STATE OF NEW JERSEY VS. MICHELE L. DIKEN (14-05-0364 AND 14-05-0367, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2345-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHELE L. DIKEN, SHAMAN
CHAMBERS, MICHELLE DIKEN,
SHERMAINE MICHAEL, DIKEN
MICHELE, DIKEN MICHELLE,
MITCHEL DICKENSON, and
BIKEN MITCHELL,

Defendant-Appellant.
______________________________

Argued October 10, 2018 – Decided February 26, 2019

Before Judges Suter and Firko.

On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 14-05-0364
and 14-05-0367.

Robert C. Pierce argued the cause for appellant.

Michele C. Buckley, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Michael A. Monahan, Acting Union
 County Prosecutor, attorney; Michele C. Buckley, of
counsel and on the brief).

PER CURIAM

Defendant Michele L. Diken appeals his January 13, 2016 conviction and

sentence, claiming the court erred by denying his Wade1 motion to suppress an

out-of-court identification, and by making erroneous evidentiary rulings. He

asserts he was deprived of a fair trial and his sentence was excessive. We reject

these arguments and affirm.

I.

Defendant was indicted for first-degree robbery, N.J.S.A. 2C:15-1;

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); second-

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39 -4(a);

third-degree theft by unlawful taking, N.J.S.A. 2C:20-3; and fourth-degree

illegal possession of a large capacity magazine, N.J.S.A. 2C:39-3(j). He was

charged under a separate indictment with second-degree certain persons not to

have weapons, N.J.S.A. 2C:39-7(b). Defendant's motion to suppress an out-of-

court identification made by the victim of the underlying robbery was denied.

Defendant was convicted on all counts of both indictments.

1
United States v. Wade, 388 U.S. 218 (1967).

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 He was sentenced to twenty-five years imprisonment on the first-degree

robbery charge, subject to an eighty-five percent period of parole ineligibility

under the No Early Release Act, N.J.S.A. 2C:43-7.2. He was also sentenced to

a ten-year term for unlawful possession of a weapon and eighteen months on the

large capacity magazine charge, both to be served concurrently with the robbery

charge. The other counts were merged. On the certain persons charge, he was

sentenced to a consecutive term of eight years with four years subject to parole

ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c). His aggregate sentence

was thirty-three years of imprisonment subject to twenty-one years of parole

ineligibility.

A.

We relate relevant facts from defendant's Wade hearing. On January 26,

2014, just after midnight, L.V. (Linda)2 arrived at the strip club where she

worked, parking her car on the street. There were street lights in the vicinity.

After she placed one of her purses in the trunk and was holding other things, a

man approached her and said "give me that." He was dressed in a black hoodie

that was not pulled up, black pants, was of "African descent," wore long

dreadlocks that were pulled back and a "skully." Because he was dressed in

2
We use initials and a fictitious name to protect the victim's identity.
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black, she thought he was a bouncer. She handed him her dance bag and make-

up case saying "thank you. You're a life saver." When he asked for her car

keys, she realized something was wrong, which was confirmed as he said "you're

being robbed, what you think." She screamed, gave him her purse and car keys,

and then saw he had a small black gun in his hand pointed at her waist. He got

into a red car parked across the street, made a U-turn and drove up the street.

She ran up to another person who was coming over to her, and he called 911.

The police arrived right away. They used a cell phone to locate hers, which was

only a short distance away.

In a few minutes, other officers asked Linda to go with them in a police

vehicle. "I was told that they had found two . . . suspects . . . and I was going to

be shown the suspects and . . . I would be asked to [identify] who robbed me."

Officer Joseph Wassel testified he did not read Linda the on-scene identification

instructions but told her from memory that "we're bringing her to see individuals

who may or may not be involved in the crime she reported." He testified that he

explained "if she did not recognize anybody, for her to tell [them] as much. And

that she did not have to identify anybody if she didn't feel that she saw anybody

involved in the incident." Linda testified she did not feel pressured to identify

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anyone. She did not remember the officer's exact words to her, but "they didn't

imply that it was them who robbed me."

In just minutes, they arrived. Linda was in the back of the squad car. The

individuals were shown to her one at a time from a location in front of the police

car. Each had their hands behind their backs; Linda testified she did not see

handcuffs. Each was about her skin color, wore black hoodies and long

dreadlocks. One person had on grey pants, not black. She did not recognize the

first person shown to her, but she identified the second person, defendant, as the

person who robbed her. She was "200 percent" sure of that.

