On cross, Joey Sanzone established that that pattern was the typical one for use of the system—armed during the day while Jocelyn worked, unarmed after she came home.
THIRTY
Dr. Susan Roehrich, a licensed professional counselor and a marriage and family therapist for thirteen years, with a PhD from Virginia Tech, a master’s from Virginia Commonwealth University, and a bachelor of science degree from Penn State, was accepted as an expert witness by the court. Jocelyn Earnest was her client. They had their first meeting July 13, 2005, and continued to meet until their last session together, on the day of Jocelyn’s death.
During the initial session, Dr. Roehrich focused, as she did with all of her clients, on providing information on the limits of confidentiality and making an assessment of the risk of homicidal or suicidal ideation.
“Did you ever have concerns that she would harm herself?” prosecutor Wes Nance asked.
“No.”
Dr. Roehrich recalled that when they first met, Jocelyn “was overwhelmed by the change in her marital relationship and the changes that would ensue for her personally when that relationship would end. So, she was what I would consider mildly depressed and anxious because this was a very unexpected event in her life.” Dr. Roehrich described how she asked Jocelyn to do an exercise she used with many other clients, “what is called a self-concept inventory . . . to answer a series of nine questions based on how they have seen themselves for the past two weeks. That just gives me a snapshot. And it goes anywhere from how they describe themselves physically to what they think their strengths and weaknesses are, to how they function, the daily tasks of living, how they perform on their job, things like that. So I normally ask that as one of the first things just to kind of get a snapshot of them so that we don’t spend a lot of time in sessions going through those same questions. They kind of do it for homework and then they return it, and then we go over it.”
“Were there other tools or other homework that you would have given Jocelyn Earnest?” Nance asked.
“Yes, yes. What I also asked Jocelyn to do was something called journaling, which is a very powerful therapeutic tool which allows people to pretty much talk about or process through writing what their day’s event were, whether there was a significant event that was upsetting or not [ . . . ] allowing them to speak freely on a day-to-day basis to keep a record of what’s going on in their thought process [ . . . ] The other tool that I used was something called a timeline [ . . . ] from birth [ . . . ] They have to ask other family members to kind of help them out with memories or associations, if you will, and go all the way through to that time period that they’re dealing with right now, looking for significant events in their life or issues that might have arose that would create in them, you know, the way they make decisions now.” Jocelyn, she noted a little later, “was very engaged in the journaling process.”
“I’ll begin with the timeline,” Nance said. “Is that something that Jocelyn Earnest took your advice and participated in?”
“Yes, she did.”
“How do you know that?”
“Because Jocelyn would bring in the timeline and periodically we would then go through that as part of our session. We would go through what she had written on each of the years [ . . . ] and we would basically talk about what was written. And if there was a question mark that she had then we talked about who she might be able to talk with.” Dr. Roehrich described the timeline as being handwritten on butcher paper, a large piece of rolled-up white paper, and Jocelyn’s journals as spiral-bound notebooks, “like you might get for your children to go to school with.” The handwritten entries covered various topics, from basic descriptions of her day, or “if there was a specific event that occurred that was upsetting her or if she was working on a particular topic that we were talking about in therapy, she might journal what she had thought about throughout the week.”
Nance asked whether Dr. Roehrich had noticed any change in Jocelyn’s demeanor over the years they worked together.
“Yes, I did,” the therapist replied, stating that “the initial couple of months that I worked with Jocelyn, she vacillated between wanting to save her marriage—”
Defense attorney Joey Sanzone broke in. “Judge, I object. This is hearsay.”
“Agreed. Sustained,” Judge Updike said.
Nance continued, instructing her to limit herself to discussing “just the change in [Jocelyn’s] demeanor or emotions,” not anything specific.
“Okay,” Dr. Roehrich said with a nod. “So, her change was from a sad, depressed individual who was anxious to an individual who eventually was very excited and embracing life.”
“You said that you met with her on December nineteenth, 2007.”
“Yes, sir.”
“And what time was her appointment on that evening?”
“Her appointment was from six to seven.” When questioned, the therapist described Jocelyn as “very happy. She was very upbeat. She was looking forward to Christmas and the New Year and having a good year.” Dr. Roehrich had no concerns of Jocelyn harming herself.
On cross-examination, Joey Sanzone asked whether Dr. Roehrich knew Maysa Munsey, Marcy Shepherd, or Jennifer Kerns before Jocelyn’s death.
She said she did not.
“In the course of your profession, you deal with people who have different types of problems,” Sanzone noted. “Do you deal occasionally with people who find out that instead of being heterosexual, they’re homosexual?”
“Yes. I have in the past.”
“And is that often an anxious, traumatic situation?”
“That would depend upon lots of other variables, on whether they perceived it to be anxious and traumatic. It’s a very peaceful reckoning and—”
Sanzone cut her off. “But it can be traumatic.”
“It’s possible, sure.”
“And if you’re hiding that [ . . . ] is that usually a sign of a traumatic situation?”
