Under Cover of the Night

by Diane Fanning

  “No, that is not correct.”

  “Oh. Is there no longer any fingerprint department since you have DNA?”

  Sanzone broke into the interchange. “Your Honor, I’m going to ask that I be allowed to revisit some prior testimony if we keep going on this line.”

  “All I can do is rule on things as they come in,” Updike said.

  “I object to the questions and the way they’re being asked,” Sanzone said.

  Krantz jumped back into the fray. “My point, Mr. Wolforth, is just because there’s now been DNA since 1996, that didn’t shut down all the other parts of the lab, did it?”

  “No, it did not at all.”

  “You as a forensic scientist would acknowledge that all the other parts of the lab are reliable sciences and are depended upon?”

  “Judge, I object to that,” Sanzone said. “We can’t testify about anything other than the DNA.”

  With the judge’s permission, Krantz rephrased the question. “These other departments still exist.”

  “Yes, they do.”

  After an inordinate amount of legal squabbling, Krantz moved on to the area of touch DNA and asked the witness about the testing of the murder weapon and ammunition.

  Wolforth explained, “A swabbing from the barrel, cylinder, and frame of the firearm was done, and no DNA results were obtained. The shell casings and cartridges were also swabbed, and no DNA results were obtained.”

  “You didn’t find anything there belonging to Jocelyn Earnest?”

  “I found no DNA,” Wolforth responded.

  • • •

  The next witness was Roger Earnest, father of the accused. He dragged a heavy emotional burden into the witness box. He testified that he had a good relationship with his son Wesley, and that he’d had a good one with his daughter-in-law Jocelyn as well. They’d visited each other’s homes, and Roger said that he’d helped the couple out when he could, such as with the loan he made to them for $100,000 when they bought a rental property.

  “With regard to the one hundred thousand dollars, are you still owed that money?” Sanzone asked.

  “Yes. I allowed them to pay it monthly, you know, a stipend. I guess you could call it interest. I considered it principal.”

  Sanzone asked him about target shooting at his home in 2002, and Roger said that Jocelyn had proved to be a better shot with the .357 than his son.

  Exhibiting the murder weapon, Sanzone asked, “Who had this gun or one like it on the day that y’all were up there?”

  “Jocelyn.”

  “Did she bring it down to where you were shooting?”

  “Yes, sir.”

  “Did she keep it with her when she was down there?”

  “Except during the time that Wesley fired it, yes. After that, she kept possession of it.”

  Krantz asked Roger about the loan and payments. Roger said he’d received $18,000, which they called interest, but that he didn’t want to earn interest off of them, so he’d given the money back to Wesley. To date, he had not received any payment on the principal.

  Krantz said, “Would it surprise you to know then that Wesley had told Jocelyn that you had consulted two attorneys who were intending to sue her over the hundred thousand dollars? Would that surprise you?”

  “I wouldn’t have any knowledge of that,” Roger said.

  “Did you ever have any plans to sue her?”

  “I had no plans. I did consult an attorney . . . just for advice and he told me I would have to sue. And I wasn’t going to do that.”

  Roger testified than he had only known Shameka Wright for two years or less, or since 2008 or 2009, so Krantz asked, “Would it surprise you to know that your son was having an affair with Shameka as far back as 2004?”

  “I don’t know.”

  Sanzone objected and the judge responded, “My ruling is going to be the same as earlier rulings I made in a different context. This witness’s knowledge of any relationship between the son and Ms. Wright I find irrelevant. Objection sustained.”

  The prosecution attempted to enter into evidence a letter of claim against the estate of Jocelyn Earnest for the one hundred thousand dollars, signed by Roger Earnest. Krantz argued that it proved an inconsistent statement and went to the credibility of the witness. Sanzone countered that it was collateral and irrelevant because it was a claim, not a lawsuit. The judge sided with the defense—the letter was not admitted and the witness was dismissed.

  • • •

  Joey Sanzone called Investigator Mike Mayhew back up on the stand to identify photos of the gun safe in the basement of Jocelyn’s home and of the holster found inside of it. Then he produced the actual holster along with the murder weapon and asked, “Will you stand and see if that gun will go into that holster?”

  Mayhew slid it in and said, “Yes, sir, it does.”

  On cross-examination, Krantz asked, “What did you have to do to get to that gun safe?”

  “Actually, there were [ . . . ]bed frames and headboards and bed mattresses and boxes stacked up. We actually had to move . . . a lot of stuff to get in there.”

  “The gun safe wasn’t accessible?”

  “No, sir, it was not.”

  “It was locked, wasn’t it?”

  “Yes, it was.”

  “And do gun holsters have serial numbers?”

  “No, sir. Not that I am aware of.”

  “Did you find any ammunition at the house associated with that firearm?”

  “No, sir, I did not.”

  • • •

  Cindy Dawn King, a teacher at Great Bridge High School, stepped up to the stand next. She testified that Wesley had supervised and critiqued her teaching methods, providing her with his report on her performance on the afternoon of December 20, 2007.

