Under Cover of the Night

by Diane Fanning

  • • •

  The year 2008 passed in a series of ever-pushed-back court dates. As expected, the July 29 hearing date was moved to October 3; then November 25; then moved again to January 13, 2009; and finally set for June 3, 2009.

  • • •

  On October 13, 2008, which would have been Jocelyn’s thirty-ninth birthday, her family gathered. They had a birthday balloon and cake. They lit little candles and laughed and cried over their memories.

  The first Thanksgiving since Jocelyn’s death arrived on November 27, and it was torture for her family. Laura was haunted by memories of Black Friday shopping with her sister, and every time she looked at a sales flyer, she cried. Her mother, Joyce, made a veggie tray just like the ones Jocelyn always brought to the family home on that holiday, and everyone thought of their missing loved one as they munched on the vegetables before dinner.

  On December 19, the first anniversary of Jocelyn’s death, Laura and Joyce went shopping at Goodwill in memory of Jocelyn. Laura saw a lot of wool sweaters that she knew her sister would love.

  On February 12, 2009, the Hedgesville High Eagles girls’ basketball team, Jocelyn’s high school alma mater, honored their fallen star with a ceremony to retire jersey number 21—the one Jocelyn Branham had worn—and unveiled the framed jersey for the wall of the gymnasium lobby.

  Teammates and classmates from the class of 1988 as well as other family and friends were on hand. The short tribute praised Jocelyn as the greatest female basketball player to ever hit the court for Hedgesville.

  Coach Denny Fiery said that Jocelyn never took her talent for granted. “She came to play every night. Her highest-scoring games were against the best teams. By the time she was a junior and a senior, we were contending for sectional crowns and regional championships, so we were playing a lot of big games.”

  He added that Jocelyn went on to be a starting member of the Mountaineers Sweet Sixteen team in 1992. “When she told me they offered her a scholarship—that was one of my happiest days.”

  NINETEEN

  On Friday, March 20, 2009, Wesley Earnest’s masterpiece on Smith Mountain Lake caught fire and filled the air with black smoke. Neighbor Dave Wilson stepped outside and smelled a strong kerosene odor before seeing the flames. He called 9-1-1 and reported the blaze at 6:43 P.M.

  The fire chief of the Smith Mountain Lake Marine Volunteer Fire/Rescue Department was sitting in his home when he saw the tremendous roll of smoke across the water. It already looked too late to save the house, but he scrambled to pick up the company’s third firefighting boat at the Blackwater River. By the time he reached the scene, the other two boats were already there—one shooting water up to the house, the other putting out a grass fire that threatened woods and homes nearby.

  Altogether, sixty firefighters from units from the Moneta Volunteer Fire Department, Saunders and Bedford fire companies, and Smith Mountain Lake Marine Volunteer Fire/Rescue Department responded. By the time they arrived, though, the home was already engulfed in flames.

  Broken bones had put Investigator Mike Mayhew into a wheelchair temporarily, and at the time the fire erupted, he was sitting at home watching television. He got a call from Bedford investigator Ricky Baldwin. “You’re not going to believe what’s happening.”

  When Baldwin told Mayhew about the fire on the lake, Mayhew’s wife loaded her husband and his wheelchair into their car and drove him down to the scene. Firemen picked up and carried him and his chair over fallen trees and undergrowth to see the devastation in person. Mayhew immediately called his captain and urged him to send someone to the Earnest home in Forest to make sure that house wasn’t burning, too.

  Controlling the conflagration and protecting nearby homes was complicated by the lack of fire hydrants in the community and the difficulty that the fireboats had pumping water uphill from the lake. The fire burned for another hour before it was extinguished. The house was a total loss. Another neighbor, Greg Eigenfeld, told the News & Advance, “It was just a giant ball of fire. There was very little even that the fire crews could do but put it out. There was certainly nothing to save.”

