NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-734
COMMONWEALTH
vs.
LARRY AHART.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2009, following a jury trial in the Superior Court, the
defendant, Larry Ahart, was convicted of unlawful possession of
a firearm. In 2011, after a subsequent jury trial in the
Superior Court, the defendant was found to be an armed career
criminal (ACC) by unlawfully possessing the firearm having been
convicted of three predicate offenses. See G. L. c. 269,
§ 10G (c). In two earlier appeals, different panels of this
court affirmed the defendant's convictions and orders denying
several postconviction motions. See Commonwealth v. Ahart, 94
Mass. App. Ct. 1103 (2018); Commonwealth v. Ahart, 88 Mass. App.
Ct. 1114 (2015). The defendant now appeals from orders denying
his fifth and sixth motions for a new trial, his motion to dismiss the indictments, his motion for funds for postconviction
discovery, and his motion to revise and revoke his sentence; and
allowing the Commonwealth's motion to correct the docket. We
affirm.
Background. In affirming the defendant's convictions, a
panel of this court described the underlying facts as follows.
"On October 21, 2005, at approximately 11:25 P.M., Officer Stephen Kelly responded to a radio call about a fight in the area of 144 Harvard Street in Cambridge. As Kelly turned onto Harvard Street, he observed a brown Honda leaving the parking area in reverse at a high speed. Kelly followed the vehicle and stopped it at the intersection of Broadway and Antrim Streets. When the Honda stopped, the front passenger door opened, and the defendant took one or two steps before falling face first on the sidewalk. The defendant had a severe stab wound on the lower left side of his back. There was a large amount of blood on his T-shirt and on the passenger seat. Inside the Honda, Detective Steven Lyons found a black cylindrical object, which appeared to be a firearm accessory.
"At the scene on Harvard Street, Officer Brian Hussey walked around the area and discovered a black sweatshirt on the trunk of a car. There was a large amount of blood on the sweatshirt, and the left rear of the sweatshirt had a puncture hole. Wrapped in the sweatshirt was a working 9mm firearm, with five live cartridges inside a magazine capable of holding ten.
"Less than half an hour earlier, at 11:06 P.M., Officer James Dwyer had responded to a call at Rindge Street and Clifton Street. That location is two miles away and a five-minute drive from 144 Harvard Street. At Rindge and Clifton, Dwyer found ten discharged cartridge casings, five of which were for a 9mm firearm. The discharged cartridge casings later were examined in comparison to the 9mm firearm and live cartridges found at Harvard Street, and were determined to have been fired from that firearm.
"The sweatshirt and the firearm found at Harvard Street were examined by the State police crime laboratory. No
2 fingerprints could be obtained from the gun. However, there were other forensic findings. There was gunshot residue on the right and left sleeves of the sweatshirt. Deoxyribonucleic acid (DNA) was extracted from the bloodstained area of the sweatshirt, as well as the neckline, and was determined to be consistent with the defendant's DNA profile. Blood was found on the slide and grip of the firearm, and the defendant was determined to be a potential contributor to the DNA found on these areas. Although no blood was found on the trigger of the firearm, DNA was present. The major source of that DNA was found to match the DNA profile of the defendant."
Following his conviction of unlawful possession of a
firearm, the defendant filed a notice of appeal. On August 21,
2009, the defendant filed his first motion for a new trial
pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass.
1502 (2001), which a Superior Court judge denied. In 2011, the
defendant appealed from his conviction of the ACC enhancement.
The defendant then filed three more unsuccessful motions for a
new trial and thereafter appealed from the orders denying his
second and third new trial motions. The defendant's appeals
were consolidated, and on November 23, 2015, a panel of this
court affirmed the judgment and orders. On July 31, 2017, the
defendant filed a motion for relief from unlawful confinement,
which was denied. A different panel of this court affirmed the
order of denial on September 28, 2018.
The defendant subsequently filed the various postconviction
motions that are the subject of the present appeal.
Specifically, on March 11, 2019, the defendant filed his fifth
3 motion for a new trial, in which he argued, inter alia, that he
received ineffective assistance of counsel during the firearm
possession trial. A Superior Court judge denied the defendant's
motion on May 8, 2019. On June 10 and August 22, 2019, the
judge denied two subsequent motions to reconsider that decision.
On September 30, 2019, the defendant filed a motion to dismiss
the indictments against him pursuant to Mass. R. Crim. P.
