State v. Bollig ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,434
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SCOTT ROBERT BOLLIG,
Appellant.
MEMORANDUM OPINION
Appeal from Trego District Court; GLENN R. BRAUN, judge. Opinion filed January 20, 2023.
Affirmed.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before HURST, P.J., HILL and ATCHESON, JJ.
ATCHESON, J.: This is the fourth trip to our court for Defendant Scott Robert
Bollig in his direct appeal of a jury verdict finding him guilty of conspiracy to commit
murder for plotting to end his then-girlfriend's pregnancy against her wishes. In the most
recent appearance, we remanded to the Trego County District Court to hold an
evidentiary hearing on Bollig's motion for a new trial in light of the former WaKeeney
police chief's admission he committed perjury while testifying as a State's witness. The
district court had denied the motion without a hearing, thereby precluding Bollig from
exploring the full extent of the perjurious testimony. The district court has now held an
evidentiary hearing—at which the former police chief did not appear—and reiterated its
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ruling denying Bollig's request for a new trial. Given the evidentiary record, we find no
error in the district court's decision and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In a trial in November 2015, a jury found Bollig guilty of conspiring to commit
intentional first-degree murder as a principal in a plot to terminate his then-girlfriend's
pregnancy by secretly feeding her Mifepristone and Misoprostol, drugs commonly used
together in medication abortions. The district court later sentenced Bollig to serve 117
months in prison followed by 36 months of postrelease supervision. As far as we are
aware, Bollig remains in prison.
Bollig timely appealed the conviction. We assume the reader's familiarity with the
detailed factual and procedural history of the prosecution set out in our earlier opinions.
State v. Bollig, No. 115,408, 2018 WL 1976689 (Kan. App. 2018) (unpublished opinion)
(Bollig I) (affirming in all respects except district court's ruling on motion to suppress and
remanding for additional findings and conclusions on that issue); State v. Bollig, No.
115,408, 2018 WL 3945934 (Kan. App. 2018) (unpublished opinion) (Bollig II)
(affirming district court's denial of motion to suppress based on augmented findings and
conclusions); State v. Bollig, No. 120,398, 2020 WL 3566537 (Kan. App. 2020)
(unpublished opinion as modified) (Bollig III) (remanding to district court to hold
evidentiary hearing on motion for new trial).
In summary, Bollig conspired with a nurse, with whom he had a romantic
involvement, about the best way to end his girlfriend's pregnancy after she told him she
intended to have the child. The primary evidence of the conspiracy consisted of text
messages between Bollig and the nurse taken from his smartphone. During questioning at
the WaKeeney police station, Bollig allowed WaKeeney Police Chief Terry Eberle and
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Kevin Campbell, an agent with the Kansas Bureau of Investigation, to retain the
smartphone after they displayed a search warrant permitting them to seize it. Bollig also
signed consent forms allowing investigators to examine the information stored in the
phone and on his personal computer. In a suppression hearing, Bollig testified he signed
the forms only because the officers assured him he could get his phone back the next day
and nothing bad would happen to him if he cooperated. Both Eberle and Campbell
testified without much elaboration that they made no threats or promises to Bollig during
their questioning of him. The district court denied the motion to suppress, finding the
officers to be credible and Bollig not.
At trial, Eberle testified that during a second meeting, at which Campbell was also
present, Bollig admitted crushing up a Mifepristone pill and putting it in pancakes he
prepared for his girlfriend. She ate most of the pancakes and miscarried several days
later. During her trial testimony, the woman told the jury Bollig admitted slipping the
drug to her into the pancakes. Bollig denied making any such statements and told the jury
his girlfriend voluntarily took the drug. Campbell testified only briefly and did not
discuss any interactions with Bollig. In short, Eberle offered significant testimony in both
the pretrial proceedings and at trial.
In May 2017, the Trego County Attorney charged Eberle with multiple felonies at
least some of which entailed malfeasance as police chief. About four months later, the
county attorney informed Bollig's lawyer that Eberle had acknowledged giving false
testimony in this case. After Eberle was criminally charged, he entered into a diversion
agreement to resolve the case against him. Bollig's lawyer obtained a copy of the
diversion agreement and relied on it in filing a motion for a new trial.
Eberle's diversion agreement included a stipulated factual statement. We described
the relevant portion of the stipulation this way in Bollig III:
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"The stipulation recites Eberle's testimony at Bollig's preliminary hearing that he did not
use video equipment available in the police station to record the two interviews with
Bollig and that he had never recorded anybody. During Bollig's trial, Eberle reiterated
that the interviews had not been recorded, and he told the jurors he wasn't familiar with
the video recording equipment. The stipulation states that Eberle later admitted to a KBI
agent that he had recorded interviews of suspects before Bollig's preliminary hearing and
trial. In the diversion agreement, Eberle further stipulated that he 'intentionally and
falsely testified to a material fact . . . during the BOLLIG trial in 2014 and 2015' in that
respect." 2020 WL 3566537, at *2.
