                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2018 UT 46


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                              STATE OF UTAH,
                                Appellant,
                                       v.
                  ABISAI MARTINEZ-CASTELLANOS,
                            Appellee.

                              No. 20170323
                          Filed August 29, 2018

             On Certiorari to the Utah Court of Appeals

                       Fourth District, Nephi
                   The Honorable James M. Brady
                          No. 101600146

                                 Attorneys:
Sean D. Reyes, Att’y Gen., Christopher D. Ballard, Asst. Solic. Gen.,
                   Salt Lake City, for appellant
                Aaron P. Dodd, Provo, for appellee

     CHIEF JUSTICE DURRANT authored the opinion of the Court,
      in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
            JUSTICE PEARCE, and JUSTICE PETERSEN joined.

   CHIEF JUSTICE DURRANT, opinion of the Court:

                               Introduction
    ¶1 Abisai Martinez-Castellanos was charged with two counts
of possession of or use of a controlled substance and one count of
possession of drug paraphernalia after a highway trooper discovered
drugs and drug paraphernalia in his vehicle during a traffic stop.
Before his trial began, his counsel failed to involve him in the jury
selection process. His counsel also filed a motion to suppress the
traffic stop evidence but repeatedly failed to file any memorandum
in support of the motion.
                  STATE v. MARTINEZ-CASTELLANOS
                         Opinion of the Court

    ¶2 After the jury convicted Mr. Martinez-Castellanos, the trial
court, on its own accord, issued notice that it was considering
granting a new trial because of his trial counsel’s ineffectiveness
during the jury selection and motion to suppress stages. The court
appointed       separate     conflict    counsel      to       represent
Mr. Martinez-Castellanos on the issues it raised. But conflict counsel
chose to act as a “friend of the court” instead of representing
Mr. Martinez-Castellanos. Conflict counsel argued against
Mr. Martinez-Castellanos’s interests, asserting that his trial counsel’s
failure did not amount to ineffective assistance of counsel. The trial
court thereafter declined to grant a new trial.
   ¶3 Mr. Martinez-Castellanos appealed his conviction, arguing
that his counsel was ineffective during the jury selection and the
motion stages, and that the trial court erred in its dealings with
conflict counsel. While the court of appeals agreed that
Mr. Martinez-Castellanos’s three claims constituted errors, it
concluded that none of these errors warranted reversal on its own. It
did so, in part, because it could not determine whether, absent trial
counsel’s error, Mr. Martinez-Castellanos’s motion to suppress
would have been meritorious. But the court did hold that the
cumulative effect of these errors undermined its confidence that
Mr. Martinez-Castellanos received a fair trial. So it reversed his
convictions and ordered a new trial with new counsel.
    ¶4 The State challenges the court of appeals’ determination,
arguing that the errors cited by the court did not harm
Mr. Martinez-Castellanos in the slightest and so the cumulative error
doctrine cannot apply. We agree. Without a determination that the
motion to suppress is meritorious, at least two of the three errors at
issue cannot conceivably cause harm to him, so they cannot
cumulate into reversible error. So we reverse the court of appeals’
decision. With such a determination, however, these errors would
not only be harmful, they would constitute reversible error on their
own. So we cannot uphold Mr. Martinez-Castellanos’s conviction,
because the court of appeals failed to determine whether his motion
to suppress was meritorious. We therefore remand this case to the
court of appeals to make this determination.




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                         Opinion of the Court

                              Background
                            The Traffic Stop
    ¶5 In June 2010, Abisai Martinez-Castellanos was driving his
car on Interstate 15 through Juab County.1 A trooper, who had just
finished up a traffic stop on the opposite side of the highway,
observed Mr. Martinez-Castellanos’s car traveling northbound. The
trooper got in his patrol car and, with his emergency lights still
engaged, crossed the median and accelerated in order to get closer to
Mr. Martinez-Castellanos’s car. Once the car was within view, the
trooper noticed that the California license plate of the vehicle was
missing a registration sticker—a requirement on vehicles registered
in     California.     The     trooper     proceeded      to     pull
Mr. Martinez-Castellanos over.
   ¶6 Once his vehicle was pulled to the side of the road,
Mr. Martinez-Castellanos provided the trooper with an expired
Colorado license and registration, but he assured the trooper that he
had a valid          Utah Driver       license.  While discussing
Mr. Martinez-Castellanos’s information, the trooper testified that he
noticed Mr. Martinez-Castellanos was “a little bit jittery” and was
“bouncin’ around a little bit.” The trooper then proceeded to check
Mr. Martinez-Castellanos’s information in his patrol car and also ran
a warrants and background check. The trooper verified that the car
was indeed registered and that Mr. Martinez-Castellanos had a valid
Utah     Driver    license.   But    he     also   discovered    that
Mr. Martinez-Castellanos had miscellaneous theft charges dating
back to 1997, charges for drug offenses in 2001 and 2006, and that he
had his probation revoked in 2007 for possessing a controlled
substance. Based on this criminal history, along with
Mr. Martinez-Castellanos’s jittery movements, the trooper testified
that he had a “heightened” suspicion that Mr. Martinez-Castellanos
“might be [under] the influence of something.”
   ¶7 The trooper then returned to the car and asked
Mr. Martinez-Castellanos to step out of the vehicle. Before
administering several field sobriety tests, the trooper asked
Mr. Martinez-Castellanos if he had any weapons, to which he

_____________________________________________________________
   1“On review of a jury verdict, we recite the evidence, and all the
reasonable inferences that flow from the evidence, in the light most
favorable to the verdict.” State v. Wilder, 2018 UT 17, ¶ 4 n.1, 420 P.3d
1064.

