Under Cover of the Night

by Diane Fanning

  THIRTY-TWO

  The Commonwealth called their next witness, Richard Van Roberts, a firearms examiner for Virginia Department of Forensic Science with thirty years’ experience. In that time, he had performed five thousand to six thousand examinations of guns.

  He identified the murder weapon as a .357 Magnum caliber handgun with a short two-and-an-eighth-inch barrel with a five-shot capacity and an internal hammer. He walked the jury through the operation of the gun, the function of the safety mechanisms, and the loading of the ammunition.

  He told them that he’d verified that the weapon was firing properly and concluded, “The two cartridges and the large jacket fragment were fired in and through this weapon. The other small pieces of lead and jacket were too small [ . . . ] for any identification.”

  On cross-examination, defense attorney Joey Sanzone used the witness to establish that the gun was very similar in size and function to one marketed by Smith and Wesson as a “Lady Smith”; that a gun did not have to be stored in its case or box; and that there was “no way to tell the time span between the first shot firing from the gun and the second one.”

  On redirect, prosecutor Wes Nance questioned the firearms expert about the brand of the weapon, establishing that it was not the Lady Smith model. Sanzone, on his recross, reiterated the point that it was extremely similar to the Lady Smith, inferring that it was a gun a woman would use, not a man.

  • • •

  The next witness for the Commonwealth was forensic pathologist Dr. Amy Tharp, assistant chief medical examiner for Roanoke. With her bachelors’ in zoology and neuroscience, medical degree from New York Medical College, specialized training in anthropology at Wake Forest University in Winston-Salem, an additional one-year fellowship in forensic pathology, and her experience in performing more than 1,300 autopsies, her qualification as an expert was a foregone conclusion.

  Dr. Tharp testified that Jocelyn Earnest’s body had arrived fully clothed in a body bag, and that she’d conducted her examination on December 21, 2007.

  First, Dr. Tharp said, she’d opened the bag and took a photograph, observing that rigor mortis was passing and the victim’s head was tilted to the right side. When Nance showed her a crime scene photograph and asked if the angle of the head was the same as it was when the body arrived in her facility, Dr. Tharp said, “Yes.”

  “Did you make notation of the dried blood on Jocelyn Earnest’s face?”

  “Yes.”

  “And was there anything in particular that drew your attention to that?”

  “The position of Mrs. Earnest’s head tilted to the right—she appeared to have blood actually running uphill over her left cheek against gravity, which did not appear consistent with her position as I saw it in the scene photos and in the body bag.”

  Prosecutor Nance projected a photograph of Jocelyn’s face on the screen and instructed, “Explain to the jury what the significance was to you about these dried blood streams.”

  “As you saw in the first photograph, her head was originally tilted to the right. And she had dried blood going off to the right down the right side, but there’s also blood going over to the left cheek and across the left side of the face, which would be going against gravity,” Dr. Tharp reiterated.

  “What was the significance of that to you as a doctor and pathologist?”

  “That her head had at some point been not completely tilted over to the right for the entire time that she had been dead from the time the injury occurred.”

  Nance took the pathologist through the steps of undressing and examining the body, and she described for the jury the x-rays taken. Introducing a number of autopsy photos, Nance pointed at one and asked, “And you were describing this as the entrance wound, is that correct?”

  “Yes.”

  “And how do you make that determination?”

  “One of the things that we learn in all that training is how to distinguish an entrance wound from an exit wound. When a bullet enters skin, it’s spinning like a football and it tends to scrap the edges of the skin as it goes in before it actually punches through the skin into the skull.

  “In addition, there are these little red marks all around the wound. It’s not just the bullet that comes out the end of the gun. You’ll also have bits of burning and unburned gunpowder and smoke and flame. And depending on how close the gun is to the skin, you might actually get some of those other things striking the skin as well. In this case, the gun was close enough that you’d get some of these little bits of gunpowder striking the skin and creating what we call stippling. It’s sort of almost a sandblasting effect from the bits of gunpowder.

  “I know it is not a contact wound because of all the bits of gunpowder. If it was, if the gun was pressed tight to the skin, it should have gone through the entrance itself and not have been deposited on the outside on the skin.”

  Nance introduced a photograph of the exit wound on Jocelyn’s left temple and said, “Ma’am, we can see Jocelyn Earnest’s left eye in that photograph. There appears to be discoloration.”

  “Yes. She has what we call preorbital ecchymosis or basically a black eye. However, that’s not because she was struck in the eye. When there’s any kind of fracture of the base of the skull over the eyes, blood will leak down into the soft tissues around the eye. And in her case, the bullet fractured, I believe, every bone in the back of the skull including the bones over the eyes and blood leaked down around the eyes and caused that effect.”

  “Generally, what is the shape of this exit wound versus the entrance wound we saw earlier?”