  One big concern was the whereabouts of the homeowner, Wesley Earnest. When his defense attorney, Joey Sanzone, reached him by phone the day after the fire, he asked his client where he was. Wesley informed him that he was driving through Loudoun County, Virginia, an area contained in the Washington, D.C., metropolitan area. Sanzone told Wesley to pull over immediately and contact the sheriff’s department. The defense attorney knew that Wesley’s word would not be good enough—they needed someone official to verify his location.

  Investigation to find the cause of the fire began on Saturday afternoon when everything was sufficiently cooled. In a short time, they had a working theory about what had started the blaze: for some inexplicable reason, it appeared that Wesley had been refinishing furniture, not in the garage where someone typically would perform that task, but in the great room of the home. They believed that a slow fuse lit the stain-soaked rags, which lay under a safety light. From that point, it took no time for the flames to run amok in the timber-framed home.

  A number of suspicious facts pointed a finger at Wesley. He had received a foreclosure notice on the home, on which he still owed $990,000, and the insurance was scheduled to run out in July. Wesley was the only person who would benefit from the loss.

  Nevertheless, despite the suspicious circumstances, the insurance company paid out over $1 million, leaving Wesley with $100,000 after the bank took its share. He presumably paid his attorney with some of that and sent some payments toward Shameka’s house.

  No one has ever been charged with what appeared to the experts to be a case of arson.

  • • •

  Investigators obtained a search warrant for Shameka Wright’s vehicle on March 24, 2009, since Wesley regularly drove it, as well as another warrant for her Concord home on Night Hawk Road. They discovered a handgun in the car and two other firearms in the bedroom of the house.

  Armed with that information, prosecutor Wes Nance asked the judge to revoke Wesley Earnest’s bond. Another issue was that although Wesley spent most of his nights at his girlfriend’s place, he’d never submitted a change of address as required under the terms of release.

  Joey Sanzone argued that every time the court had needed to reach his client, he had always been available. The only reason Wesley had changed where he slept was because his primary address had been uninhabitable since the March fire destroyed it. Sanzone also claimed that Wesley was not a flight risk because he’d obtained a building permit to rebuild the lake house.

  Judge Updike did not find those grounds sufficient for a revocation, but he did update the address. He also suspended Wesley’s concealed carry permit and modified the bond agreement to stipulate that no firearms be in Wesley’s possession regardless of whether or not he owned them.

  • • •

  On May 5, all parties were back in the courtroom. Joey Sanzone reported that he was waiting to receive subpoenaed evidence that now appeared unlikely to arrive in time for the scheduled June trial. The date was moved again to December 1, 2009.

  Then in October, both the defense and the prosecution asked for a delay until March 23, 2010, because of evidence that the state forensic lab needed more time to analyze. The judge was frustrated. “This case has been pending for a long time and there needs to be a trial. I’m concerned that the public is concerned why this case is not being tried. I’ve been asked several times, ‘Why is this case being continued?’” Nonetheless, Updike granted the joint request.

  • • •

  In March, before the start of the trial, Judge Updike ruled that the prosecution could not use Jocelyn’s journals as evidence because it would violate Wesley’s constitutional right to confront an accuser. The move virtually silenced the victim, whose voice would not be heard in the trial.

  • •
•

  Eighty Bedford County residents were ordered to report to the courthouse on March 22, 2010, for possible inclusion in the jury. By 1:30 P.M. on March 23, seven men and seven women had been selected to serve as the dozen jurors and two alternates.

  The lead prosecutor, Wes Nance, with Commonwealth’s Attorney Randy Krantz by his side, opened the case. “It’s an age-old story of greed and lust and sex and money. Wesley Earnest saw his wife as an obstacle to those things . . .

  “He made errors. He made errors before the crime, he made errors during the crime, and he made errors after the crime.” Nance told the jury how Wesley drove his friend’s borrowed truck after work and returned it before school three mornings later. He argued that evidence would show the only fingerprint found on the suicide note was Wesley’s; that the Smith and Wesson revolver belonged to Wesley; that the box for the weapon had been found at his girlfriend’s house; and that he was the only one with a motive for killing Jocelyn.

