WARWICK, R.I. (WPRI) — One of the five men who took part in the execution-style murder of a young man and woman at a Johnston golf course in 2000 claims his attorney neglected to tell him about a plea deal that could have meant eventual freedom.
He is now seeking a new trial.
Kenneth Day, 44, appeared before Judge Francis Darigan at Kent County Superior Court Monday and testified he was unaware there was a plea offer from prosecutors of life with the possibility of parole. In 2004, Day was convicted at a state trial and sentenced to life without the possibility of parole for his role in the carjacking and murder of Jason Burgeson and Amy Shute.
Day said his attorney at the time, Joseph DeCaporale, never told him about the offer (DeCaporale died in 2021).
“He didn’t do the right thing,” Day said. “Because he tried to get me to plead guilty to life without parole.”
Assistant Attorney General Judy Davis pointed out one of Day’s co-defendants was offered a reduced sentencing for cooperating with the government and he could have done the same.
“You were offered the same opportunity to cooperate with the government,” Davis said. “You chose not to.”
“I chose not to,” Day confirmed.
Day also testified his lawyer never told him he could express remorse for his actions at sentencing and would have done so if he knew.
After the hearing, Burgeson’s sister, Kellie Burgeson Surdis, said Day’s claim that he wanted to apologize at the time of sentencing does not ring true to how he acted at the time.
“He showed the ultimate disrespect to us. He was swearing at us, he refused to apologize for his actions,” Surdis said. “The remorse that he is showing is only for himself, there is no remorse for Jason and Amy. He’s sorry now because he would like a lesser sentence, but he wasn’t sorry then or immediately after the act.”
At the hearing, Davis accused Day of downplaying his role in the murders.
“You had an active role in everything that happened that night, didn’t you?” Davis asked.
“No,” Day responded.
“Mr. Floyd was lying when he said you suggested bringing the gun that night?” Davis asked.
“He was lying,” Day said.
Day also said his codefendants were lying when they said he told Shute she could go free if she performed a sex act on him.
“Did I pull the trigger? Everyone knows who pulled the trigger,” Day said. “I never said I wasn’t responsible, I said I didn’t pull the trigger.”
Burgeson and Shute, both 20, were with friends at Bootleggers nightclub in Providence in June 2000. After leaving, they were approached by an armed Gregory Floyd and Harry Burdick, who demanded money.
They then ordered the couple into Burgeson’s Ford Explorer and drove to Button Hole golf course in Johnston, which was under construction at the time. The other members of the crew – including Day – followed in a different vehicle.
Prosecutors said Day told Floyd at the golf course he should shoot Burgeson and Shute because they had seen their faces. The group argued for more than 20 minutes while Burgeson and Shute begged for their lives. Floyd eventually shouted, “that’s enough,” and shot the pair, according to testimony.
Day was acquitted on a legal issue at federal count but found guilty of nine counts including carjacking resulting in death and murder at a state trial.
Floyd died of cancer in federal prison in 2021.
Three other defendants – Samuel Sanchez, Harry Burdick and Raymond Anderson – are all serving time in different federal prisons. Sanchez and Burdick were each given life sentences without parole, Anderson — who agreed to cooperate — is scheduled to be released in 2032. All three of them lost their requests for compassionate release during the COVID-19 pandemic.
The families of both Burgeson and Shute have endured more than two decades of hearings, trials and legal requests by the defendants to get out of prison, but Surdis said they are committed to tracking the cases and attend hearings because “it’s imperative that we continue to fight this battle.”
“Jason and Amy were given a life sentence they cannot escape from, and we’re here living this life without him,” Surdis said. “We don’t get an appeal.”
The first witness to take the stand on Monday was Dr. Carl Fulwiler, a psychiatrist and professor at Harvard Medical School, who interviewed Day in prison in 2021. Fulwiler said Day did not match the profile of a sociopath and that he expressed regret for the crime. Fulwiler said in his expert opinion Day did not have “violent tendencies,” and was capable of being rehabilitated.
The state prosecutor, Davis, pushed back at Fulwiler’s assessment.
“He was involved in at least two armed robberies in the two months leading up to the murders,” Davis asked him. “Were you aware of that?”
“I’m aware he was charged but I don’t know that he was convicted,” Fulwiler said.
“I can tell you that he was,” responded Davis.
Former prosecutor on the case against Day, Laura Pisaturo – now a member of the parole board – was the second witness. She testified that there was a plea deal of life with the possibility of parole, but her notes said “the defendant” rejected the deal.
Judge Darigan is expected to issue his decision on whether to grant a new trial in late spring. Darigan retired from the bench in 2012 but returned to hear Day’s post-conviction relief request.
Tim White (twhite@wpri.com) is Target 12 managing editor and chief investigative reporter and host of Newsmakers for 12 News. Connect with him on Twitter and Facebook.