Opinion
No. 78-461
Decided November 2, 1978. Rehearing denied November 24, 1978. Certiorari denied January 22, 1979.
Named as an "unindicted co-conspirator" in certain indictments that were subsequently dismissed, plaintiff brought action requesting that all references to him in the indictments be expunged. The trial court granted the State's motion to dismiss, and plaintiff appealed.
Reversed
1. RIGHT OF PRIVACY — Time of Indictments — Naming of Unindicted Co-conspirator — Necessary — Case Concluded — Individual — Entitled — Expungement of Records. Although at the time indictments were issued the needs of effective law enforcement may have required naming certain individual as an unindicted conspirator, and may have thereby outweighed the harm to him as an individual, there exists no state interest in retaining his name on those documents once the case framed by the indictments has been concluded, and thus, that individual was entitled to have his name expunged therefrom.
2. Criminal Justice Records Act — Not Applicable — Unindicted Co-conspirator — Entitled — Have Named Expunged — Indictments. Since Criminal Justice Records Act makes no mention of unindicted co-conspirators, it is not applicable to preclude individual named as such from seeking to have his name expunged from indictments which had been dismissed and disposed of by plea bargaining.
Appeal from the District Court of the County of Huerfano, Honorable Albert J. Tomsic, Judge.
Samuel Berman, Harry R. Sayre, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Solicitor General, William Morris, Assistant Attorney General, for defendant-appellee.
On June 11, 1976, and February 25, 1977, a State Grand Jury returned indictments against Ernest Sandoval, then District Attorney for the Third Judicial District. Samuel Berman was named as an "unindicted co-conspirator" in one of the indictments and his name appeared in numerous places in both indictments. At oral argument, both counsel agreed that the cases against Sandoval have been disposed of by plea bargaining and these charges have been dismissed and are no longer pending.
Berman brought this action against the State, requesting that all references to him in the indictments be expunged. The trial court granted the State's motion to dismiss. We reverse.
This is not an action for damages against the State. It is merely a request by Berman that references to him in the spent indictments be expunged.
In Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972), the Supreme Court held that a person who has been acquitted of criminal charges may have the constitutional right to compel the police to return or expunge arrest data. See People v. Lichtenwalter, 184 Colo. 340, 520 P.2d 583 (1974). Expungement is required when the harm to the individual's right of privacy outweighs the public interest in retaining the records. Davidson, supra.
[1] In the instant case, Berman's right of privacy was invaded by including his name in the indictments. Assuming, without deciding, that at the time the indictments were issued the needs of effective law enforcement required naming Berman as an unindicted conspirator, and outweighed the harm to him as an individual, we see no state interest in retaining his name on these documents once the case framed by the indictments has been concluded. It is therefore proper that Berman's request be granted.
[2] The Criminal Justice Records Act, Colo. Sess. Laws 1977, ch. 340, § 24-72-301 et seq. at 1244 and Colo. Sess. Laws 1978, ch. 86 at 403, provides for access to, challenges as to accuracy of, and sealing of criminal justice records. However, (1) and (7) of the definitions section of that statute, which pertain to indictments, make no mention of unindicted co-conspirators. Therefore the statute is not applicable to the facts before us.
The judgment of the trial court is reversed, and the cause is remanded with directions to the trial court to enter an order expunging all references to Berman in the two indictments.
JUDGE PIERCE and JUDGE RULAND concur.