Under Cover of the Night

by Diane Fanning

  Moving on, he said, “The note only points to Wesley Earnest. And part of that is the fingerprint evidence, absolutely. Three different people [ . . . ] have told you that it’s Wesley Earnest’s fingerprint on that fake suicide note [ . . . ] So who are the other two people who know that it’s his fingerprints? Patricia Wimmer and Wesley Earnest.”

  Nance reminded the jurors that both Wesley Earnest and Patricia Wimmer were careful to include copy paper in their listing of the items Jocelyn and Jennifer removed from the lake house. He argued that they did so because they knew Wesley’s prints were on the fake suicide note left at the crime scene. He marveled aloud at the improbability of an imaginary killer going to Jennifer Kerns’s basement to retrieve a piece of paper to write the note and managing to get one that had Wesley’s prints but not a single one from Jocelyn or Jennifer or anyone else. And, on top of that, he managed to transport it to multiple locations without getting his own prints on it. “Is that reasonable? Is that rational? No, ladies and gentlemen, it’s not.”

  He then showed the jurors the note Wesley wrote before his arrest. It had nothing in it about Jocelyn’s funeral or burial. It had a long list of financial questions as well as “‘if arrested, how?’ [ . . . ] Ladies and gentlemen, that’s a confession. That’s consciousness of guilt.”

  Nance turned to the murder weapon that both Jocelyn and Wesley had fired at Roger Earnest’s house. “Now there’s one thing in the proposals letter . . . written after the December ’06 hearing. ‘I just wanted to talk with you and you kept refusing. This past fall hunting season was upon us so I wanted to get my guns for the season. I even left you a shotgun in the closet so you could still protect yourself from any intruder.’ Talking about her still refusing and then at the end: ‘I was getting very bitter.’ If Jocelyn Earnest can shoot a three-fifty-seven like nobody’s business, why is he leaving her a shotgun?” Nance said, before pointing out, “Guess what went with him to Shameka’s house? The gun that killed Jocelyn Earnest.

  “And why is that important, ladies and gentlemen? The only evidence you have that Jocelyn Earnest had that handgun in her house was this man’s testimony. And this man has admitted that he will deceive or lie to his friends when he’s embarrassed. What will he do when he’s on trial for murder?

  “The third point I mentioned to you was Wesley Earnest’s actions in and around and leading up to Jocelyn Earnest’s death. You heard about a new one today. During the supposedly noncontested divorce, where she’s stalking him, harassing and stealing from him, emptying out his lake house, what did he do? He climbed through the window and wrote on her timeline and he tried to tell you he didn’t assume her identity. But you heard what Mr. Menzies said. He wrote on that personal writing of hers as if he were her. He takes on her persona [ . . . ] just like the person who wrote that fake suicide note. He’s learning and he’s planning, just like the [visit] . . . that Jennifer Kerns told you about. Now, Wesley argued with the date, but it’s either March or November of 2006—a weekday. And what’s in session in March or November? School. And where does Wesley Earnest work [ . . . ]? Chesapeake. And when does he arrive? At night. And he doesn’t park in front of the house. He parks past the empty lot at the rental house, if you believe his version. And he’s dressed in all black or a dark sweatsuit, the hood pulled over his head. And he comes out of the shadows when Jennifer Kerns gets there. Ladies and gentlemen, he learned from that, too. He learned not to knock. She didn’t know he was coming that night. She called Jennifer Kerns with a concerned voice. And when she found out about the timeline, she was upset and scared, and she showed that to Susan Roehrich in August of 2007. This is not an uncontested divorce. This is nasty. And there’s a deadline looming. He had to do this before her last name was Branham once again . . .”

  Nance addressed Wesley borrowing David Hall’s truck and the school sign-in sheet that proved that the vehicle was returned to David on Thursday, the day after Jocelyn was murdered. “Now, ladies and gentlemen, this sign-in sheet is made while David Hall is his buddy, while David Hall didn’t realize that Wesley Earnest was going to use his truck to commit murder. So which day does David come in the latest? [ . . . ] There is no reason to have the joke about running late, if he gets to work at seven thirty-five. It’s eight-o-five. It’s Thursday. This was made when they were friends. This wasn’t planned in the last two and a half years that Wesley Earnest has had to think about his testimony and plan out his testimony.”

