State v. Lindsay

1

NOT DESIGNATED FOR PUBLICATION

No. 117,826

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SCOTTIE E. LINDSAY,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed June 7, 2019.
Affirmed.

Corrine E. Gunning, of Kansas Appellate Defender Office, for appellant.

Ethan Zipf-Sigler, assistant district attorney, David Greenwald, assistant district attorney, Mark A.
Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., PIERRON and MALONE, JJ.

PER CURIAM: Scottie E. Lindsay appeals his convictions of second-degree
murder, attempted second-degree murder, and criminal possession of a firearm. He raises
several issues on appeal.

First, Lindsay argues the district court erred by sua sponte barring his counsel
from questioning a witness in a way that would have elicited an opinion about Lindsay's
guilt. Because we find that evidence was inadmissible and the district court had an
independent duty to insure it was not admitted, there was no error. Moreover, Lindsay did
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not proffer what the testimony would have been, if allowed, thus precluding our review
on appeal.

Second, Lindsay argues the district court erred when it denied his motion for a
new trial based on his trial counsel's ineffectiveness. He claims his trial counsel was
ineffective for failing to object to the admission of a witness' recorded statement after that
witness had testified. But trial counsel did have a chance to cross-examine the witness
about the statement and even if counsel was ineffective, Lindsay cannot establish that he
was prejudiced by counsel's actions.

Next, Lindsay correctly argues that the district court abused its discretion when it
did not inquire whether there was a conflict with trial counsel regarding Lindsay's motion
for new trial claiming trial counsel's ineffectiveness. But we find that ultimately the error
was harmless.

Finally, we find there was only one nontrial error, so there was no cumulative
error.

FACTUAL AND PROCEDURAL HISTORY

The State charged Lindsay with first-degree murder, attempted first-degree
murder, and criminal possession of a firearm. The charges stemmed from conduct that
occurred in mid-March 2015. The following is a summary of the facts established during
Lindsay's jury trial.

At the time of the crime, Julius Lamint Boyd lived with Melinda Bates-Fuller. On
the day in question, Michael Wright and Lindsay were also staying at Boyd's house. After
spending the night, Lindsay woke up the next morning and was agitated because he
thought someone took his cocaine. Wright was awake at the time and he contacted a
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friend to come pick him up so that he could go to the casino. Boyd told Lindsay that
Wright might have taken the cocaine since he left so quickly.

Boyd testified Lindsay then went outside and Lindsay's cousin arrived to give
Lindsay a pistol. Lindsay then left Boyd's house. Sometime after leaving Boyd's home,
Lindsay went to the casino and found Wright. Brandy Stroble was driving and Lindsay
showed Wright his pistol and told him to get in the car. Lindsay said they were going to
Boyd's house to figure out who took his cocaine. According to Wright, he, Stroble, and
Lindsay used methamphetamine on the way to Boyd's house.

Wright, Stroble, and Lindsay arrived at Boyd's house and entered through the back
door. Lindsay and Boyd talked about Lindsay's missing cocaine. Boyd pointed to an area
where it could have gotten lost. As Boyd was pointing, he was shot. Boyd did not know
who shot him, but as he laid on the ground he saw a gun in Lindsay's hand. Boyd then
saw Lindsay shoot him a second time. The shots hit Boyd in the neck and arm. Boyd
testified that he saw Lindsay and Wright run toward the stairs which led to where Bates-
Fuller was sleeping. Boyd heard gunshots from upstairs and then Wright and Lindsay ran
downstairs and left the house.

Officer Tommy Lee with the Kansas City Police Department responded to the
scene and saw Boyd on the floor with bullet wounds. Officer Lee asked Boyd if he knew
who shot him and Boyd told him it was Wright and Lindsay. Officer Lee then searched
the rest of the house and found Bates-Fuller's body.

Wright's version of events at the house was largely the same as Boyd's. But Wright
said that after Lindsay shot Boyd, he and Stroble ran out of the house to Stroble's car.

