Under cover of the night, p.11

Under Cover of the Night, page 11


Under Cover of the Night

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  Much of the testimony over the next two days concerned Wesley borrowing a truck the week his wife died. Dave Hall relayed the sequence of events surrounding the two times in December 2007 and January 2008 that Wesley borrowed his vehicle. He was followed on the stand by tire store manager Rick Keuhne, who told the jurors about selling tires to the defendant. Then Jesse McCoy took the stand and testified about the car detailing he did for Wesley the day after Jocelyn died.

  The prosecution rested its case, and as expected, the defense filed a motion to dismiss.

  They alleged that twenty-four hours before Jocelyn died, someone deactivated the security system at her home at 7:30 P.M. when she was at a Christmas dinner at Logan’s Roadhouse, and that Wesley did not know the code. Although the defense was correct that the initial readout of the system indicated that it was turned off at that time, it was not an accurate reading. When the security company checked the system after Jocelyn’s death, they discovered that the internal clock was off. It was possible that the system had not been properly set when it was installed or that a power outage had knocked it off track. However, when the times were recalibrated the inconsistency was resolved. Additionally, Sanzone claimed that the Commonwealth did not introduce any evidence connecting his client to the few unidentified, stray hairs and blood collected by technicians at the scene. Finally, he insisted that there was testimony given to show Wesley did not leave Chesapeake until after 4 P.M. and it would have taken more than four hours for him to reach Jocelyn’s home in Forest. The defense insisted on that timeline even though they knew that the prosecution had paperwork that contested the testimony of when Wesley was at the high school, the length of time that it would take to make the drive, and the definitive time that Wesley’s legal team wanted to put on Jocelyn’s death.

  Sanzone added that Marcy Shepherd had opportunity to kill the deceased, and that her actions on the night of Jocelyn’s death were questionable. He wrapped up by claiming that Jocelyn was leading a secret life that no one had adequately explained.

  The defense motion to dismiss was denied.

  • • •

  The defense began presenting its case at 9 A.M. on Wednesday, March 31, 2010. Since they were under no obligation to prove who had killed Jocelyn—just to establish reasonable doubt about whether it was Wesley—their goal was an obvious attempt to demonstrate that people other than their client had motive and opportunity to kill Jocelyn. Their first witness, Amherst County investigator John Tetterton, talked about the identity theft case and Maysa Munsey’s visit to the Amherst County Sheriff’s Department accompanied by another woman on the morning of December 19.

  Jack Tymchen of Verizon was next on the stand. He told the jury that although they knew that Wesley’s phone was in eastern Virginia on December 19 and no calls were received or instigated on it after early morning that day, it did not necessarily mean that Wesley Earnest was in the same location as his cell. It was quite possible that he left his home without his phone.

  Campbell County investigator Robert New explained that there were text messages exchanged between Marcy Shepherd and Jocelyn Earnest in the hours before Jocelyn died, but four of those messages were missing from Marcy’s phone. Although the defense operated on a premise that these missing texts were intentionally deleted to cover up Marcy’s involvement, law enforcement later testified that Marcy showed those messages to them in the immediate aftermath of Jocelyn’s death.

  One of Wesley’s Smith Mountain Lake neighbors told the jury about Jocelyn and Jennifer arriving at Wesley’s house with a moving truck in December 2006. This was the trip with a Penske truck that Jennifer described to the investigators but that the defense attempted to portray as a plundering of Wesley’s home.

  Wesley’s father, Roger Earnest, stepped to the stand next and told the jury about loaning Wesley and Jocelyn $100,000 to purchase a rental home right near their house in Forest. He also talked about Jocelyn demonstrating that she had more proficiency with the .357 revolver than Wesley.

  Court was then dismissed for lunch. Out in the hallway, Investigator Gary Babb was approached by Roger Earnest, a former California state trooper. They didn’t discuss anything about Wesley but just started talking together like old cops often do. Babb wondered what Roger thought about the case against his son but didn’t dare ask.