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                  STATE v. MARTINEZ-CASTELLANOS
                        Opinion of the Court

responded that he had two work knives in the center console. After
conducting field sobriety tests, the trooper concluded that
Mr. Martinez-Castellanos was under the influence of a controlled
substance. The trooper also concluded, based on Mr. Martinez-
Castellanos’s criminal history, that Mr. Martinez-Castellanos was a
restricted person who could not legally possess knives. The trooper
then arrested Mr. Martinez-Castellanos and searched his car. His
search revealed two pocket knives, a marijuana grinder, a lighter,
two glass pipes, a wrapper containing three pills that later tested
positive for methamphetamine, and a wrapper containing several
prescription pills.
   ¶8 The trooper took Mr. Martinez-Castellanos to jail, where he
admitted that he had smoked marijuana. The trooper obtained a
warrant for a blood draw, which tested positive for THC metabolite
at    a   level    consistent   with   recent     marijuana   use.
Mr. Martinez-Castellanos’s blood tested negative for a number of
other drugs, including methamphetamine. He also admitted that the
knives were his but claimed to know nothing about the other drugs
and paraphernalia in his car.
   ¶9 The State charged Mr. Martinez-Castellanos with counts of
drug possession, paraphernalia possession, and possession of a
dangerous weapon by a restricted person.
                        The Motion to Suppress
    ¶10 Before trial, Mr. Martinez-Castellanos’s appointed trial
counsel filed a motion to suppress the evidence from the car and the
blood draw, asserting that the evidence was unconstitutionally
seized. But trial counsel did not file an accompanying memorandum
with the motion. The trial court then held an evidentiary hearing on
the motion where the trooper testified for the prosecution and was
cross-examined by trial counsel. At the end of the hearing, trial
counsel requested thirty days to “submit a brief on the matter,”
which the trial court granted. But trial counsel again failed to file a
timely brief. A week after it was due, trial counsel submitted a
motion “request[ing] additional time in which to file his brief
regarding the suppression of evidence.” The court again granted the
motion, but trial counsel again failed to file a brief supporting the
motion. Having received nothing from trial counsel, the State finally
submitted its own memorandum in opposition to the motion to
suppress. Again, trial counsel did not respond, and the court
eventually denied the motion.
  ¶11 About two weeks after the motion was denied, trial counsel
moved to set aside the court’s decision and requested additional
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                        Opinion of the Court

time to file a memorandum in support of the motion. The court
granted the request, giving counsel an additional week to file his
supporting memorandum. But instead of filing a memorandum in
support, trial counsel eventually filed a motion captioned
“Submission of Motion to Suppress,” which stated that counsel
“submits the Motion to Suppress Evidence to the Court based upon
the transcript of the suppression hearing.” The trial court thereafter
reinstated its prior order denying the suppression motion, noting
that trial counsel had yet again failed to file a supporting
memorandum.
   ¶12 But trial counsel was not done yet. Two days before trial, he
moved to suppress the evidence, arguing that the dash-cam video
demonstrated that there was “no basis” for the stop. No
memorandum in support was filed with this motion. The trial court
again denied the motion.
                       Jury Selection and Trial
     ¶13 Before trial began, twenty-six members of the jury pool
filled out juror questionnaires and were asked background questions
in open court about matters that might influence their opinions of
the case. After completing these background questions, thirteen
potential jury members were called back to the trial court’s chambers
for individual questioning by him and the attorneys.
Mr. Martinez-Castellanos was not invited, however, into the
chambers by the court or his counsel, and he remained in the
courtroom while further questioning of the potential jury members
took place.
   ¶14 Once in chambers, the court and attorneys asked the
individual jury members follow-up questions to their answers in
open court.2 Three of the potential jurors called into chambers were

_____________________________________________________________
   2 Due to a technical issue, the audio recording of this in-chambers
questioning is unintelligible. On appeal, Mr. Martinez-Castellanos
moved the court of appeals to supplement the record with
declarations from both counsel under rule 11(h) of the Utah Rules of
Appellate Procedure. Both parties stipulated to the supplemental
record, which was reconstructed roughly fifteen months after the
fact from the memories of the participants. We rely on the
reconstructed record here for what occurred during the in-chambers
voir dire.


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                  STATE v. MARTINEZ-CASTELLANOS
                        Opinion of the Court

of particular concern. The most concerning, the individual who
eventually sat on the jury as Juror One, revealed in chambers that he
was a retired Utah Highway Patrol trooper who had forty years’
worth of experience in drug interdiction on Utah’s highways (a
significant portion of which was spent on the stretch of highway
where Mr. Martinez-Castellanos was arrested), and had participated
in “many jury trials.” He also acknowledged that he knew the
arresting trooper, but he stated he would not give the trooper’s
testimony “more weight,” but “would make up his mind based on
the facts presented in court.” He also “assured [both counsel] that he
knew how to be fair, and that he could be fair if selected as a juror.”
    ¶15 As to the other two jurors of concern, the individual who
eventually sat as Juror Two revealed in chambers that she had been a
victim of a violent crime, that her son had been prosecuted in
California for drugs, that she was against drugs, and that she
believed “that if a person had drugs in the car, they were probably
guilty.” And the individual who eventually sat as Juror Six was
“reluctant to disclose what was going on in her own mind.” When
the court asked if she could be fair and impartial, she expressed
“reservations about her ability to function as a juror.” The court
asked her the same question again and she responded that “she
understood what the judge wanted and she believed she could serve
as a juror.”
    ¶16 After these questions, each of the thirteen prospective jurors
was dismissed from the judge’s chambers, and the court asked the
attorneys whether they had any issues with a particular prospective
juror and whether the attorneys passed the prospective jurors for
cause. There is no evidence that any concern was raised about a
particular prospective juror or that any were actually challenged for
cause.
    ¶17 At the conclusion of the in-chambers questioning, the
attorneys returned to the courtroom. Mr. Martinez-Castellanos’s trial
counsel did not discuss with him what had occurred in chambers
and did not mention the possible biases of the three potential jurors.
Trial counsel simply exercised his four peremptory strikes without
consulting Mr. Martinez-Castellanos. Counsel did not strike Jurors
One, Two, or Six.
    ¶18 The court named the eight members of the jury, which
included Jurors One, Two, and Six, and a one-day trial was held. The
jury convicted Mr. Martinez-Castellanos of two felonies for
possession or use of a controlled substance and two related
misdemeanors.

