ATLANTA — Day 18 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.
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.
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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Court is adjourned for the day. We return at 9 a.m. Friday
5:15 p.m. Will Tex McIver testify?
Judge Robert McBurney said he and McIver will talk about the possibility as soon as tomorrow. That discussion will happen outside of the jury’s presence.
Oliver testified that she was aware the condo in Buckhead where the McIvers lived had been sold for $604,000. Earlier testimony was that the condo was a “life estate” for McIver, meaning it didn’t actually belong to him but remained in his wife’s estate after his death. Oliver said Tex McIver had released his interest in the condo to allow its sale, but in return he will receive an amount still to be agreed upon.
Among the jewelry Mary Margaret Oliver has in her possession is Diane McIver’s wedding ring, a diamond solitaire valued at $21,480.
Mary Margaret Oliver, a lawyer working on estate litigation and estate management, is on the stand. She is also administrator for DeKalb County probate court. She is the administrator for the estate of Diane McIver since July 2017.
She has packages of gifts, most of it jewelry or watches, meant to go to certain individuals as specified by Diane McIver. This list exists outside of her will.
The judge is asking how there is still jewelry around that was not part of the auction. Oliver said the jewelry collection was provided to Oliver after the auction.
Among those items: a ruby and diamond ring valued at $63,000; matching earrings valued at $11,000 and a bracelet worth $9,000. The set seems to match the description of a set that Rucker earlier alleged had been sold at auction even though it was designated for a gift. (see the 10:20 a.m. post below). The estimated value of that set was much lower.
The jury is returned and Samuel is once again questioning the McIver’s massage therapist Annie Anderson. He’s asking if she has heard of the press coverage of the trial as it relates to her.
She said she has heard reports, and it made her feel “humiliated and angry.”
While jury is on break, Judge Robert McBurney is returning to the earlier flare-up between Don Samuel, Clint Rucker and the judge.
Prosecutor Clint Rucker and Judge Robert McBurney prevented Samuel from asking any questions probing the implication from earlier testimony that Tex McIver is having sex with masseuse Annie Anderson.
Samuel told the judge, that throughout the trial, “It was a clear effort by the prosecution to convince this jury that they were having sex and that’s why he killed his wife. He wasn’t deeply in love. He killed his wife so he could be with the masseuse. I have right to show what effect it had on (Anderson) ... and frankly to expose what the prosecution has been doing here.”
Rucker is asking the court to prevent further questions along these lines from Samuel.
“The ‘Southern gentleman’ the ‘Oh, darling,’ has been a steady stream so far. ... When those witnesses testify about what they saw the defendant doing in the days after his wife died, I think it’s fair game,” Rucker said. “The defense is trying to say the reason he’s not guilty is he loved his wife so much.”
If he loved her so much, Rucker asked, why would Tex be getting a massage “in the bed where you slept with your wife for 10 years, when you should be grieving?”
Samuel said Anderson is prepared to testify that she has lost business and her husband is upset and her daughter is hearing about the innuendo at school.
I’m trying to understand what the relevance is to what the jury needs to decide; did he intentionally kill his wife,” McBurney said.
Prosecutor Rucker is asking the massage therapist to illustrate a move she used on Tex McIver when he was sleeping fitfully in the night after his wife died.
She would press on a shoulder or a hip to jostle him in order to stop a nightmare. It’s called a “polarity rock.”
She earlier testified that he was sleeping fitfully, having nightmares and flailing while asleep.
Althought Judge McBurney stopped questions from defense attorney Don Samuel about earlier testimony from other witnesses that the masseuse was having sexual relations with Tex McIver, the prosecutor sneaks one in.
Anderson answers, “Some of the families I work with have been more than disturbed” about testimony they have heard from the trial.”
Anderson recalls a vacation she took to Cape Town in South Africa with the McIvers. She said the McIver’s paid for her hotel and some dinners. She acted as a caretaker for Tex McIver’s mother on that trip.
In earlier testimony, a witness for the prosecution said that they saw Anderson at the ranch following Diane McIver’s death, wearing the dead woman’s boots. The witness testified they were the same boots because he had given them to her as a gift.
Samuel is working to dispel this image.
