NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2023 VT 40
No. 21-AP-275
State of Vermont Supreme Court
On Appeal from v. Superior Court, Bennington Unit, Criminal Division
Joshua Boyer November Term, 2022
Cortland Corsones, J.
Evan Meenan, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, Dawn Seibert, Appellate Defender, and Jackson Samples, Appellate Clerk (On the Brief), Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Eaton, Carroll and Waples, JJ., and Burgess, J. (Ret.), Specially Assigned
¶ 1. WAPLES, J. Defendant Joshua Boyer challenges the denial of his motion to
suppress evidence gathered in a consented-to search of his residence. He argues that his fourteen-
year-old daughter M.B. lacked authority to consent to the search. Defendant also asserts that his
constitutional speedy-trial rights were violated. Because we conclude that the search was lawful
and that defendant’s speedy-trial rights were not violated, we affirm the trial court’s decision.
I. Facts and Procedural History
¶ 2. The trial court made the following findings in ruling on defendant’s motion to
suppress. In April 2018, M.B. complained to police that defendant had sexually assaulted her
multiple times, including the previous day. M.B. resided in the house where the alleged assaults occurred with defendant, his wife, and other children. Defendant was arrested and released on
conditions, including that he should not return to the family home where M.B. was then residing.
¶ 3. Several days later, a police detective and an investigator from the Department for
Children and Families (DCF) met with M.B. at a friend’s home where she was temporarily staying
and asked if there might be DNA evidence present in M.B.’s family home. M.B. said that
defendant might have disposed of a condom in her bedroom wastebasket and used a pair of her
underwear to wipe himself off after the assault. Knowing that defendant and his wife would likely
be away from their home to attend defendant’s arraignment, the detective asked M.B. if she would
be comfortable returning to the house to locate this potential evidence.
¶ 4. M.B., the detective, and the DCF investigator then went to the home. They entered
through the rear basement door, and M.B. led them to her bedroom, where she noticed her laundry
had been cleaned and her wastebasket emptied. M.B. went outside and opened a trashcan by the
exterior of the house, which she noted “had been gone through.” The detective seized the trashcan.
The police later searched the trashcan pursuant to a warrant, which revealed a condom wrapper,
stained paper towels, pharmacy receipts, and a rug. M.B. identified the rug as from her bedroom,
and a subsequent forensic analysis confirmed the presence of defendant’s semen on the rug.
Defendant moved to suppress all evidence retrieved from the trashcan as obtained in violation of
his constitutional rights under both Article 11 of the Vermont Constitution and the Fourth
Amendment to the U.S. Constitution, prohibiting unreasonable searches and seizures.
¶ 5. The trial court denied defendant’s motion to suppress. It found that the search had
been consented to, and therefore the search fell within an exception to the warrant requirement. It
determined that a minor third-party can consent to a warrantless search of their parent’s house if
the minor has common authority over the home, which the court deemed to be the case here with
M.B. The trial court stressed that although “common authority” is not a property interest, it can
be inferred from an apparent authority of possession.
2 ¶ 6. The trial court found that M.B. lived fulltime on the premises and had joint access
to the house, providing the reasonable inference that she had the right to permit the inspection “in
[her] own right.” The court also found widely shared social expectations established that parents,
such as defendant, assumed the risk that minors of a certain age would allow strangers to enter the
common areas of the house. Finally, it found that although police conducted the search while
defendant and his wife were away, they did not remove defendant from the home in order to avoid
his objections to the search. In light of the considerations outlined above and based on the totality
of the circumstances, the trial court determined that no constitutional violation had taken place and
denied the motion to suppress the evidence obtained from the trashcan.
¶ 7. In August of 2020, defendant filed a motion to dismiss for lack of speedy trial and
denial of due process. The trial court denied the motion after applying all the factors from Barker
v. Wingo, 407 U.S. 514, 530-32 (1972), as described in more detail below.* A jury convicted
defendant of sexual assault of a child at his second trial in August 2021. This appeal follows.
II. Search and Seizure
¶ 8. We first address defendant’s motion to suppress. “The denial of a motion to
suppress involves a mixed question of fact and law. We accept the trial court’s findings of fact
unless they are clearly erroneous, but we review the question of whether the facts meet the proper
legal standard without deference to the trial court.” State v. Calabrese, 2021 VT 76A, ¶ 19, 216
Vt. 84, 268 A.3d 565.
