Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.
Help support the publication of case reports on MoreLaw
Date: 02-07-2021
Case Style:
LORENZO CARLOS PFEIFER v. State of Indiana
Case Number: 20A-CR-00417
Judge: Paul D. Mathias
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Theodore E. Rokita
Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney
General
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Indianapolis, IN - Criminal defense attorney represented Lorenzo C. Pfeifer with a murder charge.
On August 27, 2016, Jewel Scott and Chandra Johnson (“CJ”) were sitting in
Scott’s vehicle outside of his grandmother’s home near the corner of Diamond
and Vassar Streets in South Bend, Indiana. Scott and CJ heard gunshots, and
two to three minutes later, Pfeifer, who was also known as “Black”, drove up
and stopped his vehicle next to Scott’s vehicle. Scott saw Pfeifer pointing a gun
at himself and CJ. Pfeifer fired one shot, striking CJ in the chest. CJ died as a
result of injuries sustained due to the gunshot wound to his chest.
[4] Scott initially told the police that he could not identify the shooter. However, in
November 2016, Scott told the investigating detective that Pfeifer shot CJ.
During their investigation, law enforcement learned that Pfeifer and CJ had a
history of arguments and fighting. On July 13, 2017, Pfeifer was indicted for
CJ’s murder.
[5] Pfeifer’s jury trial commenced on December 16, 2019. During trial, the State
presented testimony from three witnesses who were incarcerated with Pfeifer.
Each witness testified that, on separate occasions, Pfeifer described the shooting
and admitted to killing CJ. Tr. Vol. II, pp. 125, 160, 168, 195, 202, 222, 225,
248; Vol. III. p. 8. Pfeifer also kept a “Snitch List” with Scott’s name on it in his
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 3 of 10
jail cell. Pfeifer told a fellow inmate that the people on the list should be
“murdered or messed up because they were telling.” Tr. Vol. II, pp. 161, 196–
97.
[6] The State subpoenaed Scott to appear and testify at trial, and after he failed to
appear, the trial court issued a writ of body attachment. The State tried to locate
but could not find Scott. Therefore, the State asked the trial court to admit
Scott’s deposition into evidence and argued that it was admissible because Scott
was unavailable. Pfeifer objected and argued that admitting Scott’s deposition
testimony would violate his right to confront witnesses against him. The trial
court overruled the objection and Scott’s deposition was read to the jury.
[7] The jury found Pfeifer guilty of murder. Sentencing was held on January 23,
2020. The trial court ordered Pfeifer to serve a sixty-year executed sentence, and
also ordered him to serve the sentence consecutive to the sentence Pfeifer was
serving in federal prison for a felon in possession of a firearm conviction.
[8] Pfeifer now appeals. Additional facts will be provided as necessary.
I. Right to Confrontation
[9] Pfeifer argues that his federal and state constitutional rights of confrontation
were violated when the trial court admitted Scott’s deposition into evidence. A
trial court generally has broad discretion in ruling on the admissibility of
evidence, and we disturb a trial court's evidentiary rulings only upon an abuse
of discretion. Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013). However, when a
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 4 of 10
defendant contends that a constitutional violation has resulted from the
admission of evidence, the standard of review is de novo. Id.
[10] First, we address Pfeifer’s argument that his Sixth Amendment right of
confrontation was violated. The Confrontation Clause of the Sixth Amendment
to the United States Constitution provides, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. This right is not infringed by admission of an
absent witness’s testimonial out-of-court statement if the witness is unavailable
and the defendant has had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 59 (2004).
[11] A witness is unavailable for purposes of the Confrontation Clause only when
the prosecution has made a good-faith effort to obtain the witness’s attendance
at trial. Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002). “Even if there is only a
remote possibility that an affirmative measure might produce the declarant at
trial, the good faith obligation may demand effectuation. Reasonableness is the
test that limits the extent of alternatives the State must exhaust.” Id. at 724–25
(citation omitted). Pfeifer argues that the State did not make a good-faith effort
to secure Scott’s attendance at trial. We disagree.
[12] Law enforcement officers believed Scott was living in Niles, Michigan in
November and December 2019. Scott was deposed in November 2019,
approximately three weeks before trial. Scott was subpoenaed, by mail at his
last known address, and by receiving a copy of the subpoena on the Friday
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 5 of 10
before he was deposed, to appear for trial. Tr. Vol. III, p. 100. Scott
acknowledged the subpoena to appear for trial on the date of his deposition. Id.
