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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford

No. 2016-0518

THE STATE OF NEW HAMPSHIRE

v.

DARLENE WASHBURN

Argued: November 14, 2017

Opinion Issued: April 13, 2018

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior 

assistant attorney general, on the brief and orally), for the State.

Harry N. Starbranch, of Portsmouth, on the brief and orally, for the 

defendant.

HICKS, J. Following a jury trial, the defendant, Darlene Washburn, was 

convicted of possession of a schedule II controlled drug. See RSA 318-B:2 

(2011) (amended 2013, 2015, 2016). On appeal, she argues that the Trial 

Court (Houran, J.) erred when it: (1) denied her motion to suppress evidence 

seized in warrantless searches of her purse, vehicle, and home; and (2) 

instructed the jury on a lesser-included offense that did not ensure jury 

unanimity and failed to protect her against double jeopardy. We affirm.
2

The issues raised by the defendant address two rulings made by the trial 

court at different stages of her prosecution: one ruling addressed the 

defendant’s motion to suppress, and the other addressed her motion for 

judgment notwithstanding the verdict (JNOV). To review the trial court’s 

suppression ruling, we consider the findings contained in its order and the

record of the suppression hearing as summarized below. See, e.g., State v. 

Morrill, 169 N.H. 709, 711 (2017).

In August 2013, the New Hampshire Attorney General’s Drug Task Force 

(task force) arranged for Donald Packer, who was in police custody as the 

result of a drug investigation, to contact the defendant and offer to sell Percocet 

to her. Packer telephoned her and she agreed to meet him at their “usual 

place” in Somersworth to purchase 100 tablets of 30 mg Percocet at $24 per 

tablet. Detective Plummer, who was assigned to the task force, then drove to 

the defendant’s home and observed her leave and travel toward Somersworth. 

Shortly thereafter, a marked Somersworth police cruiser stopped the 

defendant. An unmarked Somersworth police van pulled in front of the 

defendant’s car and Plummer pulled his unmarked vehicle in behind her car. 

Plummer approached the defendant’s car and asked her if she would be 

willing to speak with him. Because he was part of an ongoing undercover 

operation at that time, when Plummer was out of his vehicle, he wore a

balaclava to protect his identity. The defendant agreed to speak with him, 

exited her vehicle, and sat in the passenger’s seat of his vehicle. While in his 

vehicle, Plummer removed his balaclava. Another officer was already seated in 

the back seat of Plummer’s vehicle. After preliminary discussion during which 

the defendant lied about the purpose of her trip to Somersworth, Plummer 

advised the defendant that he knew about her arranged meeting with Packer. 

When Plummer asked the defendant how much money she was carrying, she 

reported that she had $2400, an amount consistent with the agreed-upon price 

for the Percocet. 

Plummer then asked the defendant whether she would agree to sign a 

consent-to-search form for her vehicle and her purse. He advised her that her 

consent was voluntary, that she did not have to sign the form, and that she 

could stop the search at any time. The defendant agreed orally to the searches

and then signed the form. Although the form listed “premises,” “automobile,”

and “person” as search options, only the automobile option was circled.

During the search of the defendant’s purse, Plummer found $2400. No 

evidence was obtained as a result of the search of her car. Plummer then 

asked the defendant what, if anything, was at her residence. She told him that 

there was no money there, only her prescription. At Plummer’s request, the 

defendant then agreed to a search of her home and executed a second consentto-search form. After arriving at her house, the defendant led the police
3

upstairs to her bedroom, where they seized cash and narcotics. The defendant 

was then placed under arrest and charged with possession of a controlled drug, 

possession with intent to sell a controlled drug, and attempted possession with 

intent to sell a controlled drug. See RSA 318-B:2. 

Following her arrest, the defendant filed two motions to suppress: the 

first sought to suppress “all evidence collected from the warrantless search of 

her purse, automobile and residence” and the second sought to “suppress all 

evidence collected both, direct and derivative, from [her] unwarned 

interrogation.” She argued that the statements she made after exiting her 

vehicle were the product of an unwarned custodial interrogation in violation of 

Miranda v. Arizona, 384 U.S. 436 (1966), and that the searches of her vehicle, 

purse, and home were illegal because her consent was either the product of her 

unlawful detention or otherwise involuntary. See State v. Socci, 166 N.H. 464, 

473 (2014) (evidence obtained by consent is admissible only if consent is both 

voluntary and not an exploitation of prior illegality).

