Present: All the Justices
JENS SOERING
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 971647 April 17, 1998
GEORGE DEEDS, WARDEN, KEEN
MOUNTAIN CORRECTIONAL CENTER
FROM THE CIRCUIT COURT OF BEDFORD COUNTY
William W. Sweeney, Judge
Petitioner Jens Soering was convicted in 1990 by a jury in
the Circuit Court of Bedford County of two counts of first
degree murder for the 1985 killings of Derek Haysom and Nancy
Haysom in their Bedford County home near Lynchburg. Soering is
being detained by the respondent under two terms of life
imprisonment for the murders.
In 1995, the convict filed a petition for a writ of habeas
corpus invoking the original jurisdiction of this Court. In
August 1996, the Court, pursuant to Code § 8.01-657, awarded the
petitioner a writ of habeas corpus returnable to the Circuit
Court of Bedford County for determination of the issue “whether
the Commonwealth withheld from the defense exculpatory evidence
as alleged in claim V” of the amended petition. The Court
dismissed the remaining habeas allegations. Claim Five of the
petition alleges: “Soering’s conviction should be reversed due
to the prosecution’s withholding of Brady material from the
defense at his original trial.”
In December 1996, the habeas judge, who had presided over
the criminal trial, conducted an evidentiary hearing on the
issue presented. In a June 1997 order, incorporating a 13-page
memorandum opinion, the court determined the convict’s claim is
without merit. The matter is before us for review.
Initially, the evidence adduced during the criminal trial
will be summarized. The murder victims were the parents of
Elizabeth Haysom, Soering’s girlfriend and lover. In 1984,
Soering and Elizabeth were undergraduate students at the
University of Virginia, both attending under academic
scholarships. A friendship between the pair developed into an
infatuation. Elizabeth’s parents opposed their daughter’s
relationship with Soering; this infuriated him. During this
time, she also had “feelings” of “anger” as well as “resentment”
and “hatred” toward her parents.
During the latter part of 1984 and early 1985, Soering and
Elizabeth began discussing “a lot of ideas about how [her
parents] might die.” On Friday, March 29, 1985, the students
traveled in a rented vehicle from Charlottesville to Washington,
D.C., and “checked into” a hotel.
On Saturday, “it suddenly became real, we were going to
conspire and commit murder,” according to Elizabeth, who was a
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prosecution witness at Soering’s trial. The pair made elaborate
plans to establish an alibi to cover Soering’s trip from
Washington to her parents’ home for the purpose of killing them.
He purchased a knife before he departed Washington alone on
Saturday afternoon. She remained, and walked around Washington
in a drug-induced “haze.”
Later that night, Elizabeth found Soering on a Washington
street, near where they “agreed to meet,” sitting in the rented
vehicle with a bloody bedspread “draped over him.” He told her
he had killed her parents.
The victims’ bodies were discovered during the day on
Wednesday, April 3. Her body was found on the kitchen floor and
his body was on the floor between the dining room and living
room. They had been stabbed in their torsos and their throats
had been cut. There were no signs of forced entry into the
home. Exterior lights were burning, but interior lights were
not. Efforts had been made to wipe footprints left in the blood
at the scene. All fingerprints at the scene had been left by
known friends or visitors, except four sets that never were
identified. No murder weapon was ever found.
No valuables had been removed from the home. Silverware,
cash, and jewelry in plain view had not been touched. The
contents of a liquor cabinet were undisturbed. The Haysoms’
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motor vehicles were parked outside and a set of car keys was
found in the hallway.
Subsequently, the police investigation focused on
Elizabeth, who voluntarily furnished blood and hair samples,
fingerprints, and footprints. The police had learned about the
pair’s rental of the vehicle and that the miles the car was
driven far exceeded the round trip distance from Charlottesville
to Washington. In fact, the mileage was consistent with a trip
from Charlottesville to Washington, Washington to Bedford and
back, then from Washington to Charlottesville.
The police were unable to contact Soering until October
1985. Initially, he refused to provide blood or hair samples,
fingerprints, or footprints, but later agreed to meet
investigators to provide the requested forensic information.
Before the appointed time, however, Soering fled to Europe,
leaving school and forfeiting scholarships that provided full
tuition and expenses. Shortly thereafter, Elizabeth fled and
met Soering in Europe.
In 1986, the Bedford police learned the pair had been
arrested and were incarcerated in London on various fraud
charges. British police had searched the pair’s apartment and
found documentary evidence linking them to the murders.
During interrogation in jail in London, Soering confessed
in detail on several occasions to having committed the murders.
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He said he had traveled alone from Washington to Bedford,
leaving Elizabeth in Washington to establish an alibi for him.
Upon arriving at the Haysoms’ home, he stated, he conversed with
them over dinner at the dining room table, violence erupted, and
he killed them both by stabbing and cutting their throats. He
demonstrated to the police the manner in which their throats
were cut.
Soering stated to the police that during the killings he
cut two fingers of his left hand and that Mr. Haysom had struck
him in the face. A witness testified that, at the victims’
funeral, Soering had bandages on his fingers and a bruise on his
face.