30 (a), as appearing in 435 Mass. 1501 (2001). That motion was
denied on October 28, 2019, by the same judge who denied the
fifth new trial motion. On March 4, 2020, the defendant filed a
motion to revise and revoke his sentence pursuant to Mass. R.
Crim. P. 29 (a) (2), as appearing in 474 Mass. 1503 (2016). The
Commonwealth opposed the motion and filed a motion to correct
the docket. On December 11, 2020, the defendant filed a motion
for funds to conduct a postconviction discovery investigation.
On March 31, 2021, a different Superior Court judge entered
orders denying the defendant's motions and allowing the
Commonwealth's motion. 1
On January 3, 2022, the defendant filed his sixth motion
for a new trial, again asserting a claim of ineffective
assistance of counsel during the firearm possession trial.
1 The Superior Court judge who denied the defendant's motion to revise and revoke subsequently denied two motions to reconsider.
4 After a nonevidentiary hearing, another Superior Court judge
denied the motion on February 29, 2024. The defendant filed
timely notices of appeal from the orders denying each of his
motions, and the appeals were consolidated in this court.
Discussion. 1. Motions for new trial. The defendant
claims that the Superior Court judges abused their discretion in
denying his fifth and sixth motions for a new trial. Pursuant
to rule 30 (b), a judge may grant a new trial "if it appears
that justice may not have been done." "In reviewing the denial
of a motion for new trial, we examine the motion judge's
conclusions only to determine whether there has been a
significant error of law or other abuses of discretion"
(quotation and citation omitted). Commonwealth v. Ferreira, 481
Mass. 641, 648 (2019). See L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). "Motions for a new trial are granted only in
extraordinary circumstances." Commonwealth v. Comita, 441 Mass.
86, 93 (2004).
Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that the behavior
of counsel fell "below that . . . [of] an ordinary fallible
lawyer" and that such failing "likely deprived the defendant of
an otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See
Commonwealth v. Millien, 474 Mass. 417, 432 (2016).
5 We begin by noting, as did the judges who denied the
defendant's motions, that the defendant failed to raise the
present ineffective assistance claims in any of his prior
motions for new trial, even though the claims were available to
him. Therefore, these claims are waived, and we review them
only to determine whether a substantial risk of a miscarriage of
justice occurred. See Commonwealth v. Duguay, 492 Mass. 520,
540 (2023); Commonwealth v. Randolph, 438 Mass. 290, 294-295
(2002).
a. Testimony about cylindrical object. During the firearm
possession trial, Detective Lyons testified that in the "rear
driver's side" of the vehicle in which the defendant was a front
seat passenger, "there was a black cylindrical object" that he
"believed to be some kind of accoutrement to a firearm, possibly
a flash suppressor." The defendant contends that trial counsel
was ineffective for failing to object to or seek to exclude this
"improper opinion" testimony.
The record reflects that trial counsel made a considered
strategic decision to allow the jury hear evidence about the
cylindrical object. In an affidavit accompanying the
defendant's fifth new trial motion, trial counsel explained that
any decisions that he made relating to the cylindrical object
were "part of [his] overall plan to put any evidence relating to
a firearm on others than the defendant." Indeed, there was
6 evidence that an officer saw a "male in a back seat reaching
down as if he was putting something under the seat," and that
the cylindrical object was found where the rear seat passenger
was sitting. In an effort to use such evidence to the benefit
of the defendant, trial counsel elicited testimony about the
object and where it was found, and later stated in his closing
argument that the rear passenger was "fumbl[ing] around" in the
back seat and was "obviously hiding something, and they find a
gun-related thing." Under these circumstances, we cannot say
that it was unreasonable for trial counsel not to challenge
evidence of the cylindrical object in order to suggest that a
third party possessed the object as an accoutrement to the
firearm. See Commonwealth v. Rondeau, 378 Mass. 408, 413 (1979)
("arguably reasoned tactical or strategic judgments" do not
amount to ineffective assistance of counsel unless they are
"manifestly unreasonable" [citation omitted]). Accordingly, we
discern no abuse of discretion in the denial of the defendant's
fifth motion for a new trial. 2
2 The defendant also claims that a different Superior Court judge erred in denying his motion for funds for a "postconviction investigation into the object's identity." In view of the proper denial of the defendant's fifth motion for a new trial discussed above, we discern no error in the judge's conclusion that the defendant "failed to demonstrate that the discovery he requests will lead to evidence possibly warranting a new trial or that this evidence would have materially benefited the defense and factored into the jury's
7 b. Gunshot residue (GSR) evidence. The defendant also
contends that trial counsel was ineffective for failing to
challenge the admission of GSR evidence, and that prior
appellate counsel was ineffective for failing to raise the issue
in previous appeals. Specifically, he claims that (1) the
testimony of the Commonwealth's expert, John Biello, deviated
from the GSR testimony in Commonwealth v. Pytou Heang, 458 Mass.
