The next witness to testify was Jennifer Kerns, a registered nurse and good friend of Jocelyn Earnest’s. “We became friends pretty much right away. We had a lot in common to begin with—we both played college basketball and had a lot of similar interests. I would say the friendship began immediately and just continued to strengthen each day through the next twelve years or more until her death.”
Jennifer said that they saw each other several times a week, meeting at her house, at Jocelyn’s house, or meeting for lunch. She added that she often came with her children to use the swimming pool at Jocelyn’s home.
Prosecutor Wes Nance asked about the firearm that Jennifer saw in Jocelyn’s house in late 2005.
“There was a shotgun propped up inside—right inside the doorway of the master bedroom walk-in closet,” Jennifer said. Nance followed up by asking if Jennifer had ever seen the firearm after that one incident.
“No, I did not,” she replied.
“Did you ever see a handgun in Jocelyn Earnest’s home after Mr. Earnest moved from the residence?”
“No, I did not.”
Nor, Jennifer said as she was questioned further, had she ever seen a handgun anywhere in Jocelyn’s possession or in her vehicle, which Jennifer rode in frequently.
“Now, in your frequent contact with Jocelyn Earnest, were you able to observe her demeanor and reaction . . . to the separation from Wesley Earnest? ”
“Yes.”
Sanzone rose again, “Judge, we object to this. It calls for speculation on the part of this witness.”
After a brief argument, the judge overruled his objection. It only took one more question and answer before Sanzone objected again when the witness described what the two of them did together. This time the judge sustained it, instructing Jennifer to describe what she observed, not offer conclusions or interpretations or opinions.
Nance started, once again, asking about Jocelyn’s state of mind immediately following her separation from Wesley. “What predominant emotion did you observe from Jocelyn Earnest during that time period?”
“Sadness.”
“Was there an incident that you were personally present for in March of 2006 that appeared to change her general demeanor?”
“Yes.”
The defense voiced another objection. “Your Honor, we object because it does not reference my client and his attitude towards Ms. Earnest.”
“Objection of relevancy,” said Judge Updike. “I’m not going to comment at this point other than to say that the objection is overruled.”
Nance asked, “Ma’am, I’m going to turn your attention to March of 2006 . . . Were you aware of a lake house on Smith Mountain Lake built by the Earnests?”
“Yes.”
“And in March 2006, did you go with Jocelyn Earnest to that lake house?”
“Yes.”
“. . . Could you explain to the jury . . .”
Sanzone interrupted, “Judge, I have a motion outside the presence of the jury.”
Updike sent out the jury and Sanzone continued. “Judge, I assume what we’re going to hear is that Ms. Earnest went and watched through a window and saw an interaction between Mr. Earnest and a female. Mr. Earnest didn’t say anything to her that day, didn’t do anything. And this is all about Ms. Earnest. Doesn’t have anything to do with my client. And, in order for them to show some sort of contentiousness, motivation, something of that nature, they need to show something regarding Mr. Earnest, not Ms. Earnest.”
“Isn’t the possibility of suicide also an issue in this case?” the judge asked.
“Judge, we are not arguing suicide at all,” Sanzone said.
“Is he conceding that it’s not a suicide, Your Honor?” prosecutor Krantz interjected.
“Judge, I don’t know. I don’t have the burden of proof.”
“That’s true,” the judge agreed. “. . . I’m just asking a question that because of the note that was found in the area of the body and the nature of the note, does not the Commonwealth have the burden of proving beyond a reasonable doubt that this death was not a suicide?”
“The only reference to my client in that note is having to do with finances,” Sanzone argued.
“There have been objections as far as the state of mind of Ms. Earnest is concerned,” Updike said. “I feel that such evidence is relevant to the issue of whether or not she died as a result of suicide. That’s my ruling and my feeling . . . Let me just ask this question out of the presence of the jury: What is this testimony, Mr. Nance?”
“Your Honor, this is evidence on marital infidelity on the part of Mr. Earnest,” Nance answered, adding, upon question of relevancy from the judge, “Your Honor, I believe the relevance is two-fold. First of all, its impact on Jocelyn Earnest—we would anticipate Ms. Kerns’s testimony is that she went from being sad to more determined and ready to move on past this marriage. But also, the relevance of marital infidelity is relevant pursuant to the marital disharmony . . . and lack of bliss . . . Cantrell versus Commonwealth . . . states: in the prosecution of murder of one’s spouse, the Commonwealth may introduce evidence of marital infidelity to show marital disharmony.”
