State of Washington v. Warren J. Pittman ( 2024 )

FILED
FEBRUARY 1, 2024
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 39171-0-III
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
WARREN J. PITTMAN, )
)
Appellant. )
FEARING, C.J. — Warren Pittman challenges his convictions for rape, robbery,
kidnapping, criminal impersonation of a police officer, taking a motor vehicle without
permission, and malicious mischief. He claims the trial court violated his speedy trial
right and erred when failing to appoint new counsel for him after his convictions. We
affirm.
FACTS
The procedure during the prosecution bears more relevance to the appeal than the
underlying facts of the crime. Therefore, we abbreviate the facts.
The charges against Warren Pittman arose from his conduct during a series of
events involving T.F. On April 18, 2021, as T.F. exited her grandmother’s home, she
saw a red Dodge Charger drive by the residence. T.F. entered her own vehicle and drove
to a nearby gas station. The red Charger also entered the station. A male unknown to
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T.F. and later identified as Warren Pittman exited the Charger. Another male, later
identified as Daniel Martinez aka Luis Carrera, sat in the Charger.
Warren Pittman unsuccessfully flirted with T.F. inside the station store. As T.F.
returned to her car, Pittman approached her, lifted his shirt, and displayed a knife and
firearm. Pittman claimed he was a police officer and flashed “something” in his wallet to
her. 1 Report of Proceedings (1 RP) at 105. Pittman told T.F. that someone was “after”
her and he would protect her. 1 RP at 103.
As T.F. attempted to walk away, Warren Pittman seized and destroyed T.F.’s cell
phone. Pittman inquired whether T.F. had any illegal items or firearms. T.F. responded
that she carried a small pistol in her handbag. Pittman seized the bag from her.
Warren Pittman forced T.F. into her vehicle and seized her keys against her will.
Pittman drove the vehicle to a nearby motel. During this trip, Pittman cautioned T.F. not
to run or else he would injure her or her family. At the motel, Pittman tied T.F. to a bed
and gagged her. T.F. noticed Luis Carrera initially in the room but Carrera left after
Pittman asked him to excuse himself.
Warren Pittman untied T.F. from the bed and took her to a ubiquitous Wal-Mart.
T.F. did not flee or request help while at the Wal-Mart store for fear Pittman would kill
her or her family.
After T.F. and Warren Pittman returned to the motel, T.F. showered as instructed
by Pittman. Pittman placed his knife and firearm on a table behind the bed and
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threatened to employ the weapon against T.F. if she did not cooperate. Pittman stripped
to his underwear, massaged T.F., and inserted his fingers inside T.F.’s vagina and anus.
Pittman rejected T.F.’s entreaties to stop. After Pittman ended the penetration, he went to
sleep on the motel bed. T.F. got dressed and slept on the same bed, while Luis Carrera
slept on the second bed in the room. With Pittman asleep, T.F. wrote a note on a motel
room pad and slipped the note between the shower curtain and the tub in the bathroom.
The note read:
Help me. I’ve been kidnapped. I’m [T.F.]. We are in my car.
9-1-1.
1 RP at 134.
When Warren Pittman awoke, Pittman, T.F., and Luis Carrera moved to a second
motel. They drove in T.F.’s car. While in the motel room, a police officer called
Pittman. Shortly thereafter, law enforcement officers appeared at the motel room and
arrested Pittman.
PROCEDURE
The State of Washington charged Warren Pittman with first degree rape, first
degree robbery, first degree kidnapping, first degree criminal impersonation of a police
officer, second degree taking a motor vehicle without permission, and third degree
malicious mischief. The superior court arraigned Pittman on March 1, 2022 and then
scheduled trial to begin April 25, 2022.
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During an April 4, 2022 trial readiness hearing, defense counsel announced he
would not be ready to proceed to trial on April 25. Warren Pittman approved of a trial
continuance. The superior court rescheduled the trial to begin on May 23, with a trial
readiness date of May 2, 2022.
During the May 2, 2022 trial readiness hearing, substitute defense counsel for
Warren Pittman announced that lead defense counsel had not instructed him to agree to a
May 23 trial date. Nevertheless, Pittman personally objected to a trial continuance. After
Pittman’s objection, substitute defense counsel asked the superior court to retain the May
23 trial date with the anticipation that defense counsel might later file a motion for a
continuance. The court commented: “So I’m indicating defense to file a motion.”
