IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

DIMITRI POLANCO ROMERO,

Appellant.

No. 2 CA-CR 2023-0010

Filed August 13, 2024

Appeal from the Superior Court in Pima County

No. CR20203538001

The Honorable Catherine M. Woods, Judge 

AFFIRMED

COUNSEL

Kristin K. Mayes, Arizona Attorney General

Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals

By Mariette S. Ambri, Assistant Attorney General, Tucson

Counsel for Appellee

Megan Page, Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson 

Counsel for Appellant
STATE v. ROMERO

Opinion of the Court

2

OPINION

Chief Judge Staring authored the opinion of the Court, in which Judge 

O’Neil concurred in part and from which Judge Sklar dissented.

S T A R I N G, Chief Judge:

¶1 Dimitri Romero appeals from his convictions and sentences 

for first-degree murder, unlawful discharge of a firearm, fleeing from law 

enforcement, and possession of a narcotic drug. Romero contends the trial

court erred in failing to remove a juror who was not qualified to serve and 

in denying his motion to sever the narcotics possession charge. He also 

argues he was denied a fair trial due to cumulative prosecutorial error. For 

the reasons that follow, we affirm Romero’s convictions and sentences. 

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the 

jury’s verdicts and resolve all reasonable inferences against Romero. State 

v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In September 2020, an altercation 

involving several people occurred in the parking lot of a nightclub. Gunfire 

erupted, and S.H. suffered multiple gunshot wounds. A Pima County 

Sheriff’s Deputy heard the gunfire and responded. As the deputy 

approached the scene, he saw Romero’s car leaving the nightclub’s parking 

lot, committing multiple traffic violations. The deputy also saw Romero 

inside the car holding something black. Believing it was a gun, the deputy 

attempted a traffic stop. Romero did not stop, however, and the deputy 

pursued him for more than four miles. The pursuit ended when Romero’s 

car struck a fence. Deputies found a black handgun on the floorboard of 

Romero’s car, and a search of his person revealed a plastic bag containing

cocaine. 

¶3 Tucson Police Department (TPD) Detective Brumitt, the lead 

detective, arrived at the nightclub after the shooting and was briefed by 

other officers about the traffic stop and the gun found in Romero’s car. By 

that time, Romero had already been taken into custody, and the shooting 

victim, S.H., had been dropped off by one or more unknown persons at a 

local hospital. S.H. died as a result of his wounds. 

¶4 Detectives obtained surveillance footage of the parking lot 

and nightclub exit. The videos of the parking lot were grainy. In the videos, 
STATE v. ROMERO

Opinion of the Court

3

Romero and S.H. are seen standing in the busy parking lot after leaving the 

nightclub. S.H. walks towards his car, and Romero follows him and shoots 

in his direction multiple times before leaving. Around the same time, other 

individuals begin to shoot guns up into the air, performing an “airing out” 

of the area to prompt people to leave. 

¶5 Detectives later identified the car that had taken S.H. to the 

hospital. The car had been struck by multiple gunshots. 

¶6 Based on the surveillance footage, detectives determined 

approximately where in the parking lot S.H. had been shot—and from 

where the shots had been fired—and focused on that area. In that area, they 

discovered four nine-millimeter shell casings, all from the same 

manufacturer.1 

¶7 Romero’s gun was test fired, and, using the National 

Integrated Ballistic Information Network (NIBIN), the casing generated 

from that test firing was then compared to one of the four casings described 

above. They matched. Romero was subsequently charged with first-degree 

murder, possession of a narcotic drug, unlawful discharge of a firearm, and 

fleeing from law enforcement.2 

¶8 After a four-day jury trial, Romero was convicted on all four 

counts. The trial court sentenced him to concurrent terms of imprisonment, 

the longest of which is life in prison without the possibility of release for at 

least twenty-five years.3 This appeal followed. We have jurisdiction 

pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-

120.21(A)(1), 13-4031, and 13-4033(A).

1None of the bullets that struck S.H. were ever recovered. 

2Romero was also charged with possession of a deadly weapon by a 

prohibited possessor, but this charge was severed before trial on Romero’s 

motion.

3The state subsequently moved to modify Romero’s sentence for 

first-degree murder, asserting that, under A.R.S. § 13-752(A), “the only 

sentence available” is a sentence of “natural life,” that is, life in prison

without the possibility of release. See A.R.S. § 13-1105. Absent an appeal 

or cross-appeal by the state, we lack jurisdiction to correct an erroneously 

lenient sentence. See State v. Dawson, 164 Ariz. 278, 281-82 (1990).
STATE v. ROMERO

Opinion of the Court

4

Discussion

I. Failure to Strike Juror for Cause

¶9 For the first time on appeal, Romero argues the trial court 

erred by failing to remove a juror “who was not qualified to serve under 

A.R.S. § 21-211 and State v. Eddington, 228 Ariz. 361 (2011).”4 “[E]xcusing 

jurors is committed to the sound discretion of the trial court” and we will 

not set aside a court’s decision as to whether to strike a juror for cause 

“absent clear and prejudicial abuse of that discretion.” State v. Milke, 

177 Ariz. 118, 122 (1993); see State v. Colorado, 256 Ariz. 97, ¶ 23 (App. 2023). 

¶10 A criminal defendant has a constitutional right to be tried by

an impartial jury. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. A trial 

court “must excuse a prospective juror . . . from service . . . if there is a 

reasonable ground to believe that the juror . . . cannot render a fair and 

impartial verdict.” Ariz. R. Crim. P. 18.4(b). The party challenging 

empanelment of the juror bears the burden of establishing that the juror is 

“incapable of rendering a fair and impartial verdict.” State v. Acuna 

Valenzuela, 245 Ariz. 197, ¶ 21 (2018) (quoting State v. Lavers, 168 Ariz. 376, 

390 (1991)). And, as we discussed in State v. Jimenez, 255 Ariz. 550, ¶¶ 6-8 

4Generally, when a defendant does not object in the trial court, he 

has waived review for all but fundamental error. State v. Escalante, 245 Ariz. 

135, ¶ 12 (2018). In State v. Escalante-Orozco, our supreme court concluded 

that when a defendant had not objected to the seating of a juror, 

fundamental error review applied. 241 Ariz. 254, ¶ 40 (2017). But in later 

clarifying how courts should apply the fundamental error review standard, 

the court abrogated the paragraph of Escalante-Orozco discussing that 

standard. Escalante, 245 Ariz. 135, ¶ 15. Although the court’s discussion in 

Escalante does not cast into doubt the conclusion that fundamental error 

applies in this context, it is unclear whether Romero is required to establish 

he was prejudiced by the trial court’s purported error in failing to sua 

sponte remove the juror. See id. ¶ 21. Romero, however, contends that 

“[b]ecause peremptory challenges have been eliminated in Arizona, [a] 

defendant has no way to rectify a trial court’s error in failing to disqualify 

a biased juror.” Thus, he asserts “structural error is present and [his] 

convictions must be reversed.” Because we conclude the court did not err 

in failing to sua sponte strike the juror, we need not address either the 

application of fundamental error in this context or Romero’s argument 

regarding structural error. See State v. Soliz, 223 Ariz. 116, ¶ 12 (2009) (“The 

prerequisite to [structural] error is that error indeed occurred.”).
STATE v. ROMERO

Opinion of the Court

5

& 6 (App. 2023), Arizona’s elimination of peremptory strikes in criminal 

trials delegates to our trial courts the responsibility to “exclusively 

determine the final composition of juries in criminal cases.” Further, 

because a defendant’s right to a fair and impartial jury is integral to the 

public’s confidence in the judicial system, under certain circumstances, 

“[t]he potential for an appearance of bias suffice[s] to require 

disqualification regardless of any juror-specific finding of actual bias.” 

Id. ¶ 7 (alterations in Jimenez) (quoting Eddington, 228 Ariz. 361, ¶ 10).

¶11 A potential juror is disqualified for cause when they are 

“interested directly or indirectly in the matter under investigation” or 

“biased or prejudiced in favor of or against either of the parties.” § 21-

211(2), (4); see Eddington, 228 Ariz. 361, ¶ 7. A person “interested directly or 

indirectly” in the case includes those with “a desire to see one side prevail 

in litigation or an alignment with or loyalty to one party or side.” Eddington, 

228 Ariz. 361, ¶¶ 1, 11. A peace officer who is “currently employed by the 

same agency, office, or department that conducted the investigation in a 

criminal case” is an interested person who must be struck for cause. State 

v. Eddington, 226 Ariz. 72, ¶ 8 (App. 2010).

¶12 During voir dire, the juror was asked whether he had “any 

background or experience in law enforcement, law, or medicine.” The juror 

replied that he had gone “to school for criminal justice . . . 20 years ago.” 

The juror also volunteered that he “had an interview and got placed on the 

civil service ranking list” and “possibly within the next six months . . .

might be working for TPD” as “a civilian in evidence.” When questioned, 

the juror confirmed he did not know any of the witnesses, other jurors, or 

facts in Romero’s case, could remain impartial, and would “honor[] . . .

Romero’s constitutional protections.” Neither party followed up with 

additional questions for the juror, and he was subsequently empaneled 

without objection. 

¶13 For the first time on appeal, Romero argues the juror should 

have been disqualified. Romero admits that “[n]o Arizona case discusses 

the application of A.R.S. § 21-211(2) to prospective employees” and that the 

juror “was not yet employed with TPD.” He contends “the psychological 

pressures of pleasing a prospective employer are arguably greater than 

those of pleasing a current employer,” thereby making the juror an 

interested party subject to disqualification. 

¶14 We disagree that Romero has shown reasonable grounds for 

the juror’s exclusion. See Ariz. R. Crim. P. 18.4(b). Although a law 

enforcement officer may be disqualified as an interested person based on 
STATE v. ROMERO

Opinion of the Court

6

“his working relationship with his law enforcement employer, and by 

extension, the prosecution” involved in the case, State v. Johnson, 247 Ariz. 

166, ¶ 125 (2019), the juror in question had no such relationship. The 

speculative prospect of potential employment is distinctly attenuated from 

the circumstances in Eddington. Cf. Eddington, 228 Ariz. 361, ¶¶ 2, 18 

(deputy sheriff currently employed by agency that investigated murder of 

police officer’s son and familiar with trial court’s security procedures

disqualified). But see People v. Southall, 65 N.Y.S.3d 508, 515-18 (N.Y. App. 

Div. 2017) (implied bias warranted new trial where juror failed to disclose 

job application to work for office prosecuting the case). The trial court did 

not abuse its discretion in failing to strike the juror. See Milke, 177 Ariz. at 

122.

II. Severance

¶15 Romero challenges the trial court’s denial of his motion to 

sever the narcotics possession charge from the other counts of the 

indictment. We generally review a court’s ruling on a motion to sever for 

an abuse of discretion. State v. Allen, 253 Ariz. 306, ¶ 50 (2022). Here, 

because Romero did not renew his motion during trial, we review only for

fundamental error. See id.; Ariz. R. Crim. P. 13.4(c). “Under fundamental 

error review, the defendant bears the burden to establish that (1) error 

exists, (2) the error is fundamental, and (3) the error caused him prejudice.” 