Stroble also testified at trial. According to Stroble, she gave Lindsay a ride around
town to look for his car, which had been stolen. They drove past the casino, saw Wright,
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and picked him up. Stroble said that when they arrived at Boyd's house she went inside,
used the restroom, and then went back out to her car. At trial, Stroble testified that she did
not tell police that she saw Lindsay with a gun or heard gunshots. She also testified that
she did not remember discussing with police Lindsay's missing Crown Royal bag, which
purportedly contained the missing drugs. Defense counsel cross-examined Stroble and
she was released from her subpoena.

Later in the trial the State called Detective Steve Mansaw as a witness. Detective
Mansaw interviewed Stroble. The interview was recorded and the State offered the audio
recording as evidence without objection. The recording was played for the jury.

The State also called Amber Pavelich, Stroble's sister, as a witness. On cross-
examination, Amber testified that while Lindsay was in jail she sent him a letter saying
that she knew he did not have a gun on the day of the crime. Defense counsel asked
Pavelich questions which the court, sua sponte, interrupted. The questions and the court's
interruption were:

"Q. And how do you know he didn't have a gun?

"A. I've known him for a long time. I've never seen him with a gun. I've never seen him
act violent or any of that type.

"Q. Okay. And then one of the things that you also said was, and I'm assuming this is in
reference to the homicide charge that Mr. Lindsay is on—here on today, is that you
know he's not guilty of that quote 'bullshit', end quote. That's what you wrote?

"THE COURT: I can't let this in, I'm sorry, even if the State's not gonna object.
You know this is not admissible a witness's opinion of the guilt or innocence of
somebody. I'm just not gonna allow it and I don't know why you didn't object and I don't
know why you asked. I'm not—hold on—I'm not gonna have this kind of stuff in my
courtroom in a trial from anybody, so stop it.
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"[Defense counsel]: May I—

"THE COURT: Don't respond. You ask proper questions.

"[Defense counsel]: Let me ask this, Your Honor, I was gonna ask what facts she
had of that. Am I allowed to do that?

"THE COURT: No. You're soliciting an opinion from her. That is stricken. You
are to disregard her testimony regarding her opinion of anything."

Defense counsel then stated he had no other questions. The State asked to approach,
provided its reason for not objecting, and then asked the court to clarify what was
stricken. The court clarified to the jury that "[a]nything that was elicited from this witness
in the form of an opinion regarding the defendant and what she based on knowing him,
thinks he would or would not do . . . is stricken and is not to be considered by you as
evidence in this case."

Lindsay testified and generally denied the charges, claiming that he was not
present and was at his own house all day.

The jury found Lindsay guilty of second-degree murder, attempted second-degree
murder, and criminal possession of a firearm by a convicted felon.

Lindsay's attorney moved for a new trial arguing: (1) the verdict was contrary to
the evidence presented at trial; (2) the court erred in preventing counsel from questioning
Pavelich about any facts she had that supported her opinion that Lindsay was not guilty;
(3) the court erred by submitting lesser included offense instructions; (4) the State made
inflammatory statements during closing argument; and (5) his attorney erred by failing to
object to the State's presentation of the recorded statement of Stroble after she had
already testified at trial. In an amended motion, Lindsay also argued: (6) the State failed
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to disclose certain evidence and (7) the State submitted evidence without proper
foundation.

The court denied Lindsay's motion reasoning, in part, that the court did not prevent
Pavelich from testifying to any facts. Instead, the court said that it only prevented
Pavelich from expressing her personal opinion on Lindsay's guilt. The court also refused
to "Monday morning quarterback" on the issue of Stroble's recorded statement being
admitted. But the court said if counsel did err, the error was harmless given the evidence
presented.

The court sentenced Lindsay to a total of 688 months in prison. Lindsay timely
appeals.

ANALYSIS

On appeal, Lindsay argues the district court: (1) violated his right to present a
defense by denying counsel the opportunity to fully cross-examine Pavelich;
(2) committed judicial misconduct by sua sponte stopping counsel's cross-examination of
Pavelich; (3) erred by denying his motion for a new trial based on ineffectiveness of
counsel; and (4) erred by failing to appoint conflict free counsel to address the motion for
new trial. Lindsay also argues that cumulative error deprived him of a fair trial.







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The district court did not violate Lindsay's right to present a defense by barring Lindsay's
attorney from asking Pavelich questions which would elicit an opinion regarding his guilt
or innocence.

Our standard of review is de novo.

