STATE OF IOWA, Plaintiff-Appellee, vs. MARCUS C. DRAPER, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-850 / 07-0113
Filed December 12, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MARCUS C. DRAPER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Thomas N.
Bower, Judge.
Marcus C. Draper appeals his conviction and sentence for theft in the first
degree. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Thomas J. Ferguson, County Attorney, and James Katcher,
Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
2
EISENHAUER, J.
Marcus C. Draper appeals his conviction and sentence after a jury trial for
theft in the first degree in violation of Iowa Code sections 714.1(2), 714.2(1)
(2005). Finding no error, we affirm.
I.
BACKGROUND FACTS AND PROCEEDINGS.
In August 2006, Draper and Joseph Ayala left a bar in Cedar Falls at
closing time. At some point Ayala was unconscious on the ground bleeding from
his head. Two security guards saw an African-American male in a white tee shirt
go through Ayala’s pockets and remove Ayala’s black wallet. One guard saw this
male run away and enter a 1998 maroon Dodge Intrepid. Draper is an AfricanAmerican male and was wearing a white tee shirt that evening.
The police regularly patrol the bar’s parking lot at closing time and Officer
Smith arrived to help Ayala. Security officers and several bar customers were
pointing to the Intrepid in an effort to help Officer Smith sort out what had
happened. Officer Smith noted the vehicle’s license number and saw it leave at
a high rate of speed without its headlights on.
Ayala, who had regained
consciousness, told Officer Smith his wallet was missing.
Officer Smith
broadcast the license number of the Intrepid over the radio. Within minutes of
the broadcast and about one-half mile away from the bar, Draper was stopped
while driving a maroon Intrepid without its headlights on. The car contained three
females and one other African-American male in the back seat wearing a red tee
shirt.
Draper’s sister-in-law, Latasha Robinson, was the owner of the maroon
Intrepid and a passenger as the car left the bar. Robinson testified Draper had a
3
black wallet in his hands and he told her to toss the wallet when the police
started to pursue the car because Draper was concerned about a theft or robbery
charge if the wallet was found. Robinson refused to toss the wallet.
Police
found Ayala’s wallet in the Intrepid’s back seat.
Draper was charged with theft in the first degree and convicted after a jury
trial. On appeal, Draper claims the prosecutor removed one juror on the basis of
race in violation of his equal protection rights, photographic evidence of the
victim’s injuries was improperly admitted, and his trial counsel was ineffective.
II.
STANDARD OF REVIEW.
We review constitutional claims de novo. State v. Taft, 506 N.W.2d 757,
762 (Iowa 1993). We review evidentiary rulings for an abuse of discretion. State
v. Belken, 633 N.W.2d 786, 793 (Iowa 2001). We review claims of ineffective
assistance of counsel de novo.
Hannan v. State, 732 N.W.2d 45, 50 (Iowa
2007).
III.
MERITS.
A. BATSON CHALLENGE.
Draper and juror number sixty-four are both African-American.
The
prosecutor used a peremptory challenge to strike juror sixty-four and Draper
claims this action violates his equal protection rights under Batson v. Kentucky,
476 U.S. 79, 96-98, 106 S. Ct. 1712, 1723-24, 90 L. Ed. 2d 69, 87-88 (1986).
The Batson court held under the equal protection clause, a prosecutor may not
use peremptory strikes to challenge potential jurors solely on account of their
race. Id. Batson requires a three-step process in evaluating Draper’s argument.
First, Draper must make a prima facie showing that peremptory challenges were
4
exercised on the basis of race. See Miller-El v. Cockrell, 537 U.S. 322, 328, 123
S. Ct. 1029, 1035, 154 L. Ed. 2d 931, 945 (2003). Second, the prosecution must
provide race-neutral reasons for striking juror sixty-four. Id. Third, the trial court
evaluates the parties’ submissions and determines whether Draper has shown
purposeful discrimination.
Draper argued juror sixty-four was the only African-American among the
first twenty-seven potential jurors and was one of only three in the entire jury
panel. Draper has made the prima facie showing required by Batson. The State
then offered non-discriminatory reasons for using its peremptory challenge:
[D]uring the voir dire of [#64] I posed to her a series of
questions along the lines of exploring her attitudes about
reasonable doubt and circumstantial evidence. . . . [I used] a case
that I actually prosecuted where there was a blood trail that led
from a storefront through an alley into defendant’s mother’s
apartment. And the blood trail, if a juror follows the circumstantial
evidence; the natural conclusion would be that the defendant is
responsible for having stolen the items from the storefront. [#64]
did not seem to accept that, at least, not readily. She – her first
inclination was to posit possible excuses for why the suspect . . .
would not be the culprit.
