Krantz argued that prisoners were advised that their mail was screened for security risks, and that they’d had a legitimate reason to look into Wesley’s mail; Sanzone countered that since his client had not yet been convicted of a felony, he still had certain civil rights.
“I’m trying to do some research,” Updike said. “And I found a case or two that I’d like to read.” He opted to table the issue for the time being. “Let’s bring the jury in. And just don’t address this issue please in the presence of the jury.”
Krantz began his cross-examination by introducing ten pages of handwritten material Wesley had prepared for his divorce attorney. Once Wesley had positively identified it, Krantz switched gears and said, “Mr. Earnest, when you moved to Chesapeake, you lied to your friends down there about being a millionaire and not having to work and being independently wealthy, didn’t you?”
“Shared some successes and exaggerated some others.”
“You lied to them, Mr. Earnest, didn’t you?”
After an objection from Sanzone was overruled by the judge, Krantz continued, “Mr. Earnest, did you tell them the truth?”
“About?”
“Were you, in fact, a millionaire?”
“No.”
“Were you independently wealthy?”
“No.”
“. . . Were you wealthy enough that you did not have to work?”
“As far as, like, working in education [ . . . ] or construction or . . .”
“Mr. Earnest, my question to you [ . . . ] did you mislead your friends that you were independently wealthy enough that you did not have to work?”
“I did some exaggerating. And I’ve often said that I could retire from education and then work in the construction field and be happy.”
“Mr. Earnest, let me repeat my question to you: Did you tell your friends the truth or not?”
“I exaggerated some things.”
“And do you consider exaggerating things to be the truth or a lie?”
“Less than truthful.”
“Do you consider less than truthful to be a lie?”
“Sure.”
“So let me repeat my question: Did you lie to your friends?”
“Like I said, there were a number of different conversations.”
“Mr. Earnest . . .”
“There were some exaggerations.”
“Did you deceive them, Mr. Earnest?”
“Yes.”
“And you will deceive people when it suits your purpose, won’t you?”
“There were some things where I felt that my personal privacy as far as my past relationships and things deserved to be able to retain to myself. So whenever I would say something like ‘I moved here alone’ and then they would interpret . . .”
“I’m not asking you what they interpreted.”
“. . . ever been married or something like that.”
“. . . Mr. Earnest, please answer my question. You intentionally misled your friends, didn’t you?”
“Yes.”
Krantz then returned to the document he’d introduced when Wesley first took the stand. He had the defendant read through one point at a time from the list of things he’d itemized for his divorce attorney. After each one, the prosecutor asked him about the honesty of his statements. Wesley consistently insisted they were true. Krantz introduced two additional handwritten documents of the same nature and took him through the same process until the end of that day in court.
• • •
That night, Wes Nance went to bed at 10 P.M., thinking about the trial. He woke up at 3:30 A.M., well aware that Wesley was a better witness this time around than he had been in the first trial. He was more personable and appeared to be doing a better job relating to the jurors. Nance feared that connection could impact the outcome of the trial.
He fretted about what they’d done so far and what they still needed to do before Wesley left the witness box. The prosecution had thus far avoided using Jocelyn’s timeline, out of a desire to avoid any inadvertent introduction of hearsay statements written by the victim, but now Nance realized that was a bad strategy. What they needed to do instead was use it but focus in on the statements on that document that were in Wesley’s handwriting. Wesley was saying that there was no conflict between him and Jocelyn, that he wasn’t in Chesapeake that night, and that he did not have access to Jocelyn’s home. His notations on the timeline made his whole story a lie.
• • •
On November 19, 2010, the eighth day in Judge Updike’s courtroom began with a request from the prosecution to divert from the procedures laid down before the commencement of the trial. The expectation was that anytime one of the attorneys on either team started an examination of a witness, that same lawyer would continue with it through to the end. Wes Nance, however, wanted to finish the cross in order to allow Krantz time to review documents they were considering for submission. Sanzone objected, saying that “it was agreed to have questioning done by only one person on each side for each individual.”
The judge responded, “My concern—and I think the concern has always been with allowing questioning by more than one attorney—the concern is repetition. I will allow Mr. Nance to . . . continue with the cross-examination on behalf of the Commonwealth as long as there’s not repetition or duplication.”
Nance jumped right into his questioning of Wesley. “Jocelyn changed the locks in very early 2006, is that right?”
“Yes.”
“Then, Mr. Earnest, can you explain to the jury how you got into her home and wrote on her timeline?”
Wesley turned to the jury, an arrogant smirk on his face; he pantomimed his hands pushing up the pane as he said, “Sure. A window, the second window from the left in the house had to have the sash replaced, but I never did put the locks on that.”
A lot of people in the courtroom were stunned. Wesley did not deny that he broke into Jocelyn’s home at all. In fact, he sounded as if he was bragging about his cleverness in doing so.
Sanzone didn’t like the direction of the questioning or that impromptu revelation from his client and interrupted, “Judge . . . when are they asking about this? What’s the date?”
