Killing conviction upheld despite delay- Fairfax criminal lawyer weighs in

Killing conviction in Northern Virginia is upheld after being in cold case file- Fairfax criminal lawyer addresses evidentiary & procedural issues

Killing convictions can be an extra challenge to obtain for prosecutors, because the victim is never available to testify in court. As a Fairfax criminal lawyer, I find this week’s Warnick v. Virginia appellate opinion affirming a Northern Virginia murder and robbery conviction to be instructive for criminal defense lawyers on several critical areas of Virginia evidentiary and procedural law. Warnick v. Commonwealth,  ___ Va. App. ___ (July 7, 2020).

Warnick could have avoided a killing conviction had he clammed up

Keeping quiet about a harmful personal secret can be excruciatingly painful for a person, particularly when the person wants to flex some verbal muscle. Had Warnick simply kept his mouth shut about this killing, it is doubtful that he ever would have been prosecuted and convicted. In fact, police said that he finally got prosecuted when witnesses started being willing to come forward against him.

Henry Eric “Ricky” Ryan was killed so long ago, in 1988, that few civilians probably expected a killing trial against Ryan. However, with some previously-reluctant witnesses ultimately being willing to come forward, prosecutors obtained an indictment against Timothy Warnick in 2016, which was 28 years after Ryan was killed. A jury convicted Warnick for first degree murder and robbery of Ryan. Warnick. 

The evidentiary allegations against Wernick were that he saw Ryan handling drugs and money at a party, During what was purportedly a beer run, and Wernick hit Ryan on the head with a crowbar, killing him (according the hearsay statement against a deceased witness’s personal interest). Additionally, according to Wernick’s son, Wernick reported that he intended to rob but not kill Ryan. Warnick “‘said he hit [Ricky]. And, when he hit him, he realized he had gone too far . . . he had to finish him off and said he hit him a couple more times.’”  Warnick. 

Attacking delays in instituting a prosecution

Virginia has no statute of limitations/deadline to initiate a murder or other felony prosecution. Following is the law on challenging pre-indictment delay by the prosecution in this killing case:  “’In cases of pre-indictment delay, the issue is whether the accused was denied due process as a result of the delay.” Hall v. Commonwealth, 8 Va. App. 526, 529 (1989). ‘Due process principles bar a prosecution for pre[-]indictment delay only when the “defendant incurred actual prejudice as a result of the delay” and the “prosecutor intentionally delayed indicting the defendant to gain a tactical advantage.”‘ Anderson v. Commonwealth, 48 Va. App. 704, 712 (2006) (quoting Morrisette v. Commonwealth, 264 Va. 386, 393 (2002)). Warnick must show both (1) ‘actual prejudice’ and (2) ‘improper purpose.’ Id. (quoting Morrisette, 264 Va. at 393).” Warnick.

In denying relief for the delayed prosecution in this killing case, Warnick says: “Warnick has failed to satisfy his burden to show both actual prejudice and the Commonwealth’s intentional delay for an improper purpose. Although Warnick mentions thirteen relevant witnesses who died because of the delay, he fails to state with any specificity what information these witnesses possessed that would have been helpful to his case. The record also contains evidence that several of those deceased witnesses had information that may have been helpful to the Commonwealth. Additionally, there was no evidence that the delay was intentional on the part of the Commonwealth to obtain a tactical advantage. The record reflects that the only reason for any delay was a lack of evidence because witnesses initially refused to testify because of their fear of Warnick.” Warnick.

Evidentiary issues in Warnick

Warnick also is notable for having key hearsay and other evidentiary issues in this killing case, one involving a critical statement by a deceased man that Warnick had admitted to killing Ryan (okayed on appeal), and another by a prosecution witness permitted to explain that her prior inconsistent statement stemmed out of her fear of Warnick’s prior crimes (also okayed on appeal). A future blog entry will address those criminal procedure issues.

Virginia criminal lawyer Jonathan L. Katz fights felony, misdemeanor and DUI prosecutions in Fairfax County, Loudoun, Prince William and beyond. Call 703-383-1100 to schedule a free in-person confidential consultation with Jon Katz about your court-pending criminal or DWI case.