State v. Bollig ( 2020 )

MODIFIED OPINION1
NOT DESIGNATED FOR PUBLICATION
No. 120,398
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SCOTT R. BOLLIG,
Appellant.
MEMORANDUM OPINION
Appeal from Trego District Court; GLENN R. BRAUN, judge. Original opinion filed February 21,
2020; modified opinion filed June 29, 2020. Reversed and remanded with directions.
Daniel C. Walter, of Walter & Walter, LLC, of Norton, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., MALONE and ATCHESON, JJ.
ATCHESON, J.: This court issued an opinion on February 21, 2020, remanding this
case to the Trego County District Court for an evidentiary hearing on Defendant Scott
Robert Bollig's motion for a new trial. The State timely filed a motion for rehearing or
modification. Bollig did not file a response. We have considered the State's motion and
find no reason to change the result we originally reached. We have, however, elaborated
1
REPORTER'S NOTE: Opinion No. 120,398 was modified by the Court of Appeals on
June 29, 2020, in response to the State's motion for rehearing or modification.
1
on the legal bases for our ruling in light of points the State has raised. Apart from the
additional explanation, this modified opinion closely tracks our February 21 opinion. We
originally decided this appeal on the briefs and have concluded oral argument would not
now be of material assistance.[*]
[*]The panel for the February 21 opinion include Judge G. Joseph Pierron. Upon
Judge Pierron's retirement, Judge Thomas E. Malone was added to the panel and has
participated fully in ruling on the State's motion for reconsideration and the issuance of
this modified opinion.
A jury sitting in Trego County District Court in late 2015 convicted Bollig of
conspiracy to commit murder for plotting to cause his pregnant girlfriend to miscarry.
Terry Eberle, then the WaKeeney police chief, participated in the criminal investigation
and testified as a State's witness in pretrial hearings and the 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. Armed
with that information, Bollig's lawyer filed a motion for a new trial under K.S.A. 2019
Supp. 22-3501(1).
After a nonevidentiary hearing on the new trial motion in November 2018, the
district court filed a short journal entry denying Bollig any relief. On Bollig's appeal, we
find the district court took too narrow a view of Eberle's misconduct and should have
held an evidentiary hearing. In addition, the district court's findings are so terse we would
be hard pressed to make a meaningful appellate review of them. We, therefore, reverse
the district court's ruling denying the motion for a new trial and remand for further
proceedings, including an evidentiary hearing.
2
FACTUAL AND PROCEDURAL HISTORY
In explaining our decision, we dispense with a detailed discussion of the facts
underlying Bollig's prosecution—they are convoluted and largely extraneous to our
determination that the district court acted prematurely in denying the new trial motion.
The parties, of course, are familiar with the circumstances, and we captured an overview
in ruling on Bollig's earlier appeals in this case. See State v. Bollig, No. 115,408, 2018
WL 1976689 (Kan. App. 2018) (unpublished opinion) (affirming in part and remanding
in part for further consideration of suppression issue); (Bollig I); State v. Bollig, No.
115,408, 2018 WL 3945934 (Kan. App. 2018) (unpublished opinion) (affirming denial of
motion to suppress following remand) (Bollig II).
The State's evidence against Bollig showed that he secretly placed an abortifacient
in his girlfriend's food. She miscarried several days later. The girlfriend testified at trial
that Bollig had confessed to her after her miscarriage. Bollig testified in his own defense
and told the jury he had obtained Mifepristone and Misoprostol, drugs administered
sequentially as a common form of medication abortion, at his girlfriend's request and she
took the Mifepristone herself. Bollig's account didn't mesh well with other evidence and
imputed a peculiar course of conduct to his girlfriend in light of that evidence. See Bollig
I, 2018 WL 1976689, at *9-10. He said he never confessed to giving the drug to his
girlfriend without her knowledge.