Anderson said when at the ranch, they sometimes “walk the fence” to check the fence holding horses and cattle has no breaks.
Anderson said in the garage at the McIver ranch there are several shelves of boots “a communal boot wall,” many of them rubber, that was shared with visitors. She said Diane liked having visitors there and wanted them to be able to walk the fields and pastures and not worry about getting their shoes dirty.
She said she can not fit into Diane McIver’s boots because her feet are larger than Diane’s. Anderson wears a size 10 1/2 and Diane wore a 7 1/2.
“Were you wearing her boots that day?” Samuel asks.
“No sir,” Anderson answers.
A day after Diane McIver died, Anderson was one of the people who rushed to the Buckhead condo to be by Tex McIver’s side.
“We knew we needed to watch out for Tex because he had an anxiety attack at the hospital,” Anderson said. She said they monitored him constantly and helped administer medication a doctor had prescribed.
She recounts sleeping on the floor with pillows in the McIver’s bedroom. She said she wanted to watch him at night when he got up to make sure he did not fall “because we honestly didn’t know what state of mind he had.”
Tex McIver, seated at the defense table, is looking down and appears to be crying during her testimony.
“Did you have sexual relations with Tex McIver that night in the bedroom?” Samuel asked.
“One-thousand percent never,” Anderson said.
“Hey Mama Di, hope you had an awesome weekend” -
last text message to Diane McIver sent by Annie Anderson at 9:36 p.m. Sept. 25, 2016, as the McIvers were driving home on the night of the shooting.
Massage therapist Annie Anderson said she charged $100 an hour for massages for the couple.
Samuel asks repeated questions about whether the massages involved nudity, sex, inappropriate touching or requests for such. She answers no to all questions.
She was also friends with the McIvers. Their godson knew her from the time he was small and called her “Aunt Annie.” When she was married, the McIvers loaned Anderson and her family the ranch to spend time together.
Anderson said she had worked for several months with Diane McIver on pilates exercises to strengthen her golf game.
Anderson said she met the McIvers about 13 years ago as in-home massage clients. She provided massage and other therapies for them.
“Diane McIver valued her health and wellness. She was one of the greatest people to work with. There was no limit on what she would try...” Anderson said.
“Did you have a romantic relationship with Tex McIver?” defense attorney Don Samuel said.
Samuel begins to ask if she’s aware that the prosecution has introduced numerous times in the trial, but is cut short by an objection from prosecutor Clint Rucker.
Samuel angrily replies that a romance has been alluded to over and over “And now I can’t ask any questions about the effect those allegations have had on her and her family?
“Correct, you cannot,” the judge replied.
On the stand now is much-anticipated witness for the defense, Tex and Diane McIver’s masseuse, Annie Anderson. She has introduced herself as a massage therapist and wellness coach. She said she is married and points to her husband in the courtroom.
Throughout the preceding 17 days of testimony, Anderson’s relationship with Tex McIver has been alluded to repeatedly as an affair. Following Diane McIver’s death, Anderson reportedly spent the night in his bedroom -- on a pallet on the floor. She also was seen at the McIver’s ranch wearing boots that had been a gift to Diane McIver.
As a witness for the defense, it’s likely Tex McIver’s attorneys will try to dispel these rumors.
12:20 p.m. Jury is on lunch break
Tex McIver asked his mining business partner and owner of Arcilla Mining Ted Smith for bond money. Prosecuting attorney Abbate asks “Did you loan him the $250,000?” Smith said he did not.
Abbate is also working to establish that Smith may not be qualified to establish a value of land he holds together with Tex McIver.
Ted Smith is the man who provided an estimate of the value of Tex McIver’s personal holdings in Arcilla -- he was a minority owner of the company -- and his interest in two tracts of land used for mining. All together, Smith estimated McIver’s holdings to be valued at between $1.5 million to $2.5 million.
At one time, Tex and Ted held the company as a 50/50 partnership. Smith recalls that sometime in 2000, when Tex went through a divorce, his share of Arcilla mining and the separate Arcilla trucking companies dropped to 10 percent each.
