Prosecutor: Gaps in Atlanta police investigation of Tex McIver

Tex McIver listens to the testimony of Detective Darrin Smith on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

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Tex McIver listens to the testimony of Detective Darrin Smith on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

After charging Claud “Tex” McIver with malice murder last April, seven months after he shot his wife Diane in the back, an obvious question arose: What did the Fulton County District Attorney’s Office know that Atlanta police did not?

On Friday, prosecutors focused on what wasn't asked of the defendant by APD investigators, who charged McIver only with reckless conduct and involuntary manslaughter. It made for an unusual dynamic when state witness Atlanta Police Det. Darrin Smith found himself under fire Friday from lead prosecutor Clint Rucker while receiving praise from defense co-counsel Bruce Harvey.

RELATED: Tex McIver charged by Atlanta police

RELATED: Tex McIver charged with wife’s murder

“He’s saying you didn’t investigate it right,” Harvey told Smith. “And I’m saying you did investigate it right.”

Rucker bristled at the suggestion, leading to a fiery exchange with his counterpart. But his questioning of Smith revealed gaps that left the prosecutor, at times, incredulous.

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Fulton County Chief Assistant District Attorney Clint Rucker asks Detective Darrin Smith questions on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

Fulton County Chief Assistant District Attorney Clint Rucker asks Detective Darrin Smith questions on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

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Fulton County Chief Assistant District Attorney Clint Rucker asks Detective Darrin Smith questions on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

Smith didn’t ask why McIver didn’t call 911 after the shooting, or whether the hammer on the .38 revolver was cocked.

"You never asked the defendant the question, how did the gun go off?" Rucker asked. The interview was conducted on Sept. 28, 2016, three days after the shooting. McIver was accompanied by his former lawyer Steve Maples and personal masseuse, Annie Anderson, a seemingly constant presence during the week following his wife's death.

“The trigger was pulled. That I am certain of,” Smith said. “Whether it was single action or double action didn’t make any difference to me.”

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Detective Darrin Smith holds up a holster on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

Detective Darrin Smith holds up a holster on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

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Detective Darrin Smith holds up a holster on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

But it makes a big difference when attempting to determine whether the shooting was unintentional, as McIver has maintained. If the hammer was cocked, only a single action, and roughly 2 pounds of pressure, is required. If not, a double action and about 12 pounds of trigger pressure are necessary. Ten pounds could be the difference between an accident and murder.

During his interview with Diane McIver's best friend Dani Jo Carter, who was driving the couple's Ford Expedition when the shooting occurred, Smith said, "Accidents happen….and that's what this looks like."

That conversation took place just hours after Diane McIver’s death. Smith said Friday he was merely trying to make a grieving witness more comfortable.

There were other assumptions. Regarding Tex McIver’s decision to direct Carter to take his wife to Emory University Hospital even though it was farther away from other hospitals, Smith concluded, “That’s what Tex knew.”

Harvey pointed out what McIver didn’t say during the September 28 interview.

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Defense attorney Bruce Harvey ask questions of Detective Darrin Smith on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

Defense attorney Bruce Harvey ask questions of Detective Darrin Smith on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

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Defense attorney Bruce Harvey ask questions of Detective Darrin Smith on day 14 of the Tex McIver murder trial at the Fulton County Courthouse on Friday, March 30, 2018. STEVE SCHAEFER / SPECIAL TO THE AJC

“Did he ever tell you Dani Jo was not in the car?” Harvey asked. Carter alleged McIver wanted her to tell police she wasn’t in the SUV when the shooting occurred.

No, Smith replied.

"He didn't say anything about the protests or Black Lives Matter," Harvey said. Not a word, replied Smith, although McIver vetted a statement from his spokesman at the time, Bill Crane, that claimed a BLM protest contributed to his decision to arm himself after Carter exited the Downtown Connector onto Edgewood Avenue.

Rucker later countered, “Did he ever tell you about having a sleep disorder?” McIver said he suffers from parasomnia, which is characterized by abnormal, sometimes aggressive behavior while sleeping.

Smith said he did not.

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What happened Friday? Lead prosecutor Clint Rucker took on his own witness, an APD investigator who questioned Tex McIver three days after his wife's shooting. The state didn't hide it's disappointment with the police probe.

What's next? Spring break. No, the trial isn't relocating to Panama City, but it is taking the week off, resuming April 9. The state expects to rest after a few more days, and it's likely jurors will begin deliberations the following week.

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