  “[David Hall’s wife] tells you that it was Thursday. In fact, remember, she even says it. ‘He got it on Monday. Then, he drove it another day. That’s Tuesday. He drives it another day, and I’m thinking—that’s Wednesday—you still have that thing?’ That’s what she remembers. And that means it was brought back on Thursday. And that means his wet hair is significant, because he’s running late. That means the floorboard stain is significant. When Wesley Earnest pulls the trigger [ . . . ] he’s wearing gloves [ . . . ] Those gloves get blood spatter on them that didn’t get on Jocelyn’s hands because she’s not holding the gun. And when he gets in that truck to race back to Chesapeake, he just throws them on the floorboard and a little bit of blood transfers. And so he grabs a little bit of bleach and then he just apologizes later.

  “[ . . . ] Now the timing of this case is very key. Jocelyn Earnest last communicates to the world at seven thirty-five when she turns off her security alarm. No, we don’t know and nobody knows how soon or later after that she died. We know that her friend, Marcy Shepherd, checked at the house and knocked on the door at about nine forty-five [ . . . ] and she’s not responding by then. There’s the window that Jocelyn Earnest died.

  “Don’t fall into the trap that, well, she falls off the electronic radar right then [ . . . ] that has to be when she died. Wesley Earnest falls off the electronic radar for sixteen hours when he stops answering his phone, when that phone’s sitting in Chesapeake and he’s roaring up 460. But we don’t know if Jocelyn Earnest had her jacket on because she had just walked in or was walking back out. The dog is in the kennel, had she already let it out and let him back into his cage so she could go back out that evening? Or did somebody who knew the dog, Mr. Earnest [ . . . ] get it back in the pen himself? Those are the things we don’t know. But we do know that’s the window of opportunity for Jocelyn Earnest, and we know it for Wesley Earnest, too.”

  Nance talked about the feasibility of making the drive from Great Bridge High School to Pine Bluff. “He’s there in time to see that door open to know that door is unlocked. He doesn’t have to worry about the security alarm. Remember? Jocelyn Earnest only had it on during the day. Once she comes home, it’s off.

  “. . . Jocelyn Earnest is somewhere near that front door. She’s got two ways she can go in her house. There’s down the hallway to the bedroom—she’ll get stuck. Or she can go [ . . . ] towards the kitchen and the dining room towards the back door [ . . . ] She doesn’t get that far. You don’t fight back with someone who’s six foot four, athletic, and carrying a gun. Maybe she is running. And Wesley Earnest, towering over five foot [six] Jocelyn Earnest, is able to shoot her in the back of the head and pull her through her own blood, staging the crime scene the way he thinks it needs to be staged.

  “Because how do you stage a scene? You stage it to make it look like something it is not. You make it look like a suicide when it’s really a homicide. You leave the gun. You leave the fake note. And why do you stage? You stage to distract from the obvious suspect. And who is the obvious suspect? The guy who is totally broke, who’s been accusing you of stealing, who’s accusing you of stalking, of abasement, of harassment.”

  Nance then brought up how easily Wesley had manipulated Wayne Stewart at Taco Bell, and his friend David Hall, and how he’d tried to do the same to Rick Keuhne. He urged the jury not to allow Wesley to manipulate them, too. “Ladies and gentlemen, the evidence is there,” he said, noting that Wesley’s “actions, his ties to that suicide note, his ties
to that gun all link together into a web to catch him at his own game. Are you going to believe the evidence in this case or just a whole lot of hot air? Thank you.”

  FORTY-FOUR

  After a brief break, it was time for the defense to offer their closing argument. Joey Sanzone thanked the jurors and explained the importance of their role in the justice system. “When our government made the rules, it was decided that we needed to reflect the fact that it’s easy to accuse somebody of something. And you’ve seen that. It’s easy to make people look bad about one thing or another. But proving that an offense took place is another thing altogether. And for that reason we have some real specific rules about what has to take place.”