“Excuse me,” Nance snapped.
“What date are they asking about?”
“I didn’t ask him a date.”
“You didn’t ask a date?”
“Please proceed, Mr. Earnest,” Nance said.
“So the locks had not been put back on that bottom sash of the window,” Wesley said.
“And when you wrote on her timeline, you assumed her identity, didn’t you?”
“I don’t think that’s a fair statement at all,” Wesley said.
“Your entries were written as if they were written by Jocelyn Earnest, weren’t they?”
“I don’t think that’s . . .”
Sanzone ran to his client’s rescue. “Judge, there are no facts in evidence to this.”
“I have no further questions, sir,” Nance said. “Thank you.”
Joey Sanzone took the lead as redirect began. “Mr. Earnest [ . . . ] he asked a question about the house [ . . . ] when are we talking about?”
“As best I recall, somewhere middle of 2006 or so.”
“That was a year and a half before Jocelyn’s death?”
“Yes, sir.”
“After the summer of 2006, y’all put the escrow agreement in place [ . . . ] You got exclusive possession of the house in Moneta [ . . . ] She got exclusive use of the house in Pine Bluff.”
“Yes.”
“You were satisfied with that?”
“Yes.”
Sanzone asked a few more questions about Wesley’s state of mind regarding the divorce and payment of bills, and Wesley answered that the separation had been very cordial,
and that he and Jocelyn had had no issues.
Sanzone finished with his client, and the prosecution had no desire to ask additional questions on recross.
Sanzone brought the defense case to an end. “Judge, there’s one matter that’s just a housekeeping matter to be admitted into evidence, but besides that, we rest.”
Now would come the Commonwealth’s chance for rebuttal.
FORTY-TWO
The Commonwealth called Investigator Mike Mayhew to the stand as their first rebuttal witness and asked him about the interview with Wesley Earnest on December 21, 2007. Mayhew testified that when he’d asked the defendant about everything he did the week of Jocelyn’s murder, he’d never mentioned having David Hall’s truck, nor moving any furniture, nor making a trip to Taco Bell, nor having Jesse McCoy clean his car.
On cross-examination, defense attorney Joey Sanzone asked Mayhew if Wesley had ever denied going to Taco Bell. The investigator answered that Wesley didn’t deny it because no one asked him about it.
“You asked him questions and he answered every question you asked?” Sanzone said.
“That’s correct.”
“And you didn’t have any follow-up questions that were unanswered at the end of that interview?”
“No, sir. We asked him to go over it three times and he told us every time. And that was what he did those days.”
• • •
As soon as the Commonwealth recalled Jocelyn Earnest’s therapist, Susan Roehrich, Sanzone requested that the jurors be sent out of the courtroom. He argued that Susan’s testimony was not proper rebuttal because it was not refuting anything said by Wesley.
Assistant Commonwealth Attorney Wes Nance said that the only purpose of this examination would be references to the comments written by Wesley in a document. The Commonwealth had no intention of mentioning anything written by Jocelyn. The judge decided he wanted to hear voir dire questioning before he ruled on its appropriateness.
Nance handed Roehrich the exhibit of the timeline document that Jocelyn had written for her for identification. Then he asked, “Did she point out certain entries on that timeline?”
“Yes, sir.”
“These entries that she pointed out to you, did you recognize the handwriting of those entries?”
“No, sir.”
The judge interrupted the questioning, saying that he wanted to know what was in the entries before he could make a decision.
Nance read through the list of alien comments on the timeline, and Sanzone said, “I don’t have any problem if they want to say that he wrote that on her timeline, because it’s obvious that he wanted her counselor to know those thoughts.”
“It almost sounds like now you’re saying you don’t object to it,” Updike said, and overruled Sanzone’s objection, saying, “The Court rules that it’s proper rebuttal, that it is relevant.”
After that, the judge wanted to make sure that the Commonwealth had a witness ready to testify that it was actually Wesley’s handwriting on the document. When that was settled, the jury returned and the questioning resumed.
Roehrich identified the document as the timeline Jocelyn wrote at her request and said that the discussion, which took an entire session, occurred at the end of August 2007, eight months after Wesley said he was last in Jocelyn’s house. “She was, well, I would say emotionally angry, violated. She was scared.”
On cross, Joey Sanzone tried to shake Roehrich’s confidence on the date of that meeting with Jocelyn, but he failed.
• • •
The Commonwealth’s last rebuttal witness was Gordon Menzies Jr., a forensic documents examiner at a forensic science laboratory in Roanoke. He had twenty years of experience in that area, with the last fifteen of them as supervisor. Additionally, he’d been examining forensic documents for thirty-four years and had testified as an expert in that field two to three hundred times. The court qualified him as an expert witness.
He testified that he examined known handwriting samples of Wesley and Jocelyn and he examined the timeline document in question. He said that in his review of the bracketed items, he could confirm with certainty that all, with one possible exception, were in Wesley’s handwriting.
