State v. Joshua Boyer

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.

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¶ 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.
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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.

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¶ 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.

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¶ 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

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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

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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.

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¶ 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

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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

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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

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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.

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¶ 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

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