8.17.2004
Day sentenced to 4 life terms in double murder
Kenneth D. Day, 25, of Providence, is the fifth and final man convicted in the 2000 carjacking and killings of two students.

By Edward Fitzpatrick
Journal Staff Writer

PROVIDENCE - Barbaric. Nauseating. Senseless.

Kenneth D. Day was sentenced to four consecutive terms of life without parole yesterday as the judge and prosecutors grappled for words to describe the June 2000 murder and carjacking of college students Amy Shute and Jason Burgeson.

Shute, 21, of Coventry, and Burgeson, 20, of Lakeville, Mass., were kidnapped from downtown Providence after a night of dancing, and driven in Burgeson's sport-utility vehicle to a golf course under construction on the Providence/Johnston line. According to testimony, Gregory J. Floyd shot the students in the head as they begged for their lives while Day urged Floyd to pull the trigger.

Prosecutor Gerard B. Sullivan ran through the alphabet -- from "abhorrent" and "animalistic" to "wanton" and "wicked" -- before concluding that, "We can empty a dictionary of adjectives and then search a thesaurus for synonyms and not come close to describing this crime."

Superior Court Presiding Justice Joseph F. Rodgers Jr. said, "The brutal manner in which these two young people had their lives extinguished calls out for the maximum sentence."

"I have a few adjectives of my own," Rodgers said. "The crimes committed against Jason and Amy were the most barbaric, senseless, merciless, horrific, dehumanizing that this court has been exposed to in my 30 years plus as a trial judge."

Defense lawyer Joseph L. DeCaporale Jr. said he agreed with every adjective Sullivan used for the crime. "But likewise," he said, "every adjective can also be applied to the life and background of Kenneth Day. He was not dropped from the sky one day, the personification of evil."

Growing up, Day faced a life of poverty and a broken home, a mother who abused alcohol and a father who smoked crack, DeCaporale explained, saying, "The public needs to know where this man came from."

Rodgers acknowledged the turmoil of Day's childhood, saying, "Maybe Mr. Day had no real chance in life to fulfill his God-given talents." But, Rodgers said, "He did possess a free will. He did possess a modicum of intelligence." And he cited the prosecution's argument that many people have had worse upbringings yet have led productive lives without killing or carjacking.

"We would be in an awful pickle in this society," Rodgers said, "if we were to hold as a matter of policy in the judiciary sentencing practices [that] if you had a tough break in life, that excuses criminal conduct."

Rodgers said he must take into account the potential for rehabilitation, "but I'm struck with a feeling that there is no hope for Mr. Day."

The murder and carjacking, the unrelated robberies for which Day is already serving time, and Day's repeated infractions in state prison all "show that he is an angry young man and there could be further criminal activity if given the opportunity," Rodgers said.

Aside from rehabilitation and deterrence, Rodgers said, "There is another aspect of sentencing, and that is retribution -- an eye for an eye." He said, "There is something to be said for punishing people for the wrongs they have committed."

Day's responsibility for the crimes began the moment he got into a car and began touring downtown with four other men, talking about "getting somebody," Rodgers said, quoting Day's own words in a videotaped interrogation. "Asked what that meant, he acknowledged they were out to rob somebody."

Also, Rodgers noted Floyd had testified in federal court that Day urged him to shoot Burgeson and Shute, saying, "They saw my face."

Day, 25, of Providence, is the fifth and final man convicted in the double murders. The other four pleaded guilty in federal court: Floyd, Samuel Sanchez and Harry Burdick are serving life sentences, and Raymond Anderson is serving a 30-year sentence.

A judge had thrown out a federal carjacking case against Day, saying prosecutors hadn't proved he intended to kill the students at the time of the carjacking. But there's no such requirement under state law, and on June 10 a jury convicted Day on nine counts.

Rodgers sentenced Day to 10 years for each of three conspiracy charges, to run concurrently. He sentenced Day to 10 years for each of two robbery counts, to run consecutively. And he sentenced Day to life without parole for each of the two murder counts and two carjacking counts, to run consecutively. The grand total is four terms of life without parole plus 30 years in prison. And that's on top of the 40 years Day is now serving for unrelated robberies.

"Bye, Kenny," Shute's mother, Carol Shute, called as Day was led from the courtroom in shackles after the sentencing.

