      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




STATE OF WASHINGTON,                         j         No. 74013-0-1
                                                                                  rn


                      Respondent,            )         DIVISION ONE


               V.                            ;
                                                                                     c~   "•-

VINAY KESHAVAN BHARADWAJ,                    j         UNPUBLISHED


                      Appellant.             )         FILED: December 27, 2016




       Cox, J. —Vinay Bharadwaj appeals the trial court's order denying relief

from judgment under CrR 7.8. This motion was based on his most recent claim

of ineffective assistance of counsel. He also argues the trial court should have

ruled on his pro se motion for reconsideration. Because the trial court did not

abuse its discretion, we affirm.

       In 2012, the trial court found Bharadwaj guilty of child molestation in the

second degree. We affirmed his judgment and sentence on appeal.1




       1 State v. Bharadwaj, Nos. 69453-7-I, 69854-1-1, slip op. at *1 (Wash. Ct.
App. Oct. 27, 2014) (unpublished),
http://www.courts.wa.gov/opinions/pdf/694537.pdf.
No. 74013-0-1/2


      In 2005, Bharadwaj became involved in a Hindu-inspired spiritual

community known as the Life Bliss Foundation (the "Foundation"). He grew

close to the group's leader, Swami Parahamsa Nithyananda (the "Swami") who

promoted Bharadwaj to high positions of authority in the group's Redmond

temple and allegedly manipulated him into sexual acts.

      During this time, Bharadwaj became acquainted with the victim's family

because of their deep involvement in the Redmond temple. At the family's

request, Bharadwaj helped tutor their 13 year-old daughter S.M. During this

time, he would call S.M. frequently and ask her private questions, which made

her uncomfortable. Their contact soon became sexual.

       In 2009, Bharadwaj began to withdraw from the Foundation. He avoided

the Swami's sexual advances and confronted him about issues in the community.

Eventually, Bharadwaj came to believe that the group was a cult and fled.
       In 2010, Indian authorities arrested the Swami and contacted Bharadwaj,

asking him to testify against his former leader.

       Soon after, S.M.'s family obtained a temporary restraining order

prohibiting Bharadwaj from contacting S.M. S.M. then wrote an eight-page letter
to her parents explaining what had happened between her and Bharadwaj.

S.M.'s parents went to the police.

       The State charged Bharadwaj with child molestation. Initially, an attorney

named Harish Bharti represented Bharadwaj. Bharti moved to have the trial

court find the Foundation's members incompetent to testify and the court denied

his motion. We turn to this motion in more detail below.
No. 74013-0-1/3


       Bharadwaj later moved to substitute counsel and hired John Henry

Browne as defense counsel. Bharadwaj then waived his right to a jury trial. In

the bench trial that followed, the judge found him guilty beyond a reasonable

doubt, as charged.

       Afterwards, Bharadwaj filed a CrR 7.8 motion, arguing that Browne, his

trial counsel, was ineffective for failing to call certain experts who would testify

that the Foundation was a cult that manipulated its members. He argued that

had his counsel presented such testimony, the court would have found S.M. and

other Foundation members incompetent to testify. The trial court denied that

motion.


       Bharadwaj appeals.

                     INEFFECTIVE ASSISTANCE OF COUNSEL

       Bharadwaj argues that the trial court erred in denying his CrR 7.8 motion
based on the alleged ineffectiveness of his counsel. We disagree.

       CrR 7.8(b) allows a court to relieve a party from a final judgment or order
based upon mistakes and inadvertence. Such grounds include the ineffective

assistance of counsel.2

       The Sixth Amendment of the United States Constitution guarantees a

criminal defendant not only a right to counsel, but to counsel whose assistance is
effective.3 The Washington Constitution provides an analogous right in article 1,


          2 In re Pers. Restraint of Bailey, 141 Wn.2d 20, 23, 1 P.3d 1120 (2000).

          3 Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
No. 74013-0-1/4



section 33.4 The United States Supreme Court explained in Strickland v.

