Witness says Tex McIver asked his attorney 'What's the plan?'

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.

ATLANTA — Day eight 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.

Earlier this week, Diane McIver’s close friend Dani Jo Carter took the stand to talk about what happened on the day of the shooting. Last week, prosecutors called police investigators, ER nurses and doctors from Emory University Hospital and close family friends to the stand.

Content Continues Below

Thursday, an Emory police officer started the day on the stand. The rest of the day was filled with officers who spoke with Tex McIver following the shooting.

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:

5:55 p.m.

The jury has been dismissed for the day.

After a flurry of energetic objections to testimony and some sidebars at the end of the day, the last witness is dismissed.

“We get kind of spicy after 5 o’clock. Wow,” the judge said.

In talking about the upcoming trial schedule, he added, “We’ve all been privy to the thoroughness of both sides and I have no reason to expect things will be less thorough as we go along,” he said.

5:17 p.m.

In concluding his discussion about Tex McIver’s video-taped interview, investigator Brett Zimbrick said that McIver made no mention of a bump in the road, Black Lives Matter protestors, amnesia, a sleep disorder and never said that the gun slipped.

Under questioning from the prosecution, Zimbrick talks about the difference between a cocked and uncocked revolver.

Defense attorney Bruce Harvey makes the point that it’s unknown if the revolver’s hammer was cocked when it was handed to McIver because no one asked during the interview. “He was there voluntarily ... You could’ve asked him anything. And you did not.”

4:55 p.m.

Prosecutor Clint Rucker is questioning Brett Zimbrick, an investigator with the Atlanta Police Department’s homicide unit, about a video the jury has just been shown. Tex McIver’s videotaped interview with Atlanta Police Department was made on Sept. 28, three days after Diane McIver was shot.

In it, Tex McIver talked about asking for his gun as he realized the SUV was traveling through “an area I thought was particularly dangerous.”

After a time, “I guess I just laid back again and fell asleep. Dani Jo came to a stop and ... I was handling the gun and didn’t realize it was in my lap and it went off.”

Rucker is showing an enlarged still photo from the video of McIver talking during the interview with his hands in his lap. Rucker is suggesting the position of his hands mimics the position illustrated by his attorney moments earlier as the attorney showed investigators what position McIver’s hands were in when the gun went off.

Defense attorney Bruce  Harvey is objecting that he’s never seen the photos.

4:45 p.m.

On the video, while talking about the area where the SUV exited the Downtown Connector, with Tex and Diane McIver inside and friend Dani Jo Carter driving, Tex McIver can be heard saying, “It seemed like every turn we made the street was darker and there were more people about.” He said it made the hair on the back of his neck stand up, and that he was conscious of being in a new SUV with two women.

Asked where exactly they were driving, McIver said he was sleeping off and on while sitting in the right rear passenger seat, “All I know is when I got my head up to look out, it was a scene you don’t want to see.” He said they drove through an area with “a particularly high population of homeless people during the daytime.”

Jurors have been provided with a transcript of the interview. The video of the interview has been edited according to an agreement between defense attorneys and prosecutors and the judge.

4:35 p.m.

The video shows Tex McIver with his attorney Stephen Maples speaking to two APD investigators on Sept. 28, recounting the night his wife was shot on Sept. 25.  He became emotional as he recounted the moment he learned his wife had died in the operating room:

“If you ever want to have the worst feeling in your life, be sitting in a room, waiting, and two surgeons in scrubs and a chaplain walk toward you. I actually looked behind me (unintelligible) I never got to see her.”

At one point, McIver says, “I’m going to cry.”

Prosecutor Clint Rucker asks investigator Brett Zimbrick if he ever saw any tears. Zimbrick said he did not.

4:05 p.m.

Following a short break, Judge Robert McBurney is talking to the jury about the schedule for the rest of this trial. He is saying that the case will not be finished on Friday, March 30, and so it may be necessary to take off the week of April 2, which is spring break for many school systems.  The jury would return on April 9 and spend some part of that week finishing the trial, including deliberations.

The court is now preparing to view a 45-minute videotaped interview of defendant Tex McIver with Atlanta Police Department investigators. McIver’s attorney Stephen Maples is also featured on the video. Maples was the first person McIver called to the emergency room on the night Diane McIver was shot.

3:21 p.m.

Harvey has finished questioning work done to process the inside of the inside of the SUV where Diane McIver was shot.

Brett Zimbrick, an investigator with the Atlanta Police Department’s homicide unit, is now on the stand. The jury is told they will see a video interview with Tex McIver that has been edited at the direction of the judge.

2:50 p.m.

