Warnick v. Commonwealth

• Decision Date: 07 July 2020
• Docket Number: Record No. 0616-19-4
• Citation: 72 Va.App. 251,844 S.E.2d 414
• Parties: Timothy WARNICK, s/k/a Timothy William Warnick v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

72 Va.App. 251

844 S.E.2d 414

Timothy WARNICK, s/k/a Timothy William Warnick

v.COMMONWEALTH of Virginia

Record No. 0616-19-4

Court of Appeals of Virginia.

JULY 7, 2020

Renee Berard (Alex Levay Attorney, P.L.L.C.), Leesburg, and Kelly L. King (Law Office of Kelly L. King, PLLC), for appellant.

Liam A. Curry, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judge Humphreys, and Senior Judge Annunziata

OPINION BY JUDGE ROBERT J. HUMPHREYS

On June 13, 2016, a grand jury in the Circuit Court of Loudoun County ("circuit court") indicted appellant Timothy Warnick ("Warnick") for two counts of first-degree murder, in violation of Code § 18.2-32 and one count of robbery, in violation of Code § 18.2-58. The indictments alleged that Warnick committed these crimes on September 30, 1988. On April 26, 2018, a jury found Warnick guilty of both first-degree murder and robbery.

On appeal, Warnick assigns the following six errors:

I. The trial court erred by violating Appellant's constitutional right to due process and a fair trial by preventing the introduction of evidence pertaining to third-party guilt.

II. The trial court erred by violating Appellant's constitutional right to confrontation by applying only the Ramsey analysis and denying Appellant the ability to cross-examine law enforcement witnesses regarding the completeness and credibility of their investigation.

III. The trial court erred in denying Appellant's motion for mistrial and violated Appellant's constitutional rights to due process of law and a fair trial by permitting Commonwealth witness Tina Thompson to testify that Appellant rapes women.

IV. The trial court erred by admitting material impeachment evidence that had not been timely disclosed by the Commonwealth in violation of Brady v. Maryland.

V. The trial court erred by ruling that alleged hearsay within hearsay statements made by deceased Ellard "Bunk" Jackson were admissible under Virginia Rule of Evidence 2:804(b)(3)(B).

VI. The trial court erred by denying Appellant's Motion to Dismiss in violation of his Fifth Amendment right to due process when the case was nearly 30 years old, a number of witnesses were deceased, evidence was lost, and no part of the delay was attributed to Appellant.

I. BACKGROUND

On September 30, 1988, Henry Eric Ryan ("Ricky")¹ went to a party at the Shenandoah River and did not return home. His family reported him missing a few days later, on October 5, 1988.

On the day of Ricky's disappearance, Warnick had been incarcerated at Jefferson County Jail in West Virginia. Upon his release that afternoon, Warnick went to a party at the Shenandoah River—the same river party at which Ricky was present. There were about forty people at the river party.

While everyone was "hanging out," Ricky handled cash and drugs in Warnick's presence. At some point, a group of five people, including Warnick and Ricky, went on a "beer run" to a place called Kim's Market. After purchasing a case of beer, the entire group returned to the river at dusk. Then, Ricky, Warnick, and an unknown man went on a second "beer run" to the Sweet Springs store in Virginia. Ricky did not return to the river from this second trip. When Warnick and the unknown man returned, they were both "dirty." It looked like Warnick "rolled around outside in the dirt."

On March 14, 1989, Ricky's body was discovered inside a "perc test pit" off of Route 9 in Loudoun County, Virginia. Almost the entire body was covered with dirt. After police uncovered the body, they discovered a prescription pill bottle containing Warnick's name² "crushed in [the body's] hand." There was no cash in Ricky's wallet or on his body, nor were there any narcotics on or near the body. It was later determined that Ricky died of blunt force trauma to the head

, which was caused by "[s]ome type of blunt instrument," rather than by someone's hand.

Approximately twenty-seven years after the body was found, on June 13, 2016, a grand jury indicted Warnick for first-degree murder and robbery. On March 8, 2017, Warnick filed a motion to dismiss based on a violation of his due process rights because of the pre-indictment delay.

