COMMONWEALTH vs. MARTHA JEAN EAKIN (and a companion case [Note 1]).

WILKINS, C.J. The defendants appealed from their convictions of 1991 violations of the State Building Code with respect to a house in Newton. The Appeals Court reversed those convictions because, in its view, the building inspector had not given the defendants adequate notice under G. L. c. 143, s. 51, for many alleged code violations, setting forth "what changes are necessary to meet the requirements" of the building code. Commonwealth v. Eakin, 43 Mass. App. Ct. 693, 697-698 (1997), quoting s. 51.

The case was presented to the trial court and to the Appeals Court on the assumption that the notice requirements of s. 51 applied to a single-family house. Id. at 697 & n.6. The Appeals Court decided the appeal on that assumption but stated that, on remand, the holding of Santos v. Bettencourt, 40 Mass. App. Ct. 90 (1996), should be explored. Commonwealth v. Eakin, supra at 697 n.6. The Santos opinion, which was released shortly after the trial of this case, concluded that G. L. c. 143, s. 51, [Note 2] did not apply to a single-family house. Santos v. Bettencourt, supra at 91. [Note 3]

We granted the Commonwealth's application for further appellate review, in which it asked this court to resolve the question whether s. 51 applies to a single-family house, an issue of Statewide importance. The answer to that question is not settled. Prior to the Santos case, in a 1992 rescript opinion, the Appeals Court held that a watchmen's cottage at a commercial marina was a "building" within the meaning of s. 51, and implied, from its reference to the broad definition of "building" in G. L. c. 143, s. 1, that a single-family house would be a "building" under s. 51 as well. Commonwealth v. Duda, 33 Mass. App. Ct. 922, 923 (1992). The Santos opinion suggested that the cottage at issue in the Duda case came under the purview of s. 51 because it was associated with a commercial enterprise, although the Duda opinion did not so state. Santos v. Bettencourt, supra

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at 93-94. Whether s. 51 applies to a single-family house bears on what the Commonwealth must prove on the retrial of the charges, which we rule is required. [Note 4]

The reasoning of the Santos opinion, concluding that s. 51 does not apply to a single-family house, is sound. The Legislature could not have intended the word "building" in s. 51, which appears in a series with other, more specific words ("assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment") to mean any and every structure. If it had, the word "building" alone would have been sufficient. "Building" must be read to refer to structures used for purposes like those of the other structures listed. See Powers v. Freetown-Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 660 n.8 (1984). It seems illogical, to be sure, that the owner of a private home is entitled to less advance notice of steps that should be taken to correct a building code violation than is the owner of a commercial or industrial building covered by s. 51. This is, however, a legislative judgment, one that may be altered prospectively.

Given this conclusion, it appears that the Commonwealth, inappropriately but without objection, was required at the jury trial to prove compliance with s. 51's notice requirement. At any retrial, s. 51 would not be applicable. Our conclusion that s. 51 is inapplicable to single-family residences would not unconstitutionally apply a retroactive redefinition of the crimes with which the defendants are charged. We have stated that statutory notification pursuant to s. 51 is not a condition precedent to the prosecution of the crimes charged, but, in what we decide, we have neither redefined nor altered in any way the elements of those crimes.

The question is whether a retrial is required. On the face of it, the Commonwealth's failure to clear a hurdle that it did not have to jump should not require a new trial. The defendants

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argue, however, that it would be unfair to uphold their convictions on appeal. They contend that they would have defended the charges against them differently if the trial had not proceeded on the crucial assumption that, as a condition precedent to the right to prosecute, the building inspector was required to give the defendants notice of the steps necessary to avoid prosecution. The defendants do not indicate what they would have advanced alternatively as a defense. However, because the charges were unsupported by a detailed notice of required remedial action, various charges may have been impermissibly vague. [Note 5] See Commonwealth v. Duda, 33 Mass. App. Ct. 922, 923 & n.1 (1992). Because of this and because the s. 51 notification issue so permeated the jury trial, with the Commonwealth's apparent consent, it is only fair that the defendants have a new trial.

We have answered the question on which the Commonwealth sought further appellate review. There are certain other issues that the defendants have also argued that may arise at any retrial. We touch on them briefly. (a) There is no basis for dismissing the charges because of prosecutorial misconduct. The city of Newton destroyed the house that is the subject of the alleged code violations in early July, 1994, during the course of an earlier bench trial that took place from time to time, between March, 1993, and October, 1995. The defendants have not demonstrated that the destruction of the house prejudiced them. See Commonwealth v. Olszewski, 416 Mass. 707, 714 (1993), cert. denied, 513 U.S. 835 (1994); Commonwealth v. Willie, 400 Mass. 427, 432-433 (1987). They had ample notice of the intended demolition so that they could take photographs and instruct an expert to go through the house. They have made no persuasive showing that material evidence favorable to them was irretrievably lost. See Commonwealth v. Sarourt Nom, 426 Mass. 152, 159 (1997); Commonwealth v. Perito, 417 Mass. 674, 684 (1994). [Note 6]

(b) The retrial should be limited, of course, only to charges

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of violations of the building code on which the Commonwealth presented evidence at the defendants' jury trial. In this way, the defendants will know of the specific violations charged, and any possible prejudice from alleged multiplicitous or duplicative charges will be eliminated.

(c) The March, 1988, memorandum stating opinions of a Newton building inspector named Daniel Gentile was properly excluded. It had little or nothing to do with the 1991 violations that were the subject of the jury's verdicts, and, as an opinion, was not shown to be admissible under any statutory or common-law exception to the hearsay rule.

(d) The judge did not abuse his discretion in excluding the testimony of a Department of Social Services social worker. It will be for the trial judge to decide whether at retrial that hearsay testimony will be admissible, on some theory, as tending to prove the bias of the city's commissioner of the inspectional services department against the defendants.

The judgments of conviction are reversed as to both defendants, and the verdicts are set aside. The cases are remanded to the District Court for a new trial.

So ordered.