  Nance said that Wesley was $125,000 in debt, not including the money he’d owed on his home. Days after Jocelyn’s body was found, Nance said, Wesley replaced the tires on Dave Hill’s truck. “He was literally and figuratively covering his tracks.”

  • • •

  Sanzone & Baker, representing Wesley Earnest, was rooted in a family practice that went back two hundred years. So it was no surprise to courtroom watchers that a father and daughter—Joey and Blair Sanzone—would present this case together, as they had done many others. They, of course, had a different scenario of Jocelyn’s death to present the jury.

  Joey Sanzone delivered their opening. He spoke about Wesley’s life on the day Jocelyn died. “He went home. He took a nap; he got up and then headed out to get something for dinner. He went home, he went to bed. He had to be at work the next morning.” Sanzone told the jurors that there was something “fishy” about the suicide note and that they needed to look at Jocelyn’s close friends Maysa Munsey and Marcy Shepherd. He accused Marcy of having moved Jocelyn’s body after her death.

  The stage was set: circumstantial evidence versus third-party guilt. How would the jury decide?

  TWENTY

  Wes Nance prepared to present the Commonwealth’s case against Wesley Earnest with some trepidation. “Once every twenty years, you encounter a case with a complicated nature like this one.” He hoped his communication skills were good enough to pull all the pieces together in a way that made sense to the jurors—that was daunting enough. Add to that Nance’s knowledge about the opposition. “Joey Sanzone has a lot of natural ability. The courtroom is a natural environment for him. He is quick on his feet. Not going to catch him flat-footed. Facing him is quite a challenge.”

  The first witness was Marcy Shepherd, Jocelyn’s co-worker, who was not only the person who found the body but the one who said she was the “new love” referred to in the suicide note. Over defense objections, Marcy told jurors that Jocelyn had expressed fear of her husband and had said, “If he knew anything or found out anything, he would kill us both.” She said that Jocelyn had recently had a security system installed because of her fear.

  Marcy sobbed as a large television showed a crime scene photo of Jocelyn lying with her feet to the camera. She told the jury about the events of the night of December 19. Joey Sanzone questioned her aggressively about her text messages and her visit to Jocelyn’s home that night and walking through the house on the morning she found the body—he did everything he could to paint her as a likely suspect. Sanzone asked if she went to work that evening in order to type up the suicide note. Marcy denied that allegation and said she’d gone to drop off a Christmas present on Jocelyn’s desk.

  Bedford County deputy Jason Jones, the first on scene, testified that the thermostat had been set for ninety degrees. He described what he saw in the home and the position of Jocelyn’s body. Investigator Gary Babb testified that the revolver was out of place where it was found near her armpit and her hair was stuck in a pool of blood on the carpet. Sheriff’s investigator Mike Mayhew testified that two of the cartridges in the gun had been expended, but they did not find any evidence of a second shot at the scene. The murder weapon had been purchased by Wesley Earnest, and there was no indication of a forced entry.

  He was later called back to the stand to enter Wesley’s will into evidence. The language in that document indicated that Wesley considered himself the owner of the murder weapon.

  • • •

  On the next day of the proceedings, Mike Mayhew told the jurors about the journals they’d found at Jocelyn’s home and in her office; he read aloud two letters that were sent by Wesley to Jocelyn referring to his suicidal feelings, problems with his brother, Tyler, and his desire to reunite with his wife.

  On cross, Mayhew told Joey Sanzone that there were no fingerprints on the thermostat or on the keypad of the security system. He denied Sanzone’s allegation that he’d asked Marcy and Maysa to collect files and evidence at Genworth Financial. The defense then asked leading questions about whether the computers of Jocelyn’s friends were searched. Mayhew said they were not.

  Mayhew was replaced in the witness box by Jocelyn’s close friend Jennifer Kerns, who testified that in March 2006, she and Jocelyn had witnessed Wesley having sex with Shameka Wright, whom she referred to as “Wesley’s mistress.”

