Under Cover of the Night

by Diane Fanning

  The last person on the stand that day was Lieutenant Michael J. Harmony, a computer forensics expert, who testified about retrieving Jocelyn’s laptop from Genworth and making an image of the hard drive.

  Prosecutor Nance asked, “And what’s the purpose of making an image versus doing the forensics on the original computer and its hard drive itself?”

  “Once the computer is fired up, once the operating system has started, it actually starts changing data and time stamps and basically alters the original evidence. We make a forensic copy of it so that we don’t tamper with the original evidence,” Lieutenant Harmony explained. He told the jury that a keyword search of Jocelyn’s work and personal computers demonstrated that the suicide note had not been written on either one of the devices.

  On cross, Joey Sanzone asked if Lieutenant Harmony had examined Marcy’s or Maysa’s or Jennifer’s computers or BlackBerrys. Harmony said that he had not.

  THIRTY-FOUR

  The first witness of the day on Monday, November 15, 2010, was James Fitzgerald, a criminal profiler and forensic linguist with the Academy Group in Manassas who had worked for the Federal Bureau of Investigation for twenty years. He was accepted by the court as expert in forensic linguistics.

  He began by explaining the term “idiolect” to the jury. “It’s simply a term linguists came up with to describe a personal dialect. And all of us have a personal dialect. It is a combination . . . of one’s entire life experience that has to do with your age, your gender, your socioeconomic status, certainly your profession, your education, and how you were educated, how far, what kind of school you went to,” Fitzgerald explained, later noting, “If we’re speaking about looking at someone’s writing style or written communications prepared by an individual, be it known or unknown, and comparing these features, many of which could be considered part of the speaker’ or writer’s idiolect, that process would again be authorial attribution.”

  Fitzgerald testified that he’d analyzed 77 pieces of communications written by Wesley Earnest and 253 separate communications by Jocelyn Earnest in order to compare to the note found at the crime scene. “The particular writing style reflected in these eighty-three words—my overall opinion was that it was not then consistent with the writing style of Jocelyn Earnest.”

  He went on to describe the basis of that belief: “Jocelyn was a prolific writer and usually, there was more substance to it than we find here in this particular communication. In addition, virtually all of Jocelyn’s communications . . . were handwritten. As you notice, this one is computer generated. In Jocelyn’s known writings, various names are referenced throughout [ . . . ] However, as you notice in a particular communication found at the scene of her death, there is the name ‘Mom’ and the name ‘Wes’ [ . . . ] and that’s it. Again [ . . . ] that’s not consistent with the known handwriting style of Jocelyn Earnest.” Plus, he added, the supposed suicide note was only “a few sentences in a static form and I would also say unemotional or detached. And that varies greatly from the known writings of Jocelyn.”

  Fitzgerald also said that another point that bothered him was that her journals did not reflect any concern with finances that was “life shattering or life altering. Yet, in that short note, she wrote, ‘Wes has buried us in debt.’ That line appeared to have no context in any of her other writings.”

  Lastly, Fitzgerald said, “And this is a nerdy linguistic thing, but punctuation can be important in helping to identify possible writers. And in the particular note you [ . . . ] have a comma, just one time. We don’t really count after mom, basically the greeting for the person. But there’s a comma split just there near towards the end of the first paragraph. And then the rest is periods.” This was inconsistent with Jocelyn’s typical writing style.

  On cross, defense attorney Joey Sanzone asked if Fitzgerald had evaluated the writings of Marcy or Maysa, or anyone other than Jocelyn and Wesley. He said he had not. Sanzone also wanted to know if Fitzgerald had examined any writings on the BlackBerry and got a negative response to that question, too.

  Then Sanzone asked about the nature of the analysis performed. “There’s a statement here about ‘my new love.’ You don’t attempt to match content to the note, do you? You don’t attempt to find out who might know about the new love?”

  “The request I had of me at the time by the Commonwealth’s Attorney’s Office and the Virginia State Police—that particular request was not made of me.”

  “So you can do a content connection in these linguistic reports . . . ?”

  “That’s possible, yes, depending on the circumstances of the communication involved, of course.”

  “Sometimes people ask you to do that, but you weren’t asked to do that in this case?”

  “My request was to do a linguistic analysis [ . . . ]”

  Sanzone then questioned him about the phrase “the family” found in the note at the crime scene.

  Fitzgerald said, “It reads sort of unusual in that one would expect . . . from one’s learning language experience that there would be a pronoun of some sort in there or a modifier, most likely ‘his,’ ‘her,’ or ‘their.’ For whatever reason, the author of this communication chose to make it the definite pronoun . . .”

  Sanzone honed in on Fitzgerald’s conclusion. “You can’t say that was written by Jocelyn Earnest. That’s your statement here today . . .”

  “It’s my opinion that [ . . . ] the writing style reflected in this communication is inconsistent with the overall writing style of [ . . . ] Jocelyn Earnest, yes.”

  “And as far as Mr. Earnest: it’s not Mr. Earnest’s writing, either, based on your opinion.”

  “I have no professional opinion in that regard . . .”

  “But certainly your decision is not a statement that [ . . . ] this was written by Wesley Earnest.”