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                         Opinion of the Court

                         Post-Trial Proceedings
    ¶19 A week after the trial, the trial court issued a notice sua
sponte, indicating that it was considering granting a new trial
pursuant to rule 24 of the Utah Rules of Criminal Procedure. The
notice stated that “the court is concerned with a question of whether
any error or impropriety occurred in this case which may have had a
substantial adverse effect on the rights of the defendant.”
Specifically, the court identified two events that, in its view,
demonstrated Mr. Martinez-Castellanos possibly received ineffective
assistance of counsel: “Defense counsel’s failure to file any
memorandum          following     an    evidentiary     hearing    on
[Mr. Martinez-Castellanos’s] motion to suppress”; and “Defense
counsel’s failure to challenge or remove a potentially biased juror
[(Juror One)] from the jury on the day of trial.”
    ¶20 In the course of a subsequent hearing on the matter, the
court concluded that it was no longer concerned with the
“potentially biased juror” issue due to a recent Utah Court of
Appeals’ decision. The court did decide, however, to appoint conflict
counsel to represent Mr. Martinez-Castellanos in post-trial
proceedings regarding the motion to suppress issue. The court
expressed its concern with “[w]hether or not the evidence . . .
supported the continued retention of [Mr. Martinez-Castellanos]
after [the trooper] determined that the vehicle was registered,” and
“whether there was . . . justification for having [Mr. Martinez-
Castellanos] step out of the car and further perform . . . field sobriety
tests” when the trooper discovered that the car was registered to
Mr. Martinez-Castellanos, that Mr. Martinez-Castellanos was who he
said he was, and that Mr. Martinez-Castellanos had a valid Driver
license. The court was also concerned with “whether there was
reasonable suspicion.” The court instructed conflict counsel to
address whether trial counsel’s failure to file any memorandum on
the motion to suppress issue constituted ineffective assistance of
counsel.
    ¶21 About a month later, conflict counsel submitted a
memorandum entitled “Amicus Brief.” Conflict counsel began his
brief by stating that he was acting “as a friend of the Court.” He did
not address the concerns the court expressed regarding the extended
duration of the traffic stop in his brief, but instead addressed only
whether trial counsel’s failure to file the memorandum rose to a level
of ineffective assistance of counsel. He laid out the two-part
Strickland analysis for ineffective assistance of counsel and applied it
in this case. Then, surprisingly, conflict counsel argued that

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                    STATE v. MARTINEZ-CASTELLANOS
                          Opinion of the Court

Mr. Martinez-Castellanos could not meet the prejudice prong of the
Strickland test, noting that it “is difficult, if not impossible to find that
[Mr. Martinez-Castellanos’s counsel’s] failure to file a legal
memorandum could satisfy the second prong of the Strickland test.”
He concluded his brief by stating that the district court’s earlier
denial of the motion to suppress was sufficient to include “an
implicit determination that the facts elicited at the evidentiary
hearing” supported a lawful search. He therefore advised the court
that its decision denying the motion had addressed the concerns it
had raised. He did not advocate for a different result on
Mr. Martinez-Castellanos’s behalf.
    ¶22 The State did not file a response to conflict counsel’s brief
but rather concurred with the findings of conflict counsel. The trial
court agreed with conflict counsel’s conclusion and withdrew its
notice. The court dismissed conflict counsel and reinstated trial
counsel to represent Mr. Martinez-Castellanos through the rest of the
proceedings. Mr. Martinez-Castellanos was subsequently sentenced
to zero to five years in the Utah State Prison. The court suspended
the sentences and placed him on probation.
    ¶23 Trial counsel then filed a timely motion for a new trial,
asking the court to suppress the evidence from the traffic stop and
blood draw, and noting that the trial court itself had expressed
concern with this evidence. Once again, however, trial counsel failed
to file a supporting memorandum. Instead, he simply attached the
transcripts of the preliminary hearing, the suppression hearing, and
the trooper’s trial testimony. In the motion, trial counsel did argue
that there was “a substantial change in the [trooper’s] testimony
regarding the reason for the stop and the time and delay in the stop”
during these hearings. And, in light of the change in testimony, trial
counsel argued that the order denying the motion to suppress
“should be set aside and reconsidered.” But counsel did not further
flesh out this issue. The State opposed the new motion as untimely
and inadequate, and the trial court denied the motion without
explanation. Mr. Martinez-Castellanos thereafter timely appealed his
convictions.
                      The Court of Appeals’ Decision
    ¶24 Before the court of appeals, Mr. Martinez-Castellanos
argued that trial counsel was ineffective during jury selection and in
his    efforts      to    litigate  the     motion     to    suppress.
Mr. Martinez-Castellanos also argued that the trial court committed
plain error in failing to provide him with competent conflict counsel
to address the court’s post-trial notice. A majority panel of the court

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                            Opinion of the Court

of appeals concluded that each of these three assertions identified an
error, but that none of these errors alone warranted reversal.3
   ¶25 The court of appeals first reviewed trial counsel’s actions
during jury selection and concluded that counsel was deficient when
he “fail[ed] to provide Martinez-Castellanos a meaningful
opportunity to participate in the [jury selection] process—either
through physical presence in chambers or at minimum through
consultation afterward.”4 But it concluded that this error did not
meet the prejudice prong of the Strickland test. The court reasoned
that in order for Mr. Martinez-Castellanos to show prejudicial error
under Strickland, he must show “that a biased juror actually sat.”5
And because it believed “the limited record in this case permits no
more than speculation that a juror with actual bias may have sat in
judgment,” the court held that the second prong of Strickland could
not be met.6
    ¶26 The court of appeals did note, however, that a finding of
insufficient prejudice on this error was “a particularly unsatisfactory
result” because it was built upon “one presumption layered on
another.”7 And the court expressed further reservation in reaching
this finding because “the trial judge himself had lingering concerns
about at least one of the three jurors” and “the crucial events
occurred       without      Martinez-Castellanos’       involvement.”8
Nevertheless, the court “reluctantly conclude[d] that, on this record,
Martinez-Castellanos cannot show that ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’”9
   ¶27 The second error the court of appeals identified was trial
counsel’s failure to file a memorandum in support of
Mr. Martinez-Castellanos’s motion to suppress. The court stated that

_____________________________________________________________
   3   State v. Martinez-Castellanos, 2017 UT App 13, ¶¶ 78, 80, 389 P.3d
432.
   4   Id. ¶ 32.
   5   Id. ¶ 51 (citing State v. King, 2008 UT 54, ¶ 28, 190 P.3d 1283).
   6   Id. ¶ 58.
   7   Id. ¶ 60.
   8   Id.
   9   Id. (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).


