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Jarmon v. State

Alabama Court of Criminal Appeals

April 12, 2019

Alfonzo Ramon JARMON
STATE of Alabama

Page 369

          Appeal from Lauderdale Circuit Court (CC-16-573); Gilbert P. Self, Judge

         William K. Diver, Florence; and David P. Bradley, Jr., Florence, for appellant.

         Steve Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.


          PER CURIAM.

         Alfonzo Ramon Jarmon appeals his conviction of murder, a violation of § 13A-6-2, Ala. Code 1975, and his resulting sentence of life imprisonment. The trial court also ordered Jarmon to pay $ 8,165.51 in restitution, $ 50 to the Crime Victims Compensation Fund, and court costs. We reverse the judgment of the trial court and remand the case for a new trial.

          Facts and Procedural History

          Jarmon does not challenge the sufficiency of the evidence on appeal. Therefore, a brief recitation of the facts will suffice. On April 29, 2016, Jarmon shot Charles Perkins in the head on the front lawn of Perkins’s residence. The shooting was witnessed by Frederick Minnis, who was driving by when Jarmon shot Perkins, and by

Page 370

Steven Andrews, who was a passenger in Minnis’s vehicle. Police responded to reports of "shots fired" and found Perkins’s body in the front yard. (R. 250.) A person standing in the crowd at the scene told police that Perkins’s next-door neighbor, Jarmon, shot Perkins.

          Jean Darby represented Jarmon at trial. During Darby’s closing argument, Darby developed unexpected health issues that prevented her from continuing. The trial court ordered a recess. With Darby unable to return to court, the trial court appointed new defense counsel to represent Jarmon for the remainder of the trial proceedings. Shortly following their appointment, defense counsel moved to remain in recess, moved for a mistrial, and objected to the trial court’s jury instructions. The trial court denied those motions and instructed the jury on the applicable principles of law. Following deliberations, the jury found Jarmon guilty of murder.

          The record indicates that the trial began on Monday, October 16, 2017, and that closing arguments began on Thursday, October 19, 2017. During the closing arguments, Darby collapsed and a juror administered CPR before Darby was removed from the courtroom to obtain urgently needed medical care. When the record resumed outside the presence of the jury, the following transpired:

"THE COURT: We’re on the record in State of Alabama versus Alfonso Jarmon....
"We are -- we have finished the testimony. Yesterday I had instructed the jury on the closing arguments. Mr. Connolly -- the reason I’m recounting this is because I doubt you were recording these. Mr. Connolly had given his opening. I would say in the middle -- I don’t know where Miss Darby --
"MR. CONNOLLY (the prosecutor): Closing.
"THE COURT: I mean closing. Miss Darby was in her closing when she collapsed and our condolences go to the Darby family and to her friends who are still in the courtroom that are trying to struggle on.
"We called 911. Paramedics came, and ambulance came, heroic events and Miss Darby is on her way to the hospital. Someone in my absence had the wherewithal to have the jury recess to the jury room except for Mrs. [T.] who is an RN. I think Mrs. [T.] performed -- a member of the jury performed CPR on Miss Darby while paramedics were on the way. Those fourteen are now in my jury room. It’s premature to -- in my opinion -- to release the jury. Miss Darby hopefully, prayerfully will be fine. I don’t see how she could get back up here as far as today goes anyway and we’ve all been -- we were all dear friends with Miss Darby and all are quite traumatized.
"What my proposal is in the sense of justice and probably what Miss Darby would want is to not declare a mistrial at this point. I think it’s a little premature. I’ll have the jury return. I instruct them and we recess for the balance of the day and instruct the jury to check the jury hotline tonight for further instructions, but plan on being here at 9:00 in the morning.
"I’m hopeful that Miss Darby will be fine. It was some sort of event, okay, and I’m trying to look out for not only the defendant’s rights but to look out for the rights of the victim’s family also to try to keep from going through this trial again. So I’m just a little hesitant to put an end to it at this point.
"I had just -- so the record is clear, I had invited Darryl Tatum who is the investigator, not an attorney, but he is intimately involved in the case through

Page 371

the trial. He is the next best representative I know. I asked him to come to my chambers as well as Mrs. Moody and Mr. Connolly and we kind of discussed things, trying to remain as professional and conscientious as we can despite the chaos. From the State anything that -- as we protect the record or at least document the record?
"MR. CONNOLLY: I agree that that’s an appropriate way to handle it, Judge.
"THE COURT: Mr. Tatum, I know you’re not trained in the law but you’re probably as knowledgeable as anybody I know. Any fundamental unfairness to that that you see?
"MR. TATUM: No, sir.
"THE COURT: All right. Miss Wallace, if you will bring the fourteen back out. I’m going to put them in recess until tomorrow at nine until we can get an evaluation of Miss Darby’s wellbeing."

(R. 604-07.)

          After the jury returned to the courtroom, the trial court instructed the jury and informed the jury that it was going to stand in recess until 9 a.m. the following morning. In giving the jury instructions, the trial court stated, in pertinent part:

"I’m also hopeful that Miss Darby is going to be just fine and she will be -- she can be here in the morning to conclude her closing arguments. I don’t know that but I’m just not willing to say -- to declare a mistrial at this point.
"[I] may say that despite everyone’s efforts that the trial has been mistried, okay, because there’s no backup, you know? Mr. Tatum is schooled in the law and an investigator and has a lot of credentials. He’s not trained in the law and I can’t ask him to finish the closing arguments, and she doesn’t practice with anyone else and there’s not another lawyer in the case. I’m probably telling you more than you need to know but that’s the situation."

