The Commonwealth called Investigator Mike Mayhew to the stand as their first rebuttal witness and asked him about the interview with Wesley Earnest on December 21, 2007. Mayhew testified that when he’d asked the defendant about everything he did the week of Jocelyn’s murder, he’d never mentioned having David Hall’s truck, nor moving any furniture, nor making a trip to Taco Bell, nor having Jesse McCoy clean his car.
On cross-examination, defense attorney Joey Sanzone asked Mayhew if Wesley had ever denied going to Taco Bell. The investigator answered that Wesley didn’t deny it because no one asked him about it.
“You asked him questions and he answered every question you asked?” Sanzone said.
“That’s correct.”
“And you didn’t have any follow-up questions that were unanswered at the end of that interview?”
“No, sir. We asked him to go over it three times and he told us every time. And that was what he did those days.”
• • •
As soon as the Commonwealth recalled Jocelyn Earnest’s therapist, Susan Roehrich, Sanzone requested that the jurors be sent out of the courtroom. He argued that Susan’s testimony was not proper rebuttal because it was not refuting anything said by Wesley.
Assistant Commonwealth Attorney Wes Nance said that the only purpose of this examination would be references to the comments written by Wesley in a document. The Commonwealth had no intention of mentioning anything written by Jocelyn. The judge decided he wanted to hear voir dire questioning before he ruled on its appropriateness.
Nance handed Roehrich the exhibit of the timeline document that Jocelyn had written for her for identification. Then he asked, “Did she point out certain entries on that timeline?”
“Yes, sir.”
“These entries that she pointed out to you, did you recognize the handwriting of those entries?”
“No, sir.”
The judge interrupted the questioning, saying that he wanted to know what was in the entries before he could make a decision.
Nance read through the list of alien comments on the timeline, and Sanzone said, “I don’t have any problem if they want to say that he wrote that on her timeline, because it’s obvious that he wanted her counselor to know those thoughts.”
“It almost sounds like now you’re saying you don’t object to it,” Updike said, and overruled Sanzone’s objection, saying, “The Court rules that it’s proper rebuttal, that it is relevant.”
After that, the judge wanted to make sure that the Commonwealth had a witness ready to testify that it was actually Wesley’s handwriting on the document. When that was settled, the jury returned and the questioning resumed.
Roehrich identified the document as the timeline Jocelyn wrote at her request and said that the discussion, which took an entire session, occurred at the end of August 2007, eight months after Wesley said he was last in Jocelyn’s house. “She was, well, I would say emotionally angry, violated. She was scared.”
On cross, Joey Sanzone tried to shake Roehrich’s confidence on the date of that meeting with Jocelyn, but he failed.
• • •
The Commonwealth’s last rebuttal witness was Gordon Menzies Jr., a forensic documents examiner at a forensic science laboratory in Roanoke. He had twenty years of experience in that area, with the last fifteen of them as supervisor. Additionally, he’d been examining forensic documents for thirty-four years and had testified as an expert in that field two to three hundred times. The court qualified him as an expert witness.
He testified that he examined known handwriting samples of Wesley and Jocelyn and he examined the timeline document in question. He said that in his review of the bracketed items, he could confirm with certainty that all, with one possible exception, were in Wesley’s handwriting.
Joey Sanzone asked, “Mr. Menzies, you found three categories of writing on here: Jocelyn’s, Wesley’s, and one you couldn’t identify?”
“Correct, sir.”
“And you have no idea when these writings were made, do you? I mean, you can’t look at the document and tell the age, can you?”
“An absolute time, no, but I would have to say it was after the bulk of the document was produced, whenever that was.”
“You don’t know when?”
“No, sir, I do not.”
Sanzone then pushed the witness to say they were written in 2006 since the latest entry was dated in that year, but he could not get him to commit to any assessment of when they were actually composed since the dates were written in one handwriting and the notes in question were by another hand.
Wes Nance on redirect said, “And, Mr. Menzies, just to explain to the jury a little bit about what Mr. Sanzone was talking about, under each of these dates, were there entries lined up underneath the dates?”
“Yes, sir.”
“The ones belonging to Wesley Earnest were at the bottom of each of those letters?”
“They were either at the bottom—particularly the ones that were bracketed in red. However, the ones that I found that were not red bracketed were generally inserted somewhere above that bottom entry and kind of plugged into an available space.”
After he stepped down and the Commonwealth announced they had no further witnesses, Sanzone requested to bring Wesley back to the stand for surrebuttal. “I want to call Mr. Earnest to ask him if in 2007, Ms. Earnest ever called him and complained about him writing on a timeline. I want to ask him if [ . . . ] Ms. Earnest ever took him back to court for being in the house in 2007 [ . . . ] Those are the questions I want to ask him.”
Nance argued that he could have asked those questions during his direct or redirect examination of the defendant and he did not. The judge agreed with the Commonwealth: Sanzone could not recall Wesley Earnest.
Before the jury was brought back into the courtroom, the defense made the traditional motion to strike. “Your Honor, we would renew our motion to strike in this case and state in furtherance of that at this time, the evidence is no longer viewed in the light most favorable to the Commonwealth. And there is no evidence [ . . . ] that Mr. Earnest was in Forest at the time.” He went on to argue that the fingerprint was irrelevant because his client had lived in the home for nine years and could have left it on the paper during that period of time.
He moved then to the question that he was blocked from any presentation regarding possible third-party guilt. “We were prevented from even putting on evidence on stronger circumstances than the Commonwealth has presented to go forward to the jury.”
To no one’s surprise, Updike said, “Motion is denied. Court finds that there’s been sufficient evidence to establish a jury issue as to elements of the offenses charged and that there has been evidence presented by the Commonwealth that is probative. And that is evidence in addition to fingerprint evidence. I do not regard this as a case that relies solely and exclusively or that is based solely and exclusively upon fingerprint evidence.”