The trial court ruled that the defendant was in custody by the time 

Plummer escorted her to his vehicle, and suppressed any incriminating 

statements that she made after that point. The court then considered whether 

her consent to search her purse, car, and home was valid. The court rejected 

her argument that she was unlawfully detained and found that her consent to 

the searches was voluntary. The court also determined that “any taint of the 

unwarned custodial interrogation had been purged” at the time that she 

consented to the searches. 

Following a jury trial, the defendant was acquitted of the charged 

offenses, but convicted of a lesser-included offense of possession of the 

controlled drug oxycodone.

On appeal, the defendant cites both the State and Federal Constitutions 

in support of her argument that the trial court erred when it denied her motion 

to suppress evidence seized in the warrantless searches of her purse, vehicle,

and home. See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV. She 

contends that her consent to search her purse was not freely given, but “was 

obtained by duress and under coercion.” She further argues that because the 

initial search of her purse was illegal, it tainted the subsequent search of her 

vehicle and her home. 

When we review a trial court’s ruling on a motion to suppress, we accept 

its factual findings unless they lack support in the record or are clearly 

erroneous. State v. McInnis, 169 N.H. 565, 569 (2017). Our review of the trial 

court’s legal conclusions is de novo. Id. We first address the issues under the 

State Constitution and rely upon federal law only to aid our analysis. State v. 

Ball, 124 N.H. 226, 231-33 (1983). 
4

Part I, Article 19 of the New Hampshire Constitution provides that 

“[e]very subject hath a right to be secure from all unreasonable searches and 

seizures of his person, his houses, his papers, and all his possessions.” N.H. 

CONST. pt. I, art. 19. A warrantless search is per se unreasonable and invalid 

unless it falls within one of a few recognized exceptions. State v. Francis, 167 

N.H. 598, 602 (2015). Voluntary consent free of duress and coercion is one of 

these exceptions. Socci, 166 N.H. at 473. The burden is on the State to prove, 

by a preponderance of the evidence, that the consent was free, knowing, and 

voluntary. Id. Whether the consent was voluntary or was the product of 

coercion, express or implied, is a question of fact to be determined from the 

totality of the circumstances. State v. McGann, 124 N.H. 101, 105-06 (1983); 

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). We will affirm the trial 

court’s finding of consent unless it is not supported by the record. Socci, 166 

N.H. at 473.

To support her argument that her consent to search was not voluntary, 

the defendant cites the trial court’s finding that she did not receive Miranda

warnings before being interrogated and its ruling that she was in custody when 

she was asked to give consent. She acknowledges that a Miranda violation 

does not automatically require a finding that her consent to search was not 

voluntary. See, e.g., State v. Johnston, 150 N.H. 448, 456-57 (2004) (observing 

that Miranda addresses Fifth Amendment protection against compulsory selfincrimination rather than Fourth Amendment protection against unreasonable 

searches and seizures); Schneckloth, 412 U.S. at 241 (“Nothing, either in the 

purposes behind requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or 

in the practical application of such a requirement suggests that it ought to be 

extended to the constitutional guarantee against unreasonable searches and 

seizures.”). She contends, however, that a Miranda violation should create a 

presumption of coercion when we consider the voluntariness of consent to 

search just as it does in the context of custodial interrogations. Because, she 

argues, the procedure used by the police to obtain her consent in this case had 

a “potential for abuse,” we should extend our previous holding barring the use 

of evidence obtained in violation of Miranda’s safeguards to supply probable 

cause for search warrants, see State v. Gravel, 135 N.H. 172, 184 (1991), to 

find that it also creates a presumption of coercion in our analysis of whether a 

defendant’s consent to search is voluntary.

Our test to determine whether consent was voluntary is based upon an 

examination of the totality of the circumstances. See Socci, 166 N.H. at 473. 

