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. 
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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, 

 

 1Mohammad 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.