MAINE SUPREME JUDICIAL COURT                                                           Reporter of Decisions
Decision: 2015 ME 1
Docket:   Pen-14-46
Argued:   October 8, 2014
Decided:  January 6, 2015

Panel:        SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*



                                         STATE OF MAINE

                                                     v.

                                       JEFFREY P. WYMAN

JABAR, J.

         [¶1] Jeffrey P. Wyman appeals from a judgment of conviction of perjury

(Class C), 17-A M.R.S. § 451(1)(A) (2014), entered in the trial court

(Anderson, J.) after a jury trial. Jeffrey contends that the trial court abused its

discretion by (1) allowing the State to introduce and comment on his silence

following his arrest for operating under the influence (OUI), (2) allowing a police

officer to testify to his opinion that “there were lies told” during Jeffrey’s trial for

OUI, at which Jeffrey was acquitted, and (3) admitting the testimony of a Verizon

employee that the State offered as a custodian of cell phone billing records. We

discern no abuse of discretion and affirm Jeffrey’s conviction.




  *Silver, J., sat at oral argument and participated in the initial conference but retired before this opinion
was issued.
2

                                     I. BACKGROUND

        [¶2] In September 2012, Jeffrey Wyman was indicted for perjury relating to

testimony he provided during his January 2012 trial for OUI.                     Jeffrey’s son,

David M. Wyman, was also indicted for perjury relating to his testimony during

Jeffrey’s OUI trial. During the father and son’s consolidated perjury trial, the State

argued that Jeffrey and David had concocted a timeline of events supporting the

assertion that Jeffrey was not guilty of OUI because he had become intoxicated

after going off the road on April 20, 2011, and that Jeffrey and David had given

false testimony supporting that timeline during the OUI trial.

        [¶3]   Before the perjury trial, the defense became aware that the State

intended to introduce cell phone billing records to contradict the account of events

that Jeffrey and David provided during the OUI trial.                 The defense therefore

requested and the court issued a discovery order requiring the State to provide, at

least thirty days before jury selection, a report of any expert witnesses that it

intended to call. See U.C.D.R.P – Bangor 16A(c).1 On the date scheduled for jury

selection, the State sought a continuance to allow it time to comply with the court’s

discovery order. After the court denied this request, the State decided not to call an

expert witness to interpret the cell phone billing records.


    1
     The Bangor Unified Criminal Docket Rules of Procedure have since been superseded by the Maine
Rules of Unified Criminal Procedure. M.R.U. Crim. P. 1(e)(1).
                                                                                      3

      [¶4] At trial, the State presented the testimony of an officer who arrested

Jeffrey for OUI and participated in the perjury investigation. It also presented the

testimony of a Verizon employee, who testified as a custodian of the cell phone

billing records.

A.    The Officer’s Direct Examination

      [¶5] During the perjury trial, the officer testified that when he arrived at the

scene of the accident on April 20, 2011, at 12:57 p.m., Jeffrey smelled of alcohol

and had bloodshot eyes and slurred speech. He stated that he asked Jeffrey how

much he had had to drink that day and that Jeffrey told him that he had consumed

one beer at 8:30 a.m.

      [¶6] The prosecutor asked the officer whether Jeffrey at any time told him

that he had gone off the road at 9:38 a.m. and drank seven or eight beers between

that time and the time of the officer’s arrival. The officer responded, “No, he did

not.” Defense counsel objected to the question on the ground that it improperly

suggested a burden on the defense to produce evidence, and moved for a mistrial.

During a bench conference, the court overruled the objection and denied the

motion, observing that Jeffrey had not invoked his right to remain silent, and

stating that “when a defendant chooses to answer a question and then answers it in

a way that is different at trial, then it is admissible to point out that the first time

the information was obtained was during the testimony at trial.”
4

      [¶7] The prosecutor asked the officer whether he was aware before the OUI

trial that Jeffrey claimed that he had gone off the road at 9:38 a.m., and the officer

responded in the negative. The prosecutor then asked, “[W]hen was the first time

that you realized that [Jeffrey] said -- or was saying that after he went off the road

he drank six to seven beers?” and the officer answered, “During the [OUI] trial.”

Defense counsel again objected to the question, asserting that it had already been

answered and that it improperly implied that Jeffrey had an obligation to produce

evidence. The court sustained the objection.

