State of New Hampshire v. Darlene Washburn

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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.
 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 consent-
to-search form. After arriving at her house, the defendant led the police

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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).

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 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 self-
incrimination 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

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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

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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

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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).

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 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.

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 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

9
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.

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