“If what Mr. Nance said was all there was in this case then I would sit down, Mr. Earnest would sit down, the case would be over, but it’s not. And there are some very important details of this case that have been left out.”
Sanzone talked about the couple drifting apart but insisted it was not a contentious divorce. They were not in direct contact and not angry with each other, he said. He went on to claim that it was normal for Wesley to request spousal support because Jocelyn had the higher income. “If there was a single person on this earth who needed Jocelyn Earnest alive and working, it was Wesley Earnest.”
Sanzone discussed the ordinariness of Wesley’s week and his shock at learning of Jocelyn’s death. Then, he turned to Jocelyn’s day, which began with a trip north to Amherst with her friend Maysa Munsey and continued with many text messages between Jocelyn and Marcy.
“There were literally more than one thousand text messages between Jocelyn Earnest and Marcy Shepherd during that month of December [ . . . ] Jocelyn Earnest was a mobile device chatterbox [ . . . ] And you can sort of track her life a little bit by these text messages, phone calls, emails. Well, they all stop at seven twenty-eight on the nineteenth. They stopped midstream of a conversation between Marcy Shepherd, the new love, and Jocelyn Earnest.
“. . . At seven thirty the alarm at her house is turned off . . . It’s an alarm that’s set during the day. For who or what? Wesley’s working at Chesapeake every day on the other side of Richmond, on the other side of Norfolk. Seven thirty-five [ . . . ] maybe she turned it off, maybe somebody else did [ . . . ]
“What’s really interesting: the dog is locked up in the kennel all day long. When she gets home, she lets the dog out and takes it outside. When the police get there the next day guess what? The dog’s still in the kennel. Never was let out the prior day. Pretty good indication . . .”
The Commonwealth’s attorney spoke out: “Your Honor, I am going to object to him arguing what the indications are, Your Honor.”
“I agree. I agree,” said Mr. Sanzone.
“Sustained,” said the judge.
“I’ll withdrawal that,” said Mr. Sanzone. “The dog was not let out, even though the keypad is located right next to the dog kennel.” He pointed out that there is no way to know who turned the alarm off since no personal identification information is required to do so. Sanzone questioned why Marcy didn’t go out to Jocelyn’s house Wednesday evening and wait for her there.
“The next morning . . . she gets in the house, and she finds the body. And she calls her friend Maysa Munsey. Rather than call the police and report that Jocelyn is missing, rather than let the police go in and check out and see if she’s okay, she chooses to get this key and go in the house. And that’s when she says she finds the body.”
He asserted that Jocelyn’s body was moved that morning when Wesley was known to be at work—rather than at a time proximate to Jocelyn’s murder, as the evidence he reviewed indicated.
“Now back to the chain, the unbroken chain. Reasonable doubts break the chain. And I’m going to point out all of the reasonable doubts. There are a lot of them.”
Krantz interrupted with another objection. “Your Honor, we’re not supposed to be arguing.”
“I’m not arguing. I am . . .”
“Point out pieces of evidence,” Updike said.
“And I’m pointing that out, Judge . . . I withdraw that . . . Let me say it this way . . .” He detailed the evidence he would present about the distance between Chesapeake and Forest, the time required to travel between them, and Wesley’s lack of knowledge of Jocelyn’s schedule and the alarm code.
Sanzone then turned to the murder weapon. “It’s the smallest version of the .357. It’s got a four-inch barrel.[ . . . ] It’s a woman’s gun [ . . . ] The gun was left at the house. And whoever did this knew either that it was Jocelyn’s or maybe they even knew Wesley had bought it for her. But it was intended to be found.”
Sanzone then called into question the basic science of fingerprint analysis. “They’re going to tell you that in this case, they made their identification on fifteen or less of these points in the known area [ . . . ] You’re going to hear from them that there is no such thing as a degree in fingerprint examination. In order to be certified as a fingerprint examiner, it takes less than a few days training, possibly as little as eight hours [ . . . ] They’re going to tell you that there are no measurements taken to help make a match in fingerprints and they’re not able to produce a catalogue of prints that match to one another . . .
