After two straight motions with no response, Tara Heater finally has something to say and doesn't want the case thrown out. Judge O'Neill will no doubt give her whatever she wants, no matter how poorly she is prepared for trial. See more at www.nhdrugtaskforce.com

1. STATE OF NEW HAMPSHIRE
Grafton, SS. Superior Court
State of New Hampshire
v.
Richard Bergeron
Superior Court Case: 211-2019-CR-0163
Charge ID: 1602978C, 1602979C, 1602980C, 1602981C, 1602995C, 1602996C
STATE'S OBJECTION TO MOTION TO DISMISS
NOW COMES the State of New Hampshire, by and through the Office of the
Grafton County Attorney, Tara J. Heater, Deputy County Attorney and states as follows:
1. The State is in receipt of the Defendant’s Motion to Dismiss. It was received on
or about June 14, 2021.
2. The State objects.
Relevant Procedural History
3. The following procedural history is relevant to the determination of the Motion.
a. The defendant was arrested on or about February 28, 2019.
b. An arraignment was held on March 21, 2019.
c. At the arraignment, the defendant indicated that he wished to represent
himself. On March 27, 2019 an Order of Court was entered to allow him
to appear pro se and appoint a standby attorney. On April 5, 2019,
Caroline Smith, Esq. entered her appearance as standby counsel. On
April 8, 2019, Standby Counsel filed a Motion to Determine Duties of
Standby Counsel. That Motion was granted on June 3, 2019.
d. A Motion to Dismiss was filed by the defendant on March 25, 2019. An
Objection was filed by County Attorney Livernois on March 26, 2019. A
response was filed by the defendant on April 1, 2019 and a supplemental
objection was filed on April 4, 2019 by County Attorney Livernois. A
supplemental brief was filed by the defendant on April 8, 2019. The
hearing on the Motion to Dismiss was held on April 10, 2019. The Order
of Court denying the Motion to Dismiss was entered on June 3, 2019,
e. The defendant was indicted on May 16, 2019.

2. f. On July 18, 2019, the defendant filed a Motion to Recuse or Disqualify
County Attorney Andrew Livernois. An objection to that motion was filed
on August 1, 2019. A response to the objection was filed by the defendant
on August 12, 2019. A hearing on the Motion was scheduled for August
30, 2019. The Order of the Court denying the Motion was entered on
September 30, 2019.
g. A Dispositional Conference was held on August 30, 2019.
h. On September 16, 2019, the defendant filed a Motion to Suppress his
statements. A response was filed by County Attorney Livernois conceding
the State would not use the defendant’s statements against him. The
Order of Court finding the Motion to Suppress Moot was entered on
October 2, 2019.
i. On October 1, 2019, County Attorney Livernois filed a Witness List.
j. On October 7, 2019, the defendant filed a Motion to Compel. County
Attorney Livernois filed an Objection on November 6, 2019. A hearing on
the Motion to Compel was held on November 7, 2019. The defendant
filed a response on November 14, 2019. The Order of Court denying the
Motion to Compel was entered on January 3, 2020.
k. On November 7, 2019, a Final Pre-Trial Hearing was held. The trial was
scheduled for Jury Selection on November 25, 2019.
l. On November 8, 2019, County Attorney Andrew Livernois filed a Motion to
Continue Trial. The Motion to continue was requested because one of the
witnesses would be unavailable. On November 14, 2019, the defendant
filed an objection. A hearing on the Motion to Continue was held on
November 20, 2019. On the same dated, the Order of Court granting the
Motion to Continue was entered. A Final Pre-Trial was scheduled for Jury
Selection on January 27, 2020 with Jury Selection to occur on February 3,
2020.
m. On November 14, 2019, the Defendant filed several Motions in Limine.
Objections to those Motions were filed on November 20, 2019. The
Motions in Limine were scheduled for a hearing on December 16, 2019.
On December 10, 2019, Assented to Motions to Continue the Motion in
Limine Hearing was filed and granted. The hearing was continued to
January 3, 2020. An Order denying the Motions in Limine was entered on
January 8, 2020. On January 13, 2020, the defendant filed a Motion to
Reconsider the ruling on the Motions in Limine. The State filed a non-
objection on January 27, 2020. An order of Court denying the Motion to
Reconsider was entered on January 31, 2020.
n. On January 24, 2020, the defendant filed an assented to Motion to
Continue Final Pre-Trial and Jury Selection. The Motion was granted on

