                    IN THE COURT OF APPEALS OF IOWA

                                   No. 12-1925
                               Filed July 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RAYMOND DEAN COOPER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee County, John M. Wright,

Judge.



      A defendant appeals from his conviction of forgery. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, and Michael P. Short, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., Tabor, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

       Raymond Dean Cooper appeals from his conviction of forgery.

   I. Background Facts and Proceedings

       Raymond Dean Cooper was charged by an amended trial information with

forgery by uttering a financial instrument either with the intent to defraud or with

knowledge that he was facilitating a fraud or injury. Cooper admitted at the jury

trial that he received $945 in cash in exchange for a money order he had

endorsed and presented to the Keokuk State Bank (KSB) and that the money

order proved to be fraudulent.     Cooper further testified he had received the

money order from the internet in a mystery-shopper deal, and although he was

initially suspicious about its validity, when KSB accepted it, he felt its legitimacy

had been confirmed.

       Prior to Cooper’s trial, his wife, Dawn, had pled guilty to a count of forgery

for uttering a nearly identical money order two days prior to the incident with

which Cooper was charged. The names appearing on the money order were not

the legal names of the Coopers at the time of the endorsement but were their

names prior to a name change. Both money orders reflected Cooper’s mother’s

address as the Coopers’ address, but neither Cooper nor his wife were residing

there at the time of the endorsement.

       The State called Dawn to testify.        It was established that she was

Cooper’s wife and she had been convicted twice for forgery, once for theft, and

multiple times for drug charges. She further testified that a friend, Tim White,

had given the money orders to her and Cooper, had handwritten in their names

and addresses, and had asked the Coopers to cash them. Even though Dawn
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had pled guilty, she continued to maintain she thought the money orders were

legitimate. She testified that White had requested and did receive one-half of the

proceeds received after the money orders had been negotiated. The remainder

of the proceeds had been divided between Dawn and Cooper.

         When Dawn was asked why White was given part of the proceeds, she

answered, “Have to plead the fifth on that.” The court held a hearing out of the

presence of the jury to consider Dawn’s objection. Cooper’s counsel contended

he did not know what Dawn’s answer would be, but the objection should be

sustained for the reason Dawn had asserted. The court stated there was no

indication she was going to testify to other criminal involvement and that Dawn

would be required to testify.    The jury was brought back in.      In answer to

questions propounded by the prosecutor, eventually Dawn answered that $475 of

the money was given to White because he was going to give her marijuana to

sell. Cooper was convicted by the jury.

         Cooper contends it was incumbent on the court and his trial counsel to

determine exactly what Dawn was going to say before requiring her to testify.

The testimony admitted violated Dawn’s Fifth Amendment rights. Cooper further

asserts his counsel’s failure to ask for a mistrial and a cautionary instruction

constituted ineffective assistance of counsel. Cooper contends that for those

reasons his conviction should be reversed and the matter remanded for a new

trial.

    II. Scope of Review

         Cooper raises constitutional issues, therefore the scope of review is de

novo. State v. Morgan, 559 N.W.2d 603, 606 (Iowa 1997).
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   III. Error Preservation

      For error to be preserved an issue must have been raised before the trial

court and ruled on. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). The

Fifth Amendment issues raised by the witness were pursued by Cooper and the

trial court required her to testify.    Error has been preserved.          Ineffective

assistance of counsel claims are an exception to the usual preservation of error

requirement. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982).

   IV. Discussion

      Cooper maintains that the court and counsel’s failure to supplement the in-

camera hearing of Dawn to establish that her answer to the question posed

would result in a self-incriminating statement and sustain it requires reversal.

Cooper relies on State v. Parham, 220 N.W.2d 623 (Iowa 1974).               Cooper’s

reliance is misplaced. In Parham, the witness had already pled guilty to the

same criminal offense for which Parham was being tried. 220 N.W.2d at 624-25.

To that extent, Parham presents a similar factual situation as is present in this

matter. However, in Parham the defendant had called the witness that invoked

his Fifth Amendment rights, and the court had sustained the objection. Id. at

625. The witness in Parham, as was Dawn, was in fear of the answer resulting in

the admission of other crimes. See id. Testimony from other witnesses indicated

that her concern may very well have been justified.          Id. at 626.     Parham

apparently felt the witness’s testimony would have assisted in his defense and

contended that its omission denied him his right to a fair trial. Id. at 625. The

issue came down to whether the court had abused its discretion in sustaining the

witness’s right to invoke the Fifth Amendment, and it was ruled that it had not. Id.
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at 628-29. Parham cannot be construed to hold or imply that Cooper had a right

to object to Dawn’s self-incriminating statement. To the contrary, the privilege of

a witness to refuse to answer on the grounds of self-incrimination is personal to

the witness, and an accused may not claim error when a witness answers a

question notwithstanding that witness’s claim of privilege. State v. Whitfield, 212

N.W.2d 402, 409 (Iowa 1973).

       Generally ineffective-assistance-of-counsel claims are preserved for

postconviction-relief proceedings. State v. Utter, 803 N.W.2d 647, 651 (Iowa

2011). Only in rare cases will the trial record be adequate to defend against a

charge of ineffective assistance of counsel, and the preference is to defer those

matters for a full record to allow counsel to defend against the charge. State v.

Tate, 710 N.W.2d 237, 240 (Iowa 2006). To the extent that Cooper is claiming

ineffective assistance of counsel for failing to obtain a cautionary instruction and

a mistrial because of the inclusion of Dawn’s self-incriminating statement, we find

the record is adequate. Counsel is not ineffective for failing to pursue a meritless

claim. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). Cooper’s claim of

ineffective assistance of counsel based on the reasons asserted is without merit.

       AFFIRMED.
