Lavontae Knight appears Aug. 23, 2022, at his aggravated murder trial.

YOUNGSTOWN — The Mahoning County Prosecutor’s Office has filed a motion asking the 7th District Court of Appeals to reconsider the ruling it made June 6 overturning the 2022 conviction of Lavontae E. Knight of Youngstown, in the 2018 murder of Trevice Harris.

Knight, 28, also was convicted of shooting Harris’ girlfriend. The shootings took place in a car on Youngstown’s South Side, but the appeals panel ordered that Knight get a new trial. He remains in the state prison system. He also is serving an eight-year prison sentence in another 2018 Youngstown murder involving victim Josh Donatelli

Gina DeGenova, Mahoning County prosecutor, told The Vindicator on Wednesday if the motion for reconsideration is not successful, the prosecutor’s office will ask the Ohio Supreme Court to review and overturn the appeals court ruling.

The prosecution filing argues that the appeals court ruling “is contrary to law by finding an error, which could not and did not impact the trial, was sufficient to serve as a piece of ‘cumulative error.'”

Cumulative error is a legal doctrine that states that a conviction “will be reversed where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial even though each of numerous instances of trial court error does not individually constitute cause for reversal,” the appeals ruling states.

The prosecution filing also argues that the appeals ruling is also contrary to law by not applying the appropriate “abuse of discretion standard” regarding one of the two cumulative errors. It involves the sanction Judge John Durkin of Mahoning County Common Pleas Court issued for an assistant prosecutor who failed to turn over evidence in Knight’s case in a timely manner.

The filing says reconsideration is a “mechanism by which parties may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law.”

That’s what the prosecution thinks the appeals court did in this instance, because the appeals panel found that Durkin did not give a sufficient penalty to prosecutors for not timely turning over evidence, the filing states. It adds that the penalty issue “does not impact a defendant’s right to a fair trial and therefore cannot contribute to cumulative error.”

The appeals panel found that Durkin postponed Knight’s trial when he found problems with the timeliness of evidence being turned over. The ruling suggests that the appeals panel thought the judge should have dismissed the charges but does not state that directly.

Durkin had disqualified Dawn Cantalamessa, a former assistant county prosecutor, from handling Knight’s other pending murder case involving Donatelli because of a failure to turn over evidence in a timely manner and for lying to Durkin, the appeals ruling states.

It noted that “Similar conduct as to withholding favorable evidence appears to have spilled over” into Knight’s murder case involving Trevice Harris.

The new prosecution filing states that the appeals panel’s ruling that Durkin should have given more than a postponement of Knight’s trial involving Trevice Harris did “not suggest what would be an appropriate sanction.”

It concluded, “Put simply, no sanction, other than dismissal, if issued by (Judge Durkin) would have impacted the trial in any way.” It stated that “Because the issuance / non-issuance of a sanction could not have impacted the trial, this ‘error’ cannot contribute to cumulative effort.”

It then states that the cumulative error doctrine only comes into play “where the cumulative effect of errors in a trial deprives a defendant of the constitutional right to a fair trial.”

JUROR REMARKS

On a separate track, the new prosecution filing argues that the appeals panel should not have found an error in Durkin’s refusal to allow defense attorney Dave Betras extra time to “absorb” a “unique situation” that arose after the trial ended — learning that a juror had told other jurors during the trial about her concern she was followed home from court one night by two women who were attending the trial. She said they did not approach her or talk to her and went another way after a time.

The judge had the jurors return after their verdicts were issued. He and the attorneys individually questioned the jurors about what the juror said in the jury room about her concerns and how the remarks affected all of the jurors’ ability to render a fair and impartial verdict. All of the jurors said they could still render a fair verdict.

But the appeals panel found that the judge had erred by not granting Betras more time to evaluate the matter and generate good ways to question the jurors on it.

“While this error alone does not constitute cause for reversal, it does combine with the other unique circumstances in this case to create a cumulative effect that deprived (Knight) of a constitutional right to a fair trial,” the appeals ruling states.

But the new prosecution filing states that Knight’s appeal of his convictions and sentencing did not raise the issue of granting Betras more time. Instead, it argued another type of error by Durkin — that he should have declared a mistrial because of the juror’s remarks to fellow jurors.

The appeals panel raised the issue of the amount of time Betras got “on its own and … without the aid of a briefing or argument by the parties, found it sufficient to be the second piece of the cumulative error,” the prosecution filing states.

“Had this issue been raised / briefed prior to the (ruling, the prosecution) believes that the same would have come out differently.”

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