  When it was Wes Nance’s turn to question the witness, he said: “You made some observations about Mr. Earnest during the time that he was evaluating you that morning, correct?”

  “Yes, sir, I did.”

  “You noticed that he wasn’t paying much attention to you.”

  “Yes, sir, I did.”

  “And you thought, ‘This is going to be the easiest evaluation I’ve ever had.’”

  “I thought that.” Cindy went on to mention that Wesley had left the classroom at one point because, according to her students, he had to answer a call on his cell phone. After an objection on hearsay grounds, Nance wrapped up.

  • • •

  Al Ragas, technology liaison and technical support specialist at Great Bridge High, testified that he’d known Wesley for five years and thought he was efficient and conscientious.

  He said that he had seen Wesley throughout the day on December 19 and met with him at 3:30 that afternoon to discuss a student’s misuse of the computer. When they finished dealing with that matter, Al said, he punched out, a little bit after 4 P.M. On December 20, he told the jury that he had seen Wesley at the school at 7:35 in the morning.

  On cross, Krantz asked, “On the nineteenth, you didn’t notice anything unusual about Mr. Earnest [ . . . ]?”

  “Yes, sir.”

  “Nothing?”

  “No, sir.”

  “And did Mr. Earnest ever complain of being ill that day to you?”

  “No, he would not have.”

  “What time did you punch out?”

  “I believe it was four-something that I punched out.”

  “You didn’t punch out at three twenty-six P.M.?”

  “Three-twenty-six P.M. for lunch break [ . . . ] I was called at three thirty where I went to see Dr. Earnest.”

  “So if we look at your time sheet, it will say you punched out at three twenty-six, correct?”

  “Exactly.”

  Krantz moved on to other topics, then asked, “Did you go to his h
ouse?”

  “I’ve been to his house.”

  “Did you go there for fun?”

  “No.”

  “Did you go there for work?”

  “Yes.”

  “What did you do at his house?”

  “I did trim for him,” he said, referring to the carpentry work he did at Wesley’s lake home.

  “And where was the house located?”

  “At Smith Mountain Lake.”

  “So he was your employer?”

  “Yes.”

  “He paid you?”

  “No.”

  “You did it for free?”

  “No.”

  “Well, did he pay you or did you do it for free?”

  “He didn’t pay me and I didn’t do it for free.”

  “How were you compensated?”

  “He said that if I worked on the house then my wife and I would be able to maybe use it one time for a little getaway.”

  “I understand. And did you do that?”

  “No.”

  THIRTY-NINE

  The thought of the next day of the trial on November 18, 2010, sent many observers into a state of heightened anticipation. The defense had promised that Wesley Earnest would enter the witness box. Would they honor that commitment?

  The day started with the defense calling Jack Tymchen of Verizon Wireless. At the time of crime, he was working at Alltel as an operations manager for the wireless network in central Virginia. Jack testified that when a call came from Rustburg to Wesley’s phone, the phone registered at the Portsmouth switch, which covers the whole eastern part of the state. He told the jury that there was nothing in the records to indicate that the phone ever left that area.

  Assistant Commonwealth’s Attorney Wes Nance used his questions to establish that the only occasion Wesley had actually answered his phone during that time period was on the morning of December 19 and the morning of December 20, 2007. Any calls that came to his phone in between those times went unanswered. Nance said, “That phone could have been sitting on a nightstand the entire time, couldn’t it?”

  “Yes, sir,” Jack said.

  “And there’s no way to prove otherwise?”

  “That is correct.”

  On redirect, Sanzone had the witness explain that there were a lot of reasons why the phone might not have been answered: it could have run out of charge, been out of the service area, or been turned off. Nonetheless, the damage had already been done.

  • • •

  The prosecutors were not happy when a young man named Wayne Stewart stepped into the witness box. He was in the courtroom to deliver an alibi for Wesley Earnest.

  Wayne worked a 4 to 8 P.M. shift at Taco Bell on Grassfield Parkway in Chesapeake, located close to Great Bridge High. He had not testified in the first trial because when investigators questioned him earlier, he’d gotten confused about dates and had not been certain of which day Wesley had been there. But now he testified that on December 19, 2007, he saw Wesley come through the drive-in around six o’clock and place an order for a Grande Meal—ten hard tacos and ten soft tacos. He said he remembered Wesley’s visit there that night because it had been a bit of a hassle to take care of him.

  On cross, Krantz came right to the point: “Do you recall telling the members of the Bedford County Sheriff’s Department you . . . remembered him coming in, but you didn’t know what day it was? Is that right?”

  “Yes, sir.”

  “And you also told them that Mr. Earnest came back to you and tried to get you to remember, isn’t that correct?”

  “Yes, sir.”

  Sanzone fired back with questions on redirect: “Mr. Stewart, did Mr. Earnest come back and see you . . . the following week?”

  “Yes, sir.”