3. January 27, 2020. On January 31, 2020, Final Pretrial was scheduled for
May 28, 2020 with Jury Selection to occur on June 8, 2020.
o. On March 13, 2020, the Governor of New Hampshire issued a State of
Emergency related to COVID. In response, on March 16, 2020, the
Supreme Court of New Hampshire issued an order suspending nearly all
in person hearings from March 16, 2020 until April 6, 2020. That Order
was subsequently reissued twenty times and on June 11, 2021 was
allowed to expire. On July 14, 2020, the Court instituted a State Court
Jury Trial Plan which would attempt to allow trials to proceed safely. Under
the protocols, incarcerated defendants with speedy trial concerns were to
be prioritized.1
p. On May 19, 2020, a Status Conference was scheduled to discuss
rescheduling the Final Pre-Trial and Jury Selection dates. The Final Pre-
Trial was rescheduled to September 24, 2020 with Jury Selection to occur
on October 5, 2020. This trial date was cancelled by the Court on August
19, 2020 due to COVID concerns.
q. On May 22, 2020, a Motion for a Court Order Prohibiting Pre-Trial
Publicity was filed by the Belknap County Attorney’s Office. The
defendant filed an objection on May 27, 2020. The ACLU entered an
Appearance and a Notice of Intent to file an Amicus brief. That brief was
filed on June 19, 2020 along with a Motion to Participate in Oral Argument
which was granted. A hearing was scheduled for July 21, 2020. The
Motion was withdrawn on July 17, 2020.
r. On July 15, 2020, the undersigned entered an appearance in this case and
County Attorney Livernois filed a withdrawal.
s. On July 20, 2020, the defendant filed a Motion for Court Ordered
Sanctions. An objection was filed on July 27, 2020. A response was filed
by the defendant on July 29, 2020. A hearing on the Motion was
scheduled for September 9, 2020. An Order denying the Motion was
entered on October 23, 2020.
t. The State filed a Motion in Limine for Voir Dire questions on or about
August 13, 2020. An Objection was filed by the defendant on August 24,
2020. A hearing was set for September 9, 2020. The Motion was held in
abeyance pending the scheduling of the trial.
1 The constraints of the plan and the facility concerns for certain courthouses made it difficult to schedule
multiple trials during a trial period and some courthouses were prohibited from holding trials at all.
Belknap County only conducted four trials during the pandemic: one in October 2020, one in March 2021,
one in May 2021 and one in June 2021. For these cases, jury selection alone required four days of court
time. Belknap County has a large backlog of incarcerated defendants who are pending trial and should
be given priority over non-incarcerated defendants.

4. u. On February 1, 2021, the defendant filed an Amended Motion for Court
Ordered Sanctions. On February 5, 2021, the defendant filed a Motion to
Amend the Amended Motion for Court Ordered Sanctions. The State filed
on objection on February 9, 2021. Defendant filed a Response on
February 11, 2021. A Motion hearing was scheduled for March 5, 2021.
The Court Order denying the Amended Motion for Court Ordered
Sanctions was entered on March 11, 2021.
v. On April 7, 2021, the defendant filed a Motion to Recuse Judge O’Neill. An
Order denying the Motion was entered on May 12, 2021. Defendant filed
a Motion to Reconsider on May 21, 2021. An Order of Court denying the
Motion to Reconsider was entered on June 7, 2021.
w. On June 10, 2021, the defendant provided notice to the undersigned that
he intended to file a referral with the Judicial Conduct Committee
regarding Judge O’Neill.
x. On June 14, 2021, the State received the instant Motion to Dismiss for
lack of Speedy Trial.
Legal Argument
4. A defendant is entitled to a speedy trial under both the provisions of the State
Constitution at Article 14, Part 1 and the Sixth Amendment to the United States
Constitution.
5. The Sixth Amendment provides that “in all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial.” This right is also applicable to
the States. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1
(1967)
6. Article 14, Part 1 of the New Hampshire Constitution provides in relevant part:
“Every subject of this state is entitled to certain remedy, by having recourse of
the laws…promptly, and without delay, conformably to the laws.”
7. In New Hampshire, the Supreme Court has held that such a right is necessarily
relative and must be considered with regard to the practical administration of
justice. Riendeau v. Municipal Court, 104 N.H. 33, 34 (1962). The Court in
Riendeau went on to clarify that “[a] disposition of a case made according to the
prevailing proceedings of law free from arbitrary, vexatious and oppressive
delays is considered to be in accordance with such a constitutional requirement”.
Id. at 35.
8. In 1972, the United States Supreme Court adopted a four part test to evaluate
challenges to a defendant’s speedy trial rights. Specifically, a reviewing court
must balance four factors: (1) length of delay; (2) the reason for the delay; (3) the
defendant’s assertion of his right; and (4) prejudice to the defendant. Barker v.
Wingo, 407 U.S. 514, 530, 92 S.Ct 2182, 33 L.Ed.2d 101 (1972). The court
must regard none of the four factors identified above as either a necessary or
sufficient condition, in and of itself, to the finding of a deprivation of the right of