“But, Judge, in those cases, they’re talking about somebody that gets mad because the spouse is over here having an affair with somebody and the incident is related to that affair. That’s not the case here at all,” Sanzone said. “And for them to say . . . she became more determined and ready to move on and abandon the relationship, I don’t think even fits the theory that the court has cited here. It’s just simply intended to show a bad act. It’s nothing more than some sort of prior bad act on the part of my client regarding fidelity and intended simply to cast him in a bad light and create sympathy.”
“Okay, Counsel,” the judge responded. “I understand the argument. The objection is overruled. The evidence will be presented. Objection’s noted and preserved.”
The jury returned to the courtroom, and Nance returned to his line of questioning. Jennifer described the day that she and Jocelyn observed Wesley and Shameka Wright engaged in an intimate act at the Smith Mountain Lake house. When she said, “Jocelyn got angry and said, ‘This is it. I’m done. I’m over this,’” she brought Joey Sanzone to his feet.
“Judge, now I object: hearsay. And they know we object.”
“Your Honor, it’s not offered for the proof,” Nance said. “I believe explanations are merely a verbal act, and they’re not coming in for the truth of the matter asserted.”
“The court understands the objection is on the grounds of hearsay. The objection is overruled,” Updike said.
Amidst repeated interruptions from the defense, Jennifer continued to describe Jocelyn banging on the window, waving and shouting into the house.
Wes Nance also had Jennifer give her testimony regarding the night in February 2007 when she encountered Wesley outside of Jocelyn’s home dressed in dark clothing with a hood pulled tightly over his head.
The witness told the jury about the last time she was in Jocelyn’s home on December 7, 2007, after volleyball practice. Nance asked, “Were you able to observe her demeanor in December of ’07?”
“Yes.”
“What did you see? Tell the jury.”
“She was excited, looking forward to Christmas, anxious to give my children the Christmas presents that she had purchased for them.”
“Judge,” Sanzone objected again. “That’s not a proper response. Demeanor is not—that does not deal with demeanor.”
“I think it does,” Updike said. “Overruled.”
“If you could finish the thought that you had,” Nance said to the witness.
“Looking forward to seeing them open their gifts—happy, excited, jovial.”
On that remark, the direct examination ended and Blair Sanzone, Joey’s daughter and co-counsel, began the cross. “Ms. Kerns, you and Jocelyn were such good friends that you had the alarm code to the Pine Bluff home; is that correct?”
“Yes.”
“And you were an authorized user through the actual alarm company; is that correct?”
“Yes.”
“. . . And you had a key to that home on Pine Bluff; is that correct?”
“Yes.”
“Who else had a key to that home that you know of?” Blair Sanzone asked.
“Maysa Munsey.”
“And who else had the alarm code to the Pine Bluff home?”
“Maysa Munsey.”
“And anyone else that you know of?”
“No.”
“You would often spend the night at Jocelyn’s home on Pine Bluff; is that correct?”
That was not correct; Jennifer replied that she had spent the night once in 2006, but not at all in 2007 or 2005.
“The last time you had any contact with Wesley Earnest was in the winter of 2007; is that correct?” Blair Sanzone continued.
“In the driveway, yes.”
“And the last time you have any personal knowledge of Jocelyn Earnest and Wesley Earnest having any contact face-to-face with one another was that [ . . . ] night [. . . ] is that correct?”
“They did not have face-to-face contact that night.”
“Then, when was the last time that you personally know of that they had face-to-face contact? What was the date of that or approximate date?”
“The last time that I know of was the day I went to court with Jocelyn, one of their last hearings.”
“And that was December 2006, was that correct?”
“I guess.”
“Now, you said that you know that Jocelyn and Wesley separated from one another in 2005. That’s when you would consider them to be living in two separate households.”
“Yes.”
“And when you and Jocelyn were spying up at the lake house in Moneta in March of 2006, they’d been separated since 2005 by that time. Many months had passed, correct?”
“They were not living together at the time.”
“Right,” Blair Sanzone said with a nod. “And he was living in Chesapeake, Virginia, working down there. Did you know that?”
“I did not have personal knowledge of where he was living.”
