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VINAY KESHAVAN BHARADWAJ, j UNPUBLISHED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 Oct. 27, 2014) (unpublished), http://www.courts.wa.gov/opinions/pdf/694537.pdf.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*_ /