827 (2011), because it failed to inform the jury about the
possibility of transference, and (2) the GSR evidence prejudiced
him because it was "irrelevant due to contamination from the
sweatshirt being in direct contact with the firearm."
In Pytou Heang, 458 Mass. at 851, the Supreme Judicial
Court concluded that GSR evidence was relevant to suggest that
the defendant "had either recently fired a weapon, been in the
presence of someone who had fired a weapon, or had come into
contact with someone who had recently fired a weapon." At trial
in the present case, Biello testified that a positive result for
GSR would indicate that "the person fired a weapon, they were in
close proximity to a weapon being fired or they had just handled
a weapon that had been fired." While Biello did not state that
a positive result for GSR could be the result of transference,
trial counsel elicited testimony from him on cross-examination
deliberations." See Commonwealth v. Camacho, 472 Mass. 587, 598 (2015).
8 about "potential sources of GSR contamination," and Biello
agreed that there could be "contamination" where "a policeman
who has been at the range handles shortly thereafter a piece of
clothing." The jury also heard testimony from another expert,
Paul Zambella, who described GSR particles as "very sensitive in
nature," which "can be moved or lost very easily." Moreover,
Zambella confirmed on cross-examination that, according to the
"principle of transference . . . when you touch something you
leave something." Thus, we agree with the judge that "trial
counsel did not err in failing to raise the issue of GSR
transference between the sweatshirt and the firearm, as he did
so through effective cross-examination of the Commonwealth's
witnesses."
Even assuming, arguendo, that the defendant satisfied the
first prong of the ineffective assistance test, he has
nonetheless failed to satisfy the prejudice prong of the test.
The Commonwealth presented other evidence at trial that tied the
defendant to the firearm besides the presence of GSR on the
defendant's sweatshirt. A DNA sample obtained from the trigger
of the firearm contained a "mixture of at least two
individuals," and the major DNA profile "matched the DNA profile
from [the defendant]." Further, the defendant's presence in a
vehicle that left the area where the firearm was found at a
"high rate of speed" also suggested a connection to the firearm.
9 In the absence of any showing of prejudice, the motion judge did
not abuse her discretion in denying the defendant's sixth motion
for new trial. 3
2. Motion to dismiss indictments. The defendant next
claims that a Superior Court judge abused his discretion in
denying the defendant's motion to dismiss the indictments in
view of the "substantial preliminary showing" by the defense
that "false testimony was knowingly or recklessly presented to
the grand jury." Specifically, the defendant claims that
Detective Lyons' testimony before the grand jury that (1) the
recovered firearm was found in the "kangaroo pocket" of the
sweatshirt and (2) the sweatshirt appeared discarded "in a
haphazard manner," had "no basis in the associated police
reports and were contradicted by later trial testimony." 4 The
claim is unavailing.
3 We are likewise unpersuaded by the defendant's argument that the judge abused her discretion by declining to hold an evidentiary hearing on his sixth motion for new trial. See Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014), quoting Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001) (judge may rule on new trial motion without holding evidentiary hearing if, in judge's discretion, "no substantial issue is raised by the motion or affidavits"). 4 The police reports stated only that the firearm was found
"inside of the sweatshirt," and was "wrapped inside this black sweatshirt." At trial, Officer Hussey testified that he found the sweatshirt "folded up a little bit," and that the firearm was "wrapped inside the sweatshirt."
10 We review the denial of a motion brought pursuant to rule
30 (a) for an abuse of discretion or error of law. Commonwealth
v. Perez, 480 Mass. 562, 567 (2018). Rule 30 (a) permits a
defendant to seek the correction of an illegal sentence.
