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 

NOT FOR PUBLICATION WITHOUT THE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.
2

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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); seconddegree 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-ofcourt 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)2arrived 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 makeup 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 onscene 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.
9

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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 SHOWUP 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. 
10 A-2345-15T4

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.
11 A-2345-15T4

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. 
12 A-2345-15T4

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 . . . ."5Id. 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. 
13 A-2345-15T4

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-ofcourt 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-ofcourt 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," 
14 A-2345-15T4

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

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

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 identify 

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 
15 A-2345-15T4

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 
16 A-2345-15T4

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 
17 A-2345-15T4

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." 
18 A-2345-15T4

"[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
19 A-2345-15T4

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
20 A-2345-15T4

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
21 A-2345-15T4

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 
22 A-2345-15T4

sentencing guidelines regarding the extended term and consecutive sentencing

and the sentence did not shock the judicial conscience. 

Affirmed.