  He explained that the most important rule was in jury instruction number two: the defendant is presumed to be innocent. He went on to remind them that the Commonwealth also has the burden to produce evidence to prove the charge. And that, in this case, there is no direct evidence, only circumstantial and opinion. And all of it, he said, must point to opportunity, means, and motive.

  “And they just don’t exist in this case.”

  Sanzone disputed Wesley’s presumed motive, as well as his opportunity, by pointing to the timing of the drive to Jocelyn’s home, the unknown blood and hair in her house, and the argument that David Hall had not even really been late to school on Thursday, December 20, because he’d arrived at 8:05 and wasn’t required to be there for the students until 8:15. So the laughter over his tardiness must have happened in an entirely different week, Sanzone speculated, and the Halls “are just mixed up.” Despite not having much faith in the Halls’ memories, however, Sanzone put more weight in the memory of Wesley’s other co-worker, Al Ragas, and his recollection that he and Wesley got coffee together that Thursday at 7:30. Sanzone added that Al had also seen Wesley at the end of the day on December 19 at 4:05 P.M. After that, Wesley went home, then “goes out to get something to eat that night, [where] Wayne Stewart sees him.

  “As a jury, the first thing you should make the Commonwealth prove to you is: when did Jocelyn die? That time and distance is the first reasonable doubt. Her time of death is the second reasonable doubt in this case. Four hours and fifteen minutes? Where does it fit in here? Are you going to . . . drive quickly, without even going to the bathroom, stopping for gas or anything, arrive at somebody’s front door, knock on the door, kill them, get in your car, and go back home? Is that how it works? Are you able to do it kind of fast like that . . . ? I don’t think so. And if you believe Wayne Stewart, just Wayne Stewart, Wesley couldn’t have even gotten there until ten fifteen that night.

  “And what do you know about Jocelyn and the time of her death? [ . . . ] And the alarm was disarmed at seven thirty-five at night [ . . . ] You have to have a code to disarm it. And guess who didn’t have the code? Wesley Earnest did not have the code.

  “The time of death is clearly established when [Jocelyn] quits answering that phone [ . . . ] The alarm code is turned off after she stops talking [ . . . ] So when is the time of death? That is the first question that has to be answered by the Commonwealth. And it’s not been answered yet.

  “. . . I agree with the Commonwealth that the body was moved after she died . . .

  “And you do have to make some decision in this case about the truthfulness of the Commonwealth’s witnesses. I’m not talking about Investigator Mayhew and Investigator Babb [ . . . ] They’re just working a case [ . . . ] But some of these other witnesses have told some mighty peculiar stories. And I think the most peculiar and most unusual story comes from Marcy Shepherd [ . . . ] Because of the fact that she was lying to you about so much of what happened in this case means you can’t base any of your decision on what she said.”

  Sanzone enumerated what he called her lies and said, “And she’s not telling the truth about when that body’s found and when she finds it.”

  The defense attorney also disagreed with the Commonwealth’s witnesses who had uniformly remembered Jocelyn as happy and looking forward to the holidays. “She was living a troubled life [ . . . ] She may have been outwardly happy in some ways, but there were a lot of unaccounted portions,” Sanzone theorized. Not to mention, “What was that blood doing in the sink just a little ways from where that body is found?”

  He suggested that someone overlooked that tiny drop when he was doing cleanup after killing Jocelyn. But that person emptied one trash can because he’d left something in it and he had to dispose of it—of all the receptacles in the house, all were overflowing but one.

  Sanzone questioned the kind of people that Jocelyn might have had in her home—“people leaving condoms all over the place [ . . . ] The people with the hair, the people with the blood, who were they? [ . . . ] There were a lot of people in that house. We know it. And that’s the next reasonable doubt.” He cast aspersions on Marcy, Maysa, and Jennifer for not knowing who those people were, and for not knowing anything about the condoms.

