• Attorney accused of killing wife doesn't want jurors to hear long list of evidence

    By: Mike Petchenik

    Updated:

    ATLANTA - Attorneys for a Buckhead attorney accused of killing his wife don’t want jurors to hear about a laundry list of items when his trial begins next week.

    Prosecutors allege Claud “Tex” McIver, intentionally shot his wife Diane as they drove on Piedmont Avenue on Sept. 25, 2016. McIver is facing a seven-count indictment, including charges of malice murder, felony murder and of influencing witnesses.

    McIver and his attorneys have maintained he accidentally shot his wife while holding a gun in the back seat of an SUV.

    In court Wednesday, prosecutors said they plan to call nearly 100 witnesses and believe the state’s case will take nearly a month to complete.


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    McIver’s attorney, Bruce Harvey, also signaled concern about seating a jury, saying there was a “probability, not a possibility” that jurors had heard about the case and might have formed an opinion.

    Harvey asked Judge Robert McBurney to give potential jurors a questionnaire to gauge their knowledge of the case.

    As for the evidence, McIver’s attorneys filed lengthy motions about several issues:

    “As the Court noted in its Order dated January 2, 2018, this case is not a ‘whodunit; but a ‘whydunit,’” a pretrial motion written by defense attorney Don Samuel reads.

    “(The) State is also not allowed to engage in rank speculation and present various illusory theories to the jury to attempt to prejudice the jury against the defendant,” the motion reads.“Throughout the course of the pretrial litigation, the prosecution has suggested various theories upon which it will attempt to prove the malice murder, aggravated assault and possession of a weapon charges, including an illusory financial motive to commit the crime, as well as circumstantial evidence that borders on the absurd, to prove that Mr. McIver intentionally killed his wife. “

    Among the evidence attorneys want excluded from trial:

    Any evidence that Diane McIver had a second will:

    “No second or new will has ever been found, however; no lawyer has been found who drafted such a will (including through an advertisement in the Fulton County Daily Report); no person is prepared to testify that he or she has ever seen the content of a will; and, of course, no person can testify about the contents of such a will,” the motion said.

    Prosecutor Clint Rucker conceded there is no physical will to show the jury, but he says there are email exchanges that discuss that Ms. McIver wanted her will changed to bequeath the couple’s Putnam County ranch to their godson, and that Mr. McIver objected to those changes.

    Prosecutors also alleged Mr. McIver owed his wife nearly $350,000 at the time of her death related to his ownership of the ranch.

    Evidence of locations of fire stations or hospitals near the scene of the shooting:

    “Absent any evidence that Mr. McIver or Ms. Carter (the driver of the car in which Ms. McIver was shot) were aware of the response time of the police and firefighters to a 911 call (and whether that even makes sense to remain in place, awaiting a 911 responder, who would then be required to bring the victim to a hospital – thus arriving later than the defendant did arrive by transporting the victim to the hospital himself) it is entirely irrelevant that one method of dealing with the emergency might conceivably have incrementally improved the chance that Ms. McIver would survive,” the motion said.

    Evidence of an estate sale after Ms. McIver’s death:

    “The decisions of the probate lawyers to raise money from the estate to pay for the administration of the estate and to generate money to pay the beneficiaries that Ms. McIver designated in her will has no relevance to any issue in this case and does not even hint at a motive for Mr. McIver to murder his wife. "Though it may raise the ire of some of the jurors to learn that shortly after her death, the decedent’s property was auctioned off, it bears no relevance to Mr. McIver’s charges, because the money from the auction was used entirely to pay for the upkeep on assets that were being controlled by the estate, as well as the beneficiaries identified in Ms. McIver’s will – not Mr. McIver,” the motion said.


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    Evidence of Mr. McIver’s demeanor at the hospital:

    “The opinion testimony from any witness, police officers or nurses, that Mr. McIver’s demeanor was somehow “inappropriate” or not consistent with a grieving husband, is not admissible pursuant to OCGA § 24-7-701.

    "Allowing nurses and police officers, all of whom now are aware of pending murder charges, to opine that “he didn’t behave like a grieving spouse” in order to move the jury to believe that the defendant must be a cold-blooded killer, is television pablum, not admissible evidence in a court of law in Georgia,” the motion said.

    Evidence of racial motivation:

    “There is also lurking in this case an effort by the prosecution to introduce racial animus in this case in pursuit of inflaming the passion of the jurors. Race is not an issue in this case. Not one facet of this case has anything to do with the race of a party, a victim, or a witness. There is no evidence that Mr. McIver harbors any racial animus or that the alleged crime in this case had any racial motivation. Yet, the state has sought to exploit a racial issue, presenting evidence that Mr. McIver told one colleague that he was handed the gun by the decedent because, upon waking up, Mr. McIver felt nervous about seeing homeless people, or a Black Lives Matter protest, near his car," the motion said.

    Evidence from the medical examiner on cause of death:

    “Because the cause of death in this case is disputed – and because “homicide” is certainly not the cause of death that the defense will present – the Medical Examiner’s conclusion should be redacted from the report,” the motion said.

    Attorneys also don’t want jurors to hear about McIver’s bond revocation after investigators found a gun in his Buckhead condo, or any evidence that he had multiple guns at a Putnam county ranch. They also want the judge to exclude testimony from several witnesses, including McIver’s ex-wife.

    Jury selection will begin Monday.

    Channel 2 Action News will bring you LIVE gavel-to-gavel coverage of the Tex McIver trial on WSBTV.com. Check back each day for a daily live blog and daily recaps of the trial.

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