Eberle and Kevin Campbell, an agent with the Kansas Bureau of Investigation,
interviewed Bollig at the WaKeeney Police Department on consecutive days about three
weeks after Bollig's girlfriend miscarried. Toward the end of the first meeting, Bollig
signed consents to search his smartphone and personal computer and turned those devices
over to the officers. In a suppression hearing, Bollig testified that he signed the consents
because he was told he could have his smartphone back the next day and was promised
nothing would happen to him if he cooperated with the investigators. Eberle testified that
3
no threats or promises had been made to Bollig and he knowingly and voluntarily signed
the consents. In deciding the suppression against Bollig, the district court specifically
credited Eberle's version of the meeting and discounted Bollig's. See Bollig II, 2018 WL
3945934, at *1.
A search of the smartphone yielded a series of text messages between Bollig and a
nurse with whom he had an ongoing intimate relationship. They discussed drugs that
could be used to induce Bollig's girlfriend to miscarry and how she might be tricked into
taking them. Those text messages established the conspiracy and were critical to the
State's case on that charge.[1]
[1]The State also charged Bollig with intentional first-degree murder for the
miscarriage of his girlfriend's fetus. See K.S.A. 2019 Supp. 21-5419 ("unborn child"
within definition of "person" as used in statutes criminalizing various degrees of
homicide, including first-degree murder). The jury returned a not guilty verdict on the
murder charge, a result that can be reconciled with the conspiracy conviction in light of
the evidence. See Bollig I, 2018 WL 1976689, at *10, n.2.
The day after he turned over his smartphone and computer and signed the consents
to search, Bollig returned to the police station and was again questioned by Eberle and
Campbell. Eberle testified at trial that Bollig admitted making breakfast for his girlfriend
one morning and lacing her pancakes with Mifepristone. At trial, Bollig denied making
any such statement to Eberle and Campbell.
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 it was presented to the district court in support of his motion for a new trial. Eberle's
diversion agreement basically required him to be law abiding for five years (through
February 2023), and if he succeeded, the State would dismiss the charges against him
with prejudice. Eberle also agreed not to run for public office or to seek employment as a
law enforcement officer during the term of the diversion agreement.
4
As is common, Eberle's diversion agreement contains a fairly detailed factual
statement to which he stipulated; and Eberle acknowledged that if he violated the
agreement, the stipulation would be used as the exclusive evidence in the renewed
criminal prosecution of him. We do not set out the stipulated facts at length here. 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.
After receiving Bollig's motion for a new trial and the associated exhibits,
including Eberle's diversion agreement, the district court held what it characterized as a
"preliminary inquiry" to determine if an evidentiary hearing would be required to decide
the motion. Lawyers for the State and Bollig made arguments to the district court but
offered no additional evidence in keeping with the limited scope of the hearing. The
district court filed a short journal entry about three weeks later denying Bollig's new trial
motion. The district court recognized Eberle's diversion agreement and the admissions it
contained constituted new evidence under K.S.A. 2019 Supp. 22-3501(1) with respect to
Bollig's prosecution. But the district court concluded without any real explanation that the
new evidence—presumably meaning the specific stipulations in Eberle's diversion
agreement—would not have changed either the outcome of the jury trial or its ruling on
the earlier motion to suppress.
Bollig has appealed the denial of his motion for a new trial.
5
LEGAL ANALYSIS
Standards Governing New Trial Motions
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
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
6
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).
District Court Erred in Denying Bollig an Evidentiary Hearing
Here, the district court applied too narrow a legal framework in denying the
motion without an evidentiary hearing and, thus, abused its discretion. A district court
should look at an array of factors in determining the need for an evidentiary hearing:
"'(1) whether the motion alleges facts which do not appear in the original record which, if
true, would entitle [the movant] to relief; (2) whether the motion adequately identifies
readily available witnesses whose testimony would support these new facts and
demonstrate that [the movant] should receive a new trial; and (3) whether [the movant's]
newly discovered evidence could have been produced at trial through the exercise of
reasonable diligence.'" Beauclair v. State, 308 Kan. 284, 296, 419 P.3d 1180 (2018)
(quoting Moncla, 285 Kan. at 840).
