By Steve Hansen
QCS Managing Editor
Tenth District Court Judge Albert Mitchell has scheduled a Dec. 18 hearing to determine whether the New Mexico Department of Children Youth and Families has a right to intervene in the case of Tony Day, accused of killing his adoptive mother and sister in November.
Mitchell set this date Tuesday and set an early November deadline for prosecuting attorneys to file a response to CYFD’s motion requesting standing in the case.
CYFD’s motion challenges Mitchell’s decision to hold a hearing to determine whether Day would respond well to behavioral health before a trial to determine guilt or innocence, contrary to the usual practice in New Mexico courts.
Tenth District Attorney Tim Rose said the prosecution’s response could be ready as early as next week.
CYFD’s motion said the department has the right to intervene in the case because it would be adversely affected by fulfilling its part for the amenability hearing before the trial of the murder case. To do so, the department’s motion said, would be to violate state law.
The amenability hearing is used only in cases where a youth is charged as an adult. Day was 14 at the time of the homicides.
In August, both the prosecutor, Rose, and the defense attorney, Jeffrey Buckels, a state public defender, had agreed to hold the amenability hearing before the trial begins.
Their motion to reverse the usual order of hearings stated, “The law presumes but does not require that the adjudication of guilt will precede the finding that the juvenile is not amenable to treatment. All that is required is that both preconditions be met.” Mitchell granted that motion.
Rose explained that a determination on whether Day would respond well to treatment will provide certainty about what Day’s maximum sentence can be if he is found guilty. Advance knowledge of sentencing will help set the direction of trial proceedings on matters like whether Day would plead guilty and whether the trial will be a jury proceeding or be held before the judge alone, Rose said.
CYFD also raised the issue of judicial economy, saying that reversing the usual order of these hearings would create inefficiency, in part because a hearing on amenability to treatment may be required after a trial to determine guilt in any case.
Mitchell said he may need to commission a consultant to determine whether judicial economy would be compromised by reversing the order of proceedings.
Meanwhile, Day has been transferred to the Sequoyah Adolescent Treatment Center, Albuquerque, to await trial after spending nearly 11 months in the juvenile area of the Quay County Detention Center. Sequoyah combines facilities for treatment with security procedures that allow treatment of incarcerated individuals, Rose said.
Day, 14, is accused of killing his adoptive mother Sue Day and his adoptive sister Sherry Folts on Nov. 14.