‘Insanity’ judgments excluded ‘convictions’ under expungement statute, COA rules

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An appellate panel has determined that individuals adjudicated as not responsible by reason of insanity may not have that finding expunged from their records pursuant to Indiana Code section 35-38-9- 1. It thus rejected a man’s request to have his murder charge removed from his record.  

As Keith and Terri Krieger were getting into their vehicle in a Clarksville mall parking lot in 2001, Alan Berryman approached them. Berryman grabbed Keith, accused him of trying to “set up” Berryman and shot him to death.  

Berryman was subsequently charged with murder but was found not responsible by reason of insanity. Thus, Berryman was involuntarily committed to a state hospital. Upon his release, Berryman was denied his petition to expunge and seal records pursuant to I.C. section 35-38-9-1. 

A motion to correct error was similarly denied, prompting Berryman’s appeal in Alan Lee Berryman v. State of Indiana, 18A-XP-2433.
Berryman specifically questioned whether a judgment of NRRI is a “conviction” as the term is used in the statute.  

“While the question Berryman presents about Indiana Code section 35-38-9-1 is one of first-impression in Indiana, our standard for reviewing this class of questions is well settled,” wrote Judge Melissa May for the appellate court. “…Unfortunately, the legislature did not define ‘conviction’ in Indiana Code section 35-38-9-1 or elsewhere in Title 35 of the Indiana Code.” 

Relying on the Black’s Law Dictionary definition of the term and considering the General Assembly’s intent in using it, the appellate court concluded the Legislature intended “conviction” as used in the statute to encompass a NRRI judgment because “to hold otherwise would be absurd and unjust, which could not have been the legislature’s intent.” Thus, because the statute allows only those arrested but not convicted of a crime to seek expungement, its expungement provisions were not available to Berryman.

The appellate court cited cases from Pennsylvania, Virginia and New Hampshire where expungement statutes were interpreted to not extend to NRRI or similar judgments. In Commonwealth v. B.C., Eastlack v. Commonwealth and State v. Bulcroft, all three individuals found guilty by reason of insanity were denied requests to annul their records in some form or another because their release could create a substantial risk or injury to others. 

“These policy concerns apply equally in Indiana, and we find them persuasive,” May continued. “…If Berryman’s expungement petition were granted, the record of his heinous crime would be sealed and unavailable to the public. The legislature could not have intended such a result.”

The appellate court further noted that people have the “right to know if their neighbors have committed violent acts and to use this knowledge to ensure their own safety,” and that Berryman remained in state custody after the NRRI verdict because he remained a threat to the public. 

“At the hearing, Berryman argued he has trouble obtaining housing and employment because of the record of his charge. This is like B.C.’s argument that his arrest and his subsequent not guilty by reason of insanity verdict interfered with his ability to obtain better employment,” the panel wrote. “However, like the Superior Court of Pennsylvania, we are not persuaded that permitting Berryman to expunge his record is in the best interest of public safety. Consequently, we construe the term ‘conviction’ to include a NRRI verdict for purposes of Indiana Code section 35-38-9-1.” 

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