FROM BELL CIRCUIT COURT HONORABLE ROBERT V. COSTANZO, JUDGE
ACTION NO. 16-CR-00298
FOR APPELLANT: Robert C. Yang
FOR APPELLEE: Andy Beshear, James C. Shackelford
BEFORE: CLAYTON, CHIEF JUDGE; JONES AND L. THOMPSON, JUDGES.
CLAYTON, CHIEF JUDGE
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
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.
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
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.
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."
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.
Bell County grand jury indicted Marcum on the following
charges: first-degree possession of a controlled substance
(methamphetamine), possession of drug paraphernalia,
second-degree disorderly conduct,  receiving stolen property
(under $500),  and two counts of third-degree terroristic
threatening. 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
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.
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
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 ...