When Taylor Futch walked out of a Stanislaus County courthouse in 2011, she believed it marked the last time she would ever see the man convicted of killing her father, but four years later she is facing the possibility of sitting through another trial.
On Feb. 23, the Fifth Appellate district in the California Court of Appeals overturned the murder conviction that was handed down by a Stanislaus County jury against Darren Merenda for the 2009 death of Donald Futch. The appeal was approved on the grounds that Merenda’s Sixth Amendment right was violated because he was deprived his legal representation of choice.
“It’s going to be hard for my family and I to go through this again,” Futch said. “We had to hear and see things in the first trial that we didn’t think we’d have to hear and see again. But the situation is out of our control."
During the trial the Stanislaus County District Attorney’s Office, led by prosecutor Annette Rees, presented Merenda as a man obsessed with rekindling a romance with his neighbor, Brooke Barker.
Merenda and Barker both lived in the same Colorado Avenue apartment complex in Turlock and dated briefly in 2009. Barker began dating Donald Futch, a father of four and a youth sports coach after ending the relationship with Merenda.
Merenda continued to make contact with Barker and leave her gifts and cash that she accepted, according to testimony revealed during the trial.
In the early morning hours of Sept. 12, 2009, Merenda sent two text messages to Barker after seeing her and Donald Futch at Staley’s bar in Turlock. She did not respond, however Donald Futch responded back to Merenda and a terse exchange of texts ensued between the two men before they agreed to talk face to face in the apartment complex parking lot.
As Merenda headed out of his apartment and toward the parking lot he grabbed a 10-inch double-blade dagger.
Barker testified in the trial that after speaking briefly in the parking lot the two men moved toward an alley and she saw Merenda bring out the dagger and attack Donald Futch. Merenda claimed it was Futch who attacked him and that he was just trying to defend himself. Donald Futch was stabbed 11 times and was mortally wounded in the fight. The forensic medical examiner who testified at the trial explained that one of the fatal wounds was 13 inches deep into his chest.
During the trial Merenda took the stand in his own defense and testified that he felt threatened by Donald Futch and took the dagger with him as a precaution.
The jury returned a guilty verdict for first-degree murder and Merenda was sentenced to 25 years to life in prison in 2012.
Almost immediately after the verdict was handed down the appeal process was put into motion and it largely was based on Merenda’s request for a new attorney being denied and that a key witness was in the wind for the entirety of the trial.
About two weeks prior to the trial beginning Stanislaus County Public Defender Saul Garcia, who was representing Merenda, asked for a continuance because Merenda wanted to hire defense attorney Kirk McAllister. McAllister was present at the hearing and was ready to take over the case, but he was not prepared to go to trial that quickly, and as such was requesting a continuance. The prosecution objected to the continuance of the trial because they had a “critical witness” who was only available to testify for a short period of time. The witness was Merenda’s roommate Peter De La Cruz, an active duty serviceman in the Army serving in Afghanistan. The prosecution told the court De La Cruz would only be made available for a short time frame and that he was already “in transit.”
Stanislaus County Superior Court Judge Dawna Frenchie denied the continuance and ordered the trial to begin as scheduled.
Merenda made other attempts to replace his counsel, including on the day the trial was set to start. In a closed session, Merenda told the judge he didn’t believe the public defender was adequately prepared to start the trial and that they had difficulty communicating with each other, according to the appeal court documents. Merenda again stated Garcia was not his counsel of choice, but the judge again held to the prosecution’s argument that the trial had to start when it was scheduled because of witness availability and thus the trial began.
De La Cruz was seen as a key witness to both the prosecution and the defense. The prosecution said he was a critical witness because he could show Merenda acted with premeditation. Garcia believed De La Cruz could help the defense by showing Merenda was fearful of Donald Futch and mentioned this theory and De La Cruz by name in his opening statements to the jury.
Just as the trial got underway it was learned De La Cruz was overseas and would not likely be made available. Because of De La Cruz’s absence Garcia asked for a mistrial, saying he felt blindsided by the news that De La Cruz wasn’t present because he believed that was the exact reason why a continuance had not been granted. The mistrial was denied and the trial resumed.
On Sept. 27, 2011, the prosecution asked for a bench warrant against De La Cruz because he was at that point no longer in direct contact with them. On Oct. 4, 2011, the prosecution told the court it “looked less and less likely De La Cruz would appear for the trial,” according to the appeal documents.
In a brief hearing held outside the jury’s presence, district attorney’s office investigator Steven Jacobson testified to the lengths the prosecution had gone to in trying to get De La Cruz to trial. Jacobson said he had received several assurances from the Army that De La Cruz would be here for the trial, but after Sept. 26 things changed. Jacobson said at that point the Army said they would not force De la Cruz to return on a state subpoena. Jacobson said attempts were made to get a federal subpoena, but to no avail.
In their ruling, the appellate court stated the court’s denial of a continuance “was based on erroneous representations. De La Cruz was not a critical witness for the prosecution, he was not in transit from Afghanistan, and he was not subject to an enforceable subpoena.”
The appellate court stated the prosecutor “inadvertently misled the court, which resulted in the denial of the continuance necessary for defendant’s counsel of choice to represent him.”
The ruling from the appellate court states “when a criminal defendant is unconstitutionally deprived of the right to retained counsel of choice, reversal is mandatory regardless of whether or not the defendant had a fair trial with his appointed counsel.”
For the time being, Merenda is still being held at a prison in High Desert, but his family said they are looking forward to the day when he is back in a Stanislaus County courtroom with his attorney of choice by his side. They did not wish to make any other statements.
For Taylor Futch, the possibility of a new trial has her drawing on her faith in God.
"Although I have some anger towards him, I hope he can be forgiven," Futch said of Merenda. “But I also hope my daddy will get the justice he deserves. Whatever happens, happens. It’s all in God’s hands and all I can do is pray about it.”
