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
23-P-1197
COMMONWEALTH
vs.
RAYMOND C. HORSLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Raymond C. Horsley, appeals from a
conviction, after a jury trial in the District Court, of
violating an abuse prevention order, G. L. c. 209A, § 7, and
from an order denying his motion for new trial.1 Concluding that
the defendant made a substantial showing of ineffective
assistance of counsel in addressing the defendant's hearing
impairment, entitling him to an evidentiary hearing, we vacate
1The defendant was tried at the same time on a separate but related complaint charging assault and battery on a family or household member, G. L. c. 265, § 13M. The jury acquitted the defendant on that complaint. the order denying the defendant's motion for new trial and
remand for further proceedings.2
1. Standard of review. "[W]e review the denial of a
motion for a new trial for 'a significant error of law or other
abuse of discretion.'" Commonwealth v. Duart, 477 Mass. 630,
634 (2017), cert. denied, 584 U.S. 938 (2018), quoting
Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "A judge is
required to conduct an evidentiary hearing on a motion for a new
trial only if a substantial issue is raised by the motion or
affidavits." Commonwealth v. Sanchez, 476 Mass. 725, 742
(2017), quoting Commonwealth v. Torres, 469 Mass. 398, 402
(2014). See Mass. R. Crim. P. 30 (c) (3), as appearing in 435
Mass. 1501 (2001). "In determining whether a substantial issue
exists, 'a judge considers the seriousness of the issues raised
and the adequacy of the defendant's showing on those issues.'"
Commonwealth v. Upton, 484 Mass. 155, 162 (2020), quoting
Commonwealth v. Barry, 481 Mass. 388, 401, cert. denied, 589
U.S. 941 (2019). "A defendant's submissions in support of a
motion for a new trial need not prove the factual premise of
that motion, but they must contain sufficient credible
information to 'cast doubt on' the issue" (citation omitted).
2 The defendant's arguments all go to his motion for new trial, and we therefore do not address the appeal from his conviction.
2 Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). "We afford
particular deference to a decision on a motion for a new trial
based on claims of ineffective assistance where the motion judge
was, as here, the trial judge." Commonwealth v. Sorenson, 98
Mass. App. Ct. 789, 791 (2020), cert. denied, 142 S. Ct. 107
(2021), quoting Commonwealth v. Diaz Perez, 484 Mass. 69, 73
(2020).
"Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that (1) the
'behavior of counsel [fell] measurably below that which might be
expected from an ordinary fallible lawyer' and (2) such failing
'likely deprived the defendant of an otherwise available,
substantial ground of defence.'" Commonwealth v. Tavares, 491
Mass. 362, 365 (2023), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). "Essentially, [t]he defendant must
demonstrate that better work might have accomplished something
material for the defense." Commonwealth v. Ng, 489 Mass. 242,
250 (2022), S.C., 491 Mass. 247 (2023), quoting Commonwealth v.
Valentin, 470 Mass. 186, 190 (2014).
2. Ineffective assistance of counsel. a. Trial counsel's
performance. After trial, the defendant moved for a new trial,
claiming that trial counsel provided ineffective assistance of
counsel by not notifying the trial judge of the defendant's
3 "diminished capacity to hear, due to the loss of his hearing
aid." The defendant submitted an affidavit stating that he "was
unable to hear what the witnesses had said about" him.
"In any proceeding in any court in which a deaf or hearing-
impaired person is a party or a witness, . . . such court . . .
shall appoint a qualified interpreter to interpret the
proceedings, unless such deaf or hearing-impaired person
knowingly, voluntarily, and intelligently waives, in writing the
appointment of such interpreter." G. L. c. 221, § 92A. See
Commonwealth v. Elliott, 87 Mass. App. Ct. 520, 530 n.7 (2015)
("over-all objective" of § 92A "to ensure that deaf and hearing-
impaired persons can understand and fully participate in the
legal proceedings in which they are involved"). "Though the
phrase 'hearing-impaired' is not defined by either statute or
case law, G. L. c. 6, § 191, . . . defines the comparable term
'hard of hearing' as 'a condition of or person with some absence
of auditory sensitivity with residual hearing which may be
sufficient to process linguistic information through audition
with or without amplification under favorable listening
conditions, or a condition of or person with other auditory
handicapping conditions.'" Elliott, supra at 527. "[D]efense
counsel must bring the defendant's hearing difficulties to the
judge's attention . . . ." Id. at 529. See also CPCS, Assigned
4 Counsel Manual § 1(A)(H), at 2.4 (Mar. 18, 2022) ("It is the
responsibility of assigned counsel to make sure that the court
provides such interpreter services for his or her [hearing-
impaired] client").
