Mayhew described the Earnests’ home, with its wooden front porch and rounded picture window in the front and the swimming pool and toolshed behind it. He took photographs of the exterior of the home and the surrounding landscape before moving inside.
The next morning, November 10, 2010, Mayhew again took his place in the witness box as Wes Nance continued his direct examination. Mayhew had ended his testimony the day before with a discussion of finding firearms and ammunition in the walk-in closet of the master bedroom and elsewhere in the home, but today picked up with a description of Jocelyn’s green Honda, backed into the driveway. From the trunk of her car, he collected a Toshiba laptop for forensic analysis.
On cross-examination, defense attorney Joey Sanzone directed the investigator to three documents: one showing the purchase of the murder weapon on July 14, 1999; another showing that Wesley completed the requirement to get that permit on April 24, 1999; and a third dating Wesley’s concealed weapons permit on April 30, 1999. Then he said, “So both the permit and the passage of the pistol safety course occurred before this pistol was purchased.”
“That is correct,” Mayhew said.
“So, it would have been impossible to use this pistol to pass that course.”
“That’s correct.”
“And that would mean that he used another pistol to pass that course,” Sanzone said, attempting to create distance between his client and the murder weapon.
“That’s what it would lead one to believe, yes.”
“. . . In your conversations with him, you’re aware of him . . .” Sanzone began.
“Objection, Your Honor. That’s hearsay, Your Honor.”
“Well, it’s from the defendant, but that’s fine,” Sanzone said. Turning back to the investigator on the stand, he continued: “You said there were two empty cartridges in that handgun.”
“That’s correct.”
“. . . And you only found evidence of one bullet being fired there at the scene.”
“That is correct.”
“So you don’t know if the second bullet was fired after that or before that.”
“No, sir, I do not.”
“. . . And you really looked around that house to see if there was any evidence anywhere of another bullet fragment, another hole in the wall . . . You all looked very carefully.”
“Yes; me and several other investigators, that’s correct.”
Moving on to the victim’s body, Sanzone established that Jocelyn was dressed for the outdoors and said, “You took care to make sure that no one did anything with her body until it had been examined by the medical examiner.”
“That is correct.”
“Including taking care to make sure that the area of her hands was preserved . . . so there wouldn’t be any contaminants.”
“That’s correct.”
“. . . There’s been a lot of evidence gathered in this case but in the course of the gathering of that evidence did you collect Marcy Shepherd’s or Maysa Munsey’s cell phones?”
“Yes, it was collected.”
“But not on the day you found them there at the house.”
“No, sir.”
“You would agree with me that if somebody . . . tells you that they’ve been in communication with a person who’s now lying there dead that you would want to see that communication or hear it if you could.”
“Later, after the thing, yes, you would want to do that.”
“. . . And you agree with me also that as time passes, your ability to get that evidence may not be there.”
“There is that possibility,” Mayhew admitted.
“. . . Did Marcy Shepherd tell you on that day that she had text messages on her phone to and from Jocelyn Earnest?” Sanzone pressed.
“No, on that day, she did not.”
“And . . .”
Commonwealth’s Attorney Krantz popped to his feet, objecting to the line of questioning. Judge Updike cut him off and sent the jury out of the courtroom.
When the room was cleared, Krantz objected to “any reference or innuendo by Mr. Sanzone that Marcy Shepherd or anyone else is a suspect or wrongdoer in this case, unless or until he meets the legal threshold of establishing with particularity as established by the Supreme Court to enter third-party guilt in this case [ . . . ] And to suggest that to the jury, Your Honor, is not within the scope of the Supreme Court’s ruling. We’re just asking Mr. Sanzone to follow that law.”
“I intend to follow the law, Judge, but I don’t agree with their characterization,” Sanzone shot back. He argued that Marcy was the only person scheduled to meet with Jocelyn at the time of death.
Krantz countered that by citing the complete cooperation of Marcy and Maysa with law enforcement and added that the defense was not offering any evidence of actual guilt by either woman.
Sanzone disputed the women’s cooperation, pointing to Maysa’s plea of ignorance of details in the Amherst County case and Marcy for not revealing the romantic relationship or text messages at the scene.
“So, all of these facts, Judge, and the fact that people are present, that they are doing things to impede the investigation—and now I think that those very acts impede our ability to look back and accurately determine what happened.”
“Last comment,” Krantz said. “Nothing plus nothing equals nothing . . . There is nothing that Mr. Sanzone can point to that shows the actual guilt of anyone else. It is just intended to confuse and mislead the jury.”
“. . . Well, I guess since it’s the Commonwealth’s motion, they get the last word,” Sanzone said.
“Y’all finished?” the judge asked. When the lawyers agreed that they were, he stated that it would not be fair to prevent the defense from offering evidence that someone other than the defendant killed Jocelyn Earnest. “But any evidence has to be admissible evidence, has to be relevant evidence . . . Guesswork or speculation has got no place in a court of law.” He continued, “If the Commonwealth puts these women on and asks them about finding the body and being there before the police officers . . . if Mr. Sanzone wants to ask either one of them, ‘Did you kill Jocelyn Earnest?’, you can ask them. You can ask the police officer if you want . . . Anybody who was there because anybody who was there and had the opportunity, you can ask them. That’s cross-examination.”
