The Commonwealth called their next witness, Richard Van Roberts, a firearms examiner for Virginia Department of Forensic Science with thirty years’ experience. In that time, he had performed five thousand to six thousand examinations of guns.
He identified the murder weapon as a .357 Magnum caliber handgun with a short two-and-an-eighth-inch barrel with a five-shot capacity and an internal hammer. He walked the jury through the operation of the gun, the function of the safety mechanisms, and the loading of the ammunition.
He told them that he’d verified that the weapon was firing properly and concluded, “The two cartridges and the large jacket fragment were fired in and through this weapon. The other small pieces of lead and jacket were too small [ . . . ] for any identification.”
On cross-examination, defense attorney Joey Sanzone used the witness to establish that the gun was very similar in size and function to one marketed by Smith and Wesson as a “Lady Smith”; that a gun did not have to be stored in its case or box; and that there was “no way to tell the time span between the first shot firing from the gun and the second one.”
On redirect, prosecutor Wes Nance questioned the firearms expert about the brand of the weapon, establishing that it was not the Lady Smith model. Sanzone, on his recross, reiterated the point that it was extremely similar to the Lady Smith, inferring that it was a gun a woman would use, not a man.
• • •
The next witness for the Commonwealth was forensic pathologist Dr. Amy Tharp, assistant chief medical examiner for Roanoke. With her bachelors’ in zoology and neuroscience, medical degree from New York Medical College, specialized training in anthropology at Wake Forest University in Winston-Salem, an additional one-year fellowship in forensic pathology, and her experience in performing more than 1,300 autopsies, her qualification as an expert was a foregone conclusion.
Dr. Tharp testified that Jocelyn Earnest’s body had arrived fully clothed in a body bag, and that she’d conducted her examination on December 21, 2007.
First, Dr. Tharp said, she’d opened the bag and took a photograph, observing that rigor mortis was passing and the victim’s head was tilted to the right side. When Nance showed her a crime scene photograph and asked if the angle of the head was the same as it was when the body arrived in her facility, Dr. Tharp said, “Yes.”
“Did you make notation of the dried blood on Jocelyn Earnest’s face?”
“Yes.”
“And was there anything in particular that drew your attention to that?”
“The position of Mrs. Earnest’s head tilted to the right—she appeared to have blood actually running uphill over her left cheek against gravity, which did not appear consistent with her position as I saw it in the scene photos and in the body bag.”
Prosecutor Nance projected a photograph of Jocelyn’s face on the screen and instructed, “Explain to the jury what the significance was to you about these dried blood streams.”
“As you saw in the first photograph, her head was originally tilted to the right. And she had dried blood going off to the right down the right side, but there’s also blood going over to the left cheek and across the left side of the face, which would be going against gravity,” Dr. Tharp reiterated.
“What was the significance of that to you as a doctor and pathologist?”
“That her head had at some point been not completely tilted over to the right for the entire time that she had been dead from the time the injury occurred.”
Nance took the pathologist through the steps of undressing and examining the body, and she described for the jury the x-rays taken. Introducing a number of autopsy photos, Nance pointed at one and asked, “And you were describing this as the entrance wound, is that correct?”
“Yes.”
“And how do you make that determination?”
“One of the things that we learn in all that training is how to distinguish an entrance wound from an exit wound. When a bullet enters skin, it’s spinning like a football and it tends to scrap the edges of the skin as it goes in before it actually punches through the skin into the skull.
“In addition, there are these little red marks all around the wound. It’s not just the bullet that comes out the end of the gun. You’ll also have bits of burning and unburned gunpowder and smoke and flame. And depending on how close the gun is to the skin, you might actually get some of those other things striking the skin as well. In this case, the gun was close enough that you’d get some of these little bits of gunpowder striking the skin and creating what we call stippling. It’s sort of almost a sandblasting effect from the bits of gunpowder.
“I know it is not a contact wound because of all the bits of gunpowder. If it was, if the gun was pressed tight to the skin, it should have gone through the entrance itself and not have been deposited on the outside on the skin.”
