Argued October 8, 2014.
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.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.[*]
[¶1] Jeffrey P. Wyman appeals fro 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.
[¶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). 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.
[¶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 ...