On May 30, 2017, the circuit court held a hearing on Warnick's motion to dismiss based on a violation of his "Fifth Amendment due process" rights. Detective Jay Merchant ("Detective Merchant"), who performed part of the investigation into Ricky's murder, testified that he did not intentionally wait until anyone died in order to charge Warnick. Instead, no one was arrested right away because there was not enough evidence for a conviction, even though police "may have known" who committed the crime. At the time, police did not have evidence of Warnick's confession to several others including his son, Mike Long ("Long").

Detective Steven Schochet ("Detective Schochet"), who investigated the case from 2015 until Warnick was charged, testified that in June of 2016, police and prosecutors determined that there was finally enough evidence to present to a grand jury. He testified that between December and June, witnesses were no longer afraid of Warnick and became willing to testify. During this time frame, police also discovered new evidence about Warnick confessing to various people. Some potential witnesses had died by the time Warnick was charged. Detective Schochet testified that "a number" of those witnesses had information that he felt could have helped the Commonwealth and from whom information could no longer be obtained.

After hearing the evidence, the circuit court found that any lost testimony from witnesses now deceased only amounted to possible prejudice to Warnick, rather than actual prejudice, as required by law to dismiss the charges. The court also found that Warnick had failed to show that the Commonwealth's delay in indicting him was intentional "in order to gain a tactical advantage." The court denied Warnick's motion to dismiss the indictment.

On April 18, 2018, the third day of trial, the Commonwealth moved to exclude certain questions by defense counsel to police witnesses regarding following up on other leads because the questions were not relevant evidence of third-party guilt under this Court's holding in Ramsey v. Commonwealth, 63 Va. App. 341, 757 S.E.2d 576 (2014). During the parties’ argument on the motion, the circuit court narrowed the issue, stating that the number of leads or information possessed by police was not "really the issue ... but whether that information fits within the guidance of Ramsey." In ruling, the circuit court clearly specified that it was "only making [its] rulings on ... third-party guilt," and ruled that the evidence of third-party guilt was inadmissible.

Later, on direct examination, Tina Thompson ("Thompson") testified before the jury that she was friends with Ricky and was present at the river party on September 30. She testified that she had given birth to her baby before the party, in August of 1988. When asked whether Warnick ever spoke to her about Ricky's disappearance, Thompson stated that Warnick told her "that if [she] went to the cops or if [she] told anybody what [she] knew, that [she] was going to wind up like Ricky." However, she did not know what happened to Ricky at that point.

On cross-examination, after a relevance objection by the Commonwealth, defense counsel told the court that Thompson had previously informed police that she was pregnant when she last saw Ricky. Defense counsel argued that the Commonwealth violated a prior court order requiring the Commonwealth to disclose inconsistent statements by its witnesses, because the Commonwealth did not disclose that Thompson would testify that she was not pregnant when Ricky disappeared. Defense counsel also argued that the Commonwealth violated its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, to disclose Thompson's inconsistent statement. The circuit court ruled that Warnick had the information in time to cross-examine Thompson with it. Defense counsel proceeded to cross-examine Thompson regarding her inconsistent statements about her pregnancy.

Defense counsel also questioned Thompson about a different inconsistent statement Thompson had given. Thompson responded, "Again, ma'am, I changed my story multiple times. I am petrified of this man. Okay? You don't know what this man has put people through. I seen [sic] this man throw people in the river, rape women." Warnick objected and asked that the testimony be stricken.

At sidebar, the circuit court ruled that Thompson was allowed to explain her inconsistent statement under Rule 2:613 of the Virginia Rules of Evidence. It found that the "door" to such testimony had been opened, and that when Thompson admitted to making inconsistent statements, she was allowed to explain why she did so. Defense counsel responded, "I think that the [c]ourt needs to give the jury a limiting instruction that they cannot consider anything that she is saying for the truth of the matter." The circuit court responded that it would instruct the jury "that Ms. Thompson's statements as to why she has acknowledged giving other statements to investigators is offered as an explanation as to why she's done it." Warnick instead elected to move for a mistrial in response to the court's ruling, and the circuit court denied the motion for a mistrial. Warnick then resumed cross-examination before the jury without renewing his request for a limiting instruction.

Next, Detective Merchant testified before the jury. On cross-examination, Warnick questioned Detective Merchant about what information was released to the public in the course of his investigation and about his interviews with Warnick.

Throughout the remainder of the trial, several witnesses testified as to incriminating statements made by Warnick. One witness testified that Warnick told her, "I killed a guy.... I robbed him for his money and his drugs. I...