State v. Riley, 248 Ariz. 154, ¶ 24 (2020). We read the joinder and severance 

rules together to determine whether the court erred. See State v. Kinkade, 

140 Ariz. 91, 93 (1984).

¶16 Two or more offenses may be joined in an indictment if they 

“(1) are of the same or similar character; (2) are based on the same conduct 

or are otherwise connected together in their commission; or (3) are alleged 

to have been a part of a common scheme or plan.” Ariz. R. Crim. P. 13.3(a). 

“[I]n the interest of judicial economy, joint trials are the rule rather than the 

exception.” State v. Murray, 184 Ariz. 9, 25 (1995). However, in general, a 

court must order counts to be severed “if necessary to promote a fair 

determination of any defendant’s guilt or innocence.” Ariz. R. Crim. P. 

13.4(a). Trial courts have broad discretion to deny severance absent a 

showing of compelling and unavoidable prejudice. Allen, 253 Ariz. 306, 

¶ 55; State v. Grannis, 183 Ariz. 52, 58 (1995), disapproved of on other grounds 

by State v. King, 225 Ariz. 87, ¶ 9 (2010).

¶17 The week before trial, Romero moved to sever the counts of 

the indictment charging him with misconduct involving weapons and 
STATE v. ROMERO

Opinion of the Court

7

possession of a narcotic drug.5 He asserted the “drug charge [wa]s not 

associated with the homicide charge” and was “completely separate.” 

After noting Romero had failed to file a written motion for severance before 

the expiration of the pretrial motion deadline, the trial court asked the state 

whether evidence supporting the narcotics possession overlapped with 

evidence supporting the other charges. The state argued the evidence was 

overlapping, explaining that Romero had fled from law enforcement 

officers after leaving the scene of a homicide. The state continued that once 

Romero had been apprehended, officers “locate[d] the weapon and the 

drugs in the vehicle that he was fleeing in” and Romero “was the sole 

occupant of that vehicle.” In summarizing its position, the state asserted it 

was agreeing to severance of the gun charge but objecting to severance of 

the drug charge. Defense counsel responded, “That’s fine, Your Honor. 

That’s fine with us.” The court granted Romero’s motion as to the 

misconduct involving weapons charge but noted that the other charges, 

including narcotics possession, would proceed to trial as scheduled. 

¶18 On appeal, Romero argues he was entitled to severance of the 

narcotics possession charge as a matter of right pursuant to Rule 13.4(b). 

Under this rule, if offenses are “joined solely” under Rule 13.3(a)(1), a 

defendant is entitled to severance of the charges—as a matter of right—

before the case goes to the jury “unless evidence of the other offense . . .

would be admissible if the offenses were tried separately.” He asserts the 

state “offered no information that would suggest that evidence of drug 

possession would be relevant in the murder trial or vice versa” at the time 

of his motion and made “no attempt to show that the cocaine related to the 

murder charge” at trial. 

¶19 Contrary to Romero’s apparent suggestion that the narcotics 

possession charge was joined with the other offenses based solely on its 

similarity to those offenses under Rule 13.3(a)(1), joinder of the offenses was 

proper under Rule 13.3(a)(2). Indeed, the narcotics possession charge was 

“based on the same conduct” or was “otherwise connected together in [its]

commission” with the flight, discharge of a firearm, and murder charges. 

Ariz. R. Crim. P. 13.3(a)(2); see State v. Prince, 204 Ariz. 156, ¶¶ 14-15, 17 

(2003) (charges properly joined under Rule 13.3(a)(2) “where separate 

5Although Romero’s oral motion to sever was untimely, the trial 

court does not appear to have rejected it on that basis. See Ariz. R. Crim. P. 

13.4(c) (defendant must “move to sever at least 20 days before trial or as the 

court otherwise orders”). 
STATE v. ROMERO

Opinion of the Court

8

crimes arise out of a series of connected acts, provable by much of the same 

evidence”); see also State v. Martinez-Villareal, 145 Ariz. 441, 446 (1985) 

(burglary in which defendant stole guns was correctly joined with later 

homicide charges under Rule 13.3(a)(2)). Romero does not argue otherwise. 

Thus, he was not entitled to severance as a matter of right. See Ariz. R. Crim. 

P. 13.4(b). 

¶20 Accordingly, to establish error, Romero is required to show 

that, at the time he moved to sever, “he had proved that his defense would 

be prejudiced absent severance.” Murray, 184 Ariz. at 25; see State v. Roper, 

140 Ariz. 459, 461 (App. 1984) (defendant must demonstrate “clear abuse of 

discretion with respect to the trial court’s decision to join offenses, based on 

a showing at the time the motion is made and not what ultimately 

transpires at trial”). In moving to sever the narcotics possession charge, 

Romero did not assert, let alone establish, that his defense would be 

prejudiced absent severance. On this record, the trial court did not err in 

denying Romero’s motion. 

III. Prosecutorial Error

¶21 On appeal, Romero argues cumulative prosecutorial error 

deprived him of a fair trial.6 To entitle a defendant to relief, the prosecutor’s 

conduct must “so infect[] the trial with unfairness as to make the resulting 

conviction a denial of due process.” State v. Murray, 250 Ariz. 543, ¶ 13

(2021) (quoting State v. Morris, 215 Ariz. 324, ¶ 46 (2007)). This standard 

applies to both individual and cumulative claims of prosecutorial error or 

misconduct. See id.; State v. Robinson, 253 Ariz. 121, ¶ 64 (2022).

6Both “‘prosecutorial misconduct’ [and prosecutorial error] broadly 

encompass[] any conduct that infringes a defendant’s constitutional 

rights.” In re Martinez, 248 Ariz. 458, ¶ 45 (2020). Our supreme court has 

noted “prosecutorial error” may not necessarily “imply a concurrent ethical 

rules violation,” whereas “prosecutorial misconduct” may “suggest an 

ethical violation.” Id. ¶ 47. Although the term “prosecutorial misconduct” 

includes conduct “ranging from inadvertent error or innocent mistake to 

intentional misconduct,” id., such a characterization “makes no difference 

to our ultimate decision,” State v. Murray, 250 Ariz. 543, ¶ 12 (2021). “[A]ny 

finding of error or misconduct may entitle a defendant to relief, but courts 

should not conflate that inquiry with the collateral issue of a prosecutor’s 

ethical culpability.” Martinez, 248 Ariz. 458, ¶ 47.
STATE v. ROMERO

Opinion of the Court

9

¶22 For cumulative prosecutorial error, Romero need not show 

that each alleged instance of error deprived him of a fair trial but instead 

may show that multiple instances of error “cumulatively amount to 

fundamental error.” State v. Vargas, 249 Ariz. 186, ¶ 1 (2020). We first 

consider each instance of alleged error and then “consider the cumulative 

effect on the fairness of [Romero]’s trial.” State v. Vargas, 251 Ariz. 157, ¶ 9 

(App. 2021). Because a successful claim of cumulative prosecutorial error 

necessarily establishes the unfairness of a trial, Romero need not separately 

assert prejudice. See Vargas, 249 Ariz. 186, ¶ 13.

¶23 Romero did not object at trial on the basis of prosecutorial 

error. Thus, he must: “1) assert cumulative error exists; 2) cite to the record 

where the alleged instances of [error] occurred; 3) cite to legal authority 

establishing that the alleged instances constitute prosecutorial [error]; and 

4) set forth the reasons why the cumulative [error] denied [him] a fair trial 

with citation to applicable legal authority.” Id. ¶ 14. 

¶24 Romero argues the prosecutor “repeatedly committed four 

types of error.” We review each category of alleged error below. See Vargas, 

251 Ariz. 157, ¶ 9. Notably, at oral argument in this court, Romero 

conceded that no single act of prosecutorial error was sufficient to justify 

reversal.7

A. Improper opinion testimony

¶25 Romero argues the prosecutor repeatedly elicited improper 

opinion testimony from witnesses identifying him and S.H. in the 

surveillance footage. Romero also asserts the prosecutor elicited improper 

NIBIN opinion testimony regarding the shell casings found at the scene. 

1. Video evidence

¶26 Romero argues the prosecutor committed error by eliciting 

testimony from police officers during trial “that [he] was the shooter” 

despite being “unacquainted with [him],” which essentially amounted to 

“testi[mony] that [he] was guilty.” He argues such testimony was improper 

7Romero also claims “[t]he prosecutor’s opening statement was 

loaded with improper argument.” Because he does not meaningfully 

develop this argument, we do not address it. See State v. Bolton, 182 Ariz. 

290, 298 (1995) (“Failure to argue a claim on appeal constitutes waiver of 

that claim.”).
STATE v. ROMERO

Opinion of the Court

10

because Rule 704, Ariz. R. Evid., prohibits witnesses “from offering an 

opinion that essentially tells the jury how to decide the case.” Romero 

asserts this prohibition “extends to witnesses telling jurors what may be 

seen in a photograph or video, unless the witness describes specific traits 

about something in the video that the jury would not otherwise know, in 

which case Rule 701[, Ariz. R. Evid.,] may permit a lay opinion.” 

¶27 Before trial, the state moved to admit into evidence 

surveillance video of the incident. The state noted it had “combined 

portions of the video evidence in order to admit it at trial.” It also “digitally 

inserted” colored arrows and a red circle “in the video to note where certain 

people are while the video is playing” but asserted it had not 

“fundamentally alter[ed] the video or impact[ed] the objectiveness of the 

evidence.” The state explained it intended to use the identifiers during trial 

“to help the jury understand who is who and what is what from a testimony 

point of view with the lead detective.” Romero objected, arguing the video 

was not the “best evidence” and was “an artificial creation produced by the 

State from several clips of various video cameras in the parking lot at the 

scene of the crime.” He also asserted that if the video were presented to the 

jury, Rule 106, Ariz. R. Evid., would allow him to present additional 

surveillance footage from various cameras in the parking lot.

¶28 The trial court granted the state’s motion, concluding the 

video “present[ed] relevant information on the issue of whether defendant 

was the person who fired or did not fire a gun.” See Ariz. R. Evid. 401. The 

court further observed “the green, red, and yellow arrows and the red circle 

appear[] to have the purpose of focusing the jury’s attention on certain 

relevant events.” It stated this was the “substantial equivalent of someone 

being allowed to use a pointer to point on an exhibit.” The court also 

concluded the video’s relevance was “not substantially outweighed by the 

danger of unfair prejudice.” See Ariz. R. Evid. 403. 

¶29 During his direct examination of Detective Brumitt, the 

prosecutor presented the surveillance footage including the added arrows 

and circle. The prosecutor pointed out a person in the footage wearing a 

“[w]hite shirt” and “dark pants” and asked Brumitt, “Who is that 

individual?” Brumitt responded, “It’s Mr. Romero.” Brumitt proceeded to 

describe the area covered in the footage as “one of the main rows in the 

parking lot for vehicles to park” before singling out a vehicle “with the 

brake lights on” and stating it was believed to be S.H.’s rental vehicle. 

