Under Cover of the Night

by Diane Fanning

  “We talk about a lot of minor points, and we object and y’all go in and out, but let’s just think about that for a moment. The fake suicide note has the fingerprints of the husband who says she’s stealing from him, harassing him, stalking him, emptying out [ . . . ] his lake house. This is contentious.

  “Does Wesley Earnest need to know the alarm code? He climbs through windows, ladies and gentlemen. He assumes her identity when he takes that personal writing, that timeline, and puts the same song and dance that you heard yesterday. They’re almost exact quotes. That’s the manipulation that she got sick of. That’s the manipulation she refused to have contact with anymore. She stood up to him.

  “No, that same manipulation, all the folksy stories that he told with a smile yesterday when he’s on trial for murder, that’s what pulled [Taco Bell employee] Mr. Stewart in. He thought Wesley was going to lose his job. That’s what he told you. He thought he was doing somebody a favor. That’s the manipulation you saw at work yesterday. And that’s the manipulation that was at this crime scene.

  “Now, let’s talk a little bit about Jocelyn’s friends and Marcy Shepherd [ . . . ] He wants you to let a murderer go because of missing text messages? And why do we have that report? Because Marcy Shepherd told the police [ . . . ] And one of the missing emails is: I’m going to my counselor. And you know the other thing that’s missing: a motive to kill. In a text message?

  “[ . . . ] And where is Jocelyn after those missing text messages? She’s at her counselor’s and she’s happy, because she doesn’t know what’s chugging like a freight train up 460 waiting for her. He doesn’t need the alarm code. And, of course, everything’s fine and dandy, except for in August of 2007 when Jocelyn shows that timeline. What did Susan Roehrich see? She saw anger. [Jocelyn] looked violated. She was scared. That proves identity right there.

  “Ladies and gentlemen, you heard from a tire store manager, a preacher, forensic scientists. You heard from Wes’s friends that he’s lied to. You’ve heard from a variety of people who have told you he committed this crime, but there’s another person, a silent person who told you he committed this crime. And that’s Jocelyn Earnest. That woman was scared of him. And the position of her body says that she was killed by somebody strong and somebody tall. And I know what Mr. Sanzone’s trying to do, but let’s talk about that old trick. That shot was straight.”

  Wesley, Nance argued, had already confessed to the crime by his actions. “When he’s wondering how he’s going to get arrested, he’s telling you he did it. When he says, ‘It’s my three-fifty-seven,’ he’s telling you he did it. When he says, ‘It looks like a suicide over a failed relationship,’ he’s telling you, ladies and gentlemen, that he did it. And finally [ . . . ] he’s reading from a script. It’s the same script he scribbled on the timeline. It’s the same script that he fed y’all yesterday. But it’s the script also that he left at the scene, the staging of the crime scene. What’s he trying to tell you? The murderer is trying to tell you: ‘I killed myself over debt because there’s my suicide [ . . . ] that’s my gun.’ The people who loved Jocelyn, what did they tell you? She was happy, and she didn’t have a gun.

  “He is reading from the script he planned,” Wes Nance said, pointing at Wesley Earnest. “Ladies and gentlemen, don’t let him get away with it.”

  • • •

  The judge’s instructions to the jury were typical fare, pointing to the need for unanimity in any determination of guilt. He explained the law necessitating secrecy of the identity of the alternates prior to the commencement of deliberations. He pulled two jurors then sent the remaining twelve back to the deliberation room at 2:28 P.M. on November 19, 2010.

  The jury returned with a verdict four hours later, at 6:57 P.M. Jocelyn’s family and friends all clutched one another’s hands—sharing their fear, their anxiety, their hope.

  The signed verdict document passed from the foreperson to the clerk. Then the words of the verdict filled the courtroom: “We, the jury, find the defendant guilty of first degree murder as charged in the indictment. We, the jury, find the defendant guilty of use of a firearm in the commission of first degree murder as charged in the indictment.”

  Wesley Earnest showed no reaction when the verdict was read.

