Tex McIver is denied a new trial in wife’s killing

A Fulton County judge on Friday rejected Claude “Tex” McIver’s request for a new trial for the September 2016 killing of his wife Diane.

“This court’s conscience approves this verdict,” Superior Court Judge Robert McBurney wrote in an 18-page order. The judge’s ruling sets up McIver’s next step: an appeal to the Georgia Supreme Court.

In a hotly contested trial, McIver’s lawyers contended their client accidentally shot his 64-year-old wife in the back as they drove down Piedmont Avenue. McIver was sitting in the backseat behind Diane, who was next to a close friend driving the car. McIver, who did not testify, had told police he had fallen asleep with a gun in his hand and the gun went off when he was jolted awake.

Prosecutors argued McIver had a financial motive to kill his wife. And they said after he did it, he tried to cover it up.

The jury’s verdict was somewhat inconsistent and confusing. Jurors declined to convict McIver of malice murder — that he intentionally, with “malice aforethought,” killed his wife. Instead, jurors convicted McIver of felony murder, with the underlying offense being aggravated assault — that he intended to shoot Diane.

Both the defense’s and the prosecution’s theories “found at least some support in the evidence,” McBurney said. But he found there was sufficient evidence to support the felony murder verdict and allowed it to stand.

The judge also rejected defense lawyers’ arguments that racial issues so inflamed the jury that McIver did not get a fair trial.

McBurney noted there was testimony that McIver said he had asked to be given the handgun from out of the vehicle’s center console because they had driven upon a Black Lives Matter protest. There was also testimony that McIver called a doctor’s Black colleague “boy” when told his wife had just died.

“It was not pretty evidence, and it was prejudicial to (McIver),” McBurney wrote, “but not so wholly unfair or inflammatory as to require exclusion.”

Race only became an issue “because of choices (McIver) made in what he said to others, both soon and long after he had killed his wife,” McBurney said.

Among other issues the defense raised — and McBurney rejected — was the admission into evidence of a photo showing a sign posted outside McIver’s ranch house in Putnam County. It read “We don’t dial 911″ with a picture of a handgun.

McBurney found this item “more ironic than prejudicial” because the evidence showed that McIver did not call 911 after he shot his wife.