¶30 The prosecutor subsequently asked Brumitt to describe the 

significance of the red arrow in the footage. He replied, “[B]ased on 
STATE v. ROMERO

Opinion of the Court

11

review[] of the entire video and knowing the chain of events, that’s Mr. 

Romero fighting with—or arguing and pushing with an associate of his he’s 

seen interacting with earlier in the video.” Brumitt continued to describe 

events in the footage to the jury, explaining at one point, “That’s [S.H.] 

walking back towards the vehicle” and confirming once again that the 

vehicle “belonged to the victim.” When another view of the parking lot was 

shown, Brumitt again identified Romero and S.H. and described their 

movements and actions to the jury. At one point, Brumitt described that 

Romero was heading eastbound and, in response, the prosecutor asked, “So 

the arrow was following the guy who just fired shots; right?” Brumitt 

responded, “Yes, sir.” Brumitt continued to identify Romero and the victim 

on the video throughout his testimony. 

¶31 Romero first argues the trial court erred in allowing the 

prosecutor to introduce “copies of the videos that include colored arrows 

depicting what the State believes are in the videos,” apparently suggesting 

the prosecutor committed error by eliciting and relying on the modified 

video evidence during trial. The state asserts the footage introduced by the 

prosecutor only “identif[ied] Romero and the victim at certain points . . .

amidst the other activity in the parking lot.” It asserts the footage “did not 

answer the ultimate question for the jury in the case—whether Romero 

caused the death of [S.H.] and whether he intended or knew that he would 

cause the death of [S.H.] and acted with premeditation.” 

¶32 “Diagrams are widely accepted to illustrate other evidence 

and to assist the jury in understanding testimony.” State v. Doerr, 193 Ariz. 

56, ¶ 47 (1998). The admission of a diagram is within the sound discretion 

of the trial court. Id. We apply the same standard to the markings on the 

footage in this case, and we agree with the trial court’s determination that

the markings on the footage were similar to “someone being allowed to use 

a pointer.” Additionally, when granting the state’s request to introduce its 

video evidence, the court told Romero he could introduce additional 

footage under the rule of completeness, in accordance with Rule 106. 

Admission of the footage with the markings was not improper; the 

prosecutor did not err by introducing it.

¶33 Romero also argues the prosecutor elicited improper opinion 

testimony from Brumitt concerning the locations of Romero and S.H. in the 

footage of the parking lot in violation of Rule 704, which prohibits expert 

witnesses from “stat[ing] an opinion about whether the defendant did or 

did not have a mental state or condition that constitutes an element of the 

crime charged or of a defense.” Additionally, he asserts “the State made no 
STATE v. ROMERO

Opinion of the Court

12

showing that the detectives’ testimony met the standard for lay opinion 

testimony” set forth in State v. King, 180 Ariz. 268 (1994). The footage, 

Romero asserts, was “the only evidence connecting [him] to the killing,” 

aside from four shell casings found in the parking lot. Romero contends 

the prosecutor’s ability to obtain a conviction “hinged on the jury’s belief 

that [he] was the person in a white tee-shirt and dark pants associated with 

the muzzle flashes.” The state contends Brumitt’s testimony regarding the 

video evidence was proper because his “identifications were based on his 

perception and his extensive familiarity with the content of the . . . videos.” 

¶34 To the extent Romero asserts Brumitt was testifying as an 

expert, we disagree. For non-expert witnesses, Rule 701 provides that 

“testimony in the form of an opinion is limited to one that is: (1) rationally 

based on the witness’s perception; (2) helpful to clearly understanding the 

witness’s testimony or to determining a fact in issue; and (3) not based on 

scientific, technical, or other specialized knowledge within the scope of 

Rule 702,” Ariz. R. Evid. When a lay witness draws a reasonable inference 

from his “firsthand knowledge and perceptions of a situation,” the 

testimony is admissible, State v. Ayala, 178 Ariz. 385, 388 (App. 1994), even 

if it goes towards an ultimate issue, so long as it meets the other 

requirements of Rule 701, Doerr, 193 Ariz. 56, ¶ 26. Nevertheless, “opinion 

evidence is usually not permitted on how the jury should decide the case.”

Fuenning v. Superior Court, 139 Ariz. 590, supp. op., 139 Ariz. 603, 605 (1983). 

¶35 Here, even assuming Brumitt’s testimony concerning the 

identity of the person depicted in the video amounted to inadmissible 

opinion testimony,8 we reject Romero’s argument. His overarching 

argument on appeal is prosecutorial error, not that the trial court erred in 

permitting the challenged testimony. Not every trial error amounts to 

prosecutorial error merely because it involves evidence presented by a 

prosecutor. See Murray, 250 Ariz. 543, ¶ 13. Romero fails to cite any 

pertinent legal authority establishing that eliciting the testimony in 

question, even if improper, constitutes prosecutorial error. See Vargas, 

249 Ariz. 186, ¶¶ 14-15 (defendant bears burden of persuasion to show 

prosecutorial error occurred for each allegation and must cite legal 

8Even assuming without deciding Brumitt could have rationally 

perceived Romero was the individual shown in the video firing a handgun 

at S.H., Brumitt’s testimony added nothing to the jury’s understanding of 

the footage that they could not have deduced themselves from watching it 

and listening to the testimony of other witnesses. 
STATE v. ROMERO

Opinion of the Court

13

authority establishing alleged errors constitute prosecutorial error); Ariz. R. 

Crim. P. 31.10(a)(7)(A) (opening brief must contain “contentions with 

supporting reasons” and “citations of legal authorities” relied upon). As 

such, his argument fails.

2. Improper NIBIN testimony

¶36 Romero argues the prosecutor knowingly committed error by 

eliciting “NIBIN evidence through nonexpert detectives.” Romero relies on 

State v. Cisco, No. 2 CA-CR 2019-0065 (Ariz. App. Mar. 9, 2020) (mem. 

decision), an unpublished and therefore non-precedential decision, and 

cites multiple instances in which the state elicited testimony here that 

NIBIN had shown a “match” or “correlation” between shell casings found 

in the parking lot of the nightclub and shell casings expended during a test 

fire of Romero’s gun. In Cisco, we determined using NIBIN to reach the 

“conclusion that the shell casings matched the gun . . . requires scientific, 

technical, or other specialized knowledge and therefore required 

assurances that it was reliable.” Id. ¶ 11 (emphasis added). Here, Romero 

claims Cisco is not only instructive on this specific issue but establishes the 

prosecutor in this case “should have been aware that nonexpert police 

officers cannot testify about NIBIN’s accuracy” because he was also the 

prosecutor in Cisco. Romero asserts that “[t]o the extent [the prosecutor] 

was not aware, it amounts to deliberate ignorance.” 

¶37 At trial, the prosecutor—by way of a leading question—asked 

Detective Brumitt whether the gun found in Romero’s car had been “NIBIN 

compared” against shell casings collected from the parking lot of the 

nightclub and whether there had been “enough information to say that 

there was a match.” Brumitt responded affirmatively. The prosecutor 

again asked Brumitt about the NIBIN match in the following exchange: 

Q Ultimately after the NIBIN connection, 

which is the ballistics connection between the 

shell casings that you’ve described as matching 

each other—

A Yes, sir.

Q —on the gun and on the scene, NIBIN also 

supported that; is that correct?

A Yes, sir.
STATE v. ROMERO

Opinion of the Court

14

¶38 The prosecutor also asked TPD Detective Simmons—another 

detective assigned to the investigation—whether evidence in this case had 

been submitted to NIBIN. Simmons testified he had submitted one “nine

millimeter . . . Winchester branded cartridge case[]” collected from the 

parking lot of the nightclub for NIBIN analysis. The prosecutor also asked 

Simmons whether he “remember[ed] any of the results from that,” and the 

detective responded that he “believe[d] there was a correlation for the nine 

millimeter case,” indicating “an investigative lead . . . that there was an item 

that was put into NIBIN [that] matched another item.” The prosecutor 

again asked the detective whether NIBIN had shown a “correlation” 

between the shell casings collected in the parking lot and the test-fired 

casing from Romero’s gun, and the detective confirmed that it had. On 

redirect, the prosecutor once again asked Simmons—in leading fashion—

“You also are aware that the gun that was used in those four shell casings 

shooting was a match?” The detective responded, “Yes.” 

¶39 Only one of the state’s witnesses, TPD Criminalist Dittemore, 

was qualified to testify as a ballistics expert during trial.9 The prosecutor 

did not ask Dittemore any questions related to NIBIN matching, and 

Dittemore testified only as to her own comparison analysis and her 

conclusion that the four cartridge cases had all been fired from the gun 

found in Romero’s car. 

¶40 Under Rule 702, “A witness who is qualified as an expert by 

knowledge, skill, experience, training, or education may testify in the form 

of an opinion or otherwise” if (1) the expert’s knowledge will help the trier 

of fact understand the evidence or determine a fact in issue; (2) the 

testimony is “based on sufficient facts or data”; (3) the testimony is the 

“product of reliable principles and methods”; and (4) the expert has reliably 

applied the principles and methods to the facts of the case. Trial courts 

“should serve as gatekeepers in assuring that proposed expert testimony is 

reliable and thus helpful to the jury’s determination of facts at issue.” Ariz. 

R. Evid. 702 cmt. to 2012 amend. Here, Romero argues, and the state 

concedes, that a detective may not testify on ballistics matching unless he 

9The state asserts on appeal that Simmons was “a TPD detective 

specializing in guns,” however, it does not clarify what that means nor 

argue that he is a ballistics expert. Simmons merely testified that, at the 

time of the shooting, he was assigned to the Gun Crime Reduction Unit, 

which does not necessarily equate to expertise in the forensic analysis of 

firearms and ammunition. 
STATE v. ROMERO

Opinion of the Court

15

or she is first qualified as an expert. See Cisco, No. 2 CA-CR 2019-0065, 

¶¶ 10-11; State v. Romero, 236 Ariz. 451, ¶¶ 11-16 (App. 2014), vacated in part 

on other grounds, 239 Ariz. 6, ¶ 31 (2016) (firearms identification evidence 

admissible through expert testimony under Rule 702). 

¶41 The state, however, argues “Romero has not met his burden 

of showing that the prosecutor violated the holding of Cisco” because the 

prosecutor “did not mislead the jury into believing that the NIBIN results 

were definitive.” It contends that, “unlike in Cisco,” the word “match” was 

used “in a context in which the jury would know that the NIBIN results 

were not definitive,” and the prosecutor’s opening statement informed the 

jury that confirmatory and other testing is done “in the laboratory setting, 

because the NIBIN is [a] kind of a database.” (Alteration in answering 

brief.) And, the state argues, the prosecutor “indicated that an ‘absolute’ 

match must be determined by the TPD ballistics expert.” 