  FORTY-FIVE

  Jocelyn Earnest’s mother, Joyce Young, took the stand first during the penalty phase of the trial, which started just minutes after the verdict was announced. Inconceivable pain was etched across every inch of her face.

  Wes Nance asked, “Could you tell the jury about Jocelyn?”

  “She was a genuine person. She was somebody that you would want as a friend, somebody that you could trust. She would help people. She was loving. There’s just so many adjectives that I could use for her. She was part of me, a very deep part that I’ll never have.”

  “Ms. Young, how has your daughter’s murder affected you?”

  “It’s something you never expect to bear. The loss is like no loss that you ever have [ . . . ] There are no words to describe the loss. It’s so deep. And it’s not one that will ever go away. It changes you forever. I’m not the person that I used to be. I’m not the mother that I used to be. And I’m not the wife that I used to be. I’ll never get that person back. It just feels that something so precious has just been ripped from me. I just feel like—at times, like some wild animal just wants to get out. I just need to scream. And I just know that I’ll never get her back. I’ll never be able to celebrate anything with her. Holidays—like Thanksgiving—is coming up. She’d always come home for Thanksgiving. And we—my other daughter—we’d always go shopping Black Friday. And we’d get up really early and shop all day and into the night. And it was something we did every year. And Christmas—Christmas is so special. And we’ll just never have that. It just changes [ . . . ] everything. You just—like I said—there are no words to describe the loss. There just aren’t any words. It goes way beyond her. She was just a single, intelligent, beautiful, caring person. And I loved her dearly.”

  After that passionate response of grief, the defense wisely had no questions for the witness.

  • • •

  Another layer of pain was excavated when Bill Branham stepped into the box. When asked to introduce himself to the jury, he went straight to the memory of his daughter. “My name is Bill Branham. And I’m Jocelyn’s father. And I live in Little Rock, Arkansas. So I didn’t have as much time to spend with Jocelyn as I would have liked. But the times we had together were wonderful . . . I was planning on retiring in early 2008, and I was looking forward to being able to spend more time with Jocelyn.

  “Jocelyn had developed a hobby of photography, which I’d been doing for, oh, twenty years or so, serious photography. And Jocelyn had become a good photographer. She was really learning a lot of stuff. And, you know, when I’d buy new equipment, I’d pass my old stuff down to Jocelyn just to learn on. And that Christmas 2007, I had gotten her a really nice macro lens that enables you to take real close-ups of flowers and insects and things like that, because she really enjoyed that and I enjoyed it. And I was looking forward to teaching her how to use that . . . I won’t have those outings. I really liked this part of the country and thought we’d have a great time exploring.

  “And I can still hear in my mind when we’d talk on the phone, she had this little . . . giggle, this kind of catchy laugh. And I hope I never get to the point where I can’t hear that or I forget what her laugh sounds like because I’ll never hear it again in real life. And I have all those wonderful memories that we shared . . . They’re still good memories, but they have this touch of sadness, because Jocelyn’s not here anymore. She was taken away. And I miss her. My life is not going to be the same. It hasn’t been the same since December 2007.”

  Again, the defense refrained from any cross-examination.

  • • •

  A third branch of agony sprouted from the testimony
of the next witness, Jocelyn’s younger sister, Laura Rogers. Wes Nance asked, “What did Jocelyn mean to you?”

  “Jocelyn was just everything. My parents divorced when I was two. And she was like a mom and a best friend, my big sister when I needed her to be. She was my confidant and my yard sale buddy. She would teach me things, but she was also learning from others. She was just the best person that I’ve ever known. She was not judgmental. She would help anyone who needed it [ . . . ] She’s beyond words really [ . . . ] I miss her terribly.”

  “Laura, how has the loss of your sister impacted you and your family?”