Bollig's motion considered with the stipulation in Eberle's diversion agreement was
consistent with those factors and favored an evidentiary hearing. As the district court
found, Eberle's admissions of perjury appeared nowhere in the original record of Bollig's
prosecution and they could not have been readily discovered leading up to or during
Bollig's trial. The new trial motion plainly identified witnesses (Eberle and the KBI agent
who questioned him, at the very least) who would support the requested relief.
Under the circumstances, Eberle's admission that he gave perjured testimony in
Bollig's prosecution, including during the jury trial, was never seriously disputed. That
seems more than reasonable. The State prosecuted Eberle for lying under oath and
couldn't very well argue his admissions to doing so were credible for that purpose but
should have been rejected as of doubtful credibility in considering Bollig's new trial
motion. And Eberle's admitted dereliction of duty as a sworn law enforcement officer
7
placed him in a position markedly different from most recanting witnesses. The critical
question in deciding Bollig's new trial motion was not whether Eberle provided perjured
testimony but the extent of his perjury. Nothing in the diversion agreement suggests the
perjurious statements identified there necessarily constituted the universe of Eberle's false
testimony. The district court cut off Bollig's ability to answer the critical question by
denying his motion without an evidentiary hearing.
At the very least, Bollig should have been given the opportunity to subpoena and
produce Eberle for an evidentiary hearing and then to examine him about the extent of
the false statements he made in testifying as a State's witness in this case. The law
enforcement agents investigating Eberle's perjury would, likewise, be potential witnesses
at the hearing. In short, Bollig ought to be able to explore the breadth of Eberle's
perjurious testimony in this case and, within reasonable limits, his perjurious testimony in
other cases. If Eberle serially lied in criminal prosecutions, that pattern would tend to
bolster an inference his perjurious testimony against Bollig may have exceeded what he
admitted to in the diversion agreement. And it would constitute a particular form of bias
or prejudice tending to impeach Eberle's testimony in criminal cases.
Eberle's Acts of Perjury Admissible to Show Corrupt Motive and Bias or Prejudice
In its motion for reconsideration, the State contends that Eberle's admitted perjury
and any other demonstrable instances of perjury he might have committed in this case are
inadmissible character evidence and, therefore, could not have affected the outcome of
the suppression hearing or the jury trial. The State further says any perjurious testimony
Eberle might have given in other criminal cases would be similarly inadmissible. The
argument, however, takes too restrictive a view of the rules of evidence. A witness'
particular willingness to lie under oath entails a corrupt motive cutting to the heart of the
adjudicatory process and entails a much narrower form of impeachment than proof of a
general character trait for dishonesty. The impeachment here lies in Eberle's corrupt
8
motive to commit perjury, especially as a government agent and a State's witness in
criminal prosecutions, rather than in his general character. We explain why the rules
limiting general character evidence do not govern impeachment through proof of a
witness' corrupt motive to commit perjury—a narrower and quite arguably more
pernicious form of bias or prejudice.
Evidence of a witness' general character trait for "honesty or veracity or their
opposites" may be admitted to attack his or her credibility. K.S.A. 60-422(c). The
character trait may be proved through evidence of the witness' reputation, another
witness' opinion, or conviction of a crime of "dishonesty or false statement." K.S.A. 60-
420 (reputation or opinion); K.S.A. 60-421 (criminal conviction). But evidence of
specific instances of the witness' conduct on specific occasions may not be admitted as
evidence of character. K.S.A. 60-422(d).
A person's character for honesty or its opposite rests on his or her disposition to be
truthful or untruthful in the broad circumstances of life, including business and personal
pursuits. It is, then, a general attitude or manner of comportment. See Hunter v. State,
307 P.3d 8, 16 (Alaska App. 2013); Birkhamshaw v. Socha, 156 Conn. App. 453, 471-72,
115 A.3d 1 (2015). So if a person generally behaves honestly or dishonestly, that is some
circumstantial evidence he or she has behaved in a consistent fashion as a witness
testifying in court. 1 McCormick on Evidence § 195 (8th ed.) ("Character is a generalized
description of a person's disposition, or of the disposition in respect to a general trait,
such as honesty, temperance or peacefulness, that usually is regarded as meriting
approval or disapproval."). Like other generalities, however, that evidence chain isn't
necessarily a strong one. The facts of a given case may cause an otherwise truthful person
to deliberately shade his or her testimony to favor one party or the other—the textbook
example being a mother offering a false alibi for her ne'er-do-well child. Houston v.
