      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2014-KA-00772-COA

JOSEPH SNOW SCHROTZ                                    APPELLANT

v.

STATE OF MISSISSIPPI                                    APPELLEE


DATE OF JUDGMENT:                03/19/2014
TRIAL JUDGE:                     HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:       HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:         OFFICE OF STATE PUBLIC DEFENDER
                                 BY: GEORGE T. HOLMES
                                 PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:           OFFICE OF THE ATTORNEY GENERAL
                                 BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:               JOEL SMITH
NATURE OF THE CASE:              CRIMINAL - FELONY
TRIAL COURT DISPOSITION:         CONVICTED OF MISDEMEANOR
                                 TRESPASS AND SENTENCED TO SIX
                                 MONTHS IN THE CUSTODY OF THE
                                 HARRISON COUNTY SHERIFF’S
                                 DEPARTMENT, AND FELONY FAILURE
                                 TO STOP A MOTOR VEHICLE, AND
                                 SENTENCED AS A HABITUAL OFFENDER
                                 TO FIVE YEARS IN THE CUSTODY OF
                                 THE MISSISSIPPI DEPARTMENT OF
                                 CORRECTIONS, WITHOUT THE
                                 POSSIBILITY OF PROBATION OR
                                 PAROLE, WITH THE SENTENCES TO RUN
                                 CONSECUTIVELY
DISPOSITION:                     AFFIRMED - 06/23/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE LEE, C.J., ISHEE AND CARLTON, JJ.

     LEE, C.J., FOR THE COURT:
                                PROCEDURAL HISTORY

¶1.    Joseph Snow Schrotz was convicted of felony failure to stop a motor vehicle pursuant

to the signal of a law-enforcement officer (felony failure to stop a motor vehicle) and willful

or malicious trespass (misdemeanor trespass). For the felony-failure-to-stop conviction,

Schrotz was sentenced as a habitual offender to five years in the custody of the Mississippi

Department of Corrections. For the misdemeanor trespass, Schrotz was sentenced to serve

six months in the custody of the Harrison County Sheriff’s Department. Both sentences were

ordered to be served consecutively. Schrotz filed post-trial motions, which were denied by

the trial court. Schrotz now appeals and asserts ineffective assistance of counsel.

                                           FACTS

¶2.    Around 11 a.m. on May 27, 2013, Harrison County Sheriff’s Deputy Brandon Hendry

was patrolling Interstate 10 when his license-plate reader alerted him that the 2009 white

Dodge Caliber he observed had been reported stolen. Deputy Hendry activated his lights and

siren and attempted to stop the vehicle. When the driver of the vehicle refused to stop, a

chase ensued, reaching speeds of up to 128 miles per hour. The driver of the vehicle ran stop

signs and swerved into the opposite lane. He passed vehicles when passing was prohibited,

and took curves at high rates of speed. Meanwhile, a number of Harrison County sheriff’s

deputies had constructed a roadblock with spike strips. When the driver of the vehicle saw

the roadblock, he slowed the vehicle, jumped out, and ran into the woods.

¶3.    During the course of the pursuit, Deputy Hendry had observed the driver manipulating

something in the front passenger seat. Concerned for his safety, he stopped his patrol car



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one-hundred yards behind the point at which the driver of the vehicle had jumped out, and

cautiously proceeded on foot. Knowing there was a canine team in the area that would be

used to search for the driver, Deputy Hendry stopped his pursuit at the edge of the woods to

avoid disturbing the driver’s scent. Deputy Hendry gave a description of the driver of the

vehicle as having a “slim build” and being “either [a] Hispanic male or [a] very light[-

]skinned African-American male [wearing a] light T-shirt [] and blue jeans.” Sergeant Bruce

Carver, who was behind Deputy Hendry for the duration of the car chase, also testified that

the driver was wearing dark pants and a “[l]ight[-]colored, white T-shirt.”

¶4.    The vehicle, which was still in gear, came to rest at a bridge. Three weapons were

found in the vehicle, including an AR-15. A manhunt ensued, involving over twenty

sheriff’s deputies and several canine teams. Residents in the area were apprised of the

situation and warned to keep the doors to their houses and vehicles locked.

