                     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




                                 - 2 -
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



                                - 3 -
          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.




                               - 4 -
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




                                 - 5 -
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



                                - 6 -
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.




                              - 7 -
