COMMONWEALTH OF KENTUCKY v. MARTHA BLEVINS, FRANCES WADDLE, CHRISTY KEITH, and JIMMY COLLINS
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RENDERED: December 18, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-000289-MR
COMMONWEALTH OF KENTUCKY
v.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE LOVELACE, JUDGE
INDICTMENT NOS. 94-CR-00003, 94-CR-00004,
94-CR-00005, 94-CR-00006, AND 95-CR-00032
MARTHA BLEVINS, FRANCES WADDLE,
CHRISTY KEITH, and JIMMY COLLINS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and MILLER, Judges.
HUDDLESTON, Judge:
The Commonwealth of Kentucky appeals from four
Wayne Circuit Court orders granting the appellees’ motion to
expunge/seal court records pursuant to Kentucky Revised Statute
(KRS) 431.076.
We affirm.
In February 1994, the Wayne County Grand Jury indicted
Martha Blevins, Frances Waddle, Christy Keith and Jimmy Collins for
the capital offense of complicity to commit murder (KRS 502.020 and
507.020) as a result of failing to prevent the murder of a young
child, Daniel Thomas Reynolds.
Reynolds died in December 1993 as a result of injuries
sustained from beatings while in the custody of his mother, Brandy
Reynolds Parker, and stepfather, Robert Parker.
Kentucky
Cabinet
for
Human
Resources
In June 1993, the
(CHR)
(now
Cabinet
for
Families and Children) obtained an emergency protective order based
on
alleged
physical
abuse
of
the
child
by
his
mother
and
stepfather. The child was temporarily placed in the custody of his
maternal grandmother and the parents were required to attend family
therapy counseling.
In August 1993, the trial court ordered that
custody of the child be returned to Brandy Parker with continued
monitoring by CHR. The appellees were employees with CHR with some
supervisory connection in varying degrees with the monitoring of
the
Parkers.
The
Commonwealth
alleged
that
the
appellees
facilitated the death of the child by failing to act to remove him
from the custody of the Parkers despite indications that he was
being physically abused.
In
June
1995,
a
jury
unanimously
found
all
of
the
appellees not guilty of the complicity to commit murder charge.1
In
January
1998,
the
appellees
filed
separate
motions
to
expunge/seal the records related to their criminal prosecutions
pursuant to KRS 431.076. The Commonwealth filed a response arguing
the public interest would not be served by sealing the records.
After a brief hearing, the trial court granted the motions and
1
Brandy and Robert Parker were tried, convicted of murder
and sentenced in relation to Daniel’s death.
-2-
ordered the expungement/sealing of the records of the court, and of
the
Kentucky
Attorney,
and
State
the
Police,
Cabinet
the
for
Office
Human
of
the
Commonwealth’s
Resources.
This
appeal
followed.
The
militates
in
Commonwealth
favor
of
argues
retaining
that
open
the
public
access
to
the
interest
records
surrounding the prosecution of these four social workers.
contends
that
continued
public
access
to
the
records
It
would
perpetuate heightened awareness in the protection of children.
It
also asserts that expungement/sealing of the records would afford
no real relief to the appellees because of the extensive publicity
that surrounded the prosecution and trial of these social workers.
The Commonwealth argues that the benefits to society in retaining
public access to the records outweighs the relief available to the
appellees by sealing the records.
KRS 431.076 provides in relevant part:
(1) A person who has been charged with a criminal offense
and who has been found not guilty of the offense, or
against whom charges have been dismissed with prejudice,
and not in exchange for a guilty plea to another offense,
may make a motion, in the District or Circuit Court in
which the charges were filed, to expunge all records
including,
but
not
limited
to,
arrest
records,
fingerprints, photographs, index references, or other
data, whether in documentary or electronic form, relating
to the arrest, charge, or other matters arising out of
the arrest or charge.
-3-
. . . .
(4) If the court finds that there are no current charges
or proceedings pending relating to the matter for which
the expungement is sought, the court may grant the motion
and order the sealing of all records in the custody of
the court and any records in the custody of any other
agency or official, including law enforcement records.
