State v. Fomo

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The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************  State v. Fomo ECKER, J., with whom McDONALD and D’AURIA, Js., join, concurring. I agree with much of the majority opinion. I write separately to make it clear that the trial court erroneously admitted the expert opinion testi- mony of the state’s witness, Detective Todd McCormack, regarding the definition of the term “grooming.” The evidentiary ruling was an abuse of discretion for two reasons. First, the state failed to timely disclose McCormack as an expert witness in violation of our rules of criminal procedure, which require the state, at the request of the defendant, to timely disclose the identity of all of its witnesses, “unless such time is extended by the judicial authority for good cause shown . . . .” Practice Book § 40-13 (a). Not only did the state fail to disclose McCor- mack as an expert witness in response to the pretrial motion for disclosure filed by the defendant, Frank Scott Fomo, but the prosecutor affirmatively assured the defen- dant prior to trial, in open court, that no expert testimony would be offered by the state. Despite this assurance, midway through trial, the state successfully introduced the expert testimony of McCormack on the definition of grooming, even though no good cause existed to justify the state’s late disclosure.1 See State v. Mallozzi, 355 1 The trial court did not make a finding of good cause to justify the state’s delay in disclosure. The prosecutor argued at trial that his about- face decision to offer McCormack as an expert witness, after stating that the state would present no expert testimony, was justified because defense counsel had “open[ed] the door by inquiring [of] both the [victim and the victim’s mother] about how . . . the defendant treated the victim, buying [the victim] a puppy, treating her really nice, always being kind to her.” The trial court did not explicitly rely on this reasoning, so we do not know the basis for the court’s decision to permit McCormack’s expert opinion, but the argument advanced by the prosecutor was meritless. A criminal defendant’s questioning of a witness does not “open the door to inquiry into unrelated matters. Rather, the opening the door doctrine is expressly intended to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context.” (Internal quotation marks omitted.) State v. Payne, 303 Conn. 538, 558, 34 A.3d 370 (2012). The defendant did not successfully exclude otherwise inadmissible evidence on grooming and then selectively seek to introduce such evidence to his  State v. Fomo Conn. 84, 97, 359 A.3d 125 (2026) (“it is incumbent on the [party seeking to admit late disclosed evidence] to make a showing of good cause for any late disclosure” (internal quotation marks omitted)). The state’s failure to fulfill its criminal discovery obligations with respect to expert witness testimony appears to be a recurrent problem that has arisen with sufficient frequency to indicate the need for greater vigilance by our trial courts and greater attention by other supervisory authorities, including the Rules Committee of the Superior Court, which this court recently suggested “should give serious consideration, with the input of the criminal defense bar and the Office of the Chief State’s Attorney, to creating a more formalized expert disclosure process.” Id., 96 n.5; see also, e.g., State v. Dabate, 351 Conn. 428, 458–62, 331 A.3d 1159 (2025); State v. Hargett, 343 Conn. 604, 640–41, 275 A.3d 601 (2022); State v. Jackson, 334 Conn. 793, 812–14, 224 A.3d 886 (2020). The admission of McCormack’s expert testimony was erroneous for a second reason. As the investigating police officer in the defendant’s criminal case, McCormack offered fact testimony about the investigation into the defendant’s alleged crimes. By allowing him to offer expert testimony as well, the trial court’s ruling impli- cated the dangers posed by a “hybrid” or “dual” witness who wears two hats—one as an investigating police offi- cer and the other as an expert on criminal conduct. See own advantage. Instead, defense counsel cross-examined the victim and her mother regarding the nature of the defendant’s relationship with the victim, which is standard fare in virtually every case of this kind. The nature of the defendant’s relationship with the victim was the focal point of the criminal trial, as one would expect, and it is incon- ceivable that defense counsel’s cross-examination was unanticipated and opened the door to otherwise inadmissible expert testimony. “The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice.” (Internal quotation marks omitted.) State v. Graham, 200 Conn. 9, 13, 509 A.2d 493 (1986). Nor is it a license to disregard our rules of criminal discovery. As this court has reminded the state repeatedly, “[c]riminal discovery is not a game. It is integral to the quest for truth and the fair adjudication of guilt or innocence.” (Internal quotation marks omitted.) State v. Dabate, 351 Conn. 428, 461, 331 A.3d 1159 (2025).  