Under Cover of the Night

by Diane Fanning

  “It was an emotional relationship.”

  “I want to turn you now to page one-thirty-one of your testimony previously given. And the question from Ms. Sanzone was, was it a romantic relationship. And what was your answer?”

  “I said it was.”

  “And you said that under oath [ . . . ] didn’t you?”

  “Yes.”

  “Now you went to great pains to keep the fact that you were romantically involved with Ms. Earnest secret, didn’t you?”

  “No.”

  “So you say that you and Jocelyn communicated, but most of the time it was by text, wasn’t it?”

  “Correct.”

  “And there were a lot of texts between you and Jocelyn, weren’t there?”

  “Yes.”

  “Would you agree with me that there were generally more than a thousand texts between you and Jocelyn on a monthly basis?”

  “I really don’t know.”

  “Do you contest that? Do you say . . . that’s not true or are you just saying you don’t know?”

  “I’m just saying I don’t know.”

  “But you certainly were in communication often with her, and it was the vast majority text.”

  “That’s correct.”

  “Could it have been, say, for instance during May, seventeen phone calls and fifteen hundred texts? Could that be true?”

  “I don’t know.”

  “But you did start calling her on the weekend that she went with Maysa to West Virginia, didn’t you?” Sanzone asked. “Didn’t you call her and talk to her at five o’clock on that Friday for a good long while as she was going to West Virginia?”

  “It’s possible.”

  “Didn’t you talk to her a little bit longer at about six thirty as she was going to West Virginia with Maysa?”

  “I don’t remember.”

  “You weren’t invited to West Virginia.”

  “I didn’t go.”

  “And Maysa and Jocelyn went together, not you.”

  “Correct.”

  “And you were upset about that.”

  “No.”

  “And on Sunday when she got home, that was when you made some plans to go out on Wednesday, you say.”

  “Yes. No. We didn’t make plans on Sunday to go out on Wednesday. We made plans on Monday to go out on Wednesday.”

  “. . . You had taken the whole week off.”

  “Yes.”

  “You were going to spend time with Jocelyn.”

  “No.”

  “. . . You being her new love, being in a romantic relationship, you weren’t planning on spending more than just a tiny bit of time with her on Wednesday on the week that you had taken off?”

  “That’s correct.”

  “And you talked on the phone. You generally would text her during the day, wouldn’t you, as well as in the evening?”

  “We texted a lot. I’m sure there were texts during the day, yes.”

  “And texts in the evening?”

  “Uh-huh.”

  “And you knew you had been talking to her, you had been texting her late on Monday, late on Tuesday, hadn’t you, into the evening?”

  “I don’t remember when we texted . . . precisely.”

  “Haven’t you said that y’all always said goodnight to one another? Isn’t that true?”

  “Yes.”

  “So you don’t remember the specifics of the texts?”

  “True, that’s right.”

  Sanzone badgered her on specific messages and times. Marcy tried to answer, but finally she protested, “It was a long time ago.” The defense attorney then pushed her about whether she’d reviewed documents before she took the stand. She admitted she had but said they were her own notes, not anything official. He moved on to ask pointed questions regarding her ability to leave her children with her husband at any time, the accessibility of transportation to drive to Jocelyn’s house, and her freedom of movement that entire day. “And your testimony here to the jury today is that you went to Jocelyn’s for the first time that night when?”

  “That I went there after I left Genworth.”

  “After Genworth, after nine thirty in the evening . . . But that’s not what you told Investigator Babb on December twentieth at the crime scene, is it?”

  “That’s right.”

  “And you remember what you told him, don’t you? You told him that you had gone there closer to eight forty before you went to Genworth, before you went to CVS.”

  “Yep.”

  “You told him the next morning, the day that you called the police and were there with the body. You were talking about the events of the night before. It should have been fresh in your mind. And you told him that you went there before you went to CVS or Genworth. And now you’re telling the jury something different under oath.”

  “I told him previously that I had made a mistake and that I had gone there after I had left Genworth.”

  “But you didn’t tell him the truth the day you were right there at the scene, did you? Your very first statement to the police about when you were there was eight forty, wasn’t it?”

  “I don’t remember the exact time.”

  “But you didn’t correct your statement before you left Jocelyn’s house on the twentieth, did you? You’re saying today that you weren’t there at eight forty. You weren’t there before you went to Genworth. You weren’t there before you went to CVS. You never told them that day, did you?”

  “I’m not sure what [ . . . ] question [ . . . ] you’re trying to ask me.”

  “It’s a real simple question,” Sanzone insisted. “On the twentieth when the police come to the house and Jocelyn’s body is there and you are, too, you tell them that you went to Jocelyn’s house at eight forty the night before.”

  “Yes.”

  “You never corrected that statement on that day. Is that right?”

  “No, I didn’t.”