  “That’s correct.”

  • • •

  Attorney Jennifer Stille, the lawyer whom Jocelyn had retained for her divorce in November 2005, was the next witness for the Commonwealth. She talked about drafting an agreement of proposed settlement and presenting it to Wesley for consideration.

  Joey Sanzone voiced his objection to testimony about events from 2005 being part of the record because of remoteness. Judge Updike overruled him.

  Stille continued to tell the jury that in June 2006, she had, on behalf of Jocelyn, filed a complaint for divorce in the Bedford Circuit Court on the grounds of adultery, cruelty, desertion, and separation in excess of one year. After asking for and being granted an extension, Wesley eventually filed a counterclaim. At Nance’s direction, Stiles read alternately from the complaint and countercomplaint, covering Jocelyn’s allegations and Wesley’s responses to them. She followed that by telling the jury about the motion for relief filed by Wesley Earnest asking for exclusive use of the lake house, spousal support payments, and one hundred thousand dollars to resolve the loan made to the couple by Wesley’s father.

  Stille listed all of the debt she knew to be existing for the couple as of December 2007, and noted that after Jocelyn’s death, Wesley Earnest owned the deeds to all the couple’s properties.

  “Now when you talk about these debts, you’ve got a few credit cards that are owed by Wesley, but the bulk of this debt is joint debt owed by Jocelyn and Wesley: isn’t that right?” Sanzone countered.

  “Certainly, if you include the joint deeds of trust.”

  “You know that Wesley had been doing work fixing up the lake house.”

  “I know that he had submitted some bills to Jocelyn for work he said he did at the lake house,” Stille replied. When asked by Sanzone about specifics, she said, “I had no knowledge about work he was doing on the house [ . . . ] He had submitted a list of work he wanted to do and that was subject to discussion.”

  Sanzone pressed her on the disagreement between the parties on when they began living apart and for the rea
son why no divorce trial date had yet been set. Stille said that the four-month difference in dates was irrelevant since by either measure, they met the twelve-month separation period required by Virginia law. As for the finalization of the legal end of their marriage, there were still several items in the settlement requiring agreement by both parties.

  Sanzone then took Stille through a long list of joint monthly expenses and the combined incomes of the two parties with Jocelyn earning $106,000 per year and Wesley making $77,600, questioning their inability to pay their bills before dramatically switching gears and asking: “Did Jocelyn Earnest ever tell you that she had a romantic relationship with Marcy Shepherd?”

  “No.”

  “That is information that can be used against a person in a divorce, can’t it?”

  “If somebody has evidence of a romantic relationship and they’re trying to prove adultery, certainly, that can be used.”

  “And if people are alone at night and they’re there by themselves and they’re kissing by their own admission, that’s evidence that can be used against a person in a divorce proceeding, can’t it?”

  “Certainly, if those witnesses will come and testify to that, that’s evidence . . . you would want to put on,” Stille agreed, though she denied having any knowledge of Jocelyn being involved in a romantic relationship with Marcy Shepherd, or anyone else.

  The jury took a lunch break, and after much squabbling by the lawyers over whether or not Sanzone could ask about what Wesley’s divorce attorney may have asked Jocelyn regarding her sexual partners, the judge ruled that any statements made by Jocelyn were inadmissible because they were hearsay.

  When the trial recommenced with the jury in their places, Stille responded to Sanzone’s questions by saying that although in the interrogatories, Wesley denied committing adultery on certain dates, he did admit committing adultery in general in the December 2006 hearing.

  “And there was no knowledge on your part about any sexual relationship or romantic relationship that Ms. Earnest was having with Marcy Shepherd or any other person.”

  “That’s correct.”

  “That wasn’t an issue in this case? Mr. Cunningham [Wesley’s divorce lawyer] and Mr. Earnest weren’t pressing you hard to discover a female . . . sexual, romantic relationship . . . ?”

  “Not at all. Never came up.”

  After redirect by Nance, Sanzone used his recross to push Stille to agree that the day Jocelyn died her salary ended and Wesley assumed all of the debt.

  She said, “Yes and all of the equity, too.”

  THIRTY-FIVE

  After various witnesses testified about the materials obtained during the search of Wesley Earnest’s girlfriend Shameka Wright’s home, including the gun box, personal photo albums of Wesley and Shameka, and various documents (particularly those relating to bills and delinquent loans), real estate agent Johnny Maddox of Country & Mountain Realty next took the stand and told the jury that he’d met the defendant in June 2007, and that on June 15, 2007, Wesley had verbally authorized Johnny to sell the lake house for $2,150,000, but Wesley never showed up to sign the document, and that no sale ever happened.

  • • •

  When the jury entered the box on the sixth day of the proceedings, their first witness of the day was Neil Phillips. Neil said that he’d first met the defendant in August 2005 when Wesley rented a room in his home. The tenant told him that he was taking a new position in Chesapeake and his wife would be joining him soon.

  Neil said he’d evicted his boarder after Wesley said, “Bitches like my wife and your wife should be dead.”