“The last thing I’ll tell you is this: This case is going to boil down to a battle between DNA and fingerprints. And you’re going to hear two state experts on fingerprints for the prosecution and you’re going to hear one state expert for the defense and one expert from the FBI on DNA for the defense, because there is DNA evidence there at the scene . . .
“And then, lastly, the note itself is interesting because the Commonwealth told you that they say the writing is not Jocelyn Earnest’s. I think you’ll also find it’s not consistent with Wesley . . . But it talks about two things that Wesley would not have known. First of all, it says Wesley left her with a ton of debt, though they paid off some debt earlier in the year because some things that needed to be paid were joint debts . . . And there’s no way that Wesley would have known she had a new love because Wesley wasn’t involved in her life and didn’t know anything about it. The . . . context of the note is important. Who would know?
“And the last thing that was shown there—I promise this is the last thing. In the bathroom, right there on the toilet seat, was something that people from the south would recognize right away [ . . . ] There were towels sitting on the toilet seat. And that only means one thing: company’s coming.
“So this is going to be the evidence. It is quite a bit of evidence. It’s important to listen to each piece of it. And I know you will . . . I thank you so much. And at the end of the trial, I’ll ask you to find my client not guilty.”
TWENTY-SIX
The first witness called to the stand was Jocelyn Earnest’s mother, Joyce Young. It is always disconcerting to listen to the testimony of someone with so intimate a connection to the victim. The job of the prosecution was to pull out all of that pain and make the jurors absorb the visceral sense of loss.
Joyce recited the outline of her daughter’s life, from birth through childhood, her graduation from Hedgesville High and her four-year basketball scholarship from West Virginia University where she obtained a double major in economics and marketing. She recounted Jocelyn’s move to Lynchburg, Virginia, and her work to earn her master of business administration from Lynchburg College. “She’s been on the Dean’s List. She’s just wonderful.”
She talked about Jocelyn and Wesley getting their home on Pine Bluff Drive and then marrying in 1995. Sadly, she said, by 2005, Jocelyn was living in that home all alone. Joyce and her husband, Phillip Young, made the nearly two-hundred-mile trip to visit as often as every other weekend, and at least once a month, throughout Jocelyn’s marriage and afterward.
When asked about firearms, Joyce said that she’d seen a rifle in the house when Wesley lived there but never saw it after he moved out and never once saw a handgun in the home.
The emotional stakes escalated when Assistant Commonwealth’s Attorney Wes Nance directed Joyce to tell the jury about the last time she saw her daughter. It was the weekend before her death, Joyce recalled, and Jocelyn and Maysa Munsey had rented a van to transport her Christmas gift to West Virginia. They’d arrived at Joyce’s home late Friday night, unloaded the van Saturday around noon, then left soon after because they didn’t want to be caught in the ice storm predicted for that evening.
Joyce said that the last time she’d talked to her daughter was by phone on Monday night. “She was bubbly, laughing, very upbeat—just looking forward to finishing with work and having some time to relax.�
��
Jocelyn had made many plans past December 19, Joyce said. “We had a joke with the stockings.” She faltered and added, “Never mind.” An overcome Joyce hung her head, struggling for composure.
Defense attorney Joey Sanzone had the most difficult job with this witness. He had to elicit information for his client without seeming to browbeat the victim’s mother—an impression that could turn the jurors against the defense’s case in a flash. He began his cross-examination carefully. He said, “Ms. Young, I apologize for your loss, but I need to ask a few questions. When it came to Jocelyn, she arrived that weekend with Maysa Munsey, not with Marcy Shepherd. And were you aware that Marcy and Jocelyn [had] a relationship?”