  “I’ll never, ever be able to forget having to tell my parents that my sister was killed. I’ll never be able to take the memory away of my dad being interrupted at dinnertime to hear the news. He had driven up to Pennsylvania to come home for Christmas and never got to see her. I remember my sister was with me the first time when I found out I was pregnant. And she had been with me through all my miscarriages. See, the reason I didn’t get to see my sister when she was home that weekend was because I had had a miscarriage. And we had talked on the phone and she said, ‘That’s all right, I’ll see you again in, like, a week.’ And I’ll never get that week. And I carry that forever. But through the grace of God, I now have a one-year-old son, and I know she’s watching over him. And he will definitely know about his Aunt Jocelyn.”

  When she finished, the defense again passed up the opportunity to ask any questions.

  • • •

  Another type of immeasurable sorrow was carried by Wesley’s mother, Patricia Wimmer. Joey Sanzone asked, “What type of person was Wesley growing up?”

  “He was always my pride and joy. He was obedient. He was always there wanting to help me.”

  “What do you mean by that?”

  “Well, anything in the house or round outside, whatever, he’d be there . . . We were kind of companions an awful lot, especially after his dad and I got divorced when he was about twelve [ . . . ] And he would be the little man around the house, change locks on doors or whatever for me [ . . . ] One of our fondest memories was when he graduated from high school and he and I took a trip out to California to visit my family, my mother and sisters.”

  “Wesley and Jocelyn, did you spend time with the two of them?”

  “Yes, I did.”

  “Did you see any disagreements between the two of them?”

  “No [ . . . ] They were like two peas in a pod [ . . . ] My first memories of them is laying on the floor watching sports games together on TV [ . . . ] He always respected her.”

  “It’s been said that [ . . . ] anything a man could do, Jocelyn could do just as well. Did you find that to be true?”

  “She was a trooper. She was [ . . . ] competitive [ . . . ] She was always good [ . . . ] And they would do things together and, yeah, they got along great.”

  “Since all this has taken place, you’ve spent a lot of time visiting Wesley?”

  “Yes.”

  “Have you seen him angry?”

  “No, no.”

  With courtesy to the injured loved ones equal to that demonstrated by Joey Sanzone, Wes Nance had no questions for Patricia Wimmer.

  • • •

  Before the jurors who found Wesley guilty considered the sentences, the attorneys gave their final arguments.

  Wes Nance thanked the jurors again and said, “When Wesley Earnest took Jocelyn Earnest’s life, he didn’t just kill one person. He destroyed a whole family. And I ask you as you consider his fate to consider that this was a crime that took planning, that took a cold-hearted approach of a gentleman who could drive for three and a half hours to get to his wife’s home, to shoot her in the back of the head. That gives you an indication of the type of individual that you will be presenting your fate to. Thank you.”

  Joey Sanzone mentioned Wesley’s lack of a criminal record, noting, “He’s forty years old essentially and has lived his life as a law-abiding citizen for all these years.” He highlighted the range of punishments available to the jurors, even in first degree murder cases, “because some are worse than others. Some defendants are worse than others. So I would simply ask you not to let emotions rule, but to consider what the law means when it does create a range such as that [ . . . ] You made your finding. But as you complete it, I would just ask that you add a modicum of mercy in your decision of a sentence of Mr. Earnest. Thank you so much.”

  Judge Updike reminded the jurors that their decisions on punishment must be unanimous. The jury returned to the deliberation room at 7:26 P.M. They had a question about parole, and were told that no, Virginia law says that no person sentenced to incarceration for a felony was eligible for parole. “The defendant will not be eligible for parole upon any sentence imposed. Does that answer your question?” the judge said.

  “Yes, sir. Thank you.”

  At 8:30 that night, the jury returned with their decision. “We, the jury, having found the defendant guilty of first degree murder, fix his punishment at imprisonment for life. We, the jury, having found the defendant guilty of use of a firearm in commission of murder, fix his punishment at imprisonment of three years.” All the color drained from Wesley’s face as he turned and whispered to his mother before being led from the courtroom.

  • • •

  More often than not, incarceration was a place where inmates put on weight, but not Wesley Earnest. Dressed in a dark suit, he was rail thin with sunken cheeks for his sentence hearing on Tuesday, January 25, 2011.