  “This wound is a little more irregular. It’s not a nice, round, crisp hole like with the entrance wounds, because once the bullet has gone in and it’s struck bone, it’s no longer spinning in a nice, tight spiral like a football. It’s tumbling end over end. And in this case, it probably came out somewhat sideways.”

  Dr. Tharp described the internal examination of the skull, clarifying the damage to the brain. “The bullet actually came through the right side of the brain, came across the brain stem and then out the left side of the brain and out the left temple, effectively killing her immediately.”

  “So, she not only lost consciousness, this would be an immediately fatal injury?”

  “Yes,” said Dr. Tharp, going on to add that Jocelyn “would have collapsed immediately.”

  Nance directed the pathologist to the pivotal point of her testimony. “Do you have an opinion to a reasonable degree of medical certainty whether this is consistent or inconsistent with a self-inflicted gunshot wound?”

  “Yes, I do.”

  “And what would that opinion be?”

  “This is inconsistent with a self-inflicted injury.”

  “And why do you reach that result?”

  “For several reasons. One is the location. When people shoot themselves, they don’t typically choose a location that would be difficult to reach. Behind the right ear . . . would create a slightly awkward angle. They’re going to use a place that’s more comfortable for them. Under the chin, in the mouth, and the temples or forehead are more common places, again not just because it’s easier to reach, but they also want to make sure they hold the gun tight because they don’t want to miss. The purpose is not to injure themselves. They’re trying to get the job done. So they’re going to make sure they hold that gun tight. And holding it at an awkward angle back here and away from the skin enough that you have that stippling . . . people don’t shoot themselves that way.”

  Joey Sanzone focused on the time of death and the scientific impossibility to pinpoint with any precision after twelve hours. Dr. Tharp spoke of livor mortis, a settling of blood after death where a push of a finger on the skin causes it to blanch and leave an impression, occurring about six to eight hours after death, making it useless in this case where the body had remained undiscovered for much longer. She also said
that she could not pinpoint time by undigested food in the stomach since she did not know what or when Jocelyn ate before she died.

  Sanzone questioned her about the open wounds on the body. “Does blood continue to come out of those from time to time?”

  “[ . . .] It depends on whether there’s been any drying or anything of the injury before. Occasionally, you can get clotting and congealing of blood at the injury, which will help prevent some of that.”

  “But if you turn a body [ . . . ] sometimes blood will flow that has not been previously flowing, is that correct?”

  “It can.”

  Sanzone moved on to question the doctor’s opinion on the distance the gun was from Jocelyn’s head, suggesting that it was impossible to determine because the victim’s hair would block some of the stippling.

  Dr. Tharp disputed that, insisting that any blockage would be minimal. “I would still think that it would be unlikely to be any closer than two inches because you would expect, at closer than two inches, you’d be getting flame. There would be burning of the hair from the flame of the gun.”

  “And you described the wound back here as being in the back of the head, but [ . . . ] if she was turned sideways, for instance, then that becomes more along the line of her shoulders, the path of the bullet, doesn’t it?”

  “Yes, but she would still have to have her hand almost even with her shoulders to still get that angle.”

  “Right. But that position is possible.”

  “It is physically possible.”

  On redirect, the prosecution established that regardless of the position of the body, the position of the gun, as relative to the head, remained the same. The relationship between the two was pivotal to the trajectory and the official ruling of homicide.

  THIRTY-THREE

  Marjorie Harris, a forensic scientist with the Virginia Department of Forensic Science with expertise in blood stain pattern analysis, was accepted as an expert witness before the court. She first explained her specialty to the jurors. “It’s based on some of the basic sciences: physics, mathematics, fluid dynamics. What I do is look at deposits that have been left at a dynamic event that’s happened to a blood source that allows blood to either fly into the air or fall onto the ground. I look at three things. I look at their sizes. I look at their shapes. And I look at the way the stains have been distributed.”

  Nance introduced as evidence the carpet sample Harris had analyzed in the laboratory. She pointed to it where it lay on the floor as she explained, “So we see that initial blood drops begin here. They continue to travel this way. This is a large volume that’s now beginning to pour out of her body.” She noted how the spatters showed “that this is a volume that’s being released from the distance above the carpet, pouring out of her body if you will.”

  “So, at this point, is the origin of the blood flow above the carpet?”

  “Yes . . . and then there is a dragging through this that actually leaves pieces of hair within the stain.” She then detailed the information in the patterns indicating that the body had been moved after death, and the absence of blood stains on Jocelyn’s clothing showing she’d been leaning forward when she was shot.

  “Now if you look at the stains, especially lower in the middle portion of her back, there’s nothing that relates to a blood source in her hand that would put that blood directly there. So that blood was what we call transfer from [ . . . ] And I believe that blood to be the blood that was on the carpet as her body was moved across that. And then that transferred the blood from the top of the carpet onto the back of her jacket.”

  Nance asked, “Do you have a conclusion to a reasonable degree of scientific certainty as to the series of events that are reflected in both this blood stain pattern and the blood stain patterns or lack thereof on her clothing?”