Joey Sanzone asked, “Mr. Menzies, you found three categories of writing on here: Jocelyn’s, Wesley’s, and one you couldn’t identify?”
“Correct, sir.”
“And you have no idea when these writings were made, do you? I mean, you can’t look at the document and tell the age, can you?”
“An absolute time, no, but I would have to say it was after the bulk of the document was produced, whenever that was.”
“You don’t know when?”
“No, sir, I do not.”
Sanzone then pushed the witness to say they were written in 2006 since the latest entry was dated in that year, but he could not get him to commit to any assessment of when they were actually composed since the dates were written in one handwriting and the notes in question were by another hand.
Wes Nance on redirect said, “And, Mr. Menzies, just to explain to the jury a little bit about what Mr. Sanzone was talking about, under each of these dates, were there entries lined up underneath the dates?”
“Yes, sir.”
“The ones belonging to Wesley Earnest were at the bottom of each of those letters?”
“They were either at the bottom—particularly the ones that were bracketed in red. However, the ones that I found that were not red bracketed were generally inserted somewhere above that bottom entry and kind of plugged into an available space.”
After he stepped down and the Commonwealth announced they had no further witnesses, Sanzone requested to bring Wesley back to the stand for surrebuttal. “I want to call Mr. Earnest to ask him if in 2007, Ms. Earnest ever called him and complained about him writing on a timeline. I want to ask him if [ . . . ] Ms. Earnest ever took him back to court for being in the house in 2007 [ . . . ] Those are the questions I want to ask him.”
Nance argued that he could have asked those questions during his direct or redirect examination of the defendant and he did not. The judge agreed with the Commonwealth: Sanzone could not recall Wesley Earnest.
Before the jury was brought back into the courtroom, the defense made the traditional motion to strike. “Your Honor, we would renew our motion to strike in this case and state in furtherance of that at this time, the evidence is no longer viewed in the light most favorable to the Commonwealth. And there is no evidence [ . . . ] that Mr. Earnest was in Forest at the time.” He went on to argue that the fingerprint was irrelevant because his client had lived in the home for nine years and could have left it on the paper during that period of time.
He moved then to the question that he was blocked from any presentation regarding possible third-party guilt. “We were prevented from even putting on evidence on stronger circumstances than the Commonwealth has presented to go forward to the jury.”
To no one’s surprise, Updike said, “Motion is denied. Court finds that there’s been sufficient evidence to establish a jury issue as to elements of the offenses charged and that there has been evidence presented by the Commonwealth that is probative. And that is evidence in addition to fingerprint evidence. I do not regard this as a case that relies solely and exclusively or that is based solely and exclusively upon fingerprint evidence.”
FORTY-THREE
Wes Nance stood to present the closing argument to the jury. After thanking them for their service, he began his argument. “Wesley Earnest had his testimony planned out yesterday just like he planned out this crime, but, ladies and gentlemen, he made mistakes when he killed Jocelyn Earnest. And those mistakes are the evidence that proves his guilt.” Nance took the jury through the things he’d set out to prove in his opening statement.
“I told you that Jocelyn Earnest did not kill herself. And a variety of witnesse
s have come forward and proven that fact. Dr. Amy Tharp told you that Jocelyn Earnest was killed by a gunshot wound to the back of her head, above and behind her right ear. That gun was held two inches to two feet behind her head [ . . . ] If you drive from Chesapeake and hold a gun to the back of your wife’s head with a fake suicide note already typed up, that is premeditated murder. That is murder in the first degree.”
Nance reminded the jury of Marjorie Harris’s testimony about the blood stains and patterns. “Mr. Sanzone talked about the secondary head movement maybe happening after the discovery of the body. The blood here doesn’t lie. She was moved once, and it was quickly. And it was while she was falling. So it had to be someone who was tall and someone who was strong, perhaps a man who likes sports, perhaps a man who’s athletic. Wesley Earnest is that man.” Furthermore, he said, “We know this wasn’t a suicide because of the note. James Fitzgerald tells you that that note is too short, it’s too unemotional, it’s too focused on finances. It’s not Jocelyn Earnest [ . . . ] That note doesn’t have her fingerprints. That note had no one else’s fingerprints but the defendant’s.”
Nance moved on to motive. “Now, ladies and gentlemen, what is murder? Murder is a problem-solving event. You’re eliminating a problem. So who had a problem with Jocelyn Earnest? Now, we know it wasn’t the stuff in the house. She died with a little money in her change purse, credit cards. Nothing’s taken from the house. So it’s not a burglar [ . . . ] The problem wasn’t sexual needs. She wasn’t sexually assaulted. She died with all of her clothes on. She was killed because she was Jocelyn Earnest, because of who she was. That’s why she was shot in the back of the head. Who had a problem with Jocelyn Earnest? Who was it who said she’s hoarding her income? [ . . . ] Who said she was stalking, verbally abusive, was cleaning out the bank accounts, was running off to Canada? One person was saying that: Wesley Earnest.”
Under Cover of the Night Page 24