After receiving Bollig's motion and the supporting documents, including the
diversion agreement, the district court held what it characterized as a "preliminary
inquiry" to determine whether an evidentiary hearing should be scheduled. Based largely
on the content of the diversion agreement, the district court decided not to receive
additional evidence, determined what Bollig had presented was insufficient to warrant a
new trial, and denied the motion without providing any detailed findings and conclusions.
Bollig appealed the denial of his motion.
In Bollig III, we reversed and remanded to the district court with directions to hold
an evidentiary hearing. Because the stipulation in the diversion agreement did not in any
way suggest Eberle's perjury was limited to what it recited, we concluded Bollig should
have been afforded the opportunity to develop the extent of Eberle's misconduct in a full
hearing. 2020 WL 3566537, at *4.
The district court conducted an evidentiary hearing on Bollig's motion for a new
trial in March 2021. Bollig neither called Eberle as a witness nor presented evidence of
instances of his perjury apart from those in the diversion agreement. Rather, Bollig
testified and primarily restated his version of the meetings with Eberle and Campbell and
the denial of any wrongdoing he offered at trial.
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The district court issued a thorough written ruling in early July denying Bollig's
motion for a new trial. The district court concluded Eberle's false testimony about being
unfamiliar with the recording equipment in the police department's interview room and
having never videotaped an interview there did not materially change the credibility
determinations it had made in deciding the motion to suppress. The district court,
therefore, ruled it had correctly denied the motion to suppress and, in turn, had properly
admitted at trial the incriminating text messages extracted from Bollig's smartphone to
prove the conspiracy. Likewise, the district court found Eberle's false testimony at trial
concerned peripheral circumstances divorced from the substantive evidence of Bollig's
guilt and would not have likely caused the jurors to change their verdict on the
conspiracy to commit murder charge.
Bollig has again appealed the denial of his motion for a new trial. We now review
the district court's written ruling from July 2021 in light of the evidentiary hearing held
four months earlier.
LEGAL ANALYSIS
We set out the standards of appellate review governing a district court's ruling on a
criminal defendant's motion for a new trial in Bollig III and restate them here:
"As provided in K.S.A. 2019 Supp. 22-3501(1), a district court may grant a
criminal defendant a new trial 'if required in the interest of justice.' The statute
specifically allows a defendant to seek relief within two years of a final judgment based
on newly discovered evidence. Nobody disputes the timeliness of Bollig's motion nor
suggests some other procedural obstacle to our consideration of the district court's ruling.
"Despite the broad charge in K.S.A. 2019 Supp. 22-3501(1), courts view motions
for new trials based on new evidence with disfavor. State v. Moncla, 269 Kan. 61, 64, 4
P.3d 618 (2000); State v. Krider, 41 Kan. App. 2d 368, 384, 202 P.3d 722 (2009). Courts
generally ascribe an assumption of regularity to a jury trial and the resulting verdict—that
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witnesses take the oath seriously and endeavor to tell the truth as they know it and jurors
diligently apply the law they are given to the facts they find to render a true verdict.
Newly discovered evidence challenging that assumption often entails an assertion from a
reluctant State's witness subpoenaed to testify at trial that he or she did so falsely. And
the recanting witness is sometimes a friend, relative, or other associate of the defendant.
Recanting witnesses tend to be viewed with skepticism, again on the assumption their
trial testimony ought to be accepted absent compelling contrary reasons. See State v.
Norman, 232 Kan. 102, 109, 652 P.2d 683 (1982); State v. Lewis, 33 Kan. App. 2d 634,
651, 111 P.3d 636 (2003).
"An appellate court reviews the ruling on a motion for a new trial for abuse of
discretion. State v. Phillips, 309 Kan. 475, 477, 437 P.3d 961 (2019). A district court
oversteps that discretion if it rules in a way no reasonable judicial officer would under the
circumstances, if it ignores controlling facts or relies on unproven factual representations,
or if it acts outside the legal framework appropriate to the issue. See Northern Natural
Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013); State
v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011)." 2020 WL 3566537, at *3.
This is an atypical new trial issue in that there is no question Eberle perjured
himself in the prosecution of Bollig. In the common scenario, a reluctant State's witness
later recants his or her trial testimony inculpating the defendant. So, a critical
determination rests on figuring out when the witness told the truth—during the trial or in
recanting? Here, the key questions are the extent of Eberle's perjury and what impact
those prevarications would likely have had on the fact-finders.
Our review looks at two interconnected issues that spin off Eberle's credibility, as
the district court recognized and as we suggested in Bollig III. 2020 WL 3566537, at *10.
First, would Eberle's admitted perjury have caused the district court to reassess and
change its credibility determinations in ruling on the motion to suppress and, in turn, to
grant the motion? Exclusion of the text messages at trial would have dealt a highly
injurious (and perhaps fatal) blow to the State's evidence establishing the criminal
conspiracy. Second, would the jurors have "likely" reached a different conclusion if they
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knew about Eberle's perjury? See State v. Dean, 310 Kan. 848, 856, 450 P.3d 819 (2019)
(newly discovered evidence must be of such materiality, it likely would have produced
different result at trial).