RP (May 2, 2022) at 6. The court added: “I have not noted this as ready because on the
record [sic], so I’ll leave it to defense to file a motion.” RP (May 2, 2022 at 7).
On some unknown date after May 2, defense counsel asked the State to schedule
witness interviews for May 11, 2022. The State responded that it could not schedule
interviews before the scheduled trial date of May 23, 2022.
Defense counsel did not file a motion to continue the May 23 trial date. On May
16, 2022, the State moved to continue the trial date until June 13, 2022, because of a
scheduling conflict for the assigned prosecutor.
On May 19, 2023, the superior court considered the State’s motion to continue the
May 23 trial date. With the assigned prosecutor in trial, the covering State’s attorney
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commented that the prosecutor was not available for a May 23 trial date. Substitute
State’s counsel added that the lead defense attorney needed more time to interview
witnesses. The State’s attorney added that Warren Pittman objected to a continuance.
During the May 19 hearing, the superior court asked if Warren Pittman’s assigned
counsel would be ready for a May 23 trial. RP (May 19, 2022) at 6. The following
exchange occurred:
THE COURT: Is the defense ready on the current date?
[DEFENSE COUNSEL]: The only notes I have from [assigned
counsel] Ms. Wasilewski, Your Honor, is that she needs the interview set
up with the alleged victim; it didn’t say one way or the other.
THE COURT: Can you identify any prejudice the continuance
would cause?
[DEFENSE COUNSEL]: I mean, I cannot,
Your Honor; however, Mr. Pittman is in custody.
THE COURT: Very well. Thank you. The Court will grant a good
cause continuance. There is a finding by the Court that the continuance is
necessary in the administration of justice; neither side is ready for trial at
this time. There’s only been one prior agreed continuance that was jointly
agreed by the parties, so I will grant the continuance.
[The assigned prosecutor] is unavailable for trial due to being in
another trial, and additional work needs to be done on the defense side, and
[the defense] needs to conduct an interview, and she would not be prepared
or adequately prepared on the current date.
RP (May 19, 2022) at 9.
The superior court then postponed the May 23 trial date until June 13, 2022 and
scheduled a readiness hearing for May 31, 2022. The court’s written order reads that
defense counsel needed to interview the victim, the deputy prosecuting attorney needed
to conduct another trial, and the continuance was the second continuance. On the
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signature line for Warren Pittman on the order of continuance, Pittman wrote “objects on
the record.” Clerk’s Papers (CP) at 28.
On June 9, 2022, the superior court heard another motion by the State for a trial
continuance. The State sought postponement of the June 13 trial date due to the
unavailability of the lead detective. Both defense counsel and Warren Pittman objected.
The superior court found good cause to continue because of the unavailability of the
material witness, who the State planned to have sit at counsel table during trial. The
court scheduled a June 27 trial date.
During the June 9 motion hearing, defense counsel stated that Warren Pittman
may wish to address the court about the continuance. The superior court cautioned
Pittman about speaking and informed Pittman that his objection was already placed on
the record. Pittman then declined to speak.
For reasons outside of the record, trial ultimately began on July 12, 2022. On July
21, the jury found Warren Pittman guilty of all six charges. The superior court scheduled
sentencing for September 2 in order to afford time for the preparation of a presentence
report as required due to the rape conviction.
On August 11, 2022, Warren Pittman directed his defense counsel to seek
permission for Pittman to represent himself. On August 15, 2022, Pittman, through
counsel, filed a motion for permission to proceed pro se.
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On August 31, 2022, the trial court entertained the motion to proceed pro se.
Warren Pittman personally addressed the court. The court mentioned receiving, on
August 29, an undated, unfiled handwritten letter from Pittman. In the letter, Pittman
requested a retrial. He claimed his counsel advised him that he did not qualify for a new
trial, but Pittman disagreed with his counsel. The letter listed the following grievances:
• Ineffective assistance of counsel
• Failure to give a lesser charge to the jury
• Failure to question the jury on the reason for its verdict
• Constitutional violations by Prosecutor Dale Nagy
Warren Pittman ended his letter to the superior court: “How do I put in a motion for
retrial & how I get my attorney fired and move over to counsel for defense.” CP at 141.