  Sanzone produced a document containing a prior consistent statement that he was preparing to hand to the witness. That set off objections from the prosecution that led to the jury being removed from the courtroom. The defense claimed the paper contained Wayne’s recollection about Wesley’s visit the week after Jocelyn’s death. Sanzone said the witness would testify that the store manager wrote and signed it immediately after that visit and before Wayne was ever interviewed by Bedford County. The prosecution insisted that because someone else wrote it, it was hearsay; and furthermore, there was no foundation to verify the date of its creation.

  The judge said, “The statement is not barred by the hearsay rule because it is not being offered as proof of its content, but rather, it’s being offered as proof that the statement was made. It is not, however, substantive evidence. It relates only to credibility . . . That’s my understanding of the law and that will be the understanding that I apply here.” Updike ruled the paper admissible, but not its contents.

  The defense elicited testimony that Wesley came in on Christmas Eve or Christmas Day to ask Wayne to write a statement about his visit the prior week.

  Then, Krantz nibbled at him again: “You remember Mr. Earnest coming through and ordering that meal?”

  “Yes, sir.”

  “You don’t know whether or not it’s on the nineteenth, though, do you, sir?”

  “Not really, sir.”

  “Do you remember being interviewed by the Bedford County Sheriff’s Department?”

  “Yes, sir.”

  “In fact, you told them that you probably shouldn’t have signed that statement: isn’t that correct?”

  “Yes, sir. I thought I was helping him out because I thought he was losing his job or something like that. If I would have known it was anything like this . . .”

  “You wouldn’t have signed it, would you . . . ?”

  “No, sir.”

  On further redirect, Sanzone asked Wayne if he’d told the investigators that he’d signed the document and believed it to be true and then asked: “And did it scare you when the police came?”

  “Yes, sir, because I thought I was in trouble, you know. That was the only thing.”

  “Does it scare you being here today?”

  “Yes, sir. I’ve never really been in court for real.” Wayne went on to tell the jury that to the best of his recollection, Wesley did place that order on December 19 and he had no intention of deceiving anyone.

  Wayne seemed to be trying to please everyone, but it was obvious that all he really wanted was to get off the witness stand and go home. After a bit more back-and-forth with both attorneys, the miserable experience was finally over.

  • • •

  It is difficult to comprehend the living nightmare faced by the mother of the accused, Pat Wimmer, but she took the stand seemingly firm in her belief in the innocence of her son. After establishing her identity, Joey Sanzone asked, “Did you know Jocelyn Earnest?”

  “Yes, I did.”

  “How did you and Jocelyn get along?”

  “We got along real well.”

  “And you knew her for many years?”

  “Yes.”

  “When Wesley separated from Jocelyn, did you meet Shameka Wright?”

  “No, I did not.”

  “Have you met Shameka Wright at some point after the separation?”

  “I have, yes.”

  “And do you get along with Shameka?”

  “I do.”

  “Would you say your relationship with Wesley has continued to be good all these years?”

  “Absolutely.”

  “Back when Wesley and Jocelyn were separated did there come a time when you went to the lake house [ . . . ] and saw the lake house in a different condition inside?”

  “Yes, the furniture had been removed.”

  “Can you tell the jury a little about what you saw inside the house as far as how much had been removed?”

  “[When] you first walked in, the kitchen was on the right, and the
re’s a big, what I call, a great room in the front. And so when I first went in my first impression was that it was empty, it was bare . . . I believe there was like two couches in there, maybe a love seat before, about a week or so before we were there, an oversized recliner chair, coffee tables, end tables, a big screen TV—I don’t know how big but bigger than the one we have—a couple scatter rugs . . . That was gone. There were bunk beds . . . office supplies—that sort of thing was gone.”

  “Bare is the word you used?”

  “Yeah. The front room, like I said, it was bare. Now, there was some things still left in some of the bedrooms, but the front room itself was void or bare of furniture.”

  “You said office supplies were gone?”

  “What I noticed was the computer paper . . . Also, cleaning supplies, including, like, toilet paper, that sort of stuff was gone.” She went on to describe the furniture she and her husband had given to Wesley to replace what had been removed.

  Sanzone asked, “Did there come a time later when Wesley told you that he needed to change his living arrangements in Chesapeake?”

  “Yes, he did.”

  “And did you have a suggestion and an offer as to what he could do for a few months until the next year?”

  “My husband and I have a travel trailer. And so I made the suggestion—”

  “A recreation vehicle?”

  “It’s twenty-seven foot long [ . . . ] I made the recommendation that he stay in that because we had noticed around about in different campgrounds they have provisions that you can leave it for a few weeks, a few months. And we found the Chesapeake Campground [ . . . ]”

  “And did you put any limitations on how long he could use it or anything of that nature?”

  “Well, we were shooting for April, if he could find something before spring, but we figured that it could also go to June when school was out. So it was not a set limit [ . . . ]”

  “Did you also help him out by going down and making the arrangements?”

  “Yes, we did.”

  “Were you there when that was done?”