The court shall order the sealing on a form provided by
the Administrative Office of the Courts.
Every agency,
with records relating to the arrest, charge, or other
matters arising out of the arrest or charge, that is
ordered to seal records, shall certify to the court
within sixty (60) days of the entry of the expungement
order,
that
the
required
sealing
All
orders
enforcing
completed.
action
the
has
been
expungement
procedure shall also be sealed.
(5) After the expungement, the proceedings in the matter
shall be deemed never to have occurred.
The court and
other agencies shall reply to any inquiry that no record
exists
on
the
matter.
The
person
whose
record
is
expunged shall not have to disclose the fact of the
record or any matter relating thereto on an application
for employment, credit, or other type of application.
(6) Inspection of the expunged records may thereafter be
permitted by the court only upon a motion by the person
who is the subject of the records and only to those
persons named in the motion.
-4-
(Emphasis supplied.)
A
fundamental
rule
of
statutory
construction
ascertain and give effect to the intent of the statute.
is
to
Beach v.
Commonwealth, Ky., 927 S.W.2d 826, 828 (1996); Commonwealth v.
Nunnally, Ky., 920 S.W.2d 523, 524 (1996).
In interpreting a
statute, the courts generally must give the words used in the
statute their ordinary and common meaning.
Lynch v. Commonwealth,
Ky., 902 S.W.2d 813, 814 (1995); Alderman v. Bradley, Ky. App., 957
S.W.2d 264, 266 (1997).
But see KRS 446.080(4) (technical words
and phrases shall be construed according to their appropriate
meaning).
It is well-established that the use of the word “may” in
a statute connotes a term of permission or discretion, as opposed
to the word “shall,” which makes a provision mandatory.
KRS
446.010(20) and (29); and see, e.g., Gaines v. O’Connell, 305 Ky.
397, 204 S.W.2d 425 (1947); Sturgill v. Beard, Ky., 303 S.W.2d 908
(1952), overruled on other grounds by Commonwealth, Dept. of Public
Safety v. Thomas, Ky., 467 S.W.2d 337 (1971); Butler v. Groce, Ky.,
880 S.W.2d 547 (1994).
The language of KRS 431.076 clearly gives the trial court
broad
discretion
in
deciding
whether
associated with a criminal prosecution.
to
seal
court
records
The statute limits the
court’s discretion by designating certain factors that must exist
such as a motion by the person charged, resolution of the charges
by a not guilty finding or dismissal with prejudice, and the
absence of current charges or pending proceedings relating to the
matter for which expungement/sealing is sought.
the
word
“shall”
to
mandate
certain
The statute uses
actions,
but
uses
the
permissive term “may” in connection with the ultimate decision on
-5-
granting the motion to seal the records.
trial court
This language grants the
discretionary authority subject to review only for an
abuse of discretion.
Abuse of discretion in relation to the
exercise of judicial power implies “arbitrary action or capricious
disposition under the circumstances, at least an unreasonable and
unfair decision.”
Kentucky National Park Commission v. Russell,
301 Ky. 187, 191 S.W.2d 214, 217 (1945).
See also Kuprion v.
Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
In the case at bar, the Commonwealth pursued a unique
prosecution of four state social workers for the death of a child
while in the custody of the parents.
Both parents were convicted
of crimes for the death of the child, but a jury acquitted the
appellees. The prosecution of the appellees garnered immense media
publicity,
so
the
circumstances
surrounding
the
alleged
inadequacies in the state child welfare system has already received
extensive attention.
Moreover, state government has taken action
to implement measures within the state agencies to help prevent
future incidents like the one in this case.
More importantly, the
trial judge is in the best position to weigh the various factors
and the interests of the parties in determining whether to seal the
records.
He is intimately aware of the facts surrounding the
prosecution of these appellees.
Under all the circumstances, we
cannot say that the trial court abused its discretion in granting
the motion to expunge/seal the records in this case.
For the foregoing reasons, we affirm the order of the
Wayne Circuit Court.
-6-
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert L. Bertram
Jamestown, Kentucky
Thomas E. Carroll
Monticello, Kentucky
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