During the August 31 hearing, the trial court remarked:
THE COURT: I guess I want to kind of focus on whether or not
you—(1) we haven’t finished yet, because usually we finish the case, and
then if there is a motion for a new trial, it has to be a basis that fits under
the motion for a new trial. Ineffective assistance of counsel, failure to give
a lesser included, they don’t have to talk to the jury because they can’t
question the jury about their verdict. They can ask how did I do, what
could I have done better, those kind of things, but they can’t say, Why did
you find this, and those kind of questions, I guess.
But those would be appellate issues for an appellate attorney to
independently look at the record and decide is there a basis for an
ineffective assistance of counsel, is there a basis for a lesser included.
Those are things I normally see on appeals all the time.
As far as a new trial, if there’s a procedural issue that was missed—I
didn’t see it in the letter that you sent me. So if your attorney’s saying, I’m
not going to file for a new trial because there is no legal basis to i[t], those
you all take up with the Court of Appeals.
1 RP at 410-11.
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The superior court assured Warren Pittman that he could get new counsel
appointed for an appeal if he satisfied the financial standards. The court redirected
Warren Pittman’s attention to his upcoming sentencing:
As far as right now, for the purposes of sentencing—because that’s
all I see you right now at this point—you have a choice to represent
yourself, you can hire your own attorney if you want. But at this point, all
the stuff that you’re arguing is not good reason to basically remove them
for sentencing purposes.
1 RP at 413.
During the August 31 hearing, Warren Pittman retorted: “I was looking for more
of a retrial”. 1 RP at 413. The superior court repeated that Pittman needed to ask for a
new trial during any appeal and reminded Pittman that his pending motion sought
permission to proceed pro se. Pittman decided to keep current counsel for purposes of
sentencing. The court entered an order denying Pittman’s request to proceed pro se.
The superior court conducted sentencing on September 6, 2022. Warren Pittman
requested leniency. He praised the superior court judge, but criticized the evidence, the
jury, the court system, and the violation of his constitutional rights. The court sentenced
Pittman to 280 months.
LAW AND ANALYSIS
On appeal, Warren Pittman complains that the trial court violated his speedy trial
rights by granting trial continuances without good cause. He also assigns error to the
superior court’s purported refusal to appoint him new counsel to file a motion for a new
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trial. He contends that his counsel at the time harbored a conflict of interest because
grounds for a new trial included ineffective assistance of counsel at trial.
Trial Continuances
Warren Pittman challenges the trial court’s May 19, 2022 order continuing his
trial. CrR 3.3 governs a defendant’s right to be brought to trial in a timely manner.
CrR 3.3(b)(1) and (c)(1) provide that a defendant detained in jail must be brought to trial
within sixty days of arraignment. A charge not brought to trial within the time limits of
CrR 3.3 generally must be dismissed with prejudice. CrR 3.3(h).
When any period of time is excluded from the speedy trial period under CrR
3.3(e), the speedy trial period extends to at least “30 days after the end of that excluded
period.” CrR 3.3(b)(5). Excluded periods under CrR 3.3(e) include delays “granted by
the court pursuant to section (f).” CrR 3.3(e)(3). A court may grant a continuance when
a continuance “is required in the administration of justice and the defendant will not be
prejudiced in the presentation of his or her defense.” CrR 3.3(f)(1), (2).
A decision to grant or deny a motion for a continuance is within the discretion of
the trial court and will not be disturbed absent an abuse of discretion. State v. Ollivier,
178 Wn.2d 813, 822-23, 312 P.3d 1 (2013). We will not second guess the superior
court’s discretion when granting a continuance for good cause. State v. Flinn, 154 Wn.2d
193, 201, 110 P.3d 748 (2005). A court abuses its discretion if its decision is manifestly
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unreasonable, based on untenable grounds, or based on untenable reasons. State v.
Kenyon, 167 Wn.2d 130, 135, 216 P.3d 1024 (2009).
On Warren Pittman’s March 1, 2022 arraignment, the superior court scheduled a
trial date of April 25, 2022. On April 4, 2022, the trial court granted defense counsel’s
request for a continuance to May 23, 2022. This continuance extended the speedy trial
deadline to June 22, 2022.
At the readiness hearing on May 2, 2022, Warren Pittman objected to a
continuance of the May 23 trial setting. Because substitute defense counsel declined to
announce the case ready for trial, the superior court instructed defense counsel to file a
motion to continue the trial date.