¶5.    The next morning, around 10 or 11 a.m., while Sergeant Carver and Mississippi

Bureau of Narcotics Agent Brian Sullivan were waiting for a helicopter and four-wheelers

to arrive, resident Drew Smith approached and told Sergeant Carver that his home security

alarm had been triggered and asked him to come search his home. Smith had left some work

materials on the porch that morning, and had come home to retrieve them. The alarm was

a silent alarm. He could see through the window of his front door that the light on the

security alarm key pad was blinking, which meant the alarm had been triggered. Sergeant

Carver, Agent Sullivan, and Smith walked around the house, checking the windows and

doors for signs of a break-in. Unable to find a breached point of entry, Sergeant Carver and



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Smith entered the home. Agent Sullivan remained outside.

¶6.    Sergeant Carver and Smith began a search of the home. When they reached Smith’s

daughter’s bedroom, Smith looked into his daughter’s bathroom, and saw someone in the

shower. The person in the shower was wearing Smith’s camouflage shirt. Smith motioned

to Sergeant Carver that he had seen something. Concerned about Smith’s safety, Sergeant

Carver quickly escorted Smith back outside. With Smith back outside, Sergeant Carver and

Agent Sullivan approached the front door. Agent Sullivan attempted to call the subject out

of the house. When there was no response, Agent Sullivan went around the back of the

house to watch for the subject, in case he tried to run, and waited for backup. Then he heard

Sergeant Carver giving commands. Agent Sullivan ran back to the front door. The subject

was coming from the hallway into the living room. He had his hands up. When he was

ordered to get down on the ground, he refused. He continued to walk toward the officers.

Both officers holstered their weapons and wrestled the man to the ground. After a brief

struggle, they were able to handcuff him. Agent Sullivan performed a pat down on the

subject and recovered a key from his pocket that Smith said belonged to his wife’s car.

Smith testified that it was his wife’s spare key, and that the subject had removed the key from

a key ring.

¶7.    At trial, Sergeant Carver identified Schrotz as the man he arrested, and testified that

he was similar in build, skin tone, and hair color as to the man who ran into the woods behind

Smith’s house the day before the arrest. Smith also identified Schrotz as the man who was

arrested that day.



                                              4
¶8.    Schrotz was indicted on four counts as a habitual offender – Count I, receiving stolen

property; Count II, failure to stop a motor vehicle; Count III, possession of stolen firearms;

and Count IV, burglary of a dwelling. The State dropped Counts I and III and proceeded to

trial on counts II and IV. Pretrial, the trial court heard motions in limine. One of Schrotz’s

attorneys, Angela Blackwell, argued that evidence regarding Counts I and III should be

suppressed because it was irrelevant to the counts being pursued and was more prejudicial

than probative. More specifically, she argued that evidence that the vehicle was stolen, and

that there were guns in the vehicle, should be suppressed. The trial court granted the

motions, with Blackwell agreeing to stipulate that Deputy Hendry had reasonable suspicion

and probable cause to believe a felony had been committed by the driver of the 2009 white

Dodge Caliber, and that Deputy Hendry, in an attempt to stop the vehicle, activated his

flashing lights and audible siren.

                                       DISCUSSION

¶9.    Schrotz argues that both Blackwell and his other attorney, Glenn Rishel, were

ineffective because they failed to object to the wording of the stipulations that placed him

behind the wheel of the white 2009 Dodge Caliber, and that this amounted to the functional

equivalent of a guilty plea. He argues that his trial counsel’s performance was deficient in

that they failed to subject the State’s case to meaningful adversarial testing by conceding the

identity of the driver. The State argues that this concession was part of a trial strategy to

admit to a lesser offense, find favor with the jury, and be acquitted of or found guilty of a

lesser offense of a greater charge. The State argues that defense counsel’s theory of the case



                                              5
was that Schrotz did indeed try to evade law enforcement, but that he did not commit a

burglary because he did not have the requisite intent to steal personal property in the

dwelling; that he was merely hiding from the manhunt that was underway.

¶10.   The stipulations, signed by Schrotz and counsel for both sides, were read into the

record, and state as follows:

                                      STIPULATION

       COME NOW the Defendant, Joseph Snow Schrotz, and his attorney, and the
       Assistant District Attorney who prosecutes for the State, and for all purposes
       in this case stipulate that on March 27, 2013, Deputy Brandon Hendry, while
       on duty for the Harrison County Sheriff[’s] Department, had reasonable
       suspicion and probable cause that a Felony had been committed by the
       Defendant, who was driving a white 2009 Dodge Caliber with the Virginia
       license plate number JZS3930 and that a traffic stop should be performed.

