COMMONWEALTH v. DAVILA (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In 1982, defendant Rafael Davila was convicted of seven counts of murder in the second degree and one count of arson of a dwelling after paying two individuals to start a deadly fire in his apartment building. Over the following years, Davila filed three motions for a new trial, all of which were denied. He now appeals from the order denying a motion for required findings of not guilty filed on July 24, 2018. The defendant argues that the Commonwealth presented insufficient evidence to show that the apartment building, which had been condemned by the Hampden County Housing Court prior to the fire, was a dwelling house within the meaning of G. L. c. 266, § 1. We affirm.

While the defendant brings this claim pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), he raised the same substantive issue some fifteen years earlier in his third motion for new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). That motion could have been properly made under rule 25 (b) (2), as the defendant cited Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), and argued that the Commonwealth's proof was insufficient to warrant a finding beyond a reasonable doubt that the building was a dwelling. See Commonwealth v. Preston, 393 Mass. 318, 322-323 (1984) (“We have long held that pleadings are to be treated ‘according to their nature and substance’ rather than their technical form”). Because the defendant did not appeal from the order denying that motion, we need not address the same claim again here. See Mass. R. Crim. P. 30 (c) (2).

Nonetheless, even if we considered the merits of the claim under the substantial risk of a miscarriage of justice standard, see Commonwealth v. Amirault, 424 Mass. 618, 640-641 (1997), the defendant would fare no better. The crux of the defendant's argument is that a condemned building cannot be considered a dwelling house under G. L. c. 266, § 1.² The claim is meritless. The controlling question is whether the building was “capable of being occupied as a dwelling and domicil,” which it unquestionably was. Commonwealth v. DeStefano, 16 Mass. App. Ct. 208, 214 (1983). In fact, multiple units were still occupied, including the unit occupied by the defendant and his family located on the first floor. Additionally, though the water had been turned off, natural gas and electricity were still being provided to the building. See Commonwealth v. Anolik, 27 Mass. App. Ct. 701, 712 n.13 (1989) (evidence that there was electrical service to building and that it contained furniture, kitchenware, and food at time of fire sufficient to establish that building was dwelling house). Indeed, as noted by the motion judge, defense counsel argued during his closing that the defendant could not be the culprit because he would never set fire to a building in which he knew his own family lived.³

Order denying posttrial motion for required findings of not guilty affirmed.

FOOTNOTES

2.   Per the statute, a dwelling house “include[s] all buildings used as dwellings such as apartment houses, tenement houses, hotels, boarding houses, dormitories, hospitals, institutions, sanatoria, or other buildings where persons are domiciled.” G. L. c. 266, § 1.

3.   After the fire, the defendant told a police officer that “he ran from [a bar] down to his building to assist his family in escaping the fire.”