State v. West
In State v. West, 151 Vt. 140, 145, 557 A.2d 873, 876 (1988), the Court held that there was no violation of the defendant's right to counsel when, in fact, the defendant spoke with his attorney while "one police officer remained near the cubicle, and another paced the adjacent aisle, periodically checking on defendant."
The Court relied heavily on the defendant's own testimony that he did not request more privacy, even though he knew he was entitled to it.
The Court noted that "as a general rule, error does not require reversal unless it is prejudicial to the defendant."
In West, the Court rejected defendant's claim that the results of the breath test should have been suppressed, finding that although the defendant was given erroneous misinformation prior to taking the test, there was no prejudice to defendant because he was aware of the correct information. Id.
The Court further found that "the burden of proving prejudicial error rests with the defendant." Id.