Linda was taken to police headquarters where Officer Wassel completed

an on-scene identification packet. Linda's statement indicated that prior to or

during the on-scene investigation, she only spoke with police officers. His

report said the victim was told not to discuss the identification with other

potential witnesses and she did not discuss the identification with anyone else

prior to the identification.

The court denied defendant's motion to suppress Linda's out-of-court

identification. The judge found that defendant met his initial burden under State

v. Henderson, 208 N.J. 208, 288-289 (2011) of showing some evidence of

suggestiveness about the manner the identification was conducted. There was

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some indication the individuals were handcuffed during the view and in police

custody. They were in the presence of at least one officer, were standing in front

of a police car, and illuminated by lights from police vehicles at the time each

was presented.

The court found, however, that the State presented evidence the

identification was reliable. Based on testimony of witnesses at the suppression

hearing and the documentary evidence submitted, the court found Linda's

identification "to be sufficiently reliable to be presented to a jury." Certain facts

"buffered" the suggestiveness of the "show-up" identification. The individuals

appeared having similar complexions, long dreadlocks and black hoodies. The

identification was not impulsive; she did not identify the first individual.

Although the court had "no confidence that all of the instructions required by

the Henderson decision were given to [Linda]," he nonetheless accepted as

truthful her testimony that "the police did not imply or insinuate that any suspect

was the perpetrator of the robbery." She was "very credible" and did not waiver

in her testimony despite "vigorous and exacting cross-examination."

The court found no evidence the police discussed the case with Linda

before the identification. The identification was made thirty minutes after the

robbery. Linda's first encounter with defendant was stress-free because she

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thought he was a bouncer at the club. The area was well lit; she was within

arm's length of him and his face was not covered. There was no evidence she

was impaired in any way. She did not see the gun at first. She quickly identified

defendant but not the other individual. The court found that all those

circumstances "greatly outweigh[ed] the factors that militate against reliability."

The court denied defendant's suppression motion because there was not a "very

substantial likelihood of irreparable misidentification."

At trial, the State presented testimony from Linda about the robbery

similar to her testimony at the Wade hearing. The court allowed testimony about

her out-of-court identification.

Officer Hubert Gonzalez testified that he and his partner were dispatched

to the club's location and met with Linda who was "crying, [and was] highly

emotional." She gave them a brief description of the lone male robber and of a

motor vehicle—a late model Buick or Oldsmobile—red in color, and the

direction it had gone, east-bound on Bayway Avenue. She also gave them a

description of the items that he took. Using the GPS locator on her phone, the

police were able to locate her phone a very short distance from the club at a

"dead end" street. The officers went there, which took a "couple of seconds,"

leaving Linda at the club. Officer Gonzalez testified he saw two people walking

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from the dead-end street toward Bayway Avenue, both of whom fit the general

description given by Linda. They were detained. A red Buick was parked

nearby, which was registered to defendant. No gun was located in the area.

Officer Gonzalez noticed in the fresh snow "two sets of footprints walking

away from the car but not returning back to [it]." One set was from the passenger

side and another from the driver's side, but both were going toward Bayway

Avenue. Tracking the footprints, they ended where defendant and the other

individual, S.C. (Steven),3 were detained. Officer Wassel testified about being

dispatched to the club along with his partner, picking up Linda and taking her

to the area where her cell phone was found. He testified in detail about the on-

scene identification that occurred.

A night watchman working for a business at the address where Linda's

phone was found testified that on the night of the robbery, he saw a red car

parked parallel to his and shortly after that saw police lights. No one was in the

red car, but he saw footprints near it in the snow. The next night, January 27,

2014, while making rounds at 11:00 p.m., he found a gun near the south gate

and called the police.

3
This is a fictitious name.
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 Officer Edwardo Andino testified that about 11:00 p.m. on January 27,

2014, he and his partner were dispatched to a location for a report of "found

property" and when they arrived "there was a handgun recovered from a snow

mound." It was a loaded semi-automatic. Subsequent tests showed the gun was

operable.

The gun was tested for fingerprints but not for the presence of DNA.

There were partial fingerprints that were not conclusive. 4 The State's witness,

Monica Ghannam, an expert in the field of DNA analysis, testified about

conditions that affect DNA analysis. She was not asked to test the gun for DNA

but opined the recovery of DNA from it was "severely in question" because it

had been in the snow.

The jury returned a verdict against defendant. On appeal, defendant raises

the following issues:

POINT I

THE TRIAL COURT ERRED IN DENYING MR.
MICHELE'S MOTION TO SUPPRESS THE SHOW-
UP IDENTIFICATION BECAUSE THERE WAS AN
INADEQUATE RECORD OF THE
IDENTIFICATION PROCEDURE IN VIOLATION
OF R. 3:11.