A new witness is on the stand, but it’s an old topic: Ted Smith, the CEO and owner of Arcilla Mining and Land Co. and the associated trucking company. The jury previously heard extensive testimony on Arcilla and Tex McIver’s interest in the company from late Tuesday until early yesterday. The testimony from the Arcilla CFO stretched on so long it promped Judge Robert McBurney to remind lawyers that a very long time had been spent on the topic.
Defense attorney Amanda Clark Palmer is refuting suggestions made by the prosecutor that fees paid to Diane McIver’s estate attorney Stanley Smith Jr. were improper.
Smith was paid about $50,000 for a portion of his work, which was taken from her estate. His work was made more costly by a claim of $975,000 made against her estate by U.S. Enterprises. He worked to pay the debt while preserving as much of the estate as possible. Asked if there is anything illegal about paying his fees out of the estate monies, Smith said by law these costs must be paid from the estate.
Prosecutor Clint Rucker is working to prove that McIver was callous in selling off all of his dead wife’s belongings, and focused on raising money with little regard for sticking to her wishes for how her estate was to be distributed.
Diane McIver left a list of non-cash, gifts to be given to some individuals after her death. Rucker said on that list was a set of ruby and diamond earrings, bracelet and ring.
Although it’s at the discretion of the executor to provide these gifts after other estate obligations have been satisfied, Rucker shows from an auction catalog a description of the same jewelry offered for sale with an estimated value of $1,800 to $2,400.
Rucker also pointed out that the condominium in Buckhead where the McIvers lived was sold for more than $600,000. That condo was left to Tex McIver to live in for the rest of his life, but after his death was to return to her estate.
Rucker pointed out that $24,000 was paid out of Diane McIver’s estate for a “crisis communication consultant” to address negative publicity.
Smith said the expense could’ve been a legitimate expense for the estate. “If it was impeding the administration of the state because of all the publicity, he could’ve made the decision to hire a p.r. firm. It could’ve been a legitimate expense.”
Rucker is discussing how Diane McIver, in her will, had instructed $350,000 be left in cash gifts to:
-Employees James and Wanda Hugh ($200,000)
-Housekeeper Phyllis Gable ($50,000)
-Former friend Cathi Johansen ($100,000)
Rucker asks if Smith advised McIver to sell all of his wife’s belongings to pay for these bequests. Smith said he doesn’t believe he would’ve given that instruction.
Rucker: “He never told you this was his soulmate.”
Smith: “Yes he did. Many times.”
Rucker: “Okay, so what about the sentimental value of all these things?”
Smith: “I’m sorry, as the lawyer of the estate, I would not have given advice on the sentimental value. I had to look at it as a business person. We need cash and these are items we need to sell.”
Rucker: “He could’ve told you No. I love my wife. I don’t want to sell any of these things. It’s too soon. ... You know he even sold the jewelry she was wearing on the night he shot her?”
Prosecuting attorney Clint Rucker is drilling down on how quickly Smith advised Tex McIver to sell his dead wife’s items to raise money following her death in the early morning hours of Monday, Sept. 26, 2016.
“Do you know why the defendant was cataloging his wife’s jewelry on Tuesday, after he shot her, if you didn’t tell him to sell her stuff until late October or November?” Rucker asks.
“I’m not sure. I might’ve told him he needs to make an inventory of what her assets are,” Smith said.
Court has resumed and the last witness on the stand yesterday is back and now being questioned by Assistant District Attorney Clint Rucker.
Stanley Smith Jr., a wills and estate attorney hired to handle the estate of Diane McIver, yesterday revealed he is the person who advised Tex McIver to move quickly to sell her personal clothing and jewelry in order to raise money to pay bequests in her will.
In her will, she had left $350,000 in cash gifts for various people.
The “slayer statute” is the first topic raised by Rucker. It is a rule that says a murderer can not benefit from the death of their victim. In the case of spouses, this rule can prevent a murderer who has killed their spouse from inheriting their victim’s estate. Smith says that he understands that statute does not take effect until the killer is convicted of murder.
Tex McIver is no longer facing two of the seven charges brought against him.Count 6 and Count 7 have been dismissed by the judge Wednesday in response to a motion from defense attorneys yesterday. 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.
Cox Media Group