The trial court violates a criminal defendant's fundamental right to a fair trial if the
court excludes relevant, admissible, and noncumulative evidence which is an integral part
of the theory of the defense. However, the right to present a defense is subject to statutory
rules and judicial interpretation of the rules of evidence and procedure. State v. Roeder,
300 Kan. 901, 927, 336 P.3d 831 (2014). "'When a criminal defendant claims that a
district judge has interfered with his or her constitutional right to present a defense, we
review the issue de novo.'" 300 Kan. at 927 (quoting State v. Carter, 284 Kan. 312, 318-
19, 160 P.3d 457 [2007]).

The judge was required to prevent a witness from expressing an opinion regarding
the defendant's guilt.

The right to "confront and cross-examine witnesses" is essential to due process.
Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). A
defendant also has the right to present his or her defense. However, the right is not
without limits. The right to present a defense does not mean the defendant can present
inadmissible evidence. See State v. Meeks, 301 Kan. 114, 117, 339 P.3d 766 (2014).

A witness is not allowed to give an opinion on whether a defendant is guilty. Nor
is a witness allowed to testify in a way that can be construed as offering an opinion on the
defendant's guilt or innocence. State v. Drayton, 285 Kan. 689, 701-02, 175 P.3d 861
(2008) (holding that a district court has "no discretion" to allow a witness to testify
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regarding the witness' opinion of the defendant's guilt and a judge is required to bar such
testimony because it is "inadmissible as a matter of law").

Here, the court interrupted the defense's cross-examination of Pavelich when
counsel said "one of the things that you also said was . . . that you know [Lindsay is] not
guilty of that quote 'bullshit', end quote. That's what you wrote?" This question, and
counsel's proposed follow up of asking "what facts she had of that" cross the line to
impermissible opinion evidence. See 285 Kan. at 699-701. While the question did not
explicitly ask Pavelich for her opinion of whether Lindsay was guilty, it did do so
indirectly. See 285 Kan. at 700.

The district court's ultimate decision to bar the testimony was not an error. In fact,
our Supreme Court clearly demands that the trial judge take the initiative to prevent such
evidence from being elicited. 285 Kan. at 701.

The exclusion of Pavelich's opinion testimony did not deny Lindsay the right to
present his defense.

Nor did the district court's decision impact Lindsay's ability to present a defense.
Lindsay was still able to testify that he was at home the day of the crime. Lindsay also
called other witnesses to support his case. Jeremiah Bly testified he went to a house
where Stroble was staying and she tried to sell him a pistol. Bly also testified that
Lindsay was there most of the day after the crime and he never saw him with the pistol.
Clinton Ross also testified on behalf of Lindsay. Ross testified he saw Lindsay the day
after the shooting and did not see him with a pistol. In closing arguments, Lindsay's
attorney pointed out the inconsistencies in the State's case and argued the physical
evidence did not match up with the State's version of events.


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Lindsay's counsel did not proffer the evidence he hoped to elicit from Pavelich.

Moreover, even if the judge was not required to bar the testimony, counsel did not
proffer what he expected Pavelich would testify if he was allowed to ask his questions.
See K.S.A. 60-405 ("A verdict or finding shall not be set aside, nor shall the judgment or
decision based thereon be reversed, by reason of the erroneous exclusion of evidence
unless it appears of record that the proponent of the evidence either made known the
substance of the evidence in a form and by a method approved by the judge, or indicated
the substance of the expected evidence by questions indicating the desired answers.").
"The standard for a satisfactory proffer is whether the proffer contains the substance of
the excluded testimony." Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 623, 822
P.2d 591 (1991). When the party fails to provide a sufficient proffer of the substance of
the evidence, appellate review is precluded because the appellate court lacks a basis to
consider whether the trial court abused its discretion. State v. Swint, 302 Kan. 326, 332,
352 P.3d 1014 (2015). Without any information regarding what the substance of
Pavelich's testimony would have been, we cannot determine whether the trial court
abused its discretion.

The district court did not err by denying Lindsay's motion for new trial based on the
ineffectiveness of his trial counsel.

We set forth our standard of review.