(R. 608-10.)

          After the jury recessed, the trial court entered an order on October 19, 2017, appointing two new attorneys to represent Jarmon for the remainder of the trial proceedings.

          On October 20, 2017, the trial court conducted a hearing with the parties at which Jarmon was represented by his new trial counsel. At the hearing, the trial court and the prosecutor recounted the discussions Darby had had regarding jury instructions. New counsel for Jarmon then objected, stating:

"[New counsel] were given less than twenty-four hours to not have the time -- appropriate time in which to discuss all this with our client, to review the facts and to make an informed and logical argument in regards to these various charges. So we just want to make that crystal clear."

(R. 621.) Defense counsel informed the trial court that after being appointed on Thursday afternoon, counsel had tried to visit with Jarmon, but Jarmon did not want to speak with them and "was happy to wait until Miss Darby got better or wait and however much time it took." (R. 622.) Clarifying their position, defense counsel informed the court "our client has asked us to secure a new trial and attempt to obtain a mistrial for him." (R. 622.)

          Counsel asked the court to allow Jarmon to state on the record how he wished to proceed. Jarmon told the court that he wanted what could best help him. The trial court told Jarmon: "[I]f I thought Miss Darby would be better by next week I might entertain continuing this till she could get back, but information I have

Page 372

does not suggest that and so, you know, in the totality of the circumstances is why I’m electing to proceed this morning." (R. 623.) Jarmon again stated that he wanted whatever could help him. Counsel then filed a motion for the trial to remain in recess for the weekend. Counsel said that "Darby became indisposed at a critical juncture in the proceedings," but that she might return later and be able to complete the trial, thereby providing Jarmon with the effective assistance of counsel. They argued that a weekend recess would allow counsel to review the trial proceedings so that they could render sufficient assistance of counsel to Jarmon. The State objected, stating that a recess would create "logistical issues with the paneled jury," and that all the evidence was before the jury and all that remained was for the court to charge the jury. (R. 628-29.) The State concluded: "[T]here’s no real purpose that would be served by putting this jury on ice for the weekend." (R. 629.) The trial court denied the motion to remain in recess.

         Defense counsel argued that the trial court should declare a mistrial because Darby failed to complete her closing argument to the jury after the defense had elected to present a closing argument as allowed by Rule 19.1, Ala. R. Crim. P. The defense continued, asserting that "to deny the defendant an opportunity to have his voice heard through a well reasoned and [sic] closing argument would constitute reversible error under Herring v. New York, 422 U.S. 853 [95 S.Ct. 2550, 45 L.Ed.2d 593 (U.S. 1975) ]." (R. 630.)

          In response, the State argued:

"Judge, we would submit a couple of things. One, the Alabama Rules of Procedure 19.1 address closing arguments and says that they may be given. Not shall be given. Just -- so that’s one thing. But more importantly we would -- this would be a totally different issue if the defense had been deprived of any closing arguments. The fact of the matter is the -- Miss Darby gave a closing argument. She covered many, many salient points of the defendant’s defense including self-defense at some length and then to a lesser degree the issue of mental disease defense.
"Miss Darby prior to -- just as we stood in your chambers fixin’ to go give the closing arguments stated to both Mrs. Moody and myself that she intended to be brief and that, you know, so it’s the State’s position that this is not a denial of the right to a closing argument that they -- a closing argument was given in some substance and ably by Miss Darby so, I mean, I think it’s -- with all due respect to new counsel it’s not factually accurate to say there was no closing argument given.
"THE COURT: I will mention without being an advocate, which is not my role, I think the record will reveal that Miss Darby’s focus in her defense of Mr. Jarmon was self-defense. In fact, quite frankly I asked her before we started. She signaled she may well abandon mental disease or defect but at the last moment decided to leave that in .... Now -- and what Miss Darby seemed to conclude in her closing was her argument on self-defense. She had completed that argument and had then transitioned into the mental disease and defect when she was stricken, okay, so just -- and I believe [the court reporter] will have the audio."

(R. 633-35.)

          Defense counsel responded that a mistrial was appropriate because Darby’s closing argument was incomplete, that an "incomplete argument is the same as no argument," and that who can say what Darby might have argued to persuade one

Page 373

juror to vote not guilty. (R. 637.) Further, counsel stated that a mistrial was the only thing that could cure the denial of Jarmon’s "opportunity to have a fair and complete closing argument." (R. 638.)

          In response, the State suggested a curative instruction and offered: "One approach, Judge would be instruct [the jury] to disregard the State of Alabama’s closing argument and to consider carefully the closing argument made by Miss Darby." (R. 638.) The trial court agreed with the State’s proposal and instructed the jury, in pertinent part:

"We have had an intense several days of testimony, trial and arguments and we are at that point of the trial where we were into the closing as you know. My question to you is given the extraordinary circumstances of yesterday, could each of you put aside those events and proceed with the remainder of the trial and be able to discern and determine what the true facts are, call it down the middle irrespective of what happened yesterday, apply it to the law as I would instruct you and arrive at a true verdict? Each -- let the record reflect that everybody’s nodding their head. All fourteen. We can proceed, and you would set that aside, setting aside any sympathy or emotion one way or another for or against anyone and call it down the middle? If we proceeded all fourteen jurors are nodding their head in the affirmative.
"You have heard all the evidence in this case presented by both sides. With regards to the closing arguments I’m going to instruct you in this way: I ask you to disregard and consider for naught the closing arguments made by Mr. Connolly on behalf of the State of Alabama, okay? In fairness and in equality I’m asking you to disregard just that portion for Mr. ...

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