Ferguson v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEJOYNAY FERGUSON, §
§ No. 223, 2021
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. N1909003282
STATE OF DELAWARE §
§
Appellee. §
Submitted: May 25, 2022
Decided: August 3, 2022
Before SEITZ, Chief Justice; VAUGHN, and TRAYNOR, Justices.
Upon appeal from the Superior Court. AFFIRMED
Nicole Walker, Esquire (Argued) and Elliot Margules, Esquire, Office of the Public
Defender, Wilmington, Delaware, for Appellant, DeJoynay Ferguson.
Carolyn S. Hake, Esquire, Delaware Department of Justice, Wilmington, Delaware,
for Appellee, State of Delaware.
VAUGHN, Justice:
The Appellant, DeJoynay Ferguson, pled guilty in Superior Court to one count
of Murder by Abuse or Neglect in the First Degree, six counts of Child Abuse in the
First Degree, and two counts of Child Abuse in the Second Degree. The plea was
made pursuant to a plea agreement under which the State entered a nolle prosequi
as to other remaining charges. Murder by Abuse or Neglect in the First Degree is a
Class A felony with a sentence range from a minimum of 15 years at Supervision
Level V to a maximum of life in prison. The sentencing judge imposed a sentence
of life in prison. He also sentenced her to ten years at Level V on each of the Child
Abuse in the First Degree charges, suspended after two years on each. He sentenced
her to probation on the two counts of Child Abuse in the Second Degree. Ferguson
appeals her sentences. She contends that the sentencing judge sentenced her for the
sole purpose of retribution; that he sentenced her with a closed mind; that he was
unwilling to consider the mitigation evidence and arguments she presented; and that
her sentence violates her right to due process.
FACTS AND PROCEDURAL HISTORY
In January 2019, at the age of 18, Ferguson began working at the Little People
Child Development Center, a daycare facility in Bear, Delaware. At that time,
Ferguson’s only experience in childcare was a three-month stint at another daycare
in Delaware. Because of this lack of experience, Ferguson was initially hired as a
teacher’s aide in the infant room. However, after she had been in that position for
2
two months, the lead teacher who supervised Ferguson was terminated from
employment, and Ferguson was left to handle the infant room alone with minimal
experience or training.
At her sentencing, Ferguson admitted that she was “in way over my head.”1
Unfortunately, she turned to abuse to maintain control of the infant room. Beginning
in June 2019 and continuing through September 2019, video surveillance from the
daycare shows Ferguson smothering three children on 28 different days, sometimes
multiple times a day, and physically abusing two additional children. Ferguson’s
conduct finally came to a head on September 5, 2019, when she suffocated I.T., a
healthy four month-old girl, to death. Video surveillance from that day shows that
less than three hours after I.T.’s mother dropped her off at daycare, Ferguson placed
her hand over I.T.’s mouth and nose and suffocated her, causing her death. Almost
30 minutes later, when Ferguson realized that I.T. was unresponsive, she began to
perform CPR on her and eventually called for help. Ferguson was 19 years-old at
the time of the murder.
When questioned by police, Ferguson initially denied harming I.T. However,
after she was confronted with the events that transpired in the video, Ferguson
admitted that she “put [her] hand over [I.T.’s] mouth and her nose until she stopped
breathing and then [she] proceeded to pick her up and put her inside of her crib face
1
App. to Opening Br. at A252.
3
down.”2 When asked why, Ferguson responded that it was done “[o]ut of
aggression” because there were “multiple babies crying at the same time.”3
Ferguson admitted that she knew I.T. had “stopped gasping”4 for breath and that
when she took her hand off I.T.’s mouth, she made one small gasp but “wasn’t
breathing anymore.”5
Ferguson claimed that she did not intend to kill I.T. and was only trying to
stop her from crying. Ferguson told police that when the babies would cry, she
would feel a tightness in her chest, and she later told forensic psychologist Dr. Laura
Cooney-Koss that “after putting [I.T.] back in her crib, [she] was feeling more
relaxed . . . because she had been able to release her anger and resolve the source of
stress.”6 The act of suffocating the infants was a tactic Ferguson employed
consistently between July 2019 to September 2019. She told police that she changed
her method of suffocation over time to make it more effective.
