McIver v. State

Benjamin McIver was convicted in Chatham County of malice murder, armed robbery, kidnapping, and a firearms charge after he and an accomplice, Antavius Wilcox, bound Brandon Smith with cords, took his debit card, drove him to a wooded area, and shot him. Cell phone records, DNA evidence on the cords, and other forensic evidence tied McIver to the crime. He appealed to the Supreme Court of Georgia, arguing his trial lawyer failed him by not hiring a DNA expert to testify, by not moving to suppress part of a police interview, and that there was not enough evidence to convict him of armed robbery. The court rejected the ineffective-assistance and suppression claims, finding the lawyer's strategy was reasonable and that a challenge to a booking-type question about McIver's phone number would have required expanding existing legal rules. But the court agreed with McIver, and the State conceded, that the evidence showed the gun was used only after the debit card was already taken, so the armed robbery conviction could not stand. The murder and kidnapping convictions were affirmed, and the case was sent back to the trial court to resentence McIver in light of the reversed armed robbery count.

The court held that trial counsel's strategic choice to challenge DNA evidence through cross-examination rather than expert testimony was not deficient, that no suppression argument was viable because it would require extending existing Fifth Amendment precedent, but that the evidence was legally insufficient to sustain the armed robbery conviction because the gun was used only after the debit card was taken.

McIver keeps his life sentence for murder but loses the armed robbery conviction, changing how his other sentences fit together and requiring a new sentencing hearing. The ruling also reinforces limits on when defense lawyers can be faulted for relying on cross-examination instead of hiring their own experts.

Affirmed in part and reversed in part, case remanded for resentencing

1. To win an ineffective-assistance claim under the Strickland test, a defendant must show both that his lawyer's performance was unreasonably deficient and that this deficiency likely changed the outcome; failing either part defeats the claim.
2. The court found trial counsel investigated the DNA evidence, consulted two DNA experts who coached him during trial, and made a reasonable strategic choice to attack the DNA results through cross-examination rather than risk presenting a weak defense expert, so his performance was not deficient.
3. Because McIver's own proposed expert used and endorsed the same TrueAllele DNA software used by the State, counsel was not deficient for failing to file a pretrial motion under the Harper standard (Georgia's test for admitting new scientific evidence) challenging that method's reliability.
4. On the claim about McIver's police interview, the court explained that routine booking questions like asking for a phone number are generally allowed even after a suspect invokes the right to remain silent, and no clear precedent required treating this particular question as improper interrogation, so neither the lawyer's failure to object nor the trial court's failure to exclude it was an error under the plain-error standard, which requires a clear and obvious mistake.
5. On the armed robbery count, the State conceded and the court agreed that the evidence showed the gun was used only after the debit card had already been taken, and Georgia law requires that a weapon be used before or during the taking, not afterward, so the armed robbery conviction could not stand.
6. Because the armed robbery conviction was reversed, related sentencing decisions built on it, like merging the aggravated assault count into armed robbery and stacking sentences consecutively, no longer made sense, so the case had to go back to the trial court to be resentenced correctly.

• murder conviction
• armed robbery reversal
• ineffective assistance of counsel
• DNA evidence
• Miranda rights