Washington that the benchmark of this right is "whether counsel's conduct so

undermined the proper functioning of the adversarial process that the trial cannot

be relied on as having produced a just result."5 The defendant demonstrates the

ineffectiveness of his counsel by meeting a two-part burden. He must first show

that counsel's performance was unreasonably ineffective and, second, that such

ineffectiveness prejudiced the results of his case.6 Because he must meet both

elements, we need not address both if either is found wanting.7

       Determining whether counsel provided ineffective assistance is a mixed

question of law and fact.8 We review de novo whether a defendant received
ineffective assistance of counsel.9 In doing so, we must still accord appropriate

deference to the trial court's factual determinations.10

       First, Bharadwaj must show that his counsel's performance "fell below an

objective standard of reasonableness" based on the relevant circumstances and



       4 State v. Benn, 120 Wn.2d 631, 663, 845 P.2d 289 (1993).

       5466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

       6 Id at 687.


       7 Id at 697.


       8 State v. Jones, 183 Wn.2d 327, 338-39, 352 P.3d 776 (2015).

       9]d; State v. Cross, 156 Wn.2d 580, 605, 132 P.3d 80 (2006).

       10 Cross, 156 Wn.2d at 605.
No. 74013-0-1/5


the "prevailing professional norms."11 So long as representation was reasonable,

this court should neither "interfere with the constitutionally protected

independence of counsel [nor] restrict the wide latitude counsel must have in

making tactical decisions."12 Thus, we conduct this inquiry "from counsel's

perspective at the time" of trial and must strongly presume that counsel's conduct

was reasonably effective.13 We must also remember that unlike us, trial counsel

"knew of materials outside the record."14

       In certain circumstances, the "failure to interview a particular witness can

certainly constitute deficient performance."15 At such times, "the only reasonable

and available defense strategy requires consultation with experts or the

introduction of expert evidence."16 But whether it does so "depends on [the]

reason for the trial lawyer's failure to interview."17 "[C]hoices made after less




       11 Strickland, 466 U.S. at 688.


       12 Id at 689.


       13ld


      14 Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 178 L Ed. 2d
624(2011).

       15 Jones, 183Wn.2dat340.

       16 Harrington, 562 U.S. at 106.


       17 Jones, 183Wn.2dat340.
No. 74013-0-1/6


than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation."18
       When counsel is aware of the facts supporting a possible line of defense,

"the need for further investigation may be considerably diminished or eliminated

altogether."19 Often the decision whether to call a witness is a matter of

legitimate trial tactics and will not support a claim of ineffective assistance of
counsel.20 This presumption can be overcome "by showing counsel failed to

conduct appropriate investigations to determine what defenses were available."21
In such circumstances, the supreme court requires that counsel "investigate!] the

case and ma[k]e an informed and reasonable decision against conducting a

particular interview or calling a particular witness."22 But when counsel and the
court are already informed about the substance of particular facts, counsel need
not present additional expert testimony to rearticulate them in scientific terms.23




       18 Strickland, 466 U.S. at 690-91.


       19 Id at 691.


       20 In re Pers. Restraint of Davis, 152 Wn.2d 647, 742, 101 P.3d 1 (2004).

       21 Id


       22 Jones. 183 Wn.2d at 340.


       23 Strickland, 466 U.S. at 699.
No. 74013-0-1/7


      Bharadwaj argues that his case is similar to State v. Jones, in which the

supreme court recently held counsel's performance to be ineffective.24 We

disagree.

      In that case, a jury found Leroy Jones guilty of second-degree assault

after he fought with another man on a public street.25 Several members of the

public witnessed the fight, including Michael Hamilton, who would have testified

that Jones acted in self-defense.26 But Jones's defense counsel never contacted

Hamilton.27 In fact, counsel testified that he "did not have any idea what Mr.

Hamilton would have said about this case."28 On this basis, the supreme court

held that counsel's decision to not interview Hamilton was not informed and,

thus, constituted ineffective assistance of counsel.29

       This case is not like Jones. We presume Browne had the benefit of what

the claimed experts would say if asked to testify. So informed, counsel made a
reasonable decision not to further investigate the possible testimony of the

relevant experts.




       24 183 Wn.2d 327, 340-41, 352 P.3d 776 (2015).