B.    The Officer’s Testimony on Cross-Examination

      [¶8] When the defense cross-examined the officer about his participation in

the perjury investigation, the officer stated that after the OUI trial he “started

digging around to try and figure out . . . what happened,” and that he “made some

notes that [he] felt detailed the nuances of the lies that were told in court” during

the OUI trial.   Defense counsel asked the officer whether he disagreed with

Jeffrey’s acquittal in the OUI case, and the officer responded, “That’s fair to say,

yes.” Defense counsel then asked “And, so, when you say you started looking

around, you were looking at sort of what your options were after Mr. Wyman

being acquitted in the OUI?” The officer responded, “No, I wasn’t looking what

my options were. I was convinced, as I am today, that there were lies told, and I

started to look for evidence to prove those lies.” Defense counsel objected to the
                                                                                   5

answer as nonresponsive, improper opinion testimony, and an effort by the officer

to influence the jury. The court noted that defense counsel’s questions had elicited

the response, but issued an immediate curative instruction, telling the jury that the

officer’s opinion as to Jeffrey’s truthfulness was not relevant to the issue of the

truth or falsity of Jeffrey’s statements during the OUI trial.

      [¶9]    During closing arguments, both sides referred to the officer’s

testimony.   The State asked the jury to consider “in what context [Jeffrey’s]

statements were made, what was said before, what was said after, and then you’ll

see exactly why the testimony that we have in this case shows that [Jeffrey was]

misleading and deceitful in that first case.” Defense counsel did not object to this

statement.    Both sides emphasized to the jury that it was responsible for

determining which witnesses were credible. The court reiterated this instruction

during the closing remarks of its charge to the jury.

C.    The Verizon Employee’s Testimony

      [¶10] During its case in chief, the State sought to introduce cell phone

billing records for Jeffrey, David, and David’s roommate under the business

records exception to the rule against hearsay, M.R. Evid. 803(6), and to lay the

necessary foundation through testimony of a Verizon employee offered as

custodian of the records. The State asserted that the employee would not testify as

an expert and would not offer an interpretation of the records, but would explain
6

what the columns on the records represented. Jeffrey conceded that the records

qualified as business records under Rule 803(6), but objected to their admission

and to the witness’s explanation of them on the ground that her explanation was

either inadequate or beyond the scope of a custodian’s permissible testimony. He

argued that the interpretation of an entry on his April 20, 2011, billing record

showing receipt of a call at 10:59 a.m. with an “origination” in Millinocket was a

subject of expert testimony. He also argued that admission of the record without

expert testimony would prejudice him because it would cause the jury to believe

that the record proved that he was in Millinocket at the time of the 10:59 a.m.

phone call.

      [¶11] The court observed that the defense knew that the State would offer

the billing records and the Verizon employee’s explanation of them well in

advance of trial, and that the defense had the ability to determine the substance of

the employee’s testimony and to produce its own expert interpretation of the

records. After a voir dire of the Verizon employee, the court admitted the records

and the employee’s explanation of them over Jeffrey’s objection, ruling that the

employee was not going to testify as an expert and that her testimony would

neither violate the court’s discovery order nor prejudice the defense. The court

specifically ruled that the witness could testify that Jeffrey’s 10:59 a.m. phone call
                                                                                   7

used the Millinocket tower, but could not testify about how far away someone

could be from that tower and still use it.

      [¶12] The Verizon employee testified that she was qualified to provide the

explanation of the cell phone billing records by her training and experience

interpreting similar bills for over twenty years. She testified that the record for

Jeffrey’s phone on April 20, 2011, showed that his phone received a call from

David at 10:59 a.m. using a tower in the vicinity of Millinocket, and that his phone

was used to call David at 12:03 p.m. using a tower in the vicinity of Argyle. On

cross-examination, the employee testified that for a call listing an “origination” in

Orono, the caller was “in the vicinity of Orono . . . close enough to pick up [the]

tower in Orono,” but that she had no idea how close was “close enough.”

      [¶13] The defense then presented the testimony of an electrical engineer,

who was offered as an expert in cell phone technology. The engineer described

several reasons why the “origination” column on a billing record could not be

relied upon as proof of a person’s location at the time that the person made or

received a call.

D.    The Verdict

      [¶14] The jury found Jeffrey guilty of perjury. After the court denied his

motion for a judgment of acquittal, Jeffrey was ordered to pay a $1,000 fine and

sentenced to 120 days’ imprisonment, execution of which was stayed pending this
8

appeal.2

                                       II. DISCUSSION

A.       Comment on the Defendant’s Silence

         [¶15] Jeffrey argues that the State improperly introduced his post-arrest

silence by eliciting the officer’s testimony (1) that Jeffrey did not report during the

OUI investigation that he drank alcohol after going off the road, and (2) that the

officer did not hear Jeffrey’s account of drinking after going off the road until the

OUI trial. He also argues that the State impermissibly commented on his silence

during its closing argument when it asked the jury to consider the context of

Jeffrey’s statements, including “what was said before” and “what was said after.”

He contends that this comment and the elicitation of this testimony violated his

Sixth Amendment right to counsel and his Fourteenth Amendment right to due

process.     See U.S. Const. amend. VI, XIV.                 The State contends that these

references constituted a proper attack on Jeffrey’s credibility.