Commonwealth v. Layne, 21 Mass. App. Ct. 17, 19 (1985). The
rule "was not intended to provide an avenue for plenary
appellate review," but instead "was designed to enable
defendants to challenge the legality or the technical basis of a
sentence." Commonwealth v. Christian, 429 Mass. 1022, 1023
(1999). Rule 30 (a) is thus not the proper vehicle to challenge
purportedly false grand jury testimony. Even assuming that the
claim was properly raised, "[m]inor discrepancies, if there were
any, between the evidence presented to the grand jury and the
evidence presented, or expected to be presented, at trial cannot
invalidate the indictment." Commonwealth v. Dilone, 385 Mass.
281, 284 (1982). Thus, the judge did not abuse his discretion.
3. Motion to revise and revoke. The defendant also argues
that a Superior Court judge abused his discretion by denying the
motion to revise and revoke the defendant's sentence because the
verdict was reduced from ACC with three predicate convictions
(level three) to ACC with two predicate convictions (level two).
He also argues, for the same reason, that the judge erred in
11 allowing the Commonwealth's motion to correct the docket. 5 We
disagree.
We review the denial of a motion to revise and revoke
pursuant to rule 29 (a) (2) for an abuse of discretion. See
Commonwealth v. Tejeda, 481 Mass. 794, 795-796 (2019). The
purpose of rule 29 (a) (2) is to allow a judge to consider
"whether the sentence imposed was just 'in light of the facts as
they existed at the time of sentencing'" (emphasis and citation
omitted). Id. at 796.
The defendant relies on an entry in the docket from
February 16, 2011, that stated, "Correction Date: 02/16/2011"
and allegedly reflects a conviction under G. L. c. 269,
§ 10G (b) (level two ACC). The defendant fails to cite to
anything in the record that would suggest that this is not a
clerical error. The defendant was indicted and tried as a level
three ACC, and the verdict slip supports that he was convicted
of that enhancement. There is no evidence in the record that an
oral motion to reduce the conviction was argued or allowed on
February 16, 2011, or that any hearing was held on that date. 6
5 In allowing the Commonwealth's motion to correct the docket, the judge changed the statute referenced on the docket and the mittimus from G. L. c. 269, § 10G (b) (level two ACC), to G. L. c. 269, § 10G (c) (level three ACC). 6 Handwritten notes from the Superior Court clerk on the
back of the indictment state that the defendant was sentenced on February 15, 2011, and that the "execution of said sentence" was stayed until the following day. On February 16, 2011, the
12 Although trial counsel for the defendant on the ACC case averred
in an affidavit that it was his "recollection" that there was a
"short hearing on the issue of the defendant's prior
convictions," he does not aver that the judge reduced the
conviction to level two ACC. That the clerk refused to add
language to the mittimus in August 2011 also does not support
the defendant's claim that his conviction had been reduced.
Further, in a motion for relief from unlawful confinement filed
in 2017, the defendant acknowledged that he was convicted and
sentenced as a level three ACC.
Finally, for the reasons outlined above, we conclude that
the judge did not abuse his discretion in allowing the
Commonwealth's motion to correct the docket. "Clerical mistakes
in judgments, orders, or other parts of the record and errors
therein arising from oversight or omission may be corrected by
the court at any time of its own initiative or on the motion of
any party." Mass. R. Crim. P. 42, 378 Mass. 919 (1979). The
judge did not "change the sentence itself" but rather conformed
the mittimus and the docket to reflect "the original sentence."
Commonwealth v. Clark, 53 Mass. App. Ct. 342, 346 (2001). 7
clerk's notes state only: "Stay revoked -- Sentence in full force and effect mitt issued." 7 To the extent that we have not specifically addressed
subsidiary arguments in the defendant's brief, they have not been overlooked. We find nothing in them that requires further
13 Conclusion. The orders dated May 8, June 10, and August 22
of 2019, denying the defendant's fifth motion for a new trial
and two motions for reconsideration of that decision, are
affirmed. The order dated October 28, 2019, denying the
defendant's motion to dismiss the indictments, is affirmed. The
orders dated March 31, 2021, (1) denying the defendant's motion
for funds for postconviction discovery, and (2) denying the
defendant's motion to revise and revoke his sentence and
allowing the Commonwealth's motion to correct the docket, are
discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
14 affirmed. Finally, the order dated February 29, 2024, denying
the defendant's sixth motion for a new trial, is affirmed.
So ordered.
By the Court (Rubin, Neyman & Tan, JJ. 8),
Clerk
Entered: August 4, 2025.
8 The panelists are listed in order of seniority.