The judge cautioned, “This business of the relationship . . . between Ms. Shepherd and Ms. Earnest, as far as whether that proves anything concerning the death, I don’t even really have to get there. I’ve already got in evidence a note that talks about a new love. And if she gets on the stand and testifies . . . she loved Jocelyn, then the nature of the relationship is going to come out as far as bias, prejudice, motive, fabrication.”
However, Updike warned the defense, “Now, Mr. Sanzone . . . if you want to proffer evidence on your own . . . you’re going to have to show . . . it clearly points to some other person . . . But if it’s might have, could have, should have, or that kind of stuff, possibility, then that to me just becomes an issue of letting the jury guess or speculate. They’re not supposed to guess or speculate. Neither am I. Neither is anyone else in the courtroom.”
After the jury returned, Joey Sanzone focused his questions back on Marcy’s phone, forcing Investigator Mayhew to admit that he had not seized her cell until two weeks after the murder, and that during that time, Marcy had had the ability to alter or delete any messages.
The defense then turned to the possibility that one of the policemen could have moved the body before Mayhew arrived at the scene. All the investigator could say with any certainty was that they told him they had not.
Using crime scene photos, Joey Sanzone asked a series of questions about what the investigator had found there. “Has anyone come forward and said, ‘I was using the bathroom on the day that or on the day before the blood and hair were found’?”
“Has anyone come forward and said, ‘That’s my blood in the sink’?”
“No, sir.”
After a break for lunch, Nance conducted his redirect examination, asking the investigator about Maysa’s and Marcy’s demeanor the day the body was discovered.
“Very upset, crying, upset of the whole situation,” Mayhew said.
On recross, Sanzone asked if Marcy had, on that same day, revealed anything about her romantic relationship with Jocelyn.
“Not to me, she didn’t.”
TWENTY-EIGHT
The next witness to testify was Jennifer Kerns, a registered nurse and good friend of Jocelyn Earnest’s. “We became friends pretty much right away. We had a lot in common to begin with—we both played college basketball and had a lot of similar interests. I would say the friendship began immediately and just continued to strengthen each day through the next twelve years or more until her death.”
Jennifer said that they saw each other several times a week, meeting at her house, at Jocelyn’s house, or meeting for lunch. She added that she often came with her children to use the swimming pool at Jocelyn’s home.
Prosecutor Wes Nance asked about the firearm that Jennifer saw in Jocelyn’s house in late 2005.
“There was a shotgun propped up inside—right inside the doorway of the master bedroom walk-in closet,” Jennifer said. Nance followed up by asking if Jennifer had ever seen the firearm after that one incident.
“No, I did not,” she replied.
“Did you ever see a handgun in Jocelyn Earnest’s home after Mr. Earnest moved from the residence?”
“No, I did not.”
Nor, Jennifer said as she was questioned further, had she ever seen a handgun anywhere in Jocelyn’s possession or in her vehicle, which Jennifer rode in frequently.
“Now, in your frequent contact with Jocelyn Earnest, were you able to observe her demeanor and reaction . . . to the separation from Wesley Earnest? ”
“Yes.”
Sanzone rose again, “Judge, we object to this. It calls for speculation on the part of this witness.”
After a brief argument, the judge overruled his objection. It only took one more question and answer before Sanzone objected again when the witness described what the two of them did together. This time the judge sustained it, instructing Jennifer to describe what she observed, not offer conclusions or interpretations or opinions.
Nance started, once again, asking about Jocelyn’s state of mind immediately following her separation from Wesley. “What predominant emotion did you observe from Jocelyn Earnest during that time period?”
“Sadness.”
“Was there an incident that you were personally present for in March of 2006 that appeared to change her general demeanor?”
“Yes.”
The defense voiced another objection. “Your Honor, we object because it does not reference my client and his attitude towards Ms. Earnest.”
“Objection of relevancy,” said Judge Updike. “I’m not going to comment at this point other than to say that the objection is overruled.”
Nance asked, “Ma’am, I’m going to turn your attention to March of 2006 . . . Were you aware of a lake house on Smith Mountain Lake built by the Earnests?”
“Yes.”
“And in March 2006, did you go with Jocelyn Earnest to that lake house?”
“Yes.”
“. . . Could you explain to the jury . . .”
Sanzone interrupted, “Judge, I have a motion outside the presence of the jury.”
Updike sent out the jury and Sanzone continued. “Judge, I assume what we’re going to hear is that Ms. Earnest went and watched through a window and saw an interaction between Mr. Earnest and a female. Mr. Earnest didn’t say anything to her that day, didn’t do anything. And this is all about Ms. Earnest. Doesn’t have anything to do with my client. And, in order for them to show some sort of contentiousness, motivation, something of that nature, they need to show something regarding Mr. Earnest, not Ms. Earnest.”
