The judge overseeing Claude “Tex” McIver’s murder case has decided prosecutors can introduce evidence about a 1990 shooting incident when McIver allegedly opened fire on a carload of three young men and 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,” Fulton County Judge Robert McBurney said.
The decision is a blow to McIver's defense team, which on Friday asked McBurney to reconsider his decision. McIver's lawyers called the evidence overly prejudicial and irrelevant to the case at hand — whether McIver intentionally killed his wife or whether the September 2016 shooting was accidental.
McIver, once a wealthy and politically connected lawyer, is charged with malice murder for shooting his wife, Diane, as they drove along Piedmont Avenue. His murder trial is scheduled to begin March 5.
McIver, 75, was sitting behind Diane in the back passenger seat and a family friend was driving. McIver fired one shot through Diane's back, and she died that night at Emory University Hospital.
McIver said he had dozed off with his gun in a plastic grocery bag in his lap and accidentally pulled the trigger after being jolted awake. Prosecutors say he knew exactly what he was doing when he fired the shot.
They should now be able to tell jurors about the February 1990 shooting incident in DeKalb County, in which McIver fired three shots, either into the ground or into the trunk of a Mustang with men inside. McIver has said he confronted the men because they were drinking beer and being rowdy in his cul-de-sac. No one was injured.
McIver was charged with three counts of aggravated assault, which were later dismissed.
When interviewed at that time by police, McBurney’s order said, McIver gave differing accounts: he said he didn’t have a gun; he said he did have a gun but didn’t fire it; and he said he felt threatened by the three men. Shortly after McIver killed his wife, his former lawyer, Stephen Maples, told the news media that McIver did indeed fire the gun back in 1990, twice into the ground and once at the trunk of the Mustang, McBurney noted.
The DeKalb case shows that McIver “understands, from direct personal experience, the consequences of grabbing a gun, pointing it at someone he knows, placing his finger on the trigger and pulling it,” McBurney said.
Because McIver contends he accidentally killed his wife, "any evidence that sheds light on (his) intent, his knowledge of firearms, his ability to properly handle and fire them and his willingness to use them against others is probative," McBurney said.
McIver is also charged with improperly influencing witnesses after his wife’s death. Evidence about the 1990 shooting is “arguably relevant” to the influencing witness charges, because the driver of the Mustang agreed to drop criminal charges after McIver made a payment to him, McBurney said.
McIver’s lawyers called the prosecution’s attempt to present the 1990 evidence “ridiculous” and “nothing short of slapstick.” If Diane McIver’s death was the result of road rage, perhaps the state’s theory would make more sense, they said.
“No reasonable juror could hear that testimony and not be outraged and seek to condemn Mr. McIver for that episode,” their motion said. “… Nor does the evidence seriously address the critical issue in this case: did Mr. McIver intentionally decide to suddenly shoot his wife, with whom he was having no conversation or argument and who posed no threat to him, in the company of her best friend who was driving the car?”
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