  “Right,” the expert said. “Initially when she received her injuries, blood began to flow or pour from those injuries and potentially from her nose, her mouth, and her left ear. She was in a leaning forward position because nothing was dripped on the front of her. We see that the head [ . . . ] continued to drip and pour blood onto the carpet here, here, here,” she said, pointing at the sample. Pointing to another spot, Harris said, “This was a heavier volume that poured out. As a matter of fact, when it hit, it broke into pieces of what I call the ‘McDonald arches’ where they come out and then they come back down. And when you see this, you’ll see the little stains all around this central pattern. And that tells me that a volume of blood was dropped from a height above the carpet.

  “Now, once that happened, and she was on her back, she was pulled across to where her head was stationary here,” she said, pointing to another stain. “And there are bits of hair that are actually still . . . here in the carpet that were stretched out as her head moved across that wet, tacky blood. Then as her head maintained . . . here and blood leaked out of the entry wound and the exit wound, it flowed here and created almost a small pool that left coagulation and clotting.”

  Joey Sanzone did the best he could to discredit Marjorie Harris’s testimony on cross-examination. “Ms. Harris, you said that you knew that the initial blood flow started at some point when she was above the ground . . . not lying on the ground.”

  “Yes, that’s correct.”

  “But you can’t tell how far above the ground, can you?”

  “No.”

  He then questioned her ability to tell whether blood came from an entry or exit wound. She agreed with him, except in the case of spatter at the moment of the shot.

  “. . . And you can’t tell the difference between dripping blood from a few inches above the ground and dripping blood from a higher height, can you?”

  “In some instances you can, but it would take experiments with different volumes and . . . the same type of surface. And I did not do that in this case.”

  “So in this case, you couldn’t say whether those twin drips came from her just lying on the ground and the blood dripping down.”

  “Oh no. They came from a [ . . . ] height above the floor. In particular when the volume fell and hit the carpet and then created the secondary spatter that had to be from a distance greater than what would just drip off her hair.”

  Sanzone moved on to the larger areas of blood. “If a person falls and remains still you expect to find one pool, don’t you?”

  “Yes.”

  “And that’s not what you found in this case, is it?”

  “Actually it is.”

  “You found one pool and you found trails to the pool.”

  “There were trails from where the bleeding initiated and blood dropped or poured out of her body. And then there was pooling where her head remained stationary and created the [ . . . ] compression area. If you want to say there’s two pools [ . . . ] but just because her head was in the way and blocked them from connecting.”

  “You said there was hair that had been stretched across . . .”

  “Yes.”

  “You have said that you think the body moved after it initially came to rest on the ground.”

  “Yes.”

  “Is it fair to say that it moved twice?”

  “I don’t . . .”

  “You talked about changes in the blood flow on her face. These changes in blood flow clearly occurred before all the blood had dried, wouldn’t you agree?”

  “Yes.”

  “So that happened fairly early on after she hit the ground.”

  “Well, again, you yourself said that if there’s a hole in the body and the body is moved then blood could leak out of it. So not necessarily,” she said.

  “There’s no hole in her nose,” Sanzone said.

  Krantz rose to his feet. “I think they call those nostrils, Your Honor.”

  Sanzone continued as if the prosecutor had not spoken. “There’s not a wound. There’s not a gunsho
t wound to her nose, is there?”

  “No, sir, but there is clearly blood being released from her nose and flowing out of her nose.”

  “Oh absolutely. But my point is, it changes direction . . .”

  “Yes, but if I can clarify that. It doesn’t necessarily mean that her body has to move in conjunction with that. If you think about your head, your head’s on your neck and it pivots. So even though the main part of my body is stationary, I can move my head in a variety of ways and actually change the position of my face and head. And my body doesn’t have to really move to do that.”

  “Oh, I agree. But you can’t do it after you’ve been shot through the brain. You would agree with me on that.”

  “Well, I don’t think she’s doing it of her own volition, no.”

  Sanzone tried to pin Harris down on the time it takes blood to dry solid, but she testified that it was all dependent on the variables: the surface, the air flow, and the temperature. She also insisted, “When her jacket moved across the blood, it was wet. And I would say that her head and her jacket moved across the blood at the same time.”

  “But you can’t say that with a reasonable degree of certainty, can you?”

  “Yes, I can. On her jacket I can.”

  “On her jacket that moved across when her head moved across? What is it that scientifically connects those two things?”

  “Because her head is attached to her body.”

  A squabble broke out between attorneys on opposite sides over the questioning. The judge did not directly address the point of either man but did say that the questioning was getting repetitious and needed to wrap up.

  The back-and-forth between Marjorie Harris and Joey Sanzone continued with the forensic expert refusing to agree with any conclusions drawn by the defense. The cross-examination was followed by redirect and recross sessions that turned into sparring matches between the legal teams rather than the delivery of useful evidence.

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