An Adams County judge blocked jurors from hearing about a victim’s own criminal charge and potential motive to testify the way prosecutors wanted, prompting Colorado’s second-highest court to find a constitutional violation and order a new trial for the defendant.

A jury acquitted Semaj Reynolds-Wynn of attempted murder after a 2021 trial, but convicted him of attempted reckless manslaughter instead. With no physical evidence and no other eyewitnesses, jurors heard only the victim’s testimony accusing Reynolds-Wynn of shooting him in the head.

Jurors did not know, however, that the victim was simultaneously facing prosecution by the same district attorney’s office, and prosecutors had arranged for him not to be arrested so he could testify at trial. On Thursday, a three-judge panel for the Court of Appeals found the prohibition on any questioning about the victim’s own pending case violated Reynolds-Wynn’s constitutional right to confront the witnesses against him.

“For a witness in such a situation, this power dynamic can raise questions regarding the witness’s credibility: To what extent, if any, is the witness’s testimony influenced by the desire to curry favor with the prosecutor?” wrote Judge Lino S. Lipinsky de Orlov in the April 4 opinion. “While this fear or hope may arise from an actual or implied threat or promise by the prosecutor, it can also arise from the mere perception of the prosecutor’s power.”

Case: People v. Reynolds-Wynn

Decided: April 4, 2024

Jurisdiction: Adams County

Ruling: 3-0

Judges: Lino S. Lipinsky de Orlov (author)

Ted C. Tow III

Matthew D. Grove

Background: Arapahoe County domestic violence conviction reversed for constitutional violation

At Reynolds-Wynn’s trial, jurors heard that the victim, Johnathon Pennock, received a severe gunshot wound to the head in another person’s apartment. Other people had been in the home, but no one witnessed the shooting. Upon arriving at the hospital, Pennock fell into a coma for two weeks. When he woke up, he identified Reynolds-Wynn as his assailant. Reynolds-Wynn denied being the shooter.

Prior to trial, Adams County prosecutors sought to clear up an arrest warrant for Pennock, who was suspected of violating a restraining order. The district attorney’s office asked for and received a court order preventing Pennock’s arrest while he traveled from out of state, where he was receiving care, to Colorado to testify.

Reynolds-Wynn sought to cross-examine Pennock about his pending criminal case, arrest warrant and the prosecution’s intervention on his behalf. But District Court Judge Priscilla J. Loew blocked the request, saying she did not see “any sort of relationship beyond the district attorney-victim/witness relationship.” Loew also did not view the prosecution’s actions as amounting to “accommodations for his testimony.”

After trial, Pennock pleaded guilty to a misdemeanor charge in his own case.

On appeal, Reynolds-Wynn argued Pennock’s looming prosecution by the same district attorney’s office that sought his testimony created an incentive to testify in a way that assisted prosecutors – which jurors should have known about.

“The key question is whether Pennock’s testimony might have been influenced by a hope or expectation of leniency as unearthed by this cross-examination. The answer is yes,” wrote public defender Jeffrey A. Wermer.

The Colorado Attorney General’s Office countered that prosecutors “made no such promise” of leniency and, in any event, the defense attacked Pennock’s credibility at trial on a range of other issues.

The appellate panel observed that the prosecution’s actions in facilitating Pennock’s testimony did not matter as much as Pennock’s perception of whether he could receive leniency in his own criminal case. Lipinsky noted the Colorado Supreme Court previously ruled a witness’s probationary status is relevant to understanding the incentive to give favorable testimony for the prosecution, and the same logic applied to a witness who is facing criminal charges.

“Because the trial court barred defense counsel from cross-examining Pennock on his perception of the prosecutor’s actions, the jury never learned whether they gave him an incentive to curry favor with the prosecutor,” Lipinsky wrote.

The Court of Appeals ordered a new trial for Reynolds-Wynn.

The case is People v. Reynolds-Wynn.