4
Defendant called two witnesses for the defense. We have not related their
testimony because it is not germane to the issues raised by defendant on appeal.

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POINT II

THE TRIAL COURT ERRED BY ALLOWING THE
SHOW-UP IDENTIFICATION TO BE USED AT
TRIAL BECAUSE THE PROCEDURE DID NOT
SATISFY THE CONSTITUTIONAL STANDARDS
OF RELIABILITY.

POINT III

THE TRIAL COURT DEPRIVED MR. MICHELE OF
HIS RIGHT TO CONFRONT HIS ACCUSER BY
EXCLUDING QUESTIONING THAT THE VICTIM
WAS A STRIPPER AND ENGAGED IN
PROSTITUTION AT THE TIME OF THE ROBBERY.

POINT IV

THE TRIAL COURT ERRED BY ALLOWING THE
STATE TO INTRODUCE IRRELEVANT AND
SPECULATIVE EXPERT TESTIMONY
CONCERNING THE LIKELIHOOD OF SUCCESS
TO RECOVER DNA FROM THE HANDGUN, IF
THE HANDGUN WAS SUBMITTED FOR DNA
TESTING.

POINT V

MR. MICHELE WAS DEPRIVED OF A FAIR TRIAL
BECAUSE THE JURY OBSERVED HIM BEING
BROUGHT OUT FROM THE BACK OF [THE]
COURTROOM SURROUNDED BY SHERIFF'S
OFFICERS. (Not Raised Below).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY
EXCESSIVE.

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There is no merit in these issues.

II.

A.

"An appellate court reviewing a motion to suppress evidence in a criminal

case must uphold the factual findings underlying the trial court's decision,

provided that those findings are 'supported by sufficient credible evidence in the

record.'" State v. Boone, 232 N.J. 417, 425-26 (2017) (quoting State v. Scriven,

226 N.J. 20, 40 (2016)). We do so "because those findings 'are substantially

influenced by [an] opportunity to hear and see the witnesses and to have the

"feel" of the case, which a reviewing court cannot enjoy.'" State v. Gamble, 218

N.J. 412, 424-25 (2014) (alteration in original) (quoting State v. Johnson, 42

N.J. 146, 161 (1964)). We owe no deference, however, to conclusions of law

made by trial courts in suppression decisions, which we review de novo. State

v. Watts, 223 N.J. 503, 516 (2015).

Defendant argues the trial court erred by denying his motion to suppress

Linda's out-of-court identification of him and by allowing testimony about that

identification at trial. We are satisfied there was no abuse of discretion.

This case involves a "show-up" identification, which is a single-person

lineup that occurs at or near the scene of the crime shortly after its commission.

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State v. Henderson, 208 N.J. at 259. An out-of-court identification can be

admissible at trial where it is reliable. Henderson revised "the framework for

evaluating eyewitness identification evidence." Id. at 287. As revised, a

defendant "has the initial burden of showing some evidence of suggestiveness

that could lead to mistaken identification." Id. at 288. The trial court found

defendant met this initial burden.

Next, "the State must then offer proof to show that the proffered

eyewitness identification is reliable—accounting for system and estimator

variables . . . ." 5 Id. at 289. The Court provided a "non-exhaustive list" of

variables to be considered. The trial court considered these, finding that they

supported the reliability of the victim's eyewitness identification. The victim

believed defendant was a bouncer there to help her with her things. She could

see him clearly, there was lighting on the street, she was not under stress and

had not yet seen the gun. She was not under the influence of drugs or alcohol.

The identification was made within thirty minutes of the robbery. This case did

not involve any "cross-racial identification" issue. Id. at 292. She did not

5
System variables are "within the State's control." Id. at 248. Estimator
variables "are factors beyond the control of the criminal justice system." Id. at
261.
A-2345-15T4
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identify the first individual shown to her; she definitively identified defendant

as the person who robbed her.

The trial court correctly determined "the ultimate burden remain[ed] on

the defendant to prove a very substantial likelihood of irreparable

misidentification." Id. at 289. Where after reviewing the "totality of the

circumstances," and if a defendant has not met his burden of demonstrating "a

very substantial likelihood of irreparable misidentification," then the out-of-

court statement can be admitted with "appropriate tailored jury instructions."

Ibid. We are satisfied the trial court considered the totality of circumstances

and agree defendant fell short of the required burden.