Given the scope of this test, we decline to hold that a Miranda violation results

in a presumption of coercion when assessing the voluntariness of consent to 

search. See also United States v. Gonzalez-Garcia, 708 F.3d 682, 688 (5th Cir. 

2013) (observing that to establish categorical rule that consent is coerced

 
5

whenever police use unwarned statement to obtain consent is inconsistent with 

multi-factor, holistic approach used to assess voluntariness). 

In this case, the trial court concluded that the defendant’s consent to 

search was voluntary based on the following findings: (1) Plummer reviewed the 

two consent forms with her and gave her time to read the forms on her own; (2) 

Plummer explained that her consent was voluntary and that she did not need 

to sign the forms; (3) Plummer told her that she could revoke her consent at 

any time; and (4) the defendant signed the forms, “indicating that she 

understood them.” Each of these findings is supported by the record.

We are not persuaded by the defendant’s argument that the same facts 

that supported the trial court’s finding of custody also compel a finding of 

duress and coercion. See, e.g., State v. McKenna, 166 N.H. 671, 676-77 (2014) 

(discussing factors to be considered in custody determination). The defendant 

contends that the “aggressive investigation” coupled with the illegal 

interrogation resulted in a coerced rather than voluntary consent. The trial 

court’s findings, however, do not support the defendant’s characterization of 

the investigation. Rather, the court found that throughout the conversation in 

Plummer’s vehicle, which lasted approximately fifteen minutes, Plummer’s tone 

remained “casual.” The court also found that the defendant was advised of her 

rights in relation to a consent search and then given time to consider whether 

to consent to the searches. These findings are supported by the record.

The defendant also argues that her purse was searched prior to the use 

of a written consent form, a factor “which contributes to the position that 

consent was not voluntary.” Plummer testified that he asked the defendant

whether she would “sign a consent-to-search form for the vehicle and her 

purse, which she agreed to do.” Although the signed form referenced only the 

defendant’s vehicle, the trial court credited Plummer’s testimony that his 

original request for consent included the defendant’s purse and that she orally 

agreed to both searches. Based upon our analysis of the totality of the 

circumstances, we conclude that the trial court did not err when it ruled that 

the State met its burden of proving, by a preponderance of the evidence, that 

the defendant freely, knowingly, and voluntarily gave consent to search her 

purse, vehicle, and home.

The defendant argues, however, that regardless of its voluntariness, “the 

taint of the Miranda violation cannot be purged from her oral consent to search 

[her] purse.” And, she argues, because the search of her purse was 

involuntary, “this illegal initial search of the purse taints the subsequent two 

searches even though [she] signed a consent form for those searches.” She

contends that we should apply the test that we developed in Hight, to 

determine the validity of a consent to search that was preceded by a violation of 

Part I, Article 19 and of the Fourth Amendment, to this case to determine 
6

whether any taint of the Miranda violation was purged. State v. Hight, 146 

N.H. 746, 749 (2001). Although the State argues that this test does not apply, 

for the purposes of this appeal, we will do so. 

Rather than adopting a per se rule that would suppress all evidence 

obtained from a consensual search following an unlawful detention, we 

adopted the following test in Hight: “whether, granting establishment of the 

primary illegality, the evidence to which instant objection is made has been 

come at by exploitation of that illegality or instead by means sufficiently 

distinguishable to be purged of the primary taint.” Id. (quotation omitted). We

emphasized the distinction between factors to be considered when determining 

whether the taint of an unlawful detention followed by consent to search had 

been purged and those factors to be considered to determine whether a consent 

to search is voluntary. We followed the United States Supreme Court’s 

approach in Brown v. Illinois, 422 U.S. 590, 603-04 (1975), and applied the 

following factors to determine whether any taint had been purged: (1) “the 

temporal proximity between the police illegality and the consent to search”; (2) 

“the presence of intervening circumstances”; and (3) “the purpose and 

flagrancy of the official misconduct.” Hight, 146 N.H. at 750 (quotations 

omitted). 

