking




       8
           Appellant argues it is the CODIS database match and follow-up testing that forms the basis
for the extraordinary motion for new trial, and since the match was made to DNA testing of the co-
defendant in conjunction with his conviction on unrelated charges in 2009, appellant argues no
evidence exists to show that a match to the co-defendant would have been returned at the time of the
trial. Thus, appellant asserts the evidence does not support a finding of lack of due diligence. The
point, however, is that appellant could have sought DNA testing of the co-defendant at the time of
trial, not merely a CODIS database search.

                                                 13
the risk of requesting a post-trial DNA test.9

       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 was 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


       9
          Bharadia suggests that his lack of due diligence is excused because his trial counsel was
ineffective in not seeking testing on the gloves before trial. But in considering due diligence under
Timberlake, we look to the action and inaction of the defendant, including his counsel and defense
team. Ineffective assistance of counsel is a distinct constitutional claim. And even assuming there
was no reasonable strategic reason to avoid DNA testing on the gloves before trial, no ineffective
assistance claim based on the alleged deficiency in pursuing testing on the gloves was brought by
Bharadia and his new counsel in the first motion for new trial (although other claims of
ineffectiveness were pursued, including a claim of ineffectiveness in failing to seek DNA testing on
other crime scene evidence). Trial counsel was not questioned about why the gloves were not tested,
and no habeas petition was filed raising this alleged ineffective assistance claim.

                                                 14
obtain the DNA evidence implicating his co-defendant,10 and those are the time

periods that establish a lack of due diligence.11 The reason for requiring a

defendant to demonstrate he acted with due diligence in acquiring the evidence

he claims is newly discovered “is that litigation must come to an end.”

Llewellyn v. State, 252 Ga. 426, 428 (2) (314 SE2d 227) (1984). This reasoning

has been applied to cases involving extraordinary motions for new trial in which

the evidence was arguably capable of being known only after the trial, but which

the appellant delayed in bringing to the trial court’s attention in an initial motion

for new trial. See id; Drane v. State, 291 Ga. 298, 304 (3) (b) (728 SE2d 679)

(2012). It applies even more strongly to a case such as this, in which there is no

showing why evidence could not have been obtained pre-trial but which the

appellant failed to obtain until after the trial and after the initial motion for new

trial proceedings. See Depree v. State, 246 Ga. 240, 243 (6) (271 SE2d 155)


       10
          Appellant requested DNA testing of the co-defendant while his initial motion for new trial
was pending, but that request was denied and appellant failed to raise that adverse ruling on appeal.
In any event, in the appeal now before us, we affirm the trial court’s ruling that appellant could have,
but did not, pursue this testing prior to trial, and thus the due diligence requirement of Timberlake
was not established for that reason.
       11
          Consequently, we reject appellant’s argument, in reliance upon Britten v. State, 173 Ga.
App. 840 (328 SE2d 556) (1985) (physical precedent only), that the circumstances of his indigence
and his incarceration since arrest mitigate in favor of a showing that he acted with due diligence in
pursuing the evidence at issue in this case.

                                                  15
(1980); Turner v. State, 270 Ga. App. 245, 246 (3) (606 SE2d 296) (2004).

Accordingly, the trial court did not abuse its discretion in ruling that Bharadia

failed to show the delay in acquiring the pertinent evidence was not owing to his

lack of due diligence, a requisite factor to support any motion for new trial on

the ground of newly discovered evidence.

      Judgment affirmed. All the Justices concur.




                                       16
