Tony Day brother’s testimony recounts events on night of double murder

Scott Day was awakened by his adoptive brother Tony about 11:30 p.m. on Nov. 26, 2012.

“I did it,” Tony, then 14, said, according to Scott’s testimony Wednesday in a hearing on Tony Day’s murder case. “I killed Sherry.”

Sherry Folts was Tony Day’s first victim on the night of Nov. 26, 2012, when Day  killed both Folts, 48, his sister by adoption, and his adoptive mother, Sue Day, 76.

Scott, who said he is about a year older than Tony, had to be talked into leaving his bed, since he thought Tony was joking. He testified that he and Tony, both adopted, had held conversations in which they complained about the rules they had to live by and the chores they had to do. In a few of these conversations, Scott said, Tony had said he wanted to kill the Days, even to the point of discussing how and what he would do to avoid being caught. Scott said he never took Tony’s statements about killing the Days seriously.

When Tony talked Scott out of bed on Nov. 26, 2012, Scott testified, he eventually saw Folts’ body and growing bloodstains.

Since Tony was still armed, Scott thought, he would play along, but when Tony went into a bathroom to clean up, Scott said he went to wake up Mike Day, his adoptive father, and Sue Day.

Scott didn’t get there on time, he testified, and continued to play along until he was able to tell Tony he could not help him move Folts’ body until he put more clothes on. While Tony waited outside the house, and Scott awakened Mike and Sue Day to tell them Tony had killed Sherry.

Mike and Sue eventually followed Scott to Sherry’s room, and Sue then went to the home’s kitchen.

Scott said he heard a shot, and saw Sue Day staggering from the kitchen to the hallway. He tried to help her, but she collapsed. He confronted Tony in another hallway and told him he would shoot Mike Day.

Tony handed Scott the gun, Scott testified, and Scott slammed the rifle butt into Tony’s face, disabling him.

At that point, Mike Day came in saying to Tony, “You bastard! You shot my wife. You’re going to jail.”

The purpose of the hearing that began Wednesday is to determine whether Tony Day would respond well to behavioral health treatment. The hearing is expected to continue through Friday.

The decision on Day’s amenability to treatment will be instrumental in deciding whether Day would be sentenced as a juvenile or an adult, and could result in a plea that would end the case without a full trial, both prosecutors and defense attorneys agree.

Scott Day told his story under examination by Tenth Judicial District Attorney Tim Rose. He was the second in a series of witnesses called by Rose.

Most of the witnesses contributed a portrait of Tony Day as a very intelligent, conscientious student outside the home, but as a youth who would occasionally become belligerent and withdrawn at home.

The witnesses also included Sabra Williams, Mike and Sue Day’s daughter, who said Tony Day would occasionally shock her by yelling in Sue Day’s face. Both she and Scott Day said Tony occasionally had “anger issues.”

Teachers and the Days’ pastor Wes Stewart of the Temple Baptist Church, Tucumcari, testified that Tony Day was very intelligent, was a very conscientious student and at church, helped teach Sunday school to younger children.

Terri Dunlap, a math teacher, said that Tony would sit alone in class in the front row, and other students would discourage him from answering first, so they could catch up.

In cross-examination Jeffrey Buckels, a public defender and Day’s defense attorney, elicited testimony from the witnesses about Mike Day’s use of physical punishment, and harsh disciplinary measures taken against both Scott and Tony. Buckels cited instances of the boys being punished by being required to spend a day sitting in a chair with interruptions for meals and bathroom breaks, with no distractions or entertainment. Once, when Tony Day said he wished he was not a part of the family, his punishment was that he was not allowed to talk to family members, nor they to him, for a month.

Clark Woolrich, a counselor for Turquoise Health and Wellness, said he conferred regularly with Tony Day until the slayings. Day did not tell him that he wanted to leave the Day family, Woolrich said.

In cross-examining Woolrich, Buckels tried to show that if Woolrich had talked to Mike and Sue Day about what Tony Day had said in counseling, that may have breached the trust that would have allowed Tony Day to express his doubts.

Buckels also asked Woolrich if some of the punishments the Days apparently doled out would have caused Woolrich concern as a counselor, and Woolrich responded that all of them would have raised concerns, but that he had not been made aware of them.

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