“From other people is it a traumatic—not really—”
Sanzone interrupted, “Did you know that Jocelyn was having a relationship with Marcy Shepherd?”
“No, sir. Not until after her death.”
• • •
The final Commonwealth witness of the day was Investigator Mike Mayhew. Nance brought out testimony regarding the wills of Jocelyn and Wesley Earnest, and their references to the murder weapon. Pointing to the document prepared for Wesley, Mayhew quoted, “‘I want my three-fifty-seven caliber stainless steel Smith and Wesson handgun and all fishing rods with tackle to go to Robert Franklin Kerns.’” In contrast, he testified that Jocelyn’s comments about that same gun did not use the possessive pronoun “me” at all.
When Joey Sanzone conducted the cross-examination, he directed the investigator to the box for that weapon that law enforcement had secured at Wesley’s girlfriend’s home in Concord, Virginia. “As far as you know, this was out in the open.”
“To my understanding, it was in a closet—”
Sanzone broke in, “Easy to see?”
“If you open the closet, correct.”
“And there’s nothing’s been tampered with here,” Sanzone said, holding up the box.
“No, sir.”
“And when we look at this from on the inside, it seems to be just like brand-new.”
“Appears to be,” Mayhew agreed. Sanzone took him through the packaging in some detail, then said, “There’s no evidence in your possession that says that this gun remained for any period of time in this case after it was purchased, is there?”
“No, sir.”
Sanzone moved back to the topic of the will, pointing out that “when it comes to his will, Mr. Earnest’s will, it says right here in number three, if she survives him, he wants her to have everything.”
“That is correct.”
“And the onl
y specific mention of the three-fifty-seven comes later in those paragraphs about what happens if she dies first, then he dies, where his things go.”
“That’s correct.”
“And he talks about it being his three-fifty-seven after her death.”
“It says, I want my three-fifty-seven caliber stainless steel Smith and Wesson, yes, that’s . . .”
“That’s what it says but he wants that to happen if she died first and then he dies.”
“That’s the way I interpret it, correct.”
“And you read her will, which says that if she dies first, everything, including the three-fifty-seven, went to Wesley.”
“That’s correct.”
The defense bounced back to the cardboard gun box, making note that it was “not a particularly unique box. Smith and Wesson put them out for these size weapons of all types.”
“That’s correct,” Investigator Mayhew agreed.
“And if a person wanted to hide the fact that they had this box that related to that three-fifty-seven, all they’d have to do is peel this paper piece off the bottom.”
“That would be one way, yes.”
“And that would be an easy way, because once that’s gone nothing about this box relates to the three-fifty-seven.”
“That is correct.”
Sanzone continued on with Mayhew about how nothing on the box appeared to have been defaced.
“No, sir, it doesn’t appear to be.”
On redirect, Nance worked to discredit the defense’s line of questioning. “Investigator Mayhew, you were just testifying that there was no damage to the identification of this gun box; is that correct?”
“That is correct.”
“Did Wesley Earnest know you were coming to arrest him on February twenty-seventh, 2008?”
“No, sir, not that I know of, no.”
“Did he have any idea you were going to be executing a search warrant at his girlfriend’s house on February twenty-eighth, 2008?”
“No, sir. As far as I know he didn’t, no, sir.”
When Nance finished, Sanzone said, “Judge, I do have a question, just brief follow-up to that.” Turning to the investigator, he said, “But you knew that’s where Mr. Earnest was staying.”
“Yes, we knew he was staying there.”
“And you talked to him several times about his wife’s death.”
“I did talk to him once with you, that’s correct.”
“And, you’d taken his fingerprints.”
“Yes, that’s correct.”
“And despite all those things, this was right out in the open as if he had nothing to hide.”
“It was in a closet, yes, sir.”
With that answer, the proceedings ended for the day, and the judge turned to the jury and reminded them that the next day, a Thursday, was Veteran’s Day, and the courts would be closed. The extra day gave the attorneys on both sides time to review their respective strategies and plan for upcoming witnesses—but left family members and friends of Jocelyn Earnest interminable hours to agonize and fret over the delay in progress toward justice for their loved one’s death.
THIRTY-ONE
Marcy Shepherd’s name had arisen again and again; now she finally took the stand on Friday, November 12, 2010. After the first trial, where the defense strategy had been trying to paint her as Jocelyn Earnest’s killer, Marcy’s anxiety level was high.
“When did you start working for Genworth?” prosecutor Wes Nance asked.
“I started working for them at the end of August in 2005.”
“During the course of your employment did you get to know Jocelyn Earnest?”
“I first met her a couple of weeks after I started.” Marcy described how they’d become friends while working on a company-wide project that Jocelyn was running. “And as the training leader, I had a significant role on that project. And so just through interaction and time and working a lot of long hours, we got to know each other.” They saw each other every day at work, and would also occasionally go out to dinner or grab a drink.