¶ 9. Article 11 of the Vermont Constitution, like the Fourth Amendment to the U.S.
Constitution, seeks to “protect our freedom from unreasonable government intrusions
into . . . legitimate expectations of privacy.” State v. Bauder, 2007 VT 16, ¶ 10, 14, 181 Vt. 392,
924 A.2d 38 (quotations omitted). However, our analysis is independent of “[t]he [U.S.] Supreme
* Defendant does not renew his due-process argument on appeal, so we do not address it here. 3 Court’s ebbs and flows in this area of criminal constitutional procedure,” and we have often noted
that Article 11 “may afford greater protection of individual rights” than its federal counterpart.
State v. Savva, 159 Vt. 75, 84, 616 A.2d 774, 779 (1991); see State v. Zaccaro, 154 Vt. 83, 87,
574 A.2d 1256, 1259 (1990) (noting that “we may look for guidance to persuasive holdings from
federal and sister-state jurisdictions” in carrying out Article 11 analysis). Searches outside the
judicial process are presumptively unconstitutional, aside from “a few narrowly drawn and well-
delineated exceptions.” Bauder, 2007 VT 16, ¶ 14. In considering defendant’s arguments, we
recognize that “[t]he home is a repository of heightened privacy expectations, and as such, it
receives heightened protection under Article 11.” State v. Ford, 2010 VT 39, ¶ 10, 188 Vt. 17,
998 A.2d 684 (quotation omitted). “Evidence obtained in violation of the Vermont Constitution,
or as a result of a violation, cannot be admitted at trial as a matter of state law.” State v. Badger,
141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982).
¶ 10. Consent to search is a well-established exception that vitiates the need for either
probable cause or a search warrant when given by someone voluntarily and with the authority to
consent. State v. Williams, 2020 VT 91, ¶ 8, 213 Vt. 334, 246 A.3d 960. This includes third
parties, who may provide valid consent so long as the consenting party could have permitted the
search in their own right and the defendant has assumed the risk that a third party might allow a
search. State v. Chenette, 151 Vt. 237, 250, 560 A.2d 365, 374 (1989) (applying third-party
consent doctrine where State retrieved defendant’s documents by consent of third-party managing
them); see also United States v. Matlock, 415 U.S. 164, 170 (1974) (“[T]he consent of one who
possesses common authority over premises or effects is valid as against the absent, nonconsenting
person with whom that authority is shared.”). Here, defendant primarily challenges the
constitutional adequacy of M.B.’s consent to search the house, arguing that she did not have the
requisite authority to do so.
4 ¶ 11. Defendant first argues that M.B. did not have common authority over the home to
consent to a warrantless search. A person has common authority where there is a “mutual use of
the property by persons generally having joint access or control for most purposes.” Illinois v.
Rodriguez, 497 U.S. 177, 181 (1990) (quoting Matlock, 415 U.S. at 171 n.7). Defendant argues
that because children typically have less authority in the home, there should be a presumption
against their ability to invite guests in, even where the party seeking entry is a police officer.
Defendant cites a concurring opinion in United States v. Sanchez in support of his position. 608
F.3d 685, 698 (10th Cir. 2010) (Lucero, J., concurring).
¶ 12. We decline to adopt such a presumption for the following reasons. First, searches
undertaken outside of the normal judicial process are already presumptively unconstitutional,
Bauder, 2007 VT 16, ¶ 14, “and consequently the State has the burden of proving that such a search
does not violate Article 11.” State v. Kirchoff, 156 Vt. 1, 13, 587 A.2d 988, 996 (1991); see also
Savva, 159 Vt. at 80, 616 A.2d at 776 (“[T]he state bears the burden of showing that circumstances
require that they forego the warrant process.”). An additional presumption of the kind advocated
by defendant would be redundant and provide little supplementary protection to defendants under
the third-party doctrine. Furthermore, the totality-of-the-circumstances test employed by the trial
court properly considered a variety of factors relating specifically to a minor’s ability to consent
to a search, including their age, residence, scope of consent, and authority to permit inspection. In
fact, this multi-factor analysis comports with the spirit of Judge Lucero’s concurrence, which
recognizes that “the central assumption of Matlock,” that a joint occupant’s consent is valid against
a co-occupant, “falters when applied to children.” Sanchez, 608 F.3d 685, 697 (Lucero, J.,
concurring). Matlock’s evaluation of the hierarchy of occupant authority becomes much more
workable when applied to minors where, as here, the totality of circumstances is considered to
evaluate whether a minor can validly consent to a search.