The answer was stillborn when Nance blurted out an objection. The jury was dismissed and Sanzone argued that it was relevant because unless Joyce knew about that relationship and the trip to the police with Maysa, then she didn’t really have an intimate knowledge of Jocelyn’s state of mind. “Judge, they are attempting to introduce this happy-go-lucky person having a wonderful time, and she’s up here getting somebody arrested and out of jail.”
“No,” Judge Updike said. “She didn’t get—there’s no evidence that Jocelyn got Maysa arrested.”
“She took—brought her up here, Judge, for the purpose of talking to the police so that she could be processed and released. And that’s not a happy event. And we should be able to show this unhappy event,” Sanzone insisted.
The judge, however, felt that Maysa’s arrest was peripheral to the case and ruled that line of questioning inadmissible.
As far as Joyce’s knowledge of the Marcy–Jocelyn relationship, Sanzone wanted to impeach the credibility of the witness; however, the judge ruled it “improper impeachment . . . This court finds that there’s insufficient evidence and insufficient foundation, I should say, to relevance. Objection is sustained.”
Sanzone brushed off that defeat and instead asked Joyce about looking through drawers and closets. Joyce admitted that she didn’t know there wasn’t a gun; she just knew that she never saw or heard of one. She had also never seen condoms in the house and “I would not talk to [my] daughter about that.”
When Joyce was asked if she had the security code and key to Jocelyn’s house and if she knew of anyone else who did, she answered that she had both and thought that Jennifer Kerns would, as well.
The next witness was Jocelyn’s sister, Laura Rogers. When Laura met her mother coming down from the witness stand, they hugged. Joey Sanzone objected to that display in front of the jury.
Laura described the rooms and layout of her sister’s home, where she often visited, particularly after Jocelyn’s separation from Wesley. While the couple was still living together, Laura had stayed in their home and taken care of their pets when they traveled to Canada to the Kernses’ vacation cabin.
Laura told the jurors that there had been a gun safe in the bedroom shortly after the separation, but then it and other things were gone. After that the only firearm that Laura saw in her sister’s home was the shotgun in the walk-in closet, sitting in the corner next to Jocelyn’s sweaters. “Jocelyn and I weren’t strangers to weapons,” she said. “When we were growing up, our father took us out with a rifle to shoot cans and targets.”
The last time Laura saw Jocelyn was the Thanksgiving holiday in 2007. She said that they had gone “nonstop shopping until we dropped” on Black Friday. “Jocelyn loved Christmas and loved the holidays . . . We had breakfast together the morning she was leaving—she was happy.” She spoke to Jocelyn on the phone the weekend before she died, and they’d discussed last-minute shopping and plans to get together for the holidays.
Joey Sanzone handled her with delicacy, too, when it came time for cross-examination. He asked her about the condoms that had been found at Jocelyn’s house. Laura said that she’d visited Jocelyn for her birthday in October and that when she’d opened that drawer, the prophylactics had not been there.
Before they left on lunch recess, the judge ordered an early return for the lawyers, to allow the defense to make a “proffer,” an offer of evidence in support of an argument. In the courtroom, when one side is denied the right to introduce evidence, if that party wants to preserve the issue for appeal, he must introduce it into the record, out of the presence of the jury.
Joey Sanzone called Joyce Young back to stand. He questioned her about how many times she’d seen Marcy, but Joyce could not give a specific answer. When Sanzone asked her about Maysa Munsey, Joyce did know the last time she saw her was the weekend before her daughter died. She denied any knowledge about the criminal problem Maysa had had at the Amherst Sheriff’s Office.
When her testimony was completed, Sanzone asked Judge Updike to reconsider his decision about that line of questioning. The judge still did not see the material as relevant.
TWENTY-SEVEN
When the jury returned to their seats, prosecutor Wes Nance called Deputy Jason Jones to the stand. “I arrived at the scene with a backup officer and I noticed two women standing on the front porch of the residence. And they appeared to be crying. We walked up, asked them what was wrong. They said that their friend was lying inside and they thought she was dead. We entered inside the house. I noticed when we entered inside—I was the first one that entered. I noticed that it was extremely hot. I looked to my right. I saw a white female lying on her back, appeared to be unresponsive.”