         [¶16] “The trial court is vested with broad discretion in controlling the

mode of examining witnesses.” Ricci v. Delehanty, 1998 ME 231, ¶ 17, 719 A.2d

518; see M.R. Evid. 611(a). “Absent an abuse of discretion [that] interferes with

the rights of a party to a fair trial, we will uphold the trial court’s decisions


     2
     The jury also found David guilty of perjury and he too appealed from his conviction. We address
David’s appeal in a separate opinion. See State v. Wyman, 2015 ME 2, --- A.3d ---.
                                                                                   9

concerning the scope and manner of examination of witnesses.” State v. McKenna,

1998 ME 49, ¶ 3, 707 A.2d 1309. We thus review the court’s denial of Jeffrey’s

motion for a mistrial for an abuse of discretion. See State v. Logan, 2014 ME 92,

¶ 14, 97 A.3d 121. Because Jeffrey did not object at trial to the prosecutor’s

alleged reference to his silence during closing argument, we review that portion of

his claim for obvious error.       See State v. Johnson, 472 A.2d 1367, 1374

(Me. 1984).

      [¶17] “A prosecutorial reference to silence by the accused may, under

certain circumstances, require a new trial.”     Id. at 1373.    However, when a

defendant gives a statement to the police that conflicts with an exculpatory

statement presented at trial, the State may inquire into the defendant’s failure to

give the exculpatory statement to the police because such inquiry draws a negative

inference from the prior inconsistent statement rather than from the defendant’s

failure to speak. United States v. Donnat, 311 F.3d 99, 104-05 (1st Cir. 2002).

When a defendant is accused of perjury at trial, a disparity between the defendant’s

pretrial statements and his testimony at trial is also admissible for the purpose of

showing that the defendant testified falsely at trial. See State v. Doughty, 399 A.2d

1319, 1325 (Me. 1979) (concluding that, in a perjury case, a disparity between the

defendant’s pretrial conduct and her conduct at trial is admissible to prove the

elements of perjury and to impeach).
10

      [¶18] Before he was arrested for OUI on April 20, 2011, Jeffrey told the

officer who had responded to his single-vehicle accident that he had consumed one

beer that morning at 8:30. During the OUI trial, he explained his intoxication at

the time the officer found him by testifying that he had drunk eight beers after

going off the road at 9:38 a.m. During the perjury trial, the court allowed the State

to elicit and refer to testimony by the arresting officer that highlighted the

discrepancy between Jeffrey’s pre-arrest statement and his testimony during the

OUI trial. Because the perjury trial turned on the truth of Jeffrey’s testimony

during the OUI trial, the court determined that the discrepancy between Jeffrey’s

pre-arrest statement and his testimony during the OUI trial was relevant to show

the elements of perjury and to impeach Jeffrey by a prior inconsistent statement.

      [¶19] The State’s initial inquiry into Jeffrey’s failure to tell the officer that

he became intoxicated after going off the road followed the officer’s testimony that

Jeffrey reported before his arrest that he had consumed one beer at 8:30 a.m. The

inquiry, when viewed in context, appears to have been made for the dual purposes

of proving the falsity of Jeffrey’s testimony at the OUI trial and impeaching

Jeffrey’s credibility by a prior inconsistent statement. The prosecutor’s reference

to this information during his closing argument as “what was said before” and

“what was said after” must likewise be understood to compare Jeffrey’s pre-arrest

statement with his testimony at trial for the same dual purposes. Therefore, both in
                                                                                      11

its examination of the officer and in its final argument, the State cannot be seen to

have commented on or referred to Jeffrey’s silence in violation of his constitutional

rights.

          [¶20] The court did not abuse its discretion in declining to declare a mistrial

following the officer’s testimony that Jeffrey did not report drinking after going off

the road. We also find no error in the prosecutor’s reference to this testimony

during the State’s closing argument.

B.        The Officer’s Opinion

          [¶21] Jeffrey argues that the trial court erred in allowing the officer to

testify to his opinion that “there were lies told” during the OUI trial. He contends

that this statement constituted prosecutorial misconduct, that it was nonresponsive

to the question asked, and that it usurped the jury’s exclusive function of

evaluating how much credence to give to Jeffrey’s testimony. In response, the

State contends that the trial court’s immediate instruction cured any prejudice to

Jeffrey resulting from the admission of the officer’s opinion.

