By CRISTINA JANNEY
Hays Post
A motion has been filed for a new trial or an acquittal by a man convicted of conspiracy to commit murder in 2015 in Trego County.
The motion was made on behalf of Scott Bollig, who was convicted of conspiracy to commit murder of the unborn child carried by his girlfriend Naomi Abbott.
Bollig is currently serving almost 10 years in prison on the conviction.
The motion stems from a diversion agreement entered into by former WaKeeney Police Chief Terry Eberle. Eberle collected a cellphone and later testified about that acquisition at Bollig’s trial.
In a diversion agreement reached earlier this year, Eberle admitted he had perjured himself in an unrelated case.
The defense argues Bollig’s cellphone was obtained under duress. His attorney said in his motion Eberle’s testimony Bolliq gave consent to law enforcement to access his phone is in question. He further argues if the phone was obtained under duress, that would have excluded the cellphone from the original trial and possibly changed the outcome of the jury’s verdict.
Eberle was originally investigated on an unrelated case and charged with blackmail, harassment, attempted interference with law enforcement, and intimidation of a witness or victim, tampering with a public record, and two counts of theft. The intimidation of a witness charges related to a call made to the Trego County Emergency management director to try to get her to lie in a statement concerning the prosecution of Eberle’s son, Joshua Eberle.
The tampering with a public record charge related to what the KBI said was changes Eberle made to overtime records.
After a further KBI investigation, Eberle was charged in December 2017 with perjury and eight counts of making a false writing.
Eberle entered an Alford plea on a charge of criminal misconduct, and entered into the diversion agreement on a perjury charge.
The response filed by Assistant Kansas Attorney General Jessica Domme argues Bollig should not be granted a new trial.
The motion said it is well-established law new trials are not granted on the basis of newly discovered evidence that tends merely to impeach or discredit the testimony of a witness.
Domme argued even if the defense had been able to impeach Eberle’s testimony through the diversion agreement, the jury would not have come to a different verdict. The motion said the court’s decision to allow the admission of the cellphone texts took into other points besides Eberle’s testimony that Bollig gave up his phone voluntarily.
The state further asserts only a conviction and not a diversion agreement is admissible to impeach a witness.
The defense in its motion also alleged a Brady violation. The prosecution has an obligation to disclose any information that might be positive to the defense’s case. However, Eberle’s diversion agreement could not be presented prior to Bollig’s 2015 trial, because it was not entered into until this year.
“Regardless of Eberle’s trial testimony, substantial evidence supports (Bollig’s) conviction for conspiracy to commit murder beyond a reasonable doubt,” Domme said in her motion.