“Did you ever see Jocelyn Earnest with a firearm?”
“No. Never.” Nor, she specified upon questioning, had she ever seen one in Jocelyn’s car or home.
“In 2007, what were your feelings toward Jocelyn Earnest?”
“I loved Jocelyn Earnest.”
“What was it that you loved about Jocelyn Earnest?”
“Jocelyn was one of those people who was special to those that knew her. And she could be the person that you needed her to be, whether it was fun and joking, or whether it was a confidant. She had incredible character and integrity, and a lot of people admired her. I was one of those people. She was . . . smart and she was generous and she was helpful. And she would give whatever she could to others. And she didn’t have to be super close to them to make them feel like they were important to her. She was, gosh, just one of those good people.”
“Ms. Shepherd, what would you describe Jocelyn’s demeanor to be generally speaking when you first met her?”
Sanzone objected that the question was general, remote, and irrelevant, but Updike overruled him. Marcy tried to answer the question when Nance rephrased it but had difficulty getting out an answer that Sanzone did not interrupt. Finally, Nance asked, “Did you see a change in Jocelyn Earnest’s demeanor . . . in the second half of 2007, compared to 2005?”
“Absolutely. She was taking care of herself. She was working out. She was trying to learn how to eat in a healthy manner. She was making plans. She was excited to be with her family. Whereas previously, she was avoiding contact with many people. And, then in 2007 . . .”
Sanzone came to his feet again. “Judge, again . . . these are statements about activities, not demeanor.”
“I’m going to allow that particular comment as descriptive. Overruled. Proceed,” the judge said.
“So, she was excited to spend time with her family and friends that she had previously isolated herself from,” Marcy said.
Nance elicited that Marcy had last seen Jocelyn on Sunday, December 16, 2007, when they went shopping together. “What was her demeanor on that date?”
“She was looking forward to [ . . . ] giving the kids their presents, because they were—well, you know how kids are at Christmas. And they were toys. And she was really excited to see them open them on Christmas Day and play with them. And her team’s Christmas party was coming up and she was looking forward to sharing that time with them.”
“Did you have any contact with Jocelyn Earnest between that December sixteenth date and noon on December twentieth, that Thursday?”
“Only through text messaging.”
Marcy told the jury about the messages she’d exchanged with Jocelyn, and her friend’s abrupt end to their conversation. She explained watching television with her son and waiting for a response from her friend. She told them about going to CVS and to Genworth to drop off Jocelyn’s wrapped Christmas present. “I bought her outdoor lighting because she was fixing up her home.” She went on to explain her drive out to Jocelyn’s home out of concern for her friend’s continued lack of communication. She then discussed the events of the next morning when she returned to Jocelyn’s house and discovered the body.
Joey Sanzone started his cross-examination by probing into Marcy’s home life. “Ms. Shepherd, back in [ . . . ] December of 2007, you and your husband were separated; is that right?”
“Yes.”
“And you had entered a separation agreement with him at what time? When did you do that?”
“In April of 2006.” She went on to explain that they were, nonetheless, still living in the same house to care for their young children.
“But you don’t know Wesley Earnest, never met him.”
Marcy shook her head.
Sanzone then began to
question Marcy about how often she’d met with the prosecution pretrial. “How many times have you met with the Commonwealth or [ . . . ] witness coordinator to prepare for your testimony here today?”
“Once. How many times have I met with them before the trial? Once.”
“Prior to today, you’ve only met with them one time in the past?”
“To prepare for this trial. That was how I understood the question.”
“All right. Let me put this a different way. How many times have you talked to them about the substance of your testimony here today [ . . . ]?”
“I’m guessing three or four.”
“My point is this: you’ve gone over a lot of things in preparation for today. People have asked you a lot of questions from the Commonwealth’s side.”
“No.”
“You don’t think so?”
“I don’t think so.”
Sanzone dropped that line of questioning and instead began asking Marcy about the telephone call when Marcy had asked Jocelyn about kissing. “All right. Tell me how you worded it,” he asked when she objected to his phrasing.
“Well, gosh, the exact wording is difficult to remember this many years later, but it was something to the effect of asking her if I kissed her, would she kiss me back—something like that.” That phone call, Marcy said, took place in autumn of 2005.
“And then you ultimately did kiss her.”
“Yes.”
“And where did that take place?”
“That took place at her home,” Marcy said, adding that it was after their work Christmas party.
“Had y’all been drinking?”
“Not really.”
“So you went to her house and you kissed her. About what time of day or night was that?”
“I’m guessing. I don’t know. Maybe ten o’clock.”
“. . . The two of y’all were there together and no one else was around. No one came over that night.”
“Correct.”
Commonwealth’s Attorney Krantz objected, and after much confused arguing back and forth between the lawyers and the judge, and references to testimony that had appeared in the earlier trial, Sanzone finally asked Marcy, “Did you [ . . . ] say it was a romantic relationship you were in?”
Under Cover of the Night Page 16