Reconsideration denied July 27, 2015.
Certiorari to the Court of Appeals of Georgia -- 326 Ga.App. 827.
Aimee R. Maxwell; Steven L. Sparger; Alissa L. Jones, for appellant.
Meg E. Heap, District Attorney, Stacey M. Goad, Nancy Grey R. Smith, Shalena C. Jones, Assistant District Attorneys; Samuel S. Olens, Attorney General, for appellee.
James C. Bonner, Jr., Brandon A. Bullard; Adam M. Hames, amici curiae.
BENHAM, Justice. All the Justices concur.
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 S.E.2d 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 S.E.2d 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. State 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 -- ...