When the district court conducts an evidentiary hearing on claims of ineffective
assistance of counsel, the appellate courts review the district court's factual findings using
a substantial competent evidence standard. We review the district court's legal
conclusions based on those facts applying a de novo standard of review. State v. Butler,
307 Kan. 831, 853, 416 P.3d 116 (2018).

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The Sixth Amendment right to counsel is the right to effective assistance of
counsel. Chamberlain v. State, 236 Kan. 650, 656, 694 P.2d 468 (1985). To prevail on a
claim of ineffective assistance of counsel, a criminal defendant must establish (1) that the
performance of defense counsel was deficient under the totality of the circumstances, and
(2) prejudice, i.e., that there is a reasonable probability the jury would have reached a
different result absent the deficient performance. Sola-Morales v. State, 300 Kan. 875,
882, 335 P.3d 1162 (2014). Judicial scrutiny of counsel's performance in a claim of
ineffective assistance of counsel is highly deferential and requires consideration of all the
evidence before the judge or jury. The reviewing court must strongly presume that
counsel's conduct fell within the broad range of reasonable professional assistance. See
State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).

Lindsay's counsel was not ineffective.

Lindsay argues his trial counsel was ineffective because counsel did not object to
the introduction of Stroble's recorded statement to police. Lindsay argues the statement
was inadmissible hearsay because Stroble had already testified and was released from her
subpoena and was unavailable for cross-examination when the statement was introduced.
When the district court ruled on the issue, it held that even if counsel erred, the error was
harmless.

Lindsay's trial counsel did not offer a reason explaining why he did not object to
Stroble's recorded statement being admitted at trial. Instead, at the hearing on his motion
for a new trial, Lindsay's trial counsel said, "I'm sure there was a reason at the time that I
didn't object, but clearly probably should have." We note he had received a copy of the
audio recordings in the case at least seven months prior to trial.

Under K.S.A. 2018 Supp. 60-460(a) "[a] statement previously made by a person
who is present at the hearing and available for cross-examination with respect to the
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statement and its subject matter" is admissible hearsay. The Kansas Supreme Court has
held if the witness is actually present and testifies at trial the previous out-of-court
statements are admissible whether admitted before or after the witness testifies. State v.
Davis, 236 Kan. 538, 541, 694 P.2d 418 (1985). The court reasoned so long as the
defendant has an opportunity to cross-examine the witness the Confrontation Clause is
satisfied. 236 Kan. at 541.

Likewise, in State v. Reed, 300 Kan. 494, 505, 332 P.3d 172 (2014), the Kansas
Supreme Court held that K.S.A. 60-460(a) applied when the State admitted a witness'
prior statement after defense counsel had cross-examined the witness. In Reed, the
defendant was charged with two counts of aggravated indecent liberties with a child.
After each incident leading to the charges occurred, the victims wrote down what
happened. The notes were admitted into evidence over Reed's objection. One note was
not admitted into evidence until after the victim had testified. On appeal, the Kansas
Supreme Court held the hearsay exception applied. The court reasoned defense counsel
had an opportunity to cross-examine the victim about her written statement even though
the statement was not admitted until after the victim completed her initial testimony. 300
Kan. at 505.

In this case, Stroble testified and was cross-examined before her recorded
statement was admitted. However, during her direct testimony the State referred to her
recorded statement during questioning. For example, Stroble testified that she did not
remember if Lindsay seemed agitated because he was missing something the day of the
crime. The State referred her to her statement to police where she said that Lindsay was
missing a Crown Royal bag. She also testified she did not remember what Lindsay and
Boyd talked about when they arrived at Boyd's house. The State asked her to look at her
previous statement and Stroble then said Lindsay talked about resolving the issue "like
men." Stroble testified that she did not hear anything after she left the house. But after
looking at her statement to police she testified she heard a gunshot. Stroble also testified
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that she never saw Lindsay with a gun and she did not hear a second gunshot. Although
defense counsel did not specifically refer to Stroble's recorded statements during cross-
examination, he did question Stroble regarding facts that were only found in her recorded
statements, such as Wright exiting the house with his hoodie up over his head and
crouched down in the back of the car.