5. speedy trial. Rather, they are related factors that must be considered together.
Id. at 533.
9. Shortly after the publication of Barker v. Wingo, the New Hampshire Supreme
Court adopted the four part test as appropriate for determining whether a
defendant’s speedy trial rights had been violated. See e.g., State v. White, 116
N.H. 687 (1976), State v. Cole, 118 N.H. 829 (1978); State v. Dufield, 119 N.H.
28 (1979), State v. Hudson, 119 N.H. 963 (1979).
10.Not every delay is prejudicial. The threshold inquiry is whether the delay is
presumptively prejudicial. See, State v. Allen, 150 N.H. 290, 292 (2003) ("If the
length of the delay is not presumptively prejudicial, however, we do not consider
the remaining three factors.");
11.The current Superior Court Speedy Trial Policy provides:
a. Unless the court record establishes that there is no basis for believing a
defendant’s speedy trial rights may have been violated, where the
defendant is not incarcerated, … every felony case pending without
disposition after 9 months from the date of an indictment shall be
scheduled forthwith for a show cause hearing as to whether, under the
principles of Barker v. Wingo, 407 U.S. 514, 92 S. Ct 2182, 33 L.Ed.2d
101 (1972), the case should be dismissed for lack of a speedy trial.
12.In this case, the defendant was indicted May 16, 2019. From the date of the
indictment to the date of filing this Motion to Dismiss, 761 days of elapsed. This
is well in excess of the 270 days contemplated in the policy. However, while
there is a long delay in this case, there is no basis to believe that the defendant’s
speedy trial rights may have been violated.
13.A review of the procedural history above clearly establishes that the majority of
the delay in this case is attributable to either the defendant or the COVID 19
pandemic. From the date of indictment until the filing of this motion,
approximately 500 days have had motions pending. That does not take into
account the limitations which were placed upon the Court during the COVID 19
pandemic. It would be the State’s position that the court record clearly
establishes that any delay in this case is a result of the pending motions and the
COVID 19 pandemic and did not violate the defendant’s speedy trial rights.
14.If the Court determines that there must be a further inquiry and that the delay
triggered further evaluation, the remaining three factors must be considered: (1)
reason for the delay; (2) defendant’s assertion of his right and (3) prejudice to the
defendant. The New Hampshire Supreme Court has indicated that substantial
emphasis should be placed on the last two factors: the defendant’s assertion of
the right and the prejudice to the defendant. State v. Cole, supra.
15.In assessing reasons for the delay factor, the Court determines "why the trial has
been delayed, to which party the delay is attributable, and how much weight to
give the delay." Allen, 150 N.H. at 294. A deliberate attempt to delay by either
party is weighed heavily against that party. Humphrey v. Cunningham, 133 N.H.
727, 735 (1990). "A more neutral reason such as negligence or overcrowded

