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

¶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. 
Cite as: 2018 UT 46

Opinion of the Court

3

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.
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

4

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. MartinezCastellanos’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 
Cite as: 2018 UT 46

Opinion of the Court

5

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.
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

6

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.
Cite as: 2018 UT 46

Opinion of the Court

7

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. MartinezCastellanos] 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 
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

8

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 
Cite as: 2018 UT 46

Opinion of the Court

9

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)).
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

10

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.”12 The court of appeals 

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.
Cite as: 2018 UT 46

Opinion of the Court

11

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.”18 Operating under 

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).
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

12

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.
Cite as: 2018 UT 46

Opinion of the Court

13

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 

_____________________________________________________________

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.
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

14

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).
Cite as: 2018 UT 46

Opinion of the Court

15

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.

_____________________________________________________________

29 See 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. 
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

16

¶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.
Cite as: 2018 UT 46

Opinion of the Court

17

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.

36 See 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.
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

18

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 
Cite as: 2018 UT 46

Opinion of the Court

19

“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.”).
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

20

¶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. MartinezCastellano raises are apparent on the record. This is so because 

neither the Supreme Court, nor this court, has decided whether jury 

(Continued)
Cite as: 2018 UT 46

Opinion of the Court

21

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.
STATE v. MARTINEZ-CASTELLANOS

Opinion of the Court

22

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. 
Cite as: 2018 UT 46

Opinion of the Court

23

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.