¶42 Detectives Brumitt and Simmons were not qualified as 

ballistics experts at trial. Thus, assuming their testimony amounted to 

opinions concerning the NIBIN results, as opposed to unobjected-to 

hearsay about an analysis they did not conduct, it violated Rule 702. See

Cisco, No. 2 CA-CR 2019-0065, ¶¶ 10-11; Romero, 236 Ariz. 451, ¶¶ 11-16. 

And, even though Cisco is an unpublished memorandum decision, the 

prosecutor in this case was the prosecutor in Cisco. Therefore, he knew or 

reasonably should have known that the introduction of NIBIN testimony 

through unqualified detectives had been found to be improper; we 

conclude that his repeated elicitation of such testimony in this case

constituted prosecutorial error. See State v. Dansdill, 246 Ariz. 593, n.11 

(App. 2019) (where appeal had been filed and fully briefed by another 

criminal defendant challenging similar statements made by the same 

prosecutor, remarks in later case “may have been a calculated strategy 

deployed by this prosecutor”); cf. Pool v. Superior Court, 139 Ariz. 98, 107 

(1984) (“The conduct of the prosecutor was egregiously incorrect to the 

extent that we must infer that the questions were asked with knowledge 

that they were improper.”). 

B. Inadmissible hearsay

¶43 Romero also argues eliciting “inadmissible hearsay” from 

Detective Brumitt constituted prosecutorial error. Hearsay is an out-ofcourt statement offered “in evidence to prove the truth of the matter 

asserted,” Ariz. R. Evid. 801(c), and is inadmissible unless an exception to 

the rule against hearsay applies, Ariz. R. Evid. 802. 
STATE v. ROMERO

Opinion of the Court

16

¶44 At trial, the prosecutor informed the court that it planned to 

call Brumitt as its first witness “to get the primary points across” and to call 

him again at the conclusion of its case to testify to “final details.” The 

prosecutor stated this would allow the state’s witnesses traveling from out 

of town “to get on the stand today and get some information to the jury.” 

Over Romero’s objection to Brumitt providing an initial “superficial 

presentation” of the case, the court stated it would allow the state to present 

Brumitt’s testimony “in two separate stages or phases conditioned upon 

there . . . not being avoidable duplication.” 

¶45 Brumitt subsequently testified, “I was advised that there was 

an altercation that had happened at [the nightclub]. A large group of males 

and females were approached and three individuals got into a fight. The 

fight spread out to various areas within the parking lot.” He continued, 

“[O]fficers had inferred that a male had fired [a gun] several times at” S.H., 

who “was then transported by an unknown male to [a hospital], and 

dropped off there.” Brumitt testified the license plate on the car that had 

dropped S.H. off at the hospital “came back to a rental vehicle with a 

California license plate.” Additionally, Brumitt described what he had 

learned from another officer about the pursuit of Romero and later 

confirmed Romero had “elud[ed] police, crashe[d] into a fence, [and was] 

apprehended by police.” Finally, Brumitt testified four shell casings found 

in the parking lot of the nightclub “matche[d] the firearm taken from . . .

Romero.” 

¶46 Romero asserts on appeal that the above testimony 

constitutes hearsay because it involved information Brumitt had learned 

from other officers in the course of the investigation, and prosecutors “have 

a duty to follow the rules of evidence and avoid purposefully eliciting” such 

testimony. Further, he argues, “‘Course of investigation’ evidence is not 

admissible as a hearsay exception because it is offered to prove the truth of 

the matter.” Although he admits that much of the evidence introduced 

through Brumitt’s testimony “was admissible through other means,” he 

argues that by introducing it through Brumitt, “the prosecutor used his 

witnesses to vouch for others and reinforced their credibility.” 

¶47 The state asserts the trial court “expressly permitted the 

prosecutor to use Brumitt’s initial testimony to provide a brief overview of 

the case.” Further, relying on State v. Hernandez, 170 Ariz. 301, 307 (App. 

1991), the state appears to suggest Brumitt’s testimony did not constitute 

hearsay because it merely “showed how events unfolded” and was not 

offered for its truth. And, “to the extent that Brumitt’s testimony included 
STATE v. ROMERO

Opinion of the Court

17

any hearsay,” the state argues it was either “immaterial or followed by a 

witness with personal experience who testified to the material fact and 

therefore was not prejudicial.” 

¶48 However, even assuming Brumitt’s testimony was not 

admissible under any hearsay exception or exclusion, Romero fails to cite 

pertinent legal authority establishing that elicitation of this testimony 

constituted prosecutorial error—especially in light of the trial court allowing 

Brumitt to provide summary testimony at the start of the case. See Vargas, 

249 Ariz. 186, ¶¶ 14-15; Ariz. R. Crim. P. 31.10(a)(7)(A). We therefore reject 

his claim of prosecutorial error arising from the elicitation of hearsay. 

C. Leading questions

¶49 Romero argues the prosecutor improperly “used leading 

questions to testify to the jury” and “led most of his witnesses through th[e]

trial.” He contends that because the witnesses “mere[ly] acquiesce[d] to the 

prosecutor’s assertions,” “the jury heard the lion’s share of evidence from 

the mouth of the prosecutor rather than from the State’s witnesses.” In 

support of his argument, Romero points to the fact that Detective Brumitt, 

the lead detective, answered, “Yes, sir,” or a variation thereof, in response

to the prosecutor’s questions more than 100 times during direct and redirect 

examination. The state counters that, to the extent the prosecutor used 

leading questions in his examination of Brumitt, those questions were used 

“simply to move quickly through the general background of the case” 

before other “individual witnesses . . . testif[ied] to their portion of the 

investigation.” The state argues the trial court has discretion to allow 

leading questions, especially absent an objection, and in any event, the 

testimony Romero challenges “was received through proper questioning 

either earlier or later in the trial.” 

¶50 Additionally, the state points out Romero has not specified 

which questions he is challenging as improper and “has not indicated how 

each question put the answer into the mouth of the witness.” As such, the 

state contends, Romero has waived his argument on appeal. Assuming 

without deciding the state is correct, we may forgo application of the waiver 

rule “when justice requires.” State v. Clark, 249 Ariz. 528, ¶ 17 (App. 2020) 

(quoting Liristis v. Am. Fam. Mut. Ins. Co., 204 Ariz. 140, ¶ 11 (App. 2002)). 

In our discretion, we address Romero’s argument. 

¶51 Leading questions are questions that suggest an answer. State 

v. Payne, 233 Ariz. 484, ¶ 119 (2013). “A question is not leading just because 

the answer is obvious.” State v. Agnew, 132 Ariz. 567, 577 (App. 1982). 
STATE v. ROMERO

Opinion of the Court

18

Generally, leading questions “should not be used on direct examination 

except as necessary to develop the witness’s testimony.” Ariz. R. Evid. 

611(c). Although leading questions are generally prohibited on direct 

examination, the general prohibition is not absolute, and a trial court may, 

at its discretion, allow a party to ask leading questions of its own witness. 

State v. Duffy, 124 Ariz. 267, 273-74 (App. 1979); see Payne, 233 Ariz. 484, 

¶ 119 (leading questions may be permitted where justice requires). In 

determining whether to allow leading questions, a court should take into 

consideration “the complexity of the issues and facts,” and “whether such 

questions are foundational in nature” or are “necessary to develop 

testimony.” Duffy, 124 Ariz. at 274. 

¶52 Here, Romero did not object to the prosecutor’s extensive use 

of leading questions at any point during trial, and the court never sua sponte

prohibited the prosecutor from leading the state’s witnesses. Many of the 

prosecutor’s questions asked over the course of the four-day trial were 

either not leading or could be characterized as foundational or necessary to

develop testimony. Nevertheless, we conclude the prosecutor erred several 

times in asking leading questions that included elements necessary to 

establishing Romero’s guilt. Particularly troubling was the prosecutor’s use 

of leading questions during Brumitt’s testimony about the surveillance 

footage in the following exchange:

Q So do you see the video, obviously, in front 

of you and do you see a subject in that video?

A Yes, sir.

Q White shirt, dark pants?

A Yes, sir.

Q White shoes?

A Yes, sir.

Q Who is that individual?

A It’s Mr. Romero. 

¶53 The prosecutor continued to lead Brumitt through his 

testimony about the surveillance footage, asking, “What do you see there; 

muzzle flashes?” Brumitt answered affirmatively. He had not previously 

testified during trial that he observed “muzzle flashes” in the grainy 
STATE v. ROMERO

Opinion of the Court

19

footage. And the prosecutor continued to ask leading questions that 

included information Brumitt had not yet volunteered:

Q So the arrow was following the guy who 

just fired shots; right?

A Yes, sir.

Q Where is he going? Did you see anything 

in his hand?

A Yes, sir. In his right hand it appears to be 

an object with—how he would hold a pistol in 

his right hand.

Q And you see the same guy, white shirt, 

dark pants, white shoes, gun in hand?

A Yes, sir.

Q About [to] get into a vehicle . . . ?

A Yes, sir.

Q So right behind him you see a guy shooting 

up into the air; correct?

A Yes, sir. 

¶54 On the fourth day of trial, the state again called Brumitt to the 

stand: 

Q I want to start with the first. I’m going to 

go frame by frame on a couple of these. Do you 

see where the green arrow is denoting an 

individual?

A Yes, sir. That’s [S.H.], the victim in this 

case.

Q And just so we’re clear for the record and 

for the jury, this is the same area we’ve been 

discussing throughout the entirety of the trial 
STATE v. ROMERO

Opinion of the Court

20

with the rental vehicle by [S.H.], that’s his 

vehicle there?

A Yes, sir. The headlights and taillights are 

to the Chevy Impala that was rented to [S.H.]. 

He’s currently on my—I’ve watched this video 

many, many times. This is a series of him 

walking along the driver’s side of the car. The 

driver’s side is away from the view of the 

camera.

Q He’s still alongside the Impala?

A Yes, sir. He’s still on the far side of the 

vehicle.

Q Into the frame do you see [a] muzzle flash?

A Yes, sir, arm extended.

Q And—

A Appears to be a muzzle flash to me.

Q My arrow went away for some reason.

A Arm is still extended. Another muzzle 

flash.

Q And do you see the victim go down?

A I—my eyes do see a dark object appear to 

kind of fall with the series of this. See the arm 

extended and the repeated muzzle flashes, 

yeah. When it’s done in rapid sequence, the fall 

of that dark object which previously I could 

identify as matching the clothing description of 

[S.H.] starts to go down.

Q He goes down right there. Do you see it?

A Yes, sir, I do.
STATE v. ROMERO

Opinion of the Court

21

Q And he is walking away from that suspect; 

correct?

A Yes, sir, he is. 

¶55 Additionally, the prosecutor led Brumitt through testimony 

as to whether there had been a NIBIN match, asking, “So when [TPD] had 

the weapon retrieved from the vehicle of Mr. Romero, it was NIBIN 

compared; correct?” After Brumitt confirmed there had been a NIBIN 

comparison, the prosecutor asked, “And there was enough information to 

say that there was a match between some shell casings located at the 

scene?” Brumitt again answered affirmatively. 