Here, just prior to empanelment, trial counsel told the
judge: "[The defendant] has a hard time hearing." The judge
responded: "Okay. I'll try to speak up and I'll advise other
people to try to speak up, too." Counsel did not make any
further requests or inform the judge that the defendant was
unable to hear the witnesses.
The trial judge denied the new trial motion based on his
own recollection of the trial, recalling "the [defendant] being
very animated when he disagreed w[ith] the alleged victim's
testimony." During that testimony, the defendant "would shake
his head and say 'no' to himself numerous times. And he would
wildly gesticulate at things he disagreed with."
The trial judge's recollection is not subject to second
guessing by this court, but it is not enough to reject the
defendant's assertion. The defendant and the victim had known
each other for more than twenty years and been in a relationship
for more than twelve years. With that sort of familiarity, the
defendant's ability to understand the victim without a hearing
aid does not establish that he was able to hear and understand
5 the testimony of the two police officers, neither of whom
testified about any prior experience with the defendant.
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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
23-P-1197
COMMONWEALTH
vs.
RAYMOND C. HORSLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Raymond C. Horsley, appeals from a
conviction, after a jury trial in the District Court, of
violating an abuse prevention order, G. L. c. 209A, § 7, and
from an order denying his motion for new trial.1 Concluding that
the defendant made a substantial showing of ineffective
assistance of counsel in addressing the defendant's hearing
impairment, entitling him to an evidentiary hearing, we vacate
1The defendant was tried at the same time on a separate but related complaint charging assault and battery on a family or household member, G. L. c. 265, § 13M. The jury acquitted the defendant on that complaint. the order denying the defendant's motion for new trial and
remand for further proceedings.2
1. Standard of review. "[W]e review the denial of a
motion for a new trial for 'a significant error of law or other
abuse of discretion.'" Commonwealth v. Duart, 477 Mass. 630,
634 (2017), cert. denied, 584 U.S. 938 (2018), quoting
Commonwealth v. Forte, 469 Mass. 469, 488 (2014). "A judge is
required to conduct an evidentiary hearing on a motion for a new
trial only if a substantial issue is raised by the motion or
affidavits." Commonwealth v. Sanchez, 476 Mass. 725, 742
(2017), quoting Commonwealth v. Torres, 469 Mass. 398, 402
(2014). See Mass. R. Crim. P. 30 (c) (3), as appearing in 435
Mass. 1501 (2001). "In determining whether a substantial issue
exists, 'a judge considers the seriousness of the issues raised
and the adequacy of the defendant's showing on those issues.'"
Commonwealth v. Upton, 484 Mass. 155, 162 (2020), quoting
Commonwealth v. Barry, 481 Mass. 388, 401, cert. denied, 589
U.S. 941 (2019). "A defendant's submissions in support of a
motion for a new trial need not prove the factual premise of
that motion, but they must contain sufficient credible
information to 'cast doubt on' the issue" (citation omitted).
2 The defendant's arguments all go to his motion for new trial, and we therefore do not address the appeal from his conviction.
2 Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004). "We afford
particular deference to a decision on a motion for a new trial
based on claims of ineffective assistance where the motion judge
was, as here, the trial judge." Commonwealth v. Sorenson, 98
Mass. App. Ct. 789, 791 (2020), cert. denied, 142 S. Ct. 107
(2021), quoting Commonwealth v. Diaz Perez, 484 Mass. 69, 73
(2020).
