Lawyer's memory loss brings retrial

A 38-year-old Brooksville man convicted of murder in 2002 gets another chance to prove his innocence.

By BREANNE GILPATRICK
Published May 6, 2005

DADE CITY - In his four decades as a defense attorney, A.J. Ivie has handled more than 50 jury trials. But because of a stroke more than a year ago, Ivie struggles to remember some of them.

And his inability to remember a 2001 murder case Thursday helped one of his clients - Scott Lee White - win a new trial.

Circuit Judge Lynn Tepper ruled Thursday that Ivie's failure to call at least one particular defense witness at White's 2002 murder trial constitutes ineffective counsel.

That entitles the man to a new trial, the judge ruled, because the evidence would have made a difference in the previous trial's outcome.

White, a 38-year-old Brooksville resident, was sentenced to life in prison after the shooting death of Ronnie Barber outside Rumor's nightclub near Lacoochee. White appealed his conviction in 2003, saying Ivie did not call Tier Giles and Tara Blauvelt in his defense. Defense attorney Geoff Cox said again Thursday that their testimony likely would have resulted in an acquittal.

This testimony is especially important given the lack of physical evidence in the case, Cox said. White had said Ivie, now 67, told him he was going to call the witnesses but never did.

"Mr. Ivie failed to subpoena not only witnesses that Mr. White wanted but (who) appeared to have been on the scene at the time of the shooting that would have impeached witnesses for the state," Tepper said during her ruling.

The state has 30 days to appeal Tepper's ruling.

Ivie's testimony could have explained why he failed to call the two witnesses. If the decision had been a strategic call, it would not have been considered ineffective counsel. But a stroke in 2003 has left Ivie unable to remember certain events. Ivie, who has practiced law since 1966, came to the stand Thursday carrying a 3-inch thick manila folder. Tepper instructed him he could consult his file if necessary.

But when questioned, Ivie said he had no independent recollection of the case. He said he doesn't even remember having White as a client.

"I have no independent recollection, but my file does reflect that I was called to represent Scottie White," Ivie said.

Tepper then read aloud sections of the 2002 trial transcript in which White interrupted the judge to ask when a couple of defense witnesses - one of whom was Tier Giles - could be called.

"Is there any way we could get (the witnesses) up there?" White said then. "I would like to know that."

Ivie testified that he does not remember the exchange.

"It was very clear on the record that Mr. White wanted these witnesses, wanted to know how to call them and when he could call them," Tepper said.

In the appeal, the defense has argued that Giles' testimony could have caused jurors to question the eyewitness testimony of Latrice Marbra, who said she saw White commit the crime.

Giles testified April 27 that she saw Marbra arrive at the club where Barber was killed after the shooting occurred. Cox also reminded the court that Blauvelt, White's longtime girlfriend, said at the April 27 hearing that White could not have been at Rumors the night Barber was killed because White was helping her move.

Prosecutor Manuel Garcia said the failure to include this testimony was not enough to justify a new trial because it would not have been enough to discredit the state's case. But Cox said justice demanded these witnesses be heard.

"Before we throw Mr. White and his case in this tomb and throw the slab over it and bury it forever and ever," Cox said, "I think we have to give the jury a chance to hear these witnesses."

The judge said she did not consider Ivie's failure to call Blauvelt in her decision. Although Blauvelt's testimony would have provided White with an alibi, Tepper said she did not consider her testimony because of her close relationship with White. The judge said the omission of Giles' testimony was sufficient cause for a retrial.

Ivie's loss of memory because of his stroke was an issue in another murder case, one that has gone 17 years without a resolution.

Gregory Keith Capehart, who was convicted of first-degree murder in 1989 and sentenced to death, also appealed his conviction based on ineffective assistance of his trial lawyer, Ivie.

But the attorney was unable to recall details of his work in that case, too. Capehart didn't get a new trial, but because Ivie could not testify, the state agreed to a retry the penalty phase.

White is being held at the Pasco County jail. Tepper reinstated his original $100,000 bond Thursday. A status hearing for the new trial is scheduled for June 7.

Times researcher Kitty Bennett contributed to this report.

[Last modified May 6, 2005, 00:38:16]