State, No. 02-17-00025-CR, 2018 WL 1095541, at *6 & n.4 (Tex. App. 2018)
(unpublished opinion); Gershman, "The Prosecutor's Duty to Truth," 14 Geo. J. Legal
9
Ethics 309, 339 n.174 (2001) ("Where a defendant presents his mother as his alibi
witness, a prosecutor need only ask one question: 'Would you lie for your son?'"); cf.
Battle v. State, 269 So. 3d 325, 329 & n.4 (Miss. App. 2018). Conversely, a person with
only a passing concern for the truth in quotidian undertakings might be sufficiently awed
by the solemnity of the oath administered at the witness stand to strive for honesty while
testifying. See State v. Franco, 49 Kan. App. 2d 924, 936, 319 P.3d 551 (2014); In re
L.M.H., No. 108,297, 2013 WL 2395900, at *13 (Kan. App. 2013) ("[T]he principal
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.").
The exclusion of specific instance evidence as a means of proving the general
character trait for honesty or its opposite reflects practical trial considerations and the
relative weakness of the character trait, once proved, as an indicator of truthful or
untruthful testimony. The limitation is not rooted in some inherent unreliability of the
specific instance evidence itself. But, rather, a single instance standing alone easily could
be discounted as significant proof of character. Even characteristically truthful people
sometimes tell lies, and conversely liars may tell the truth from time to time.
Rules of evidence have for the most part precluded the use of specific instances to
prove general character for honesty or, more commonly, dishonesty as a bow to
practicality. First, the party attacking the witness would be disposed to offer multiple
instances of the witness making false statements, i.e., lying. The circumstances of those
lies usually would be collateral to the issues being tried. And the witness might very well
dispute some or all of those circumstances, causing the proceedings to devolve into mini-
trials over them and diverting the jurors of their central mission. On balance, the limited
usefulness of general character evidence in assessing veracity doesn't justify the
distraction proof by specific instance would inject into a hearing or trial. State v.
10
Guenther, 181 N.J. 129, 141-42, 854 A.2d 308 (2004); 1 McCormick on Evidence § 188
(8th ed.).
Impeaching witnesses with their convictions for crimes of dishonesty—a form of
specific instance evidence—largely eliminates those digressions. The impeaching party
presumably will rely on an attested copy of a judgment of conviction establishing the
crime and the witness' identity as the criminal. See K.S.A. 2019 Supp. 60-460(r)
(judgment of conviction not excluded as hearsay when offered to prove any essential
fact); K.S.A. 2019 Supp. 60-465 (admissibility of attested copies of "official record").
And typically the impeaching or dishonest nature of the crime will be apparent, e.g., theft
or making a false writing. See K.S.A. 2019 Supp. 21-5801 (theft); K.S.A. 2019 Supp. 21-
5824 (making false information). Impeachment by criminal conviction is, thus,
essentially self-contained, quite linear, and seldom open to serious dispute. Guenther, 181
N.J. at 142.
The Kansas evidentiary rules governing the proof of character evidence for
witness impeachment do not permit the use of specific instances of honesty or dishonesty
for that purpose, except for a conviction of a crime of dishonesty. Eberle's admissions of
perjury and the statements in his diversion agreement could not be used to impeach him
by showing he has a general character trait of dishonesty. The flaw in the State's position
doesn't lie so much in its analysis of the law on character evidence; it lies in confining the
argument to that mode of impeachment.
