Walter Eddie McComb v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01376-COA
WALTER EDDIE MCCOMB A/K/A JOHNNY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
7/16/2007
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
WALTER EDDIE MCCOMB (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF IS
DENIED.
AFFIRMED - 7/22/2008
BEFORE MYERS, P.J., CHANDLER AND BARNES, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Walter Eddie McComb pleaded guilty to Count I, felony domestic violence - aggravated
assault and Count II, aggravated assault by use of a deadly weapon. McComb was sentenced as a
habitual offender and was thus sentenced pursuant to Mississippi Code Annotated section 99-19-81
(Rev. 2007) to serve fifteen years on Count I and fifteen years on Count II, with the sentence in each
count to run concurrent to one another for a total of fifteen years, to be served day for day. McComb
now seeks post-conviction relief, raising the following assignments of error: (1) whether he received
ineffective assistance of counsel, (2) whether the indictment was defective, and (3) whether the
circuit court erred in finding that his guilty plea was voluntary.
FACTS AND PROCEDURAL HISTORY
¶2.
McComb was indicted and subsequently pleaded guilty to both Count I, felony domestic
violence - aggravated assault, and Count II, aggravated assault by use of a deadly weapon. McComb
was sentenced on each count to serve fifteen years, day for day, as a habitual offender pursuant to
Mississippi Code Annotated section 99-19-81. The sentence in Count I was ordered to run
concurrently with the sentence in Count II. McComb later sought to have his guilty plea vacated,
but the circuit court denied McComb’s post-conviction motion, finding it was without merit. It is
from this judgment that McComb now appeals.
STANDARD OF REVIEW
¶3.
“A trial court’s denial of post-conviction relief will not be reversed absent a finding that the
trial court’s decision was clearly erroneous; however, questions of law are reviewed de novo.”
Caston v. State, 949 So. 2d 852, 854 (¶4) (Miss. Ct. App. 2007) (citing Buck v. State, 838 So. 2d
256, 258 (¶6) (Miss. 2003)).
DISCUSSION
I.
¶4.
WHETHER MCCOMB RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL.
“Claims of ineffective assistance of counsel are reviewed by using the two-pronged test of
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).” Moreno
v. State, 967 So. 2d 701, 703 (¶4) (Miss. Ct. App. 2007). To demonstrate a valid claim for
ineffective assistance of counsel, the proponent of the motion for post-conviction relief must “show
by a preponderance of the evidence that (1) counsel’s performance was deficient, and (2) that the
deficiency did, in fact, prejudice the defendant.” Id. (citing Strickland, 466 U.S. at 687). In
determining whether trial counsel’s performance was deficient, this Court shall “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional assistance
2
. . . .” Id. (quoting Strickland, 466 U.S. at 689). In addition, it must be shown that “there was a
reasonable probability, that but for counsel’s errors, the trial court’s result would have been
different.” Id. (citing Strickland, 466 U.S. at 694).
¶5.
McComb argues that he received ineffective assistance of counsel. McComb argues that his
attorney should have presented a theory of self-defense in response to the charges against him.
McComb argues that his attorney could have shown that he had no intent to harm anyone and that
the firing of the gun was done only in self-defense. McComb also argues that his counsel should
have objected to the defective indictment. McComb contends that he received ineffective assistance
of counsel in light of counsel’s advice to plead guilty to avoid trial and a significantly longer
sentence.
¶6.
The State argues that McComb’s attorney did not err by failing to object to the indictment
because it was not defective. The State also argues that McComb’s guilty plea waived any defenses
he might have had to the charge and also waived his right to a trial. The State also contends that the
advice given to McComb by his counsel was sound. The State further argues that McComb’s claims
are manifestly without merit. The State concludes that McComb has shown no actual prejudice, and
his trial counsel’s performance was not deficient.
¶7.
In order for McComb to prevail, he must show that “(1) [his] counsel’s performance was
deficient, and (2) that the deficiency did, in fact, prejudice [his defense].” Moreno, 967 So. 2d at
703 (¶4) (citing Strickland, 466 U.S. at 687). From this Court’s review of the record, McComb has
failed to demonstrate that his trial counsel’s performance was deficient, and therefore, he has not
shown any actual prejudice to his defense as a result of any deficiency. McComb chose to plead
guilty to the charge on advice from counsel that he faced a much longer sentence if he were to
proceed to trial and was found guilty. This assignment of error is without merit.