“And did you know at that time, that night in March of 2006 when you were up at the lake house spying that Jocelyn was romantically involved with Marcy Shepherd?”
Both members of the prosecution team jumped to their feet with objections, and the judge sent the jury out of the courtroom once again. After hearing from both sides, the judge ruled in favor of the prosecution, saying, “Putting aside whether there was or was not a relationship, it’s my ruling that whether this witness knew or did not know of such relationship, if it did exist, that is irrelevant. Objection is sustained.”
Blair Sanzone switched to another line of questioning. “In December of 2006, you and Jocelyn went to the lake house in Moneta, didn’t you?”
“Yes, we did.”
“And you two actually took a big van that afternoon that you went; is that correct?”
“Yes.”
“And when you were there at the lake house property, you two entered that property and you essentially cleaned out the lake house of all content that you two could fit in that van, is that correct?”
“No, that is not correct.”
“Did you two remove furniture from the lake house property?”
“We removed some items of furniture but not all the furniture.”
“And you removed all sorts of personal items, anything you could fit in that van, isn’t that correct?”
“No, that’s not correct.”
“What did you put in that van?”
“We put in the van a chest coffee table, a tan-colored sectional sofa, a tan colored love seat, a twin mattress that was still in the package. We put in the van a tool belt and toolbox and some tile that was leftover from tiling of the bathroom and the kitchen. We took a few silk plants, a television, a DVD player, and a blue and white rug and a bedspread.”
“And you, of course, didn’t take inventory of that; write down exactly what you took that day.”
“I know what we took that day [ . . . ] Those items were stored in my home for six to eight months after that. So I know what we took because it was stored in my home.”
“And Ms. Earnest took some of the property back to her place, didn’t she?”
“No, she did not, not until months later.”
Blair Sanzone badgered her about that day a bit longer and then asked, “Now, up until December 2007, you said you were able to go to Jocelyn’s house whenever you wanted to. She gave you sort of unfettered access to her home; is that correct?”
“Yes, as she had to mine.”
Blair Sanzone asked whether Jennifer went “snooping through [Jocelyn’s] drawers,” which Jennifer denied. “I actually went into her drawers and cabinets and cupboards to clean, straighten, rearrange, and organize her things.”
“And you didn’t go through every single drawer with the purpose of looking to see if a handgun was there or not, at any point, up until December nineteenth, 2007.”
“I would have no cause to look for a handgun. She didn’t have one.”
“And when you were going through those drawers, did you come across condoms?”
“After they no longer lived together, no. There were none in the bedroom.”
“So as far as you know in December of 2007, there were no condoms in drawers in her home to your personal knowledge.”
“I did not look in her drawers in December,” Jennifer said.
Blair Sanzone asked a few other questions about whether the shotgun was too big to fit in a drawer, and what sports Jocelyn played, then turned her attention to Jocelyn’s street.
“You can park along Pine Bluff, isn’t that correct? There’s a space for you to pull over, you know, on either side of the road and park down the street or up the street . . .”
“Yes.”
“Who else did you know who was also staying in [Jocelyn’s] home, if anyone, in December of 2007?”
“I do not know of anyone.”
Blair Sanzone passed the witness over to Wes Nance for redirect. He asked just two questions. “Ms. Kerns, Ms. Sanzone made reference to your ability to park on Pine Bluff Drive. And it’s a residential neighborhood, isn’t that right?”
“Yes.”
“In the winter of 2007, though, did you see the vehicle that Mr. Earnest was driving when you had that conversation with him that night?”
“There were no vehicles on the road at all on either side anywhere near Jocelyn’s home,” Jennifer said.
Robert Kerns took the oath to testify after his wife stepped down from the stand. He said, “I originally met Wes in the mid-nineties when playing golf in Bedford County . . . We became friends through playing golf. Also, we played a lot of volleyball together. And through volleyball, I met Jocelyn. And then our wives [ . . . ] became best friends at that point.”
He said that then they spent a lot of time together doing couples’ things. “While the marriage was intact, I was closer to Wesley. After it was dissolved, closer to Jocelyn because she spent a lot of time at the house and Wesley was living outside of Lynchburg.”
In response to the Commonwealth’s questions, Bob told the jurors about the breakfast meeting he’d had with Wesley in the fall of 2007. He explained Wesley’s concerns regarding his credit, financial obligations, and being forced into an untimely sale of the lake house.