5 ¶ 13. As the U.S. Supreme Court recognized in Georgia v. Randolph, evaluation of
consent “is in significant part a function of commonly held understanding about the authority that
co-inhabitants may exercise in ways that affect each other’s interests.” 547 U.S. 103, 111 (2006).
In implicitly acknowledging the varying degrees of authority that may be exercised by co-
inhabitants consenting to a search, including minors, the Court noted:
[A] child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller, such as a pollster or salesman, might well be admitted, but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom.
Id. at 112 (quotation omitted).
¶ 14. Here, the trial court properly considered the totality of the circumstances in
assessing M.B.’s common authority over the home through the lens of widely shared social
expectations, as articulated in Randolph. See 547 U.S. at 111 (“The constant element in assessing
Fourth Amendment reasonableness in the consent cases, then, is the great significance given to
widely shared social expectations.”). In consideration of this analogous federal caselaw, it arrived
at the conclusion that, based on M.B.’s age, experience, and residence, societal expectations
regarding children and parents, her relationship to defendant, as well as the scope of the search,
M.B. had the requisite common authority over the areas searched to provide valid consent. We
see no error in the legal analysis undertaken by the trial court here.
¶ 15. Defendant next argues that the trial court erred in finding that M.B. “lived full time
on the premises and had joint access to the house” because, at the time of the search, M.B. was
staying with a friend. We will only disturb the court’s factual findings “when, taking the evidence
in the light most favorable to the prevailing party, . . . the findings are clearly erroneous.” Brouha
v. Postman, 145 Vt. 449, 451, 491 A.2d 1038, 1039 (1985). There is ample support for the court’s
finding in the record here. In tacit recognition of M.B.’s residence, defendant’s conditions of
6 release forbade him from returning to the family home. Additionally, M.B. left a handwritten note
advising that she would “be back” and not to worry about her. The fact that M.B. had a permanent
bedroom at the home and continued to store her belongings there also supports M.B.’s residence
at, and joint access to, the house.
¶ 16. Defendant attempts to characterize M.B.’s entry into the home essentially as
breaking and entering, describing her actions as “circumventing its locked doors and taking the
way in through the basement.” But the deposition testimony defendant cites indicates that M.B.
and the investigators entered the home through an unlocked door at the rear of the house—the
entrance she typically used—and proceeded through the kitchen upstairs to M.B.’s bedroom.
Similarly, defendant makes much of the fact that M.B. did not have a key to the house, however,
there is no indication that she ever did. The record indicates that defendant’s wife possessed the
only key. In light of the foregoing, we cannot say that the trial court’s factual findings as to M.B.’s
residence and joint access are clearly erroneous. See Mullin v. Phelps, 162 Vt. 250, 260, 647 A.2d
714, 720 (1994) (“A finding will not be disturbed merely because it is contradicted by substantial
evidence; rather, an appellant must show there is no credible evidence to support the finding.”
(quotation omitted)).
¶ 17. Defendant next challenges the voluntariness of M.B.’s consent, arguing that the
State failed to satisfy its burden of proof. Defendant notes that the only evidence presented by the
prosecution was M.B.’s affirmative response to the question of whether she would be
“comfortable” returning to the house, which he argues is insufficient to demonstrate voluntary
affirmative consent. However, consent can be obtained both verbally and nonverbally, and both
explicitly and implicitly, including from “conduct which would be understood by a reasonable
person as conveying consent.” State v. Stevens, 2004 VT 23, ¶ 13, 176 Vt. 613, 848 A.2d 330
(mem.). Here, M.B. travelled to the house with investigators after having a detailed conversation
about gathering potential evidence. She led the investigators directly to her room after entering
7 the house, remarked that someone had removed both her laundry and trash, and immediately began
looking for these items. This course of conduct—actively assisting in the search for evidence—
supports the conclusion that a reasonable person would understand M.B. as consenting to the
search.
