Channel 2 Action News and the Atlanta Journal-Constitution are bringing you LIVE gavel-to-gavel coverage of the Tex McIver murder trial. Check back on ajc.com each day for a live blog from the courtroom and daily video recaps. To keep up with each day’s story and see previous coverage, go to myajc.com/crime/
This is our live recounting of testimony occurring in the courtroom on Friday March 30:
2:45 p.m. Court is being dismissed early today
Jurors have been released. Next week will be a week off for the trial, coinciding with Spring Break. The trial will resume on Monday, April 9.
After 14 days of testimony over 3 weeks, the prosecution is nearing the end of its witness list, but the defense has yet to begin presenting its side.
In answer to a juror, Judge McBurney said their case should be much shorter than the state’s portion of the trial - days, not weeks.
“There’s no burden on the defense, they don’t have to show you anything at all, but they’re entitled to.”
The judge is not willing to say that the trial would conclude the week of April 9.
The judge relays juror questions for Detective Smith. He has worked in the Atlanta Police Department since 2012 and said at any given time he may be working 5 to 6 homicide cases at once.
He is asked why did he tell Dani Jo Carter that this situation sounded like an accident before he had finished the investigation?
“Her good friend had died,” Smith said “I didn’t want to scare her into thinking that we were looking at (Tex) as a cold blooded murderer. That can change the tone of the interview in a hurry, I’ve seen it happen.”
Rucker drills down on Smith’s failure to interview nurses at Emory University Hospital who could offer insight into the case, as well as anyone who might’ve seen the McIvers in the days before the shooting.
Under more pressure from Rucker, Smith says he never walked inside the emergency room the night of the shooting to talk to Tex McIver. He said he was told the defendant had left and that he should’ve gone inside.
Smith spoke to shooting witness Dani Jo Carter at 2:30 a.m. the night of the shooting, but it would be two days before he arranged to speak to the defendant.
While Harvey seemed to be showing Smith, who was the lead detective on the McIver case, worked hand-in-hand with the District Attorney’s office on the case, prosecuting attorney Rucker is working to make clear the shortcomings of the APD’s investigation.
Rucker is highlighting financial records not requested, video footage that was missed and a hasty examination of the SUV where the shooting took place.
Rucker: “Did you ask him directly: Mr. McIver, did you pull the trigger?”
Smith: “I did not.”
Defense attorney Harvey has finished his cross-examination of Smith, reviewing how closely Smith coordinated his investigation with the Fulton County District Attorney’s office in October 2016 following the shooting.
Fulton County Assistant District Attorney Clint Rucker is pointing out that Smith’s work on the case began Sept. 26 until Oct. 14, 2016 or about 19 days. A warrant was obtained on Dec. 20, 2016.
Rucker is now returning to Smith’s investigation of the McIver’s financial accounts. Smith, saying he is not a forensic accountant, said, “I didn’t see anything alarming... Money coming in, money going out.”
Smith said he did not determine that there may have been a financial motive. In the end, he provided the DA’s office records for Diane McIver’s accounts and some for Tex McIver.
The jury is back in.
APD Homicide Detective Darrin Smith is back on the stand.
Judge Roberet McBurney is instructing the jury to disregard defense attorney Bruce Harvey’s remarks as to what he thought the state was trying to do with its examination of Smith. The judge says such remarks should be restricted to closing remarks.
After the jurors left, Harvey and Rucker argued over Harvey’s remark. Judge Robert McBurney said he would make clear to the jury when they returned that he had sustained Rucker’s objection.
“The tables are a little bit turned,” Harvey acknowledged. Harvey said the prosecution was in the position of saying the police “didn’t do this and didn’t do that.”
Meanwhile, he is arguing they did a great job.
The jury has taken a break for lunch.
Before they left, Harvey assumed an unusual role for a defense attorney - vocal supporter of the police who investigated his client.
Harvey took Smith, the homicide detective, through his investigation into Tex McIver, trying to show that he was thorough.
Harvey said Rucker, the prosecutor, had been attacking Smith’s credibility.
“He’s saying you didn’t investigate it right,” Harvey told Smith. “And I’m saying you did investigate it right.”
Defense attorney Bruce Harvey is cross examining Det. Smith. Harvey is reading aloud large chunks of a transcript of Smith’s Sept. 26 interview with Dani Jo Carter.
“Accidents happen,” Smith told Carter in that interview.
“And that’s what this looks like.”
