Defense attorney Bruce Harvey Defense attorney Bruce Harvey (Pool photo: Alyssa Pointer/AJC)

Dani Jo Carter, the sole witness to the 2016 fatal shooting of Diane McIver, on Wednesday told the jury hearing the murder case of Atlanta attorney Claud “Tex” McIver that he told her, “I can’t go to jail.”

Carter said McIver made the comment while at Emory University Hospital shortly after he fatally shot his wife. McIver and his lawyers have always insisted Diane McIver’s shooting was an accident—a conclusion Carter testified she believed at the time and had shared with Atlanta police.

Carter testified Wednesday that she had just returned to the hospital emergency room with her husband and rejoined McIver and Stephen Maples, an attorney he called minutes after they rushed Diane McIver to Emory’s emergency room from Midtown Atlanta, bypassing several closer hospitals, including the city’s two Trauma I facilities.

But attorney Bruce Harvey, a member of McIver’s defense team, suggested Wednesday his client’s comment was a reference to claustrophobia rather than an implication of guilt.

Carter was driving the McIvers’ SUV, chauffeuring the couple home from a weekend at their 75-acre ranch on  Sept.  2, 2016, when a traffic jam led her to exit the interstate in downtown Atlanta. McIver, sitting in the back seat, expressed wariness at the neighborhood and asked for his gun. A few miles north, while Carter was stopped at a red light, the gun fired, fatally wounding Diane McIver, who was sitting in the front passenger seat.

Before concluding her testimony Wednesday morning, after more than two days on the stand, Carter said she once witnessed Tex McIver shove his wife during a heated argument in 2016—an incident she never shared with police or prosecutors until March 18 while prosecutors were preparing her to testify at McIver’s murder trial. Prosecutors did not share information on Carter’s new revelation with McIver’s defense team until Tuesday, and McIver’s defense objected to its introduction.

Carter said the incident she witnessed stemmed from a mishap when the McIvers’ godson, Austin Schwall, burned his finger at a fire pit at the couple’s ranch. The boy, then 10, was hysterical, she said, and recalled icing the child’s finger to ease his pain.

Later that night, after everyone went to bed, Carter said she was awakened by Austin’s cries from the McIvers’ master bedroom. She said the bag of ice she gave the child had leaked all over the couple’s bed, that Diane had thrown it in the bathroom sink and that Austin was crying “because his finger was burning.”

Diane McIver was insisting that “there was nothing wrong” with Austin as Tex attempted to quiet her, Carter recalled. Then, she said, “They shoved each other. Tex kind of pushed Diane out of the bedroom and closed the door.” The McIvers “had been drinking,” Carter recalled.

Carter said she had never witnessed that kind of confrontation between the McIvers. “I was so upset about it I called my husband,” she said.

Harvey, who cross-examined Carter at length on Tuesday and has strived to portray his client as a courtly “Southern gentleman,” suggested the incident was “insignificant.”  Carter, he pointed out, had failed to mention it to Atlanta police when they questioned her immediately after Diane McIver’s death and had failed to recount the couple’s confrontation to Fulton County prosecutors during multiple interviews with them since February 2017.

“It was so important you wanted to let him [Assistant District Attorney Clint Rucker] know about it,” Harvey rejoined. “But it didn’t come out until Sunday, did it?”