¶ 18. Defendant cites State v. Allis, where we held that a particular course of conduct
was insufficient to convey consent to enter the premises. 2017 VT 96, ¶ 18, 205 Vt. 620, 178 A.3d
993. But the conduct alleged to have conveyed consent there—a single gesture alerting officers
to the presence of person of interest in the home—pales in comparison to the course of conduct
here, where M.B. affirmatively participated in, and even led, the search. Defendant also asserts
that M.B.’s age and inexperience weigh heavily against her consent being voluntary. However, at
the time she consented to the search, M.B. had already been interviewed by police numerous times
and filed a complaint against defendant for sexual assault. This is not a case where an unknowing
child invites the police into her parent’s house. M.B. was fully cognizant of the circumstances and
the possible consequences of returning to the house with authorities.
¶ 19. Because the search occurred while both defendant and his wife were attending his
arraignment, defendant accuses the police of functionally removing them from the home, therefore
rendering the search illegal under Randolph. 547 U.S. at 121. In Randolph, the U.S. Supreme
Court elaborated on the hierarchy of authority between co-tenants, holding that a co-tenant who is
present can provide consent over a co-tenant who may object but is not present, so long as there is
no evidence that the absent co-tenant was purposefully removed to stifle their objection. Id. But
here, the police did not remove defendant from the house for the purpose of avoiding his objection
to the search. Further, as indicated by the trial court, it is immaterial whether investigators knew
that defendant would be at his arraignment during this time because his conditions of release
prevented him from returning to the house.
8 ¶ 20. Although defendant further presses that there was no urgency in undertaking the
search, “[a] warrantless consent search is reasonable and thus consistent with the Fourth
Amendment irrespective of the availability of a warrant.” Fernandez v. California, 571 U.S. 292,
306 (2014); see Savva, 159 Vt. at 80, 616 A.2d at 776 (holding inspection of closed container
inside arrestee’s vehicle required warrant unless consent provided, or exigent circumstances
existed). Further, the officer here obeyed the Court’s mandate in Savva by seizing the trashcan
and applying for a warrant before searching the contents. See Savva, 159 Vt. at 90, 616 A.2d at
782 (“The obvious, and correct, alternative is that the choice between an immediate search and a
temporary seizure while a warrant is sought belongs to the person whose constitutional interests
are at stake.” (quotation and brackets omitted).
¶ 21. Finally, defendant seems to be encouraging this Court to adopt a standard that
precludes any minor from providing consent to search or seizure based on a waiver of fundamental
rights. He first argues that M.B.’s consent was rendered involuntary because the police did not
adhere to the protections established in In re E.T.C., 141 Vt. 375, 379, 449 A.2d 937, 940 (1982).
There, we determined that a consultation with a disinterested adult as well as a knowing and
intelligent waiver is required where a minor relinquishes their own fundamental rights, such as the
right against self-incrimination or to the assistance of counsel. Id. This is not the case here.
Defendant is mistaken about the standard applied to consent in search-and-seizure cases. Unlike
the “knowing and intelligent” waiver required for other constitutional rights, “the inquiry in a
consent[-]search context is restricted to whether the consent was voluntary.” Zaccaro, 154 Vt. at
88, 574 A.2d at 1259 (quotation omitted).
¶ 22. Further, third-party consent in the context of a search does not rest upon the third
party’s waiver of another’s constitutional rights, but upon the occupant’s waiver of their own
privacy. Chenette, 151 Vt. at 249, 550 A.2d at 374 (declining to find unconstitutional search “not
because his rights were waived by the third party, but because he has relinquished his privacy”
9 (quotation omitted)). Here, M.B.’s consent was well within the limits of her socially perceived
authority, allowing callers entrance to the common areas of the house as well as her bedroom. See
Randolph, 547 U.S. at 111-12 (noting relationship between age, maturity, and societal expectations
of authority over domicile in determining third-party consent). Defendant’s assertion that a minor
cannot waive the constitutional rights of their parents fails for the exact same reason as in Chenette.