          [¶22] We review the admission of the officer’s opinion, to which Jeffrey

objected, for clear error or an abuse of discretion. See State v. Kirk, 2005 ME 60,

¶ 7, 873 A.2d 350. In so doing, we defer to the trial court’s determination that a

curative instruction will remedy any prejudice caused by the admission of

evidence.      State v. Dolloff, 2012 ME 130, ¶ 32, 58 A.3d 1032.            A curative
12

instruction will “be deemed inadequate to eliminate prejudice” only “where there

are exceptionally prejudicial circumstances or prosecutorial bad faith.”           Id.

(quotation marks omitted).

      [¶23] Jeffrey’s attempt to characterize the officer’s opinion as prosecutorial

misconduct fails because it conflates the officer with a prosecutor. Moreover, the

officer’s testimony that “there were lies told” during the OUI trial was in response

to defense counsel’s questioning. Defense counsel did not object the first time that

the officer expressed his opinion that “lies were told in court” during the OUI trial,

opting instead to continue with a line of inquiry intended to impeach the officer by

demonstrating that he was biased. After asking whether the officer disagreed with

Jeffrey’s acquittal in the OUI case, defense counsel asked an open-ended question

about the nature of the OUI investigation. In response, the officer expressed his

opinion for a second time that “there were lies told” during the OUI trial. Defense

counsel then objected, and the court immediately instructed the jury that it should

not consider the officer’s opinion when evaluating the truth or falsity of Jeffrey’s

testimony during the OUI trial.

      [¶24] The officer’s opinion was relevant to the issue of the officer’s bias

and was elicited by the defense.        The court issued an immediate curative

instruction when requested by the defense. Under these circumstances, Jeffrey

cannot establish that the court abused its discretion in allowing the opinion in
                                                                                 13

evidence, or that the opinion was prejudicial to him. The trial court determined

that its curative instruction would remedy any prejudice to Jeffrey caused by

admission of the officer’s opinion. We defer to this determination and presume

that the jury followed the court’s instruction. See Dolloff, 2012 ME 130, ¶ 55,

58 A.3d 1032.

C.    The Verizon Employee

      [¶25] Jeffrey argues that the Verizon employee’s explanation of the timing

and “origination” columns on his cell phone billing record constituted expert

testimony and not merely the testimony of a custodian of records. He asserts that

because the State did not identify the Verizon employee as an expert pursuant to

the court’s discovery order, the court erred in admitting the Verizon employee’s

testimony about the contents of the records.

      [¶26] Whether proffered evidence requires expert explanation is a question

left to the discretion of the trial court. Field & Murray, Maine Evidence § 702.1 at

374 (6th ed. 2007).     We review the court’s decision to admit the Verizon

employee’s explanation of the billing records for abuse of discretion or clear error

of law. See State v. Nelson, 2010 ME 40, ¶ 9, 994 A.2d 808.

      [¶27] Testimony constitutes an expert opinion when it concerns “scientific,

technical, or other specialized knowledge” and “will assist the trier of fact to

understand the evidence or to determine a fact in issue.”         M.R. Evid. 702.
14

A witness who testifies to the contents of cell phone billing records should be

qualified as an expert if her testimony employs some form of specialized

knowledge.3

         [¶28] Specialized knowledge is not necessary, however, when a witness

conveys only the factual information displayed on cell phone billing records.

Perez v. State, 980 So.2d 1126, 1131-32 (Fla. Dist. Ct. App. 2008). A witness

need not be an expert to explain that the timing column on a cell phone billing

record refers to the time at which a call was made or received, or to explain that the

“origination” column refers to the location of the cell tower used by a phone to

make or receive a call. See id.

         [¶29] In this case, the Verizon employee did not opine on the minimum

distance between a cell phone and cell tower required to make a connection

between the two, or otherwise testify to matters of cell phone technology. She did

not rely on specialized knowledge in explaining the timing and “origination”

columns on the records.

         [¶30]   The court did not abuse its discretion in admitting the Verizon

employee’s testimony. Because the Verizon employee did not testify as an expert,




     3
     See generally Aaron Blank, The Limitations and Admissibility of Using Historical Cellular Site Data
to Track the Location of a Cellular Phone, 18 Rich. J.L. & Tech. 3, 33 (2011).
                                                                                  15

we do not address Jeffrey’s contentions that the State violated the court’s discovery

order.

         The entry is:

                           Judgment affirmed.



On the briefs:

         Richard L. Hartley, Esq., Law Office of Richard L. Hartley,
         Bangor, for appellant Jeffrrey P. Wyman

         R. Christopher Almy, District Attorney, and Tracy Collins
         Lacher, Asst. Dist. Atty., Prosecutorial District V, Bangor, for
         appellee State of Maine


At oral argument:

         Richard L. Hartley, Esq., for appellant Jeffrrey P. Wyman

         Tracy Collins, Asst. Dist. Atty., for appellee State of Maine



Penobscot County Unified Criminal Docket docket number CR-2012-3789
FOR CLERK REFERENCE ONLY
