Commonwealth v. Larry Ahart.

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.

15