A state appellate court cited “prosecutorial error” when it overturned a murder conviction and ordered a new trial for a Turlock man already serving 25 years to life in prison for the deadly stabbing.
A jury in October 2011 found Darren Jack Merenda guilty of first-degree murder in the death of Hughson resident Donald Dean Futch.
The state’s 5th District Court of Appeal on Feb. 23 reversed the jury’s verdict and said Merenda deserves a new trial because he was deprived of his right to have a defense attorney of his choice, according to the appellate court’s written opinion.
“Because defendant was deprived of the right to retained counsel of choice due to prosecutorial error, reversal is mandatory regardless of whether defendant had a fair trial with his appointed counsel,” Appellate Judge Stephen Kane wrote in the opinion.
The appellate court determined that the prosecutor failed to provide the trial judge all information about a key witness who was served with a subpoena to testify. Merenda’s request to delay the trial to hire a new attorney was denied because of the witness’s availability, but the witness never showed up to testify.
Chief Deputy District Attorney Annette Rees, who prosecuted the case against Merenda, declined to comment for this report, telling The Modesto Bee that “the rules of professional conduct forbid any attorney from commenting about issues in a case that could influence potential jurors.”
Testimony in the trial indicated Merenda and Futch were involved in a dispute over a woman. The two men agreed to meet in the alley behind a Colorado Avenue apartment complex in Turlock to discuss their dispute. The prosecutor argued that Futch was unarmed but the defendant had hidden a 10-inch dagger under his shirt.
Futch, 34, was stabbed 11 times and pronounced dead at the scene Sept. 12, 2009. A forensic medical examiner testified that one of the stab wounds in Futch’s chest was 13 inches deep.
Two weeks before his 2011 trial was scheduled to start, Merenda informed the court he had hired defense attorney Kirk McAllister. He wanted to replace Deputy Public Defender Saul Garcia, who was appointed by the court to represent him.
Merenda told the judge his family had gathered enough money to hire McAllister. The newly hired attorney wanted to delay the trial to get up to speed on the case.
The prosecutor argued against the delay, telling the judge that Peter De La Cruz, a “critical prosecution witness,” was serving in the Army in Afghanistan, according to the appellate court’s review of the case.
Rees told the judge De La Cruz appeared reluctant to testify in a trial for his friend and roommate, Merenda. She said De La Cruz had spoken to Merenda before and after the stabbing, and his testimony could help prove the stabbing was premeditated.
The prosecutor told the judge her office had been in contact with the Army, and she confirmed that De La Cruz was “in transit. He’s to be here. He will be present on the 26th of September. If we vacate this jury trial, I no longer have personal service on that witness.”
De La Cruz had not testified in Merenda’s preliminary hearing, so the trial was his last opportunity to testify.
McAllister argued that the Sixth Amendment guaranteed his client an attorney of his choice and it should be the overriding factor in the judge’s decision. He also said De La Cruz could be brought back for a rescheduled trial.
Stanislaus Superior Court Judge Dawna Reeves denied the motion to delay the trial, because Garcia was ready for trial. The judge also said delaying the trial would put the prosecution at a disadvantage due to “unusual witness availability issues,” according to court documents.
The judge told Merenda the prosecution has “been waiting for two years; they’ve been juggling all these different witnesses, including the one from Afghanistan, and they have the burden of proof. So, I can’t just disregard their rights in favor of yours.”
The appellate court determined Reeves did not abuse her discretion in denying the trial delay, saying she based her decision on erroneous representations. “Unfortunately, the prosecutor inadvertently misled the court, which resulted in the denial of the continuance necessary for defendant’s counsel of choice to represent him,” Kane wrote. Appellate Judges Charles Poochigian and Herbert Levy concurred on the written opinion.
De La Cruz was served with a subpoena to testify in the trial in June 2011. Steven Jacobson, an investigator for the Stanislaus County District Attorney’s Office, testified on Oct. 4, 2011, about his efforts to make sure De La Cruz showed up to testify.
Jacobson testified that from August 2011 through the day before trial, the Army gave him assurances that De La Cruz would be available to testify. But on Sept. 26, 2011, an Army staff judge advocate told Jacobson the Army would not force De La Cruz to show up for the trial without a federal subpoena.
The prosecution tried to obtain a federal subpoena through the U.S. attorney’s office and the FBI but was not able to get it. Jacobson communicated directly with De La Cruz after the trial started, and an Army commander told the investigator that De La Cruz would be allowed to return.
De La Cruz, however, told Jacobson on Oct. 3, 2011, that he was still in Kuwait, and that he had permission to leave but no transportation. It was unclear to the appellate court when the prosecutor was informed the state subpoena was insufficient to compel De La Cruz to testify.
But the appellate court said the prosecutor is still responsible to accurately provide all potentially exculpatory evidence gathered by the prosecution team, which includes its investigators. “In light of the circumstances known to the prosecution team, it was error for the prosecutor to not disclose that the Army did not recognize De La Cruz’s subpoena prior to the jury being sworn,” Kane wrote.
Reeves did not see grounds for a mistrial because De La Cruz still was under subpoena, and the prosecutor still was trying to get him. The judge understood that the prosecutor still expected the witness to appear sometime during the trial.
But the appellate court determined Reeves would have postponed the trial to allow Merenda’s new attorney to step in had she known the state subpoena was not enforceable. “Absent the prosecutorial error, it is beyond a reasonable doubt that the trial court would have granted a reasonable continuance to allow McAllister the time he needed to prepare for trial,” Kane wrote.
Merenda, 36, remained in custody Friday at the High Desert State Prison in Susanville in Lassen County. He’s been at the prison since September 2012.
His return to a Stanislaus County courtroom had not yet been scheduled, so it’s unclear when his new trial will begin.