151 Vt. at 249, 550 A.2d at 374.
¶ 23. Defendant also encourages us to adopt a multi-factor test used in Florida which
defendant asserts protects the interests of minors. See Saavedra v. State, 622 So. 2d 952, 957-58
(Fla. 1993) (“In applying the Matlock test, Florida courts should focus on whether the police
officer had a reasonable belief based on articulable facts that the minor shared joint authority over
the home with the parent.” (emphasis omitted)). We see no need to do so given that the factors
used in that test are essentially the same as the factors used by this Court and also the federal
courts. Both sets of factors revolve around the minor having common authority to authorize a
search, which the officer reasonably believes the minor to possess, and the minor freely giving
consent. Regardless of whether we call these factors the “Florida test” or the “Vermont test,” the
factors have been satisfied here. Thus, for the reasons articulated above, defendant’s rights under
Article 11 were not violated by the warrantless search of defendant’s residence.
III. Speedy Trial
¶ 24. We thus turn to defendant’s speedy-trial claim. Defendant argues the trial court
erred in refusing to dismiss the charges. While the court found the total length of delay sufficient
to warrant consideration of all the Barker factors in the speedy trial analysis, it ultimately denied
defendant’s request. The trial court found that there was no intent on the part of the State to delay
the proceedings and that the majority of delays were attributable to the complexity of the case,
motion practice, and discovery. It added that much of the delay in defendant’s adjudication was
10 caused by the court’s response to the COVID-19 pandemic which, although attributed to the
government, was neither intentional nor unwarranted.
¶ 25. On review, we will uphold the trial court’s findings unless clearly erroneous and
review its legal conclusions de novo. State v. Turner, 2013 VT 26, ¶ 6, 193 Vt. 474, 70 A.3d 1027.
In evaluating speedy-trial claims, this Court applies the four-part balancing test set forth in Barker,
407 U.S. at 530-32. See, e.g., State v. Unwin, 139 Vt. 186, 195, 424 A.2d 251, 256 (1980); State
v. Snide, 144 Vt. 436, 442, 479 A.2d 139, 143 (1984). This test requires courts to weigh the
conduct of the prosecution and the defendant while examining: (1) the length of delay; (2) the
reason for the delay; (3) the extent to which the defendant asserted the speedy-trial right; and
(4) any prejudice that accrued to the defendant as a result of the delay. Barker, 407 U.S. at 530-
32. The first factor serves a dual role in our analysis, and as a threshold matter, requires finding a
sufficiently long period of delay as to trigger examination of the other factors. State v. Young,
2023 VT 10, ¶ 10, __ Vt. __, 292 A.3d 689. If a sufficient delay is found, we balance the length
of the delay along with the other factors to determine whether the defendant’s speedy-trial rights
have been violated. State v. Reynolds, 2014 VT 16, ¶ 19, 196 Vt. 113, 95 A.3d 973; State v.
Lafaso, 2021 VT 4, ¶ 12, 214 Vt. 123, 251 A.3d 935.
¶ 26. In weighing the length of the delay, the court evaluates “the extent to which the
delay stretche[d] beyond the bare minimum needed to trigger judicial examination of the claim”
within the context of the case as a whole. State v. Vargas, 2009 VT 31, ¶ 12, 185 Vt. 629, 971
A.2d 665 (mem.) (quoting Doggett v. United States, 505 U.S. 647, 656 (1992)); see also Lafaso,
2021 VT 4, ¶ 12 (noting that “this threshold test is dependent upon the peculiar circumstances of
the case” and tolerable period of delay for complex case will be longer than for less complex
offense (quotation omitted)). For example, in Vargas, this Court found a nine-month delay
sufficient to invoke examination of the remaining factors in a lewd-and-lascivious-conduct case.
2009 VT 31, ¶ 13. In Reynolds, this Court found that a twenty-three-month delay in a sexual
11 assault case warranted evaluation of the remaining Barker factors. 2014 VT 16, ¶ 19. In
considering the length of delay, pretrial motions and continuances requested by defendant are
excluded. State v. Williams, 143 Vt. 396, 401, 467 A.2d 667, 670 (1983).