       It is further agreed that this stipulation and this document may be admitted into
       evidence at any hearing or trial in this case without the necessity of any
       testimony concerning this stipulation or document or any further or other
       authentication and shall be considered by the Court and Jury just as any other
       evidence admitted may be considered.

                                      STIPULATION

       COME NOW the Defendant, Joseph Snow Schrotz, and his attorney, and the
       Assistant District Attorney who prosecutes for the State, and for all purposes
       in this case stipulate that on March 27, 2013, Deputy Brandon Hendry, while
       on duty for the Harrison County Sheriff[’s] Department, attempted to perform
       a legal traffic stop of the Defendant, who was driving a white 2009 Dodge
       Caliber with Virginia license plate number JZS3930[,] and while attempting
       to perform said stop[,] . . . Deputy Brandon Hendry’s patrol car had on its
       flashing lights and audible siren. These flashing lights and audible siren could
       be heard and seen by motorists.

       It is further agreed that this stipulation and this document may be admitted into
       evidence at any hearing or trial in this case without the necessity of any
       testimony concerning this stipulation or document or any further or other
       authentication and shall be considered by the Court and Jury just as any other

                                              6
      evidence admitted may be considered.

Rishel further acknowledged that Schrotz was driving the vehicle when he argued his motion

to exclude latent fingerprint evidence. That exchange was as follows:

      THE COURT:           Well, now is this all a big to do over nothing[?] . . .
                           [B]ecause there is a stipulation that the defendant was
                           driving the car when the initial officer started chasing
                           him. So it’s already been admitted and the evidence is in
                           front of the jury that he was driving the car.

      MR. RISHEL:          I think [Y]our Honor has hit upon a real truism, if you
                           will.

And finally, during closing argument, Blackwell stated:

      As far as the evasion, the failing to stop a motor vehicle, you will have the
      video. You will have this very nice printout. Watch the video, use your
      common sense. If you see based on that video there was a reckless disregard
      for people and property, find him guilty of the felony. But if you don’t, it’s a
      misdemeanor and he should be found guilty of a misdemeanor, not a felony.

      And ladies and gentlemen, I’m not going to dramatize it. I’m certainly not
      going to stand up here and narrate to you what happened. You have eyes, you
      have common sense. Watch the video and then decide. It’s simple. It’s easy.
      It’s common sense. And everything about these fingerprints, dog and pony
      show. That’s what it is. He was in the car.

      Now let’s talk about this burglary because I have had a problem with this
      burglary charge since this case came to my desk. I’ve had a problem with it
      because I have looked at this case, and you’ve heard all the evidence here
      today. And you look at the circumstances because you can consider that
      whenever you decide whether or not a burglary actually took place.

      The circumstances were this 22-year-old boy was out in the woods. He had
      run from the police, and he was scared. There was a small army of Harrison
      County Sheriff’s Department officers looking for him with the helicopter, the
      dogs, the ATV. Everybody was looking for him. He broke into a house. He
      went inside the house to hide. Not to steal, but to hide. That’s why he didn’t
      leave. That’s why he was in a shower. He was hiding from the police.



                                             7
       One of the elements that the [S]tate has to prove to you beyond a reasonable
       doubt is that he broke in this house, which I don’t think they can prove he
       actually broke into. They have no point of entry. We have no idea how this
       man ended up inside that house. He could have walked through an open door.
       We have no idea. No pry marks, no broken windows, nothing. If there were,
       the police would have taken pictures of it. There were no fingerprints found.
       They have no clue, and that’s a lack of evidence, an absolute lack of evidence.
       And that’s a reasonable doubt. That is a reasonable doubt.

       As far as whether or not the underlying offense being he had to enter this
       house with the intent to steal personal property located inside that house.
       Well, guess what, not one person got on that witness stand and said that shirt
       or them keys were inside that house. Not one person. That pretty shirt right
       here that they keep showing you could have been hanging on a line drying out
       in the backyard. We don’t know. Nobody told us. That could have been taken
       outside. My husband Robert, he leaves keys in the door all the time. I want
       to kill him. He leaves his keys in the door. Maybe the key was outside. It was
       a spare. There was no vehicle there. Wasn’t going to steal a car. He wasn’t.
       It is what it is. That is a reasonable doubt.

       If you find there was a reasonable doubt, he is not guilty of burglary, he is
       guilty of trespassing. [Y]ou should find him guilty of trespassing.