The credibility of witnesses testifying during a hearing or at trial is always
relevant. And a witness' credibility may be challenged in different ways, including but
not limited to his or her general character trait for honesty or its opposite. For example, a
witness may not have been in a position to see clearly what he or she has recounted while
testifying. Or the witness may have difficulty remembering what he or she did see. Those
are problems of perception and recollection that may call into question the accuracy of
11
the factual rendition, although they do not particularly suggest mendacity. An honest
witness may, nonetheless, be a mistaken witness. More to the point here, a witness may
have a bias, prejudice, or some interest in the outcome of the case or be given to another
form of partiality that could shade his or her testimony. State v. Ross, 280 Kan. 878, 886,
127 P.3d 249 (2006) ("'"[P]roof of bias is almost always relevant because the jury, as
finder of fact and weigher of credibility, has historically been entitled to assess all
evidence which might bear on the accuracy and truth of a witness' testimony."'" [quoting
State v. Knighten, 260 Kan. 47, 54, 917 P.2d 1324 (1996)]); Lindquist v. Ayerst
Laboratories, Inc., 227 Kan. 308, 315, 607 P.2d 1339 (1980) ("[E]vidence of bias or
prejudice of a witness is relevant and may be shown on cross-examination or in rebuttal
or by other witnesses or evidence."); State v. Scott, 39 Kan. App. 2d 49, 56, 177 P.3d 972
(2008) ("One of the methods or techniques for attacking the credibility of a witness is to
show partiality, including bias, motive, and interest in the outcome.").
The overarching objective of the rules of evidence is to present a fact-finder with
all relevant evidence absent an explicit exclusion. K.S.A. 60-407(f). Typically, evidence
relevant and admissible for one purpose but not for another should be admitted, subject to
an appropriate limiting instruction if requested by the disadvantaged party. K.S.A. 60-
406; State v. Araujo, 285 Kan. 214, 221, 169 P.3d 1123 (2007). So evidence that would
be inadmissible to prove a general character trait of the witness may be admitted if it
would otherwise be relevant either as bearing on the witness' credibility or for some other
purpose. See United States v. Figueroa, 548 F.3d 222, 229-30 (2d Cir. 2008); Fed. R.
Evid. 608, Advisory Committee Notes to 2003 Amendments (proof of specific instances
of witness' untruthfulness may be considered for impeachment on grounds other than
character, such as bias).
In the context of a testifying witness, bias or prejudice is commonly thought of as
a reason that person would have to skew his or her account to favor one party (bias) or to
discredit the other (prejudice) based on some individualized like or dislike of that party.
12
But a corrupt motive or reason for giving false testimony need not be so personalized or
narrow to evince an impeachable bias or prejudice. Longus v. United States, 52 A.3d 836,
850 (D.C. App. 2012) (bias includes witness' personal disposition for or against a party
and any distinct motive to lie); Wright & Miller, 27 Federal Practice and Procedure:
Evidence § 6095 (2d ed.) (recognizing John H. Wigmore's inclusion of witness
corruption as form of bias). The demonstrable willingness of a government agent to
provide knowingly false testimony to advantage the prosecution in a criminal case entails
a form of bias distinct from the general character trait for honesty or its opposite. See
Johnson v. Brewer, 521 F.2d 556, 563 (8th Cir. 1975); Morgan v. State, 54 P.3d 332,
335-36 (Alaska App. 2002) (acknowledging admissibility of witness' "corruption,"
including the willingness to give false testimony or an admission to having given false
testimony, as a form of bias or interest bearing on credibility); Bennett v. State, 307 Ark.
400, 404, 821 S.W.2d 13 (1991) (undercover officer's perjured testimony called into
question veracity of other inculpatory testimony, requiring new trial); Longus, 52 A.3d at
853-54 (trial court improperly restricted examination of police officer for bias based on
"corruption" entailing "'a willingness to obstruct the discovery of the truth by
manufacturing or suppressing testimony'") (quoting In re C.B.N., 499 A.2d 1215, 1219
[D.C. App. 1985]); cf. People v. Bell, 74 Mich. App. 270, 284-85, 253 N.W.2d 726
(1977) (police officer's sworn admission to committing perjury in earlier case admissible
to attack credibility in present case).
