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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. )

MOTION TO DISMISS OR IN THE ALTERNATIVE

MOTION FOR MORE DEFINITE STATEMENT

COMES NOW, SHERRY WELCH LEWIS, Defendant in the above case (herein

“Movant”), by and through the undersigned, and moves this Honorable Court to dismiss

the Indictment or in the alternative to enter an Order requiring the Attorney

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.

Movant would show unto the Court as follows:

1) The Indictment is a constitutionally insufficient “mere bare

bones” tracking of the language of the statute sections Movant
has been charged under. (Exhibit A - Indictment).

2) Further, there is no factual basis/detail, whatsoever, given for

the charges. The Movant is not informed of the day,
month, or even year of her allegedly improper conduct. Nor
is she advised of any specific conduct that is alleged to have
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contravened the law. Nor is she told where the conduct

occurred so that she can be satisfied that this Court can assert
its jurisdiction.

3) The charges at issue are alleged violations of the Ethics Act. A

simple reading of the statute(s)/count(s) Movant is charged
with does not apprise her of what wrongful conduct she is
accused of engaging in or the level of conduct within the
Alabama Rules of Criminal Procedure or the Alabama Code.
4) The Indictment fails to inform the Movant “of the nature and
cause of the accusation” against her and subjects her to being
“twice put in jeopardy” and therefore is constitutionally
insufficient and must be dismissed. U.S. Const. Amend. V and
VI.
Though Count One of the Indictments of the three defendants are virtually identical,

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

recites the language from Ala. Code § 36-25-5(a).

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

transaction(s) as well as the intended recipient(s).

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.

Finally, Count Three of the Indictment alleges a violation of § 36-25-7 by Movant

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

allegations against the Movant.

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.

That rule states in pertinent part:

Rule 13.2 (a) The indictment or information shall be a plain,

concise statement of the charge in ordinary language sufficiently
definite to inform a defendant of common understanding of the offense
charged and with that degree of certainty which will enable the court,
upon conviction, to pronounce the proper judgment
.…
…
(d) Unnecessary Allegations
An indictment or information which is in conformity with
sections (a) and (b) shall be sufficient. The indictment or information
need not contain a formal commencement, a formal conclusion, or any
other matter not necessary to the statement of facts, nor need it negate
any defense or affirmative defense contained in any statute creating
or defining the offense charged. Presumptions of law and matters of
which judicial notice is taken need not be stated. It is not necessary
to state the precise time or date at which or on which the offense is
alleged to have been committed, or the place where the offense is
alleged to have been committed unless the time or place is a material
element of the offense. Unnecessary allegations may be disregarded
as surplusage, and, on motion of the defendant, shall be stricken by
the court if prejudicial or prolix.
(e) Motion for More Definite Statement1

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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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A motion for more definite statement may be made at any

time prior to entry of the defendant’s plea, which motion shall be
granted for good cause shown. A statement filed in compliance with
a motion for more definite statement may be thereafter amended at
any time subject to such conditions as justice requires.
Ala. R. Crim P. 13.2 (emphasis added).

In addition to Rule 13.2, Ala. Code § 15-8-25 mandates that:

An indictment must state the facts constituting the offense in ordinary

and concise language, without prolixity or repetition, in such a manner
as to enable a person of common understanding to know what is
intended and with that degree of certainty which will enable the court,
on conviction, to pronounce the proper judgment….
Ala. Code § 15-8-25 (emphasis added).

The Indictment’s allegations do not satisfy the requirements of Rule 13.2(a) or § 15-

8-25, and therefore should be dismissed.

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.

Alternatively, the Indictment as it exists should be dismissed.

Alabama Code § 15-8-25 requires that the “facts” of the offense must be stated “in

ordinary and concise language … in such a manner as to enable a person of common

understanding to know what is intended.” Ala. Code § 15-8-25 (emphasis supplied). Here,

no factual detail is given at all and the Indictment is constitutionally insufficient.

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As stated in Chambers v. State, 364 So.2d 416:

The indictment must contain the elements of the offense

intended to be charged and sufficiently appraise the defendant of what
he must be prepared to meet. Russell v. United States, 369 U.S. 749,
82 S.Ct 1038, 8 L.Ed.2d 240 (1962) Andrews v. State, 344 So.2d 533
(Ala. Cr. App), cert. denied 344 So.2d 538 (Ala. 1977); Section 15-8-
25, Code of Alabama 1975. Reading the indictment as a whole, the
accused should receive sufficient information to enable him to
reasonably understand not only the nature of the offense but the
particular act or acts touching which he must be prepared with his
proof. Donahey v. City of Montgomery, 43 Ala. App. 20, 178 So.2d
837 (1965). The indictment must state the facts constituting the
offense in ordinary and concise language in such a manner as to enable
a person of common understanding, “neither a Solomon nor a
simpleton”, to know what is intended. Section 15-8-25, Code of
Alabama 1975; Manson v. State, 349 So.2d 67 (Ala. Cr. App.), cert.
denied, 349 So.2d 86 (Ala. 1977).
Chambers 364 So.2d 416 at 419. Cf Vaughn v. State, 880 So.2d 1178
(factual detail given in indictment in that case and motion for more
definite statement supplied by prosecutor in conflict of interest case)
Id. at n. 8.

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

notice that is sufficient to prepare a defense.

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

disagrees, the prosecution at a minimum should be required to specify as to Count One of

the Indictment:

1) What was the personal gain that supposedly occurred and to whom?

2) Who supposedly got the “gain”?

3) The factual context of when same allegedly occurred, including but

not limited to when and where.

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For Count Two Movant asks for factual clarity on:

1) The vote or matter participated in.

2) The alleged financial gain or interest received.

3) Who allegedly received the “gain”?

4) The factual context of the alleged transaction, including but not

limited to when and where.

As to Count Three it is requested that it be stated:

1) What was solicited, and by whom?

2) The factual context of same, including but not limited to when and

where.

3) What was the official action allegedly influenced?

WHEREFORE, premises considered, Movant respectfully moves this Honorable

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

to which she may be entitled.

Respectfully submitted,

/s/ Brett M. Bloomston

Brett M. Bloomston (BLO009)
Attorney for Sherry Lewis
THE BLOOMSTON FIRM
2151 Highland Avenue South, Ste. 310
Birmingham, AL 35205

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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.

/s/ Brett M. Bloomston

OF COUNSEL