The Commonwealth used Deputy Jones to enter photographs of the house exterior, Jocelyn’s body, the thermostat, and the firearm into evidence as he described the pictures and his actions at the scene.
Joey Sanzone stepped up to cross-examine Deputy Jones. “Deputy . . .” he said, “if somebody is concerned about the safety of an elderly person, a friend, a husband in a house and they’re not responding to the door—you get called in to those kinds of situations fairly frequently, don’t you? ”
“Yes, sir.”
“In fact, doesn’t the sheriff’s department encourage people to do that sort of thing so that you can assist? You’re professionally trained?”
“We provide a service,” Jones said. “It’s called welfare check and—just to go and check on the well-being of people. They may have a family member that lives maybe in another jurisdiction. And we go by if they can’t, make contact with them, just do a well-being check and make sure they’re okay.”
Sanzone continued, “Now, on the day that we’re talking about here, December twentieth of two thousand seven, no one called you that morning to ask that you go by and check on this residence, did they?”
“No . . .”
“And the first . . . you heard about anything at Jocelyn Earnest’s residence was a call when you went there and these two women were there.”
“Yes, sir.”
“Once you assessed the situation you really wanted to preserve the scene of whatever was going on there, didn’t you?”
“Yes, sir, because I didn’t know what I had at the time.”
Sanzone prodded, “But you couldn’t control what happened before you got there.”
“No, sir.”
“And when you got there the house was open. You could get in.”
“Yeah.”
“And you have no idea of your own personal knowledge, what may have gone on in that house concerning the body and those two people before you got there.”
“At that time, I didn’t know.”
“Could not have protected that crime scene.”
“Not before I got there, no, sir.”
Sanzone asked if he checked identification to be certain that Maysa Munsey and Marcy Shepherd were who they claimed to be.
“I did.”
“. . . Did you ask them to remain until the investigators got there?”
“I did.”
“Because that’s just standard operating procedure.”
“Yes,
sir.”
Sanzone went on to the point that was pivotal to the defense strategy. “Were you informed of any romantic relationship?”
“No, sir.”
“And when it came to the two of them, after you arrived, they weren’t restricted from making phone calls or anything of that nature, were they?”
“No, sir.”
When Sanzone had no further questions and Nance had nothing on redirect, Deputy Jason Jones eased out of the witness box with great relief.
• • •
Investigator Gary Babb stepped into the witness box next. He had served in law enforcement for more than twenty years, starting in Bedford County investigations in 1999. Babb talked about his conversation with Deputy Jones when he arrived at the scene. Then, he moved on to the suicide note. “There was a white sheet of paper, copier paper size, laying facedown. Any writing would have been facedown because it was just white on the outside.
“Before I entered the house I had put on gloves. And I told him,” he said, referring to Jones, “that’s probably the note there. And when I did, I reached down, picked it up by the edges, and turned it like this,” he said, demonstrating how he’d handled the paper. “Looked at it, read it, and placed it back so it would be in the exact position for the forensic guys once they got there.”
Prosecutor Wes Nance used Babb to introduce photographs of the crime scene and the position of the note on the floor, and Babb read the contents of the note to the jury.
• • •
Investigator Mike Mayhew was the next to testify. He had twenty-one years of experience with the Bedford County Sheriff’s Office and had been an investigator for seven years of that time.
He told the jurors that he arrived at 12:48 that Thursday afternoon. “It’s a really pretty neighborhood. Each house is—they keep their yards nice,” he said, noting that the homes were all about three hundred feet apart on both sides of the road, and that the neighborhood was separated from another nearby neighborhood by a little bit of wooded area.
Under Cover of the Night Page 13