  “It was a long time after that that you talked to them again and told them something different. When did you talk to them and tell them something different? ”

  “I don’t know.”

  “How many interviews did you have with police?”

  “I don’t remember.”

  “. . . And when you went to the house at eight forty or before you went to CVS, you didn’t notice any lights on in the house, did you?”

  That question raised another objection from the prosecution that caused the judge to say, “I’m confused myself.”

  Sanzone reworded his query, continuing along with that line of questioning in an obvious attempt to trip up the witness and destroy her credibility.

  “And your testimony here today is that you were at the CVS right next to Jocelyn’s house, two or three minutes away, and instead of going to Jocelyn’s house, you drove all the way to downtown Lynchburg to Genworth, then drove all the way back out past that CVS again to get to Jocelyn’s house. Is that what you’re saying?”

  “Yes.”

  The defense then questioned Marcy’s movements inside of Genworth and asked her about the gift for Jocelyn that she left in the office that night. “There was no reason you couldn’t have left that present in your car, was there?”

  Marcy explained it was a large box and she didn’t want her children to see it, but Sanzone countered, “What you were trying to do was create a timed record so that you could later come back and show where you were that evening at nine twenty-eight and at nine o’clock with CVS. Isn’t that true?”

  “That’s not true.”

  “You knew you’d been seen over at Jocelyn Earnest’s house and you knew what happened to Jocelyn.”

  “No.”

  “When was the last time you were in Jocelyn’s house?”

  “The last time
I was in her house was Sunday, the sixteenth.”

  “Do you know anything about the condoms there at the house—that were found in various places throughout the house?”

  “No.”

  “Do you know anything about the hair that was found at the house?”

  “No.”

  “Anything about the blood that was found at the house?”

  “No.”

  The next question led to a semantics battle between the defense and prosecution, and then Sanzone continued. “You had been in the house with Jocelyn’s body before the police arrived.”

  “Yes.”

  “When the police arrived, you and Maysa were standing at the front door.”

  “I was standing in the doorway, and she was standing on the front porch.”

  “Both doors were unlocked at that time, the back door and the front door?”

  “I don’t know if they were locked or not. The front door was open because I was standing in the doorway.”

  “And you’d opened the back door and come in through it.”

  “That’s correct.”

  “Now, do you have anybody who can verify [ . . . ] when you got to Jocelyn’s house? Was there someone with you when you arrived at Jocelyn’s house?”

  “No.”

  “Did you see anybody when you were there at the house before the police got there?”

  “No.”

  “Did you attempt to call the police for a welfare check?”

  “No.”

  “Now, you didn’t turn your phone over to the police that day, did you?”

  “No.”

  “And there were text messages on your phone from Jocelyn to you and from you to Jocelyn: is that correct?”

  “Yes.”

  When asked, Marcy admitted that the first time police asked her for her phone, she demurred.

  “I told him that I didn’t want to be without a phone.”

  “Well, you have a home phone, is that right? You have a land line at home.”

  “I do have a land line.”

  “And at work you have a land line.”

  “Yes.”

  “And your husband who is still there in the house with you has a cell phone, doesn’t he?”

  “Yes.”

  “And you’re saying that under those circumstances to further the investigation of your close friend, you did not want to give up your phone?”

  “I was afraid and I did not want to be without a phone.”

  “The phone was issued by your company, wasn’t it?”

  “Yes.”

  “Did you ask your company if they could issue you another phone while you let the police look at this phone . . . ?”

  “No.”

  “You told them that you didn’t want to be alone in the dark. Isn’t that what you told the officer?”

  “I don’t remember if I said I didn’t want to be alone in the dark. I knew that I didn’t want to be without my phone.”

  “And you wouldn’t let him pick up your phone and return it to you at the end of the day on December twenty-second.”

  “I don’t remember refusing to provide my phone. I expressed my concern about being without a phone and he said it was okay.”

  “He said he’d pick it up later?”

  “That’s what we agreed to.”

  “And during that period of time from that day forward, you had every opportunity to erase messages on that phone, didn’t you?”

  “I wouldn’t have.”

  “You had every opportunity to, didn’t you?”

  “I had the phone.”

  Sanzone produced the Commonwealth’s evidence that detailed the findings on Marcy’s phone. Then, he ran her through all the text messages she had with Jocelyn on December 19 including at 6 P.M. “When your phone was turned over there’s no message from her at six o’clock, is there?”

  “There’s not.”

  “And you had that phone in your possession the whole time from December twentieth to January the third when you turned it over to the police.”

  “That’s correct.”

  “And that missing message from Ms. Earnest is not among these records. You deleted that, didn’t you?”

  “If I did, it was unintentional. I did not delete it on purpose.”

  “Well, do you just delete things? You know the police want to see your phone. You know they’re interested in this period of time. And you’re saying you just unintentionally deleted it?”