¶ 27. In evaluating the reasons for the delay, more neutral reasons should be given little
weight where a deliberate attempt to delay the trial should be weighed heavily against the State.
Barker, 407 U.S. at 531. Courts assess the extent to which a defendant invoked their speedy-trial
right in consideration of defendant’s aggressiveness in invoking the right and acquiescence to long
delays, as well as the length of time before defendant’s first invocation. Id. at 529; Young, 2023
VT 10, ¶ 18 (“A delay in asserting the right to a speedy trial weighs against the accused.”). Finally,
courts look to potential prejudice to a defendant, considering their interests “(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to
limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. None of the four
factors is determinative on its own of a violation of the speedy-trial right. Id. at 533.
¶ 28. Here, the State concedes, and we agree, that the length of defendant’s pretrial
incarceration, approximately 1197 days, satisfies the threshold inquiry, allowing us to consider it
along with the remaining factors outlined in Barker. 407 U.S. at 530; Reynolds, 2014 VT 16, ¶ 19.
However, 562 of those days encompass the time leading up to defendant’s first trial and cannot be
considered an egregious length of time for pre-trial incarceration when ordinary trial preparation
and the complexity of this case are considered. Further, another 519 days reflects the time in which
jury trials were suspended by A.O. 49 in response to the COVID-19 pandemic, which although
still attributable to the State, represented a unique logistical challenge. Young, 2023 VT 10, ¶ 12.
In considering the length of delay against the backdrop of the circumstances of this particular case,
this factor does not weigh heavily in defendant’s favor. However, the length of delay alone is
rarely dispositive as “it is impossible to determine with precision when the right to speedy trial has
been denied” because such a constitutional guarantee “cannot be quantified” into a bright-line rule
12 but depends on the surrounding circumstances. State v. Recor, 150 Vt. 40, 42, 549 A.2d 1382,
1384 (1988) (quotations and brackets omitted).
¶ 29. Defendant argues that because the delay is largely unattributable to himself, the
second factor weighs in his favor for the purposes of finding a speedy-trial violation. Defendant
elaborates that blame for the delays caused by deposition scheduling and the circumstances of the
first mistrial must be laid at the feet of the State. Here, the jury draw was delayed multiple times
so the court could respond to several pretrial motions, including defendant’s motion to suppress,
motion for depositions, and his request for a “pick and go” trial. This delay is attributable to the
trial court’s accommodation of “the ordinary needs of trial preparation,” especially when the
complexity of a sexual-assault case, such as this, is considered. Lafaso, 2021 VT 4, ¶ 24.
Defendant’s first jury trial was held in November of 2019 but resulted in a mistrial due to juror
misconduct. However, as we noted in Reynolds, “the time lost due to the mistrial cannot be
attributed to either the prosecution or defense” and is most aptly characterized as “lost time,”
having left both sides with no resolution. 2014 VT 16, ¶ 21 (quotation marks omitted). Another
jury draw was scheduled for February 2020, but by then, the onset of the COVID-19 pandemic
had shuttered most of the country, resulting in the issuance of AO 49, the following month, which
suspended all upcoming jury trials.
¶ 30. Defendant further insists that because the judiciary suspended jury trials pursuant
to AO 49 in response to the pandemic, this delay is necessarily attributable to the State. While we
have previously noted in a bail appeal that “the government bears the responsibility of bringing
defendant to trial, even when it is delayed . . . by a public health emergency,” State v. Labrecque,
2020 VT 81, ¶ 26, 213 Vt. 635, 249 A.3d 671 (mem.), we have subsequently held that “the delay
in bringing defendants to trial during the pandemic was an extraordinary moment in modern
history that presented unprecedented ‘logistical challenges’ that were neither intentional nor
unwarranted, and ultimately the pandemic represents a ‘more neutral’ reason under Barker’s
13 second factor.” Young, 2023 VT 10, ¶ 17. Thus, while the delays caused by the COVID-19
pandemic are necessarily attributable to the State, they bear minimal weight. State v. Labrecque,
2023 VT 36, ¶ 28, __ Vt. __, __ A.3d __; Young, 2023 VT 10, ¶¶ 14, 17. Additionally, where we
find no indication that “periods of delay attributable to the State were deliberate,” the weight we
assign to those delays is limited. Lafaso, 2021 VT 4, ¶ 24. Accordingly, because the delays caused
by COVID-19 bear minimal weight and the remainder of delays were caused by ordinary trial
practice consistent with the complexity of this case, this factor only minimally weighs in
defendant’s favor.