¶11.   In Sandlin v. State, 156 So. 3d 813, 819 (¶20) (Miss. 2013), the supreme court

succinctly stated when we may address an ineffective-assistance-of-counsel claim on direct

appeal:

       Because the Court is limited to the trial record on direct appeal, issues of
       ineffective assistance of counsel are more appropriate in a motion for
       post-conviction relief. Parker v. State, 30 So. 3d 1222, 1232 (¶36) (Miss.
       2010). However, the Court may address the claims on direct appeal if the
       issues are based on facts fully apparent from the record. Id. If the record is
       not sufficient to address the claims on direct appeal, the Court should dismiss
       the claims without prejudice, preserving the defendant’s right to raise the
       claims later in a properly filed motion for post-conviction relief. Id.

Because we find that Schrotz’s claim is based on facts fully apparent from the record, we will

address the merit of his claim.



                                              8
¶12.   In order to succeed on a claim of ineffective assistance of counsel, Schrotz must prove

that his trial counsel’s performance was deficient and that the deficient performance

prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). “[T]he

performance inquiry must be whether counsel’s assistance was reasonable considering all the

circumstances.” Id. at 688. Once a deficient performance is shown, Schrotz “must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

¶13.   No attorney should concede to a jury that his client is guilty of the crime charged in

the indictment. Faraga v. State, 514 So. 2d 295, 308 (Miss. 1987). “When proof of certain

facts is overwhelming, however, an attorney may find it strategically prudent to concede such

facts while still denying that his client is guilty of the crime charged in the indictment.” Id.

In Faraga, Faraga’s attorney conceded Faraga was guilty of simple murder, a lesser-included

offense of capital murder, the crime for which Faraga was charged. Id. The supreme court

concluded that the attorney’s candor during the guilt phase may have helped Faraga during

the sentencing phase. Id. The court stated that “[a]n attorney who, while sincerely trying to

help his client, at the same time is open and honest with the jury is more likely to receive a

sympathetic and open ear in his other arguments.” Id. The court ultimately held that the

attorney’s concession was “the product of a tactical decision and the best argument he could

make given the circumstances[.]” Id.

¶14.   Faraga involved one count, and the defense’s admitting to the lesser-included offense



                                                9
for which a jury instruction was given. In Williams v. State, 791 So. 2d 895, 899 (¶14) (Miss.

Ct. App. 2001), this Court addressed whether admitting to one count to avoid conviction on

another count was sound trial strategy. Williams was facing possible convictions for both

aggravated assault and kidnapping. Id. at (¶13). The maximum sentence for aggravated

assault was twenty years, and the maximum sentence for kidnapping was thirty years. Id.

During trial, a videotape of the shooting that constituted the aggravated assault was played

for the jury. Id. at (¶14). This Court found that “defense counsel’s statements to the jury,

acknowledging the existence of evidence that was essentially beyond dispute and for which

the defense could offer no exculpatory explanation,” did not amount to ineffective assistance

of counsel. Id. at 900 (¶16). Applying the reasoning in Faraga, we found that “viable trial

strategy existed [where defense counsel attempted] to win some measure of favor with the

jury by candidly conceding the overwhelming nature of the evidence of guilt” on the

aggravated-assault charge in hopes that “the jury, in reaction to such a forthright concession,

might give more credence to Williams’s assertion that the automobile journey was not to

kidnap [the victim] but to get her to a hospital to receive needed medical treatment.” Id. at

899 (¶14). We noted in Williams that the purpose for such a concession was to try to lessen

the defendant’s maximum potential punishment.

¶15.   Schrotz was accused of violating Mississippi Code Annotated section 97-9-72(2)

(Rev. 2014). Section 97-9-72 reads in pertinent part:

       (1) The driver of a motor vehicle who is given a visible or audible signal by a
       law enforcement officer by hand, voice, emergency light or siren directing the
       driver to bring his motor vehicle to a stop when such signal is given by a law
       enforcement officer acting in the lawful performance of duty who has a

                                              10
       reasonable suspicion to believe that the driver in question has committed a
       crime, and who willfully fails to obey such direction shall be guilty of a
       misdemeanor, and upon conviction shall be punished by a fine not to exceed
       One Thousand Dollars ($1,000.00) or imprisoned in the county jail for a term
       not to exceed six (6) months, or both.