  “It’s not there. I didn’t mean to delete it is what I’m saying.”

  Sanzone questioned her about specific times, engaged in a squabble with the prosecutors and the judge, and then asked, “Ms. Shepherd, you deleted messages on this phone, isn’t that true?”

  “I did not intentionally delete messages off that phone. I do not know of any messages that I deleted after I spoke to the police. And I’m sitting there showing them my phone. We’re looking at it together. I’m interpreting the messages.”

  “But you didn’t let the police have the phone so they could look at it themselves and interpret the messages. Instead, you’re reading it to them; isn’t that true?”

  An exasperated Marcy said, “What’s the question?”

  “You didn’t turn your phone over to them that day. You’re holding on to the phone and telling them things about what’s on the phone.”

  “I was being helpful by operating that phone [ . . . ] They were looking at it with me.”

  Sanzone continued to hammer her on not immediately releasing her phone, then harangued her about changing her story of her movements the night Jocelyn died. Then, he moved to questioning her about her knowledge of a condom at the crime scene. He wrapped up his cross with a final question. “Even though you didn’t want anybody to know about the relationship before Jocelyn’s death, you did call Susan Roehrich after Jocelyn’s death and told her about your relationship, didn’t you?”

  “Yes,” Marcy said.

  On redirect, prosecutor Wes Nance established that Marcy’s husband was aware of her feelings for Jocelyn before December 19 and that she’d volunteered the information to the police about her text messages with Jocelyn. Then he asked, “Why were you afraid to give them your cell phone on that particular night?”

  Sanzone bounced up. “Judge, I object to that.”

  Nance started to plead with the judge, but Updike cut him off to send the jury out of the courtroom. When they were clear, he said, “All right, Counsel. I think I know where we’re headed, but I’ll hear it . . . repeat your question, please.”

  “Your Honor, my question is why she was afraid to turn over her cell phone,” Nance said.

  Updike turned to Marcy and said, “Outside of the presence of the jury, you can answer that.”

  “Based on what Jocelyn had told me about Wes, I was afraid. Should I say more?”

  Nance asked, “What did she tell you?”

  Sanzone spoke up, “Judge, we . . .”

  Updike interrupted. “Now, the jury’s not in here, Mr. Sanzone . . . For me to do my job, I have to know what the answer is. Proceed.”

  “And ma’am,” Nance asked, “what was it that Jocelyn told you about Wes specifically?”

  “She told me that if he didn’t get what he wanted that he would kill her and then kill himself and that if he ever found out about us, he would kill us both. I didn’t walk my dog for a year.”

  When Nance said that was all of his questions, Joey Sanzone argued, “Judge, first of all, we say it’s hearsay. Secondly, we say that it’s speculative. Thirdly, we say it’s improper evidence. This is a questionable claim being made by her.”

  “. . . All right, I’m going to consider this,” Updike said. “But I’m going to tell you, I have some concerns here. Of course, I have some
concerns about the nature of the response, but Mr. Sanzone, I also have some concerns because you’ve gone to great lengths suggesting during your cross-examination that the reason she did not turn over her phone in December [ . . . ] was for some untoward, dishonest purpose. Now, to just say she has a reason in her mind why she didn’t turn it over and not allow her to say anything in response in my view is not fair. That leaves you to make your argument and does not allow the Commonwealth to respond as to her explanation of why she didn’t turn it over.”

  After back-and-forth with the defense, Judge Updike asked Marcy to repeat her answer.

  She said, “Based on what Jocelyn had told me on numerous occasions, that if [Wesley], you know, didn’t get what he wanted, he was capable of murder and that she suspected that would be how she died, that he would kill her and then himself.”

  “Okay,” the judge said. “Stop there a minute and let me get that. And then there was something else about finding out.”

  “And that if he found out about the two of us that he would kill us both.”

  “As a consequence of these statements, you were afraid of whom or afraid of what?”

  “I was afraid of Wesley Earnest. And if you want observable behaviors, I could give those.”

  “What bearing, if any, does that have on your decision of your actions as to your cell phone in December and whether you would or would not give that to the police?” Judge Updike asked.

  “Well, I never refused to give my cell phone. I expressed a deep concern about being without my cell phone simply because I thought he was hiding in the shadows,” Marcy said, adding that Jocelyn “was not someone who just made things up. And when she expressed fear, I believed her. She had a couple of examples that I thought were worthy of her fear. Thus, when I found her body, worthy of my fear as well.”

  The judge ruled, “The essence of it, as I see it, is that this witness is saying [ . . . ] she had fear for her personal safety [ . . . ] I’m going to allow her to say that.”

  Marcy did just that when the jurors returned to the courtroom. An emotionally drained Marcy was finally allowed to step down from the stand.