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                         STATE v. MARTINEZ-CASTELLANOS
                              Opinion of the Court

counsel’s failure to file supporting memoranda effectively deprived
Mr. Martinez-Castellanos of “an effective adversarial process” and
“amounted to deficient performance” under Strickland.10
    ¶28 The court also held that a third error occurred in
Mr. Martinez-Castellanos’s case—he was inadequately represented
in his post-trial proceedings on the trial court’s sua sponte notice. The
court believed that conflict counsel completely failed to represent
Mr. Martinez-Castellanos and, in fact, argued against him.11 It stated
that conflict counsel essentially argued in his brief that, “because the
court had decided the motion against . . . Martinez-Castellanos, it
must have lacked merit in the first place and, as a consequence, trial
counsel’s      failure   to     file   a     memorandum          arguing
Martinez-Castellanos’ position was harmless.” The court of appeals
                                                 12

therefore concluded that the trial court had erred in accepting a brief
that did not advocate for Mr. Martinez-Castellanos and “that the
error was obvious.”13
    ¶29 But the court concluded that neither the trial counsel’s
deficient performance with his motion to suppress, nor the trial
court’s failure in the post-trial proceeding, constituted reversible
error because Mr. Martinez-Castellanos “has [not] demonstrated the
necessary prejudice.”14 It stated that Mr. Martinez-Castellanos was
required under law to prove his motion to suppress was
“meritorious” and that, had he prevailed on that motion, the
“verdict      would       have      been     different.”15    While
Mr. Martinez-Castellanos argued on appeal that there was a
“reasonable likelihood that a proper motion would have resulted in
suppression of the evidence,” the court declined to determine
whether Mr. Martinez-Castellanos’s motion would have succeeded if
a competent attorney would have filed a supporting memorandum.16
The court chose not to engage in a merits analysis on the motion
because of the “absence of representation” Mr. Martinez–Castellanos
_____________________________________________________________
   10   Id. ¶¶ 63, 67.
   11   Id. ¶ 72.
   12   Id. ¶ 71.
   13   Id. ¶ 73.
   14   Id. ¶ 78.
   15   Id. ¶ 74. (citation omitted).
   16   Id. ¶¶ 74, 76.

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                           Opinion of the Court

received during these motion stages, and because the merits of the
motion were “so poorly developed in the trial court.”17
   ¶30 The court of appeals did conclude, however, that the
cumulative effect of these three errors—trial counsel’s deficient
performance during the jury selection and the motion to suppress
stages, and the trial court’s failure to appoint competent conflict
counsel—“seriously         undermined”          its      “confidence
that Martinez-Castellanos received a fair trial.” Operating under
                                                  18

the cumulative error doctrine, the court detailed how its decisions
regarding Strickland prejudice on each error rested on shaky ground.
Particularly, the court explained that its finding of insufficient
prejudice was predicated on “layered legal presumptions” and an
incomplete record.19 Because of this weak foundation, the court held
that its confidence in the fairness of the trial was “significantly
shaken.”20 The court therefore reversed Mr. Martinez-Castellanos’s
convictions and remanded the case to the trial court for a new trial
with different counsel.
   ¶31 The State subsequently filed a writ of certiorari with this
court challenging the court of appeals’ cumulative error conclusion,
which we granted. We have jurisdiction pursuant to section
78A-3-102(3)(a) of the Utah Code.
                            Standard of Review
    ¶32 We granted certiorari to review one question: whether the
majority of the panel of the court of appeals erred in concluding
cumulative error warranted a reversal of Mr. Martinez-Castellanos’s
convictions. On certiorari, “we review the court of appeals’ decision
for correctness.”21
                                  Analysis
    ¶33 In its decision below, the court of appeals concluded that
trial counsel erred in his representation of Mr. Martinez-Castellanos
during the jury selection and the motion to suppress stages of trial. It

_____________________________________________________________
   17   Id. ¶ 76.
   18   Id. ¶ 79.
   19   Id. ¶ 78.
   20   Id. ¶ 80.
   21   State v. Rushton, 2017 UT 21, ¶ 9, 395 P.3d 92 (citation omitted).


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                           Opinion of the Court

also concluded that the trial court erred in its dealing with conflict
counsel. But the court of appeals held that none of these three errors
warranted reversal on their own, because Mr. Martinez-Castellanos
could not show the “necessary prejudice” required under Strickland
or the plain error doctrine.22 Neither party contests these
determinations.23
    ¶34 The court of appeals did hold, however, that reversal was
warranted under the cumulative error doctrine, a holding the State
now appeals. So the only issue before us is whether the errors at
trial, in combination, amount to reversible error under the
cumulative error doctrine. We hold that they do not.
    ¶35 The cumulative error doctrine applies only to errors that
could conceivably harm a party in some way. Errors with no
potential for harm do not accumulate. Here, the court of appeals
failed to determine whether Mr. Martinez-Castellanos’s motion to
suppress was meritorious. Because at least two of the three errors
identified by the court of appeals could not conceivably cause harm
absent such a determination, we hold that the court of appeals erred
in its application of the cumulative error doctrine. We accordingly
reverse the court of appeals’ cumulative error determination and set
forth the correct cumulative error standard.
    ¶36 Although we reverse the court’s decision, we cannot affirm
Mr. Martinez-Castellanos’s convictions, because the court of appeals
failed to make a determination on the merits of his motion to
suppress. Instead of deciding the merits of this motion, the court
skipped this step and simply relied on reversal under the cumulative
error     doctrine.      Because      a      determination      that
Mr. Martinez-Castellanos’s motion to suppress is meritorious would