"Where a motion for a new trial is based on ineffective
assistance of counsel, the defendant must show that (1) the
'behavior of counsel [fell] measurably below that which might be
expected from an ordinary fallible lawyer' and (2) such failing
'likely deprived the defendant of an otherwise available,
substantial ground of defence.'" Commonwealth v. Tavares, 491
Mass. 362, 365 (2023), quoting Commonwealth v. Saferian, 366
Mass. 89, 96 (1974). "Essentially, [t]he defendant must
demonstrate that better work might have accomplished something
material for the defense." Commonwealth v. Ng, 489 Mass. 242,
250 (2022), S.C., 491 Mass. 247 (2023), quoting Commonwealth v.
Valentin, 470 Mass. 186, 190 (2014).
2. Ineffective assistance of counsel. a. Trial counsel's
performance. After trial, the defendant moved for a new trial,
claiming that trial counsel provided ineffective assistance of
counsel by not notifying the trial judge of the defendant's
3 "diminished capacity to hear, due to the loss of his hearing
aid." The defendant submitted an affidavit stating that he "was
unable to hear what the witnesses had said about" him.
"In any proceeding in any court in which a deaf or hearing-
impaired person is a party or a witness, . . . such court . . .
shall appoint a qualified interpreter to interpret the
proceedings, unless such deaf or hearing-impaired person
knowingly, voluntarily, and intelligently waives, in writing the
appointment of such interpreter." G. L. c. 221, § 92A. See
Commonwealth v. Elliott, 87 Mass. App. Ct. 520, 530 n.7 (2015)
("over-all objective" of § 92A "to ensure that deaf and hearing-
impaired persons can understand and fully participate in the
legal proceedings in which they are involved"). "Though the
phrase 'hearing-impaired' is not defined by either statute or
case law, G. L. c. 6, § 191, . . . defines the comparable term
'hard of hearing' as 'a condition of or person with some absence
of auditory sensitivity with residual hearing which may be
sufficient to process linguistic information through audition
with or without amplification under favorable listening
conditions, or a condition of or person with other auditory
handicapping conditions.'" Elliott, supra at 527. "[D]efense
counsel must bring the defendant's hearing difficulties to the
judge's attention . . . ." Id. at 529. See also CPCS, Assigned
4 Counsel Manual § 1(A)(H), at 2.4 (Mar. 18, 2022) ("It is the
responsibility of assigned counsel to make sure that the court
provides such interpreter services for his or her [hearing-
impaired] client").
Here, just prior to empanelment, trial counsel told the
judge: "[The defendant] has a hard time hearing." The judge
responded: "Okay. I'll try to speak up and I'll advise other
people to try to speak up, too." Counsel did not make any
further requests or inform the judge that the defendant was
unable to hear the witnesses.
The trial judge denied the new trial motion based on his
own recollection of the trial, recalling "the [defendant] being
very animated when he disagreed w[ith] the alleged victim's
testimony." During that testimony, the defendant "would shake
his head and say 'no' to himself numerous times. And he would
wildly gesticulate at things he disagreed with."
The trial judge's recollection is not subject to second
guessing by this court, but it is not enough to reject the
defendant's assertion. The defendant and the victim had known
each other for more than twenty years and been in a relationship
for more than twelve years. With that sort of familiarity, the
defendant's ability to understand the victim without a hearing
aid does not establish that he was able to hear and understand
5 the testimony of the two police officers, neither of whom
testified about any prior experience with the defendant.
There was substantial evidence supporting the defendant's
contention. The defendant said, "I can't hear. I can't hear"
when the first officer began to testify. The defendant told the
judge, "I can't hear you" at the beginning of sentencing. At
the end of sentencing, the defendant asked, "what did I get
found guilty on?" Accordingly, the defendant's assertion that
he could not hear the witnesses is not a recent invention.
The defendant also provided an affidavit of his doctor, an
otolaryngologist, who has been treating him "for approximately
18 years." The doctor stated that the defendant "can hear
nothing in his left ear and he can only hear things in his right
ear if he is using a powerful hearing aid." Because of this,
the doctor recommended that the defendant "have use of a hearing
aid or any mechanism that enhances the ability to hear if he
wants to hear what people 10 feet away from him are saying."
The defendant also averred that he "had informed [his]
trial attorney . . . that [he] had hearing loss and no hearing
aids when [he] first met him a few months before the trial" and
that he asked trial counsel "to make an accommodation for [his]
hearing loss." Trial counsel failed to respond to several
attempts by appellate counsel to state "whether these
6 [statements] were true or not," so without an evidentiary
hearing the defendant's contention in this regard is unrebutted.