  Joey Sanzone started his examination of the witness with a question about the criminal activity of Neil’s son. That prompted an objection from the Commonwealth. This time, not only was the jury sent out of the courtroom but so was the witness. Sanzone argued that the real reason Wesley had gotten into an argument with Neil was because of the son’s activities, but Nance countered, “I’d be afraid this would open a Pandora’s box, because from my understanding from Mr. Phillips, the reason for him asking Mr. Earnest to leave had nothing to do with that arrest, but a whole slew of actions by Mr. Earnest that we’re attempting not to go into.”

  Sanzone objected again saying that the end of the tenancy agreement was not a disagreement about Neil’s wife. The judge, however, decided that the defense could not bring up testimony about the son’s arrest.

  • • •

  Sonya Stevens, a teacher at Oscar Smith Middle School, stepped into the witness box. She said that she’d met Wesley during the 2005–2006 school year. “He patrolled the hallways and helped out in various capacities [ . . . ] he kind of did everything.

  “I’m one of the coaches,” she said, “and he had an interest in marathons and just athletics in general [ . . . ] My track athletes were fond of him, and he would stay after. And then after I was done coaching, we would run occasionally. And then at that time, we would just talk about life in general, mainly his life because it was more interesting.” She noted that he told her he wasn’t married, and had never been married, because he’d “‘never found the right one.’” She’d seen Shameka Wright from afar at a work Christmas party but had never met her or Jocelyn.

  “Did Mr. Earnest speak of his finances at all?”

  “He did while running. He talked about mainly some of his properties. He had this wonderful estate [ . . . ] on Smith Mountain, some land [in] California.” Sonya recalled, “He said he did not have to work [for a living] . . . He chose to do that because he likes the children.”

  Nance asked if, after Wesley left after the end of the academic year and went to Great Bridge High School, she’d had any further contact with him.

  “Several times,” she said. “He would show up sometimes at my track meets because we shared a track, called every now and then. He would call and say, ‘Hey, coach.’ And he would call or text ‘I’m getting together,’ ‘I’m doing this,’ ‘you’re invited.’ It was just kind of an all call type of thing where he just invited old friends.”

  “Now, I want you to turn your attention to late December 2007 to early January 2008. Did you have occasion to reach out to Mr. Earnest during that time period?”

  “I did . . . I heard through the grapevine that his wife was killed. I heard it was a car accident. And I texted him and just said I’m sorry to hear about your wife . . . I got a response back that said, ‘What are you talking about?’”

  On cross-examination, Joey Sanzone established that the witness was only a casual friend of Wesley Earnest and that they did not have the type of relationship that encouraged deep conversations or the exchange of confidences.

  The next witness, Molly Sullivan, was also a teacher at Oscar Smith Middle School who knew Wesley in that same time frame. Her retelling of what Wesley said to her was nearly identical to Sonya’s testimony.

  On cross-examination, Joey Sanzone tried to get Molly to say that her relationship with Wesley was shallow and none of their conversations were deep or personal. Molly, however, would not agree with that assessment.

  • • •

  Chesapeake Police Department detective Wade Satterfield sat in the witness box next. He was the youth services officer at Oscar Smith Middle School the year that Wesley was there and they became friends. With him, too, Wesley had indicated he was a “small-time millionaire” and had never married because he’d never found the right woman.

  “I asked him what the right one was [ . . . ] The type of person he described was an African American female.”

  Joey Sanzone began his questions of the witness. “Detective Satterfield, you and Wesley went fishing together. You did a lot of things together down at the beach in Chesapeake, didn’t you?”

  “Yes.”

  “And y’all would joke around; tease each other, things of that nature, too?”

  “Yes.”

 
; “And the term ‘small-time millionaire’ sounds a little bit like a comedy term [ . . . ] Did you know whether he was being serious or kidding with you . . . ?”

  “He never showed me his financial records,” Satterfield said.

  “That’s my point.”

  • • •

  Officer Wallace Chadwick with the City of Chesapeake was the school resource officer at Great Bridge High School for about seven years. “We routinely worked together with him being the assistant principal and me being a police officer at the school. We worked together on cases, discipline-related. Some of them reached the criminal justice category. We would get involved together, interviewing kids and things of that nature.”

  “And pursuant to working together, did you come to know Mr. Earnest’s interest in law enforcement?”

  “Yes, we talked frequently, you know, about things about my job and things like that. And he was also involved in some of the community things that our police department offered [ . . . ] We had a program set up called the Citizen’s Police Academy [ . . . ] where citizens come in and kind of get a feel for what police officers do. For example, I’m on the dive team [ . . . ] we taught a section on what the dive team does.”

  “Did you ever have occasion to meet Shameka Wright?”

  “One time . . . It was at a retirement party that both of us had attended—most of the school staff was there—for one of the principals that retired . . . I didn’t physically meet her. I saw her.”

  “Did you later ask Mr. Earnest who she was?”

  “Yes [ . . . ] He just said it was a chick he had met in the mountains, and he called her a mountain chick.”

  Joey Sanzone wanted the witness to tell the jury about an incident at the school that happened on December 20, but Chadwick could not remember it, saying that after ten years of doing the job, individual events and the dates when they happened were not something he could specifically recall.

  • • •