_____________________________________________________________
   22   State v. Martinez-Castellanos, 2017 UT App 13, ¶ 78, 389 P.3d 432.
   23  On certiorari, the State concedes that the court of appeals
correctly held that Mr. Martinez-Castellanos has met the first prong
of the Strickland test (deficient performance) with regard to trial
counsel’s performance during the jury selection and the motion to
suppress stages of trial. It also appears to concede that the trial court
committed an obvious error when it accepted the brief from conflict
counsel as sufficient representation. Additionally, in his briefing,
Mr. Martinez-Castellanos has not asserted as an alternative ground
for affirmance that any of these errors warrant reversal on their own.


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                           Opinion of the Court

render some errors reversible in this case, we remand the case to the
court of appeals to make such a determination.
        I. The Court of Appeals Erred in Applying the Cumulative
                             Error Doctrine
    ¶37 The court of appeals reversed Mr. Martinez-Castellanos’s
convictions on cumulative error grounds. It specifically concluded
that while “no single error met the prejudice standard of ineffective
assistance [of counsel] or plain error,” when it “‘consider[ed] all the
identified errors, as well as any errors [it] assume[d] may have
occurred,’ [its] confidence in the fairness of the trial and its outcome
[was] substantially undermined.”24 The State claims this was error.
    ¶38 On certiorari, the State argues that the court of appeals’
reliance on the cumulative error doctrine in this case was misplaced
because none of the errors identified by the court were the least bit
prejudicial to Mr. Martinez-Castellanos. It asserts that when “an
error is not prejudicial to at least some degree, then it cannot add any
weight to the cumulative error scale” and so should not be
considered in a court’s cumulative error analysis. It also contends
that, “[g]iven the nature of [Mr. Martinez-Castellanos’s] claims,
prejudice either existed or it did not; it was all-or-nothing.” And,
according to the State, the errors he has identified cannot accumulate
to warrant reversal, because Mr. Martinez-Castellanos could not
establish prejudice on his all-or-nothing claims. We agree in part and
accordingly set forth the proper scope of the cumulative error
doctrine.
   ¶39 “‘Cumulative error’ refers to a number of errors which
prejudice [a] defendant’s right to a fair trial.”25 It is “used when a
single error may not constitute grounds for reversal, but many
errors, when taken collectively,” do.26 This means that, under the
doctrine, “we will reverse [a jury verdict or sentence] only if the




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   24  State v. Martinez-Castellanos, 2017 UT App 13, ¶ 80, 389 P.3d 432
(citation omitted).
   25 State v. Ellis, 748 P.2d 188, 191 (Utah 1987) (alteration in
original) (citation omitted).
   26   State v. Perea, 2013 UT 68, ¶ 97, 322 P.3d 624.


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                     STATE v. MARTINEZ-CASTELLANOS
                           Opinion of the Court

cumulative effect of the several errors                  undermines       our
confidence . . . that a fair trial was had.”27
   ¶40 In applying this doctrine, we have stated that a court should
“consider all the identified errors, as well as any errors we assume
may have occurred.”28 But this does not mean that all errors
accumulate for purposes of cumulative error. Rather, when
conducting this analysis, we have repeatedly held that the “doctrine

_____________________________________________________________
   27 State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (alterations in
original) (citation omitted); see also Perea, 2013 UT 68, ¶ 105
(“Cumulative error is applicable in those instances where the district
court’s collective errors rise to a level that undermine our confidence
in the fairness of the proceedings.”); State v. Kohl, 2000 UT 35, ¶ 25,
999 P.2d 7 (holding that the cumulative error doctrine will not be
applied unless “the aggregation of these errors . . . result[s] in a
fundamentally unfair trial”).
    While we have repeatedly stated that we look to the “fairness of
the proceedings” or whether the defendant received a “fair trial” in
our cumulative error analysis, see, e.g., Perea, 2013 UT 68, ¶¶ 97, 105,
we have also stated that we look at whether “our confidence in the
fairness of . . . [the] guilty verdict [is] . . . undermined,” State v. Jones,
2015 UT 19, ¶ 74, 345 P.3d 1195; see also State v. Houston, 2015 UT 40,
¶ 111, 353 P.3d 55 (“Because we find that each of Mr. Houston’s
ineffective assistance of counsel claims fails, our confidence in the
fairness of his sentence is not undermined. Therefore, we find no
cumulative error.”); Maestas, 2012 UT 46, ¶ 364 (“Because
Mr. Maestas was not harmed by any substantial errors over the
course of the proceedings, our confidence in the fairness of his guilty
verdict and his sentence of death is not undermined. Thus, the
cumulative error doctrine does not apply . . . .”). These standards are
synonymous. A defendant is deprived a “fair trial” when there is a
reasonable probability that, but for the several errors, a different
verdict or sentence would have resulted. We therefore hold that
reversal is warranted under the cumulative error doctrine when
multiple errors undermine our confidence in the verdict. See State v.
Richardson, 2013 UT 50, ¶ 40, 308 P.3d 526 (explaining that “[o]ur
confidence in a verdict wanes when ‘there is a reasonable likelihood
that the verdict would have been different’ but for an erroneous
ruling” (citation omitted)).
   28   State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).


