STATE OF IOWA, Plaintiff-Appellee, vs. JEFFREY WAIN DRAPER, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 7-817 / 06-0591
Filed January 16, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY WAIN DRAPER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, Edward A.
Jacobson, Judge.
Defendant appeals his convictions for possession of a controlled
substance with intent to deliver, manufacture of a controlled substance, and
possession of ephedrine. CONDITIONALLY AFFIRMED AND REMANDED.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, and Mike Houchins, County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Baker, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
PER CURIAM
I.
Background Facts & Proceedings
On December 22, 2004, Jeffrey Draper and Lola Cooper were charged
with the following counts:
(I) possession of a controlled substance
(methamphetamine) with intent to deliver within 1000 feet of a public park; (II)
manufacturing a controlled substance (methamphetamine) within 1000 feet of a
public park; (III) possession of ephedrine with intent to manufacture; (IV)
possession of anhydrous ammonia with intent to manufacture; (V) unlawful
gatherings where controlled substances are distributed; (VI) failure to affix a tax
stamp; (VII) domestic abuse assault; and (VIII) facilitation of a criminal network.
Susan Flander, a public defender, was appointed to represent Draper. On
Draper’s behalf Flander filed a motion to sever, a motion to dismiss, a motion to
produce, a motion to suppress, and a motion for change of venue. 1 While these
motions were pending, Draper became unhappy with Flander’s representation
and on March 16, 2005, asked the district court to appoint different counsel. He
asked to be able to select counsel to represent him. The district court denied his
request for new counsel. Thereafter, Flander filed a motion to withdraw. After a
hearing the district court granted the motion, and on May 5, 2005, appointed
James A. Clarity as defense counsel.
Defendant filed a pro se objection to having Clarity appointed as his
counsel, based on his belief he should be able to pick the court-appointed
1
The district court granted the motion to sever Draper’s criminal trial from that of
Cooper. Also, the charge of domestic abuse was severed from the other charges. The
court dismissed counts V and VIII. The court denied the motions to suppress and
motion for change of venue.
3
counsel to represent him. 2 Draper had also filed about thirty pro se motions and
other documents with the court. 3 In May 2005, the court dismissed all but three
of these, and set them for hearing. A pre-trial hearing was set before a different
district court judge. After some discussion that judge recused himself, and a
judge from a different part of the district took over the case.
A pre-trial hearing was held on July 12, 2005. At the hearing Draper
asked to have Clarity removed as his counsel.
The court heard Draper’s
complaints, and overruled his motion for substitute counsel.
The court then
proceeded to hear Draper’s pro se motions.
At one point during the hearing Draper stated, “So I guess my only other
alternative is is that I guess I would want to have to go pro se.”
Draper
continually stated he felt Clarity, the prosecutor, and the judge were in collusion
against him, and that he did not trust lawyers. The judge engaged in a lengthy
colloquy with Draper to establish what would be required of him if he decided to
represent himself. Eventually Draper stated, “As long as he is more of a – is truly
on my side, yes, sir. And I do want a good lawyer. I do.” Draper also stated
about his attorney, “If he’ll just try to work with me a little better, I think we could
get through this all right. He’s a likeable guy.” The court came to the conclusion
2
As a matter of fact, the district court had contacted the attorneys Draper had listed,
but none of the attorneys were interested in representing Draper.
3
As an aside, we note that Draper insisted during the course of the case that under
Leonard v. State, 461 N.W.2d 465, 468 (Iowa 1990), he had the right to file documents
in addition to those filed by his counsel. In Leonard, the supreme court was specifically
referring to postconviction applicants, not criminal defendants, because in a
postconviction case the district court may deny a postconviction relief applicant’s request
to dispense with counsel. Leonard, 461 N.W.2d at 468. In order to temper the dilemma
of postconviction applicants when a court refuses to remove counsel, the court permits
such applicants to file pro se documents. Id.; see also Jones v. State, 731 N.W.2d 388,
391-92 (Iowa 2007).
