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March 17, 2026 Get Citation Alerts Download PDF Add Note

Commonwealth v. Raymond C. Horsley.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 23-P-1197

• Precedential Status: Non-Precedential

• Opinion

• Authorities (20)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

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).

1. 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

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"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

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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.

10