Barker factors in Virginia

2023Accordingly, given our resolution of this matter, supra, we need not address the remaining Barker factors—“the defendant’s assertion of his right [to a speedy trial], and prejudice to the defendant.” Ali, 75 Va. App. at 34 (quoting Barker, 407 U.S. at 530 ). -8- “[b]ecause the Commonwealth failed to ‘spread on the record’ the reasons for the . . . delays attributable to the initial trial setting and the two subsequent continuances, it was negligent” and “breached its [speedy trial] duty.” A. Apportionment of Delay Between the Commonwealth and Appellant This Court must first determine which por

2023See Brown, 75 Va. App. at 410 (explaining all four Barker factors are “related” and “must be considered together with such other circumstances as may be relevant” (quoting Barker, 407 U.S. at 533 )). - 40 - Here, the majority of the delay—624 days—resulted from appellant’s waivers of speedy trial, both explicitly and by operation of law.51 Conversely, only 341 days of delay are attributable to the Commonwealth, the vast majority of which is justified based on pandemic-related reasons or the ordinary administration of justice.

2015Length of Delay The first factor evaluated under the Barker analysis is the length of delay. “[A] suspect becomes an ‘accused’ within the intendment of the Sixth Amendment when he is placed under arrest.” Fowlkes, 218 Va. at 766 , 240 S.E.2d at 664 ; Dillingham v. United States, 423 U.S. 64, 64-65 , 96 S.Ct. 303, 303 , 46 L.Ed.2d 205 (1975).

2015Length of Delay The first factor evaluated under the Barker analysis is the length of delay. “[A] suspect becomes an ‘accused’ within the intendment of the Sixth Amendment when he is placed under arrest.” Fowlkes, 218 Va. at 766 , 240 S.E.2d at 664 ; Dillingham v. United States, 423 U.S. 64, 64-65 , 96 S.Ct. 303, 303 , 46 L.Ed.2d 205 (1975).

2024Reasons for delay “Once it is established that a delay was ‘“presumptively prejudicial,” the burden “[shifts to] the Commonwealth,”’ under the second factor of the Barker test, to show two things.” Ali, 75 Va. App. at 36 (quoting Beachem v. Commonwealth, 10 Va. App. 124, 131 (1990)).

2024Reasons for delay “Once it is established that a delay was ‘“presumptively prejudicial,” the burden “[shifts to] the Commonwealth,”’ under the second factor of the Barker test, to show two things.” Ali, 75 Va. App. at 36 (quoting Beachem v. Commonwealth, 10 Va. App. 124, 131 (1990)).

2023See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force” of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived futility” of objecting “does not excuse” a defendant from doing so because of their duty to create 52 See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the trial date under Code § 19.2-243(4).’” (qu

2023See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force” of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived futility” of objecting “does not excuse” a defendant from doing so because of their duty to create 52 See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the trial date under Code § 19.2-243(4).’” (qu

2023See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force” of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived futility” of objecting “does not excuse” a defendant from doing so because of their duty to create 52 See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the trial date under Code § 19.2-243(4).’” (qu

2023See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force” of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived futility” of objecting “does not excuse” a defendant from doing so because of their duty to create 52 See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the trial date under Code § 19.2-243(4).’” (qu

2025“A delay that ‘approaches one year’ has been found to trigger a Barker inquiry.” Brown, 75 Va. App. at 407 (quoting Doggett v. United States, 505 U.S. 647 , 652 n.1 (1992)).

2025“A delay that ‘approaches one year’ has been found to trigger a Barker inquiry.” Brown, 75 Va. App. at 407 (quoting Doggett v. United States, 505 U.S. 647 , 652 n.1 (1992)).

1990We therefore look to the “ ‘balancing test’ of Barker as refined by MacDonald.” Holliday, 3 Va. App. at 616 , 352 S.E.2d at 364 . (1) Length of Delay The first of the Barker factors, the length of delay, is properly considered separately from the other three, for if the delay in bringing a defendant to trial is not sufficient to raise at least an inference of injustice, further exploration is unnecessary.

1990We therefore look to the “ ‘balancing test’ of Barker as refined by MacDonald.” Holliday, 3 Va. App. at 616 , 352 S.E.2d at 364 . (1) Length of Delay The first of the Barker factors, the length of delay, is properly considered separately from the other three, for if the delay in bringing a defendant to trial is not sufficient to raise at least an inference of injustice, further exploration is unnecessary.

2023But see United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir. 2002) (noting that the first three Barker factors “should be used to determine whether the defendant bears the burden to put forth specific evidence of prejudice (or whether it is presumed)”); United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006) (same); United States v. Fernandes, 618 F.Supp.2d 62, 73 (D.D.C. 2009) (holding that under the fourth Barker factor, “[i]f the government is more to blame for delay than the defendant, then prejudice is presumed”).

