from Lauderdale Circuit Court (CC-16-573)
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.
and Procedural History
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 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.
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
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
"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
"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 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
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
"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
"[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."
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.
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.)
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 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.
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 U.S. 1975." (R. 630.)
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."
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 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.)
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
"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
"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. Connolly's closing arguments. But
you're welcome to consider Miss Darby's. Okay?"
(R. 641-42.) After it instructed the jury, the trial court
denied Jarmon's motion for a mistrial.
appeal, Jarmon challenges the trial court's denial of his
motion to remain in recess, the trial court's denial of
his motion for a mistrial, and the trial court's decision
to instruct the jury over his objection. Specifically, Jarmon
argues that he was denied his constitutional right to counsel
and to have his counsel make a proper closing argument and,
thus, that the judgment of the trial court should be reversed
and the case should be remanded for a new trial. Because we
reverse on the basis that the trial court should have granted
the motion to remain in recess, we pretermit discussion of
the other issues.
right to have counsel present a closing statement to the jury
is a fundamental right under the Sixth Amendment's