Ferguson was charged by indictment with one count of Murder by Abuse or
Neglect in the First Degree, 48 counts of Child Abuse in the First Degree, and four
counts of Child Abuse in the Second Degree. The charges involved five children.
Ferguson’s guilty pleas involved three of the five children, I.T., J.M., and K.Mu.
2
Id. at A89-90.
3
Id. at A89, A102.
4
Id. at A89-90.
5
Id. at A89, A101.
6
Id. at A176.
4
The parties did not agree on a recommended sentence.
The Truth-In-Sentencing Guilty Plea Form specified that the maximum
penalty for the crimes Ferguson pled guilty to was life plus 154 years. The minimum
mandatory time at Level V, which the court was obligated to impose, was 27 years
(15 years on the Murder by Abuse or Neglect charge and two years for each of the
six counts of Child Abuse in the First Degree). The Truth-In-Sentencing guidelines
called for a range of time at Level V from 27 years (15 years on the Murder by Abuse
or Neglect charge and two years for each of the six counts of Child Abuse in the
First Degree) to 45 years at Level V (15 years on the Murder by Abuse or Neglect
charge and five years for each of the six counts of Child Abuse in the First Degree).
The court ordered a presentence investigation.
Prior to sentencing, the court was provided with several documents meant to
aid in its decision. The defense provided the court and the presentence office with a
psychological evaluation performed by Dr. Cooney-Koss. Dr. Cooney-Koss’s
written report is extensive and discusses such matters as the trauma Ferguson was
still experiencing from the sudden death of her father three years earlier; the
neurological immaturity of teenagers like Ferguson; her remorse and her sincere
attempt to understand her own conduct; her mental health diagnosis, which included
Bipolar I Disorder and other mental conditions; the impact that Ferguson’s youth,
mental health, and lack of coping skills had on her conduct; the impact Ferguson’s
5
age likely had in her decision-making; her lack of a criminal history; and her
amenability to rehabilitation. The sentencing judge also received the presentence
investigation report. The presentence officer prepared the report based on an
interview with Ferguson and a review of the police reports, the psychological report,
and statements by the victims’ families. Ultimately, the presentence officer was
unclear as to what actually motivated Ferguson to harm the children. The judge was
also provided with a sentencing memorandum from the State, which included written
submissions from the victims’ families and 11 clips from the video surveillance. The
defense also supplied a sentencing memorandum, which relied significantly on
mitigation evidence, including a letter of remorse from Ferguson, seven character
letters from her family and friends, and Dr. Cooney-Koss’s evaluation.
Ferguson’s mother addressed the court and explained that as a child Ferguson
“showed compassion and helpfulness”7 to others. She explained the degree to which
her father’s death had affected Ferguson emotionally. She recognized the
seriousness of Ferguson’s conduct, but noted that it was out of character for the girl
she knew. She informed the court that she believed Ferguson was amenable to
rehabilitation and that “with medication and treatment DeJoynay can be a positive
young lady in society.”8
7
Id. at A198.
8
Id. at A199.
6
One friend, who has known Ferguson since childhood, told the judge that she
was shocked by Ferguson’s conduct because she had known her to be nothing but “a
vibrant, loving person with a serving heart.”9 Another friend said that Ferguson had
always provided “a helping hand”10 to others. She also explained that Ferguson was
“doing very well since taking her medication on a regular basis”11 and that “[s]he
still struggles with what has happened and still can’t understand how she could do
something like that.”12
At sentencing, the judge began by inviting family members to speak and
noting, “I have read voluminous correspondence and presentencing materials from
many different parties in this case.”13 I.T.’s mother addressed the court and talked
about the loss of her daughter. J.M.’s mother also spoke to the court and discussed
her fears about the long-term effects Ferguson’s abuse will have on J.M.’s mental
and physical health. K.Mu.’s parents also addressed the court and explained that at
three years-old, their daughter now suffers from nightmares, emotional anxiety, and
separation anxiety.
Ferguson was also given the opportunity to speak and expressed remorse for
her actions.
9
Id. at A202.
10
Id. at A206.