2023A defendant is chargeable with a delay where he requested a continuance, see Price v. Commonwealth, 24 Va. App. 785, 790-91 (1997), or concurred in a continuance, see Arnold v. Commonwealth, 18 Va. App. 218, 223 , aff’d on reh’g en banc, 19 Va. App. 143 (1994). 1.

2023A defendant is chargeable with a delay where he requested a continuance, see Price v. Commonwealth, 24 Va. App. 785, 790-91 (1997), or concurred in a continuance, see Arnold v. Commonwealth, 18 Va. App. 218, 223 , aff’d on reh’g en banc, 19 Va. App. 143 (1994). 1.

2023But see United States v. Bergfeld, 280 F.3d 486, 490 (5th Cir. 2002) (noting that the first three Barker factors “should be used to determine whether the defendant bears the burden to put forth specific evidence of prejudice (or whether it is presumed)”); United States v. Ingram, 446 F.3d 1332, 1336 (11th Cir. 2006) (same); United States v. Fernandes, 618 F.Supp.2d 62, 73 (D.D.C. 2009) (holding that under the fourth Barker factor, “[i]f the government is more to blame for delay than the defendant, then prejudice is presumed”).

2023In addition, we note that we have not discovered any federal or state case where a delay of 13 months, even when attributing all of the time against the Commonwealth, was found to be a constitutional speedy trial violation. 11 The dissent relies heavily on an Eleventh Circuit decision, Ingram, 446 F.3d 1332 .

2023The Ingram court held that the government’s negligence was “egregious”; its investigation of the offense was 15 “‘Presumed prejudice’ has a dual meaning.” Crebs v. State, 474 P.3d 1136, 1147 (Wyo. 2020). “‘Presumptive prejudice’ initially refers to the threshold determination of whether the pretrial delay is long enough to trigger consideration of the Barker factors.” Id. “‘[A]s the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to

2023The Ingram court held that the government’s negligence was “egregious”; its investigation of the offense was 15 “‘Presumed prejudice’ has a dual meaning.” Crebs v. State, 474 P.3d 1136, 1147 (Wyo. 2020). “‘Presumptive prejudice’ initially refers to the threshold determination of whether the pretrial delay is long enough to trigger consideration of the Barker factors.” Id. “‘[A]s the term is used in this threshold context, “presumptive prejudice” does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to

2023See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force” of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived futility” of objecting “does not excuse” a defendant from doing so because of their duty to create 52 See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the trial date under Code § 19.2-243(4).’” (qu

2023See Ali, 75 Va. App. at 46 (permitting a court to “weigh the frequency and force” of appellant’s objections to delay (quoting Rogers v. Commonwealth, 5 Va. App. 337, 347 (1987))); see also Commonwealth v. Jerman, 263 Va. 88, 94 (2002) (holding that the “perceived futility” of objecting “does not excuse” a defendant from doing so because of their duty to create 52 See Palmer, slip op. at 11-12 (“[A] defendant’s agreement with or failure to object to a court setting a trial date outside the statutory speedy trial period ‘constitutes a continuance of the trial date under Code § 19.2-243(4).’” (qu

2022See Bunton v. Commonwealth, 6 Va. App. 557, 558 (1988) (noting Code § 19.2-243 “augment[s]” Sixth Amendment rights (citing Holliday, 3 Va. App. at 615 )). - 16 - nature of speedy trial analysis and specifically rejects the idea that a rigid, legislatively-fixed length of time should govern a constitutional speedy trial claim.

2022See Bunton v. Commonwealth, 6 Va. App. 557, 558 (1988) (noting Code § 19.2-243 “augment[s]” Sixth Amendment rights (citing Holliday, 3 Va. App. at 615 )). - 16 - nature of speedy trial analysis and specifically rejects the idea that a rigid, legislatively-fixed length of time should govern a constitutional speedy trial claim.

2022See Rules 5A:18, 5A:20; Montgomery v. Commonwealth, 56 Va. App. 695, 705-06 (2010). - 13 - We note that the remaining Barker factors, when balanced together, similarly do not tilt in appellant’s favor.

2022See Rules 5A:18, 5A:20; Montgomery v. Commonwealth, 56 Va. App. 695, 705-06 (2010). - 13 - We note that the remaining Barker factors, when balanced together, similarly do not tilt in appellant’s favor.

1992See Moten, 7 Va. App. at 445, 374 S.E.2d at 708 ; Fowlkes v. Commonwealth, 218 Va. 763, 766 , 240 S.E.2d 662, 664 (1978); Beachem v. Commonwealth, 10 Va. App. 124, 131 , 390 S.E.2d 517, 520 (1990).

1992See Moten, 7 Va. App. at 445, 374 S.E.2d at 708 ; Fowlkes v. Commonwealth, 218 Va. 763, 766 , 240 S.E.2d 662, 664 (1978); Beachem v. Commonwealth, 10 Va. App. 124, 131 , 390 S.E.2d 517, 520 (1990).