       25 Id at 331-32.


       26 ]g\ at 332, 334-35.

       27 Id at 331-32.


       28 Id at 341.


       29 Id.
No. 74013-0-1/8


       We also note that Browne chose an alternative line of defense. He chose

not to focus on whether the Foundation was a cult and did not dispute the State's

successful motion to preclude use of the word "cult" at trial. Browne explained

that his and Bharadwaj's "opinion[s] as to whether it's a cult or not is not really

relevant."30

       Instead, Browne presented witnesses who testified to the internal

workings of the Foundation and the victim's family's strong allegiance to the

Swami. In doing so, Browne did what Bharadwaj wished: he attacked the

credibility of the State's witnesses. And he employed a different tactic to achieve

the same result. This is objectively reasonable.

       Bharadwaj contends that the relevant expert testimony might have

strengthened Browne's tactic. But as Strickland explains, the purpose of the

Sixth Amendment is not to improve the performance of constitutionally adequate

counsel.31 That Browne's choice did not succeed does not make it

unreasonable. To the contrary, we hold that Browne's choice was objectively

reasonable under the first prong of the governing test.

       Bharadwaj argues that Browne's decision to not present the expert

testimony prejudiced the result in his case. Because he did not establish the first
prong ofthe governing test, it is not necessary to reach the second prong. In any
event, we disagree with this further argument as well.



       30 Report of Proceedings (July 30, 2012) at 23.

       31 Strickland, 466 U.S. at 689.


                                               8
No. 74013-0-1/9


       A defendant seeking to overturn his conviction must also show a

"reasonable probability that, absent the errors, the factfinder would have had a

reasonable doubt respecting guilt."32 The defendant need not show that he

would more likely have been acquitted than not absent the relevant error.33 But it

is not enough that counsel's ineffectiveness impaired the defense.34 The

defendant must "undermine confidence in the outcome" received at trial.35 He

must also show that the likelihood of a different result was "substantial, not just

conceivable."36

        In determining whether counsel's deficient performance prejudiced the

defense, we take the trial court's findings and conclusions unaffected by the error

as "given" and ask whether those findings and conclusions adequately supported

the result at trial.37

                                      Hypnosis

        Bharadwaj argues that, if presented, the expert testimony would have

convinced the trial court to find S.M. and the other Foundation member witnesses

incompetent to testify because they were functionally hypnotized. Thus, he


        32 Id at 695.


        33 Id at 693.


        34 Id


        35 ]d at 694.

        36 Harrington, 562 U.S. at 112.


        37 Strickland, 466 U.S. at 696.
No. 74013-0-1/10


argues that Browne's failure to present such expert testimony likely prejudiced

the result. We disagree.

      Washington law presumes every person is competent to testify.38 For

example, ER 601 states: "Every person is competent to be a witness except as

otherwise provided by statute or by court rule." The party opposing a witness

bears the burden to prove incompetence by a preponderance of the evidence.39

      A witness is incompetent if he or she "appear[s] incapable of receiving just

impressions of the facts, respecting which they are examined, or of relating them

truly" or is of otherwise "unsound mind."40 A witness is of unsound mind when he

or she totally lacks "comprehension or the [lability to distinguish between right

and wrong."41 But a witness's mental disorders are not a manifest sign of

incompetence.42

       A hypnotized person is incompetent to testify to facts known because of
hypnosis.43 In State v. Martin, the supreme court considered the admissibility of




       38 RCW 5.60.020; State v. Brousseau. 172 Wn.2d 331, 341, 259 P.3d 209
(2011).

       39 Brousseau, 172 Wn.2d at 341-42.


       40 RCW 5.60.050.


       41 State v. Johnston, 143Wn.App. 1, 13, 177 P.3d 1127 (2007).

       42 Id at 14.


          43 State v. Martin, 101 Wn.2d 713, 722, 684 P.2d 651 (1984).


                                             10
No. 74013-0-1/11


a child's testimony that the defendant had sexually abused her.44 Initially, the

child had no memory of the incident but remembered after hypnosis.45

      The supreme court held that such testimony remembered due to hypnosis

was inherently unreliable.46 The hypnotized "witness cannot distinguish between

facts known prior to hypnotism, facts confabulated during hypnosis to produce

pseudomemories, and facts learned after hypnosis."47 Such circumstances

impede effective cross-examination and jury observation.