                                     14
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                         Opinion of the Court

will not be applied” when “claims are found on appeal to not
constitute error, or the errors are found to be so minor as to result in
no harm.”29 In other words, the doctrine will only be applied to
errors that are “substantial” enough to accumulate.30
    ¶41 When considering reversal under the cumulative error
doctrine, therefore, not only must a court make a determination that
an error exists, it must also make a separate determination that the
error could conceivably cause some harm before it adds the error’s
effect to the cumulative error scale. This is a critical intermediate step
in which a court determines whether an error, standing alone, has
any potential to cause harm before considering it in combination
with other errors. This step ensures that errors with no potential for
harm, such as technical or otherwise nullified errors,31 do not serve
to inflate the overall number of errors we consider in favor of
cumulative error. Although a trial riddled with technical errors may
raise a reviewing court’s suspicions, only errors that could have
adversely affected a party can accumulate into reversible error.

_____________________________________________________________
   29See Maestas, 2012 UT 46, ¶ 363 (citation omitted); State v.
Gonzales, 2005 UT 72, ¶ 74, 125 P.3d 878.
   30 Bundy v. Deland, 763 P.2d 803, 806 (Utah 1988) (holding that
“[b]ecause . . . no substantial errors were committed, the concept of
cumulative error does not apply” (emphasis added)); Ellis, 748 P.2d
at 191 (same); Ivie v. Richardson, 336 P.2d 781, 787 (Utah 1959) (“We
expressly do not mean to say that trivia which would be innocuous
in themselves can be added together to make sufficient error to
result in prejudice and reversal. The errors must be real and
substantial and such as may reasonably be supposed would affect the
result.” (emphasis added)).
   31  A nullified error occurs when an error is rendered a nullity
because there exists an alternative basis for upholding the same
result the error produced. For example, a trial judge may
erroneously exclude evidence as irrelevant under rule 402 of the
Utah Rules of Evidence. But this error becomes nullified, or without
effect, when it is clear on review that the evidence would have been
excluded anyway under rule 403. Although technically an error, the
trial court’s mistake poses no danger of harm because the evidence
in question would have been excluded on alternative grounds. In
other words, the result would have been the same whether the trial
court erred or not.


                                   15
                  STATE v. MARTINEZ-CASTELLANOS
                         Opinion of the Court

    ¶42 In sum, a court must make three determinations before
reversing a verdict or sentence under the cumulative error doctrine:
it must determine that (1) an error occurred, (2) the error, standing
alone, has a conceivable potential for harm, and (3) the cumulative
effect of all the potentially harmful errors undermines its confidence
in the outcome.32 If the court determines that either a party’s claim
did not amount to an error, or that the claim was an error but has no
potential to cause harm on its own, the claim cannot weigh in favor
of reversal under the cumulative effects test. The court of appeals
failed to follow this test.
    ¶43 Here, the court of appeals weighed errors with no potential
to cause harm on their own in favor of reversal. The court of appeals
held that Mr. Martinez-Castellanos’s trial counsel rendered deficient

_____________________________________________________________
   32  While similar in some respects, this analysis differs from the
reversible error and ineffective assistance of counsel standards,
which require a court to conclude (1) that an error occurred and (2)
that the error undermines its confidence in the outcome. In order to
establish reversible error, a court must determine that (1) an error
exists, and (2) the error was harmful—i.e., “there is a reasonable
likelihood that, absent the error, there would have been a result
more favorable to the complaining party.” Tingey v. Christensen, 1999
UT 68, ¶ 16, 987 P.2d 588 (citation omitted). Similarly, in order to
establish ineffective assistance of counsel, a court must conclude that
(1) “that counsel’s performance was deficient,” and (2) that “the
deficient performance prejudiced the defense”—i.e., “there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). The second prong in both
standards ultimately focuses on whether the court’s confidence in
the outcome of the proceeding is undermined. See Richardson, 2013
UT 50, ¶ 40 (holding that an error “will require reversal only if [our]
confidence in the jury’s verdict is undermined” (alteration in
original) (citation omitted)); Strickland, 466 U.S. at 694 (holding that
“[a] reasonable probability is a probability sufficient to undermine
confidence in the outcome”). While an argument can be made that
the same intermediate step set forth in the cumulative error standard
is implicit in these standards, this step is particularly important in
the cumulative error context because it prevents the court from
giving weight to an error that has no conceivable effect on the
outcome.


                                  16
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                          Opinion of the Court

performance in failing to file a memorandum in support of his
motion to suppress.33 It also held that the trial court plainly erred in
accepting conflict counsel’s “Amicus Brief that did not advocate for
[Mr. Martinez-Castellanos].”34 But it ultimately determined that
these errors did not warrant reversal on their own, because
Mr. Martinez-Castellanos failed to “demonstrate[] the necessary
prejudice to be entitled to relief on the grounds of ineffective
assistance of counsel or plain error.”35
   ¶44 It       appears      the      court       determined        that
Mr. Martinez-Castellanos could not show the requisite prejudice on
these errors, because it was uncertain whether his motion to
suppress was “meritorious”—a requirement a defendant must prove
before he can establish “actual prejudice” on an ineffective assistance
of counsel claim concerning the Fourth Amendment. 36 Instead of
determining whether Mr. Martinez-Castellanos’s motion was
meritorious, the court stated that his trial counsel’s error during the
motion stage, as well as the trial court’s error during the post-trial
review of the motion stage, potentially left “unexplored
developments” before the trial court and so left a “poorly
developed” record on this issue.37 These “serious concerns” led the
court to determine that the motion was “plausible” and to weigh the
cumulative effect of these errors in favor of cumulative error.38 This
was a mistake.
    ¶45 Trial counsel’s error during the motion stage—his failure to
file a memorandum in support of the motion to suppress—was
improperly considered by the court in its cumulative error

_____________________________________________________________
   33   Martinez-Castellanos, 2017 UT App 13, ¶ 67.
   34   Id. ¶ 73.
   35   Id. ¶ 78.
   36See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (“Where
defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the
defendant must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the verdict
would have been different absent the excludable evidence in order to
demonstrate actual prejudice.”).
   37   Martinez-Castellanos, 2017 UT App 13, ¶ 76.
   38   Id. ¶¶ 76, 78.