  After everyone returned to the courtroom, the prosecution mounted a vigorous challenge to the defense’s presentation of the case. Randy Krantz, the Commonwealth’s attorney assisting Wes Nance in the prosecution, cited case law stating that if a third party’s involvement in the crime were asserted, evidence must be shown that pointed directly to that person’s guilt. He said that the defense did not provide that and no one else had been charged or indicted in Jocelyn’s death.

  Joey Sanzone responded by claiming that it was relevant to the defense of his client because they illustrated events and coincidences that pointed to the possible guilt of others as strongly as the circumstantial case the prosecution made against Wesley. He claimed that the testimony he planned to present would show that some in Jocelyn’s circle of friends had the opportunity and motive to have committed this homicide.

  Judge Updike said he would take the prosecution’s objection under advisement while the testimony continued.

  Maysa Munsey, a long-haired brunette, looked stressed even before she stepped into the witness box. In one hand she clutched a piece of paper that appeared to reporter/blogger Tim Saunders to be a bulletin from Jocelyn’s memorial service.

  The defense hoped to deflect guilt from their client by resting it on Maysa Munsey, the second person to arrive at the home after Jocelyn’s death. She admitted to knowing the code to the security system, to asking Jocelyn to come with her to the Amherst County Sheriff’s Department, to staying overnight at Jocelyn’s home frequently, and to having spent the night with her the weekend before she died. She had hoped to get together with Jocelyn to wrap gifts on December 19 but then found out that she had dinner plans with Marcy.

  Defense attorneys continued to hammer away at third-party guilt, focusing on Maysa Munsey. The defense called a number of Genworth Financial employees to the stand to explain the ability of payroll and human resources—where Maysa worked—to access information like social security numbers and the ease with which others at the company could obtain another employee’s email and individual files. They contended that Jocelyn had learned information about Maysa’s identity theft that could put her job at risk, giving Maysa motive to kill her friend.

  Rodney Wolforth of the state forensic lab in Roanoke testified for the defense that the blood drops found in Jocelyn’s guest bathroom came from a male, but not Wesley. Nor did the blood match any of the twenty-five people connected to the case, including first responders and known visitors to the home.

  Al Ragas, an IT worker at Great Bridge High, told the jury about the conversation he’d had with Wesley just before 4 P.M. on December 19, 2007, and said that he had worked until after 4 that day. On cross, he admitted that his time card showed that he’d left work at 3:26 P.M., but he explained that that was just his lunch break.

  Owen Casey, a forensic computer analyst, testified that Jocelyn’s BlackBerry had been wiped out and he was unable to retrieve any information from it.

  Finally, Wesley Earnest brought the courtroom alive with his unexpected decision to take the stand and testify on his own behalf. He said he’d been at his apartment in Chesapeake on December 19, 2007, suffering from seasonal allergies. He told the jury that Jocelyn was “incredible, fun to be around. I admired her a lot . . . [but] she wasn’t capable of giving me the affection I wanted. She was a great person, a great friend. We had a great friendship and I didn’t want it to drift away.” He reiterated his claim that Jocelyn had told him to have sex with other people but to come home to her. “I wanted more out of a marriage.” When asked about his nickname for Jocelyn, he replied, “Buddy,” with tears in h
is eyes.

  He said he fell in love with Shameka Wright, and that she filled the void in his heart caused by Jocelyn’s lack of intimacy. When the job opportunity arose in Chesapeake, he accepted it because of his separation from Jocelyn. “While you don’t want to lose a friend, someone you adore, you want to get a fresh start and that’s what I was trying to do.”

  Wesley identified the murder weapon as a firearm he’d purchased for Jocelyn for her self-protection. He insisted that he did not kill Jocelyn or harm her in any way.


  The final day of testimony began when the defense called Susan Cropp, a DNA examiner for the FBI. She discussed her comparison of the six unidentified male hairs found in Jocelyn Earnest’s home to samples provided by eight men known to have been in the home. Defense attorney Joey Sanzone asked her if she had tested Marcy Shepherd’s DNA, and Cropp said she had not.

