McCauley denies retrial motion in assault case

A man convicted of assault in an altercation that ended with him being shot five times lost his motion for a new trial this week.

Daniel S. A. Holcomb was convicted of second-degree assault after an altercation in Hoquiam in February of 2011. He and another man, Anthony Sumait, went to talk to a man about a truck the man had for sale and allegedly attacked him with a sawed-off broom handle, leading the victim to shoot Holcomb. Sumait pleaded not guilty in the assault last week in Grays Harbor Superior Court. The victim of the broom handle attack had a concealed pistol permit and appeared to be acting in self-defense, authorities determined. Holcomb’s DNA was found on one end of the stick, and the victim’s on the other.

Holcomb complained soon after his trial that his attorney, Edward DeBray, denied his request to testify. After his conviction, his new attorney, David Arcuri, filed a motion for a new trial. Under state law, Holcomb needed to show that he had made a clear, unequivocal request to testify that was ignored, as well as that his failure to testify prejudiced the outcome of the trial.

In a Superior Court hearing this week on the motion for a new trial, Deputy Prosecutor Kraig Newman wanted to argue both portions of the criteria on the same day, whether Judge Mark McCauley agreed with the first portion or not, in order to help streamline the appeals process. After hearing Holcomb’s case laid out, however, Newman said he was comfortable not going into Holcomb’s potential testimony in detail because the failure of the argument on the first point seemed unlikely to be overturned. McCauley agreed.

Holcomb testified that on the first day of the trial, he passed DeBray a note on which he had written, “No assault” in large letters, followed by “I’m taking the stand,” in a smaller script. He said he believed DeBray had seen his request to testify because he looked at the paper twice. Arcuri argued that such an insistence qualified as an unequivocal request.

DeBray later found the note in his case files after Arcuri was assigned to the case and immediately sent a copy, but said in his cross examination by Newman that he was likely distracted by listening to testimony and said he only recalled seeing “not assault” on the paper.

Both DeBray and Holcomb said in their testimonies that their agreement through most of the trial was to avoid Holcomb’s testimony because DeBray was worried his client would not be able to maintain his composure.

Although Holcomb passed his note the first day of the trial, on the second day of the trial, DeBray said, “He was in agreement with me that he didn’t have to testify.”

Holcomb didn’t dispute DeBray’s recollection, and that was the main fact McCauley cited in his ruling against a new trial. Sentencing is scheduled for June 18.