Soering’s blood type proved to be Type “O,” the same type
as unidentified blood found at the murder scene. Neither the
victims’ blood nor Elizabeth’s blood was Type “O.” His
fingerprints did not match any of the four sets of unidentified
prints found at the scene.
Soering testified at the criminal trial. He denied any
participation in the planning or commission of the murders. He
testified that Elizabeth left the hotel in the rented vehicle,
telling him she had to procure some drugs while in Washington
because she was being blackmailed by another student, her
Charlottesville drug supplier, who threatened to tell her
parents of her continued drug use. According to Soering,
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Elizabeth returned to the hotel room after midnight, stating, “I
have killed my parents.”
Elizabeth pled guilty as an accessory before the fact to
both murders. She was sentenced to 90 years in prison.
We turn to the evidence presented at the habeas hearing.
The convict showed that, prior to the criminal trial, his
attorney filed a comprehensive discovery motion for “any and all
evidence or information within the possession, custody, or
control” of the prosecution “which is or might arguably be
exculpatory,” including information “which may tend to show that
there are other individuals responsible for” the crimes.
The focus of the 1996 evidentiary hearing was the
testimony, presented on behalf of the convict, of former
Bedford County Deputy Sheriff George Anderson. Within a week of
the Haysom murders, Anderson detained and questioned two men,
William Shifflett and Robert Albright, who were walking or
hitchhiking late at night on the Route 460 East bypass near
Bedford. The officer became suspicious of the men because he
rarely had seen persons walking there late at night. The men
told Anderson they had been to Lynchburg “to see a girl” and
were headed to Roanoke.
Anderson directed each of the men to place the contents of
his pockets on the hood of the patrol car, and then questioned
each of them while the other sat in the rear of the car. One of
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the men carried a small beige tablecloth and a small, empty,
nylon travel bag. Neither carried any large amount of money nor
did there appear to be bloodstains on them or their belongings.
There was no testimony that the tablecloth or bag were items
missing from the Haysom home.
Anderson reported by radio the encounter to the Bedford
Sheriff’s Office and was told by a superior to release the men.
Anderson discussed the incident the next day with another
superior officer, who was involved in the Haysom investigation.
Ten days to two weeks after this incident, Anderson noticed
the brass end of an object protruding from the rear seat of his
patrol car. He found a Buck 110 folding knife. The knife had
not been among the belongings the two men produced when Anderson
stopped them on the bypass. Anderson did not recall that anyone
else had been in the rear seat of his car after he stopped
Shifflett and Albright, although he could not recall when,
before the bypass incident, he previously had examined the seat.
Prior to the habeas hearing, the knife Anderson discovered
was subjected, pursuant to the convict’s request, to laboratory
testing for traces of blood. There was no evidence that any
blood was found on the knife.
The medical examiner who performed the Haysom autopsies
testified that the blade of the knife was of such size and shape
that it could have been the Haysom murder weapon, although he
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said it was difficult to be certain of that fact because he
could not determine precisely the dimensions of the blade of the
murder weapon from the wounds on the bodies. The knife, a
common type of folding knife, is readily available at retail
stores.
On the night of April 5, Albright and Shifflett stayed
under a bridge in Roanoke. The next day, in a drunken condition
and after accosting and attempting to rob two persons, the duo
met Marvin Millikin, a street person. They forced Millikin at
knife point to a field, made him disrobe, beat and kicked him,
and took his wallet. After leaving him in the field, they
returned, stabbed him 26 times, and amputated his penis. Later,
they were convicted of Millikin’s murder.
Deputy Anderson learned of the arrests of Albright and
Shifflett for the Millikin murder and began to suspect they
might have been involved in the Haysom murders. He notified the
Roanoke police of his suspicions.
No evidence was presented that Albright or Shifflett
admitted any connection with the Haysom murders, nor was there
any evidence that Elizabeth Haysom ever met or had any
connection with either of the men. According to the record, the
Roanoke police apparently did not make any connection between
the Haysom and Millikin murders.
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During Soering’s prosecution, the Commonwealth never
disclosed to the defense any circumstances of the Albright and
Shifflett stop or the later discovery of the knife in Anderson’s
patrol car.
Upon review, the convict says there is no dispute the
prosecution withheld evidence and no dispute “what the evidence
was.” He contends that the withheld evidence was exculpatory as
a matter of law and that his convictions must be vacated.
The theory of Soering’s defense was “that the crimes were
committed by Elizabeth, with one or more accomplices.” He
argues, “It was established at the evidentiary hearing that the
possibility of an accomplice to work with Elizabeth, and some
suggestion as to who that might have been, was critically
important to the defense of this case because of a jury’s
natural reluctance to find that a child, even an adult child,
could commit this brutal crime on her own parents. This is even
more true where, as here, the family involved was a ‘nice’
family, well known and respected, with money, educational
benefits and social prominence.”