Lindsay was able to cross-examine Stroble about her recorded statement. The
Kansas Supreme Court in Davis held that a witness may testify before or after the
admission of hearsay evidence so long as cross-examination is available. Davis, 236 Kan.
at 541. Accordingly, even if counsel had objected to the admission of the statements
"after the fact," consistent with the caselaw, we feel confident it would not have been
granted. Counsel cannot be found to be ineffective for failing to make an objection that
would have been unsuccessful. Moreover, had he made the objection successfully, the
State could have easily cured the problem by recalling Stroble to the stand.

But even if Lindsay's counsel was ineffective, he is still required to show he was
prejudiced. See Sola-Morales, 300 Kan. at 882.

Lindsay was not prejudiced by his counsel's failure to object to the introduction of
Stroble's recorded statement.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must not only establish that the performance of defense counsel was deficient but also
that there is a reasonable probability the jury would have reached a different result absent
the deficient performance. Sola-Morales, 300 Kan. at 882.

The content of Stroble's recorded statement and her testimony at trial were largely
the same. The main areas of difference were addressed by the State in its direct
examination of Stroble. Stroble told the police in her recorded statement that Lindsay was
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missing a Crown Royal bag and that she heard a gunshot. But at trial, Stroble testified she
did not see Lindsay with a gun and did not hear a second gunshot. The State insinuated
that Stroble told the police differently but did not explicitly state that Stroble told police
she saw Lindsay with a gun and heard a second gunshot. The remaining important details
in Stroble's recorded statement were essentially the same as her testimony at trial.

During closing arguments, the State referred to Stroble's testimony and recorded
statement. The State acknowledged Stroble's testimony and recorded statement were not
exact matches. The State told the jury to use its common sense "when you're considering
what she told the police, which is still evidence in this case, and what she testified to at
trial."

On the other hand, Lindsay's counsel pointed out the inconsistencies between
Stroble's and Wright's testimony. Other than that, he did not focus on Stroble's testimony
or her recorded statement to police.

Even if Stroble's recorded statement was not introduced, her testimony combined
with the testimony of Boyd and Wright was enough to convict Lindsay. While some
details between the three witnesses were inconsistent, the overarching details remained
similar. Boyd, Stroble, and Wright testified that Lindsay was present at the house and
upset about something going missing. Stroble's testimony placed Lindsay at the scene
when she heard a gunshot. After the gunshot she saw Wright leave the house a minute
before Lindsay left the house. Wright testified that he ran out of the house right after
Lindsay shot Boyd. And Boyd testified Lindsay shot him. Stroble's recorded statements
to police were not different enough from her testimony to impact the jury's decision in
this case. Lindsay fails to show there is a reasonable probability the outcome of his trial
would have been different if Stroble's recorded statement had not been admitted as
evidence.

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The district court did not commit reversible error by failing to inquire about the need to
appoint replacement counsel for Lindsay's motion for new trial.

Lindsay argues the district court erred by failing to inquire if new counsel was
needed to argue Lindsay's motion for new trial because his counsel arguing the motion
was the same counsel that was allegedly ineffective.

Our standard of review is abuse of discretion.

Whether the district court adequately discharged its duty to inquire into the
possibility a defendant's counsel has a conflict is reviewed for an abuse of discretion.
State v. McDaniel, 306 Kan. 595, 606, 395 P.3d 429 (2017). A judicial action constitutes
an abuse of discretion if (1) no reasonable person would take the view adopted by the
trial court; (2) it is based on an error of law; or (3) it is based on an error of fact. State v.
Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015).

When the trial court becomes aware of a possible conflict of interest between a
defendant and his or her counsel, the court "'has a duty to inquire further.'" State v.
Sharkey, 299 Kan. 87, 96, 322 P.3d 325 (2014) (quoting State v. Vann, 280 Kan. 782,
Syl. ¶ 1, 127 P.3d 307 [2006]). "'[A] district court abuses its discretion when it makes no
inquiry into the nature of the conflict. [Citation omitted.]'" 299 Kan. at 97 (quoting State
v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 [2013]).

The trial court abused its discretion when it failed to inquire about a conflict of
interest with trial counsel.

