Limits on Ineffective-Assistance Claims: Strategic DNA Expert Use & Booking-Question Exception in McIver v. State

Introduction

McIver v. State, decided May 13, 2025 by the Supreme Court of Georgia, arises from the kidnapping, robbery, and shooting death of Brandon Smith on April 16, 2020. The appellant, Benjamin Clarence McIver, was tried separately and convicted of malice murder, three counts of felony murder (vacated on appeal), armed robbery, kidnapping, aggravated assault (merged), and possession of a firearm during the commission of a felony. He received consecutive life-without-parole sentences on murder, robbery, and kidnapping counts, plus a five-year firearms term.

On appeal, McIver asserted (1) constitutionally ineffective assistance of trial counsel for failing to retain and present DNA experts and to challenge the reliability of TrueAllele analysis under Harper v. State; (2) plain error in admitting evidence of his phone number given after he invoked his Miranda rights; and (3) insufficiency of the evidence on armed robbery. The Supreme Court of Georgia reversed only the armed robbery conviction, affirmed the remainder, and remanded for resentencing.

Summary of the Judgment

Affirmed convictions for malice murder, kidnapping, and felony–firearm possession; vacated felony-murder counts.
Reversed armed robbery conviction for lack of proof that the weapon was used contemporaneously with the taking of the debit card.
Held trial counsel’s strategic choice to challenge DNA through cross-examination rather than proffer expert testimony was not objectively unreasonable under Strickland.
Declined to require a Harper motion on TrueAllele reliability where the State’s expert testimony and internal validation supported admissibility, and McIver’s own proposed expert used the same software.
Determined the post-invocation request for McIver’s phone number was at most a permissible “booking question,” not plain Miranda error, and rejection of a suppression motion did not amount to ineffective assistance.
Remanded for resentencing consistent with vacatur of the armed robbery count and merger of aggravated assault into malice murder.

Analysis

Precedents Cited

Strickland v. Washington (466 U.S. 668 (1984)) – two-prong test for ineffective assistance: deficient performance and prejudice.
Harper v. State (249 Ga. 519 (1982)) – standard for admitting novel scientific evidence in Georgia trials.
Gates (308 Ga. 238 (2020)) – recognition of TrueAllele, but no ruling on admissibility under Harper.
Pennsylvania v. Muniz (496 U.S. 582 (1990)) – plurality on “routine booking questions” exception to Miranda.
Davidson v. State (304 Ga. 460 (2018)) and Pauldo v. State (309 Ga. 130 (2020)) – Fifth Amendment right to silence and booking-question carve-out.
Harrington v. State (300 Ga. 574 (2017)) – requirement that the weapon be used “prior to or contemporaneously with the taking” in armed robbery.

Legal Reasoning

1. Ineffective Assistance & DNA Experts:
Trial counsel subpoenaed two DNA experts but, under the constraints of a defendant-demanded speedy trial and funding delays, chose to rely on thorough cross-examination of the State’s GBI witness (Emily Boswell) rather than present live testimony. Under Strickland, strategic decisions made after reasonable investigation enjoy a strong presumption of competence. The Court found counsel’s performance reasonable and not “so patently unreasonable” that no competent attorney would do likewise.

2. Harper Motion on TrueAllele:
Although Georgia requires a Harper motion to challenge novel scientific techniques, the Court observed that Boswell’s testimony (GBI validation of TrueAllele, peer review, adherence to thresholds) established scientific reliability. McIver’s own expert relied on the same software, offering no ground to show a Harper challenge would succeed. Absent a viable basis for exclusion, counsel was not deficient in foregoing a pre-trial Harper motion.

3. Booking-Question Exception & Miranda:
After invoking his right to silence, McIver was asked for his phone number. Georgia case law allows “routine booking questions” (name, address, date of birth). The Court declined to extend or clearly establish that a phone-number query violates Miranda. Because no “clear or obvious” rule prohibited the question, counsel was not ineffective in failing to move to suppress, and no plain error occurred.

4. Sufficiency of Evidence on Armed Robbery:
To prove armed robbery, the State must show that force or threat with a deadly weapon facilitated the taking. In McIver’s case, the weapon arrived only after the victim’s debit card was used and taken. There was no evidence the gun was displayed or used until after the card’s unauthorized withdrawal. The Court reversed the robbery conviction on that ground.

Impact

• Trial counsel’s tactical discretion in handling complex DNA evidence is reaffirmed. Georgia courts will not second-guess reasonable choices to rely on cross-examination rather than present competing experts, particularly under time or resource constraints.
• A Harper motion is unnecessary where the proffered scientific evidence is demonstrably reliable and no competing expert undermines its fundamental validity.
• The booking-question exception remains flexible; trial counsel need not suppress routine administrative questions absent clear precedent forbidding them.
• Armed robbery convictions will be subject to close scrutiny when the timing of weapon deployment cannot be tied to the actual taking of property.

Complex Concepts Simplified

Strickland Standard: To win an ineffective-assistance claim, a defendant must show (1) counsel’s performance was unreasonably poor and (2) the deficient performance likely changed the trial outcome.
TrueAllele & Probabilistic Genotyping: Software that analyzes mixed DNA samples by computing statistical probabilities rather than calling fixed peaks. Admissible if the lab validates it and follows internal protocols.
Harper v. State Motion: A pre-trial request to exclude scientific evidence not yet generally accepted—courts require a showing of unreliability or lack of acceptance.
Booking Questions Exception: Even after a suspect invokes Miranda rights, police may ask administrative questions (name, address, birth date, etc.) needed for processing the arrest.

Conclusion

McIver v. State clarifies that Georgia defense attorneys retain broad strategic discretion in challenging forensic evidence, especially DNA analyses, and are not per se ineffective for failing to file Harper motions when reliability is uncontested. The decision also underscores that routine administrative inquiries—such as asking for a phone number—are unlikely to constitute custodial interrogation violating Miranda absent a firm rule to the contrary. Finally, the reversal of the armed robbery conviction highlights the necessity of proving that a weapon was used or displayed at the moment property is taken. Together, these holdings refine the boundaries of both Sixth and Fifth Amendment protections in Georgia criminal proceedings.