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Marcum v. Commonwealth

Court of Appeals of Kentucky

August 9, 2019



          BRIEFS FOR APPELLANT: Robert C. Yang

          BRIEF FOR APPELLEE: Andy Beshear, James C. Shackelford




         Joshua Roscoe Marcum appeals from the Bell Circuit Court's final judgment and sentence of imprisonment entered October 11, 2017. At his jury trial, Marcum was convicted of several offenses, including first-degree possession of a controlled substance, and he was thereafter sentenced to three years' imprisonment. Because the trial court committed structural error by its failure to ensure a valid waiver of Marcum's right to counsel, we reverse and remand for a new trial.

         I. Background

         On or about May 10, 2016, Marcum and his mother entered the Appalachian Regional Healthcare HomeCare store (ARH) in Middlesboro, Kentucky. ARH is a medical equipment retailer. Marcum's mother, who is disabled, needed a walker and a portable bedside toilet. She tendered a prescription for those items to ARH employee Megan Raines. Raines went into the back of the store to retrieve the portable toilet. She returned after about five minutes and found Marcum and his mother were no longer present. Raines walked outside and saw Marcum trying to assist his mother into their vehicle, at which point she yelled at Marcum to come back to the store because he still needed to sign paperwork and retrieve the toilet. Marcum returned to the store and completed the transaction. Raines would later testify how Marcum's demeanor appeared to be nervous and hurried.

         Shortly after the Marcums left, another employee started work, and Raines asked the employee to clean a knee scooter which had been recently returned to the store. The employee could not do so because the scooter had disappeared. Raines knew the scooter had been in the store earlier, prior to the Marcums' visit. She telephoned police and told them about the incident.

         Sergeant Wade Barnett of the Middlesboro Police Department responded to Raines's complaint. Raines gave him a description of the scooter, including the scooter's serial number, and described the Marcums' vehicle, a silver hatchback. Sergeant Barnett was familiar with Marcum and recognized the description of the vehicle. The sergeant used his radio to send a description of the vehicle to another police officer, Jeremiah Johnson. Officer Johnson located the suspect vehicle near the Marcum residence. As he approached, he saw a male get out of the rear passenger seat of the vehicle and go into a nearby wooded area.

         Officer Johnson performed a stop of the vehicle, which contained an unidentified female driver, Marcum's disabled mother in the front passenger seat, and the scooter in the rear hatch area. The serial number on the scooter matched the one Raines had given police. At this point, Sergeant Barnett arrived on the scene and began to question the occupants of the vehicle, while Officer Johnson began searching for the male who left the vehicle prior to the stop. After walking a short distance in the same direction as the male subject, Officer Johnson discovered Marcum lying down on the other side of a railroad track, apparently in an attempt to avoid detection. Officer Johnson detained Marcum and questioned him about the scooter. Marcum denied knowledge of any wrongdoing. When asked why he was lying down beside the railroad track, Marcum replied he was "just relaxing."

         As Officer Johnson escorted Marcum back toward the police cruiser, Marcum became increasingly irate and agitated. He shouted at the officer and ultimately uttered what the officer believed was a threat of violence against him. Sergeant Barnett saw the two men returning to the cruiser and witnessed Marcum's tirade. Sergeant Barnett watched as Officer Johnson performed a patdown of Marcum. Officer Johnson's patdown discovered two plastic bags of a substance which field-tested as positive for methamphetamine, a razor, and a piece of a straw. As Sergeant Barnett transported Marcum to the detention center, Marcum uttered another perceived threat aimed at the sergeant.

         The Bell County grand jury indicted Marcum on the following charges: first-degree possession of a controlled substance (methamphetamine), [1]possession of drug paraphernalia, [2] second-degree disorderly conduct, [3] receiving stolen property (under $500), [4] and two counts of third-degree terroristic threatening.[5] The court appointed counsel for Marcum from the Department of Public Advocacy (DPA). In multiple pretrial hearings, Marcum frequently expressed his unhappiness with his appointed counsel to the court and tentatively mentioned the idea of replacing DPA with hired counsel or possibly representing himself. Finally, in a hearing held June 13, 2017, Marcum once again broached the subject of representing himself, at which time Marcum's appointed counsel asked to withdraw. The trial court then asked Marcum if he wished to represent himself using the following colloquy:

Trial court: Alright, Mr. Marcum, so you're telling the court you do not wish to be represented by the Department of Public Advocacy, that you wish to represent yourself?
Marcum: (indistinct mumbling)
Trial court: (cuts him off) Just yes or no.
Marcum: Yes.
Trial court: And you understand how dangerous that could be?
Marcum: (might be nodding, nothing audible)
Trial court: You understand that this is a very serious charge, carries time in the penitentiary, you understand all that?
Marcum: (nods)
Trial court: And again, it's your, you freely, voluntarily, want to represent yourself, is that correct?
Marcum: I was, I thought-
Trial court: (cuts him off) Yes, yes or no?
Marcum: Yes, sir, I was thinking, you know, I was hoping maybe rehab, something like that. Maybe split time up. Maybe do half time, you know, go to rehab, I just don't-
Prosecutor: Mr. Marcum, if you want to talk about an offer, we can discuss that. However, at no point will rehab, or probation, or any of that ever be an option for you ...

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