Even before Henderson was decided, the Court "exercise[d] its

supervisory powers" under the New Jersey Constitution to require the police to

make a record of out-of-court identification procedures. See R. 3:11; see also

State v. Delgado, 188 N.J. 48 (2006). Rule 3:11(a) provides that "[a]n out-of-

court identification resulting from a . . . showup identification procedure

conducted by a law enforcement officer shall not be admissible unless a record

of the identification procedure is made." That Rule details the method and

nature of the recording and the contents. R. 3:11(b) and (c). If "lacking in

important details" and if it were "feasible to obtain and preserve those details,"

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the court exercising its "sound discretion" consistently with the case law can

rule that the identification is inadmissible, redact it and fashion an approp riate

jury charge. R. 3:11(d).

Defendant argues the identification was procedurally flawed. He did not

raise this issue at the Wade hearing. We review this issue under a plain error

standard. See R. 2:10-2.

The on-scene identification report and statement prepared for Linda's

identification of defendant contained the date, time of incident, time and

location of on-scene identification, the result of the identification, the statement

made when she identified defendant, her confidence in her identification and

that she only spoke to officers prior to and during the identification. Her

statement detailed she identified defendant because "[she] saw his face as he

robbed [her]" and that she was certain that defendant was the person who

"robbed her." Her statement also indicated that neither Officer Wassel or anyone

else tried "to influence or suggest to [her] in any way that [she] should i dentify

this person . . . t[old her] that other witnesses in this case identified or failed to

identify this person . . . [or told her] that the person that [she] identified [was]

the person who committed the crime under investigation." The investigation

report recounted the actions of the officers who responded and what they did in

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the investigation. Each of these documents, although not prepared on the scene,

were prepared contemporaneously, and together, contain all of the information

required by Rule 3:11(b). The identification was procedurally sound.

Defendant argues that Officer Wassel's testimony indicated that "other

officers" discussed the reasons they were bringing Linda to the location where

defendant was located. However, Officer Wassel's testimony was that Linda

was taken to the location to view individuals who may or may not be involved.

The court found Linda's testimony credible that the officers had not influenced

her and that she understood the individuals might not be involved.

Defendant argues Linda was permitted to view her things found in the red

car before the identification was made, but that claim was not supported by the

record. In the end, the trial court found Linda's testimony was credible, which

negated defendant's arguments. We have no reason to disturb the court's finding

that the out-of-court identification was reliable or, as raised on appeal, that it

did not conform with Rule 3:11. The trial court did not err in denying

defendant's motion to suppress or in permitting use of the identification at trial .

B.

Defendant contends he was deprived of his Sixth Amendment right of

confrontation because the trial court would not permit his counsel to ask

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witnesses about their knowledge of prostitution at the club or what type of

activity happens at a strip club. The defense claimed the victim was engaged in

prostitution with Steven on the night in question and was robbed by him while

defendant was waiting in the car. On appeal, defendant raises two issues: the

victim would not have arrived at work at 12:30 a.m. when the club closed at

2:00 a.m. and Steven had a number of one dollar bills in his possession when he

was arrested, which was consistent with Linda's testimony she had about $200.

"The right to confront and cross-examine accusing witnesses is 'among

the minimum essentials of a fair trial.'" State v. Budis, 125 N.J. 519, 531 (1991)

(quoting Chambers v. Mississippi, 410 U.S. 284, 294-95 (1973)). However, that

right "is not absolute, and may, in appropriate circumstances, bow to competing

interests." Ibid. (citing Chambers, 410 U.S. at 295). As such, trial courts may

limit cross-examination "based on concerns about . . . harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that is repetitive or

only marginally relevant." Id. at 532 (quoting Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986)).

We agree the trial court did not abuse its discretion in excluding this

questioning. There was no evidence of prostitution by the victim and to raise

the issue of what may occur at a strip club simply would be to attempt to impugn

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her character without basis. The victim explained she did not have a schedule

and that the dollar bills were earned from dancing. That Steven had a number

of dollar bills when he was arrested did not evidence that Linda was engaged in

prostitution. The questioning simply was not relevant and properly was not

allowed.

C.

Defendant argues he was deprived of a fair trial when the trial court

allowed the State to introduce testimony from its expert witness that it was

unlikely DNA could have been recovered from a handgun found in the snow.

Defendant argues this testimony should not have been allowed because the gun

was never submitted for DNA testing.

