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Commonwealth v. Broom

Supreme Judicial Court of Massachusetts, Suffolk

June 13, 2016

COMMONWEALTH
v.
ELDRICK BROOM.

          Heard: February 12, 2016

         Indictments found and returned in the Superior Court Department on January 31, 2012.

         A pretrial motion to suppress evidence was heard by Janet L. Sanders, J., and the cases were tried before Jeffrey A. Locke, J.

          Elizabeth Caddick for the defendant.

          Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Spina, Botsford, Duffly, & Lenk, JJ.

          BOTSFORD, J.

         Eldrick Broom, the defendant, stands convicted of the murder in the first degree of Rosanna Camilo DeNunez, on the theories of extreme atrocity or cruelty and felony-murder with aggravated rape as the predicate felony.[1] We consider here the defendant's appeal from his convictions, and affirm.

         Background.

         We summarize the facts that the jury could have found. In 2010, the victim, who was from the Dominican Republic and the mother of three children, moved to New Jersey with her newborn baby, Thiago. Shortly thereafter, she relocated to Boston to seek medical treatment for Thiago. Although in July of 2011, the victim's sixteen year old daughter, Navila, joined her mother to help her take care of Thiago, the victim's husband of seventeen years and her other son remained in the Dominican Republic. By the time Navila came to Boston, the victim was living in an apartment on Fairlawn Avenue in the Mattapan section of Boston. In the spring, summer, and early fall of 2011, the defendant lived in an apartment across the hall from the victim. The defendant was living with his fiancee and their children.

         The victim spoke very little English, and interacted in a substantive way only with her family members and the medical professionals who were providing services to Thiago. The victim sometimes left her keys in her apartment door at the Fairlawn Avenue apartment, and on three different occasions before the day she was killed, the defendant knocked on the door and returned the keys to her. Navila had never seen her mother and the defendant interact, except for the times he returned the keys and when they exchanged polite greetings as he passed them in the hall. At the end of October, 2011, the defendant and his fiancee, who was pregnant, moved to an apartment on Bismarck Street, which was part of the same apartment complex as the Fairlawn Avenue building. Despite the move, the defendant sometimes returned to the steps of the Fairlawn Avenue building to smoke marijuana at his "normal spot."

         During the afternoon of Sunday, November 20, 2011, Navila and the victim used the online Skype program[2] to talk with family members in the Dominican Republic. Thereafter, Navila, the victim, and Thiago went grocery shopping. When they returned to their apartment around 8 P..M., the defendant was on the front steps of the building. He helped them carry Thiago's carriage and the grocery bags up the steps, but did not enter the building. The family spent the evening alone together. At around 9 P..M., the victim put Thiago to bed. When Navila went to bed at around 10:30 £.M., she remained awake for the next one-half hour. The victim was in the living room using her computer. The bedroom door was open, and Navila heard no unusual sounds. The victim, Navila, and Thiago all slept in the same bedroom. The next morning, November 21, 2011, the victim was asleep in her bed when Navila left for school.

         When Navila came home from school at around 2:40 P..M. that day, she found her mother dead on the floor in a bedroom other than the one in which the family slept. The victim was naked from the waist down, her shirt was pulled up around her neck, her bra was pulled down with her left breast exposed, a pair of blue jeans and a blue shirt were lodged underneath her body, and the blue jeans were turned inside out. Two socks and a universal serial bus (USB) cord were tied around the victim's neck; the cause of death was strangulation. The victim's cellular telephone, keys, and underwear were missing.

         Navila identified the defendant through a photograph as the only neighbor she ever saw interact with her mother. The police visited the defendant's apartment and spoke to him on November 29. During the interview, which was recorded with his permission, the defendant voluntarily provided the police with a buccal swab. At that time, the defendant said nothing in that interview about any sexual relationship with the victim.