On cross, Joey Sanzone jumped right into that meeting. “He explained to you that [ . . . ] they were paying the bills, didn’t he? He explained to you that the bills were being paid.”
“Yes.”
“And he told you that they were selling the rental house.”
“I don’t recall that. He may have. I don’t recall a discussion of the rental house.”
“If I told you that the rental house was sold and they received . . . a hundred and thirty-seven [thousand] dollars from the sale of that house, you wouldn’t disagree with me, would you?”
“All I know is he communicated to me that he was desperate enough for cash that he took things from the house basically to sell.”
“Well, I know that’s your claim here today. What did he sell? Tell the jury what he sold.”
“He did not tell me what he took,” Bob said. “I know through other sources what was taken from the house.” When pressed on this point by Sanzone, Bob admitted, “After four years, I do not recall specifically what he told me he took from the house to sell.” Nor did he know how much money Wesley might have gotten for any of those items, nor from the sale of the rental house.
“You don’t know any of the specifics of any of the other financial amounts that they were dealing with,” Sanzone said.
“Specific amounts, no, sir.”
“And essentially, the entire nature of the conversation was he just wanted you to talk to Jocelyn to make sure that his opinion that they try to sell the . . . lake house and realize the most from it was what he wanted you to convey. That’s the only specific you recall about financial detail.”
Bob started to talk about Wesley’s credit, and Sanzone cut him off, but Krantz objected. “He’s allowed to answer his question.”
“All right,” Judge Updike said. “Sustain that. Allow the witness to answer.”
Bob continued, “He described what his finances were and that his credit was being destroyed and that he was strapped because of [ . . . ] his obligations to the lake house mortgage and trying to meet other financial obligations and that’s why he took items from the home.”
“Well, I’m not asking you to repeat your narrative every time I ask you a question.”
“Now, Mr. Sanzone . . .” the judge admonished.
“I’m asking . . .”
Updike cut him off. “Mr. Sanzone, don’t instruct the witnesses. Now if [ . . . ] any counsel has a problem with the conduct of a witness [ . . . ] ask me to address it. Okay?”
“Judge, then, I would ask that the witness be instructed to be responsive to my questions.”
“All right, sir. I feel, at this time, that instruction is not necessary, not appropriate.”
“All right,” Sanzone said and then asked the witness, “What specific credit matters were causing any trouble?”
“He just mentioned that, in general, his credit was being damaged.”
“So my original question was . . . what specific detail you can recall about the finances of the lake house?”
“His credit was being damaged because of the lake house, yes, sir.”
“And you have no . . . knowledge of any of the specifics about the credit.”
“No, sir.”
“You have no knowledge of any of the specifics about how much he made a month, how much was being spent a month.”
“He did share with me the mortgage on the house . . . Forty-seven hundred, somewhere in the forty-sevens, mid-forties.”
“And they were splitting that?”
“No. I think he had a larger share of responsibility for the lake house. It was not an even split.”
“Mr. Kerns, are you confusing what took place with a December hearing before the Bedford County Circuit Court and an escrow agreement with the conversation that occurred before December of 2006?”
“I was not party to that hearing.”
“Well, the seventy-five, twenty-five comes out of that . . . Did you know that?”
Bob said he did not.
“As far as your relationship with Wesley, you were on Jocelyn’s side of their disagreements after 2005.”
“Not necessarily. From a financial standpoint, what he told me that morning made sense. And that’s why I communicated it to Jocelyn . . . I think anyone with any sense of economics would say that if they sold the lake house quickly, they were due to lose money. If they waited until the market turned, they’d make money. And I believed him when he said he was financially strapped.”
When asked, Bob said that he’d seen Jocelyn at least once a week but denied knowing either Marcy Shepherd or Maysa Munsey and was not aware of his wife spending any time with either woman. He also did not know about any phone calls to or from Marcy or Maysa to his home.
He also denied ever having seen condoms in Jocelyn’s drawers, telling Sanzone, “I never looked in drawers.” Nor did he know of any people other than Wesley’s brother, Tyler, who might’ve been living at her house in 2007.
“My last question is: do you know if any of these financial problems or all of these financial problems we’re talking about was solved with the sale of the rental property?” Joey Sanzone asked.
“I have no idea.” To Bob’s great relief, neither attorney had any further questions.