It would be Diane McIver’s final word, a simple, declarative and, the prosecution in her husband’s murder trial believes, telling response to a question from her treating physician in the emergency room at Emory University Hospital.
Dr. Susanne Hardy took the stand Friday to recall the death-bed conversation. Before inserting a breathing tube , Hardy asked Diane if she’d like to see her husband, Claud “Tex” McIver who, a few hours before, had shot her in the back — accidentally, he maintains.
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“No,” responded McIver, who would be pronounced dead at 12:45 a.m. on September 26, 2016.
It was a powerful moment, re-created in the courtroom using a hospital gurney and a mannequin. But Diane McIver also told the doctor the shooting was an accident.
IN-DEPTH: Diane McIver’s final moments revealed at husband’s murder trial
EXCLUSIVE: Tex McIver says shooting his wife was an accident.
Such contradictions have plagued the state in their attempts to portray Tex McIver as a cold-blooded killer motivated by financial gain. In some instances, witnesses haven't delivered what prosecutors seemed to expect.
“I don’t understand why I’m here. I don’t know who was holding it,” said Emory emergency room doctor Selin Caglar, referring to the gun that killed Diane McIver.
In her opening statement, prosecutor Seleta Griffin told jurors they would hear from a doctor, presumably Caglar, who would tell them Tex McIver said that Diane "took the gun and put it behind her back. And as they were driving it went off."
Credit: Channel 2 Action News
Credit: Channel 2 Action News
That’s what Diane McIver told Hardy in the emergency room. Hardy testified she found that odd and repeated the question, to which the 64-year-old businesswoman replied, “No, he was holding it behind my back.
Caglar testified that Tex McIver never said his wife was holding the gun.
Credit: Channel 2 Action News
Credit: Channel 2 Action News
“He said that they were going through a rough part of town,” Caglar testified. “He said that the gun was in the console, because they were going through a rough part of town he took it out and they went over a bump.”
That story was consistent with what Tex McIver told police and seemed to throw lead prosecutor Clint Rucker for a loop.
“Did Mr. McIver tell you who was actually holding the gun when it went off?” he asked Caglar.
"I don't believe I could confidently tell you that," she said. Caglar also called his reaction to news that his wife's condition had deteriorated as "appropriate."
Even testimony seemingly damning against the 75-year-old defendant appeared to backfire.
Credit: Channel 2 Action News
Credit: Channel 2 Action News
Emory nurse Theresa Sullivan expressed little doubt that Diane McIver’s death was no accident and, in doing so, demonstrated “extreme bias on the part of the witness and could easily cause the jury to disregard the entirety of her testimony,” observed Marietta criminal defense attorney Philip Holloway, who is not affiliated with the case.
Sullivan said she witnessed a “huddle” in a hallway at the hospital that included Tex McIver, his attorney and friend, Steve Maples, Dani Jo Carter, who was driving the McIver’s Ford Expedition when the shooting occurred, and Carter’s husband. Maples, according to Sullivan, told Tex, “This is what you’re going to tell them.”
“I had the impression that there was a plan being enacted,” she said.
That, along with the fact no one called 911 after the shooting on their way to a non-trauma medical center, appeared to convince Sullivan of Tex McIver’s guilt. She shared that opinion when she met with prosecutors during a pre-trial hearing.
Sullivan’s earlier remarks were read into the record Friday by a defense attorney:
“Please tell me you guys are going to be able to nail him,” she said.
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