         During the initial investigation of the crime scene on November 21, swabs were collected from the jeans and shirt that had been under the victim's body as well as the socks and USB cable from around her neck. Testing performed on swabs collected from the victim's body during an autopsy and on the samples taken from the other items revealed that the defendant's deoxyribonucleic acid (DNA) was included as being a possible contributor to DNA found on the anorectal swabs taken from the victim, [3] as well as DNA found on stains on her jeans, [4] and her shirt.[5] Based on the Y-chromosome short tandem repeat (Y-STR) testing of a sample taken from the socks that had been used as a ligature, the defendant could not be excluded as a contributor to the mixture.[6]

         Cellular site location information (CSLI) associated with the defendant's cellular telephone number for the period from November 1 to December 1, 2011, revealed that on November 21, 2011, the defendant's cellular telephone activated a cell tower located on Clare Avenue in the Roslindale section of Boston at 11:45 A.M. and 3:33 P.M. No CSLI or telephone activity was generated between 12:22 £.M. and 3:33 £.M. The police obtained the defendant's cellular telephone call detail records of text messages from October 5, 2011, to December 7, 2011, and voice calls from October 1, 2011, to December 4, 2011. The victim's telephone number never appeared in any of the defendant's records.

         The police also obtained records for the victim's cellular telephone number from November 18 through 23. The defendant's telephone number was not listed in the call logs associated with the victim's number. The records for November 21 revealed that the victim's voice mail was checked at 10:07 A.M. and 11:15 A.M., and an outgoing call was made at 11:15 A.M.[7] An incoming call at 12:48 P.M. went to voice mail. The records reflect no cellular tower activity thereafter, meaning that the victim's cellular telephone was disabled in some way rendering it inoperable. The occupational therapist who worked with Thiago called the victim's cellular telephone on November 21 at 1:18 £.M. and 1:39 £.M., but received no answer. The victim's computer was last used at 11:17 A.M. that day.

         The defendant testified at trial. He stated that he began noticing the victim beginning in June, 2011, found her keys in her door and returned them a few times. When he ran into her in the laundry room, he would give compliments and flirt with her. Sometime in October, the flirtation in the laundry room led to a consensual sexual encounter in her apartment where he performed oral sex on her. He had an additional oral sexual encounter with the victim in her apartment before he moved to Bismarck Street. According to the defendant, his last sexual encounter with the victim occurred on November 20, the night before the murder. He observed the victim outside the apartment building with her children at around 8:30 to 8:40 P..M. and helped them with the stroller. He asked the victim if he could speak to her, but she did not say anything. Approximately ten to fifteen minutes later, he went inside the building and knocked on the victim's door. She opened the door, looked at him, and closed the door. He went back out to the front stairs. After another ten to fifteen minutes, she returned to where he was sitting and led him to the couch in her apartment. He performed oral sex on her, which led to sexual intercourse, and he ejaculated on her. He then got dressed and she let him out the front door. He did not see or hear anyone in the apartment while he was there. After he left the apartment, he took a bus to his work at the Boston Medical Center. He clocked into work at 10:57 P..M. that night.

         When the defendant left work at 7:30 A.M. on the morning of November 21, he stayed at the house of a friend on Clare Avenue in Roslindale, because he did not have a key to his fiancee's apartment. The friend was not at home. At 11:45 A.M., the defendant's cellular telephone activated a cellular tower located on Clare Avenue. While at his friend's house, he telephoned his father and spoke with him for ten minutes. He then left his friend's house and took a bus to his fiancee's apartment to help her with groceries. He carried the groceries and stayed in the apartment for ten to twenty minutes. He then returned to his friend's house in Roslindale and stayed there until 4 £.M., although the friend again was not there.

         Discussion.

         1. The Commonwealth's access to the defendant's CSLI.

         The defendant challenges the Commonwealth's obtaining the CSLI for his cellular telephone, arguing that under Commonwealth v. Augustine, 467 Mass. 230, 232 (2014) (Augustine I), the Commonwealth was required to seek such information by a search warrant based on probable cause;[8] and that in any event, probable cause did not exist for the thirty-one days of CSLI that the Commonwealth sought and obtained.

         a. Relevant facts.

         On December 8, 2011, the day the defendant was arrested and charged with the murder of the victim, an assistant district attorney applied to a Superior Court judge for an order under 18 U.S.C. § 2703(d) of the Stored Communications Act (§ 2703[d] order) to obtain from the defendant's cellular service provider CSLI records associated with the defendant's cellular telephone number for the period from November 1 to December 1, 2011. An affidavit of a police detective supported the application. The affidavit included information that the defendant had lived in the same housing complex as the victim and had lived across the hall from her until three weeks before her death, and that the defendant had recently provided the police with an oral swab for DNA testing which had indicated that the defendant's DNA was found on the body of the victim. The affidavit further stated that the CSLI would provide evidence relevant to the homicide, including the defendant's location at the time it had occurred. The judge allowed the Commonwealth's request, a § 2703(d) order issued, ...


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