¶ 31. Next, defendant contends that he continuously asserted his speedy-trial rights as
considered under the third Barker factor. Turner, 2013 VT 26, ¶ 11. “Aspects we consider when
weighing this factor include defendant’s knowing failure to object to delays, acquiescence in long
delays, failure to object to motions to continue, and the ‘frequency and force’ of the accused’s
speedy-trial objections.” Young, 2023 VT 10, ¶ 18 (quotation omitted). Defendant first asserted
his desire for trial “as soon as possible” after his mistrial at a June 2020 status conference before
filing a formal motion in August of 2020, almost two-and-a-half years after he was charged and
five months after Administrative Order 49 suspended jury trials. In total, defendant raised his
speedy-trial concerns approximately five times: twice verbally at status conferences, once briefly
in a motion to exclude, once in his formal motion for speedy trial, and once in a motion to dismiss,
but all after the suspension of jury trials and all within the same twelve-month period.
¶ 32. As we noted in Lafaso, consideration of the “frequency and force” of defendant’s
objections necessarily requires us to consider the “aggressiveness with which” and “extent to
which” defendant asserted the right. 2021 VT 4, ¶ 27 (quotation omitted); see also id. ¶ 29 (noting
multiple motions demanding trial constitute “strong showing” defendant asserted speedy-trial
rights while motions to dismiss and objections to continuances are “more feeble”). Here,
defendant’s tepid signals that he was ready for trial do not amount to a showing that he zealously
14 asserted the right. Defendant filed only a single written demand for trial, accompanied by a motion
to dismiss. Upon their denial, defendant only raised the specter of an immediate trial one more
time at a June 2021 pretrial conference. Thus, in consideration of defendant’s delay in asserting
the right and failure to do so until after the issuance of AO 49, any weight in his favor under this
factor is minimal.
¶ 33. Finally, defendant contends that he suffered substantive prejudice due to the delay.
Defendant starts by arguing that “affirmative proof of particularized prejudice is not essential,”
citing Doggett, 505 U.S. at 656. In Doggett, the U.S. Supreme Court recognized that the fourth
Barker factor could be satisfied by a showing of nonparticularized prejudice—a presumptive
prejudice based on generalizations—where the State was not able to rebut that presumption.
Doggett, 505 U.S. at 658. However, because the defendant did not argue he suffered from
presumptive nonparticularized prejudice in the trial court, providing the State with an opportunity
to rebut his claim, he has waived that argument on appeal, and we will not consider it. Progressive
Ins. Co. v. Brown ex rel. Brown, 2008 VT 103, ¶ 6, 184 Vt. 388, 966 A.2d 666 (“[I]n order to rely
upon an argument on appeal, an appellant must properly preserve it by presenting it to the trial
court with specificity and clarity.” (quotation omitted)).
¶ 34. Defendant’s claims of prejudice are largely based on the restrictive COVID-19
measures imposed on incarcerated individuals and how those restrictions had an impact on his
ability to confer with his attorney. However, aside from describing the oppressive conditions
brought about by the pandemic, defendant has failed to articulate any actual prejudice to his
defense. Generalizations about how these restrictions affected his interactions with his attorney
and the court system, in the absence of a concrete example of hindrance to his defense, are
insufficient to prove actual prejudice. See Turner, 2013 VT 26, ¶ 13 (“[A] general allegation . . . is
insufficient to establish prejudice.” (quotation omitted)). “Without more, defendant’s cryptic
statement does not serve to establish sufficient prejudice for this factor to weigh in his favor.” Id.
15 ¶ 35. Defendant has not shown that his speedy-trial rights were violated. While the
length of delay weighs minimally in his favor, the additional Barker factors are not particularly
favorable to defendant, including the most important factor: prejudice to his defense. Therefore,
we decline to vacate his conviction on speedy-trial grounds.
Affirmed.
FOR THE COURT:
Associate Justice