See Commonwealth v. Martinez, 86 Mass. App. Ct. 545, 551 (2014)
("where successor counsel filed affidavits attesting to plea
counsel's lack of cooperation -- including even the failure to
return telephone calls -- the lack of an affidavit cannot be a
talisman that, by itself, defeats a claim of ineffective
assistance of counsel"). Accord Commonwealth v. Miller, 101
Mass. App. Ct. 344, 352 (2022) (absence of affidavit from plea
counsel may be excused where prior counsel "repeatedly refuse[d]
to respond to communications from successor counsel").
In short, the defendant provided enough of a showing of
counsel's deficient performance to warrant an evidentiary
hearing to explore the defendant's ability to hear the witnesses
and what information he provided to trial counsel. The
defendant's submissions adequately "cast doubt on" whether he
was afforded effective assistance of counsel. Commonwealth v.
Lys, 481 Mass. 1, 5 (2018).
b. Prejudice. In assessing whether the defendant was
prejudiced because of trial counsel's performance, "a defendant
is entitled to a new trial 'if we have a serious doubt whether
the result of the trial might have been different had the error
not been made.'" Commonwealth v. Lacoy, 90 Mass. App. Ct. 427,
7 439 (2016), quoting Commonwealth v. Millien, 474 Mass. 417, 432
(2016). "[T]he burden is on the defendant to show . . . a
reasonable probability of a different outcome . . . ." Weaver
v. Massachusetts, 582 U.S. 286, 301 (2017).3
The defendant made a substantial showing of prejudice that
warrants exploration at an evidentiary hearing. The defendant
alleges that he "was unable to hear what the witnesses had said
about [him]" and that, in fact, he "couldn't hear most of the
jury trial." If the defendant were unable to hear witnesses,
then he could not give informed input to or aid his trial
counsel in questioning the witnesses. See Elliott, 87 Mass.
App. Ct. at 526 ("a defendant's hearing abilities also implicate
his or her constitutional rights to be present at trial, to
consult with his or her lawyer, to confront witnesses against
him or her, and to testify"); Commonwealth v. Espinal, 482 Mass.
190, 200 n.14 (2019), quoting Reporter's Notes to Mass. R. Crim.
P. 41, Massachusetts Rules of Court, at 222 (Thomson Reuters
2019) ("the rights of a defendant to be present at trial, to
consult meaningfully with counsel, and to confront adverse
witnesses 'mandate that an interpreter be available to the
3 The defendant's invocation of structural error has no place in a claim of ineffective assistance of counsel. See Commonwealth v. LaChance, 469 Mass. 854, 856-857 (2014), cert. denied, 577 U.S. 922 (2015).
8 defendant or witness who cannot effectively communicate'").
Whether such aid to counsel would have made a difference is
another matter that can be explored at an evidentiary hearing.
This is not a case where the evidence was so strong that
there could be no prejudice. See Commonwealth v. Despasquale,
86 Mass. App. Ct. 914, 917 (2014), quoting Commonwealth v.
Satterfield, 373 Mass. 109, 115 (1977) ("Notwithstanding trial
counsel's deficient performance, there has been no showing, in
light of the overwhelming evidence of guilt, 'that better work
might have accomplished something material for the defense'").
The police officer who was "canvassing the area looking for [the
defendant]," located him on a different street than the victim's
home. The defendant's guilt of violating the abuse prevention
order, then, was dependent on the credibility of the victim's
testimony, which the jury discredited at least to some extent in
acquitting the defendant of the assault charge. See
Commonwealth v. Gardner, 102 Mass. App. Ct. 299, 313 (2023)
(partial acquittal suggests victim's credibility was impeached
to some extent). The defendant made an adequate showing of
9 prejudice to warrant an evidentiary hearing.
The order denying the defendant's motion for new trial is vacated, and the case is remanded to the District Court for further proceedings consistent with the memorandum and order of the Appeals Court.
By the Court (Vuono, Ditkoff & D'Angelo, JJ.4),
Clerk
Entered: March 17, 2026.
4 The panelists are listed in order of seniority.