McIver v. State

Benjamin McIver was convicted by a Chatham County jury of murdering Brandon Smith along with armed robbery, kidnapping, and a firearm charge, after cell phone records and DNA evidence tied him to Smith's binding and killing near a dead-end street. McIver appealed to the Supreme Court of Georgia, arguing his trial lawyer was constitutionally ineffective for not hiring a DNA expert to testify and not challenging the DNA testing method in court, that the trial judge should have blocked part of his police statement, and that the evidence did not prove armed robbery. The court rejected the ineffective-assistance and statement claims, finding counsel's choices reasonable and that no clear legal rule barred police from asking for McIver's phone number. But the court agreed with the State that the evidence showed the gun was used only after the debit card was already taken, meaning armed robbery was not proven. The court affirmed the murder, kidnapping, and firearm convictions, reversed the armed robbery conviction, and sent the case back for resentencing.

The court held that trial counsel's strategic choices to rely on cross-examination of the State's DNA expert, rather than hiring a defense expert or filing a Harper reliability motion, were not constitutionally deficient, and that no clear precedent barred police from asking a suspect his phone number after he invoked silence. However, the evidence was legally insufficient to prove armed robbery because the gun was used only after the debit card was already taken.

The ruling shows Georgia courts will closely scrutinize whether a weapon was used before or during a theft, not just sometime during a crime spree, when armed robbery is charged. It also reaffirms that lawyers relying on cross-examination instead of hiring experts, and police asking booking-type questions like a phone number, generally won't be found improper.

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

1. To win an ineffective-assistance claim, a defendant must show both that his lawyer's performance was deficient (unreasonable under professional norms) and that this deficiency likely changed the outcome, under the Strickland test; failing either part defeats the claim.
2. The court found trial counsel reasonably relied on cross-examination of the State's DNA analyst, using informal help from two consulted DNA experts, rather than paying to fly one in, given time pressure created by McIver's own insistence on a speedy trial and weaknesses in the expert's proposed testimony.
3. Because McIver's own proposed defense DNA expert admitted the TrueAllele DNA software used by the state lab was scientifically valid and had used it himself, the court concluded a pretrial motion challenging that DNA testing method under the Harper reliability standard would not have succeeded, so counsel was not deficient for skipping it.
4. On the police interview issue, the court explained that routine booking questions like a suspect's name or address are exempt from the right to remain silent, but no Georgia or U.S. Supreme Court case has decided whether asking for a phone number counts as a booking question; because ruling for McIver would require extending existing law, neither his lawyer's failure to object nor the trial judge's admission of the answer was a clear, obvious error.
5. Applying the rule that armed robbery requires the weapon to be used before or at the same time as the taking of property, the court agreed with the State's concession that the evidence showed Smith's debit card was taken well before any gun was obtained, so the armed robbery conviction could not stand.
6. Because the armed robbery conviction was reversed, the related sentencing structure (merging aggravated assault into armed robbery and stacking other sentences on it) no longer worked, requiring the case to be sent back to the trial court to redo sentencing.

• murder conviction
• armed robbery
• ineffective assistance of counsel
• DNA evidence
• right to remain silent