For the prosecution, it answers the nagging question of motive in the murder trial of Claud "Tex" McIver, accused of murdering his wife.
But for the defense, there’s nothing there — literally.
Diane McIver, shot and killed by Tex McIver in September 2016, had a second will, the state contended Wednesday at a pre-trial hearing, one that would've adversely impacted her husband's finances. Jury selection starts Monday morning for a trial the two sides expect will last roughly four weeks.
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Prosecutors don’t have a copy of that alleged second will, however, and they won’t be calling any witnesses testifying they’ve seen it. But they insist it does exist and would’ve bequeathed the couple’s Putnam County ranch to their godson — not Tex McIver.
“The most we have is some people who will say Diane McIver made comments to me that she was updating her will,” said Amanda Clark Palmer, a member of Tex McIver’s defense team.
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. Diane, a prominent business executive, died a few hours later on an operating table at Emory University Hospital. Her husband insists the shooting was accidental.
“Much of our investigation has been a pursuit to locate (the second will),” lead prosecutor Clint Rucker, adding it has been “secreted” from the state,” presumably by the defendant. “The contents of which we’re able to glean a little information from emails … in which Mrs. McIver states her intentions.”
Fulton County Superior Court Judge Robert McBurney did not rule on the flurry of motions offered Wednesday by the defense, though he delayed a decision on one, possibly reversing a previous ruling.
In January, McBurney decided prosecutors could introduce evidence about a 1990 shooting incident when McIver allegedly opened fire on a carload of three young men, then lied to the police about it.
That incident shows he “is not a passive user of firearms; they do not simply rest in his hands and fire themselves randomly,” McBurney said then.
But the judge indicated he was having second thoughts, saying he would revisit the issue after the state rests.
Among the other defense motions argued Wednesday:
- Excluding evidence about Tex McIver's decision to take his wife to Emory Hospital.
The state claims McIver intended to kill his wife inside their Ford Expedition because he directed the couple’s friend, Dani Jo Carter, to drive them to a hospital farther away, one that wasn’t well-equipped to deal with gunshot victims.
“No one’s going to say this woman would’ve lived had they gone to Grady (Memorial Hospital),” said defense co-counsel Don Samuel.
To assert, “He intentionally delayed, he chose the worst hospital, he chose the slowest route … it is ridiculous,” Samuel argued. “It is a ridiculous theory.”
But the odds of her survival would’ve increased significantly had Diane McIver been taken to Grady, Rucker said.
Instead, “she laid on a gurney at Emory (Hospital) for 40 minutes” while hospital personnel scrambled to find doctors who could perform the surgery, he said.
Carter will testify that the decision to go to Emory was made by Tex McIver while stopped at a red light on Piedmont, said Rucker, who added there were better options available that were closer.
- Omitting evidence that McIver sold off his late wife's clothes and personal belongings.
“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 defense argues in its motion.
But the state countered that’s simply untrue. Rucker said none of those beneficiaries have received that money.
- Excluding evidence pertaining to race
Four days after his wife’s death, McIver told his spokesman that he pulled out his gun in the backseat because he was fearful of the neighborhood, mentioning a Black Lives Matter protest nearby.
“It’s been exploited by the prosecution to make this look like a racial case,” Samuel said. “There’s no race in this case at all, other than this issue.”
McIver didn’t mention Black Lives Matter in his initial statement to police.
“What was the rationale for changing those statements?” Rucker countered.
McIver is also charged with obstruction and three counts of influencing witnesses in the days after the fatal shooting.
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