Here, the trial court found “absolute temporal proximity” between the 

unwarned custodial interrogation and the defendant’s consent to search. The 

State does not dispute this finding. The court, however, also found that

intervening circumstances were sufficient to purge the taint. This included the 

time that Plummer took to review the consent-to-search forms with the 

defendant and his explanation that her consent was optional, and that if she 

signed the form, she could revoke her consent at any time. We agree that 

Plummer’s actions dissipated any taint by breaking any causal connection 

between the unwarned custodial interrogation and the defendant’s consent. 

See State v. Miller, 159 N.H. 125, 131 (2009); cf. State v. Barkus, 152 N.H. 

701, 707 (2005) (holding that defendant’s election to proceed with breath test 

after being informed of her right to refuse constituted intervening act between 

primary illegality and subsequent search). The trial court also found that the 

conduct involved was not flagrant, noting that although it had found that the 

defendant was in custody at the time that she gave her consent, “the question 

was a relatively close one.” Cf. Miller, 159 N.H. at 133-34. As we have 

previously observed, one of the reasons that we require the State to prove that 

any taint of an illegal action has been purged is to deter police misconduct. 

State v. Szczerbiak, 148 N.H. 352, 357 (2002). Given the trial court’s finding 

that it was a “relatively close question” as to whether the defendant was in 

custody at the time that she gave her consent, it would not further the goal of 

deterrence to hold that her consent was tainted. See id. Therefore, we 

conclude that Plummer’s actions purged any taint of the unwarned custodial 

interrogation. Because the Federal Constitution provides no greater protection 
7

than the State Constitution under these circumstances, we reach the same 

result under both constitutions. See State v. Livingston, 153 N.H. 399, 408 

(2006); Schneckloth, 412 U.S. at 227; State v. McGurk, 157 N.H. 765, 772 

(2008); Brown, 422 U.S. at 603-04. 

The defendant next argues that the trial court erred when it denied her 

motion for JNOV following her conviction for possession of oxycodone. During 

their search of the defendant’s home, the police recovered 197 tablets of 15 mg 

oxycodone and 140 tablets of 30 mg oxycodone; seven of the 30 mg tablets 

were in an unmarked bottle. Evidence was presented at trial that the 

defendant’s daughter had a prescription for 15 mg oxycodone and that the 

defendant had filled her own prescription for 112 30 mg tablets five days before 

the search. Thus, at the time of the search, the defendant had in her 

possession more 30 mg oxycodone pills than she had been prescribed. 

The defendant nevertheless contends that the lesser-included instruction 

given by the trial court on possession of a controlled substance violated her 

right to jury unanimity and her protection against double jeopardy. This is so, 

she argues, because the evidence admitted at trial established that she 

possessed oxycodone in two different strengths, and she presented separate 

explanations for her possession of each. We note at the outset that the 

appellate record contains neither a copy of the motion nor a transcript of the 

hearing held before the trial court on the motion. See, e.g., Bean v. Red Oak 

Prop. Mgmt., 151 N.H. 248, 250 (2004) (burden on appealing party to provide 

court with record sufficient to decide issues on appeal). 

However, this omission is not the only impediment to our review of the 

defendant’s argument. As we have often explained, a specific, 

contemporaneous objection is necessary to preserve a challenge to a jury 

instruction for appellate review. State v. Nightingale, 160 N.H. 569, 577 

(2010).

This requirement affords the trial court an opportunity to correct 

an error it may have made and is particularly fitting when an 

alleged error involves a jury instruction. This long-standing 

requirement is grounded in common sense and judicial economy. 

To preserve a jury instruction issue for our review, counsel must 

do more than merely submit proposed instructions to the trial 

court, debate possible instructions with the trial court, or object 

generally to the admissibility of the evidence itself. To preserve a 

jury instruction issue for our review, counsel must actually make a 

specific objection to the court’s jury instructions. 

Id. (citations omitted). 
8

Our review of the trial transcript reveals that although defense counsel 

objected to the State’s request for a lesser-included offense instruction on the 

charge of possession with intent to sell, he did not argue that the instruction 

would violate either of the defendant’s constitutional rights that he cites in his 

brief. Accordingly, these challenges have not been preserved for appellate 

review.