3
II.
¶8.
WHETHER THE INDICTMENT WAS DEFECTIVE.
To determine whether an indictment is sufficient on post-conviction review, “the indictment
[must] include the seven enumerated items of Rule 7.06 and provide the defendant with actual notice
of the crime charged . . . .” Caston, 949 So. 2d at 856 (¶9). Uniform Rule of Circuit and County
Court 7.06 provides:
The indictment upon which the defendant is to be tried shall be a plain, concise and
definite written statement of the essential facts constituting the offense charged and
shall fully notify the defendant of the nature and cause of the accusation. Formal and
technical words are not necessary in an indictment, if the offense can be substantially
described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the
authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was
alleged to have been committed. Failure to state the correct date shall
not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
¶9.
The indictment McComb finds errors with on appeal reads as follows:
The State of Mississippi, Circuit Court March Term, A.D., 2003
First Judicial District, Harrison County
No. B2401-2003-478
Count I
The Grand Jurors of the State of Mississippi, taken from the body of the good and
lawful citizens of the First Judicial District of Harrison County, duly elected,
empaneled, sworn and charged to inquire in and for the said State, County, and
District, at the Term of Court aforesaid, in the name and by the authority of the State
of Mississippi, upon their oaths present that Walter Eddie McComb in the First
Judicial District of Harrison County, Mississippi, on or about March 2, 2003, did
4
unlawfully, feloniously, purposely or knowingly cause bodily injury with a deadly
weapon, to-wit: a handgun to Debra Joanne McComb, who was at the said time: a
current spouse of Walter Eddie McComb, by striking her with a handgun, contrary
to the form of the statute in such cases made and provided, and against the peace and
dignity of the State of Mississippi.
Count II:
As part of the same common scheme or plan that: Walter Eddie McComb in the First
Judicial District of Harrison County, Mississippi, on or about March 3, 2003, did
unlawfully, feloniously, wilfully and knowingly cause bodily injury to Walter O.
Butler, with a deadly weapon, to-wit: a handgun, by shooting him with said weapon,
contrary to the form of the statute in such cases made and provided, and against the
peace and dignity of the State of Mississippi.
And we, the aforesaid GRAND JURORS, upon our oaths do further present, that he,
the said Walter Eddie McComb, is a habitual criminal who is subject to being
sentenced as such pursuant to Section 99-19-81, Miss. Code of 1972, as amended,
in that he, the said Walter Eddie McComb, has been convicted at least twice
previously of felonies or federal crimes upon charges separately brought and arising
out of separate incidents at different times and has been sentenced thereon to
separate terms of imprisonment of one year or more, to-wit: (1) on July 30, 1999, he,
the said Walter Eddie McComb, was convicted in the Common Pleas Court of
Montgomery County, Ohio, in Cause Number 99-CR-1830, of the felony of
Possession of Cocaine (1 to 5 grams) and on July 30, 1999, in said Court, was
sentenced to a term of five (5) years in the custody of the Ohio Department of
Corrections; and (2) On December 19, 2000, he, the said Walter Eddie McComb,
was convicted in the Common Pleas Court of Montgomery County, Ohio, in Cause
Number 00-CR-1658, of the felony of Attempt to Commit Theft, and, on December
19, 2000, in said Court, was sentenced to a term of three (3) years in the custody of
the Ohio Department of Corrections; and against the peace and dignity of the State
of Mississippi.
A TRUE BILL
Signature of the District Attorney and of the Foreman of the Grand Jury
Further, “[t]his Court’s pivotal consideration when considering the validity of an indictment on
appeal, ‘is whether the defendant was prejudiced in the preparation of his defense.’” Caston, 949
So. 2d at 858 (¶14) (quoting Wilson v. State, 815 So. 2d 439, 443 (¶11) (Miss. Ct. App. 2002)).
¶10.
McComb argues in his motion for post-conviction relief that the indictment is defective in
both Count I and II because it did not contain the “word ‘serious’ as a modifier for the phrase ‘bodily
5
injury’” which is the same argument this Court heard in Caston, 949 So. 2d at 855 (¶6). McComb
contends that the State failed to demonstrate his intent to cause “serious” bodily injury to either of
the victims. McComb also argues the indictment was flawed because it failed to contain the phrase
“other means likely to produce death.” McComb argues that the State was required to prove he
intended to cause serious bodily injury to his wife since he was charged under Mississippi Code
Annotated section 97-3-7(4) (Rev. 2006) for that assault. McComb also argues that he was
improperly sentenced as a habitual criminal under Mississippi Code Annotated section 99-19-81
because the portion of the indictment charging him as a habitual offender followed the conclusion
of the indictment.