We believe that somebody that has the mindset that they are
dealing with specific facts that all point towards guilt, but then will
try to come up with excuses for the person without ever having
heard any excuses, no other facts were put to her that would
suggest anything other than guilt, her idea of coming up with
possible alibis, other excuses, shows that this is a potential juror
that is looking for excuses to acquit somebody. Not the type of
person that we believe is a fair and impartial juror, somebody that is
going to listen to the evidence that’s presented to them rather than
looking for an excuse to find somebody not guilty.
The trial court considered juror sixty-four’s answers to be a “red flag” and
when she “gave her answers concerning the [prosecutor’s] example, I guess I
was kind of surprised in the way that she answered and in the way that she
presented herself in answering.” The court also noted juror sixty-four responded
5
she would do her best not to hold it against a defendant who did not present
evidence. Both responses caused the court to conclude it seemed “she may
have a preconceived idea one way or another.” The court ruled there was a
race-neutral reason for the State to exercise its peremptory challenge to strike
juror sixty-four and insufficient evidence to sustain a Batson challenge.
In light of the State’s explanation of its race-neutral reasons for striking
juror sixty-four, we conclude there was no purposeful discrimination present in
the removal of this juror and on our de novo review we agree with the conclusion
reached by the trial court. The prosecutor’s strike was based on the specific voir
dire responses of juror sixty-four revealing she might be unwilling to give
sufficient weight to circumstantial evidence and Draper has failed to prove
purposeful discrimination.
B. PHOTOGRAPHIC EVIDENCE OF INJURY.
Draper argues the photographs showing Ayala’s facial injuries were
irrelevant and unfairly prejudicial.
We disagree.
The test for relevancy is
whether a reasonable person might believe the probability of the consequential
fact to be different if he knew of the proffered evidence. State v. Plaster, 424
N.W.2d 226, 229 (Iowa 1988). The photographs showed a swirling-patterned
shoe print on the side of Ayala’s head similar to the tread on Draper’s shoes.
This print made it more probable Draper was present at the scene and was
involved in the incident that culminated in the theft of Ayala’s wallet. Additionally,
photographic evidence of the extent of Alaya’s injuries is relevant to
understanding Alaya’s inability to identify the person who took his wallet.
6
Relevant evidence may still be excluded when its probative value is
“substantially outweighed by the danger of unfair prejudice.” Iowa R. Evid. 5.403.
We do not think the photographs of facial abrasions invoke the jurors’ passions
or prejudices. See State v. Astello, 602 N.W.2d 190, 197 (Iowa Ct. App. 1999)
(holding gruesome photographs of teenager’s decomposing remains not unduly
prejudicial). The facial-injury photographs are not unduly prejudicial and we find
no abuse of discretion in the trial court’s evidentiary ruling.
C. INEFFECTIVE ASSISTANCE OF COUNSEL.
We
normally
preserve
ineffective-assistance-of-counsel
claims
for
postconviction relief proceedings, however, direct appeal is appropriate when the
record is adequate to determine as a matter of law the defendant will be unable
to establish one or both of the elements of his ineffective-assistance claims.
State v. Reynolds, 670 N.W.2d 405, 411 (Iowa 2003).
Here the record is
adequate to resolve this issue on direct appeal.
In order to prevail, Draper must show (1) counsel failed to perform an
essential duty, and (2) prejudice resulted. See State v. Lane, 726 N.W.2d 371,
393 (Iowa 2007). We conclude Draper has not proven his counsel’s failure to
perform an essential duty in either of this two claims concerning ineffective
counsel.
Draper first argues his counsel was ineffective in not making a relevancy
objection to the testimony of Officer Smith. Officer Smith stated he took the
photographs of Ayala at the hospital and he observed the shoe print on Ayala’s
head was similar to the tread on Draper’s shoes.
As discussed above, the
similarity between the shoe print on Ayala’s head and the tread on Draper’s
7
shoes is relevant. We reject Draper’s first argument because his attorney “may
not ethically urge grounds that are lacking in legal or factual support simply
because his client urges him to do so.” Gamble v. State, 723 N.W.2d 443, 446
(Iowa 2006).
Second, Draper argues his counsel was ineffective in not seeking a new
trial due to the verdict being contrary to the weight of the evidence. See Iowa R.
Crim. P. 2.24(2)(b)(6); see also State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa
1998). We note trial courts should grant new trials only in exceptional cases
where the evidence heavily preponderates against the verdict. Ellis, 578 N.W.2d
at 659. The evidence of guilt was strong; consequently, Draper’s trial counsel
had no duty to make a meritless motion for a new trial. See State v. Griffin, 691
N.W.2d 734, 737 (Iowa 2005).
AFFIRMED.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