11
Id.
12
Id.
13
Id. at A210.
7
Defense counsel’s primary argument was that Ferguson made reckless
decisions rooted in the neurological immaturity of her youth, complicated by her
difficulty in regulating her emotions and tolerating frustration that stemmed from
her then-undiagnosed mental health issues. Her decision-making, defense counsel
argued, was exacerbated by her lack of training, experience, and supervision.
Counsel also pointed out that she “takes full responsibility for her actions”14 and that
“[s]he pled guilty at the earliest opportunity possible.”15 Defense counsel also
argued that Ferguson acknowledged “the reprehensibility and senselessness of her
actions, and feels great remorse for the pain she has caused so many people . . . She
will forever live with regret, knowing that she caused the victims and their families
immense and unimaginable pain.”16
The State recommended a 65-year Level V sentence: 35 years for First Degree
Murder by Abuse or Neglect and five years each on the six counts of First Degree
Child Abuse. The State recommended probation for the Second Degree Child Abuse
charges. The State cited five aggravating factors: (1) excessive cruelty; (2) need for
correctional treatment; (3) undue depreciation of offense; (4) prior abuse of victim;
and (5) vulnerability of the victim. The State highlighted the consistency of the
abuse in making its recommendation.
14
Id. at A195.
15
Id.
16
Id.
8
When he imposed a life sentence for the charge of Murder by Abuse or
Neglect in the First Degree, the judge made the following remarks:
I’ll say one of the things that was salient to me in reading
all of the materials was as, frankly, pointed out by counsel,
the d[earth] of materials indicating what I would have
expected to see, inter-generational abuse or great
privations for her growing up. I didn’t see that. I saw a
child who basically grew up as most children do. Maybe
I don’t have everything, but certainly had enough to
succeed.
*****
This case is shocking. Not only in its brutality, but in the
utter depraved violation of trust placed in the hands of
caregivers by parents with little or no choice in the matter.
I have considered carefully the comments of all counsel,
of each of the victims’ families, of the defendant, the many
additional submissions I had received. At the end of the
day, I am unable to conclude that a sentence of a term of
years is the just and fair sentence. A term of years would
certainly mean that Ms. Ferguson would spend a great
many years in prison, but her release would be an eventual
inevitability. It would be a date she could circle on the
calendar.
I cannot square the idea of Ms. Ferguson’s inevitable
release with the idea of smothering a four month old baby
to death. This is particularly so when the smothering death
occurred at the end of a pattern of smothering babies in
order to get them to be still while changing their diapers.
A sentence to a term of years would not fairly express the
outrage of any society at the completely senseless killing
of one of its infant children by someone entrusted to its
care.
9
It is, therefore, the judgment of the Court that the sentence
on the count of murder in the first degree by abuse or
negligent should be a life sentence.17
STANDARD OF REVIEW
Appellate review of a sentence is limited to whether the sentence is within the
statutory limits prescribed by the General Assembly and whether it is (1) based on
factual predicates that are false, impermissible, or lack minimal reliability or (2) the
result of a closed mind or judicial vindictiveness or bias.18 “When the sentence is
within the statutory limits, this Court will not find an abuse of discretion unless it is
clear that the sentencing judge relied on impermissible factors or exhibited a closed
mind.”19 Put differently, “a defendant has no legal or constitutional right to appeal
a statutorily authorized sentence simply because it does not conform to the
sentencing guidelines established by the Sentencing Accountability Commission.”20
DISCUSSION
Because this sentence falls within the statutory limits, our review is limited to
whether the sentence is (1) based on factual predicates that are false, impermissible,
or lack minimal reliability or (2) the result of a closed mind or judicial vindictiveness
or bias.21 Ferguson does not contend that the sentence was based on inaccurate or
17
Id. at A255-258.
18
Cruz v. State, 990 A.2d 409, 416 (Del. 2010) (en banc).
19
Weston v. State, 832 A.2d 742, 746 (Del. 2003).
20
Mayes v. State, 604 A.2d 839, 845 (Del. 1992).
21
Cruz, 990 A.2d at 416.
