Schalk v. State
943 N.E.2d 427, 2011 WL 682342, 2011 Ind. App. LEXIS 348 (2011)
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Rule of Law:
An attorney cannot engage in criminal activity, such as attempting to possess illegal drugs, even if the ostensible purpose is to gather evidence to defend a client, as defense attorneys are not granted the same legal authority as law enforcement officers.
Facts:
- In June 2007, attorney David E. Schalk was representing Chad Pemberton, who was charged with dealing in methamphetamine based on a sale to confidential informant Brandon Hyde.
- Schalk believed Hyde continued to deal drugs while working with police and sought to obtain proof of Hyde's dealing to impeach his credibility at trial.
- Schalk arranged for Lisa Edwards and Roger Grubb to purchase marijuana from Hyde, assuring them the plan was 'legit' and they would not get into trouble, and recommending a 'felony amount.'
- Schalk provided Edwards with a voice recorder and $200 in marked money for the drug transaction.
- Edwards and Grubb purchased only $50 worth of marijuana from Hyde, spent the remaining money on gas and food, and Grubb decided to keep the marijuana while Edwards deleted the recording.
- When Edwards and Grubb met Schalk, they falsely claimed to have the marijuana inside a rolled-up newspaper; Schalk refused to take possession and instructed them to keep it until he could find a law enforcement officer.
- Schalk attempted to contact several law enforcement officers and eventually reached Chief Deputy Prosecutor Robert Miller, to whom he reported arranging the drug buy and asked for advice on the marijuana's disposition.
- Chief Deputy Prosecutor Miller subsequently contacted the Monroe County Sheriff's Department to report Schalk's involvement in the scheme.
Procedural Posture:
- The State charged David Schalk with conspiracy to possess marijuana, a Class D felony, after an investigation by Detective Shawn Karr.
- Schalk filed various motions to dismiss the charge against him, which the trial court denied.
- The State ultimately amended the charge to attempted possession of marijuana, a Class A misdemeanor.
- Schalk waived his right to a trial by jury.
- Following a bench trial, the trial court found Schalk guilty as charged, entered a judgment of conviction, and sentenced Schalk to three months, all suspended to non-supervised probation.
- Schalk, as appellant, appealed his conviction to the Court of Appeals of Indiana.
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Issue:
Does an attorney's arrangement of a controlled drug buy, with the intent to use the purchased drugs as impeachment evidence against a witness, constitute attempted possession of marijuana when defense attorneys are not defined as law enforcement officers?
Opinions:
Majority - Najam, Judge
Yes, an attorney's arrangement of a controlled drug buy constitutes attempted possession of marijuana, as defense attorneys are not granted the same legal authority as law enforcement officers, and a purported good intent does not immunize one from criminal prosecution. The court rejected Schalk's contention that he, as a defense attorney, stands on the same legal footing as prosecutors, police, and confidential informants in controlled drug buys. The court noted that Indiana Code § 35-41-1-17, which defines 'law enforcement officer,' does not include defense attorneys. While Schalk asserted his intent was to deliver the marijuana to law enforcement or the court for use in his client's defense, the court affirmed that such a purpose does not immunize an individual from criminal prosecution, and the trial court was entitled to make reasonable inferences about intent based on the surrounding circumstances. The court further clarified that a client's constitutional right to legal representation does not authorize an attorney, as an officer of the court, to engage in criminal activity to achieve a favorable disposition for a client. Schalk's reliance on Loudermilk v. State was found misplaced as it defined possession but did not grant private citizens law enforcement authority, and his claim under the citizen's arrest statute was inapplicable as he arranged a buy, not an arrest. Other vague constitutional claims made by Schalk were not supported by cogent argument and thus not considered for appellate review.
Analysis:
This case significantly clarifies the ethical and legal boundaries for defense attorneys, reinforcing that zealous advocacy does not grant immunity from criminal statutes. It underscores that attorneys, despite their role as officers of the court, are not exempt from criminal liability for actions like drug possession, even when their intent is purportedly to gather evidence for a client's defense. The decision affirms the legislature's exclusive authority to define 'law enforcement officer' and strictly differentiates the investigative powers granted to the state from those available to private citizens, including attorneys. This ruling serves as a strong deterrent against 'ends justify the means' strategies that involve breaking the law and emphasizes that professional responsibility demands adherence to the legal system's framework, not subversion of it.
