Tex McIver tells judge he will not testify; defense rests its case

ATLANTA — Day 19 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 presented for three days and then rested its case Friday afternoon.

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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4:24 p.m.

Court adjourned.

The prosecution expects to call three rebuttal witnesses on Monday and the jury will pay a visit to the McIvers’ SUV to see the scene of the crime firsthand.

3:51 p.m. 

Jury Charge

Lawyers and the judge are working their way through the jury charge — or the directions the judge will give jurors before they deliberate.

They are deep in the legal weeds but these instructions are important in guiding the jury through their work.

3:10 p.m.

Visiting the scene of the crime

The lawyers and the judge are talking about whether the jury should be allowed to see the Ford Expedition where the shooting took place.

Clint Rucker, the prosecutor,  wants jurors to be able to visit and sit in the SUV for as long as they like. He thinks the encounter should be videotaped for the record.

For the defense, Bruce Harvey is expressing concerns that the lighting and the condition of the SUV won’t be identical to the way they were the night Tex McIver shot his wife.

“Here are my thoughts. I think it’s gonna happen,” McBurney said. But the judge acknowledged that he will have to give the jury explicit instructions.

McBurney also said he would allow non-photographic media to be present.

2:57 p.m.

Judge McBurney has denied the defense’s motion for a mistrial.

The defense had asked for a mistrial arguing that the state improperly injected race into the case through mentioning statements McIver is alleged to have made about Black Lives Matter.

“The fact that it backfired on him and the press took it to another level should not absolve Mr. McIver of responsibility for making the statement,” prosecutor Clint Rucker said.

“He is lying not only about why he got the gun but what happened when he got the gun,” Rucker continued.

2:50 p.m.

The jury has left for the day. Rebuttal witnesses from the prosecution will appear Monday. Closing arguments are expected on Tuesday and then the jury will deliberate.

Among the rebuttal witnesses who may be called is Putnam County Sheriff Howard Sills, a friend of the McIvers.

2:45 p.m.

The judge has denied a defense attempt to get the most serious charges against McIver dismissed.

McBurney said there was sufficient evidence to move forward against McIver with the charges of murder, felony murder, aggravated assault with a deadly weapon and possession of a firearm in commission of a felony.

McBurney has said he will consider dismissing a witness influencing charge involving McIver’s conversation with Dani Jo Carter. McBurney had previously dismissed two other witness influencing charges against McIver after the prosecution rested.

The judge also has not ruled on a separate motion from the defense asking for a mistrial.

2:12 p.m.

The defense has rested in the Tex McIver murder trial. They were expected to call two more witnesses but instead concluded their case.

Rebuttal witnesses are expected next.

Nearly 80 witnesses have testified over 19 days.

2:05 p.m.  

Tex McIver will not testify in his own defense.

After returning from lunch and, outside the presence of the jury, Judge Robert McBurney questioned McIver and advised him of his right to take the stand.

“Do you understand that you have a right to testify and that if you wish to testify no one can prevent you from doing so?” McBurney asked.

“Yes sir,” McIver replied, his voice barely louder than a whisper.

“Do you choose to testify in your trial?” McBurney asked.

“No,” McIver said.

The jury returned to the courtroom soon after the exchange.

12:56 p.m.  Jury is taking a lunch break and will return at 1:45 p.m. The judge has announced he intends to talk on the record with Tex McIver about whether or not McIver will testify. We've had no indication from the defense team about their plans to put him on the stand, but it would be an unusual move.

12:46 p.m.

Under questioning from Rucker, the defense expert Gardner has said he “made a significant error” in not knowing the results of tests for DNA performed by investigators on the gun. He said the error would not change his opinion.

12:30 p.m.

The judge asks If any part of the plastic grocery bag was close to the muzzle when the shot was fired, what would that have done relative to the gunshot residue.

Earlier testimony was that the gun, a Smith and Wesson .38 Airweight, was inside a plastic Publix bag when it was fired.

Gardener said the beige matter that can be seen in a photo of the bullet hole in the back of the seat where Diane McIver sat, is actually bits of the plastic bag. Rucker challenges that he couldn’t know that since the SUV had been cleaned before Gardener examined it.

12:23 p.m.

Rucker seems to be trying to challenge the exact position of the gun at the time of the shooting as a way to deduce intent to fire the gun.

Rucker is clarifying with the witness that he told the jury it was impossible for the gun to be held upright on the thigh when it was fired.

The only data available to isolate the location of the gun, was the pants McIver were wearing at the time.  Those were not collected and preserved by police, Gardener said.

So gunshot residue on the seat is all that remains. Gardener said he is not a gunshot residue or ballistics expert.

12:07 p.m.

The defense’s expert in crime scene recreation and prosecutor Clint Rucker are slugging out the details of how the gun was held when the shooting occured, in the expert’s opinion.

Gardner said it doesn’t matter if McIver is right- or left-handed.

“No one can exclude the left hand,” expert Gardner said.

An exasperated Rucker called him in front of the witness stand to sit in a chair, hold a gun and demonstrate how it could’ve been fired with the left hand. Gardner obliges, contorting his left hand to rest the gun on his leg.

“That’s crazy,” Rucker said.

After laughter breaks out at one point, the judge cautions observers in the gallery to keep quiet.