¶11.
The State argues that mere bodily injury is enough to be convicted under both statutes since
a deadly weapon was used in the altercation. The State cites to Russell v. State, 924 So. 2d 604
(Miss. Ct. App. 2006) in support of its argument. The State argues that it is only required to prove
McComb intended to use a deadly weapon. The State additionally argues that McComb was
properly charged as a habitual offender since the indictment was a total of only two pages in length,
with “against the peace and dignity of the State of Mississippi” appearing after the habitual offender
language on page two of the indictment.
¶12.
Under Mississippi Code Annotated section 97-3-7(2)(b) (Rev. 2006), a person is guilty of
aggravated assault if he or she “attempts to cause or purposely or knowingly causes bodily injury
to another with a deadly weapon or other means likely to produce death or serious bodily harm.”
Additionally, under Mississippi Code Annotated section 97-3-7(4), “[a] person is guilty of
aggravated domestic violence who [sic] commits aggravated assault as described in subsection (2)
of this section against . . . a current or former spouse . . . .”
¶13.
This Court’s decision in Russell is relevant to the case at bar. Russell also argued that the
6
indictment was “defective because it did not charge that he intended to cause [the victim] serious
bodily injury.” Russell, 924 So. 2d at 607 (¶6). In that case, this Court found that “intent to cause
serious bodily injury is not an element of the crime of aggravated assault under section
97-3-7(2)(b).” Id. at 608 (¶9). “In order to meet its burden of proof, the State must prove beyond
a reasonable doubt that the defendant purposefully or knowingly caused or attempted to cause
‘bodily injury’ to another with a deadly weapon.” Id. at 608-09 (¶9). Finally, and most important,
“[t]here simply is no requirement that the State prove intent to cause serious bodily injury when the
defendant is charged pursuant to section 97-3-7(2)(b).” Id. at 609 (¶9). In this case, McComb used
a deadly weapon to strike his current spouse at that time and to shoot the other victim. Thus, it can
be said from the evidence and facts presented that the State showed intent to cause bodily injury with
a deadly weapon. Further, McComb pleaded guilty to both counts. Therefore, we find no error in
the language used in the indictment. Further, McComb was properly charged as a habitual offender,
and we find no merit to his argument that the indictment was defective since it contained the
language “against the peace and dignity” on both page one and page two. Therefore, this issue is
without merit.
III.
¶14.
WHETHER THE GUILTY PLEA WAS VOLUNTARY.
In determining the voluntariness of a guilty plea, “[t]his court will not set aside findings of
a trial court unless such findings are clearly erroneous.” Holland v. State, 956 So. 2d 322, 327 (¶11)
(Miss. Ct. App. 2007) (quoting Swindoll v. State, 859 So. 2d 1063, 1065 (¶9) (Miss. Ct. App. 2003)).
A guilty plea must be entered intelligently and voluntarily by a defendant in order to be valid. Id.
(citing Myers v. State, 583 So. 2d 174, 177 (Miss. 1991)). Further, this Court must determine
whether “the defendant was advised of the nature of the charge against him and the consequences
of pleading guilty.” Hall v. State, 906 So. 2d 34, 36 (¶5) (Miss. Ct. App. 2004) (citing Wilson v.
7
State, 577 So. 2d 394, 396-97 (Miss. 1991)). The inmate bears the burden of proof in establishing
that the guilty plea was not voluntary. Id. (citing Swindoll, 859 So. 2d at 1065 (¶10)).
¶15.
McComb argues that his plea was not voluntary because the indictment was fatally defective.
The State argues that McComb failed to meet his burden of proof in establishing that his guilty plea
was not entered voluntarily.
¶16.
The order of the circuit court reflected that: (1) McComb voluntarily and knowingly waived
his constitutional right to trial; (2) the plea of guilty was freely and voluntarily made; and (3)
McComb was guilty based upon the facts presented to the court; therefore, the court properly
adjudicated McComb guilty of both Count I and Count II. The circuit court’s order further reflected
that McComb was advised of the charges against him and the consequences of pleading guilty.
McComb has failed to establish that his guilty plea was not voluntary; therefore, we find that this
issue is without merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