       Here, Dr. Doni Whitsett declared how children in positions similar to S.M.'s

experienced the equivalent of hypnosis. Dr. Whitsett described certain criteria for
the study of mind control in cult-like systems. Such systems are closed and
those within have "no quality control, no correction of misinformation. Thus,

people who live in these groups come to believe whatever the leader wants them
to believe as they have no outside information to counter it."48
       Dr. Whitsett further stated that the effect is exaggerated for children raised

within the cult who have never experienced life and thought outside. The cult

bars such children from socializing with outsiders. As such, they are home

schooled and kept from extracurricular activities.


       44 101 Wn.2d 713, 715, 684 P.2d 651 (1984).

       45 Id at 714.


       46 id at 722.

       47 id

       48 Clerk's Papers at 253.


                                             11
No. 74013-0-1/12


       Dr. Whitsett found these criteria largely met in S.M.'s case. S.M. grew up

in the Foundation, loyal to the Swami. Dr. Whitsett concluded that S.M. would

struggle to identify fact from instructed fiction because she was deprived of any

contact with the world outside. She would be functionally hypnotized based on

the reasoning in Martin.

      Although Dr. Whitsett based her commentary on what appears to be

sound research, she did not know all the facts of S.M.'s life. S.M. attended public

middle and high schools. She interned at a hospital and hoped to attend Boston

University, across the country from her immediate family and the Swami's closest

control. Thus, while Dr. Whitsett may very well identify a complex of mind control

analogous to hypnotism, it appears unmet in S.M.'s particular case. Bharadwaj

fails in his burden to overcome the presumption of competency under the law.

Thus, the failure to present this expert testimony did not prejudice the trial result.

                                       ER610

       The State presents another serious issue with Bharadwaj's brainwashing-

as-hypnosis argument. It argues that ER 610 would bar admission of the expert

testimony. We agree.

       ER 610 bars admission of "[evidence of the beliefs or opinions of a

witness on matters of religion ... for the purpose of showing that by reason of

their nature the witness' credibility is impaired or enhanced."

       Here, Bharadwaj sought to admit expert testimony as to S.M.'s and the

other Foundation members' beliefs towards their group and the Swami. By its

broadest terms, ER 610 appears to exclude such evidence.


                                              12
No. 74013-0-1/13


       Bharadwaj contends that his experts would testify to bias, not belief, and

that ER 610 does not bar such testimony. State case law on this rule is

unfortunately slim. But ER 610 closely tracks the language of Federal Rules of

Evidence (FRE) Rule 610. That rule includes the very exception Bharadwaj asks

this court to erect—inquiry into religious beliefs "for the purpose of showing

interest or bias because of them."49

       The Seventh Circuit Court of Appeals considered religious bias in United

States v. Hoffman.50 David Hoffman was a member of Sun Myung Moon's

Unification Church who had threatened to kill President Ronald Reagan for

incarcerating Reverend Moon.51 He challenged the prosecution's evidence that

he was a member of the organization and loyal to Reverend Moon, arguing that

such evidence put him in a bad light because "manyAmericans look askance on

their fellow citizens who join such cult style eastern religions."52 While Hoffman
did not raise a FRE 610 challenge, the dissent noted such concerns.53 The
majority explained that such evidence went to Hoffman's motive and not to
whether his religious belief and membership were respectable.54


       49 Fed. R. Evid. 610 advisory committee's note.

       50 806 F.2d 703 (7th Cir. 1986).

       51 id at 709.

       52 lU at 708.


       53 id at 716 (Will, J., dissenting).

       54 id at 709.


                                              13
No. 74013-0-1/14



       By contrast, the Second Circuit Court of Appeals concluded in United

States v. Teicher that a witness's opposition to testifying against his coreligionists

was a belief rather than bias within the terms of FRE 610.55 It based this

conclusion on the witness's explanation that it was a "cardinal" belief of his

Judaism that "Jews aren't supposed to turn other Jews over."56 The distinction

between Hoffman and Teicher is one between a mere fact of organizational

membership and a belief arising out of that membership.