The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right to counsel at critical stages of a felony proceeding. The right applies
to the states through the Fourteenth Amendment to the United States Constitution.
15

Sharkey, 299 Kan. at 92-93. A hearing on a timely filed motion for new trial "is a critical
stage of the criminal proceedings, and a defendant has a Sixth Amendment right to the
representation of counsel." 299 Kan. at 96. When a constitutional right to counsel exists,
there is a "'correlative right to representation that is free from conflicts of interest.
[Citations omitted.]'" 299 Kan. at 96 (quoting Wood v. Georgia, 450 U.S. 261, 271, 101
S. Ct. 1097, 67 L. Ed. 2d 220 [1981]).

In this case, Lindsay had a right to conflict free counsel at the hearing on his
motion for new trial. See 299 Kan. at 96. Part of his motion alleged that his counsel was
ineffective at trial. His counsel arguing the motion was the same counsel who was
allegedly ineffective at trial. To advocate for Lindsay, his counsel was necessarily
arguing against his own interest. This shows a possibility for conflict existed. The district
court made no inquiry about the possible conflict of interest between counsel and Lindsay
during the hearing on the motion for new trial. The district court abused its discretion by
not inquiring about the possible conflict of interest. See 299 Kan. at 97.

But just because the court erred does not automatically require reversal. Instead,
this court must determine whether the district court's error requires reversal.

The error does not require reversal.

When an attorney is representing conflicting interests—here arguing his own
ineffectiveness—but the defendant registers no objection at the time, the caselaw requires
us to examine the appropriate remedy under what has become known as the Mickens
reservation, based on Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d
291 (2002). The Kansas Supreme Court discussed the Mickens reservation in State v.
Galaviz, 296 Kan. 168, 184, 291 P.3d 62 (2012). The Galaviz court noted that the United
States Supreme Court was unclear in Mickens on how to determine the remedy for such
an error. The Mickens Court noted it could examine the reversibility of the error based on
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the standard set out in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984) (was there "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different"), or it could
examine the reversibility of the error based on the lesser standard set out in Cuyler v.
Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980) (did the "conflict
of interest adversely [affected the] lawyer's performance"). Galaviz, 296 Kan. at 184-85.
Recently, our Supreme Court reiterated that the law is "unsettled" as to which standard is
to be applied under the Mickens reservation. McDaniel, 306 Kan. at 610.

Lindsay argues that the Cuyler standard applies. The State argues the Strickland
standard applies. But we find that under either standard, Lindsay is unable to prevail.

Lindsay's counsel clearly had a personal interest in not being found ineffective.
But unlike the attorney in State v. Toney, 39 Kan. App. 2d 1036, 187 P.3d 138 (2008),
cited for support by Lindsay, Lindsay's attorney urged to the district court to find that he
was ineffective for not objecting to the admission of the audio recording. To that extent
he argued against his own best interest and for his client's interest. So under the Cuyler
standard, the conflict did not appear to affect counsel's performance.

Under the Strickland standard, for Lindsay to prevail we would have to find that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. The only unprofessional error Lindsay claims
is counsel's conflict in representing Lindsay during the motion for new trial. The only
issue of ineffectiveness in the motion for new trial was counsel's failure to object to the
admission of Stroble's recorded statement. We have already found that counsel was not
ineffective for failing to object, because the objection lacked merit. And, even if it had
merit, Lindsay was unable to show he was prejudiced by its admission.

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So we have no hesitation finding that there was not a reasonable probability the
result of the trial would have been different had the alleged ineffectiveness not occurred.
Ultimately, the result would have been the same. Accordingly, we need not remand for a
new hearing, with conflict free counsel, on Lindsay's motion for a new trial.

Cumulative error did not deprive Lindsay of a fair trial.

"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect on the outcome of the trial is such that collectively they cannot be
determined to be harmless." State v. Tully, 293 Kan. 176, 205, 262 P.3d 314 (2011). A
single error cannot support reversal under the cumulative error doctrine. State v.
Gonzalez, 307 Kan. 575, 598, 412 P.3d 968 (2018).

Of all the issues raised by Lindsay, we have found only one error—failure to
appoint conflict free counsel for filing and arguing a motion for new trial. But we
concluded that the error was harmless. Moreover, this was not a trial error, which is what
the cumulative error doctrine was meant to address. Even if it were a trial error, a single
trial error cannot support a reversal under the cumulative error doctrine. See Gonzalez,
307 Kan. at 598. Accordingly, this claim of error fails.

Affirmed.