“Isn’t the possibility of suicide also an issue in this case?” the judge asked.
“Judge, we are not arguing suicide at all,” Sanzone said.
“Is he conceding that it’s not a suicide, Your Honor?” prosecutor Krantz interjected.
“Judge, I don’t know. I don’t have the burden of proof.”
“That’s true,” the judge agreed. “. . . I’m just asking a question that because of the note that was found in the area of the body and the nature of the note, does not the Commonwealth have the burden of proving beyond a reasonable doubt that this death was not a suicide?”
“The only reference to my client in that note is having to do with finances,” Sanzone argued.
“There have been objections as far as the state of mind of Ms. Earnest is concerned,” Updike said. “I feel that such evidence is relevant to the issue of whether or not she died as a result of suicide. That’s my ruling and my feeling . . . Let me just ask this question out of the presence of the jury: What is this testimony, Mr. Nance?”
“Your Honor, this is evidence on marital infidelity on the part of Mr. Earnest,” Nance answered, adding, upon question of relevancy from the judge, “Your Honor, I believe the relevance is two-fold. First of all, its impact on Jocelyn Earnest—we would anticipate Ms. Kerns’s testimony is that she went from being sad to more determined and ready to move on past this marriage. But also, the relevance of marital infidelity is relevant pursuant to the marital disharmony . . . and lack of bliss . . . Cantrell versus Commonwealth . . . states: in the prosecution of murder of one’s spouse, the Commonwealth may introduce evidence of marital infidelity to show marital disharmony.”
“But, Judge, in those cases, they’re talking about somebody that gets mad because the spouse is over here having an affair with somebody and the incident is related to that affair. That’s not the case here at all,” Sanzone said. “And for them to say . . . she became more determined and ready to move on and abandon the relationship, I don’t think even fits the theory that the court has cited here. It’s just simply intended to show a bad act. It’s nothing more than some sort of prior bad act on the part of my client regarding fidelity and intended simply to cast him in a bad light and create sympathy.”
“Okay, Counsel,” the judge responded. “I understand the argument. The objection is overruled. The evidence will be presented. Objection’s noted and preserved.”
The jury returned to the courtroom, and Nance returned to his line of questioning. Jennifer described the day that she and Jocelyn observed Wesley and Shameka Wright engaged in an intimate act at the Smith Mountain Lake house. When she said, “Jocelyn got angry and said, ‘This is it. I’m done. I’m over this,’” she brought Joey Sanzone to his feet.
“Judge, now I object: hearsay. And they know we object.”
“Your Honor, it’s not offered for the proof,” Nance said. “I believe explanations are merely a verbal act, and they’re not coming in for the truth of the matter asserted.”
“The court understands the objection is on the grounds of hearsay. The objection is overruled,” Updike said.
Amidst repeated interruptions from the defense, Jennifer continued to describe Jocelyn banging on the window, waving and shouting into the house.
Wes Nance also had Jennifer give her testimony regarding the night in February 2007 when she encountered Wesley outside of Jocelyn’s home dressed in dark clothing with a hood pulled tightly over his head.
The witness told the jury about the last time she was in Jocelyn’s home on December 7, 2007, after volleyball practice. Nance asked, “Were you able to observe her demeanor in December of ’07?”
“Yes.”
“What did you see? Tell the jury.”
“She was excited, looking forward to Chris
tmas, anxious to give my children the Christmas presents that she had purchased for them.”
“Judge,” Sanzone objected again. “That’s not a proper response. Demeanor is not—that does not deal with demeanor.”
“I think it does,” Updike said. “Overruled.”
“If you could finish the thought that you had,” Nance said to the witness.
“Looking forward to seeing them open their gifts—happy, excited, jovial.”
On that remark, the direct examination ended and Blair Sanzone, Joey’s daughter and co-counsel, began the cross. “Ms. Kerns, you and Jocelyn were such good friends that you had the alarm code to the Pine Bluff home; is that correct?”
“Yes.”
“And you were an authorized user through the actual alarm company; is that correct?”
“Yes.”
“. . . And you had a key to that home on Pine Bluff; is that correct?”
“Yes.”
“Who else had a key to that home that you know of?” Blair Sanzone asked.
“Maysa Munsey.”
“And who else had the alarm code to the Pine Bluff home?”
“Maysa Munsey.”
“And anyone else that you know of?”
“No.”
“You would often spend the night at Jocelyn’s home on Pine Bluff; is that correct?”
That was not correct; Jennifer replied that she had spent the night once in 2006, but not at all in 2007 or 2005.
“The last time you had any contact with Wesley Earnest was in the winter of 2007; is that correct?” Blair Sanzone continued.
“In the driveway, yes.”
“And the last time you have any personal knowledge of Jocelyn Earnest and Wesley Earnest having any contact face-to-face with one another was that [ . . . ] night [. . . ] is that correct?”
“They did not have face-to-face contact that night.”
“Then, when was the last time that you personally know of that they had face-to-face contact? What was the date of that or approximate date?”
Under Cover of the Night Page 14