       (2) Any person who is guilty of violating subsection (1) of this section by
       operating a motor vehicle in such a manner as to indicate a reckless or willful
       disregard for the safety of persons or property, or who so operates a motor
       vehicle in a manner manifesting extreme indifference to the value of human
       life, shall be guilty of a felony, and upon conviction thereof, shall be punished
       by a fine not to exceed Five Thousand Dollars ($5,000.00), or by commitment
       to the custody of the Mississippi Department of Corrections for not more than
       five (5) years, or both.

¶16.   Evidence of failure to stop a motor vehicle was overwhelming. There was a video

recording that the crime of failure to stop a motor vehicle had occurred, along with the

testimony of the police officer. There was evidence that the vehicle was traveling at high

rates of speed, passing vehicles when passing was prohibited, and running stop signs. To

protect their client from prejudice, defense counsel stipulated to the fact that the officer had

reasonable cause to believe that a felony had occurred. Because the video recording

contained audio that the vehicle was stolen, they also stipulated that the patrol car’s sirens

and lights were on. The State had to prove both the identity of the driver and that the driver

operated the motor vehicle in such a manner that it evinced a reckless and willful disregard

for the safety of others. Because the video recording failed to record the end of the chase,

the heaviest burden was for the State to prove the identity of the driver. The State had to

prove the person found in the shower of Smith’s home was the driver of the vehicle. The

State did this through fingerprint evidence, and through the testimony of Sergeant Carver that

the person found in Smith’s home was of similar build, skin tone, and hair color as to the

                                              11
person who fled from the vehicle and into the woods. A review of the record reveals that

defense counsel effectively cross-examined the State’s witnesses regarding the fingerprint

evidence, and that a reasonable juror could have found that Schrotz, who was identified as

being arrested in Smith’s home, was the driver of the vehicle. We also note that a lesser-

included-offense instruction for misdemeanor failure to stop a motor vehicle was given. The

one element that defense counsel did not concede to the jury was that Schrotz acted with

reckless or willful disregard for the safety of others. Schrotz admitted to the lesser-included

offense of misdemeanor failure to stop a motor vehicle, but not felony failure to stop a motor

vehicle as charged in the indictment.

¶17.   While Schrotz argues that conceding his identity as the driver was the functional

equivalent of a guilty plea to the charge indicted, given the video recording and Officer

Hendry’s testimony, it is evident from the record that admitting guilt to misdemeanor failure

to stop a motor vehicle was part of a larger trial strategy. Schrotz faced possible conviction

for both felony failure to stop a motor vehicle and burglary of a dwelling. As a habitual

offender, he was to receive the maximum sentence for each felony prescribed by law, and

each sentence was to be served day-for-day, with no possibility of parole. Miss. Code Ann.

§ 99-19-81 (Supp. 2014). The maximum sentence for felony failure to stop a motor vehicle

is five years, and the maximum sentence for burglary of a dwelling is twenty-five years.

Miss. Code Ann. §§ 97-9-72(2), 97-17-23(1) (Rev. 2014). It is evident from reading defense

counsel’s closing argument that she was conceding to the driver’s identity to explain

Schrotz’s presence in Smith’s home, and the lack of his intent to steal personal property



                                              12
therein, an element of the offense of burglary. Miss. Code Ann. § 97-17-23(1). As in

Williams, defense counsel conceded the identity of the driver to win favor with the jury in

the hopes that such a concession would lend credence to Schrotz’s assertion that he was not

in Smith’s home to steal, but was hiding from the manhunt that was underway. The trial

strategy worked. Schrotz was found guilty of felony failure to stop a motor vehicle and

trespass. Instead of being sentenced to twenty-five years for burglary of a dwelling, he

received the maximum sentence for the crime of trespass, which is six months. Miss. Code

Ann. § 97-17-87(1) (Rev. 2014). Given the circumstances, we find that it was a reasonable

trial strategy to admit guilt to misdemeanor failure to stop a motor vehicle in an attempt to

avoid conviction on the burglary-of-a-dwelling charge. Thus, we cannot find Schrotz’s

counsel ineffective.

¶18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF MISDEMEANOR TRESPASS AND SENTENCE OF SIX
MONTHS IN THE CUSTODY OF THE HARRISON COUNTY SHERIFF’S
DEPARTMENT, AND FELONY FAILURE TO STOP A MOTOR VEHICLE, AND
SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE
POSSIBILITY OF PROBATION OR PAROLE, WITH THE SENTENCES TO RUN
CONSECUTIVELY, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.

   IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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