Judge throws out 2 charges against Tex McIver

ATLANTA — Day 17 of testimony in the Tex McIver murder trial has wrapped up.

McIver, an Atlanta attorney, is accused of intentionally killing his wife, Diane, as they rode in their SUV in Sept. 2016. McIver claims the shooting was an accident.

He was facing a 7-count indictment, but Wednesday, the judge threw out two charges of influencing witnesses.

[WATCH LIVE: Trial streaming on WSB-TV Facebook page]

The decision came one day after the prosecution rested its case. The state called nearly 70 witnesses over 16 days. Those witnesses included the lone witness to the shooting, other family friends, doctors, nurses, investigators, colleagues and more. Here's a look at the witnesses who took the stand for the state.

Prosecutors argued that McIver killed his wife for financial reasons. Lead prosecutor Clint Rucker said McIver was in debt and needed the money to continue living the lifestyle he was accustomed to. They pointed to the fact that after Diane McIver’s death, Tex McIver held an estate sale and sold off her possessions. McIver said it was what Diane wanted, according to her will.

The defense team is now presenting its case to the jury.

Channel 2 Action News and the Atlanta Journal-Constitution will bring you LIVE gavel-to-gavel coverage of the Tex McIver murder trial. Check back each day for a live blog from the courtroom and daily video recaps. Visit our Tex McIver murder trial special section for an interactive timeline, history of the case and much more. 

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5:01 p.m. The jury is being dismissed. Testimony will resume at 9 a.m. Thursday.

The judge is telling the jury that it’s possible the defense will finish with its witnesses. If that estimate holds, it means the case could go to the jury for deliberation possibly early next week.

4:55 p.m.

After lengthy press coverage and social media discussion about the seemingly grasping move to sell Diane McIver’s clothes and jewelry soon after her death, we are learning who gave Tex McIver the idea.

Attorney Stanley Smith is on the stand to say he advised Tex McIver to sell some of Diane McIver’s non-cash assets in order to pay the large cash bequests laid out in her will.

At the time of her death, Diane McIver had total cash assets of $275,000, but her will instructed cash bequests be made of $350,000.

Smith said after evaluating her estate, he advised Tex to sell her clothing, jewelry and furs to raise the cash. The items were stylish and he said they were “wasting assets” that would only lose value as time passed. “If you waited until the next year, they could go out of style and the value could go down.”

Her 137 furs were primarily winter clothing that would bring more money if sold before warm weather.

4:30 p.m.

On the stand is Stanley Smith Jr., a wills and estate attorney. He has known Tex McIver since 1975 when he was hired to work at Fisher and Phillips law firm where McIver was employed and he wrote a will for McIver in 2006. Smith was also asked in late 2016 by McIver to be the attorney for Diane McIver’s estate.

4:15 p.m.

Jurors are asking about:

Q: Are there drugs to treat REM Behavioral disorder?

A: Melatonin, sold over the counter and Valium-style prescription drugs are sometimes used, but McIver did not take any of those drugs at the time of the shooting. He was advised

Q: Has McIver had any further sleep studies done since 2004?

A: He did a lab sleep study in 2004 at Mayo Clinic that established the sleep disorders he suffers from. Perhaps because the symptoms were getting worse, in 2009 they did a home study to see if there were any changes.

Q: Do symptoms of REM behavioral disorder show up only during deep sleep or during  naps too?

A: They occur during dream or REM sleep and it can happen during non-REM sleep.

Q: Were there other incidents of sleep disorders McIver experienced besides the night of the shooting.

A: Yes, he would take a lot of naps on weekend. He described being startled awake by noises.

3:40 p.m.

The jury is taking a break.

We spoke earlier in this blog about unexpected diversions in the trial. Dr. David Rye concluded his testimony by talking about the journal of the American Academy of Neurology, the articles they publish and how they vet those articles.

Jurors were apparently not sleeping during the sleep testimony and the judge has a stack of their questions. They will take those up after the break.

3:28 p.m.

"When you catch an adjective, kill it." The sleep doctor manages to elicit quiet giggles from the jury when he responds to a question by saying he doesn’t like adjectives.  He reminds the attorney that Mark Twain once spoke of adjectives.

Mark Twain wrote to a student: "I notice that you use plain, simple language, short words and brief sentences. That is the way to write English—it is the modern way and the best way. Stick to it; don't let fluff and flowers and verbosity creep in. When you catch an adjective, kill it. No, I don't mean utterly, but kill most of them—then the rest will be valuable. They weaken when they are close together. They give strength when they are wide apart. An adjective habit, or a wordy, diffuse, flowery habit, once fastened upon a person, is as hard to get rid of as any other vice."

3:18 p.m.

As technical testimony from the sleep expert wears on, and on, prosecuting attorneys are attempting to coax answers from him that indicate McIver’s naps and sleep behavior are not very different from the norm.

2:25 p.m.