In the weeks leading up to trial, the prosecutor’s office communicated with
Scott via telephone. A paralegal in the prosecutor’s office spoke to Scott the day
before Pfeifer’s trial began, but Scott failed to respond to any attempts to
communicate with her thereafter. Id. at 101. On the first day of trial, when Scott
failed to appear, the trial court issued a writ of body attachment at the State’s
request. The State was unable to locate Scott during trial. Under these facts and
circumstances, we conclude that the State made a good-faith effort to secure
Scott’s attendance at trial.
[13] Pfeifer also argues that his right to confrontation was violated because he did
not personally participate in Scott’s deposition. Pfeifer acknowledges that his
counsel participated in the deposition but observes that, in his absence, his
“counsel was deprived of the input and consultation with his client when the
deposition was occurring.” Appellant’s Br. at 16.
[14] Pfeifer does not cite to any authority establishing that the Sixth Amendment
confrontation right is violated if the defendant is unable to consult with counsel
during a witness’s deposition. The purpose of this constitutional right is to
ensure that the defendant has the opportunity to cross-examine the witnesses
against him. Howard v. State, 853 N.E.2d 461, 465 (Ind. 2006). The right to
adequate and effective cross-examination is fundamental and essential to a fair
trial. Id. “It includes the right to ask pointed and relevant questions in an
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 6 of 10
attempt to undermine the opposition’s case, as well as the opportunity to test a
witness’ memory, perception, and truthfulness.” Id.
[15] Even though Pfeifer did not personally participate in Scott’s deposition, his
right to adequate and effective cross-examination was secured by his counsel’s
thorough questioning of Scott. After Scott was asked to describe the events
surrounding CJ’s shooting, Pfeifer’s counsel questioned Scott about
inconsistencies between his deposition testimony and his prior statements to
law enforcement officers. Counsel also challenged Scott’s recollection of the
shooting and explored the nature of the relationship between CJ and Pfeifer. See
generally Ex. Vol. pp. 72–141.
[16] For all of these reasons, Pfeifer has not established that his Sixth Amendment
right of confrontation was violated when the trial court admitted Scott’s
deposition into evidence.
[17] Pfeifer also argues his right to confrontation under Article 1, Section 13(a) of
the Indiana Constitution was violated because he was not given the opportunity
to meet the witness face to face.1 Article 1, Section 13(a) “places a premium
upon live testimony” and the “defendant’s right to meet the witnesses face to
face has not been subsumed by the right to cross-examination.” Brady v. State,
1 Although the federal right of confrontation and the state right to a face-to-face meeting are co-extensive to a
“considerable degree,” the rights guaranteed by Article 1, Section 13 are not necessarily identical to those
given by the Sixth Amendment. Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991). The federal and state rights
have been interpreted to encompass two distinct components: meeting witnesses face-to-face and crossexamination. Id.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 7 of 10
575 N.E.2d 981, 988 (Ind. 1991). “‘[W]here a defendant has never had the
opportunity to cross-examine a witness and meet him face to face, admission of
prior testimony at a subsequent proceeding violates the [ ] right of
confrontation.’” Hill v. State, 137 N.E.3d 926, 936 (Ind. Ct. App. 2019) (quoting
State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993)), trans. denied.
[18] However, the right is not absolute. Brady, 575 N.E.2d at 987. Indiana’s
confrontation right is an individual privilege relating to the procedure at trial
and therefore may be waived. Mathews v. State, 26 N.E.3d 130, 135 (Ind. Ct.
App. 2015). A waiver is effective when there is an intentional relinquishment or
abandonment of a known right or privilege. Id. Whether a defendant has
waived a constitutional right depends on the circumstances of the particular
case. Id. Waiver can occur by word or deed. Id. Where the defendant has not
established that he or she is unable to attend a deposition and fails to object to
the deposition proceeding, the defendant waives his right to confrontation even
if the witness is unable to testify at trial. Id.
[19] Pfeifer was incarcerated when Scott’s deposition was taken. Scott was deposed
at Pfeifer’s request. There is nothing in the record that would lead us to
conclude that Pfeifer requested to be present at the deposition either in person
or via video or telephone. Pfeifer’s counsel did not object to the deposition
proceeding in Pfeifer’s absence. For these reasons, we conclude that Pfeifer
waived his right to confront Scott face to face. See Mathews, 26 N.E.3d at 137
(concluding that the defendant waived his right to a face-to-face confrontation
when he failed to attend the victim’s deposition and counsel did not object to
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 8 of 10
the deposition proceeding in defendant’s absence); see also Hill, 137 N.E.3d at
936–37.
