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ELECTRONICALLY FILED
4/13/2018 10:49 AM
01-CC-2017-004044.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
STATE OF ALABAMA, )
)
)
Plaintiff, )
vs. ) CASE NO: CC 2017-4044
)
)
SHERRY WELCH LEWIS, )
)
Defendant. )
COMES NOW, SHERRY WELCH LEWIS, Defendant in the above case (herein
“Movant”), by and through the undersigned, and moves this Honorable Court to dismiss
General/Prosecutor to state, with greater factual specificity, the basis for the Indictment
and charges therein issued against her. The Indictment is woefully inadequate, failing to
allege even a date or location which would give this Court jurisdiction, and therefore must
be dismissed. The basis for this Motion is Ala. Crim P. 13.2 and Ala. Code § 15-8-25.
Count One of Lewis’s Indictment alleges a direct violation Ala. Code § 36-25-5(a). The
alleged violation claims that Lewis, a Member of the Board of Directors of the Water
Works Board of the City of Birmingham, used her “official position or office to obtain
personal gain for herself, a family member, or a business with which she is associated, and
such use and gain were not otherwise specifically authorized by law...” This Count simply
The mere language of Lewis’s Indictment does not inform who allegedly obtained
the “personal gain” as the Indictment is vague, simply stating that any such “personal gain”
was for “herself, a family member or a business with which she is associated”. The
Indictment fails to state with specificity the details outlining when any such transaction(s)
took place nor does it specify the target of any such “personal gain”. Lewis was a sitting
member of the Water Works Board for many years and simply alleging violations of Ala.
Code § 36-25-5 does not give Movant any effective notice regarding what she is charged
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with doing. Movant should, in fairness, at least be made aware of who supposedly
benefited from any unlawful personal gain and the specific details regarding any unlawful
behavior allegedly committed by Lewis, including the dates and times of any such
Further, Court Two charges that Lewis “a Member of the Board of Directors of the
Water Works Board of the City of Birmingham, did intentionally vote or participate in a
matter which she or her family member had a financial gain or interest, in violation of
section 36-25-9(c) of the Code of Alabama… ” No factual context or time frame is given,
nor is any substance about what was supposedly voted upon or participated in. Obviously,
no detail is given about whether it was Lewis or a family member of hers who had the
interest in the matter. Nor is the “interest” at issue revealed. It is impossible to tell, given
these variables and unknowns, what, precisely, Movant is accused of doing wrong.
and accuses that Lewis “a Member of the Board of Directors of the Water Works Board of
the City of Birmingham, did intentionally solicit or receive anything for herself or for a
family member for the purpose of corruptly influencing official action, in violation of
section 36-255-7(b) of the Code of Alabama…” As with the other Counts of the
Indictment, Count Three offers no time frame or factual substance is given in the
Lewis has served on the Board over a span of several years including years outside
the applicable statute of limitations. In fact, Lewis continues to sit as an active member of
the Board. From a bare reading of the Indictment, Movant cannot tell what she is being
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accused of doing factually without greater detail. There is no indication in the Indictment
that the conduct occurred within the relevant statute of limitation, and it should therefore be
dismissed. The law relative to indictments, from a pleading standpoint, logically begins
with a reading of Rule 13 Alabama Rules of Criminal Procedure, which is a basis itself for
Movant’s request.
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The Indictment is constitutionally insufficient and should be dismissed. If the Court disagrees and is inclined to be
charitable, the State, at a minimum should be required to provide a more definite statement
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The Indictment’s allegations do not satisfy the requirements of Rule 13.2(a) or § 15-
In this case, given the factual context, Movant cannot glean what she is charged with
doing wrong, factually. Therefore, the Indictment does not “inform [Lewis] of the offense
charged” as required by 13.2(a). If the Court elects to allow the State to cure its failings,
Rule 13.2(e) “exists to provide a necessary safeguard for the defendant, in that … the
defendant can compel the state to submit additional details of the offense not required to
be set out in the body of the indictment.” Committee Comments to Rule 13.2.
Alabama Code § 15-8-25 requires that the “facts” of the offense must be stated “in
understanding to know what is intended.” Ala. Code § 15-8-25 (emphasis supplied). Here,
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Rule 13 and Ala. Code § 15-8-25 require an indictment with greater factual detail
than those in issue here. As of now, the allegations are too vague to give Movant notice of
what she is accused of doing. A mere tracking of statutory language gives no effective
Further, additional factual detail is necessary so that the Court is not confronted with
a question as to whether a jury’s verdict is on the same alleged incident(s) that the grand
jury Indictment charges for double jeopardy purposes. The current Indictment does not
state whether a factual circumstance in Count One, Two or Three is based on the same or
a different set of facts as are alleged in the companion Indictments. It has not been
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determined if these cases will try separately or together or in some other manner. The risk
that a jury could render a verdict based on a different set of facts than those upon which
the Movant was indicted is present absent factual clarification of what alleged acts
constitute the bases for indicted offenses. Thus, the Indictment does not comport with Rule
13.2 and Ala. Code 15-8-25 in that it does not state “what is intended and with that degree
of certainty which will enable the court, on conviction, to pronounce the proper
judgment….” Nor does it state the charges “with that degree of certainty which will enable
the court, upon conviction, to pronounce the proper judgment.” See Rule 13.2(a) and Ala.
Code § 15-8-25. See also Chambers v. State, 364 So.2d 416 (An indictment is
unobjectionable if it is specific in its averments 1) to identify the accusation lest the accused
should be tried for an offense different from that intended by the grand jury, 2) to enable
the defendant to prepare for her defense, 3) to allow the judgment to protect the defendant
and foreclose the possibility of being twice put in jeopardy for the same offense, and 4) to
enable the trial court after conviction to pronounce judgment on the record. Chambers v.
State, 362 So.2d 416 (cited in advisory notes to Ala. Code 15-8-25).
In sum, the Movant requests that her Indictment be dismissed. If the Court
the Indictment:
1) What was the personal gain that supposedly occurred and to whom?
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2) The factual context of same, including but not limited to when and
where.
Court for an Order dismissing the Indictment as constitutionally insufficient or, in the
alternative, requiring the Attorney General/Prosecutor to more definitively state facts upon
which the Indictment is predicated. Movant further prays for any and all such further relief
Respectfully submitted,
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(205) 212-9700
(205) 212-9701 Facsimile
brett@thebloomstonfirm.com
CERTIFICATE OF SERVICE
I hereby certify that on this the 13th day of April, 2018, I electronically filed
the foregoing pleading with the Clerk of Court using the AlaFile system which will
send notification to all parties involved.