  Judge Updike asked, “Do you have a final statement?”

  “No, sir,” Wesley replied.

  The judge passed down the sentence recommended by the jury: life in prison without parole and an additional three years for use of a firearm in the commission of a felony.

  Joey Sanzone told reporters that the defense strategy was constrained by the rulings of the judge. “A lot of the things we wanted to tell the jury could not be told.”

  He announced his intentions to appeal and indicated that his effort on behalf of his client could possibly challenge existing case law in Virginia.

  On November 29, 2010, Joey Sanzone had filed documents concerning the planned testimony of Jennifer Mnookin, the UCLA law professor engaged in a study about the reliability of partial fingerprints. It was the first step toward an appeal on the grounds that when the judge did not allow her to testify as an expert witness and did not let her offer an opinion contradicting the Commonwealth’s expert, Wesley Earnest did not get a fair trial.

  • • •

  Oral arguments were heard before a three-judge panel in the Court of Appeals of Virginia on September 12, 2012. Wes Nance was present, as were members of Jocelyn’s family. Nearly three months later, the decision reached its ruling that the court had not abused its discretion, and the verdict issued was affirmed.

  On August 2, 2013, the Virginia Supreme Court turned down the defense’s appeal of that decision. Joey Sanzone was disappointed. “We believe that there are fundamental errors in the reliability of fingerprint evidence and jurors should be informed of that.” Because of his faith in his argument, he still hoped that, in time, new developments in forensic science would prove him right. Sanzone sent a letter to the forensic science department requesting that they preserve the blood and DNA evidence in this case.

  Now incarcerated at the Sussex I State Prison in Waverly, Virginia, Dr. Wesley Brian Earnest is simply inmate number 1426979.

  • • •

  The end of appeals helped the family and friends of Jocelyn Earnest to move on with their lives. Still, every holiday, every birthday, every memory continued to be tinged with sorrow.

  Jocelyn’s sister, Laura, contributed often and at length on an online memorial page but never with more poignancy than when she wrote: “This morning, when I was outside, I heard a bird crowing so loudly I felt like it was right be
side me. As hard as I looked to find it, I did not see it anywhere. I began to cry and then I smiled. This warm feeling came over me. I knew the bird was there, but I didn’t see it. Just like you are still with me, I just can’t see you.”

  AFTERWORD

  Writing Under Cover of the Night brought back memories of another woman I wrote a book about: Susan McFarland in Gone Forever. Jocelyn, like Susan, was professionally successful and cherished by co-workers, friends, and family. Both seemed to have lifestyles that did not put them at risk of dying violent deaths. But these women were caught up in disintegrating marriages with narcissistic spouses who hid a secret side of their lives. Both of their husbands were convicted of their murders.

  According to the United States Bureau of Justice, 3.8 percent of all homicides in this country involve women dying at the hands of their husbands. Although three-quarters of these killers had prior criminal records, it was not the case with Wesley Earnest or Richard McFarland. Depending on the study reviewed, 67 to 80 percent of men who murder their wives have physically battered them beforehand—for many it was escalating violence that finally turned fatal. Yet neither of these women were injured by their husbands until the ultimate, fatal act of domestic violence that ended their lives.

  What can we do to prevent this loss of life? Awareness of the reality that this possibility exists is the first step; recognizing narcissism and the dangers it presents is another.

  A review of the symptoms in the DSM-IV-TR reads like a description of Wesley Earnest. Narcissists possess a “grandiose sense of self-importance,” “exaggerate their achievements and talents,” and are “preoccupied with fantasies of unlimited success.” They believe that they are “special or unique,” display “arrogant, haughty behaviors or attitudes,” believe “others are envious,” and “require excessive admiration.” Many people who encountered Wesley Earnest felt just that way about him. How many times had Wesley told his co-workers and friends that he was independently wealthy? What about his frequent insistence on being addressed as Dr. Earnest?