Nance introduced a photograph of the exit wound on Jocelyn’s left temple and said, “Ma’am, we can see Jocelyn Earnest’s left eye in that photograph. There appears to be discoloration.”
“Yes. She has what we call preorbital ecchymosis or basically a black eye. However, that’s not because she was struck in the eye. When there’s any kind of fracture of the base of the skull over the eyes, blood will leak down into the soft tissues around the eye. And in her case, the bullet fractured, I believe, every bone in the back of the skull including the bones over the eyes and blood leaked down around the eyes and caused that effect.”
“Generally, what is the shape of this exit wound versus the entrance wound we saw earlier?”
“This wound is a little more irregular. It’s not a nice, round, crisp hole like with the entrance wounds, because once the bullet has gone in and it’s struck bone, it’s no longer spinning in a nice, tight spiral like a football. It’s tumbling end over end. And in this case, it probably came out somewhat sideways.”
Dr. Tharp described the internal examination of the skull, clarifying the damage to the brain. “The bullet actually came through the right side of the brain, came across the brain stem and then out the left side of the brain and out the left temple, effectively killing her immediately.”
“So, she not only lost consciousness, this would be an immediately fatal injury?”
“Yes,” said Dr. Tharp, going on to add that Jocelyn “would have collapsed immediately.”
Nance directed the pathologist to the pivotal point of her testimony. “Do you have an opinion to a reasonable degree of medical certainty whether this is consistent or inconsistent with a self-inflicted gunshot wound?”
“Yes, I do.”
“And what would that opinion be?”
“This is inconsistent with a self-inflicted injury.”
“And why do you reach that result?”
“For several reasons. One is the location. When people shoot themselves, they don’t typically choose a location that would be difficult to reach. Behind the right ear . . . would create a slightly awkward angle. They’re going to use a place that’s more comfortable for them. Under the chin, in the mouth, and the temples or forehead are more common places, again not just because it’s easier to reach, but they also want to make sure they hold the gun tight because they don’t want to miss. The purpose is not to injure themselves. They’re trying to get the job done. So they’re going to make sure they hold that gun tight. And holding it at an awkward angle back here and away from the skin enough that you have that stippling . . . people don’t shoot themselves that way.”
Joey Sanzone focused on the time of death and the scientific impossibility to pinpoint with any precision after twelve hours. Dr. Tharp spoke of livor mortis, a settling of blood after death where a push of a finger on the skin causes it to blanch and leave an impression, occurring about six to eight hours after death, making it useless in this case where the body had remained undiscovered for much longer. She also said that she could not pinpoint time by undigested food in the stomach since she did not know what or when Jocelyn ate before she died.
Sanzone questioned her about the open wounds on the body. “Does blood continue to come out of those from time to time?”
“[ . . .] It depends on whether there’s been any drying or anything of the injury before. Occasionally, you can get clotting and congealing of blood at the injury, which will help prevent some of that.”
“But if you turn a body [ . . . ] sometimes blood will flow that has not been previously flowing, is that correct?”
“It can.”
Sanzone moved on to question the doctor’s opinion on the distance the gun was from Jocelyn’s head, suggesting that it was impossible to determine because the victim’s hair would block some of the stippling.
Dr. Tharp disputed that, insisting that any blockage would be minimal. “I would still think that it would be unlikely to be any closer than two inches because you would expect, at closer than two inches, you’d be getting flame. There would be burning of the hair from the flame of the gun.”
“And you described the wound back here as being in the back of the head, but [ . . . ] if she was turned sideways, for instance, then that becomes more along the line of her shoulders, the path of the bullet, doesn’t it?”
“Yes, but she would still have to have her hand almost even with her shoulders to still get that angle.”
“Right. But that position is possible.”
“It is physically possible.”
On redirect, the prosecution established that regardless of the position of the body, the position of the gun, as relative to the head, remained the same. The relationship between the two was pivotal to the trajectory and the official ruling of homicide.