Defense attorney Bruce Harvey is questioning Traugott’s crime scene processing. Traugott earlier said he did not test for powder residue from the gun because he was not instructed to do so. There was also a white residue on the left-hand side of the front seat where Diane McIver sat. Traugott testified he was not asked to test that residue either.

2:36 p.m.

Crime scene supervisor Christopher Traugott located a “projectile” in the front seat where Diane McIver sat. The photo on screen appears to show a bullet casing. The casing was sent to the GBI lab for testing. Traugott also recovered the .38 revolver found in the back seat and he’s confirming the gun brought to him by an attorney is the same gun.

They are showing the jury an image of the opened cylinder of the .38 revolver found in the SUV. The bullets that are loaded in the gun are of two different brands, Winchester and Federal. One of the casings still in the gun shows evidence it has been fired.

2:15 p.m.

Today’s testimony is focusing on law enforcement witnesses who are confirming information gathered during their work on the Tex McIver case.

Crime scene technician for the Atlanta Police Department, Nicole Bowers, is describing photos taken of the Ford Explorer where Diane McIver was shot.  The vehicle had to be photographed and processed as a crime scene after she died. Photos show a bullet hole in the back of the passenger seat where McIver sat, and a wine bottle tucked inside the back pocket inches below the bullet hole.

1:50 p.m.

The jury is back in. Jamael Liogan, a homicide detective with the Atlanta police, is on the stand.

1:40 p.m.

Before the jury came back in, the judge told lawyers that he will allow testimony from Rachel Styles, Diane McIver’s longtime friend and bookkeeper. McIver apparently asked Styles to copy documents, which she identified as her new will. Proving Diane McIver had another will is a critical part of the prosecution’s case, which rests on the idea that Tex McIver killed his wife intentionally because of money issues.

12:47 p.m.

Judge grants 45-minute lunch break “despite Mr. Harvey’s protestations.” Defense co-counsel Bruce Harvey had just complained about the short breaks and abbreviated lunch hours.

12:36 p.m

APD Investigator Malik Robeson-Els said he doesn’t recall Dani Jo Carter mentioning “scary people” congregating in the Edgewood Avenue area as they drove her to police headquarters.

11:45 a.m.

Defense lawyer Bruce Harvey is now taking Ricker through what Carter told him when he interviewed her the night of the shooting. Harvey is noting that the officer didn’t take notes when driving with Carter in the car as she retraced the route she took with the McIvers. And it becomes clear that the formal interview with Carter ended after just nine minutes, when the officers learned Diane McIver had died and the case became a homicide.

11:07 a.m.

Ricker and his partner left the hospital with Dani Jo Carter to try to retrace her route that night and figure out where the shooting actually took place. Carter — who just wrapped up more than two days on the stand —was driving the McIvers’ SUV when Tex shot Diane.

The officers took Carter to Atlanta Police headquarters so they could record their interview with her. But after about 10 minutes, Ricker said, they learned that Diane McIver had died and the case was transferred to homicide detectives.

10:46 a.m.

Atlanta Police Department Officer Brian Ricker has replaced Stroupe on the witness stand. When Diane McIver was shot Ricker was “on loan” to a unit that investigated shootings in Atlanta where the victim survived. Ricker and another detective responded to Emory after receiving word a shooting victim had arrived there.

10:17 a.m.

Defense attorney Amanda Clark Palmer is now questioning Stroupe, the Emory University police officer who responded to the hospital. Stroupe said while there he heard Tex McIver ask his lawyer, Stephen Maples, “What should I say? What’s the plan?”

Stroupe said the remark “stuck out” to him but he acknowledged he didn’t put it in his official report.

9:39 a.m.

Judge McBurney stated that one or more jurors has approached the court’s deputy about having today’s late juror, Juror 61, removed. She arrived about a half-hour late for the start of court today.

Prosecuting attorney Clint Rucker said of the juror, “I’ve seen her pay attention and take notes. ...Sometimes it takes time for the personal dynamic in the jury room to jell.” He added that nothing she has said recently “regarding her personal circumstances”  would require her to be removed.

The judge notes that often when the jury start has been delayed, it has been Juror 61 causing the delay.

Don Samuel is asking for more information on the circumstances and cautioning that there could be more changes by mid-April if the trial continues that long.

The judge seems satisfied that no changes need to be made in the jury pool for now.

9 a.m.

Court has resumed with a discussion about evidence by Fulton County Superior Court Judge Robert McBurney.  Both sides are hashing out some potential testimony on a co-worker of Diane McIver who believes she may have made a copy of a “new” will.

They are waiting for a late juror and once the jury is back in the room, we expect Emory Police Department officer Frank Stroupe to return to the stand. Yesterday prosecuting attorneys indicated that the testimony today would turn to law enforcement officers who dealt with the McIver shooting.