       Here, similarly to Hoffman, Browne presented evidence that S.M. and her

family were members of the Foundation and loyal to the Swami. The trial court

recognized that the alleged cult's influence on the "truthfulness of the testimony

of each cult-member witness was directly before the finder of fact, and was

weighed in assessing the truthfulness of the testimony."57
       This is distinct from evidence as to S.M.'s belief in the Swami's divinity or

her possible religious obligations to him and the group. Bharadwaj would have

S.M. deemed incompetent because of the Foundation's religious beliefs and

theology of leadership. The trial court found such a "blanket rule" untenable.

Such evidence of religious belief is inadmissible in federal court under FRE 610.

It is more clearly inadmissible in state court under ER 610, which lacks the

exception in the federal rule.



       55 987 F.2d 112, 119 (2d Cir. 1993).

       56 id

       57 Clerk's Papers at 185.


                                              14
No. 74013-0-1/15


                                       Impeachment

       Bharadwaj next argues that even if the trial court allowed the cult

members to testify, counsel could have presented expert testimony to impeach

their testimony. We disagree.

       "Impeachment evidence is especially likely to be material when it impugns

the testimony of a witness who is critical to the prosecution's case."58 In

considering whether the absence of particular impeachment evidence prejudiced

the defendant, we must consider whether its presence would have destroyed

confidence in the original result.59

       Here, the trial court concluded that the claimed experts' declarations

would not have changed its findings of fact. Bharadwaj argues such a conclusion

is not sustainable because Bharadwaj's guilt rests on whether S.M. was lying for

the Swami. But the trial court reviewed evidence of the "influence of the cult on

the truthfulness of the testimony ofeach cult-member witness."60 S.M. admitted
at trial that she would lie if necessary for the Swami and that she wore a

necklace with his photograph. The trial court reviewed such evidence as well as
the possible effect the expert testimony might have had and determined S.M. to
be credible. Similarly, the trial court found the evidence ofa "scheme to discredit




       58 Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005).

       59 Strickland, 466 U.S. at 694.


       60 Clerk's Papers at 185.


                                              15
No. 74013-0-1/16


the defendant" unconvincing. The court, having considered the import of the

declarations, did not deviate from this finding.

       Here, unlike a jury trial, we have the benefit of the trial judge's express

credibility determinations. The trial court found S.M. "very credible" and that she

told "the truth in her testimony as to her relationship with the defendant." The

trial court based this finding in part on S.M.'s "demeanor on the stand" which was

"natural, that she responded in the way one would expect of a sexual assault

victim of her age, that she consistently gave details in a matter not consistent

with being coached in relation to an elaborate conspiracy theory. By contrast,

the trial court disbelieved Bharadwaj's account of events, finding him guilty

beyond a reasonable doubt.

       We thus conclude that absence of the claimed expert testimony did not

prejudice the result at trial.

                         MOTION FOR RECONSIDERATION

       Lastly, Bharadwaj argues that we should remand for a decision on his pro

se motion for reconsideration of the denial of his CrR 7.8 motion. Because there

was no abuse of discretion in deciding this untimely motion, we disagree.

       We review for abuse of discretion a trial court's disposition of a motion for

reconsideration.61

       Bharadwaj fails in his burden to show any abuse of discretion. His motion

for reconsideration was untimely. He moved for relief more than 10 days after


       61 State v Englund, 186 Wn. App. 444, 459, 345 P.3d 859, review denied,
183Wn.2d 1011 (2015).


                                              16
No. 74013-0-1/17


the court's denial of his CrR 7.8 motion. The Criminal Rules do not address

motions for reconsideration. But the State correctly cites the 10 day limitation

specified in CR 59 as the proper analog. We agree and conclude that the 10 day

limitation applies to the untimely pro se motion for reconsideration, made when

Bharadwaj was then represented by counsel.

      We affirm the order denying the CrR 7.8 motion.

                                                           Cck^T.
WE CONCUR:




        ^f'4*_     /




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