COMMONWEALTH vs. RAFAEL M. DAVILA.

SMITH, J. The defendant appeals from seven convictions of murder in the second degree and from a conviction of arson. He argues errors allegedly committed by the trial judge in relation to the following matters: (a) denial of his motion for required findings of not guilty; [Note 1] (b) denial of his

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motion for a mistrial; and (c) imposition of three consecutive sentences for murder in the second degree. We affirm the judgments.

1. Denial of motion for required findings of not guilty. The defendant assigns as error the judge's refusal to grant his motion for required findings of not guilty on all the indictments. [Note 2] The motion is based on the ground that the Commonwealth failed to identify the defendant, sitting in the courtroom, as the individual mentioned in the testimony. As to the defendant's contention, it is basic law and does not require any citation that an essential element to be proved by the Commonwealth is that the individual who appears before the court as the defendant is the same person who is the subject of the indictment or complaint then on trial and the same person referred to in the evidence. Proof of the identity of the person who committed the offense may be established in a number of ways and "[i]t is not necessary that any one witness should distinctly swear that the defendant was the man, if the result of all the testimony, on comparison of all its details and particulars, should identify him as the offender." Commonwealth v. Cavanaugh, 7 Mass. App. Ct. 33, 36 (1979).

In reviewing the defendant's claim, we view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Burbank, 388 Mass. 789, 797 (1983). All the indictments stemmed from a fire which occurred on August 24, 1981, in Holyoke. There was no dispute at the trial that the fire that caused the seven deaths was set by one Adam Davila (Adam) and one Luis Centeno. The Commonwealth did not contend that the defendant was present at the time the fire was set; its theory was that he paid Adam and Centeno to set the blaze. Adam was the principal witness against the defendant. The transcript of Adam's testimony and of the other Commonwealth witnesses fails to support the defendant's contention that the evidence was insufficient

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to permit the jury to infer that the defendant sitting in the courtroom was the "Rafael" or "Rafael Davila," to whom the witnesses referred. Adam testified that he knew "Rafael Davila" prior to the date of the fire, that he had been in "Rafael Davila's" apartment and that "the defendant" wanted him to burn the building where "the defendant" lived. At one point when Adam used the word "Raphael," the prosecutor then asked, "By Rafael, are you referring to the defendant and Adam responded, "Yes." [Note 3] We are satisfied from our review of the record that the evidence, when viewed in the light most favorable to the Commonwealth, was sufficient to satisfy the jury, beyond a reasonable doubt, that the defendant was the individual described by Adam as the person who had paid him to set the fire. [Note 4] We reiterate, however, the words of Chief Justice Hale in Commonwealth v. Sheehan, 5 Mass. App. Ct. 754, 763 n.8 (1977), wherein he stated, "[W]e consider that the preferable practice is for the prosecutor to have the record show specifically that the person [on trial] is the one referred to by the identifying witness."

2. Denial of motion for mistrial. During the trial and deliberations, the jury were sequestered. Each morning prior to the start of the day's testimony or deliberations the roll of the jurors was called. Prior to the start of deliberations on the second day, the roll was called but because of an administrative error the defendant was absent. After

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the jurors and judge had left the courtroom, defense counsel went to the judge's lobby and moved for a mistrial because of the defendant's absence. The judge denied the motion. The defendant argues that his absence from the courtroom during the roll call violated art. 12 of the Massachusetts Declaration of Rights and the Sixth and Fourteenth Amendments to the Constitution of the United States. There was no error.

At the time of the defendant's absence the evidentiary aspect of the trial was over, all that remained was the return of the verdict. Therefore, there was no violation of the confrontation clause of the Sixth Amendment or of art. 12 of the Declaration of Rights. The defendant also claims that the due process clause of the Fourteenth Amendment was violated and that the common law also required his presence. We disagree with these contentions. It was not required, in the circumstances, that a jury be subject to a roll call before they resumed deliberations. [Note 5] The taking of the roll call here was nothing more than an administrative act that did not require the presence of the defendant. See Commonwealth v. MacDonald (No. 1), 368 Mass. 395, 399 n.3 (1975). There is nothing in the Fourteenth Amendment or the common law to the contrary. The defendant contends, however, that his "conspicuous absence" permitted the jury to draw unfavorable inferences against him. We note that no objection was made by defense counsel before, during, or immediately following the roll call, which leads us to question how conspicuous the defendant's absence actually was. In any event, defense counsel could have requested an instruction to the jury from the judge in regard to the defendant's absence. He failed to do so, undoubtedly

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for sound tactical reasons. Nonetheless, it is preferable for a defendant to be present whenever the jury come into the courtroom, whether there is a roll call or not, unless he has waived his right to be present.

3. Imposition of consecutive life sentences as error. The defendant was sentenced to three consecutive life sentences on three second degree murder convictions. [Note 6] The defendant argues that the imposition of consecutive life sentences on the second degree murder convictions was error. He bases his argument on the decisions of the Supreme Judicial Court in Commonwealth v. Stewart, 375 Mass. 380, 390-393 (1978), and Commonwealth v. Wilson, 381 Mass. 90, 123-126 (1980), where the court held that the "same evidence" rule bars "the imposition of a consecutive sentence for the underlying felony." The defendant's reliance on those cases is misplaced. He received a concurrent sentence on the arson conviction. [Note 7] The question that he raises concerns the imposition of consecutive life sentences on the murder convictions. Double jeopardy and the "same evidence" rule do not bar consecutive sentences for murder. Under the defendant's theory a court could not impose consecutive sentences for any number of multiple killings. See Commonwealth v. Wilson, 381 Mass. at 123 n.60. We do not find the sentences to be duplicative. Commonwealth v. Rhoades, 379 Mass. 810, 812 n.2 (1980).

Judgments affirmed.