McIver v. State

• Decision Date: 30 June 2022
• Docket Number: S22A0093
• Citation: 314 Ga. 109,875 S.E.2d 810
• Parties: MCIVER v. The STATE.
• Court: Georgia Supreme Court

314 Ga. 109

875 S.E.2d 810

MCIVER

v.The STATE.

S22A0093

Supreme Court of Georgia.

Decided: June 30, 2022

Amanda Rourk Clark Palmer, Donald Franklin Samuel, Garland, Samuel & Loeb P.C., 3151 Maple Drive, N.E., Atlanta, Georgia 30305-2500, Bruce Steven Harvey, Law Offices of Bruce S. Harvey, 146 Nassau Street, N.W., Atlanta, Georgia 30303, for Appellant.

Patricia B. Attaway Burton, Paula Khristian Smith, Christopher M. Carr, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Ruth M. Pawlak, Fani T. Willis, Lyndsey Hurst Rudder, Fulton County District Attorney's Office, 136 Pryor Street SW 4th Floor, Atlanta, Georgia 30303, Leslie Anna Coots, Cobb County District Attorney's Office, 70 Haynes Street, Marietta, Georgia 30090, Kevin Christopher Armstrong, Fulton County District Attorney's Office, 136 Pryor Street 4th Floor, Atlanta, Georgia 30306, for Appellee.

Boggs, Presiding Justice.

At a 2018 jury trial, Claud Lee "Tex" McIver III was convicted of felony murder and other crimes arising out of the shooting death of his wife, Diane McIver.¹ He appeals, asserting among other enumerations of error that the trial court erred in refusing his request to charge the jury on the lesser grade of involuntary manslaughter under OCGA § 16-5-3 (b) and in allowing the State to introduce allegedly inadmissible and prejudicial evidence and make improper comments during closing argument.

We conclude that the trial court erred in refusing McIver's request to charge on the lesser grade of involuntary manslaughter, because the charge was authorized by law and some evidence supported the giving of the charge. We further conclude that the failure to give the charge was not harmless error, because we cannot say that it is highly probable that this error did not contribute to the jury's verdicts. We therefore reverse McIver's convictions for felony murder and possession of a firearm in the commission of a felony.² We do not decide issues that are unlikely to recur if the State elects to retry McIver, but we do address certain evidentiary issues. We see no abuse of discretion in admitting some of the challenged evidence, but other evidence lacked relevance or its probative value was substantially outweighed by the danger of unfair prejudice, so that unless the evidentiary posture changes for any retrial, that evidence should not be admitted again.

1. The evidence at trial.³

The evidence presented at trial showed the following: Late in the evening of September 25, 2016, McIver, Diane, and Diane's close friend, Dani Jo Carter, were on their way back from a weekend at the McIvers’ property in Putnam County, driving to Diane's condominium in the Buckhead area of Atlanta after a stop for dinner in Conyers. Carter testified that she was driving, Diane was in the front passenger seat, and McIver was in the rear passenger seat, at times conversing and at other times asleep. Carter was not aware of any argument or disagreement between Diane and McIver that weekend or during the drive.

When they got onto the Downtown Connector in Atlanta, traffic was heavy, and Carter said they needed to get off the interstate and go up Peachtree Street. Diane said something to McIver, but he did not respond, and Diane told Carter to get off at the Edgewood Avenue exit. After they exited the interstate, McIver said, "Girls, I wish you hadn't done this. This is a really bad area," and asked Diane to hand him his gun from the center console. Diane handed him the gun, a .38-caliber revolver, which was not in its holster, which was also in the center console, but rather in a plastic grocery bag.

Diane instructed Carter to turn onto Piedmont Road and continue north. Carter assumed that McIver had fallen asleep again, because he did not join in their conversation. Sometime later, they were stopped at a traffic light on Piedmont Road, at 14th Street, when Carter heard several clicks and asked what Diane was doing; she responded that she was locking the doors. At that moment Carter heard a loud "boom" and Diane swung around and asked, "Tex, what did you do?" McIver responded that "the gun discharged." Carter saw the gun in McIver's hand, pointing down, still in the plastic bag. The bullet passed through the back of the front passenger seat, striking Diane in the back.

