United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
September, 2008, a Worcester County Superior Court jury
convicted William Serrano (“Serrano” or
“petitioner”) of home invasion and four lesser
included offenses. He was sentenced to 20 to 22 years in
petitions this Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He advances four
constitutional violations that allegedly deprived him of a
fair trial with due process of law. The first two stem from a
missing 911 tape, the second a failure to give a jury
instruction on self-defense and the third the improper
admission into evidence of medical records.
conviction arose out of an alleged home invasion in
Worcester, Massachusetts in August, 2007. At trial, the
prosecution and defense presented competing narratives
centering on the conflicting testimony of Serrano and the
alleged victim, Russell Harms (“Harms”).
Harms' Account of Being Assaulted
testified that, on August 13, 2007, he answered the door of
his Pleasant Street apartment in Worcester, Massachusetts and
was confronted by a large masked man. The man punched and
beat Harms with a two-by-four, sending him through his coffee
table. During the struggle, the mask came off the
assailant's face and Harms identified the attacker as
Serrano. The assailant took Harm's wallet, removed his
money and threw it on the floor. When the police arrived,
they noticed cards scattered on the floor including a
Massachusetts ID card belonging to Serrano. Harms used the
card to identify Serrano as his assailant.
Serrano's Alternate Account
to Serrano, on August 13, 2007, he was at a local bar and
left with two men to buy marijuana. The men took him to an
apartment complex on Pleasant Street. They told Serrano to
wait in the foyer. When he attempted to pay for the marijuana
the men lunged for his wallet and proceeded to assault
ran down the stairs and began to beat Serrano with a
two-by-four. One of the assailants fled while Harms and the
other assailant took Serrano's wallet and ran upstairs.
week later, still suffering from injuries as a result of the
attack, Serrano went to the hospital. Serrano had heard that
there was a warrant out for his arrest and he called 911
intending to self-surrender. After the 911 call an officer
came to the hospital to speak with Serrano and he surrendered
on the outstanding warrant the following day.
pre-trial motion, Serrano sought to compel the prosecution to
provide a record of his 911 call. Initially, the Worcester
Police Department could find no record of petitioner's
call. As a rebuttal witness at trial, Officer Michael
Freidhoff (“Freidhoff”) testified that an officer
is always dispatched when a 911 call comes in and that he
found no report or dispatch call involving Serrano. In
closing, the prosecution focused on the 911 call and officer
dispatch discrepancies to impeach Serrano's credibility,
The Commonwealth's case is believable and credible.
Russel Harms, believable and credible. Michael Freidhoff,
believable and credible. The defendant's testimony is not
. . .
unsuccessfully moved for a jury instruction on self-defense.
He maintained that any injuries he may have caused to Harms
were inflicted while Serrano defended himself from the
assault in the foyer.
Serrano claims that medical statements and records used to
impeach him on cross-examination were inadmissible hearsay
and in violation of the Confrontation Clause.
was convicted of home invasion, armed assault in a dwelling,
armed robbery while masked, breaking and entering in the
daytime with intent to commit a felony and assault and
battery by means of a dangerous weapon.
his conviction, Serrano made a public records request
regarding the missing 911 call. A record of that call was
then located and provided to appellate counsel.
was found guilty at trial and sentenced in September, 2008.
In September, 2010, petitioner moved for a new trial. An
evidentiary hearing was held and petitioner's motion was
denied in August, 2011. A further motion for reconsideration
based on new appellate decisions was denied in April, 2013.
appeal, Serrano raised six claims: 1) deprivation of his
Sixth Amendment right to a public trial, 2) insufficient
evidence of armed home invasion and armed assault within a
dwelling, 3) error in refusal to give a self-defense
instruction, 4) representation by the Commonwealth that no
911 call occurred, 5) erroneous admission of medical records
and 6) ineffective assistance of counsel. The Massachusetts
Appeals Court (“MAC”) affirmed his conviction and
denied petitioner's motion for new trial in April, 2015.
See Massachusetts v. Serrano, 87 Mass.App.Ct. 1114
(Table op.), 2015 WL 1526072 (2015). Petitioner filed a
timely application for further appellate review, raising