  A number of Jocelyn’s co-workers testified to her positive frame of mind. “She was a friendly person, very upbeat . . . always encouraging, always smiling.”

  None of the Genworth employees said they’d had any inkling of a romantic relationship between Jocelyn and Marcy Shepherd.

  Susan Roehrich, Jocelyn’s therapist, told the jury that Jocelyn came to see her in 2005 with “depression issues” caused by the disintegration of her marriage. Her client, however, had gotten over the heartache and was “looking forward to having a life.” Roehrich said Jocelyn was “upbeat and happy” the last time they’d met, on the day of her death.

  TWENTY-ONE

  On the fourth day of the trial, March 26, 2010, Assistant Medical Examiner Amy Tharp, who’d performed the autopsy, testified that Jocelyn Earnest’s wounds were inconsistent with suicide. The angle of shot was too awkward. “Individuals who are trying to kill themselves will put the gun tight against their head because they don’t want to miss.” She also said that the shot would have killed or incapacitated her instantly.

  Forensic scientist Marjorie Harris explained how the blood pattern trails on Jocelyn’s face indicated her body had been moved after death. “Once she went down, she was pulled and moved.” In all, she said, Jocelyn’s head was in three different positions after death, and her body was moved about two feet.

  Jocelyn’s divorce attorney, Jennifer Stille, testified that Wesley claimed $1 million in debts but seemed unwilling to sell the Smith Mountain Lake home before the spring 2007 divorce trial to decide division of property. She also testified that Wesley had accumulated $60,000 in credit card debt in addition to the joint debts. She went into detail about the contentiousness of the divorce.

  Bedford County sergeant Brian Neal wrapped up the day, telling the jurors about the evidence seized in the search of Shameka Wright’s home. He read the long list of complaints about Jocelyn that Wesley had prepared for his attorney as well as other notes in Wesley’s handwriting.

  • • •

  After a two-day break for the weekend, court was back in session on Monday, March 29, 2010. Bank officer Chip Umberger read numerous delinquency warnings sent to the Earnests in 2007, as well as the notice scheduling the foreclosure for January 4, 2008.

  Forensic linguist James Fitzgerald, the man who tracked down the Unabomber through writing analysis, told the jury that the lack of emotion, grammatical clumsiness, and limited punctuation of the supposed suicide note was not consistent with Jocelyn’s style. “My conclusion is that it’s improbable that she wrote the note.” He could not issue an opinion on whether or
not the note’s writing style was consistent with Wesley’s.

  Defense attorney Joey Sanzone asked, “Did you study the writings of Maysa and Marcy?”

  “No,” Fitzgerald said.

  He was followed by real estate agent Johnny Maddox, whom Wesley contacted in his search for a piece of land and to sell the lake house for $2 million. After he stepped down, Sergeant Neal got back in the box. He entered documentation about the rental of the lake house into the record as well as the letter that Wesley gave Jocelyn on that frightening night in February 2007.

  Two teachers from Oscar Smith Middle School in Chesapeake testified that Wesley claimed to be rich—worth up to $5 million—and that he denied being married. Wesley’s onetime landlord Neil Phillips testified about the ugly statements his tenant made about his wife and Wesley’s own wife.

  Shameka Wright, with her black hair in an updo, was next on the stand. She told the jury that she had been romantically involved with Wesley since 2004, and that they were still together.

  Prosecutor Wes Nance asked of that fateful night in 2007, “Did you have any contact with Wesley Earnest on Wednesday, December 19?”

  “I spoke with him by phone that morning but I could not reach him that evening. Cell phone reception at his home is spotty and it wasn’t unusual for me to have difficulty reaching him.”

  She said that the drive from her home in Campbell County to visit Wesley in Chesapeake typically took her four hours without stopping.

  • • •

  Forensic scientist Ken Riding testified about Wesley’s fingerprints on the suicide note—one on front matching his left thumb and another on the back—and the absence of any prints belonging to Jocelyn. He said the match was “beyond a reasonable doubt,” though on cross, the defense worked hard to discredit his testimony.