4
Draper did not really want to represent himself, and Draper replied, “No. I really
don’t want to. I don’t.” The court determined Clarity would not be asked to step
down.
Although on July 13, 2005, Draper stated he would be willing to work with
Clarity, on August 1 he filed an application for a no-contact order against his
attorney stating the attorney had “harassed” him by attempting to telephone him
at the jail. Based on this and other new pro se documents filed by Draper, the
court on its own motion held a hearing to determine Draper’s competence to
assist in his own defense. 4
Draper agreed to go ahead with a competency
evaluation, but as soon as the court entered an order for the competency
evaluation, Draper filed a pro se motion objecting to the order. The evaluation
showed Draper was capable of assisting in his defense.
Draper filed ethics
complaints against Clarity, prosecutor Houchins, and Judge Jacobsen. 5
Draper continued his campaign of filing motions and other documents with
the court, including a request to have Judge Jacobsen recuse himself. Defense
counsel filed a motion for change of venue, and a motion to withdraw. These
pending motions were heard on December 13, 2005. The court came to the
conclusion Draper’s complaints were not credible, stating:
He got his first court-appointed attorney removed, got every
judge in 3A removed, he is working on getting the second courtappointed attorney removed and he’s now trying to start on the 3B
judges and have me removed.
4
During the competency hearing Draper stated he wanted to represent himself, with
assistance. The district court stated the issue of competency had to be determined first.
After the competency hearing Draper did not renew his request to represent himself with
assistance.
5
Draper had also previously filed ethics complaints against the county attorney and
another district court judge.
5
I was willing to accept the possibility that he was doing all
that because of his mental health issue. And now having found that
he doesn’t have a mental health issue, I have to assume he’s doing
all that in some intentional effort to avoid taking this case to trial.
The court informed Draper he did not have “the right to choose your trial judge
and you don’t have the right to choose your court-appointed attorney.” The court
informed Draper it was too late to get another attorney before the trial which was
scheduled for January 10, 2006, and Draper had stated he did not want to
proceed pro se. Draper responded, “I can present my case. I know the issues
about what happened. I know that.” The court overruled the motions for recusal
and Clarity’s motion to withdraw. The court granted the motion for change of
venue, and the case was moved from Clay County to Cherokee County.
The case proceeded to trial as scheduled. After the State rested, defense
counsel moved for a judgment of acquittal. The court granted the motion as to
count IV, possession of anhydrous ammonia. The State subsequently asked to
have count VI, the tax stamp charge, dismissed. A jury found defendant guilty of
counts I (possession with intent to deliver), II (manufacturing a controlled
substance), and III (possession of ephedrine with intent to manufacture).
Defense counsel filed a motion for new trial. The court denied the motion.
During the hearing on the motion for new trial Draper claimed he received
ineffective assistance because defense counsel did not raise all of the issues
Draper wanted to be raised.
Draper was sentenced to a term of imprisonment not to exceed thirty
years on each of counts I and II, to be served consecutively, and a term not to
exceed five years on count III, also to be served consecutively. Draper now
6
appeals his convictions, 6 claiming the district court denied him his constitutional
right to represent himself. He also claims the court used an incorrect standard of
review on the motion for new trial.
II.
Self-Representation
We review Sixth Amendment claims de novo. State v. Martin, 608 N.W.2d
445, 449 (Iowa 2000). Under the Sixth Amendment, a defendant has the right to
legal representation. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525,
2527, 45 L. Ed. 2d 562, 566 (1975); State v. Stephenson, 608 N.W.2d 778, 782
(Iowa 2000). The Sixth Amendment also “grants to the accused personally the
right to make his defense.” Faretta, 422 U.S. at 819, 95 S. Ct. at 2533, 45 L. Ed.
2d at 572. The right to self-representation is not effective until asserted. State v.
Rater, 568 N.W.2d 655, 658 (Iowa 1997).