10
unreliable facts, so we need only consider whether the sentencing judge made his
decision with a closed mind, vindictiveness, or bias. “A judge sentences with a
closed mind when the sentence is based on a preconceived bias without
consideration of the nature of the offense or the character of the defendant.”22
Ferguson argues that the sentencing judge violated her due process rights by
sentencing her without considering the mitigation evidence summarized above. To
prove the judge’s closed-mindedness in sentencing, Ferguson points to his
comments, and lack thereof, at the sentencing hearing, which Ferguson contends
“lay bare that the sole purpose of the sentences is retribution and that he did not
consider”23 the mitigation evidence. She claims that he ignored her early acceptance
of responsibility, Dr. Cooney-Koss’s in-depth forensic psychological evaluation, the
additional mitigation submissions, Ferguson’s youth, her remorse and amenability
to rehabilitation, and her serious mental health issues. Ferguson contends that the
judge’s limited remarks, which do not include a discussion of such matters as her
age, mental health, remorse, or lack of criminal history, show that his mind was
closed to this mitigation evidence.
She also contends that the disproportionality of her sentences is inconsistent
with the principles of Miller v. Alabama.24 In Miller, which held that a mandatory
22
Weston, 832 A.2d at 746.
23
Opening Br. at 26.
24
567 U.S. 460 (2012).
11
sentence of life imprisonment without parole cannot be imposed on a juvenile, the
court discusses the mitigating effects of a defendant’s youth at the time of an offense.
Ferguson emphasizes the disproportionality of the sentence to show that the judge
had a closed mind. She contends that since 2004, no defendant has received a life
sentence for crimes related to the death of a child and has provided us with a list of
33 such cases. This is despite being the youngest defendant on this list.
Ferguson further argues that while the judge did mention that he had
considered comments and submissions of the parties, the record reveals that the
sentence he imposed was not that of an open-minded jurist. She points specifically
to the judge’s comments about a “d[earth] of materials indicating what I would have
expected to see, inter-generational abuse or privations for her growing up”25 as an
indication that these were the only types of mitigation materials the judge was open
to consider. She also argues that his comment that he could not “square the idea of
Ms. Ferguson’s inevitable release with the idea of smothering a four-month-old baby
to death”26 implies that the judge was concerned only with the severity of the crime
and not any of the mitigating factors. Ferguson contends that the judge’s limited
remarks, which do not include a discussion of such matters as her age, mental health,
remorse, or lack of criminal history, show that his mind was closed to mitigation
25
App. to Opening Br. at A255.
26
Id. at A257.
12
evidence.27
We have carefully considered Ferguson’s arguments. Notwithstanding those
arguments, we are not persuaded that the judge sentenced Ferguson with a closed
mind when he imposed Ferguson’s sentences. A sentencing court has broad
discretion in determining what information to rely on when making its
determination.28 Here, the sentencing judge ordered a presentence investigation, and
both parties submitted extensive information prior to sentencing. The judge began
the sentencing hearing by remarking that he had “read voluminous correspondence
and presentencing materials from many different parties in this case.” 29 The judge
then heard from the victims’ families, Ferguson herself, and from both sides
regarding mitigating and aggravating factors. After these presentations, he again
stated, “I have considered carefully the comments of all counsel, of each of the
victims’ families, of the defendant, the many additional submissions I had
received.”30 While it is clear that the judge was not persuaded by Ferguson’s
mitigation evidence, on this record we cannot conclude that the judge ignored, or
27
In a footnote Ferguson also asserts that it is unclear as to whether some of her mitigation
documents, and specifically the psychological report, were given to the court for review because
they were never docketed. The record shows, however, that defense counsel sent the report to the
judge and the presentence office, the report was referenced in the presentence report, and the
defense cited it in counsel’s memorandum and at the hearing. It appears to us that the sentencing
judge was fully informed when making his determination.
28
Mayes v. State, 604 A.2d 839, 843 (Del. 1992).
29
App. to Opening Br. at A210.
30
Id. at A257.
13
failed to consider, the mitigation evidence and argument she offered, or sentenced
her with a closed, vindictive, or biased mind.
CONCLUSION
For the foregoing reasons, the judgment of the Superior Court is
AFFIRMED.
14