The State argues that, if we address this claim of error, we should do so 

only under our plain error rule. See, e.g., State v. Pinault, 168 N.H. 28, 33 

(2015) (failure to raise claim of error in timely fashion does not preclude all 

appellate review but rather confines review to plain error). For us to find plain 

error: (1) there must be error; (2) the error must be plain; and (3) the error 

must affect substantial rights. Id. If all three of these conditions are met, we 

may then exercise our discretion to correct a forfeited error only if the error 

meets a fourth criterion: the error must seriously affect the fairness, integrity, 

or public reputation of judicial proceedings. Id. at 33-34. The plain error rule 

is used sparingly, however, and is limited to those circumstances in which a 

miscarriage of justice would otherwise result. Id. 

Whether a particular jury instruction is necessary, and the scope and 

wording of jury instructions, are within the sound discretion of the trial court. 

State v. Rice, 169 N.H. 783, 790 (2017). We review the trial court’s decisions 

on these matters for an unsustainable exercise of discretion. Id. To show that 

the trial court’s decision is not sustainable, the defendant must demonstrate 

that the court’s ruling was clearly untenable or unreasonable to the prejudice 

of her case. Id. 

The indictment charging the defendant with possession with intent to sell 

oxycodone stated that the defendant “knowingly possessed with intent to sell 

and/or dispense the scheduled II controlled drug oxycodone.” At the close of 

the evidence, the trial court instructed the jury that, if it decided that the 

defendant was not guilty of the crime of possession with intent to sell a 

controlled drug, it should then consider whether she was guilty of possession 

of a controlled drug. The court instructed: 

The definition of possession of a controlled drug has three 

parts or elements. The State must prove all elements of the charge 

beyond a reasonable doubt. Thus, the State must prove that: 1. 

The defendant possessed a substance[; and] 2. The substance was 

the Schedule II Controlled Drug, Oxycodone; and 3. The defendant 

acted knowingly. 
9

The words or phrases possess and knowingly have the same 

meaning here as in the definitions upon which I’ve previously 

instructed you. 

As to this lesser possession of a controlled drug charge, it is 

an affirmative defense to prosecution of a possession of controlled 

drug offense if the person charged had a lawful prescription for the 

controlled drug in question. The defendant has the burden of 

proving this affirmative defense to you by a preponderance of the 

evidence. Proof by a preponderance of the evidence means that the 

evidence presented by the defendant in support of the affirmative 

defense has greater weight or is more credible or convincing than 

evidence to the contrary. 

The trial court also instructed the jury:

Each of your verdicts must be unanimous. What this means 

is that all 12 jurors deliberating must agree on each of your 

verdicts. When you’ve arrived at all three of your verdicts, knock 

on the door, let your bailiff know and you will be returned to the 

courtroom where your foreperson will render or deliver your 

verdicts orally in response to questions that the Court will ask you. 

Based upon the trial court’s instructions, the defendant argues that 

there was a risk that some members of the jury might have believed that her 

daughter did not have a valid prescription and therefore concluded that the 

defendant illegally possessed only the 15 mg oxycodone, while other members 

might have concluded only that she did not have a valid prescription for the 30 

mg oxycodone. This, she argues, would result in a violation of her right to a 

unanimous jury verdict. 

However, as previously discussed, during the search of the defendant’s 

home, the police recovered more pills than had allegedly been prescribed to her 

and her daughter. Given this evidence, the trial court’s failure to give a 

unanimity instruction could not have affected the verdict. Moreover, as the 

State notes, we have not yet addressed the issue of whether jury unanimity is 

required in a case where the State has alleged one act of possession, but 

evidence presented at trial could support more than one act and different 

potential defenses might apply to each act. Given the record before us, if there 

was error, it was not plain. See Pinault, 168 N.H. at 33.

To the extent that the defendant alleges that allowing the jury to consider 

the lesser-included offense “fail[ed] to protect [her] against double jeopardy,” 

she has not explained the basis for this assertion. Given her failure to develop
10

this argument, we decline to address it. See, e.g., State v. Reinholz, 169 N.H. 

22, 31 (2016).

Affirmed.

LYNN, C.J., and BASSETT and HANTZ MARCONI, JJ., concurred; 

DALIANIS, C.J., retired, specially assigned under RSA 490:3, concurred.