McIver instructed Carter to drive to Emory University Hospital on Clifton Road.⁴ At the hospital, when asked how the shooting occurred, Diane told doctors it was an accident. Carter told the police it was "a horrible accident." Diane died during surgery as a result of internal injuries to her spine

, pancreas, kidney, and stomach.

According to some witnesses at the hospital, at times McIver did not appear to be upset or grieving. The State presented evidence that McIver told the police that he fell asleep with the gun in his lap and the gun fired, and that he made statements at the hospital that the gun discharged accidentally when the car went over a bump. The State also presented testimony from a nurse who was not involved in treating Diane, who said that she was passing by in the hospital hallway when she overheard McIver say, "I was cleaning my gun in the bathroom when I shot her." McIver later told a friend that there had been a "car accident" and Diane had died. He made several statements within the hearing of police officers and others indicating that he "could not go to jail," that he knew "how these things can go down," and that "this doesn't look good." McIver also told Carter to say that she had just come to the hospital as a family friend, but she told him she could not lie.

A firearms examiner for the State determined that McIver's double-action .38-caliber revolver was in good working order and, due to the internal hammer block, could not have discharged without the trigger being pulled. The trigger pull was either 2 ¼ pounds with the hammer cocked or 12 ¼ pounds with the hammer uncocked. An accident reconstruction expert for the State examined the pistol and the vehicle and testified, based on the trajectory of the bullet, that McIver did not have the pistol in his lap but was holding the pistol in a raised position, above the plane of his lap, at the time it was fired. But an expert for the defense also examined the pistol and the vehicle and concluded, to the contrary, that the trajectory and the limited space in the rear seat made it "physically impossible" for the gun to have been held upright, and that the bullet's path showed that the gun was lying on its side resting on McIver's lap when it discharged. McIver also elicited testimony from a State's witness that McIver suffered from a sleep disorder that could cause him to make involuntary movements if he was startled awake.

The State presented a substantial amount of evidence regarding the McIvers’ financial circumstances. McIver and Diane were married in 2005, a second marriage for both of them. McIver was a partner at a large Atlanta law firm; Diane was wealthy and an active business owner, the president of one real estate business and an owner or part owner of three other businesses. The McIvers kept their business interests and sources of income separate. Diane owned a condominium in Buckhead, and the McIvers owned a rural property in Putnam County, referred to as "the ranch," where they spent most weekends. They covered the expenses for their own properties, but Diane funded some improvements to the ranch. Before their marriage, Diane loaned McIver $750,000. At the time of the marriage, McIver gave Diane her ownership interest in the ranch, which they held as joint tenants with right of survivorship. In 2011, one of Diane's companies loaned McIver an additional $350,000 through a promissory note secured by the ranch property. The note was renewed in 2014, payable in 2017 or on demand within 90 days. If the property was foreclosed on, Diane as sole owner of the lending company could have deeded full title to the property to herself.

McIver executed a will in 2005, providing that his interest in the ranch would go to Diane if she survived him, and the residue of the estate would go to one of his adult children. Diane executed a will in 2006 that contained substantial bequests to McIver and established a trust for his benefit. Diane had no children but was very close to the McIvers’ godson. Her will was executed before their godson was born and so did not include him, but several witnesses testified that she wished to leave the ranch to him. The State presented evidence that McIver and Diane disagreed about how the ranch should be disposed of after both of them died. Codicils to Diane's will were prepared in 2007 and in 2009 or 2010 but were never executed.⁵ McIver executed a codicil to his will in 2009, which reiterated that Diane was to receive all of his interest in the ranch if he predeceased her. An attorney testified that between 2009 and 2011, McIver and Diane discussed executing new wills with him. McIver later made several appointments for the couple to discuss the contents of the new wills, but cancelled them. The attorney testified that no new wills were ever prepared.⁶

The State also presented evidence suggesting that McIver was experiencing financial difficulty as a result of his impending retirement from his law firm. He had recently become an "income partner," which meant that he was paid a set salary rather than a share of profits. His financial position had been worsening for several years, and he had told friends that he did not have enough money to cover expenses. The State presented testimony that Diane had regularly transferred money to McIver, that he would have had a negative cash flow but for those transfers, and that before Diane's death, McIver's net worth was approximately $1.5 million, but after her death, it increased to between $3.6 million and $6.9 million. Several months after Diane's death, McIver sold her furs, jewelry and other personal items through an auction company. According to the...