  When she stepped down, the defense rested its case. The prosecution called three witnesses to rebut the defense claim that Jocelyn had been at Logan’s Roadhouse when her security alarm was turned off at 7:30 on the evening of December 18. Restaurant manager Ann Mason said that credit card receipts were preserved for three years, and that she’d been able to locate the one for that Genworth party, which showed that Jocelyn paid the bill at 7:18 P.M. An alarm company official testified that the system was actually deactivated at 7:38. Co-worker Pam Gillespie told the jury that Jocelyn left the restaurant no later than 7:20. These clarifications provided Jocelyn sufficient time to have returned home to shut off the security system herself.

  After another motion to strike the case was made by the defense and denied by the judge, the jurors were instructed and the closing arguments began. Prosecutor Wes Nance argued, “To find this man not guilty, you have to believe a liar. Wesley Earnest wanted everyone to believe Jocelyn Earnest committed suicide, but he made mistakes.” Itemizing those errors, Nance pointed to when Wesley told the car detailers that he wouldn’t be in Chesapeake on December 19; when he dragged Jocelyn two feet through her own blood on carpet; and when he typed a cold and unemotional suicide note for a woman who was a prolific writer who filled seventeen journals by hand.

  Sanzone countered, “The real story about this case involves two separate days of two separate people whose lives had split.” He pointed to suspicion surrounding Maysa Munsey and Marcy Shepherd, and to the blood drops and hair in the guest bathroom sink that had never been identified. The defense continued on, attempting to make something out of incidental biological evidence left at some time in the past at a location in the home not connected to the crime scene. They wanted the jurors to believe that any number of people could have been there at the time that Jocelyn was killed. “There is great and substantive evidence of other people that did harm to Jocelyn Earnest. If Jocelyn Earnest had two men in her life instead of Marcy Shepherd and Maysa Munsey and she had been keeping the two men apart, kissing one and keeping the other at the house . . . If it was two men, I don’t think any of us would have a lot of trouble with that. Could this just be as old as time? I submit to you that just because it’s two women, it’s not different.”

  Sanzone talked to the jurors for quite some time, injecting suspicion into any possible circumstance to create reasonable doubt. In fact, Judge Updike later described it as “the longest closing argument I’ve ever heard in better than thirty-two years.”

  Nance then delivered the final words on behalf of the prosecution. “I’d like for you to consider murder as a means of solving a problem. Jocelyn Earnest was killed because she is Jocelyn Earnest and who do we know who has a problem with Jocelyn Earnest? [ . . . ] This mysterious stranger doesn’t have to stage a crime scene because nobody knows who they are . . . [The defense] wants you to think about the hair that’s right over there but the forensic evidence right at her body? They want you to ignore that . . . Wesley Earnest lied to you. He lied to you about his actions involving the death of Jocelyn Earnest.”

  • • •

  After nine days, hundreds of pieces of evidence, and more than fifty witnesses, it was now time for the jury to deliberate. But since it was Friday, they were dismissed for the weekend and charged with returning to make their decision on Monday, April 5, at 9 A.M. Less than six hours after reporting in that morning, at 2:50 that afternoon, the verdict was announced: Wesley Earnest was found guilty of first degree murder and of a felony firearms charge. Wesley showed no reaction to the announcement. Jocelyn’s family and friends were visibly relieved that justice had been served. Wesley’s mother, Patricia Wimmer, was disbelieving and distraught.

  • • •

  Wesley’s father Roger Earnest stood at the door when Detective Gary Babb came out of the courtroom. Roger shook the investigator’s hand.

  Babb said, “This is nothing personal.”

  Roger said, “I know.” He left the courthouse and did not return for the sentencing phase of the trial.

  Eight minutes after the verdict was delivered, that portion began with Joyce Young, Jocelyn’s mother, shaking her head as she held a sheet of paper in her hand. The grief of losing her daughter, she said, “felt like a wild animal inside me wanted out . . . Next month is Mother’s Day and my birthday falls on Mother’s Day this year. I won’t get a hug. I won’t get a kiss. I won’t get an ‘I love you, Mom’ anymore.”