¶56 Further, during the prosecutor’s redirect examination of 

Detective Simmons, the following exchange occurred:

Q You’ve got four shell casings that match a 

gun; correct?

A Correct.

Q You’ve got a shooting scene that is very 

specific, on video the suspect shooting multiple 

times at that victim?

A Yes.

Q You have a Chevy Impala that ends up at 

the hospital 15 minutes later with the 

deceased—soon to be deceased victim; correct?

A Yes.

Q You follow the video, you see a guy walk 

to the car, get in the car with a black object in his 

hand; correct?

A I don’t remember that part.

Q You are aware that [officers] stop[] a car 

after a pursuit?

A Yes.
STATE v. ROMERO

Opinion of the Court

22

Q And that suspect is here in the courtroom 

today?

A Yes.

Q You also are aware that the gun that was 

used in those four shell casings shooting was a 

match?

A Yes. 

¶57 Although, as noted, a question is not leading merely because 

the answer is obvious, Agnew, 132 Ariz. at 577, “[w]hat is desired is that the 

trier hear what the witness perceived, not the acquiescence of the witness 

in counsel’s interpretation of what he perceived,” State v. McKinney, 

185 Ariz. 567, 575 (1996) (alteration in McKinney) (quoting Morris K. Udall 

et al., Arizona Practice: Law of Evidence § 33 (3d ed. 1991)). It is next to 

impossible to conceive of any legitimate need for the prosecutor’s 

widespread use of leading questions when examining experienced 

detectives concerning the substantive aspects and elements of the case. Cf.

State v. Godsoe, 107 Ariz. 367, 370-71 (1971) (leading questions permissible 

where witness is a minor or the subject matter is of a “delicate nature”). 

Because the record reflects a use of leading questions so pervasive, so 

unnecessary, and so often employed in a manner that approached the 

prosecutor’s own testimony concerning facts central to Romero’s 

identification, we conclude the prosecutor’s conduct constitutes 

prosecutorial error. 

D. Burden shifting

¶58 Romero argues that, during “most of [the state’s] crossexaminations,” the prosecutor “focused on the ability of the Public 

Defender’s Office to do the investigation that police should have done.” In 

support of his argument, Romero points to the prosecutor’s repeated 

questioning of two defense investigators as to whether they could have—

and why they failed to—“visit scenes,” “talk to witnesses,” “talk to family 

members,” “find girlfriends,” or otherwise “find, locate, and serve 

witnesses and interview them.” Romero argues this line of questioning 

“incited a juror” to ask, “Why didn’t anyone a[t the] Public Defender’s 

Office look for witnesses and interview them if they have the ability?” 

¶59 Romero acknowledges that, “[i]n limited circumstances, the 

prosecution may comment on the defense’s failure to present exculpatory 
STATE v. ROMERO

Opinion of the Court

23

evidence that would substantiate the defendant’s theory of the case,” and 

“when defense counsel’s closing argument raises an issue for which there 

is no evidentiary support, the prosecutor may properly rebut that.” But 

Romero contends nothing “allows a prosecutor to elicit testimony and then 

argue to the jury that the defense should have conducted an investigation 

to demonstrate innocence.” 

¶60 “When a prosecutor comments on a defendant’s failure to 

present evidence to support his or her theory of the case, it is neither 

improper nor shifts the burden of proof to the defendant so long as such 

comments are not intended to direct the jury’s attention to the defendant’s 

failure to testify.” State v. Sarullo, 219 Ariz. 431, ¶ 24 (App. 2008); see State 

ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160 (1987) (“Even where the 

defendant does not take the stand, the prosecutor may properly comment 

on the defendant’s failure to present exculpatory evidence which would 

substantiate defendant’s story . . . .”). 

¶61 Further, comments “invited and prompted by opposing 

counsel’s arguments are not improper if they are reasonable and pertinent.” 

Acuna Valenzuela, 245 Ariz. 197, ¶ 88 (quoting State v. Trostle, 191 Ariz. 4, 16 

(1997)); see Dansdill, 246 Ariz. 593, ¶ 44 (prosecutor entitled to rebut defense 

counsel’s arguments about missing evidence and witnesses). These 

comments, however, should not extend “beyond a fair response to defense 

statements.” Acuna Valenzuela, 245 Ariz. 197, ¶ 90. 

¶62 Here, defense counsel repeatedly questioned the state’s lack 

of investigation into additional witnesses on the second day of trial and 

reiterated this failure again on closing. Thus, the state’s questioning of the 

defense investigators on the fourth day of trial was not improper. See id. 

¶ 88; Sarullo, 219 Ariz. 431, ¶ 24 (prosecutor did not shift burden of proof 

by arguing defendant had failed to call expert witnesses to support his 

theory); State v. Lehr, 201 Ariz. 509, ¶¶ 55-57 (2002) (rejecting defendant’s 

claim that state’s question whether experts outside police department could 

evaluate fingerprints shifted burden to defendant to prove his innocence). 

No prosecutorial error occurred.

E. Cumulative effect

¶63 Our justice system reflects “a rule of law based upon the 

principle that officers of the law are bound by and must act within the law, 

even though the necessity of so doing may put them at a disadvantage in 

dealing with criminals or those accused of crime.” Pool, 139 Ariz. at 103. A 

prosecutor’s “unique role” in our “system is recognized in ER 3.8, [Ariz. R. 
STATE v. ROMERO

Opinion of the Court

24

Sup. Ct. 42,] ‘Special Responsibilities of a Prosecutor,’ which states that ‘[a] 

prosecutor has the responsibility of a minister of justice and not simply that 

of an advocate,’ and has the duty to ‘see that the defendant is accorded 

procedural justice, that guilt is decided upon the basis of sufficient 

evidence, and that special precautions are taken to prevent and to rectify 

the conviction of innocent persons.’” In re Martinez, 248 Ariz. 458, ¶ 8 (2020)

(first alteration added, second alteration in Martinez). 

¶64 Against this backdrop, Romero argues the cumulative effect 

of the prosecutorial error in this case compels a new trial. Romero has 

shown prosecutorial error existed, as detailed above, thereby establishing 

the “first step” in fundamental error review. Vargas, 249 Ariz. 186, ¶ 12 

(quoting State v. Escalante, 245 Ariz. 135, ¶ 21 (2018)). We therefore now 

consider whether the cumulative error was fundamental. Id. Our supreme 

court has directed that, “[c]onsistent with the third prong of Escalante, a 

defendant claiming cumulative error based on prosecutorial misconduct 

need not separately assert prejudice,” id. ¶ 13, because such errors are 

fundamental when “the error was so egregious that [the defendant] could 

not possibly have received a fair trial,” id. ¶ 12 (quoting Escalante, 245 Ariz. 

135, ¶ 21). In other words, the cumulative error must have “so infected the 

trial with unfairness as to make the resulting conviction a denial of due 

process.” Robinson, 253 Ariz. 121, ¶ 64 (quoting Payne, 233 Ariz. 484, ¶ 106); 

see also State v. Hughes, 193 Ariz. 72, ¶ 26 (1998) (reversal requires conduct 

that “permeates the entire atmosphere of the trial” (quoting State v. Atwood, 

171 Ariz. 576, 611 (1992))).

¶65 We disagree with Romero that the cumulative effect of the 

prosecutorial error detailed above “so infected the trial with unfairness” 

that it amounted to a denial of due process requiring reversal. Robinson, 

253 Ariz. 121, ¶ 64 (quoting Payne, 233 Ariz. 484, ¶ 106). This third prong 

of the test for fundamental error can include errors that “go[] to the 

‘foundation of a case’ if [they] relieve[] the prosecution of its burden to 

prove a crime’s elements, directly impact[] a key factual dispute, or 

deprive[] the defendant of constitutionally guaranteed procedures.” 

Escalante, 245 Ariz. 135, ¶ 18. It can also encompass errors that “deprive[]

the defendant of a constitutional or statutory right necessary to establish a 

viable defense or rebut the prosecution’s case,” id. ¶ 19, or errors that do all 

of these things, id. ¶ 20. But cumulative error must “so profoundly distort 

the trial that injustice is obvious without the need to further consider 

prejudice.” Id. This is a very demanding standard, which we cannot say 

Romero met in this case. Id. ¶ 31 (appellate relief for fundamental error

rare).
STATE v. ROMERO

Opinion of the Court

25

¶66 Viewing the facts in the light most favorable to sustaining the 

jury’s verdicts, as we must, Fierro, 254 Ariz. 35, ¶ 2, neither the prosecutor’s 

leading questions nor his erroneous use of non-expert testimony had any 

of the above effects on the trial as a whole. Like in Cisco, in which we found 

prosecutorial error harmless, “ample other ballistics evidence showed that 

[Romero]’s gun had fired the fatal shots,” so that the NIBIN testimony 

resulting from prosecutorial error was not the only evidence on the point. 

No. 2 CA-CR 2019-0065, ¶ 17. The record includes video clearly showing 

Romero standing near the nightclub’s exit shortly before the shooting. The 

video footage of the parking lot, although grainy, establishes where the 

shooting occurred and shows the shooter—who, at the very least, closely 

resembles Romero—walking to a point immediately adjacent to Romero’s 

car. It also shows Romero’s car leaving the parking lot moments later, and 

a sheriff’s deputy attempting to initiate a traffic stop. 

¶67 Dittemore, the only ballistics expert who testified at trial,

independently analyzed the shell casings found where the shooting had 

occurred and concluded they had been fired from Romero’s gun, which was 

found on the floorboard of Romero’s car when he was arrested after the 

pursuit. See Escalante, 245 Ariz. 135, ¶ 34 (“amount of error-free evidence” 

supporting guilty verdict pertinent to “whether, without the error, a 

reasonable jury could have reached a different result”). Further, the 

detectives never attempted to explain in detail how NIBIN works, never 

indicated they had conducted the NIBIN comparison themselves, and 

never suggested NIBIN was infallible. And the prosecutor never 

mentioned NIBIN in his closing argument. See Cisco, No. 2 CA-CR 2019-

0065, ¶¶ 14-17 (prosecutorial error did not affect verdict where ample other 

evidence properly introduced, including bullet removed from victim’s 

body that matched defendant’s gun). In view of this evidence, Romero has 

not met his burden to show that “injustice is obvious.” Escalante, 245 Ariz. 

135, ¶ 20.

¶68 Finally, our colleague’s thoughtful dissent illuminates the 

lingering murkiness encountered when addressing claims of cumulative 

prosecutorial error.

10 Perhaps this case provides an opportunity for our 

10The manner in which this case was tried was, at the very least, 

puzzling. In addition to the actions of the prosecutor, Romero’s trial 

counsel made almost no objections—a fact his appellate counsel noted with 

visible frustration at oral argument in this court. Further, the trial court

never acted sua sponte to address the extensive use of leading questions by 

the prosecutor. See Pool, 139 Ariz. at 104 (trial judge not merely “passive 
STATE v. ROMERO

Opinion of the Court

26

supreme court to provide further guidance. In any event, the dissent 

diminishes the demanding nature of obtaining relief for cumulative 

prosecutorial error. Our colleague’s seemingly forgiving analysis is 

difficult to reconcile with our supreme court’s requirement that the 

cumulative effect of the prosecutorial error “so infect[] the trial with 

unfairness as to make the resulting conviction a denial of due process” 

requiring reversal. Robinson, 253 Ariz. 121, ¶ 64 (quoting Payne, 233 Ariz. 

