By Steve Hansen
Double-murder suspect Tony Day will be sentenced as a juvenile if he is found guilty of two counts of murder in the deaths of Sue Day, his adoptive mother, and Sherry Folts, Day’s daughter, Tenth Judicial District Judge Albert Mitchell ruled on Friday.
Mitchell’s decision followed two and a half days of testimony in a hearing to determine whether Day, who was 14 at the time of the killings, would respond well to behavioral health treatment.
Mitchell decided after hearing and reading the testimony in the case that Day would be responsive to such treatment.
A date for determination of Day’s guilt or innocence has not been scheduled, Day’s defense attorney Jeff Buckels said.
Day killed Folts, then Sue Day on the night of Nov. 26, 2012, both prosecutors and defense attorneys agree, and committed the slayings in a way that looked carefully planned.
Buckels, a public defender from Albuquerque, said he was “satisfied, obviously,” with the judge’s decision.
“The judge acted responsibly,” he said, but added, “Our hearts go out to the Day family for their loss.”
Tenth Judicial District Attorney Tim Rose said, “The law makes it very complicated” to deal with a murder involving a 14-year-old, adding, “These murders scream out for accountability.”
Rose said he will not accept a plea for any crime less than first-degree murder.
Despite his disappointment with the decision, Rose said, “I hope Day does well in treatment, and I hope the public remains safe.”
The maximum sentence allowed under the ruling would keep Day locked up in a state juvenile facility until he reaches age 21.
Mike Day, Sue Day’s husband, said he would accept the judge’s decision
“I don’t want to appeal it,” he said. “I don’t want to put my girls through that again,” he said of his daughters who attended the hearing.
Sabra Williams, a daughter of Mike and Sue Day, said the court “totally deserted my mother and sister. The court did not fully appreciate the nature of the murder. Tony gets to live his full life, while we don’t get to enjoy the company of our mother and sister. They’re not here to speak up because he took their lives.”
Scott Day, Tony Day’s adopted brother who is about a year older than Tony, said, “It was a stupid decision because the judge pretty much told ever kid they can kill two people and brag about it, then get away with it.”
In announcing his decision Mitchell said that Day had committed an “outrageous crime” in which he lay in wait for his victims and had opportunities to pause and reconsider before committing the killings.
Mitchell said, however, he had to consider other factors, including home life and social and emotional health, due to Day’s age.
Home life in the Day household, he said, was “chaotic,” which was the wrong atmosphere for Tony Day after he had experienced traumatic abuse and neglect as a younger child, and constant shuffling between homes as a foster child.
The Day home, he said, was chaotic before Tony was adopted and after he was adopted, Mitchell said, not faulting the Days, who, he said, were foster parents to as many as five children of varying ages at a time.
The New Mexico Children, Youth and Families Department, he said, knew about difficulties with the Day household for at least two years before the murders occurred, Mitchell said, and the Days even asked for help.
“The department tried,” Mitchell said, but nothing was done.
‘“People who should have known how bad the situation was (for Tony) never spoke up,” Mitchell said.
Other factors that went into his decision, Mitchell said, include Day’s exemplary record as a student and athlete, and his clean criminal record.
“I see a lot of young people who have gone to jail for hurting people,” Mitchell said, “They do it again and again. That’s not what happened (in Day’s case). He cared for others.”
Day did not feel he had the option of just running away from the home, Mitchell said, because he felt that the adult world would continue to treat him “like property, like a toy. That was his reality.”
The morning was taken up with testimony from Dr. George Davis, who conducted the study of Day’s amenability to treatment that the court had ordered.
Under questioning from Buckels, Davis said Tony Day had experienced severe abuse and neglect as a young child, which left him “hyper vigilant” and “hyperaroused” for perceived threats. In addition, he said, Tony Day developed a strong mistrust of adults.
Day, he said, developed a protective attitude toward weaker and younger children and an anger toward perceived abuses of power.
Day had never really found himself in a stable, loving home, Davis said, but his attempts to form attachments with teachers, coaches and others who offered kindness and support, he said, demonstrated that Day had a yearning for a stable situation.
Placing Tony Day into Mike and Sue Day’s home, he said, was not proper for someone like Day, who needed calm and stability. The Day home, Davis said, combined the instability of many children coming and going, due to the Days’ active foster parenting, and a “harsh” parenting style that included physical punishment from Mike Day, which made Day’s highly aroused state even worse.
Davis said Tony Day would respond well to treatment because he is intelligent and likes school, he is interested in sports and shows a willingness to help others, especially younger children. In addition, Davis said, Day was not involved with drug abuse or repeated showings of severe poor judgment that less responsive young people often show.
In closing arguments, Rose repeated the description of how the murders were committed, emphasizing their violence and the methodical way they were carried out, and pointed out that another psychologist, Dr. Elizabeth Dinsmore, had said Day’s symptoms had a low likelihood of being corrected. During his description, one family member was overcome with emotion and was led out of the courtroom.
In addition, Rose said, first-degree murder is an exception to crimes for which a child of 14 can be tried as an adult without regard to age.
Closing for the defense, Buckels said that most witnesses had called Tony Day a “great kid,” and that the state could “make something of him.” State juvenile authorities, he said, can “roll up their sleeves” and make a plan to rehabilitate Day.
The prosecution, he said, did not show that this approach was inappropriate.