  Jocelyn’s sister, Laura Rogers, added, “We expected to grow old together, to attend yard sales at eighty years old.”

  Wesley bowed his head and shook it from side to side as their testament to endless grief filled his ears.

  • • •

  Judge Updike instructed the jury on possible sentences. It took the panel half an hour to return and recommend the maximum: Life in prison, a $100,000 fine, and three more years of prison for the firearms charge.

  Wesley’s mother, Patricia Wimmer, looked about to collapse to the floor when she heard those words. She told reporters: “I feel that the jury did what they thought that they needed to do, but I think it was done on speculation and distortion of the facts. My son is innocent. I believe that in my heart. I love Jocelyn, but my son did not murder this woman.”

  Later that afternoon, Jocelyn’s mother, father, sister, and two friends came out of the Commonwealth’s attorney’s office. Holding up two enlarged photos of Jocelyn, the friends read the following statement: “On behalf of Jocelyn’s family, friends, and those who cared for her, we are pleased with today’s verdict. We realize and appreciate the efforts of all involved—the Commonwealth Attorney’s office, law enforcement personnel, the Bedford County court system, and members of the jury. At this time we hope that Jocelyn can be remembered for her character, integrity, and wisdom. As we continue the next leg of our ‘new normal’ journey, we will always remember her words of encouragement said with a twinkle in her eye and her infectious laugh filling the air.”


  After the verdict was rendered, Jocelyn Earnest’s family finally had free access to the home where their loved one had lived and died. Her sister and mother, Laura Rogers and Joyce Young, called her friend Jennifer Kerns, who accompanied them to Pine Bluff Drive.

  All three hearts clenched and burned when they looked at the cutout chunk in the carpet where Jocelyn fell to the floor and died. Other than what forensics had taken, nothing had been altered since Jocelyn’s death more than two years earlier. Jennifer cleaned out the litter box and the refrigerator, now filled with moldy and sour food. The pain of their loss swelled as they went through her belongings.

  The prosecution had taken possession of Jocelyn’s private journals pretrial, not allowing family, friends, or media to read them at length. They felt a bit freer with the contents after the trial was over. They gave family and select friends copies of one poignant section where, after expressing her fears that Wesley might take her life, Jocelyn said good-bye to the people she loved.

  • • •

  On April
22, 2010, Jocelyn’s mother, father, and sister filed a lawsuit against Wesley Earnest, Sanzone & Baker PC, and Shameka Wright over the insurance proceeds from the fire at the lake house. Under the provisions of Virginia’s slayer statute, they alleged that Wesley was not entitled to profit from Jocelyn’s death in any way. They claimed that Wesley had unlawfully kept the couple’s home and properties, including Jocelyn’s personal effects and jointly owned vehicles. He then, the documents read, used insurance payments to pay his lawyers and his legal firm knew when they accepted the money that Jocelyn’s relatives had a claim on it.

  Joey Sanzone wrote on behalf of his client that the family was not entitled to the money. “The insurance proceeds, which the plaintiff alleges to exist . . . were not acquired as a result of the death.”

  Although officials with the sheriff’s office suspected that Wesley burned down the house before the bank could foreclose and before his insurance policy could lapse, no one was ever arrested or charged in the blaze.

  • • •

  A letter from Patricia Wimmer was published in the Bluefield Daily Telegraph in West Virginia on May 10. It began, “My son, Wesley Earnest, did not kill his wife, Jocelyn Earnest. He is innocent and your help is needed to get the verdict set aside.”

  She went on to itemize the points the defense had raised as issues of reasonable doubt: the length of the drive from his home, the unidentified drop of blood in the bathroom, and the credibility of the fingerprint evidence. She also mentioned things that she either misunderstood or remembered incorrectly from the trial, such as the claim that the prosecution’s linguist testified that Wesley could not have written the note found at the scene (he actually said he couldn’t make a statement regarding that), or that Jocelyn’s body had been moved at least eight hours after her death but before police arrived (no one offered evidence of this claim at trial).

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