We engage in every reasonable
presumption against the waiver of the right to counsel. Id. at 661.
In order to invoke the right to self-representation, “a defendant must
knowingly, intelligently, voluntarily, and unequivocally waive his right to counsel
and state his intentions to represent himself.” Hamilton v. Groose, 28 F.3d 859,
861 (8th Cir. 1994).
A court has a “serious and weighty duty” to determine
whether a waiver is competent and intelligent. State v. Cooley, 608 N.W.2d 9, 15
(Iowa 2000). In order to make this determination the court must engage the
defendant in a colloquy on the record “sufficient to apprise a defendant of the
dangers and disadvantages inherent in self-representation.” Stephenson, 608
N.W.2d at 782. Unless a defendant properly waives the right to counsel, the
6
Draper filed a pro se motion to stay this appeal. We deny the motion for stay, and
proceed to address the merits of the appeal.
7
defendant still has the constitutionally protected right to counsel.
Hannan v.
State, 732 N.W.2d 45, 52 (Iowa 2007).
In the present case, during the pre-trial hearing in July 2005 the district
court engaged Draper in a lengthy colloquy so that he would know what would be
expected of him if he decided to represent himself. At the end of the colloquy
Draper stated he did not want to represent himself. The court concluded Clarity
would continue to represent Draper.
During the December 2005 hearing, Draper was asking to replace Clarity,
not for self-representation.
The court reminded Draper that it had already
determined he was not interested in representing himself. Draper’s statement, “I
can present my case. I know the issues about what happened. I know that,” was
not a clear and unequivocal waiver of his right to counsel. At that point Draper
had reiterated several times that he wanted counsel to represent him, although
he had specific ideas about what he wanted counsel to do. The court had also
made a finding that Draper’s pro se motions and complaints were made with the
intention of delaying the trial. See Hamilton, 28 F.3d at 862 (“Furthermore, a
defendant may not manipulate the right [to self-representation] in order to delay
or disrupt the trial.”).
Between the December hearing and the trial on January 10, 2006, Draper
again filed numerous pro se motions and comments. In none of these does he
express a desire for self-representation. On the day of trial, there were extended
plea discussions, eventually rejected by Draper.
Again, the record does not
reflect any mention that Draper wished to proceed without counsel. The post-trial
8
record also does not raise this issue. This all serves to support our conclusion
that the single statement at the December hearing fell considerably short of
overcoming the judicial reluctance to find a defendant intentionally waived his
right to counsel.
We conclude Draper has failed to show he made a knowing, intelligent,
voluntary, and unequivocal waiver of his right to counsel in this case.
We
conclude Draper was not denied his Sixth Amendment right to selfrepresentation.
III.
Motion for New Trial
Draper asserts the district court used the wrong standard in considering
whether he was entitled to a new trial based on his claim the verdict was contrary
to the weight of the evidence. The district court stated:
The court finds the jury was properly instructed and the
evidence was fully presented and that there was clearly sufficient
evidence, which if believed by the jury, was sufficient to convict the
defendant. And obviously the jury did convict the defendant based
upon that evidence.
The State agreed the district court improperly used a “sufficiency of the evidence”
standard instead of a “weight of the evidence” standard. In considering a motion
for new trial, if the court concludes the verdict is contrary to the weight of the
evidence and that a miscarriage of justice may have resulted, the verdict may be
set aside. State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998).
We conclude the district court’s ruling on the issue in the motion for new
trial as to whether the verdict was contrary to the weight of the evidence utilized
an improper standard. The ruling should be reversed and the matter remanded
9
to the district court. However, we determine a reversal of defendant’s convictions
is not necessary because on remand the district court could determine a new trial
is not warranted. If the district court denies the motion for new trial on remand,
our affirmance will stand.
On the other hand, if the district court grants the
motion, Draper’s convictions will be set aside and the court will order a new trial.
We do not retain jurisdiction.
CONDITIONALLY AFFIRMED AND REMANDED.
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.