The transcript shows that Smith later talks to Carter about accidental gun discharges and how they happen frequently, even among police officers.
He tells Carter they have to investigate the shooting to make sure we haven’t “overlooked anything.”
In the follow-up conversation with Dani Jo Carter in December 2016, Smith says she volunteers more information. She says that on the night of the shooting Tex McIver had suggested she tell authorities she had joined him at the emergency room and had not been in the SUV when the gun went off.
Smith says he never asked Tex McIver whether the gun was cocked when he fired it.
“The trigger was pulled. Whether it was single or double action doesn’t make any difference,” Smith says
Almost three months to the day after the shooting, Smith says police charged Tex McIver with reckless conduct and involuntary manslaughter.
Dani Jo Carter also came in for a follow-up interview with the district attorney’s office. Smith said he didn’t participate in the whole interview because he had already spoken to her.
“I didn’t have any overwhelming evidence that would convince me or that would show,” Smith began.
Attorneys quickly jumped in and cut him off.
Prosecutors and police are often on the same side but, in this case, the district attorney’s office filed malice murder charges against the recommendation of Atlanta Police.
Prosecutor Clint Rucker is being aggressive in his questioning of Smith, pointing out inconsistencies in his testimony on the stand today with a transcript of the 2016 interview.
Rucker is also suggesting questions Smith neglected to ask in the Sept. 28 interview.
In one exchange, Rucker asks Smith about McIver’s alcohol consumption at the Longhorn Steakhouse dinner prior to the shooting.
“He indicated that red wine gives him a headache and he had only had a few sips that night,” Smith testified.
(In previous testimony we’ve heard that both Diane and Tex McIver were avid wine drinkers and liked Pinot Noir)
Rucker then followed up by asking Smith why Dani Jo Carter had been driving that night if McIver had only consumed a few sips of wine. And Rucker also questioned whether Smith asked McIver if he had any other drinks outside the restaurant.
“No,” Smith replied.
APD Homicide Det. Darrin Smith is back on the stand after a break. During the recess and outside the presence of the jurors, lawyers argued over whether Smith had been limited in what he could ask Tex McIver in his police interview.
The jury has been dismissed for a break while lawyers battle over some technical legal issues.
Tex McIver comes in for an interview at police headquarters on Wednesday, Sept. 28, more than two days after the shooting. He is accompanied by his lawyer Steve Maples, his masseuse Annie Anderson and another lawyer, Calvin Leipold. The interview, which was recorded, lasted 26 minutes.
Maples and Leipold spoke to police first, Smith says. Maples then brought Tex McIver in from a waiting area.
Smith says he asked McIver open-ended questions about what happened.
TIMELINE: Events in the Tex McIver saga
Smith says the investigation resumed on Tuesday, Sept. 27. Smith obtained a search warrant and began to inspect the Ford Expedition.
He said the rear passenger seat appeared to be reclined slightly and he saw a bullet hole in the front passenger seat.
He collected the .38 Smith and Wesson Revolver in the backseat, a “pristine bullet” in the front passenger seat and a leather holster.
Smith said he saw a bottle of wine in the pocket behind the front passenger seat but it was outside the scope of the search warrant so he did not collect it.
After talking to Carter, Smith went to the hospital. He oversaw the SUV being taken from the parking deck to be inspected as evidence.
In the early morning hours at the hospital, Smith encountered Stephen Maples, Tex McIver’s lawyer. Smith told Maples he wanted to talk to Tex McIver. Smith said he did not ask to perform gunshot residue test on Tex McIver’s clothing or hands.
At 4:37 p.m. on Monday Smith says Tex McIver called him. He told Smith he “felt horrible” about what had happened. The two agreed they would talk soon.
Smith says that in that interview Carter did not mention a conversation with Tex McIver at Emory University Hospital in which she says he told her not to tell police she had been in the vehicle. That conversation is at the center of a witness influencing charge against Tex McIver.
We are starting Day 14 of testimony in the Tex McIver murder trial with Atlanta Police Homicide Det. Darrin Smith, who interviewed Dani Jo Carter at police headquarters soon after Diane McIver died. The interview began at 2:39 a.m. Sept. 26, 2016. Carter was driving the McIvers’ Ford Expedition when Tex shot Diane.
Continuing coverage of the McIver trial. Come to our subscriber website, MyAJC.com for the latest episode of our podcast “Breakdown: The McIver Murder Case.” You can stream the podcast directly from our website or find it on Apple Podcasts, Stitcher or your favorite podcasting platform.
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