from Lauderdale Circuit Court (CC-16-573); Gilbert P. Self,
K. Diver, Florence; and David P. Bradley, Jr., Florence, for
Marshall, atty. gen., and Yvonne A.H. Saxon, asst. atty.
gen., for appellee.
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
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 Perkinss 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 Minniss vehicle.
Police responded to reports of "shots fired" and
found Perkinss body in the front yard. (R. 250.) A person
standing in the crowd at the scene told police that Perkinss
next-door neighbor, Jarmon, shot Perkins.
Darby represented Jarmon at trial. During Darbys 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 courts 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: Were 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 Im recounting this is because I doubt
you were recording these. Mr. Connolly had given his opening.
I would say in the middle -- I dont 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. Its premature to -- in my
opinion -- to release the jury. Miss Darby hopefully,
prayerfully will be fine. I dont see how she could get back
up here as far as today goes anyway and weve all been -- we
were all dear friends with Miss Darby and all are quite
"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 its a little premature. Ill
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.
"Im hopeful that Miss Darby will be fine. It was some
sort of event, okay, and Im trying to look out for not only
the defendants rights but to look out for the rights of the
victims family also to try to keep from going through this
trial again. So Im 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 thats an appropriate way to
handle it, Judge.
"THE COURT: Mr. Tatum, I know youre not trained in the
law but youre 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. Im 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
"Im 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 dont know that but Im
just not willing to say -- to declare a mistrial at this
"[I] may say that despite everyones efforts that the
trial has been mistried, okay, because theres no backup, you
know? Mr. Tatum is schooled in the law and an investigator
and has a lot of credentials. Hes not trained in the law and
I cant ask him to finish the closing arguments, and she
doesnt practice with anyone else and theres not another
lawyer in the case. Im probably telling you more than you
need to know but thats 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.)
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
does not suggest that and so, you know, in the totality of
the circumstances is why Im 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]heres 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 [95 S.Ct. 2550, 45 L.Ed.2d 593 (U.S. 1975) ]." (R.
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
thats 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 defendants 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 its the States 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 its -- with all due respect to new
counsel its 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 Darbys 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."
Defense counsel responded that a mistrial was appropriate
because Darbys 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
juror to vote not guilty. (R. 637.) Further, counsel stated
that a mistrial was the only thing that could cure the denial
of Jarmons "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 Alabamas closing argument
and to consider carefully the closing argument made by Miss
Darby." (R. 638.) The trial court agreed with the
States 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 everybodys 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 Im
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 Im asking you to disregard just that portion
for Mr. ...