6. courts should be weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances rest with the [State)
rather than with the defendant." Humphrey, 133 N.H. at 735.
16.When we examine the reason for the delay, a review of the procedural history
above clearly establishes that the majority of the delay in this case is attributable
to either the defendant’s Motions practice or the COVID 19 pandemic. There has
been very little time in which the Court could have scheduled the trial. Post
indictment, the following time periods did not have a motion pending:
a. June 4 to July 17, 2019
b. October 3 to October 6, 2019
c. January 9 to 12, 2020
d. February 1 to May 21, 2020 (It should be noted that Jury Selection and
Trial had been scheduled during this time, but a Motion to Continue had
been filed because standby counsel had a scheduling conflict with another
county.)
e. July 16 to 19, 2020
f. October 24, 2020 to January 31, 2021
g. March 12 to April 6, 2021
h. May 13 to 20, 2021
17.There is no evidence that the State has actively sought to prolong the scheduling
of the trial in this case. The State has responded to all motions that required a
response and has appeared at all hearings that were scheduled. The State has
filed Motions in Limine for the selection of the Jury when the case was scheduled
for trial. It was the defendant who was not prepared to address that Motion when
it was scheduled by the Court.
18.The reason for the delay is the defendant’s Motion practice and the COVID
pandemic. As a substantial portion of the delay was attributable to the defendant,
the delay does not count against the State. State v. Eaton, 162 N.H.190, 196
(2011). "When the reason for the delay is the vicissitudes of scheduling, the
delay does not weigh heavily against the State." Allen, 150 N.H. at 294.
Therefore, this factor weighs against dismissal.
19.The third factor is the defendant’s assertion of his right to a speedy trial. "The
defendant's failure to actively pursue his right to a speedy trial weakens his
argument ... that he was denied this right." State v. Maynard, 137 N.H. 537, 538-
39 (1993).
20.While the undersigned has not been counsel for the entire period that these
charges were pending, the State is unaware of any Demand for a Speedy Trial
having been filed by the defense and none is reflected in the Case Summary
available through Odyssey. Even if there had been a prior demand for a speedy
trial, the number of motions which have been filed by the defendant would not be

7. counted toward the delay. See, State v. Blake, 113 N.H. 115, 121-122 (1973
citing Riendeau v. Milford Municipal Court, supra, 104 N.H. at 34. The defendant
asserts that he has repeatedly expressed his desire to go to court during his
motions practice, but he has not filed a demand for a speedy trial and it is the
defendant’s motions practice that has been primarily responsible for the delay.
The lack of assertion of the right to speedy trial weighs against dismissal.
21.As to the prejudice element, the Court has identified three factors for courts to
examine: (1) oppressive pre-trial incarceration, (2) minimization of anxiety and
concern of the accused; and (3) limit the possibility that the defense will be
impaired. Barker v. Wingo, supra, 407 US at 532.
22.In New Hampshire, case law is clear that if the defendant is not incarcerated pre-
trial, there is no prejudice. State v. Cotell, 143 NH 275, 283 (1998). In this case,
the defendant did not spend any time in custody. This factor weighs against
dismissal.
23.The second possible factor is anxiety and concern suffered by the defendant.
However without the defendant being able to identify actual prejudice,
generalized anxiety and concern has been found to be insufficient to establish
actual prejudice. Ibid. As the defendant has not established any actual prejudice
in this regard, the factor weights against dismissal.
24.A final factor to consider is whether the defendant’s defense has suffered as a
result of the delay. The defendant has offered no argument that he has lost
witnesses or that memories are impaired. State v. Weitzman, 121 N.H. 83, 87
(1981). The defendant has not offered an argument that the pretrial publicity has
negatively impacted the selection of a fair and impartial jury. State v. Cotell, supra,
143 N.H. at 283. In fact, he maintains the opposite when those arguments were
raised by the State concerning pretrial publicity. This factor weighs against the
dismissal.
25.A review of the Barker v. Wingo factors do not support the dismissal of the charges
in this case. The delay, longer than the preferred nine months, is not, in fact,
prejudicial when the reasons for the delay are examined and an evaluation of the
assertion of the right and the lack of prejudice to the defendant is examined. For
the reasons set forth above, the State submits that the Motion should be denied.
WHEREFORE, the State requests that this Honorable Court:
A. DENY the Defendant's Motion without a hearing; or
B. HOLD a hearing on the matter; or
C. Grant any other relief deemed proper and just.
Respectfully Submitted,
STATE OF NEW HAMPSHIRE
June 16, 2021
/s/Tara J. Heater
_______________________
Tara J. Heater, Esq.

8. Deputy County Attorney
NH Bar # 265655
Grafton County Attorney's Office
Office of the Grafton County Attorney,
3785 Dartmouth College Highway
North Haverhill, NH 03774
(603) 787-6968
CERTIFICATE OF SERVICE
I hereby certify that I, or my representative, have served a copy of the foregoing
through the New Hampshire Judicial Branch eCourt System on Richard Bergeron,
counsel for the defendant.
Respectfully Submitted,
STATE OF NEW HAMPSHIRE
June 16, 2021
/s/Tara J. Heater
_______________________
Tara J. Heater, Esq.
Grafton County Attorney's Office