Forty-five years ago, the Johnson court recognized the propriety of allowing proof
that a repeat informant for the government "was completely insensitive to the obligations
of his oath and . . . had, as demonstrated in a parallel case, neither compunction nor
scruple against 'framing' a man." 521 F.2d at 560-61. In short, a government agent might
be of honest character in his or her general affairs but willing to provide perjurious
testimony to aid in the prosecution of accused criminals. If the accused can reliably prove
examples of the agent having lied under oath, that evidence would be admissible in a trial
13
to show bias or prejudice as a means of impeachment distinct from general character
evidence.
That sort of bias may be proved in the same manner as other forms of witness bias
or prejudice. A party may challenge the witness with specific instance evidence tending
to establish the bias or prejudice and, in turn, may introduce extrinsic evidence of those
instances in the face of an equivocation, a claimed lapse of memory, or a denial from the
witness. See Scott, 39 Kan. App. 2d at 56; Johnson, 521 F.2d at 562 & n.13 ("[I]t is the
universal holding of the authorities that as to bias the cross-examiner is not bound by the
answer[,]" so extrinsic evidence may be admitted.); Wright & Miller, 27 Federal Practice
and Procedure: Evidence § 6095 (2d ed.).[2]
[2]As with other forms of relevant evidence, the district court retains the discretion
to exclude specific instance evidence if its prejudice outweighs its probative value. State
v. Miller, 308 Kan. 1119, 1167, 427 P.3d 907 (2018). In that context, prejudice includes
potential juror confusion arising from substantially conflicting accounts of the specific
instances or an inordinate consumption of trial time. See State v. Graham, 244 Kan. 194,
199, 768 P.2d 259 (1989); State v. Boysaw, 52 Kan. App. 2d 635, 645, 372 P.3d 1261
(2016), aff'd 309 Kan. 526, 439 P.3d 909 (2019).
The District of Columbia appellate courts have regularly explored what they have
referred to as "corruption bias." See Smith v. United States, 180 A.3d 45, 51 (D.C. App.
2018); Coates v. United States, 113 A.3d 564, 566, 569 (D.C. App. 2015); Longus, 52
A.3d 852-53. As we have indicated, the bias rests in a witness' willingness to corrupt the
truth-seeking function of the judicial process—most particularly in jury trials—by
knowingly testifying falsely himself or herself or otherwise procuring false evidence,
often by pressuring others to perjure themselves. Longus, 52 A.3d at 854; see also
Coates, 113 A.3d at 572-73 (citing Longus, 52 A.3d at 852). Conceptually, corruption
bias carries forward the recognized impeachment rules outlined in Johnson, 521 F.2d at
560-64 & nn.12-13, and the authorities cited there. Those principles governing
impeachment of a witness based on bias—whether rooted in a personal predisposition for
14
or against a party or in an intent to corrupt the judicial process with perjurious
testimony—are fully consistent with the rules of evidence in Kansas.
The circumstances here present a near paradigmatic example of corruption bias. In
a diversion agreement to resolve his own prosecution for official misconduct, Eberle has
admitted he twice knowingly testified falsely in Bollig's prosecution, once in the
preliminary hearing and once in front of the jury. The admission would seem to be
indisputable, although Eberle theoretically could say he lied about committing perjury in
Bollig's case to get an advantageous result in his own case. That would be a legal and
logical curlicue just about equally demonstrative of corruption bias. But the scope of
Eberle's bias and, in turn, his potentially false testimony hasn't been established. The
diversion agreement doesn't purport to be a full accounting of Eberle's perjury. Bollig
should have the opportunity to develop and present evidence on Eberle's corruption bias
in a hearing on his new trial motion.
Eberle's demonstrable perjury in the prosecution of Bollig actually serves twin
evidentiary purposes in assessing the new trial motion. The false evidence may have had
an adverse substantive impact on the outcome of various proceedings in that prosecution,
most notably, of course, the jury trial. That is, the jurors may have materially relied on
perjurious statements in arriving at their verdicts. Because Eberle has admitted giving
knowingly false testimony as part of the State's case, Bollig should be permitted to probe
the extent of that misconduct in his case. If Eberle offered false testimony about other
matters in Bollig's trial, the perjurious statements may have substantively undermined the
reliability of the outcome.
