The News and Advance, Lynchburg, Va., Chris Dumond column: Co-worker’s testimony dominates second day of Earnest trial [The News and Advance, Lynchburg, Va.]

Mar. 25--BEDFORD -- Attorneys and Judge James Updike spent hours in the second day of the Wesley Earnest murder trial Wednesday trying to figure out what to do with damaging testimony from the woman who found the body of Earnest's estranged wife in her Forest home.

"If he ever knew anything or found out anything, he would kill us both," Marcy Shepherd testified after the jury had been ushered out of the Bedford Circuit Court courtroom.

Shepherd discovered the body of 38-year-old Jocelyn Earnest on Dec. 20, 2007. She testified they had worked together at Genworth in Lynchburg since the summer of 2005 and the relationship went beyond a normal friendship at the company's Christmas party that year.

After the party, she said, she drove Jocelyn Earnest home, where the two kissed on the couch. Both were married at the time, Shepherd testified, and decided not to pursue it. But through the years until Earnest's death, they developed a strong emotional relationship, and had two more similar incidents where they kissed, she testified, but were never sexual with one another.

Shepherd separated from her husband in 2006, but remains married to him and still lives with him and their two children, she said. Wesley and Jocelyn Earnest filed for divorce that year, too, but by then were living apart.

Prosecutors claim the divorce was contentious and that a dispute over a home at Smith Mountain Lake once valued at more than $1 million motivated Wesley Earnest to kill his wife and to stage the scene to appear as if she killed herself. He is charged with first-degree murder and use of a firearm in commission of a felony.

Shepherd testified she stopped getting text messages from Jocelyn Earnest around 7:30 p.m. on Dec. 19, 2007. She became worried and drove to the woman's home between 9:30 and 10 p.m. because they had plans to meet after Jocelyn Earnest's 6 p.m.

counseling appointment, although she had earlier told investigators it was 8:30 p.m. She testified she found Jocelyn Earnest's car in the driveway, but the home was dark and that no one answered the door when she knocked.

When she found things in the same state the next morning after a co-worker told her Jocelyn Earnest hadn't come to work, she used a spare key to go in the back door, then discovered the body.

It was when Deputy Commonwealth's Attorney Wes Nance asked her why she feared for her friend's safety that the trial ground to a halt.

"She had expressed fear to me," Shepherd testified, then indicated Jocelyn Earnest was afraid of her then-estranged husband.

Defense attorney Joseph Sanzone quickly objected to the testimony as hearsay and jurors were taken out of the courtroom. Sanzone argued hearsay testimony -- testimony about something someone else told a witness -- shouldn't be allowed to be heard by the jury.

He said it was especially problematic because of the contrast in Shepherd's earlier testimony that Jocelyn Earnest was the happiest she had seen her in December 2007 and that she wasn't particularly worried on the night of the 19th because she thought Jocelyn could have gone out with another friend or merely fallen asleep.

With the jury out of the courtroom, though, Shepherd told Updike that her friend had recently gotten a security system installed because she feared Wesley Earnest was still coming into the home and he had put her in dangerous situations before. She said Jocelyn Earnest was always looking over her shoulder and even feared a point in the road leading up to her home because she worried she would find her husband at her home when she made the turn.

Jocelyn Earnest had also told her that if she were ever found dead, her husband would be responsible and that he would probably kill himself, she said.

Updike allowed her to testify to the jury that Jocelyn Earnest feared her estranged husband and told jurors that they could only consider the answer as her reason for going back to the home on Dec. 20, 2007, and for why she told investigators she believed Wesley Earnest was responsible for her friend's death. Updike also told jurors they couldn't consider Shepherd's statement as evidence as to whether Wesley Earnest was actually guilty.

During cross-examination, Sanzone repeatedly questioned Shepherd about the chain of text messages in the hours leading up to Jocelyn Earnest's death. He asked her about messages found on Shepherd's phone by Bedford County Sheriff's Office investigators between the two women and why three messages from Earnest to Shepherd appeared to be missing. He accused her of being reluctant to give up her phone to investigators.

Shepherd responded that she never got the supposedly missing messages and denied deleting them from her phone to cover up any wrongdoing on her part. She also said she was reluctant to give up her phone to investigators because she was worried Wesley Earnest might want to hurt her, too.

Sanzone also accused Shepherd of being inside Jocelyn Earnest's home earlier in the night of the 19th, before 7:30 p.m., which she denied. She also denied any wrongdoing the morning she found the body, or planting what prosecutors are calling a fake suicide note.

Nance later said Sanzone was trying to twist Shepherd's testimony to make it appear that she had framed Wesley Earnest.

Including a break for lunch, Shepherd was on the witness stand from a little after 9 a.m. until a little after 2 p.m.

In other testimony Wednesday:

--Bedford County deputy Jason Jones testified about being one of the first law enforcement officers on the scene and how the thermostat in Jocelyn Earnest's 1482 Pine Bluff Drive home was turned up to 90 degrees.

-- Former head of investigations at the sheriff's office, Gary Babb, testified about finding the supposed suicide note near the front door to the home. Babb also testified he thought the revolver used in Jocelyn Earnest's death was "out of place" where it was found near her right armpit. Babb also described how it appeared the woman's hair had been moved through blood on the carpet.

-- Several crime scene photos of Jocelyn Earnest's body were shown on a large flat-screen television Wednesday, prompting family members to cover their eyes or to look away. Wesley Earnest did not appear to try to avoid looking at the pictures or to change the expression on his face during any point in the trial.

-- Sheriff's Office Investigator Mike Mayhew testified two of the five cartridges found in the .357 Magnum revolver found on Jocelyn Earnest's body were spent, although investigators did not find any evidence of a second gunshot in the home.

Testimony from Mayhew about bloodstains left after the body was removed and about evidence collected in the home is expected to resume at 9 a.m. today.

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