Shute had addressed the court, saying Day has not displayed a shred of remorse. "Every day that he entered and left this courtroom he would look at my family, as well as Jason's family, and he would smile and wink and laugh at us," she said.

Day could have pleaded guilty like the others, Shute said. "He could have tried to spare us all the pain and agony of sitting through a trial," she said. "But he didn't. He didn't because he doesn't care.

"He has done nothing but tried to get away with murder, to wear us down," Shute said. "But we are still here, and we are still fighting for justice for Amy and Jason. Again, your honor, I only ask that Kenneth Day serve the rest of his life behind bars."

The Burgesons did not address the court, but they submitted letters to the judge. "It has taken four years to get some sense of justice," wrote Burgeson's mother, Nadine. "Four sentences and two trials, and each time we have had to go back to day one."

"The loss of a child is the worst heartache that a parent can have to endure," Burgeson wrote. "But when your child is murdered under such terrible circumstances as Jason was, the agony is unbearable. When you lay down to sleep and the thoughts creep into your mind of what he went through in his final moments -- you don't sleep. When you sit down to eat and see his chair is empty -- you have no appetite. You long so much to see him. If you could only hug him, maybe you might just feel a little better."

DeCaporale began addressing the court by saying, "Nothing I say today should be taken by any of the family members in any way to mitigate or seek to mitigate this horrendous, horrendous crime."

While the victims' families say Day could have pleaded guilty, DeCaporale emphasized that the Constitution guaranteed Day a trial and obligated the government to prove its case beyond a reasonable doubt.

DeCaporale noted Rodgers was basically choosing between a sentence of life or life without parole yesterday. "Frankly, your honor -- and I say this most respectfully -- it really doesn't make any difference which way you go today," he said.

"Symbolically, I guess, it makes a statement to sentence this man to life without parole," DeCaporale said, "but I would suggest to you that based on his background, there is no need to snuff out all of his hope because no matter which way you go he is going to be in jail for a long, long, long time."

DeCaporale detailed Day's background: He was born to a military family and lived in Germany when he was six months old. Day's mother developed a drinking problem there, and his father was abusive to her. The family returned to Durham, N.C., and that was a happy period, but when Day was 6, his parents' marriage ended when his mother became involved with another woman. Day's mother eventually separated from that woman and moved to Providence with her two sons, relying on welfare, but Day later moved back to Durham to live with his father, who was smoking crack. Bills went unpaid, and they were evicted often. "He recalled at this period, it was every man for himself," DeCaporale said.

DeCaporale noted no members of Day's family were in court yesterday. "There's a reason for that," he said. "We don't know where his father is, and he doesn't know where his mother is. He believes she's homeless in Durham, N.C."

Sullivan said, "I don't dispute that growing up in poverty in an abusive home to drug-addicted parents is difficult." But, he said, "It did not cause this defendant to commit the crimes that he did. To suggest that he is a product of his environment overlooks the fact that many others have grown up in that environment and did not murder two innocent people or commit the other crimes that the defendant has."

Sullivan said the crime had widespread impact, prompting "concern for the safety of people visiting our capital city" and causing "every parent to worry about the safety of their children when they venture out at night."

"In an individual sense, two young and promising lives were snuffed out," Sullivan said. "Both victims [were] in terror, knowing their deaths were imminent prior to their executions." Day wanted to rape Shute and he urged Floyd to kill the students, Sullivan said, calling Day's role "the moral equivalent of pulling the trigger."

Day addressed the judge in a rapid, barely audible voice: "Apologizing ain't going to resurrect these victims, and nothing that I say is going to change you from giving me life without the possibility of parole," he said. "They don't want to hear that I'm sorry. They want me to have the life penalty."

Rodgers asked Day if he had ever attempted to tell the Shutes and Burgesons he was sorry. After a long pause, Day said, "No. I mean, I feel bad for what happened, but, you know, they don't want to hear I'm sorry. They don't want to hear that."

"Well," Rodgers said, "I would like to hear it."

"I apologize," Day said. "I mean, I don't know if it sounds sincere or what, but I'm sorry."

After the sentencing, DeCaporale said he would appeal Day's conviction.




Past writing tips | About The Providence Journal's Writing Program
E-mail us | Writing-related Web links
Back to main
Copyright © 2002 The Providence Journal Company
Produced by www.projo.com