Noon

On cross-examination of the crime scene expert, prosecutor Clint Rucker asks about the crime scene recreation and how accurate the model was showing the interior of the SUV with Gardner seated in the seat where Tex McIver would’ve sat.

Rucker began asking questions to make a point about the two men being different sizes and that effecting the recreation.

Gardner said he knew the length of McIver’s arm. “His arm is 2 1/2 inches shorter than mine” and he said he checked to be sure he hadn’t introduced a bias in his recreation. Rucker seems agitated asking if any of this was reflected in the report.

“Were you trying to surprise me here today?” Rucker asked.

“No sir, I’m just surprised we’re talking about it,” Gardner replied.

11:35 a.m.

“I have a confidence that the weapon was somewhere between the forward hip and the lower thigh at the time of discharge,” crime scene analysis expert Ross Martin Gardner testifies. He said no crime scene expert can determine if a gun was fired accidentally or on purpose.

11 a.m.

Gardner is showing the 3-D illustration provided by state’s witnesses that illustrate a shooter holding the gun down at the side of the hip, in a vertical position -- a position that would not have been possible with the armrest and other space limits in the rear seat area.

10:43 a.m.

The recreation of the bullet’s path by an expert in crime scene reconstruction:

Gardner is testifying how his analysis of the bullet holes in the front seat where Diane sat -- the seat that was pierced by the bullet -- led to his determination of how the gun would have been oriented when it was fired.

The gun would’ve had to rest on the top of Tex McIver’s thigh, most likely resting sideways, in order to match the trajectory of the bullet and due to spatial constraints inside the SUV.  Holding the gun vertically, would not have been possible.

10:25 a.m.

Ross Martin Gardner, an expert in crime scene analysis and reconstruction, is  now on the stand. He was called in by Bruce Harvey to do an analysis on the Ford Expedition where the shooting took place. He worked to determine the bullet’s trajectory, where the gun was and where the victim sat during the shooting.

His measurements taken inside the SUV of the angle of the bullet’s trajectory were different from those taken by Michael Knox, a forensic expert brought in by the state. He said the differences are small and don’t impact the analysis.

10 a.m. 

So now we’ve heard from two people associated with Diane McIver’s estate who say they - not Tex McIver - were responsible for two moves that have been cited as evidence of Tex’s greed: His quick sale of his dead wife’s belongings, and his sale of the condominium where they lived.

Earlier this week, Attorney Stanley Smith Jr., a wills and estate attorney who was hired to handle the estate of Diane McIver, said he had urged Tex McIver to move quickly to sell her fashion clothing and jewelry at the end of 2016.

Today, Oliver, who took over as executor of the estate,  said she made the decision to sell the two condominiums where the McIvers lived in Buckhead. The condo was Diane’s, but in her will she had instructed that Tex should be allowed to live out his life there if she died before him.

9:57 a.m.

Who made the decision to sell the McIver condominiums in Buckhead? Mary Margaret Oliver said she made that decision, but needed Tex McIver to agree to it because in the will, Diane intended to allow Tex to live there until his death. Then, the condo would have returned to her estate.

Oliver said of the current $550,000 in the estate account, some of that money will be given to Tex McIver to reflect his interest in the condo that he has given up. The amount is still under negotiation.

9:45 a.m.

Oliver took over at the administrator or executor of Diane McIver’s estate in July after Tex McIver could no longer manage the estate. Tex was named in Diane’s will as her executor.

Oliver is being paid $10,000 a month to manage the estate. Being a large and complex estate, she said it’s appropriate for professionals to be hired to assist with the running of the estate, including attorneys and others to assist with the work.

9:40 a.m.

Amanda Clark Palmer is now returning to estate administrator Mary Margaret Oliver to ask about Diane McIver’s jewelry. Yesterday, the state prosecutors made a statement that Tex McIver had auctioned away the jewelry his wife wore on the night she died. Palmer found one diamond bracelet she was wearing at the time of her death is among the jewelry pieces that was held back from auction.

The judge asks why if jewelry is being distributed that the cash bequests of $350,000 in Diane’s will have not been distributed. Oliver said when she she took over last July there was only $200,000 in the estate account and liabilities outstanding. With the sale of the Buckhead condo for $604,000, the cash is now available. She said the estate account now has $550,000 and she said she intends to distribute the money soon as directed in Diane’s will.

9:30 a.m.

Abbate said that over $325,000 in “expenses” have been paid from Diane McIver’s estate.  Oliver is unable to confirm the number, but agrees that the estate has had “substantial” expenses.

“Of course it’s a substantial amount of money spent. Whether or not it’s appropriate is the proper inquiry,” Oliver said.

She said she has not requested information on what expenses may have been covered by Tex’s American Express bills. If the bills covered legitimate expenses for the estate, the payment would have been appropriate, she testifies.

Lawyers are already huddling at the judge’s bench to hash out this line of questioning.

9:15 a.m. 

Testifying again Mary Margaret Oliver, a lawyer working as the administrator for the estate of Diane McIver since July 2017.

Prosecuting attorney Adam Abbate is questioning her about payments made from the estate of Diane McIver. Specifically, American Express bills for Tex McIver were paid from Diane McIver’s estate, Abbate is saying.

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