When the jury returned to their seats, prosecutor Wes Nance called Deputy Jason Jones to the stand. “I arrived at the scene with a backup officer and I noticed two women standing on the front porch of the residence. And they appeared to be crying. We walked up, asked them what was wrong. They said that their friend was lying inside and they thought she was dead. We entered inside the house. I noticed when we entered inside—I was the first one that entered. I noticed that it was extremely hot. I looked to my right. I saw a white female lying on her back, appeared to be unresponsive.”
The Commonwealth used Deputy Jones to enter photographs of the house exterior, Jocelyn’s body, the thermostat, and the firearm into evidence as he described the pictures and his actions at the scene.
Joey Sanzone stepped up to cross-examine Deputy Jones. “Deputy . . .” he said, “if somebody is concerned about the safety of an elderly person, a friend, a husband in a house and they’re not responding to the door—you get called in to those kinds of situations fairly frequently, don’t you? ”
“Yes, sir.”
“In fact, doesn’t the sheriff’s department encourage people to do that sort of thing so that you can assist? You’re professionally trained?”
“We provide a service,” Jones said. “It’s called welfare check and—just to go and check on the well-being of people. They may have a family member that lives maybe in another jurisdiction. And we go by if they can’t, make contact with them, just do a well-being check and make sure they’re okay.”
Sanzone continued, “Now, on the day that we’re talking about here, December twentieth of two thousand seven, no one called you that morning to ask that you go by and check on this residence, did they?”
“No . . .”
“And the first . . . you heard about anything at Jocelyn Earnest’s residence was a call when you went there and these two women were there.”
“Yes, sir.”
“Once you assessed the situation you really wanted to preserve the scene of whatever was going on there, didn’t you?”
“Yes, sir, because I didn’t know what I had at the time.”
Sanzone prodded, “But you couldn’t control what happened before you got there.”
“No, sir.”
“And when you got there the house was open. You could get in.”
“Yeah.”
“And you have no idea of your own personal knowledge, what may have gone on in that house concerning the body and those two people before you got there.”
“At that time, I didn’t know.”
“Could not have protected that crime scene.”
“Not before I got there, no, sir.”
Sanzone asked if he checked identification to be certain that Maysa Munsey and Marcy Shepherd were who they claimed to be.
“I did.”
“. . . Did you ask them to remain until the investigators got there?”
“I did.”
“Because that’s just standard operating procedure.”
“Yes, sir.”
Sanzone went on to the point that was pivotal to the defense strategy. “Were you informed of any romantic relationship?”
“No, sir.”
“And when it came to the two of them, after you arrived, they weren’t restricted from making phone calls or anything of that nature, were they?”
“No, sir.”
When Sanzone had no further questions and Nance had nothing on redirect, Deputy Jason Jones eased out of the witness box with great relief.
• • •
Investigator Gary Babb stepped into the witness box next. He had served in law enforcement for more than twenty years, starting in Bedford County investigations in 1999. Babb talked about his conversation with Deputy Jones when he arrived at the scene. Then, he moved on to the suicide note. “There was a white sheet of paper, copier paper size, laying facedown. Any writing would have been facedown because it was just white on the outside.
“Before I entered the house I had put on gloves. And I told him,” he said, referring to Jones, “that’s probably the note there. And when I did, I reached down, picked it up by the edges, and turned it like this,” he said, demonstrating how he’d handled the paper. “Looked at it, read it, and placed it back so it would be in the exact position for the forensic guys once they got there.”
Prosecutor Wes Nance used Babb to introduce photographs of the crime scene and the position of the note on the floor, and Babb read the contents of the note to the jury.
• • •
Investigator Mike Mayhew was the next to testify. He had twenty-one years of experience with the Bedford County Sheriff’s Office and had been an investigator for seven years of that time.
He told the jurors that he arrived at 12:48 that Thursday afternoon. “It’s a really pretty neighborhood. Each house is—they keep their yards nice,” he said, noting that the homes were all about three hundred feet apart on both sides of the road, and that the neighborhood was separated from another nearby neighborhood by a little bit of wooded area.
Mayhew described the Earnests’ home, with its wooden front porch and rounded picture window in the front and the swimming pool and toolshed behind it. He took photographs of the exterior of the home and the surrounding landscape before moving inside.
The next morning, November 10, 2010, Mayhew again took his place in the witness box as Wes Nance continued his direct examination. Mayhew had ended his testimony the day before with a discussion of finding firearms and ammunition in the walk-in closet of the master bedroom and elsewhere in the home, but today picked up with a description of Jocelyn’s green Honda, backed into the driveway. From the trunk of her car, he collected a Toshiba laptop for forensic analysis.
On cross-examination, defense attorney Joey Sanzone directed the investigator to three documents: one showing the purchase of the murder weapon on July 14, 1999; another showing that Wesley completed the requirement to get that permit on April 24, 1999; and a third dating Wesley’s concealed weapons permit on April 30, 1999. Then he said, “So both the permit and the passage of the pistol safety course occurred before this pistol was purchased.”
“That is correct,” Mayhew said.
“So, it would have been impossible to use this pistol to pass that course.”
“That’s correct.”
“And that would mean that he used another pistol to pass that course,” Sanzone said, attempting to create distance between his client and the murder weapon.
“That’s what it would lead one to believe, yes.”
“. . . In your conversations with him, you’re aware of him . . .” Sanzone began.
“Objection, Your Honor. That’s hearsay, Your Honor.”
“Well, it’s from the defendant, but that’s fine,” Sanzone said. Turning back to the investigator on the stand, he continued: “You said there were two empty cartridges in that handgun.”