[20] Moreover, as we noted above, Pfeifer’s counsel thoroughly questioned Scott
concerning the events surrounding CJ’s shooting. See Ex. Vol. pp. 72–141. And
Pfeifer does not argue that further examination of Scott would benefit his case.
Although Article 1, Section 13 sometimes affords greater protection than the
Sixth Amendment, Pfeifer has not demonstrated that this is one of those cases.
[21] Because the admission of Scott’s deposition did not violate Pfeifer’s right of
confrontation under either constitutional provision, we conclude that the trial
court did not abuse its discretion when it admitted the deposition into
evidence.
2
II. Sufficient Evidence
[22] Pfeifer also claims that the State failed to present sufficient evidence to support
his conviction. The standard of review we apply to claims of insufficient
evidence is well settled:
When reviewing a claim that the evidence is insufficient to
support a conviction, we neither reweigh the evidence nor judge
the credibility of the witnesses; instead, we respect the exclusive
province of the trier of fact to weigh any conflicting evidence. We
2 Because we conclude that the deposition was properly admitted, we do not address the State’s argument
that any error in the admission of the deposition was harmless. The State observes in its brief that Scott’s
testimony that Pfeifer shot CJ was cumulative of the testimony the State presented from three of Pfeifer’s
fellow inmates, who all testified that Pfeifer admitted that he shot CJ. Appellee’s Br. at 13.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 9 of 10
consider only the probative evidence supporting the verdict and
any reasonable inferences which may be drawn from this
evidence. We will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.
Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015) (citing McHenry v.
State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied.
[23] In his challenge to the sufficiency of the evidence, Pfeifer challenges the
credibility of three jailhouse informants each of whom testified at trial that
Pfeifer described to them the shooting and admitted that he killed CJ. See Tr.
Vol. II, pp. 125, 160, 168, 195, 202, 222, 225, 248; Vol. III. p. 8. By making this
argument, Pfeifer ignores our well-established standard of review. We do not
reweigh the credibility of witnesses on appeal. See Harrison, 32 N.E.3d at 247.
[24] Pfeifer also argues that the State’s evidence was entirely circumstantial and that
there was no physical evidence linking him to the crime. However, “[a]
conviction for murder may be sustained on circumstantial evidence alone if that
circumstantial evidence supports a reasonable inference of guilt.” Fry v. State, 25
N.E.3d 237, 248 (Ind. Ct. App. 2015) (citing Lacey v. State, 755 N.E.2d 576, 578
(Ind. 2001)). Here, the circumstantial evidence supports such an inference.
[25] Scott identified Pfeifer as the person who shot CJ. And Pfeifer told a fellow
inmate that he hoped Scott was dead so Pfeifer “could beat his case.” Tr. Vol.
II, p. 124. The “Snitch List” found in Pfeifer’s jail cell contained a drawing of a
rat and a list of names, including “Lil Jewel Scott.” Ex. Vol. p. 62; Tr. Vol. II
Court of Appeals of Indiana | Memorandum Decision 20A-CR-417 | February 1, 2021 Page 10 of 10
pp. 196, 200. Pfeifer told another inmate that he kept a list of people that should
be “murdered or messed up because they were telling.” Tr. Vol. II, pp. 161,
196–97.
[26] At trial, Pfeifer argued that he was not the person who shot CJ, challenged the
credibility and inconsistent statements of the witnesses who identified him as
the shooter, and presented alibi evidence. The jury weighed Pfeifer’s arguments
and evidence against Scott’s testimony identifying Pfeifer as the shooter and
Pfeifer’s admission to fellow inmates that he shot CJ. It was within the province
of the jury to do so, and we will not reweigh that evidence on appeal. We
therefore conclude that the evidence is sufficient to support Pfeifer’s murder
conviction.
Outcome: Pfeifer’s rights of confrontation under the Sixth Amendment to the Constitution
of the United States and Article 1, Section 13 of the Constitution of Indiana
were not violated when the trial court admitted Scott’s deposition testimony
into evidence. And the evidence is sufficient to support Pfeifer’s murder
conviction. We therefore affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: