State v. Bollig ( 2020 )

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. Opinion filed February 21, 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., PIERRON and ATCHESON, JJ.
PER CURIAM: A jury sitting in Trego County District Court in late 2015 convicted
Defendant Scott Robert 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).
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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.
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 App. 2018) (unpublished opinion) (affirming in part and remanding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
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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
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.[*]
[*]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
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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.
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
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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.
LEGAL ANALYSIS
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.
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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).
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.
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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
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. So Bollig ought
to be able to explore the breadth of Eberle's false testimony in this case and, within
reasonable limits, his false 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.
We have no way of knowing what Eberle would say in an evidentiary hearing.
Neither, of course, did the district court. Moreover, even if Eberle admitted and sought to
minimize his perjury on other occasions or denied 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."); State v. Franco, 49 Kan. App. 2d 924, 936, 319
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P.3d 551 (2014) ("'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]).
In short, an evidentiary hearing could persuade the district court that Eberle gave
more false testimony against Bollig than he acknowledged in the diversion agreement.
And, in turn, the district court might then take a different view on the merits of Bollig's
request for a new trial. 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 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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