484, ¶ 106). 

Disposition

¶69 For the foregoing reasons, we affirm Romero’s convictions 

and sentences.

O’ N E I L, Judge, concurring in part: 

¶70 I concur in the result but disagree that any leading questions, 

without an objection or corrective action by the trial court, were 

prosecutorial error. I am also unable to criticize the court’s decision not to 

sua sponte intervene in the proceedings to prevent leading questions. I 

agree with the carefully reasoned opinion in all other respects, concluding 

that the NIBIN testimony was improper prosecutorial error but not 

fundamental error.

¶71 I also write separately to address the confusion that is, no 

doubt, evident from reading both this opinion and our colleague’s 

characteristically thoughtful dissent. We have said before, and in this 

opinion we have stated again, that not every error in a criminal trial is 

prosecutorial error. See State v. Shortman, 254 Ariz. 338, ¶ 21 (App. 2022); 

State v. Aguilar, 217 Ariz. 235, ¶ 11 (App. 2007). We have offered little 

guidance, however, to explain the difference. As a result, in the absence of 

a broader doctrine of cumulative trial error, see State v. Ellison, 213 Ariz. 116, 

¶ 59 (2006), it seems that we have inadvertently invited every purported 

error that goes without objection at trial to be clothed on appeal in the often 

ill-fitting garb of cumulative prosecutorial error. 

¶72 As we note, cumulative prosecutorial error sits within the

framework of fundamental error review. See State v. Vargas, 249 Ariz. 186, 

observer” and “has an affirmative duty to conduct the trial in such a way 

as to carry out the goals of the rules” (quoting 1 Morris K. Udall & Joseph 

M. Livermore, Arizona Practice: Law of Evidence § 33, at 51 (2d ed. 1982))). 
STATE v. ROMERO

Opinion of the Court

27

¶ 14 (2020). As our dissenting colleague also helpfully explains, under that 

framework, a claim of cumulative prosecutorial error must satisfy the first 

step of fundamental error review by establishing that prosecutorial error 

occurred. See id. It must then satisfy the second step by showing that the 

errors cumulatively were of such magnitude that the defendant could not 

possibly have received a fair trial. See id. That showing automatically 

satisfies the third step, which would otherwise involve a separate showing 

of prejudice. See id. ¶ 13. Thus, a cumulative prosecutorial error claim 

involves a two-step test. There is confusion at both steps.

¶73 First, the distinction between prosecutorial error and other 

kinds of trial error is less than clear. This opinion correctly identifies the 

basic rule that prosecutorial error “broadly encompasses any conduct that 

infringes a defendant’s constitutional rights.” State v. Murray, 250 Ariz. 543, 

¶ 12 (2021) (emphasis added in Murray) (quoting In re Martinez, 248 Ariz. 

458, ¶ 45 (2020)). Some errors undermine those rights by their very nature. 

E.g., id. ¶ 19 (prosecutorial error to dilute reasonable-doubt standard). But 

for cumulative prosecutorial error, which depends on the cumulative effect 

of individual errors that may not independently implicate any of a 

defendant’s constitutional rights, that rule can be more difficult to apply. 

See State v. Hughes, 193 Ariz. 72, ¶¶ 31, 42-46, 52-53, 59, 70, 74 (1998) 

(recognizing cumulative prosecutorial error claim may exist where no

individual error warrants reversal).

¶74 Another panel of this court recently opined that prosecutorial 

error “require[s] the prosecutor to err intentionally knowing it is improper 

and prejudicial.” Shortman, 254 Ariz. 338, ¶ 21. That language may 

overstate the case somewhat, but at least in the context of cumulative 

prosecutorial error, I think it strikes near the mark. After all, although our 

supreme court has expressed “the general rule that several non-errors and 

harmless errors cannot add up to one reversible error,” a pattern of 

pronounced and persistent errors that “permeates the entire atmosphere of 

the trial” may well speak to a prosecutor’s intent to deprive a defendant of 

a fair trial. Hughes, 193 Ariz. 72, ¶¶ 25-26, 31-33. Thus, when a prosecutor’s 

conduct throughout a trial is so pervasively improper that it indicates an 

“indifference, if not a specific intent, to prejudice the defendant,” his 

cumulative actions amount to prosecutorial error even if no individual act 

does. Pool v. Superior Court, 139 Ariz. 98, 108-09 & 109 (1984). This approach 

to reviewing prosecutorial error focuses on the nature of the prosecutor’s 

conduct, and it avoids converting cumulative prosecutorial error into a 

vehicle for asserting what really amount to broader claims of cumulative

trial error. See Ellison, 213 Ariz. 116, ¶ 59 (rejecting cumulative error 
STATE v. ROMERO

Opinion of the Court

28

doctrine outside the context of prosecutorial error). As the dissent makes 

clear, however, this approach appears to stand on uncertain footing because

Martinez arguably eliminated intent from consideration in claims of 

prosecutorial error. See 248 Ariz. 458, ¶¶ 45-47. 

¶75 I do not read Martinez that way. I do not think Martinez

changed the standard for prosecutorial error, whether individual or 

cumulative. Rather, it cautioned courts against using the word 

“misconduct,” which may suggest ethical culpability, for conduct that 

might have amounted only to “inadvertent error or innocent mistake.” 

Id. ¶¶ 45, 47. In State v. Robinson, 253 Ariz. 121, ¶ 68 (2022) (quoting State v. 

Lynch, 238 Ariz. 84, ¶ 6 (2015), rev’d, 578 U.S. 613, 616-17 (2016)), our 

supreme court indicated that “the legal impropriety of [a] prosecutor’s 

questions and actions” cannot “rise[] to the level of prosecutorial error” if 

performed without “the requisite ‘indifference, if not a specific intent, to 

prejudice’” the defendant. Indifference or intent was relevant to our 

analysis before Martinez, and Robinson confirms its continued relevance 

today. See State v. Riley, 248 Ariz. 154, ¶ 158 (2020) (requiring indifference 

or intent in claim of cumulative prosecutorial misconduct); Hughes, 193 

Ariz. 72, ¶ 31.

¶76 Second, although we have asserted that the second step of 

fundamental error review in a cumulative prosecutorial error case is 

demanding, we have not consistently articulated that standard in a manner 

that distinguishes it from a typical showing of prejudice. See State v. 

Escalante, 245 Ariz. 135, ¶ 20 (2018) (requiring “egregious” error that “must 

so profoundly distort the trial that injustice is obvious without the need to 

further consider prejudice”). My dissenting colleague illustrates the 

problem when he suggests that the second step may be satisfied with a 

showing that is “almost identical to the prejudice standard we apply at step 

three” of our usual fundamental error review.

¶77 According to Escalante, 245 Ariz. 135, ¶¶ 20-21 & 20, a 

separate showing of prejudice is not required if a defendant satisfies step 

two of fundamental error review by showing that the error was “so 

egregious that a defendant could not possibly have received a fair trial.” 

With such a showing, a defendant “has shown both fundamental error and 

prejudice.” Id. ¶ 21. But for cumulative prosecutorial error, the analysis 

proposed in the dissent seems simply to replace step two with step three, 

requiring only prejudice. Thus, although I applaud my colleague’s offer of 

clarity, I cannot join his analysis. A claim of prosecutorial error cannot 

escape the standards of fundamental error review as set forth in Escalante. 
STATE v. ROMERO

Opinion of the Court

29

To warrant reversal, cumulative prosecutorial error must be both 

fundamental and prejudicial.

S K L A R, Judge, dissenting: 

¶78 This case turns on whether Dimitri Romero was the shooter. 

I agree with the majority that the prosecutor engaged in prosecutorial error 

relating to this issue. But I disagree with the majority on two issues, and 

that disagreement leads me to conclude that a new trial is required. First, 

unlike the majority, I believe the prosecutorial error included the elicitation 

of lay-opinion testimony from Detective Brumitt. That testimony identified 

Romero as the shooter based solely on the video footage, which was equally 

available to the jury. 

¶79 Second, I believe the majority imposes an improperly high 

burden upon Romero to demonstrate that the error deprived him of a fair 

trial. I do not believe Romero is required to demonstrate a “profound 

distort[ion of] the trial such that injustice is obvious.” Rather, I believe his 

burden is to show that the cumulative errors “so infected the trial with 

unfairness as to make the resulting conviction a denial of due process” and 

“could have affected” the verdict. 

¶80 I also believe Romero has satisfied that standard. Two of the 

prosecutorial errors—the lay-opinion testimony and leading questions—

tilted in the state’s favor the central question of whether Romero was the 

shooter. These errors were exacerbated by the improper NIBIN testimony. 

I therefore respectfully dissent.

I. Standard of review

¶81 We review for fundamental error only, in light of Romero’s 

failure to object at trial, which I agree with the majority was puzzling. State 

v. Escalante, 245 Ariz. 135, ¶ 12 (2018). Our general framework for 

fundamental-error review is set forth in Escalante. Id. ¶ 13. Escalante’s 

three-step framework requires us to determine: (1) whether error exists; (2) 

whether the error is fundamental; and (3) whether the defendant has 

established prejudice. Id. ¶ 21. At the second step, errors are fundamental 

if they fit one of three categories, namely, that they: (1) go to the foundation 

of the case; (2) take from the defendant a right essential to his defense; or 

(3) are of such magnitude that the defendant could not possibly have 

received a fair trial. Id. ¶¶ 16-20. Errors in the third category do not require 

a separate prejudice analysis. Id. ¶¶ 20-21. They automatically require a 

new trial. Id.
STATE v. ROMERO

Opinion of the Court

30

¶82 In State v. Vargas, 249 Ariz. 186, ¶ 14 (2020), our supreme court 

applied Escalante’s standard to cumulative-prosecutorial-error cases. In 

such cases, once prosecutorial error has been established, the defendant 

need not establish that each individual error was fundamental. Id. Nor 

must the defendant demonstrate that the errors cumulatively fit within one 

of Escalante’s three categories. Instead, Vargas automatically classifies 

cumulative-error claims as fitting within the third category. Id. ¶ 13. It thus

establishes a two-step analysis, which requires us to determine (1) which 

conduct constituted prosecutorial error and (2) whether the errors 

cumulatively denied the defendant a fair trial. Id. ¶ 14.

II. Conduct that constituted prosecutorial error

¶83 As to which conduct constituted prosecutorial error, I agree 

with the majority that no such error occurred in connection with: (1) adding 

arrows to the surveillance videos; (2) Brumitt’s hearsay testimony, which 

was largely background; (3) burden shifting; and (4) the prosecutor’s 

opening statement. My analysis concerns the remaining three assertions of 

error, namely the (1) lay-opinion testimony that identified Romero as the 

shooter, (2) leading questions, and (3) NIBIN testimony. 

