• Tex McIver murder trial: Judge will let jurors handle gun used in shooting

    By: Laura Weaver and Shannon McCaffrey, The Atlanta Journal-Constitution

    Updated:

    ATLANTA - Day 13 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.

    Here's a look at the witnesses who have taken the stand so far for the state.

    In Wednesday’s testimony, we learned in great detail about the McIvers’ personal worth and that Tex McIver was cash poor and one expert witness said he was experiencing “financial distress.” The day’s testimony closed with a gun show put on by prosecution: More than 40 long guns and handguns were collected from the McIver ranch in Putnam County and from the Buckhead condo were wheeled into the courtroom for an eye-popping display. To read more about yesterday’s testimony, find our coverage here. 


    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. 


    Follow our live blog below:

    6 p.m.

    The jury has been dismissed for the day. 

    5:46 p.m.

    Rucker gets right to the point in his redirect.

    “Did this gun go off all by itself?” Rucker asks.

    “No,” Knox replies

    “In order to make this gun go off what do you have to do?” he continues.

    “Pull the trigger,” Knox says.

    Tex McIver continues to look visibly upset as Knox’s testimony concludes. 

    5:39 p.m.

    Defense lawyer Bruce Harvey is drawing Knox out on the limitations of what he is able to say about the shooting. Knox acknowledges that he cannot tell where Tex McIver’s elbow was in relation to the door or the arm rest. Nor can he tell whether the gun was fired in single action or double action mode — cocked or uncocked.

    5:01 p.m.

    As Knox shows how the fatal bullet moved through the SUV seat and into his wife, Tex McIver shielded his face at the defense table. After a moment, tears could be seen running down his face.

    Pictures Knox was showing the jury showed the inside of the Ford Expedition as it looked the night of the shooting, including Diane McIver’s black hat and her purse.

    4:30 p.m.

    It’s worth noting the great lengths the prosecution has taken to bring physical exhibits to the jury and computer recreations to help the testimony come to life.  

    Yesterday, more than 40 long guns and hand guns belonging to Tex McIver were carted into the courtroom. Today, prosecutor Clint Rucker argued for jurors to be allowed to hold and pull the trigger on the actual gun Diane McIver was shot with.

    This afternoon, an elaborate graphic computer recreation of the shooting inside the McIver’s SUV was shown to jurors.  

    In testimony the first week of the trial, prosecutors showed a 3-D laser scan recreation of the path the SUV took through downtown Atlanta on the night of the shooting.

    Then, when SUV driver Dani Jo Carter was testifying, she and two volunteers from the prosecution team spent most of a day testifying from an exact replica of the SUV’s interior that was wheeled into the courtroom. And an emergency room doctor delivered her testimony from beside an Emory hospital gurney that held a mannequin to stand in for Diane McIver.

    4:23 p.m.

    Forensic specialist Michael Knox is on the stand. He performed a re-creation of the shooting, tracking the trajectory of the fatal bullet from the muzzle, through the SUV seat and into Diane McIver’s back.

    4:10 p.m. 

    Weitzel wraps up his gun display and David James Dustin, a specialist in 3-D forensics, takes the stand. He performed a laser scan of the McIvers’ 2013 Ford Expedition and then used it to create a three-dimensional representation of the McIvers and the gun at the time of the shooting.

    Working with the trajectory of the bullet, one depiction showed Tex McIver with a gun on his lap and another with his elbow on the seat.

    Defense lawyer Bruce Harvey asked why Dustin hadn’t included doors on his visual. Dustin said the prosecution had instructed him to leave the doors out so the occupants would be visible.

    Harvey said the door might have constrained Tex McIver’s arm and suggested that such an omission made the depiction unreliable.

     

    Prosecutor Clint Rucker asks GBI gun expert Zachary Weitzel if a gun can be fired by hitting a bump if there’s no finger on the trigger. In one of Tex McIver’s earliest accounts of his wife’s shooting  he said the gun went off because the car he was traveling in hit a bump. 

    “The movement of the gun should not fire the gun,” Weitzel responds. “There has to be a force acting on the trigger.” 

    Bruce Harvey counters by asking whether an unintentional discharge can happen if the person holding the gun is suddenly startled. Weitzel confirms that is a possibility.

    After jurors are sent out for a break, Harvey objects to the wide latitude given to the state in questioning and asks for a mistrial. The request is denied. 

    3:00 p.m.

    Harvey gets GBI expert to confirm that there’s no way to tell how a weapon is fired. “There was manipulation of the trigger, do you know what that was?” he asked. Weitzel said no. Harvey: “If it’s single action, it can go off from keys in your pocket?” Weitzel: “Any force that exerts that kind of pressure (roughly 2.25 lbs) can pull the trigger.” According to the state’s gun expert, no test exists that can determine whether a trigger was pulled intentionally. 

    2:52 p.m. 

    Defense co-counsel Bruce Harvey shaving quarter pounds off the trigger pull tests by the GBI, from low of 2 pounds on the single action to low of 11.75 lbs on the double action. Harvey asks if some intermediate objects are more likely stop the flow of the vapor, “like a Publix bag,” in relation of the determination between muzzle and target distance. GBI gun expert Zachary Weitzel says gun was not modified. 

    2:16 p.m.

    Jurors are hearing about the bullet recovered from the shooting.  When bullets strike something, sometimes they are damaged and they will flatten or fragment. This one wasn’t like that. 

    GBI firearms expert Zachary Weitzel was asked to do a test on the distance from the gun to the back of the seat, he said, but he didn’t perform the test because the gun was reported to have been fired from inside a plastic bag. Under those circumstances, the test for gunpowder residue would not give an accurate result.