“That’s correct.”
“. . . And you only found evidence of one bullet being fired there at the scene.”
“That is correct.”
“So you don’t know if the second bullet was fired after that or before that.”
“No, sir, I do not.”
“. . . And you really looked around that house to see if there was any evidence anywhere of another bullet fragment, another hole in the wall . . . You all looked very carefully.”
“Yes; me and several other investigators, that’s correct.”
Moving on to the victim’s body, Sanzone established that Jocelyn was dressed for the outdoors and said, “You took care to make sure that no one did anything with her body until it had been examined by the medical examiner.”
“That is correct.”
“Including taking care to make sure that the area of her hands was preserved . . . so there wouldn’t be any contaminants.”
“That’s correct.”
“. . . There’s been a lot of evidence gathered in this case but in the course of the gathering of that evidence did you collect Marcy Shepherd’s or Maysa Munsey’s cell phones?”
“Yes, it was collected.”
“But not on the day you found them there at the house.”
“No, sir.”
“You would agree with me that if somebody . . . tells you that they’ve been in communication with a person who’s now lying there dead that you would want to see that communication or hear it if you could.”
“Later, after the thing, yes, you would want to do that.”
“. . . And you agree with me also that as time passes, your ability to get that evidence may not be there.”
“There is that possibility,” Mayhew admitted.
“. . . Did Marcy Shepherd tell you on that day that she had text messages on her phone to and from Jocelyn Earnest?” Sanzone pressed.
“No, on that day, she did not.”
“And . . .”
Commonwealth’s Attorney Krantz popped to his feet, objecting to the line of questioning. Judge Updike cut him off and sent the jury out of the courtroom.
When the room was cleared, Krantz objected to “any reference or innuendo by Mr. Sanzone that Marcy Shepherd or anyone else is a suspect or wrongdoer in this case, unless or until he meets the legal threshold of establishing with particularity as established by the Supreme Court to enter third-party guilt in this case [ . . . ] And to suggest that to the jury, Your Honor, is not within the scope of the Supreme Court’s ruling. We’re just asking Mr. Sanzone to follow that law.”
“I intend to follow the law, Judge, but I don’t agree with their characterization,” Sanzone shot back. He argued that Marcy was the only person scheduled to meet with Jocelyn at the time of death.
Krantz countered that by citing the complete cooperation of Marcy and Maysa with law enforcement and added that the defense was not offering any evidence of actual guilt by either woman.
Sanzone disputed the women’s cooperation, pointing to Maysa’s plea of ignorance of details in the Amherst County case and Marcy for not revealing the romantic relationship or text messages at the scene.
“So, all of these facts, Judge, and the fact that people are present, that they are doing things to impede the investigation—and now I think that those very acts impede our ability to look back and accurately determine what happened.”
“Last comment,” Krantz said. “Nothing plus nothing equals nothing . . . There is nothing that Mr. Sanzone can point to that shows the actual guilt of anyone else. It is just intended to confuse and mislead the jury.”
“. . . Well, I guess since it’s the Commonwealth’s motion, they get the last word,” Sanzone said.
“Y’all finished?” the judge asked. When the lawyers agreed that they were, he stated that it would not be fair to prevent the defense from offering evidence that someone other than the defendant killed Jocelyn Earnest. “But any evidence has to be admissible evidence, has to be relevant evidence . . . Guesswork or speculation has got no place in a court of law.” He continued, “If the Commonwealth puts these women on and asks them about finding the body and being there before the police officers . . . if Mr. Sanzone wants to ask either one of them, ‘Did you kill Jocelyn Earnest?’, you can ask them. You can ask the police officer if you want . . . Anybody who was there because anybody who was there and had the opportunity, you can ask them. That’s cross-examination.”
The judge cautioned, “This business of the relationship . . . between Ms. Shepherd and Ms. Earnest, as far as whether that proves anything concerning the death, I don’t even really have to get there. I’ve already got in evidence a note that talks about a new love. And if she gets on the stand and testifies . . . she loved Jocelyn, then the nature of the relationship is going to come out as far as bias, prejudice, motive, fabrication.”
However, Updike warned the defense, “Now, Mr. Sanzone . . . if you want to proffer evidence on your own . . . you’re going to have to show . . . it clearly points to some other person . . . But if it’s might have, could have, should have, or that kind of stuff, possibility, then that to me just becomes an issue of letting the jury guess or speculate. They’re not supposed to guess or speculate. Neither am I. Neither is anyone else in the courtroom.”
After the jury returned, Joey Sanzone focused his questions back on Marcy’s phone, forcing Investigator Mayhew to admit that he had not seized her cell until two weeks after the murder, and that during that time, Marcy had had the ability to alter or delete any messages.
The defense then turned to the possibility that one of the policemen could have moved the body before Mayhew arrived at the scene. All the investigator could say with any certainty was that they told him they had not.
Using crime scene photos, Joey Sanzone asked a series of questions about what the investigator had found there. “Has anyone come forward and said, ‘I was using the bathroom on the day that or on the day before the blood and hair were found’?”
“No, sir.”
“Has anyone come forward and said, ‘That’s my blood in the sink’?”
“No, sir.”
After a break for lunch, Nance conducted his redirect examination, asking the investigator about Maysa’s and Marcy’s demeanor the day the body was discovered.
“Very upset, crying, upset of the whole situation,” Mayhew said.
On recross, Sanzone asked if Marcy had, on that same day, revealed anything about her romantic relationship with Jocelyn.
“Not to me, she didn’t.”