WaKEENY — A judge denied a motion Tuesday by a WaKeeney man for a new trial or acquittal, saying even if the jury had known about alleged criminal acts by the then-WaKeeney police chief, it would not have changed the evidence that convicted him.
Tuesday’s hour-long hearing in Trego County District Court was a preliminary inquiry to determine if a full evidentiary inquiry was needed in the motion of Scott Bollig on his 2015 conviction of conspiracy to commit murder.
He was accused in 2014 of lacing pancakes with an abortion drug and serving them to his then-girlfriend, causing her to miscarry her unborn child several days later.
He was tried in November 2015 on charges of first-degree murder, felony aggravated battery, misdemeanor distribution of adulterated food, conspiracy to commit first-degree murder and conspiracy to commit domestic battery.
The jury found him guilty on the lesser conspiracy charges, but the domestic battery conviction was dismissed, found to be part of the more severe crime of conspiracy to commit first-degree murder.
In Tuesday afternoon’s hearing in a packed courtroom of the Trego County Courthouse, Bollig’s attorney, Daniel C. Walter, Norton, argued that had he had been allowed to cross examine Terry Eberle, then the WaKeeney police chief, about alleged illegal acts Eberle committed as chief, the jury might have come to a different conclusion.
Eberle was arrested and charged in an unrelated case in May 2017 with blackmail, harassment by telecommunications device, attempted interference with law enforcement, intimidation of a witness or victim, tampering with a public record, and two counts each of theft, attempted official misconduct and making false information.
The former police chief pleaded guilty in February 2016 to official misconduct, admitting he had committed perjury regarding the recording of interviews in his testimony during the Bollig trial, and entered a five-year diversion agreement with the state.
Walter tried to argue Bollig’s phone was taken by Eberle and the Kansas Bureau of Investigation under duress, but Twenty-Third Judicial District Court Chief Judge Glenn Braun noted the admissibility of the phone and text messages had been ruled prior to trial.
Walter also focused on how the jury would have perceived the text messages had they known of Eberle’s actions. He said the conspiracy conviction was based solely on the texts.
“There’s absolutely no other evidence in the record except the text messages,” Walter said.
He cited newspaper articles provided in a letter to him from Trego County Attorney Chris Lyon, who took office after Bollig’s trial, outlining that, according to court documents, Eberle had allegedly committed illegal acts as far back as 2012. Had that been brought up during trial, the jury might not have given much weight to the evidence, Walters said.
“My client should get a fair chance to see if he was testifying truthfully or not,” Walters said.
The sticking point for Braun, however, was Eberle’s acts were not known to the state until nearly a year and a half after Bollig’s conviction. Braun ruled there was no evidence an investigation of Eberle was underway at the time of the trial.
But Walters said the fact Eberle knew of his actions warranted a new trial.
“Chief Eberle knew. The fact he knew, no matter wether anyone else knew, is enough it should have been exposed so I could cross examine him at every hearing,” Walters said.
Braun said, however, that knowledge by the jury would not have changed the content of the text messages.
“The text messages are what they are. Wether Chief Eberle’s acts involved crime in 2012 does not change the text messages shown to the jury,” Braun said.
Rather, the judge said, the defendant’s right to impeach the witness should have been part of the motion to suppress the cell phone and texts. He said the ruling in that motion could have been different had Eberle’s actions been known at the time.
“The jury doesn’t rule if the text messages are admissible,” he said.
Knowledge of Eberle’s alleged illegal activity would not have had an impact on the verdict, as it would not have affected the text messages themselves, Braun ruled.
“It is clear to the court the opinion on admissibility would have different,” he said in denying both the more extensive inquiry and the motion for new trial.
Walters said Bollig will appeal Braun’s ruling on the motion for new trial.