When the defense failed to file a motion, the State filed a motion to continue the
May 23 trial date. At the May 19, 2022 hearing on the motion, the defense counsel
expressed a desire to interview a witness. The trial court ordered the continuance over
Pittman’s objection. The trial court found two circumstances that justified postponement
of the May 23 date: (1) defense counsel’s representation that more time was needed to
interview the alleged victim and (2) the prosecutor’s unavailability.
Warren Pittman complains that the superior court granted the trial continuance for
defense counsel to interview witnesses when neither Pittman nor his attorney asked for a
trial continuance. The State responds that the superior court may continue a trial when
defense counsel declines to agree to readiness for trial. The State also contends Pittman
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invited any error. We need not address the validity of this contention because the need
for one or more interviews did not comprise the sole basis for the continuance.
The State also sought the trial continuance because of its lead counsel’s
unavailability. On appeal, Warren Pittman assigns error to the superior court’s failure to
explore the likelihood of counsel’s other trial occurring or the possibility of another
counsel substituting for lead counsel at trial. We disagree.
Warren Pittman cites no decision that demands that the superior court explore the
likelihood of a conflicting trial happening. From experience as attorneys and trial court
judges, we know that courts do not know in advance the likelihood of trials occurring and
many trials are postponed the day before or even the first day of trial. By the time the
State might know if its lead counsel’s other trial did not proceed, lead counsel, who had
prepared for the other trial, would not be prepared for Pittman’s trial.
Warren Pittman faults the superior court for failing to inquire whether a different
prosecutor could proceed to trial. Nevertheless, the court may consider scheduling
conflicts when granting continuances. CrR 3.3(f). Even a prosecutor’s responsibly
scheduled vacation is a valid basis for granting a continuance. State v. Torres, 111 Wn.
App. 323, 331, 44 P.3d 903 (2002). The superior court need not demand that the State
reassign another counsel to try a prosecution. State v. Heredia-Juarez, 119 Wn. App.
150, 154-55 79 P.3d 987 (2003). Lead counsel generally possesses the greatest
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familiarity with the facts behind the prosecution, which may benefit trial fairness and
efficiency.
Warren Pittman forwards State v. Kelley, 64 Wn. App. 755, 828 P.2d 1106 (1992).
He maintains that Kelley directs the superior court to reassign a prosecution to the next
most available deputy prosecutor. Kelley involved a prosecutor’s vacation schedule. The
court wrote:
Fairness in administration and effective justice requires that
responsibly scheduled vacations of deputy prosecutors be honored by the
State. To construe CrR 3.3 otherwise would be to deprive deputy
prosecutors of the dignity they deserve, and would result eventually, in less
effective justice as well as in unfairness in the administration of justice.
This is not to say that the State has no responsibility to reassign a
vacationing deputy’s cases to the next most available deputy, and to control
the schedule of vacations in such a manner as to minimize the need to
reassign cases. Such clearly is required and such clearly was done here.
State v. Kelley, 64 Wn. App. 755, 767 (1992).
The ruling in State v. Kelley sends a mixed message about continuances because of
a lead prosecutor’s vacation. Nevertheless, the State’s attorney in Warren Pittman’s
prosecution did not seek a continuance because of a vacation, but because of another trial
conflict. Also, the State charged Joseph Kelley with one count of second degree
burglary, the complexity of which softens in comparison with Pittman’s six-count
prosecution.
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Substitute Counsel
Warren Pittman next assigns error to the superior court denying his request for a
conflict-free counsel to assist with filing a motion for a new trial on grounds of
ineffective assistance of trial counsel. We decline to address this contention because
Pittman never asked the court for substitute counsel. Instead, he asked to represent
himself. He withdrew this request at the hearing on his motion. As a general rule,
appellate courts will not consider issues raised for the first time on appeal. RAP 2.5(a).
Statement of Additional Grounds
In his statement of additional grounds, Warren Pittman complains about the
introduction of evidence and the superior court’s response to a jury question during its
deliberations. During trial, Pittman raised no objection to the evidence or the trial court’s
response to the question. As a general rule, appellate courts will not consider issues
raised for the first time on appeal. RAP 2.5(a).
In his statement, Warren Pittman cites a number of cases that he claims conflicts
with his conviction. He never tendered the cases to the superior court.
CONCLUSION
We affirm Warren Pittman’s convictions.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, C.J.
WE CONCUR:
______________________________
Lawrence-Berrey, J.
______________________________
Cooney, J.
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