A. Improper lay-opinion testimony

¶84 The lay-opinion testimony arose out of the surveillance 

videos depicting the shooting. I begin with context for the videos and then 

address why I believe the elicitation of that testimony constituted 

prosecutorial error.

1. Description of the videos

¶85 Standing alone, the videos are difficult to decipher. Only one

video depicts Romero clearly, though it was taken just outside the nightclub 

and merely shows patrons milling around. Its primary evidentiary value is 

to show that Romero was wearing a white t-shirt and dark pants. 

¶86 Three other videos show the shooting and its aftermath. But 

as the majority describes, they are “grainy and of poor quality.” The first 

depicts a person wearing similar clothes to Romero’s firing a gun several 

times, then hurrying through the parking lot. The second, taken from 

further away but with a wider angle, depicts a similar scene. It also shows 

the shooter moving toward a car, but that portion of the video is so blurry 

as to be indecipherable. The third video shows a car leaving the parking 

lot, turning onto the street, and a police car following a few seconds later. 
STATE v. ROMERO

Opinion of the Court

31

That car had been parked in the same area as the car toward which the 

shooter ran in the prior video. 

2. Admissibility of lay-opinion testimony identifying 

Romero as the shooter

¶87 The prosecutor’s elicitation of Brumitt’s identification 

testimony must be viewed against that factual backdrop. Under Rule 701 

of the Arizona Rules of Evidence, lay-opinion testimony such as Brumitt’s 

is admissible only if “rationally based on the witness’s perception” and 

“helpful to clearly determining . . . a fact in issue.” Ariz. R. Evid. 701(a), (b). 

Our case law interprets this rule to mean that a lay witness cannot offer 

opinion testimony identifying a defendant without some independent 

knowledge. See, e.g., State v. Miller, 226 Ariz. 202, n.7 (App. 2010) 

(concluding that lay-witness testimony about defendant’s voice could be 

admissible under Rule 701 because witness had heard numerous recordings 

of his voice over a two-month period); State v. King, 180 Ariz. 268, 280-81 

(1994) (concluding that trial court properly admitted testimony from 

witnesses who had known defendant at time of crime and could therefore 

assist jury in identifying person depicted on video). This case law is also 

consistent with Rule 602 of the Arizona Rules of Evidence, which requires 

a witness to have personal knowledge.

¶88 Nevertheless, the prosecutor offered the crucial identification 

testimony through Brumitt: 

Q So do you see the video, obviously, in front 

of you and do you see a subject in that video?

A Yes, sir.

Q White shoes?

A Yes, sir.

Q Who is that individual?

A It’s Mr. Romero.

The prosecutor elicited no testimony about the information Brumitt had 

relied on to reach this conclusion. And unlike in many cases where 

witnesses narrate videos, the narration here added crucial content that was 

not evident from the video itself—that Romero was the person who fired 
STATE v. ROMERO

Opinion of the Court

32

the shots. Nevertheless, the prosecutor repeatedly elicited this testimony 

from Brumitt. 

¶89 Under these circumstances, Brumitt’s testimony fails to 

satisfy Rule 701. The record does not suggest that Brumitt had any 

independent knowledge of Romero’s appearance. Nor have I found cases 

suggesting that the state may identify the defendant as the perpetrator—let 

alone repeatedly—without such knowledge. The jury was just as capable

as Brumitt of comparing the characteristics of the person in the video to 

Romero. They saw Romero in the courtroom for the four days of trial. But 

given the poor quality of the video, it is difficult to see how the jury, or 

Brumitt, could identify Romero based on the video alone. 

3. Lay-opinion testimony as prosecutorial error

¶90 Rule 701 provides important context for our analysis, but we 

are not faced with the question of whether the testimony was inadmissible. 

We must instead determine whether its elicitation constituted prosecutorial 

error.

a. Proper standard for prosecutorial error

¶91 As our colleague’s helpful concurring opinion illuminates, it 

can be difficult to draw the line between evidentiary error and prosecutorial 

error. Citing our supreme court’s decision in State v. Robinson, 253 Ariz. 

121, ¶ 68 (2022) and this court’s decision in State v. Shortman, 254 Ariz. 338, 

¶ 21 (App. 2022), our concurring colleague would draw that line at conduct 

that demonstrates an indifference or intent to prejudice Romero’s 

constitutional rights. I understand why he believes this is the proper 

articulation of the rule, given that it reflects language from two recent cases, 

including one from our supreme court. 

¶92 But I nevertheless conclude that it is the incorrect standard. 

In a recent case that confronted the prosecutorial-error standard more 

directly than Robinson, our supreme court explained that prosecutorial error 

does not require intent. In that case, In re Martinez, 248 Ariz. 458, ¶ 45 

(2020), the court recognized that “prosecutorial misconduct” included “any 

conduct that infringes a defendant’s constitutional rights.” Rather than

requiring indifference or intent, this definition encompasses “prosecutorial 

conduct ranging from inadvertent error or innocent mistake to intentional 

conduct.” Id. 
STATE v. ROMERO

Opinion of the Court

33

¶93 Martinez did not modify that definition. Id. ¶¶ 45-47. It also 

directed that going forward, courts should describe such conduct as 

“prosecutorial error” rather than “prosecutorial misconduct” where the 

conduct “may not necessarily imply a concurrent ethical rules violation.” 

Id. ¶ 47 (adopting American Bar Association Recommendation 100B (2010)). 

Thus, consistent with Martinez, I would apply the standard that 

prosecutorial error is “any conduct that infringes a defendant’s 

constitutional rights.” See also State v. Murray, 250 Ariz. 543, ¶ 12 (2021) 

(applying same standard). 

¶94 Also, unlike the majority, I believe that Romero has 

sufficiently developed his prosecutorial-error argument by pointing to the 

centrality of the improper opinion testimony to Romero’s conviction. As I 

discuss more extensively below, that testimony was so critical that it 

implicated Romero’s due-process right to a fundamentally fair trial. See 

State ex rel. Mitchell v. Palmer, 546 P.3d 101, ¶ 17 (2024) (“Due process 

requires that a criminal defendant receive a fundamentally fair trial.”); 

see also State v. Melendez, 172 Ariz. 68, 71 (1992) (“The touchstone of due 

process under both the Arizona and federal constitutions is fundamental 

fairness.”).

b. Application of prosecutorial-error standard

¶95 I likewise believe that Romero has demonstrated 

prosecutorial error. Under our case law, such error can occur when the 

prosecutor asks questions that inject improper evidence, including about 

the witness’s or prosecutor’s opinion. Cf. Pool v. Superior Court, 139 Ariz. 

98, 102-03 (1984) (“Suggestion by question or innuendo of unfavorable 

matter which is not in evidence and . . . for which no proof exists is 

improper and can constitute misconduct.”). 

¶96 For example, in State v. Hughes, 193 Ariz. 72, ¶¶ 38, 42-46 

(1998), our supreme court concluded that a prosecutor had committed 

misconduct during cross-examination of a defense expert on the insanity 

defense. The prosecutor repeatedly referred to inadmissible evidence and 

injected his opinion that the expert had manufactured his conclusions. Id.

¶¶ 42-46. The prosecutor also injected improper opinion evidence through 

police officers to rebut the insanity defense. Id. ¶ 47. Those officers had not 

observed the defendant’s past conduct, so they had no basis for comparing 

his conduct after the crime to his prior conduct. Id. Similarly, in State v. 

Roque, 213 Ariz. 193, ¶¶ 157-59 (2006), our supreme court concluded that a 

prosecutor had committed error by asking a question that inserted her

opinion about the validity of a psychiatric test. See also Pool, 139 Ariz. at 
STATE v. ROMERO

Opinion of the Court

34

102-03 (concluding prosecutor had committed misconduct by asking 

questions that were “irrelevant,” “prejudicial,” “argumentative,” and 

“designed . . . only to invite speculation”).

¶97 Although Hughes also involved extensive other misconduct, 

the instances described above illustrate why I would treat the elicitation of 

Brumitt’s improper identification as prosecutorial error. The key issue in 

Hughes was the insanity defense. Hughes, 139 Ariz. 72, ¶ 2. On both 

cross-examination of the defense expert and redirect of the police officers, 

the prosecutor’s questioning improperly injected his opinion, as well as 

inadmissible evidence, on that key issue. Id. ¶¶ 42-47. The prosecutor did 

the same here, with the key issue being the shooter’s identity. In essence, 

the improper opinion testimony allowed the jurors to substitute Brumitt’s 

identification for their own analysis. It suggested without foundation that 

Brumitt may have had information beyond the evidence to reach his 

conclusion. 

B. Leading questions

¶98 The next category of prosecutorial error is the leading 

questions. I agree with the majority’s assessment that those questions 

constituted prosecutorial error. They were not directed at hostile witnesses 

or necessary to “develop the witness’s testimony.” Ariz. R. Evid. 611(c). 

Rather, they were directed to experienced detectives on substantive issues. 

The questions led these witnesses through essential testimony, including a 

detailed version of the events depicted in the crucial, but grainy, video. As 

I have noted, testimony that narrates video evidence is often helpful. But 

in this case, the leading questions simply allowed the prosecutor to tell his 

version of the events through the officers.

¶99 The leading questions also reinforced the damage done by the 

improper opinion testimony. The majority highlights Brumitt’s initial 

identification of Romero as one such example. But even more troublesome

was the prosecutor’s redirect examination of Brumitt. Redirect is a 

powerful moment because the defense has no immediate opportunity to 

follow-up. And leading questions are no more permissible on redirect than 

on initial direct. See Robinson, 253 Ariz. 121, ¶¶ 67-68 (stating, in addressing 

leading questions asked on both direct and redirect, “We do not doubt the 

legal impropriety of the prosecutor’s questions and actions.”); see also Ariz. 

R. Evid. 611(c) (generally prohibiting leading questions on direct and not 

including redirect examination as instance in which court “[o]rdinarily . . .

should allow leading questions”).
STATE v. ROMERO

Opinion of the Court

35

¶100 Nevertheless, at the conclusion of Brumitt’s testimony, the 

prosecutor led him through the following exchange: 

Q Let me ask it a different way. How many 

people were there that were seen shooting at 

another person walking to their car being 

stopped by Pima County Sheriff’s Department 

and had a gun that matched shell casings from 

the killing, how many people did you identify 

in that scenario?

A Only one, sir.

Q Is he in the courtroom today?

A He is, sir.

Q Where is he sitting and what’s he wearing?

A He’s seated at the defense table in a gray 

suit jacket, a yellow shirt and tie.

[Prosecutor] May the record reflect the witness 

identified the defendant in this case?

The Court Yes, it will. 

This exchange combined improper opinion testimony with leading 

questions, at a crucial moment of Brumitt’s testimony. It was nothing more 

than “the acquiescence of the witness in counsel’s interpretation of what he 

perceived.” State v. McKinney, 185 Ariz. 567, 575 (1996) (quoting Morris K. 