On the first, we filter our review through the appellate standards for examining
district court rulings on motions to suppress. In reviewing those rulings, we apply a well-
known bifurcated standard. We ask whether substantial competent evidence supports the
factual findings, giving due deference to the district court's reconciliation of conflicting
evidence and any related credibility determinations. We then consider whether those
findings support the legal conclusion, a call we make without deferring to the district
court's ultimate ruling in granting or denying the motion to suppress. State v. Bates, 316
Kan. 174, 183-84, 513 P.3d 483 (2022); State v. Martinez, 296 Kan. 482, 485, 293 P.3d
718 (2013).
After seeing and hearing both Eberle and Bollig testify at the suppression hearing,
the district court found Eberle credible and Bollig unworthy of belief. We give great
deference to those determinations, given how they are made. The primary mechanisms
for measuring the candor and reliability of a witness are: (1) the taking of an oath to tell
the truth; (2) the rigor of cross-examination to test the statements; and (3) the fact-finder's
opportunity to gauge demeanor, especially on cross-examination. See State v. Becker,
290 Kan. 842, 846, 235 P.3d 424 (2010); State v. Scaife, 286 Kan. 614, 624, 186 P.3d
755 (2008). As appellate judges, we defer to those credibility decisions precisely because
the district court has had the opportunity to observe the witnesses as they testify—a
unique vantage point we cannot replicate from a transcript. Accordingly, the appellate
standard heavily insulates the district court's factual findings resting on the credibility of
witness testimony and the resolution of conflicting testimony.
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Those considerations drive our review of the first issue. Following the hearing on
Bollig's motion for a new trial, the district court was fully informed of the evidence
bearing on Eberle's perjury. And the district court concluded that evidence would not
have shifted its original credibility determination—a conclusion that is itself a credibility
determination. We, therefore, will not second-guess the district court's assessment. In
turn, that conclusion furnishes sufficient evidence to support the district court's finding it
would not change its ruling on Bollig's motion to suppress. We cannot ascribe legal or
factual error to that part of the district court's decision in denying Bollig's motion for a
new trial.
As to the second issue, the district court concluded Eberle's perjured testimony
about not having ever used the recording equipment in the police interview room would
not have sufficiently swayed the jurors to find Bollig not guilty of the conspiracy. We
look at the district court's decision through the decidedly deferential abuse of discretion
standard. Here, the district court understood the facts; it both presided over the jury trial
and heard the evidence Bollig produced in support of his motion for a new trial. Most
relevantly, the district court had a copy of Eberle's diversion agreement that outlined all
of the perjurious statements Bollig relied upon for relief. The district court understood the
legal principles applicable to motions for new trials; it cited the correct standard and
supporting case authority in its written order denying the motion. We are then left to
inquire, as the remaining measure for an abuse of discretion, whether no reasonable trial
judge would have come to the same conclusion in these circumstances. We are confident
the district court would not stand alone in finding the jurors still would have convicted
Bollig if they knew of Eberle's false testimony.
The district court recognized that the guilty verdict was supported with significant
evidence entirely independent of Eberle's trial testimony. For example, the conspiratorial
agreement between Bollig and the nurse was proved through the text messages from
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Bollig's smartphone. Eberle's trial testimony had no bearing on the content of those
messages or the jurors' assessment of them. Bollig's former girlfriend testified he told her
that he hid Mifepristone in her food. That confession was separate from the one Eberle
described Bollig making to him and agent Campbell at the police station. The jury had
copies of text messages between Bollig and his girlfriend discussing the possibility of an
abortion. His girlfriend told him she did not want a medication abortion under any
circumstances. She later informed him she decided against an abortion. Finally, Bollig's
testimony describing his girlfriend putting the Mifepristone on the pancakes herself made
little sense and, thus, lacked credibility, as we pointed out in Bollig I. In doing so, we
posited a series of hypothetical questions we expect reasonable jurors would have asked
of themselves or collectively in their deliberations:
"Why would [Bollig's girlfriend] opt for a medication abortion after she had adamantly
rejected that idea even when she and Bollig weighed terminating the pregnancy? Why
would [she] have had Bollig obtain drugs for a medication abortion after she told him she
intended to have their child? Why would [she] have asked Bollig to order Mifepristone
and Misoprostol from a foreign supplier rather than asking her physician? Why wouldn't
she simply take the Mifepristone pill with a sip of water rather than going through some
odd ritual with the pancakes? And why wouldn't she later take the Misoprostol, as the
protocol for the drugs required?" 2018 WL 1976689, at *9.
All of that trial evidence amply backs up the district court's reasoning in
concluding Eberle's perjury, as recited in the diversion agreement, would not have
affected the jurors' overall evaluation of the case and their resulting guilty verdict. More
to the point here, it illustrates why other district courts readily would have made the same
call in denying the motion for a new trial. The district court did not abuse its discretion in
so ruling.
Affirmed.
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