  “Jocelyn was leading a troubled life [ . . . ] She was having obvious issues with sexuality. Maybe it really wasn’t an issue. Maybe it was fine with her. But she hid it. She and Marcy Shepherd said they hid it. But Marcy Shepherd has told you [ . . . ] that as far back as 2005, she had been discussing kissing Jocelyn. They discussed kissing one another. They were alone in [the] house after the Christmas party at ten o’clock at night, kissing. And we’re all adults. We know what’s going on. And we know what’s going on since 2005.”

  Sanzone attacked the financial evidence as inaccurate and misleading, insisting that there were no problems that rose to the level of being a motive for murder. “Go to the direct evidence. Go back to what I said earlier about the evidence that does not require caution.” He connected the gun to Jocelyn and pointed to the proof of the gun safe in her basement and the holster found inside of it.

  “There are quite a few reasonable doubts here in this case [ . . . ] I want to get to one that is important [ . . . ] When they talk about the height of the shot, that is the oldest, oldest trick in the world, because if I’m standing straight up, yeah, you’d probably have to be pretty tall to shoot me in the head, but [ . . . ] if I’m down here like this,” he said as he squatted down, “you don’t have to be tall at all.

  “Let me just say that the fingerprint evidence in this case is the worst evidence in this case [ . . . ] This is not a fingerprint ID. This is a partial latent fingerprint ID. The first thing is, we don’t know how old the fingerprints are [ . . . ] Could it have been paper that Wesley touched at some time and somebody took away from Jocelyn’s house? Yes. He lived in the house for ten years.”

  Sanzone talked about the fingerprint expert saying that if there were one discrepancy in the pattern of fingerprints, it was not a match, then reminded the jurors that the prosecution only had partial fingerprints and, therefore, how did anyone know whether or not a discrepancy existed in the unseen part?

  He talked about the points of similarity in Wesley’s print and the unknown one found on the note. “What did they tell you? Oh, five or six will do. Five or six out of seventy-five or a hundred, that will do, that’s fine? What did we have here? We had two guys that disagreed with each other and they disagreed with themselves. They only agreed on . . . that’s his fingerprint all right.” Sanzone also took exception to one of the experts’ lack of notes on the stand. “A good reason for not bringing the notes,” he said, “is because he doesn’t want me to compare them. And he doesn’t want me to see that maybe Mr. Riding had this point and this point and maybe he had this point and that point. About the bottom line is, you’d think if this was an exact science that right off the bat, they’d start out at the same place, but they didn’t.”

  In an attempt to convince the jury that his client was innocent and that the whole case was a patchwork quilt of nonsense, Sanzone referred to the investigation in general and the fingerprint evidence in particular as being “embarrassing.” After several warnings that his time was ru
nning out, Sanzone finally brought his statement to a close when the judge told him his time was up. “I just ask you to listen to the points I’ve raised. We have a time limit so we won’t go on forever and forever. But you’ve heard all the evidence, you’ve heard my argument. I appreciate your time. And I respectfully ask that you find my client not guilty.”

  • • •

  Wes Nance now had the floor. “Ladies and gentlemen, what is embarrassing is that Mr. Sanzone would mischaracterize two experts with over sixty years of experience. They told you what that exhibit was. They have told that that is his fingerprint and he has, too.

  “. . . I find it amusing that Mr. Sanzone wants to go into every room of that house except for the room that Jocelyn Earnest is killed in. He wants to go into the bathroom. He wants to go downstairs. He wants to look at the towels on the toilet. Because he knows the stuff that’s associated with Jocelyn’s death points to his client.

  “This house was Jocelyn’s home for a decade. She had friends, she had family, she had co-workers over watching a movie. But she was shot in the back of the head in the living room. She had no defensive wounds. There’s no reason for the murderer, Mr. Earnest, to be bleeding. She’s running away. That blood is an artifact from her life. And I don’t know if it was a handyman. I just don’t know, but I know it doesn’t have anything to do with that. He’s talking about forensics in a bathroom when the forensics on the fake suicide note belong to the cheating, in-debt-to-his-eyeballs husband.