Udall et al., Arizona Practice: Law of Evidence § 33 (3d ed. 1991)). And it 

improperly allowed the jury to shortcut its essential task of determining 

whether Romero was the shooter.

C. Ballistics evidence

¶101 The third area of prosecutorial error was the ballistics 

testimony concerning NIBIN. Here too, I largely agree with the majority. 

The prosecutor should not have offered Brumitt and Detective Simmons as 

witnesses to testify about NIBIN. They were not qualified as experts. They 

therefore had no basis to testify that the weapon retrieved from Romero’s 

car matched shell casings from the scene. See Ariz. R. Evid. 702 (requiring 

that witness providing scientific, technical, or specialized opinion 
STATE v. ROMERO

Opinion of the Court

36

testimony be qualified and provide assurance that testimony meets certain 

standards). The prosecutor should have known that this was an issue based 

on his participation in State v. Cisco, No. 2 CA-CR 2019-0065 (Ariz. App. 

Mar. 9, 2020) (mem. decision). 

¶102 Although Cisco is non-binding, it placed the prosecutor on 

notice that the testimony he sought to elicit could be improper. But the 

prosecutor nevertheless engaged in precisely the type of conduct Cisco

rejects—discussing the “match” between shell casings at the murder scene 

and the weapon found in Romero’s car. He even introduced the concept of 

a NIBIN “match” with leading questions. Other than a brief introduction 

to the NIBIN process, the first witness testimony involving NIBIN was the 

following exchange between the prosecutor and Brumitt:

Q So when Tucson [Police Department] had 

the weapon retrieved from the vehicle of Mr. 

Romero, it was NIBIN compared; correct?

A Yes, sir, it was.

Q And there was enough information to say 

that there was a match between some shell 

casings as the scene?

A Yes, sir. 

Later, on redirect of another TPD detective, the prosecutor used leading 

questions to provide context to NIBIN’s function.

Q So the gun you have right in front of you 

that’s been admitted into evidence is the gun 

you test fired for NIBIN purposes?

A That’s correct.

Q So you get a spent shell from the test fire 

you have, put that into NIBIN, NIBIN does its 

magic, compares to the one from the scene that 

they picked up; correct? I know that’s a short 

summary but is that generally how it works?

A That’s generally speaking but there’s a 

little bit more to it.
STATE v. ROMERO

Opinion of the Court

37

Q I don’t want to learn more about NIBIN 

right at this moment but is that the plan for 

NIBIN to do its job?

A Yes.

Q Okay. Comparison—the word that 

everyone’s been using, correlation. There’s a 

correlation between this and this?

A Correct. 

Taken together, this testimony suggested without meaningful explanation 

or proper foundation that the casings found at the scene matched Romero’s 

gun.

III. Whether the errors cumulatively denied Romero a fair trial

¶103 Having identified the prosecutorial errors, I turn to the next 

step of Vargas’s analysis—whether the cumulative errors deprived Romero 

of a fair trial.

A. Determining the proper standard

¶104 Much of my disagreement with the majority centers on the 

proper standard in determining whether Romero received a fair trial. At 

the heart of that disagreement is how Vargas maps cumulative prosecutorial 

error onto Escalante’s fundamental-error framework. I agree with the 

majority that further guidance from our supreme court on this issue would 

be useful. 

¶105 Until that happens, though, we must apply the existing case 

law. And as I previously noted, Vargas places cumulative prosecutorial 

error into the third category of fundamental error established by Escalante—

errors “so egregious that [the defendant] could not possibly have received 

a fair trial.” Vargas, 249 Ariz. 186, ¶¶ 12-13 (citing Escalante, 245 Ariz. 135, 

¶ 21). From this language, the majority reaches the reasonable—but in my 

view, incorrect—conclusion that the fair-trial standard applicable here is 

the same standard set forth by Escalante in determining whether an error 

fits Escalante’s third category. That standard looks to whether the error “so 

profoundly distort[ed] the trial that injustice is obvious without the need to 

further consider prejudice.” Escalante, 245 Ariz. 135, ¶ 20.
STATE v. ROMERO

Opinion of the Court

38

¶106 The majority’s standard is reasonable because, at least on its 

face, it appears to faithfully apply Vargas and Escalante. But I do not believe 

it actually does. First, nothing in Vargas applies this standard to 

cumulative-error cases. Nor did Escalante involve cumulative error. It 

instead involved the improper, and unobjected-to, admission of 

drug-courier-profile testimony. Id. ¶ 2. More importantly, no post-Vargas

cases from our supreme court apply the majority’s standard in 

cumulative-error cases. One non-precedential decision from our court did 

so, though the case involved “egregious and pervasive” prosecutorial 

errors that satisfied the majority’s standard and thus would have satisfied 

what I believe is the proper standard as well. State v. Olaoye, 1 CA-CR 

19-0416, ¶ 1 (Ariz. App. Dec. 31, 2020) (mem. decision). 

¶107 Our supreme court’s cases, by contrast, describe an unfair 

trial as one in which “the misconduct could have affected the jury’s 

verdict.” Robinson, 253 Ariz. 121, ¶ 64; see also State v. Smith, 250 Ariz. 69, 

¶ 138 (2020) (describing standard in fundamental-error case). It also 

phrases the standard as looking to whether the errors “so infected the trial 

with unfairness as to make the resulting conviction a denial of due process.” 

Robinson, 253 Ariz. 121, ¶ 64 (quoting State v. Payne, 233 Ariz. 484, ¶ 106 

(2013)). In light of those cases’ language, that is the standard I would apply 

here. 

¶108 Aside from fidelity to our supreme court’s case law, there is a 

practical reason for applying this standard over the majority’s. The “could 

have affected” standard is almost identical to the prejudice standard we 

apply at step three of Escalante’s framework in cases involving a single 

instance of prosecutorial error. Under that standard, recently articulated in 

Murray, a defendant demonstrates prejudice by showing that, “without the 

fundamental error, ‘a reasonable jury . . . could have reached a different 

[verdict].’” 250 Ariz. 543, ¶ 14 (quoting Escalante, 245 Ariz. 135, ¶ 29). In 

practice, the “could have affected” standard applicable to cumulative-error 

cases is the same as the prejudice inquiry in single-error cases. 

¶109 This makes sense. I can think of no reason that multiple

prosecutorial errors should harm the defendant by raising the standard for 

reversal. But that is just what the majority does. Its “profoundly distort” 

standard, which requires that the “injustice is obvious,” is qualitatively 

higher than the “could have affected” standard articulated in Robinson. This 

is true even though the “could have affected” standard is difficult to satisfy 

and “necessarily excludes imaginative guesswork.” Escalante, 245 Ariz. 135, 

¶ 31. It is also true even though Robinson’s standard includes the 
STATE v. ROMERO

Opinion of the Court

39

requirement that the cumulative errors “infect the trial with unfairness” 

such that the “resulting conviction [is] a denial of due process.” Robinson, 

253 Ariz. 121, ¶ 64. 

¶110 Our concurring colleague argues that applying the “could 

have affected” standard to determining cumulative error “seems simply to 

replace step two” of the Escalante analysis with “step three.” There is merit 

to this point, and it reinforces the value of clarification from our supreme 

court. But as I have explained, I do not see the majority’s view as consistent 

with our supreme court’s case law either. In fact, Murray describes step two 

of the prosecutorial-error inquiry as “similar to Escalante’s prejudice 

requirement,” which is step three in the Escalante analysis. Murray, 250 

Ariz. 543, ¶ 15. And the majority’s standard has the added disadvantage of 

raising the reversal standard for cumulative error beyond the standard for 

cases of single errors. While I agree with my colleagues that the 

cumulative-error standard is demanding, it is not more demanding simply 

because more errors occurred.

¶111 Also, despite the majority’s contrary view, we are not 

required in this analysis to view the facts “in the light most favorable to 

sustaining the jury’s verdicts.” That is instead how we view facts in 

determining whether substantial evidence supports a verdict. See, e.g.,

Payne, 233 Ariz. 484, ¶ 76. Even the case cited by the majority, State v. Fierro, 

254 Ariz. 35, ¶ 2 (2022), uses the “light most favorable” language simply for 

the purpose of describing a case’s facts. I have found no cases suggesting 

that we must view the facts in this light in determining whether errors 

affected the verdict or otherwise deprived the defendant of a fair trial. 

Requiring us to do so would heighten the defendant’s burden even further. 

Disputed evidence would automatically favor the state, even if the jury 

might have viewed that evidence differently without the errors. 

B. Applying the standard

¶112 Whether the cumulative effect of the errors requires reversal 

is a close question. Even ignoring the evidence tainted by prosecutorial 

error, considerable evidence suggests that Romero was the shooter. A juror 

viewing the videos together could use them to track the shooter through 

the parking lot to the car that drove off, then conclude that Romero must 

have been the shooter because he was later found in that car. That is 

especially significant because police arrested him after a car chase in 

possession of a gun that had fired casings matching those near the area 

where the victim was shot. And Romero’s car can plausibly—though not 

clearly—be matched to the car entered by the shooter in the surveillance 
STATE v. ROMERO

Opinion of the Court

40

video. I have little doubt that based on that evidence, a reasonable jury 

could have concluded beyond a reasonable doubt that Romero was the 

shooter.

¶113 But that is not the issue. The standard instead requires us to 

determine whether a reasonable jury could have reached a different verdict 

absent the errors, such that a due-process violation occurred. I conclude 

that Romero has satisfied this standard. The key videos are too grainy to 

show the shooter’s face or any identifying characteristics other than a 

generic outfit. And while the shooter’s outfit is consistent with Romero’s, 

the outfit was common among patrons at the nightclub. A witness had 

testified that “a large percentage of the crowd” was dressed similarly. To 

address this shortcoming, a juror could reasonably have ascribed 

significant credibility to Brumitt’s improper identification. 

¶114 This is especially possible because the ballistics evidence is 

not conclusive. A jury could conclude that this evidence established only 

that Romero fired shots. While those might have been the shots that killed 

S.H., Romero points out that forty-three shell casings were recovered from 

the nightclub’s parking lot. It is also unknown how many additional 

casings might have been removed before police secured the scene. And 

importantly, no projectiles or fragments were recovered from S.H.’s body, 

nor was there proof of which shots killed him. A forensic pathologist could 

not even determine the caliber of bullet. And the prosecutor improperly 

strengthened the value of the ballistics testimony through his introduction 

of the NIBIN evidence.

¶115 Given the improper testimony identifying Romero and the 

weaknesses in the ballistics evidence, I believe that absent the errors, a 

reasonable jury could have concluded that the state failed to meet its 

burden of proving Romero’s guilt beyond a reasonable doubt. And because 

this evidence went directly to the case’s key factual dispute, I also believe it 

infected the trial with error to the extent that it denied Romero due process. 

Cf. State v. Bible, 175 Ariz. 549, 601 (1993) (looking to whether improper 

statement “tipped the scales of justice and denied Defendant a fair trial”). I 

would therefore reverse Romero’s conviction and remand for a new trial.