He contends, “This evidence – concerning the presence of
two men in the area of the crime, soon after the crime was
committed, who were known criminals, indeed murderers, and who
when stopped attempted to hide from authorities a knife which is
consistent with being the murder weapon, and who [were] never
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interrogated about the Haysom crimes nor had their hair or blood
samples compared with crime scene samples – was clearly
exculpatory.” We do not agree.
“[S]uppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence
is material either to guilt or to punishment, irrespective of
the good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). Favorable evidence is
material “only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence
in the outcome.” United States v. Bagley, 473 U.S. 667, 682
(1985). Accord Kyles v. Whitley, 514 U.S. 419, 433, 434 (1995).
In other words, a petitioner must show that when the case is
evaluated in the context of the entire record, including the
omitted evidence, a jury would have entertained a reasonable
doubt regarding petitioner’s guilt. See Bagley, 473 U.S. at
682; United States v. Agurs, 427 U.S. 97, 112-13 (1976). Accord
Kyles, 514 U.S. at 460 (Scalia, J., dissenting).
Additionally, evidence that is inadmissible at trial is not
“evidence” at all, for Brady purposes. Wood v. Bartholomew, 516
U.S. 1, 5-6 (1995). Thus, it is not “reasonably likely” that
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disclosure of such information would result in a different
outcome at trial. Id. at 8.
Urging denial of the habeas petition, the Attorney General
contends that “the information concerning Albright and Shifflett
would not have been admissible at Soering’s trial.” Evidence
proffered by an accused that merely suggests a third party may
have committed the crime charged is inadmissible; only when the
proffered evidence tends clearly to point to some other person
as the guilty party will such proof be admitted. Karnes v.
Commonwealth, 125 Va. 758, 766, 99 S.E. 562, 565 (1919). Accord
Oliva v. Commonwealth, 19 Va. App. 523, 527, 452 S.E.2d 877, 880
(1995). Although we have considerable doubt of the correctness
of the convict’s argument on this issue, we will agree with him
for the purpose of this discussion and assume, without deciding,
that the evidence would have been admissible at his trial.
We hold, however, that the convict has not established that
material exculpatory evidence was withheld from his defense.
Upon review of this entire record, we conclude there is no
reasonable probability that, had the evidence in question been
disclosed to the defense, the result of the criminal trial would
have been different. “The mere possibility that an item of
undisclosed information might have helped the defense, or might
have affected the outcome of the trial, does not establish
‘materiality’ in the constitutional sense.” Agurs, 427 U.S. at
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109-10. At most, the convict has established only such “mere
possibility.”
For example, there is no connection whatever between
Albright and Shifflett and the Haysom murders. The convict only
has proven that the men were present in the same county where
the Haysoms were murdered near the time of the killings, and
that the vagrants may have possessed a knife that may have been
similar to the one used to kill the Haysoms. As the habeas
judge pointed out, “There are no confessions, no matching blood
on the knife, no matching fingerprints, no stolen articles, no
connection between these two men and Elizabeth Haysom . . . and
no logical explanation as to why two drunken robbers and
murderers would kill the Haysoms without taking valuables,
vehicles and liquor.”
Also, except for the stabbing of the victims, the Millikin
and Haysom murders were dissimilar, as the habeas judge stated.
The respective murders differed in motivation as well as method.
The Haysom killings, committed earlier in time, involved
slashing of the victims’ throats with severing of carotid
arteries and jugular veins. Millikin’s throat was stabbed, not
slashed, and he was sexually disfigured, a circumstance not
present in the Haysom crimes. Albright and Shifflett were
motivated by a desire to rob their victims. The Haysom murders
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were not motivated by robbery; many valuable items in plain view
were left intact in the Haysom home.
Additionally, in order to entertain a reasonable doubt
based on the theory that the Haysoms were murdered by Albright
or Shifflett, or both, acting with Elizabeth, the jury would
have to disregard the overwhelming evidence presented at
Soering’s criminal trial that he alone committed the murders.
For example, he confessed repeatedly in great detail, and the
majority of those details fit the facts developed by the
criminal investigation: the slashing of the victims’ throats
compatible with the manner he said he held the knife; the
injuries he sustained during the violence at the time of the
murders, which injuries were later observed at the funeral; the
exterior lights left burning by the murderer controlled by a
switch in a back bedroom, a location unknown to a stranger to
the home like Soering, but known to a family member like
Elizabeth; and documentary evidence (letters and diary entries)
implicating him in the crimes, just to mention a few of the many
circumstances consistent with his confessions. Moreover,
Soering had a motive to kill his lover’s parents, who opposed
his relationship with their daughter. And, his flight to Europe
after avoiding the police, resulting in the forfeiture of
valuable scholarships, is also consistent with his admitted
guilt.
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In sum, the convict has failed to establish he is entitled
to habeas relief. Confidence in the outcome of his criminal
trial has not been undermined.
Therefore, the judgment of the habeas court will be
affirmed and the petition for a writ of habeas corpus will be
denied.
Affirmed and writ denied.
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