                                    17
                   STATE v. MARTINEZ-CASTELLANOS
                         Opinion of the Court

determination because this error, without a determination that the
motion is meritorious, cannot conceivably cause harm. A trial
counsel’s failure to file a memorandum in support of motion to
suppress can only cause harm to a defendant when the motion
would have been successful had the memorandum been filed.
Otherwise, the failure to file a memorandum would have no effect
on the defendant, as the failure would lead to the same result—an
unsuccessful motion and the admission of the evidence at issue.
Here, the court of appeals declined to determine whether, absent his
trial counsel’s error, Mr. Martinez-Castellanos’s motion to suppress
would have been meritorious. Because the court did not make this
finding, we cannot say that this error had any conceivable effect on
Mr. Martinez-Castellanos. So the court of appeals erred in
considering this error as part of its cumulative error determination.
   ¶46 Similarly, in making its cumulative error determination, the
court of appeals incorrectly accumulated the trial court’s error in
accepting conflict counsel’s briefing. The trial court’s error here turns
on whether trial counsel’s deficient performance during the motion
stage prejudiced Mr. Martinez-Castellanos. In fact, that was exactly
what conflict counsel was instructed to evaluate by the trial court.
But the lack of representation by conflict counsel in the post-trial
hearings could have no effect on Mr. Martinez-Castellanos if his
motion to suppress was meritless. If his motion could not have
succeeded below, regardless of whether a memorandum in support
was filed, then his trial counsel’s deficient performance at the motion
stage caused no harm. So the trial court’s decision to accept conflict
counsel’s argument also could not cause harm, because the motion
would not have succeeded either way. In other words, without a
determination that the motion to suppress was successful, the trial
court’s     error    could     not     conceivably      have     affected
Mr. Martinez-Castellanos, because nothing would have changed had
the error not occurred—the traffic stop and blood draw evidence still
would have been admitted.
   ¶47 Because, without a meritorious determination, we cannot
say that his trial counsel’s error during the motion stage, or the trial
court’s error during the post-trial stage, had any conceivable effect
on Mr. Martinez-Castellanos, we also cannot say these errors are




                                   18
                          Cite as: 2018 UT 46
                         Opinion of the Court

“substantial” enough to accumulate.39 So the court of appeals
incorrectly weighed these errors in favor of cumulative error.
    ¶48 That leaves us with the last error the court weighed in favor
of cumulative error—trial counsel’s deficient performance during
jury selection. The State contends that this error, like the two
mentioned above, should not be included in the court’s cumulative
error determination, because trial counsel’s performance during jury
selection had zero prejudicial effect on Mr. Martinez-Castellanos.
Specifically, it contends that because Mr. Martinez-Castellanos failed
to show that an actually biased juror sat on the jury as a result of his
counsel’s error—a requirement to meet Strickland prejudice40—he
cannot show that any conceivable harm came from this error. We do
not need to reach the question of whether this error is accumulable,
however, because we have concluded that, without a determination
that the motion is meritorious, the other errors identified by the
court of appeals had no potential to cause harm and so could not
accumulate under the cumulative error doctrine. This means that
even if trial counsel’s deficient performance during jury selection
potentially caused some harm to Mr. Martinez-Castellanos, and so
was accumulable under the doctrine, we would be left with only one
accumulable error for review. And a single accumulable error cannot
warrant reversal under the cumulative error doctrine.41

_____________________________________________________________

   39   See Maestas, 2012 UT 46, ¶ 364; see also Gonzales, 2005 UT 72,
¶ 74.
   40 See State v. Sessions, 2014 UT 44, ¶ 31, 342 P.3d 738 (holding that
when considering ineffective assistance of counsel claims involving
jury selection, “prejudice is defined in terms of proof of ‘actual juror
bias’” (citation omitted)); State v. King, 2008 UT 54, ¶ 47, 190 P.3d
1283 (“In order to prevail on [a] claim of ineffective assistance of
counsel, [a defendant] must show that his counsel’s actions
prejudiced him because those actions allowed the seating of an
actually biased juror.”).
   41  Dunn, 850 P.2d at 1229 (The cumulative error doctrine is
applicable only where “the cumulative effect of . . . several errors
undermines our confidence . . . that a fair trial was had.” (alteration
in original) (emphasis added) (citation omitted)); Conocophillips Co. v.
Utah Dep’t of Transp., 2017 UT App 68, ¶ 32, 397 P.3d 772 (“[T]he
cumulative-error doctrine has no application when only a single
error has been determined or assumed on appeal.”).


                                   19
                   STATE v. MARTINEZ-CASTELLANOS
                         Opinion of the Court

    ¶49 Accordingly, we reverse the court of appeals’ cumulative
error       determination.     But      we      cannot      uphold
Mr. Martinez-Castellanos’s convictions because the court of appeals
failed to determine whether his motion to suppress would have been
meritorious.42


_____________________________________________________________
   42 In the alternative, Mr. Martinez-Castellanos argues that we
may presume prejudice for each of these errors under United States v.
Cronic, 466 U.S. 648 (1984), and so we should affirm on this basis. The
State argues, however, that we should not address these alternative
arguments because he failed to present these arguments before the
court of appeals. For support, the State relies on several cases
including DeBry v. Noble, where we held that “[i]ssues not raised in
the court of appeals may not be raised on certiorari unless the issue
arose for the first time out of the court of appeals’ decision.” 889 P.2d
428, 444 (Utah 1995). But Mr. Martinez-Castellanos disagrees. He
asserts that we “may affirm on any basis apparent on the record,”
and he relies on Bailey v. Bayles, where we held that “an appellate
court may affirm the judgment appealed from ‘if it is sustainable on
any legal ground or theory apparent on the record, even though such
ground or theory differs from that stated by the trial court to be the
basis of its ruling or action, and this is true even though such ground
or theory is not urged or argued on appeal by appellee, was not
raised in the lower court, and was not considered or passed on by
the lower court.’” 2002 UT 58, ¶ 10, 52 P.3d 1158 (citation omitted).
    The parties (and the cases they rely upon) present us with an
important question that has not been squarely answered by this
court—whether this court may affirm a decision of the court of
appeals (which, reverses—as opposed to affirms as in Bailey v.
Bayles—a district court’s decision) on a ground that was not argued
below when such ground is apparent on the record. We also
acknowledge that there is a question of whether we would even
have jurisdiction to review Mr. Martinez-Castellanos’s alternative
arguments in the first instance since this case involves second degree
felonies, with respect to which the court of appeals has original
appellate jurisdiction. See UTAH CODE § 78A-4-103(2)(e). But we
decline to answer these questions now, because even if we could
affirm the court of appeals’ decision here on any ground apparent on
the record, we cannot say the alternative grounds Mr. Martinez-
Castellano raises are apparent on the record. This is so because
neither the Supreme Court, nor this court, has decided whether jury
                                                             (Continued)
                                   20
                           Cite as: 2018 UT 46
                          Opinion of the Court