State v. Fomo State v. Tomlinson, 340 Conn. 533, 553 n.7, 264 A.3d 950 (2021) (“[t]he line between expert testimony and fact testimony . . . may be difficult to discern given that experts may rely on their own experiences in reaching their opinions”). As the United States Court of Appeals for the Second Circuit has cautioned, trial courts “must be especially vigilant in evaluating the admissibility of expert testimony [when] . . . a law enforcement official is called on to testify as a fact witness but also functions as an expert for the government. . . . Although this type of dual testimony is not objectionable in principle . . . the government confers on law enforcement officials in this position an aura of special reliability and trustwor- thiness surrounding expert testimony, which ought to caution its use.” (Citations omitted; internal quotation marks omitted.) United States v. Cruz, 363 F.3d 187, 194 (2d Cir. 2004). The combination of fact and opinion testimony coming from one witness “require[s] mental gymnastics of the jurors in determining when [the hybrid witness] was testifying as an expert and when he was not, risking confusion, particularly absent an adequate explanation of the bases for [the hybrid witness’] lay opinions to distinguish them from his expert opinions.” United States v. Williams, 827 F.3d 1134, 1160 (D.C. Cir. 2016), cert. denied sub nom. Edwards v. United States, 580 U.S. 1083, 137 S. Ct. 706, 196 L. Ed. 2d 579 (2017). Moreover, the issuance of a jury instruction on expert testimony may lead “the jury reasonably to assume that all of [the hybrid witness’] opinion testimony was based [on] his expertise and not merely on his own perceptions of events presented to the jury.” Id. Because “juries tend to give great credence and weight to what . . . experts say”; (internal quotation marks omitted) State v. Raynor, 337 Conn. 527, 548, 254 A.3d 874 (2020); trial “courts and counsel should take appropriate measures to minimize the problems that may arise from [dual role] testimony . . . .” United States v. Moralez, 808 F.3d 362, 366 (8th Cir. 2015). Measures exist to reduce the risk of juror confusion in cases involving a hybrid witness, but none of them was  State v. Fomo employed in the present case. These measures include but are not limited to (1) the issuance of jury instructions cautioning the jury about the distinction between fact and expert testimony; see, e.g., United States v. Vera, 770 F.3d 1232, 1242 (9th Cir. 2014); United States v. Lopez-Medina, 461 F.3d 724, 745 (6th Cir. 2006); (2) structuring a hybrid witness’ testimony to make it “clear when the witness is testifying as to facts or when he is offering his expert opinion”; United States v. Tucker, 714 F.3d 1006, 1016 (7th Cir. 2013); (3) establishing the proper foundation for the hybrid witness’ expert as opposed to lay opinions; see, e.g., United States v. Christian, 673 F.3d 702, 713–14 (7th Cir. 2012); and (4) not referring to the hybrid witness as an expert witness to “[ensure] that trial courts do not inadvertently put their stamp of authority on [the witness’] opinion . . . .” (Internal quotation marks omitted.) Fed. R. Evid. 702, advisory committee notes to 2000 amendment. Finally, as a cautionary note, I observe that it is possible that the trial court may have induced the problematic use of McCormack as an expert witness by first suggesting to the prosecutor that McCormack’s testimony concerning grooming was of an expert nature.2 See United States v. Christian, supra, 673 F.3d 712–13 (“[t]he dual testimony situation places an especially heavy burden on the [trial] court to ensure that the jury understood its function in evaluating the evidence, particularly [when] the conduct [in] question may appear innocent” (internal quotation marks omitted)). At trial, the prosecutor asked McCor- mack, “[d]uring your training and experience, and in your experience as . . . an officer, are you familiar with the term grooming?” Defense counsel objected, the jury 2 Courts are divided on the issue of whether grooming is within the common knowledge of jurors or requires the admission of expert tes- timony. Compare In re Personal Restraint of Phelps, 190 Wn. 2d 155, 170, 410 P.3d 1142 (2018) (“the concept of grooming . . . is within the common knowledge of jurors and the [s]tate was not required to pres- ent expert testimony to argue grooming to the jury”), with Morris v. State, 361 S.W.3d 649, 669 (Tex. Crim. App. 2011) (“[r]ecent appellate cases suggest that grooming testimony still involves matters beyond the understanding of the jury”). I express no opinion on that issue.  State v. Fomo was excused, and the trial court asked the prosecutor whether he was offering McCormack “as some type of expert witness . . . .” The prosecutor responded, “[y]es, as a police officer . . . [based on] [h]is training and experience in investigating sexual assault cases.” There is no way of knowing whether the prosecutor would have sought on his own to offer McCormack’s testimony as an expert opinion, but, in retrospect, it would have been better if the idea had not been injected in the first instance by the trial court. To summarize, despite the absence of any ameliorative measures to mitigate the risk of juror confusion, the absence of any advance notice to the defendant, and the absence of any finding of good cause to justify the state’s nondisclosure of McCormack’s expert testimony, the trial court admitted McCormack’s expert testimony over the objection of defense counsel. Under these circumstances, the admission of McCormack’s expert testimony was an abuse of discretion. Although it was error to admit McCormack’s expert testimony on grooming, I fully agree with the majority that, in the present case, the error was harmless because we have “a fair assurance that the error did not substan- tially affect the verdict.” (Internal quotation marks omitted.) State v. Ayala, 333 Conn. 225, 232, 215 A.3d 116 (2019). I therefore concur.