Detective James Szpond testified at trial that he submitted the gun for

fingerprinting but not for DNA testing because "a DNA profile is harder to

recover when it's exposed to elements, water, length of time, and all of these

issues came into play in [his] decision." The State's expert testified that certain

conditions, such as ultraviolent rays, moisture and heat, affected the ability to

obtain DNA from an item for testing. She testified it was her opinion that "the

recovery of DNA from [the gun was] severely in question because of even half

of it being in snow."

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 "[I]n reviewing a trial court's evidential ruling, an appellate court is

limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner,

194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). The

general rule as to the admission or exclusion of evidence is that "[c]onsiderable

latitude is afforded a trial court in determining whether to admit evidence . . . ."

State v. Feaster, 156 N.J. 1, 82 (1998). Under this standard, an appellate court

should not substitute its own judgment for that of the trial court, unless "the trial

court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'"

State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178,

216 (1984)).

We agree with the trial court that the expert's testimony about how DNA

was collected and what environmental circumstances could affect its collection

and analysis were relevant to determine whether the detective's decision was

reasonable not to submit the gun for DNA testing. The expert's testimony was

based on her knowledge, training and experience, not speculation. We discern

no abuse of discretion by the trial court.

D.

Defendant contends he was deprived of a fair trial because the jury saw

him being escorted into the courtroom by sheriff's officers. He raised this issue

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for the first time at his sentencing. Defendant acknowledged there is no factual

support in the record for this nor supporting affidavit or certification. We

consider it to be without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2).

E.

Defendant argues that his sentence was "manifestly excessive." That

claim is not supported.

Our review of a sentencing determination is limited. See State v. Roth,

95 N.J. 334, 364-65 (1984). We review a judge's sentencing decision under an

abuse of discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We must

determine whether: "(1) the sentencing guidelines were violated; (2) the

aggravating and mitigating factors found by the sentencing court were not based

upon competent and credible evidence in the record; or (3) 'the application of

the guidelines to the facts of [the] case makes the sentence clearly unreasonable

so as to shock the judicial conscience.'" Ibid. (alterations in original) (quoting

State v. Roth, 95 N.J. 334, 364-65 (1984)).

The trial court granted the State's motion to sentence defendant to a

discretionary extended term pursuant to N.J.S.A. 2C:44-3(a) based on his history

of convictions from age eighteen, all of which were committed within the next

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ten years. These included third-degree conspiracy to possess a controlled

dangerous substance (CDS), third-degree aggravated assault, third-degree

resisting arrest, possession of CDS, third-degree unlawful possession of a

handgun, possession of CDS in a school zone, and possession of CDS. In accord

with Fuentes, 217 N.J. at 72, 74, the trial court set forth a "careful statement of

reasons" for its sentencing decision in which it identified each applicable

aggravating and mitigating factor and provided its reasoning as to why each

factor did or did not apply. The court addressed defense counsel's argument

regarding mitigation, finding it to be "very weak." Then, the court stated it was

"convinced that the [a]ggravating [f]actors [three, six and nine] substantially

outweigh[ed] the mitigating factor[s]."

The court similarly set out a "careful statement of reasons" for its

sentencing decision on the separate certain person indictment. The court found

aggravating factors three and six for the same reasons it had for the other

charges, and found aggravating factor nine because of defendant's prior

conviction for possessing a handgun. The court was "clearly convinced those

aggravating factors substantially outweigh the very, very slight mitigating factor

that [defense counsel] argued for." The court determined the extended term

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applied to the first-degree robbery conviction but sentenced defendant to the

"lower end of the extended term scale."

The State's earlier offer of a concurrent sentence on the certain person's

charge and its recommendation at sentencing for a ten-year concurrent term did

not require the court to sentence defendant in accord with that offer. Trial courts

are not bound by any recommended sentence by the State. See State v. Nance,

228 N.J. 378, 397 (2017).

The court did not abuse its discretion in imposing an eight-year

consecutive sentence. The court considered the factors in State v. Yarbough,

100 N.J. 627, 643-44 (1985), noting that if defendant's "sentence under the

certain persons [ran] concurrent to the other matters, it would render

meaningless the certain persons offense." The consecutive sentence was

warranted to "deter those who have a criminal history from possessing guns."

The court sentenced defendant on the robbery charge at "the lower end of the

extended term scale," and reduced the certain person's sentence to eight years

from the recommended ten when it made that sentence consecutive.

The trial court did not abuse its discretion in sentencing defendant nor was

the sentence manifestly excessive. The trial court made sufficient findings ,

there was ample evidence in the record to support them, the court followed the

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sentencing guidelines regarding the extended term and consecutive sentencing

and the sentence did not shock the judicial conscience.

Affirmed.

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