 II. The Court of Appeals Erred in Failing to Determine Whether the
                 Motion to Suppress Was Meritorious
   ¶50 As stated above, the court of appeals failed to determine
whether Mr. Martinez-Castellanos’s motion to suppress the traffic
stop and blood draw evidence was meritorious.43 Instead of
addressing this issue, the court avoided making the determination
by relying on the cumulative error doctrine for reversal. This was
error.
    ¶51 It is well established that “[w]here defense counsel’s failure
to litigate a Fourth Amendment claim competently is the principal
allegation of ineffectiveness, the defendant must also prove that his
Fourth Amendment claim is meritorious . . . in order to demonstrate
actual prejudice.”44 So in order for a defendant to bring a successful
ineffective assistance of counsel claim in this context, he must show
that his counsel rendered deficient performance, that his Fourth
Amendment claim is meritorious, and that, but for trial counsel’s
deficient performance, there is a reasonable probability that the
verdict would have been different.45
   ¶52 In its opinion below, the court of appeals acknowledged that
“[o]rdinarily, Martinez-Castellanos would also need to ‘prove that

selection, a pre-trial motion to suppress evidence, or a district court’s
sua sponte notice considering a new trial during post-trial
procedures constitutes a critical stage of the proceedings. See Cronic,
466 U.S. at 659 n.25 (“The [United States Supreme] Court has
uniformly found constitutional error without any showing of
prejudice when counsel was . . . prevented from assisting the
accused during a critical stage of the proceeding.”); Maestas, 2012 UT
46, ¶ 57, 299 P.3d 892 (holding that prejudice will be presumed
“where assistance of counsel has been denied . . . during a critical
stage of the proceeding” and that “[a] critical stage is ‘a step of a
criminal proceeding . . . that h[olds] significant consequences for the
accused’” (third and fourth alterations in original) (emphasis
omitted) (citations omitted)). Without such a determination, the
arguments Mr. Martinez-Castellanos asserts cannot be “apparent on
the record.” So we do not address his alternative arguments.
   43 State v. Martinez-Castellanos, 2017 UT App 13, ¶¶ 74–76, 389
P.3d 432.
   44   Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
   45   Id.


                                    21
                         STATE v. MARTINEZ-CASTELLANOS
                              Opinion of the Court

his Fourth Amendment claim is meritorious’” to succeed on his
ineffective assistance of counsel claim.46 But the court chose to not to
make this determination, because the court was concerned that “the
representation [he] received during the motion to suppress” caused
his motion to be “poorly developed in the trial court” and left
“potentially . . . unexplored developments during the trial itself.”47
Because of these “serious concerns,” the court avoided the
meritorious determination and relied instead on the cumulative
error doctrine.48 It concluded that the Mr. Martinez-Castellanos had
presented a “plausible motion to suppress” and that his trial
counsel’s deficient performance in arguing the motion, along with
the other errors, warranted reversal.49 This was error.
     ¶53 The court of appeals should have determined whether
Mr. Martinez-Castellanos’s motion to suppress was meritorious.
Both parties adequately briefed this matter before the court, and
such a determination was critical to the overall outcome of the case.50
It is clear that if his motion to suppress would have been successful
had it been properly argued before the trial court, then
Mr. Martinez-Castellanos would have succeeded on his ineffective
assistance of counsel claim. His motion sought to exclude all
evidence from the traffic stop and blood test—including any
evidence of weapons, drugs, drug paraphilia, or use of drugs. So,
had his motion been successful, this evidence would not have been
admitted and the State would have been left with no physical
evidence to support its charges. This would not only have created a
reasonable probability that the verdict in this case would have been
different—it would have created a certainty of a different result.
   ¶54 Accordingly, we remand this case to the court of appeals to
determine whether Mr. Martinez-Castellanos’s motion to suppress
was meritorious.


_____________________________________________________________
   46   Martinez-Castellanos, 2017 UT App 13, ¶ 74 (citation omitted).
   47   Id. ¶ 76.
   48   Id. ¶ 78.
   49   Id. ¶¶ 76, 80.
   50 In contrast, neither party has briefed the merits of the
Mr. Martinez-Castellanos’s motion to suppress before our court, nor
was this issue fairly presented in our grant of certiorari.


                                      22
                        Cite as: 2018 UT 46
                       Opinion of the Court

                            Conclusion
    ¶55 The court of appeals erred in accumulating errors that,
standing alone, had no potential to cause harm. Without a
determination that the motion to suppress is meritorious, trial
counsel’s deficient performance during the motion stage, and the
trial court’s error in its dealing with conflict counsel, cannot
conceivably affect Mr. Martinez-Castellanos and so are not
accumulable under the cumulative error doctrine. Thus, we reverse
the court of appeals’ determination of cumulative error. But because
the court of appeals did not make a meritorious determination on the
motion to suppress, we cannot uphold Mr. Martinez-Castellanos’s
convictions. Accordingly, we reverse and remand for the court of
appeals to make this determination.




                                23
