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State v. Hill7/2/2001
urteenth Amendment. Id.; see also Combs v. Coyle, 205 F.3d 269, 280 (6th Cir. 2000); United States v. Oplinger, 150 F.3d 1061, 1067 n. 5 (9th Cir. 1998). This is true even where, as here, the trial court found that the defendant should have received Miranda warnings when he was taken into custody. See Combs, 205 F.3d at 280.
The defendant's argument on appeal relies largely on Doyle, and the defendant does not argue that if Doyle is found to be inapplicable this court should nonetheless conclude that the State violated the defendant's due process rights under Part I, Article 15 of the New Hampshire Constitution. Because we find no compelling reason to conclude that the State Constitution provides greater protection in this area than does the Federal Constitution, we conclude that the State's comment on the defendant's post-arrest, pre-Miranda silence did not violate the defendant's due process rights. Cf. Breest v. Perrin, 125 N.H. 703, 705 (1984).
It should be noted that with respect to the Fourteenth Amendment of the United States Constitution, this court has addressed only the issue of Fourteenth Amendment due process and not the issue of any Fifth Amendment rights as incorporated by the Due Process Clause of the Fourteenth Amendement. These are distinct concepts. See Combs v. Coyle, 205 F.3d at 280 (" he comment on [the defendant's] pre-Miranda silence did not violate due process. This does not, however, rule out the possibility that such comment is a violation of [the defendant's] Fifth Amendment privilege against self-incrimination.") Because the defendant did not object to any Fifth Amendment violation at trial and did not brief the issue, that issue was not properly preserved and we deem it waived. See State v. Monroe, 142 857, 873 (1998), cert. denied, 525 U.S. 1073 (1999).
Affirmed.
BRODERICK, J., concurred; HORTON, J., retired, specially assigned under RSA 490:3, concurred.
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