Yesudian v. State, 030719 MDSCA, 0131-2018

Docket Nº:0131-2018
Opinion Judge:WRIGHT, J.
Judge Panel:Wright, Leahy, Zarnoch, Robert A., (Senior Judge, Specially Assigned), JJ.
Case Date:March 07, 2019
Court:Court of Special Appeals of Maryland




No. 0131-2018

Court of Special Appeals of Maryland

March 7, 2019

Circuit Court for Howard County Case No. 13-K-17-057888

Wright, Leahy, Zarnoch, Robert A., (Senior Judge, Specially Assigned), JJ.



On January 18, 2017, Daniel Raj Yesudian, Jr. ("Yesudian"), appellant, was arrested on suspicion of driving while intoxicated. On the night of his arrest, Yesudian refused to submit to a breathalyzer test and instead repeatedly requested to speak to his attorney; Yesudian's request was not granted. The State brought charges against Yesudian in the District Court for Howard County on May 19, 2017.1 Prior to trial, Yesudian moved to suppress evidence of his refusal to take the breathalyzer test, arguing that his due process rights were violated when his request for counsel went unfulfilled. The circuit court granted Yesudian's motion.

Throughout trial, neither Yesudian nor the State made mention of his refusal to submit to a breathalyzer test. During closing arguments, however, counsel for Yesudian made the following statement: [DEFENSE COUNSEL]: Did you hear a blood alcohol reading? No. Ask yourself why.

The State immediately objected to the statement and requested a mistrial. After hearing arguments from the parties, the circuit court granted the State's request.

Yesudian subsequently moved to dismiss the charges against him, arguing that his Fifth Amendment right to be free from double jeopardy would be violated if the State were to retry the charges against him. The circuit court denied Yesudian's motion.

Yesudian now presents the following question for our review, which we have reworded for clarity:2

1. Did the circuit court err in denying Yesudian's motion to dismiss?

For the reasons provided below, we answer this question in the negative and affirm the circuit court's judgment.



Charges & Motion to Suppress

At about 3:00 a.m. on January 18, 2017, Lieutenant David Francis ("Lt. Francis") of the Howard County Police Department observed Yesudian driving eastbound in the westbound lanes of Little Patuxent Highway. After Lt. Francis activated his vehicle's emergency equipment, Yesudian turned into a shopping center parking lot. Yesudian, whose eyes appeared glassy and blood shot, told Lt. Francis that he had consumed two beers earlier that evening. After Lt. Francis called for assistance, Officer Abigail O'Connell ("Officer O'Connell") arrived to take over the investigation.

Once on the scene, Officer O'Connell directed Yesudian to complete a series of field sobriety tests. After Yesudian did not complete the tests to her satisfaction, Officer O'Connell arrested Yesudian and placed him in her patrol car for transport to Howard County's Central Booking Facility in Jessup, Maryland.

Beginning at the time they arrived at Central Booking, Yesudian asked Officer O'Connell for an attorney multiple times. Yesudian told Officer O'Connell that it was "her duty" to assign him a lawyer; she responded that she was under no such duty. Once inside of Central Booking, Officer O'Connell did not offer Yesudian the use of a telephone to contact an attorney before she advised him of his right to take or refuse the breathalyzer test for alcohol concentration. She told him, instead, that he could call a lawyer after they completed the necessary paperwork. Yesudian repeatedly asked Officer O'Connell for a lawyer as she advised him of his rights.

After hearing his rights, Yesudian did not elect to either take or decline the breathalyzer test. Instead, he continued to request an attorney and refused to sign any paperwork. Officer O'Connell thereafter concluded that Yesudian refused to take the breathalyzer test. Yesudian was subsequently charged with five traffic citations.3 The State, however, decided to prosecute only two counts: driving while under the influence of alcohol and driving while impaired by alcohol.

On October 6, 2017, Yesudian moved to suppress evidence that he refused to take the breathalyzer test.[4] The State responded on October 23, 2017. After concluding that Yesudian's Fourteenth Amendment due process rights were violated when his request for counsel went ignored, the circuit court granted Yesudian's motion.[5]



Yesudian's trial began on February 28, 2018. Both parties presented evidence related to Yesudian's intoxication on the night in question. Notably, neither the State nor Yesudian mentioned his refusal to take the breathalyzer test. But during closing argument, counsel for Yesudian stated the following to the jury: [DEFENSE COUNSEL]: What we really have here are things that lead to suspicion and then officers jumping the gun. What you don't have here - well, a lot of things. But what you don't have here is any evidence of real impairment. Did you hear a blood alcohol reading? No. Ask yourself why.

(Emphasis added).

The State immediately objected and a bench conference ensued. Defense counsel argued that her statement was a "fair comment that [there was] no evidence [related to Yesudian's blood alcohol concentration]." In response, the circuit court stated that it "[was] not a fair comment" because "[w]e know for a fact that this was a refusal so in a sense you could be misleading the jury." The court then asked the jury to leave the courtroom so that it could discuss the issue further with counsel.

Outside the jury's presence, the circuit court heard argument on the issue from both parties. The State argued that the mention of the breathalyzer would mislead the jury into thinking that the "police didn't offer [Yesudian] a breath test[, ]" or "[t]hat perhaps the breath test came back in [Yesudian's] favor." Further, the State averred that since the lack of breathalyzer evidence had now been discussed in front of the jury, it would not be possible to cure the situation with a corrective instruction. In response, Yesudian argued that the circuit court could devise an "appropriate instruction" that would remedy the statement. Specifically, Yesudian argued that the circuit court could instruct the jury to "disregard [Ms. Herry's] last comment[, ]" and could tell the jury "that they can't ask themselves why there was no blood alcohol concentration in this case[.]"

The circuit court expressed doubt about Yesudian's proposed instruction, pointing out that defense counsel had already put [the issue of breathalyzer evidence] in [the jury's] minds." In ultimately finding that the circumstances warranted a mistrial, the circuit court stated: I am going to find necessity requires this court to declare a mistrial based on the comments of counsel that the court feels a curative instruction is impossible to give to this jury. So, therefore, I will be declaring a mistrial.


Motion to Dismiss

On March 6, 2018, Yesudian filed a "Motion to Dismiss on Double Jeopardy Grounds." In his motion, Yesudian contended that, because there were other options available to remedy defense counsel's statement, the declaration of a mistrial was not supported by "manifest necessity." As a result, if the State was permitted to retry the charges against him his Fifth Amendment protection against double jeopardy would be violated. The State did not file a response to Yesudian's motion. The circuit court denied the motion to dismiss, and Yesudian timely filed this interlocutory appeal.6


In State v. Baker, 453 Md. 32, 46 (2017), the Court of Appeals explained the standard for reviewing the grant of a mistrial as follows: We review the trial judge's grant of a mistrial for abuse of discretion. It is well-settled that a decision to grant a mistrial lies within the sound discretion of the trial judge and that the...

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