LORENZO CARLOS PFEIFER v. State of Indiana

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

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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

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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

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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

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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.

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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

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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.

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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

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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.

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.