McIver told Rye how much he liked to take naps. Rye testifies that McIver has a REM behavioral disorder and that makes confusional arousal more likely, especially if there is a stimulus that would prompt it to happen.

Fulton Assistant District Attorney Adam Abbate is cross-examining the witness now, asking which sleep disorder in particular was to blame on the evening Diane McIver was shot.  Either REM behavioral disorder or confusional arousal could be responsible, Rye said.

2:05 p.m.

Stress and sleep deprivation are “triggers” for confusional arousal, Rye said.

Amanda Clark Palmer is questioning Rye about whether there is a medical condition that might prevent someone from falling back asleep after perceiving danger. He said there is no such condition.

Tex McIver said that after he was handed his gun in the SUV and they had driven further into the city, and the immediate threat seemed to pass, he fell back asleep.

1:51 p.m.

Dr. David Rye, a sleep medicine specialist of the Emory Sleep Center, is back on the stand testifying about sleep disturbances and disorders. “Confusional arousal” happens when someone wakes up and isn’t immediately aware of their surroundings or circumstances. Some people have a predisposition to experience these.

1:20 p.m.

Court resumes and judge takes up request for directed verdict on counts 5-7 (influencing witnesses). The judge upheld count 5, but threw out counts 6 and 7.

Those counts both pertained to influencing witnesses and involved McIver’s former public relations consultant Bill Crane and the driver and sole eyewitness on the night of the shooting,  Dani Jo Carter.

Those conversations and voicemails may have been uncomfortable for Crane and Carter, but they weren't criminal, Judge Robert McBurney ruled.

12 p.m.

McIver took part in a one-night sleep study in Rye’s lab. He was hooked up to electrodes on his legs, arms and chin area to register his reactions.

Defense lawyer Amanda Clark Palmer asked what movement patterns Rye captured.

“Elevated in all channels, particularly the chin,” Rye said.

Rye said his diagnosis was also based on McIver’s medical history, including the previous sleep study at the Mayo Clinic.

Rye said during the sleep study in his lab, McIver fell asleep in two minutes, which he described as fast.

McIver also fell asleep for one nap in five minutes and “fell directly into a dream,” or REM sleep, Rye testified.

11:50 a.m.

In January, Rye examined Tex McIver and diagnosed him with REM sleep behavior disorder.

Those who suffer from the disorder act out their dreams, which can often involve being chased or being in some danger, Rye said.

Rye told the jury that McIver’s medical records show he had complained of sleep problems for years and took part in a sleep study to try to address the issue back in 2004.

11:26 a.m.

Dr. David Rye has taken the stand. He is a professor of neurology at Emory University who specializes in sleep disorders.

11:10 a.m.

The jury is now hearing from Alison Neely, another emergency room nurse at Emory University Hospital. Like Brown, Neely is on the stand for the second time, having testified for the prosecution earlier in the trial.

Neely was pushing Diane McIver’s wheelchair when she was moved from the SUV into the hospital following the shooting.

Samuel asks Neely the same question as Brown: “Did you hear Tex McIver say ‘I shot her in the bathroom while I was cleaning my gun?’”

“No, I did not hear that,” Neely replied.

The prosecution asks if Tex McIver was holding his wife’s hand either in the wheelchair or in the emergency room. He was not, Neely said.

10:40 a.m.

The jury is taking a break and is expected back at 10:50 a.m.

10:39 a.m.

Blair Brown, a nurse at Emory University Hospital is back on the stand. Some trial watchers may recall that she was also a witness for the prosecution.

Brown was working the night of the shooting and is helping to narrate a security camera video showing Diane McIver arriving in the couple’s white SUV. Brown was among those who ushered Diane McIver into the hospital, along with Tex McIver.

“Did you hear Tex McIver say ‘I shot her in the bathroom while I was cleaning my gun?’” defense lawyer Don Samuel asked.

“No,” Brown replied.

10:27 a.m.

We’ve had a few strange diversions in the trial. There was the day spent on the intricacies of wills and estate planning and another on cell phone towers.

Today the jury is getting a detailed tutorial on the kaolin industry thanks to McIver’s investment in Arcilla Mining and Land Co.

Kaolin is a white, clay-like mineral extracted from the ground. Georgia is the leading kaolin-producing state in the nation.

According to WebMD, kaolin is used to make medicines such as those used to treat diarrhea and to relieve soreness and swelling inside the mouth caused by radiation treatments.

Davenport has been on the stand since yesterday, prompting this gentle reminder from the judge.

“We’ve spent a long time on this issue,” Robert McBurney observed.

9:33 a.m.

The jury is in the courtroom and the prosecution is cross examining McKenzie Davenport, the chief financial officer of Arcilla Mining and Land Co.

Under questioning from the defense yesterday, Davenport undercut the prosecution’s contention that McIver was in deep financial straits. Davenport described how McIver cashed sold his minority stake in then kaolin operation for some $700,000.

Fulton County Assistant District Attorney Adam Abbate is drilling down into those claims.

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