    1:52 p.m.

    How hard was it to pull the trigger on this revolver?

    “Double-action” means that pulling the trigger does the work of cocking the hammer and then firing the bullet. It requires 12 ¼ pounds of pull to fire the gun when it is not cocked first.

    “Single action” means that the hammer is already cocked and the trigger pull simply fires the bullet. It requires 2 ¼-pounds of pull to fire the gun already cocked.

    Weitzel is hooking the gun to a weight to demonstrate the difference in strength needed to pull the trigger in both styles.

    1:45 p.m.

    Was Diane McIver shot with a hollow-point bullet?

    Two types of bullets were found still unfired in the gun after the shooting. Winchester bullets that were “full metal jacket” style; and Federal bullets that are jacketed hollow-points, designed to spread on impact and do more damage.

    Jurors are also learning that bullets consist of two parts: the casing, which holds the bullet and gunpowder; and the bullet itself which travels down the barrel after the gun is fired.

    1:38 p.m.

    Jurors are back in their seats and are seeing GBI firearms expert Zachary Weitzel demonstrate the workings of the Smith and Wesson .38 revolver, model 638 used in the shooting of Diane McIver. These guns, with short barrels, are made for concealment and personal defense rather than shooting with accuracy.

    Standing in front of the jury box, Weitzel is demonstrating the cocking of the hammer, which is a flat button on top of the revolver.  “Double-action” means that pulling the trigger does the work of cocking the hammer and then firing the bullet.  “Single action” means that the hammer is already cocked and the trigger pull simply fires the bullet. 

    1:21 p.m.

    Jurors have not returned to the courtroom, but the judge and attorneys are now returning for a third time to the question of allowing jurors to handle the gun used in the shooting.

    Prosecuting attorney Clint Rucker would like to have jurors now, in the midst of testimony on firearms, to try pulling the trigger on the gun found in the McIver SUV.  

    Harvey said passing the gun around the jurors now may be more forced. “A physical manipulation of the actual item is different in substance and form than looking at an item.” 

    Judge McBurney is saying for now he would not like the jurors to be able to pull the trigger on the .38 revolver.

    12:15 p.m.

    The state has called Zachary Weitzel to the stand, a GBI firearms examiner responsible for the forensic analysis of firearm evidence. He is explaining how he can examine fired bullets and cartridge casings for characteristics that are unique to an individual gun. 

    The court is breaking for lunch and will return to Weitzel at 1:10 p.m.

    11:45 a.m.

    Bruce Harvey is questioning GBI forensic scientist Sarah Peppers, who tested for residue from the gunshot inside the McIver’s SUV. He’s asking about using the residue from the gunshot to estimate the distance from the muzzle to the target. Peppers said she would not perform those tests. She uses sticky “stubs” to test for particles on any surface. Harvey is now showing photos to indicate the bag was separated from the gun that was discovered inside it, and that this manipulation of the plastic bag could move the gunshot residue and harm the evidence.  

    11:20 a.m.

    Will everyone on the jury get to try out the gun used in Diane McIver’s shooting? Judge McBurney returns to the question raised earlier today of allowing jurors to try out the trigger pull on the actual gun used in the shooting. He tells the attorneys that allowing them to do so is “appropriate, legal and acceptable.” 

    11:17 Jury is on a break

    10:55 a.m.

    Now testifying is Sarah Peppers, a microanalyst in the Georgia Bureau of Investigation’s forensic sciences division. She performed tests for gunshot primer residue on the plastic bag found inside the McIver’s SUV wrapped around the .38 revolver used in the shooting. She found the residue there. Tex McIver told police that on the night of the shooting when the gun was handed to him from the console, he kept the gun in the bag. 

    10:40 a.m.

    In response to a juror question, the judge has informed the jury that the blood sample belonging to Diane McIver was also tested for amphetamine and cocoaine.  The sample was negative. 

    10:10 a.m.

    Diane McIver had a blood alcohol level 1.4-times higher than the legal limit for Georgia drivers.  Tests performed on her blood after her death found 0.108 grams per 100 ml of blood -- the limit for drivers is 0.08 grams per 100 ml in Georgia. Kasey Wilson, a forensic toxicologist from the Georgia Bureau of Investigation’s crime lab is on the stand. She’s an expert in alcohol testing in blood and bodily fluids.

    Blood alcohol of over 0.1 is about the level at which trouble with coordination or walking is often observed, she said. 

    9:53 a.m.

    Prosecuting attorney Clint Rucker is arguing to Judge Robert McBurney that the jury should be allowed to handle the key evidence in the trial: the Smith and Wesson .38 caliber revolver that was used in the shooting. 

    Rucker is asking  if the lock can be removed from the gun and any juror who wants to, have an opportunity to pull the trigger... in single-action and in double-action. 

    Defense attorney Bruce Harvey said  “If one juror does it, every juror is going to want to pull the trigger.” 

    “If the jurors ask during their deliberations to have the gun to test the trigger, I would likely say yes,” McBurney said. “It’s a question of when, not if.”  

    The final question seems to be whether the trigger-pull exercise will be offered to the jury in the courtroom during the testimony phase or later during deliberations. 

    The jury is now being brought in.  

    9:25 a.m. 

    We’re beginning a half-hour late today due to an appointment the judge had to keep. The live feed will begin when the jury is about to be seated.

    Claud "Tex" McIver, 75, once a politically connected attorney, is charged with intentionally shooting his 64-year-old wife in the back as they drove along Piedmont Avenue in Sept. 2016. He is facing a 7-count indictment.

    This live blog was written by The Atlanta Journal-Constitution.

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