Apart from the substantive effect of that misconduct, Eberle's decision to
deliberately testify falsely also supports corruption bias. As we have explained,
corruption bias—like other forms of bias or prejudice—reflects an appropriate tool for
witness impeachment. A fact-finder may, then, reasonably decide to give little or no
15
credence to an obviously biased witness. Again, given Eberle's admissions in his
diversion agreement, Bollig has a good-faith basis to explore the extent of Eberle's
corruption bias as part of an evidentiary hearing on his new trial motion. Additional
instances of Eberle's perjury in this case or a pattern of presenting false evidence across
criminal prosecutions would strengthen his impeachment by corruption bias and, in turn,
would tend to discredit his testimony generally.
Under the circumstances, the State cannot very well dodge that sort of inquiry with
its claim of "fishing expedition"—a phrase that in legal parlance has come to signify the
attempt of one litigant to rummage around more or less randomly, typically using
evidentiary hearings or discovery tools, in a search for evidence adverse to an opposing
litigant without any reason to believe such evidence exists. Here, the State presented,
albeit unwittingly, the perjured testimony of Eberle in service of Bollig's prosecution and
conviction. In the face of Eberle's clear admission of lying under oath in this case, Bollig
should be afforded the opportunity to explore the depth of that misconduct, both in this
case and in other prosecutions as bearing on Eberle's corruption bias.
Because the Kansas evidence rules permit Bollig to develop the extent of Eberle's
corruption bias through specific instances of his giving perjurious testimony in this or
other criminal prosecutions, we need not decide whether the rights of criminal defendants
to confront the witnesses against them guaranteed in the Sixth Amendment to the United
States Constitution and § 10 of the Kansas Constitution Bill of Rights would
independently permit that sort of cross-examination. See Lyng v. Northwest Indian
Cemetery Prot. Assn., 485 U.S. 439, 445-46, 108 S. Ct. 1319, 99 L. Ed. 2d 534 (1988)
(courts should refrain from deciding constitutional issues if case may be resolved on
other grounds).
The United States Supreme Court has recognized that in some circumstances
statutory restrictions on what may be admitted as evidence must yield to a criminal
16
defendant's Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 319-
20, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974). The constitutional right necessarily includes
effective cross-examination to expose a witness' "possible biases, prejudices, or ulterior
motives of the witness as they may relate directly to issues or personalities in the case at
hand." 415 U.S. at 316. In Davis, the Court held that a trial court committed reversible
constitutional error by relying on an Alaska statute keeping juvenile prosecutions
confidential to prevent the defendant from cross-examining a key witness against him and
presenting other evidence showing the witness remained on probation in a juvenile case
and, therefore, had an incentive to curry favor with the State. 415 U.S. at 308.
Citing Davis, this court held that a criminal defendant's right of confrontation
overrode the limitation in K.S.A. 60-422(d) on specific instance evidence to permit cross-
examination and the admission of other evidence to show that the victim in a rape case
had made false accusations of sexual assault on other occasions. State v. Barber, 13 Kan.
App. 2d 224, 226, 766 P.2d 1288 (1989). More recently, other courts have recognized the
constitutional right of confrontation as an alternative basis for admitting evidence of
specific instances of a state's witness having testified perjuriously to show corruption
bias. See Coates, 113 A.3d at 572-73.
Denial of Evidentiary Hearing Cannot Be Treated as Harmless
In its motion for reconsideration, the State posits that the extent of Eberle's
perjurious conduct as a law enforcement officer testifying in this case or other criminal
prosecutions would make no difference. The premises underlying the argument are askew
and the conclusion unpersuasive. Under the circumstances, Bollig should be allowed to
develop an evidentiary record: The opportunity to make his case for a new trial because
of Eberle's dereliction. We say no more than that.
17
First, the State suggests the jury must have disbelieved Eberle when he testified
that Bollig confessed to putting Mifepristone in his girlfriend's pancakes because it found
him not guilty of the charged murder of the fetus. As we have said, Bollig denied making
such a statement. But the jury could have credited Eberle's testimony and concluded there
was a reasonable doubt that Bollig's actions caused the miscarriage. The jury heard expert
medical testimony that a significant number of pregnancies end with spontaneous
miscarriages, a possibility the physicians could not rule out in this case. We can't say how
much weight the jury gave Eberle's testimony, and there was substantial evidence of
Bollig's guilt apart from that testimony. But we may fairly presume the jurors would have
been more skeptical of Eberle's testimony if they knew he was an admitted perjurer. And
that skepticism presumably would have been proportionate to the nature and extent of his
perjury, at least to some outer point of diminishing returns.
Second, the State correctly says the text messages retrieved from Bollig's
smartphone formed the backbone of the conspiracy charge on which the jury did convict
him. And that evidence would have been undiminished in the jurors' eyes, even if they
knew Eberle perjured himself during the trial. But that evidence was available to the State
at trial only because the district court denied Bollig's motion to suppress—a decision the
district court predicated on Eberle and Campbell being more credible witnesses than
Bollig at the pretrial hearings. On that basis, the district court discarded Bollig's
testimony that he consented to the search of his smartphone only because of specific
promises Eberle and KBI Agent Campbell made to him. Eberle and Campbell testified in
summary fashion that they neither threatened Bollig nor made promises to him. Agent
Campbell has been mostly a spectral presence in this case. He testified at one of the two
suppression hearings. And he testified only briefly during the trial, providing no details
about the interviews with Bollig. In short, Eberle was the law enforcement face of the
investigation, particularly regarding direct contact with Bollig.
18
We have no way of knowing what Eberle would say in an evidentiary hearing.
Neither, of course, did the district court. We, likewise, have no idea what Eberle may
have told the law enforcement officers investigating him and how that compares to what
he eventually admitted in the diversion agreement. The gravity of Eberle's apparent
willingness to commit perjury to advance the successful prosecution of Bollig—conduct
deliberately aimed at corrupting the mission of the criminal justice system as a truth-
seeking process in which a person's liberty hangs in the balance—calls for an evidentiary
hearing on the motion for a new trial.
Even if Eberle were to admit and minimize his perjury on other occasions or to
deny giving any other perjurious testimony, the district court might be persuaded that
those characterizations were themselves prevarications based on Eberle's demeanor and
manner in responding to surgical questioning about his misconduct. State v. Scaife, 286
Kan. 614, 624, 186 P.3d 755 (2008) ("[T]he ability to observe the declarant is an
important factor in determining whether he or she is being truthful."); Franco, 49 Kan.
App. 2d at 936 ("'The judicial process treats an appearance on the witness stand, with the
taking of an oath and the rigor of cross-examination, as perhaps the most discerning
crucible for separating honesty and accuracy from mendacity and misstatement.'")
(quoting State v. Bellinger, 47 Kan. App. 2d 776, 787, 278 P.3d 975 [2012] [Atcheson, J.,
dissenting]). Bollig may be able to present reliable evidence from other witnesses that
Eberle offered perjured testimony in addition to what he has admitted in the diversion
agreement. An evidentiary hearing, then, might persuade the district court to take a
different view on the merits of Bollig's request for a new trial. Or it might not.
The district court could conclude that it should have ruled differently on the
suppression motion, which would have substantially limited the State's evidence
particularly bearing on the conspiracy, or that a jury realistically might have viewed the
evidence differently, depending on the scope of Eberle's perjurious testimony during the
trial. Conversely, the district court might well find no legally sufficient reason to grant
19
Bollig a new trial. Either way, however, the district court's conclusion would be based on
a full airing of the relevant circumstances, something that seems to have been lost in the
denial of the motion summarily based only on the lawyers' arguments. We, of course, do
not mean to suggest how the new trial motion ultimately ought to be decided.
For those reasons, we find the district court should have granted Bollig an
evidentiary hearing on his motion for a new trial. We, therefore, reverse the denial of the
motion and remand for an evidentiary hearing—assuming Bollig still wants one—
consistent with this opinion.
Reversed and remanded with directions.
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