State of Arizona v. Dimitri Polanco Romero

IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,
Appellee,

v.

DIMITRI POLANCO ROMERO,
Appellant.

No. CR-24-0237-PR
Filed May 15, 2026

Appeal from the Superior Court in Pima County
The Honorable Catherine M. Woods, Judge
No. CR20203538001
AFFIRMED

Opinion of the Court of Appeals, Division Two
258 Ariz. 237 (App. 2024)
VACATED

COUNSEL:

Kristin K. Mayes, Arizona Attorney General, Joshua D. Bendor (argued),
Solicitor General, Alice M. Jones, Deputy Solicitor General/Section Chief of
Criminal Appeals, Michael T. O’Toole, Assistant Attorney General,
Phoenix, Attorneys for State of Arizona

David J. Euchner (argued), Pima County Public Defender’s Office, Tucson,
Attorney for Dimitri Polanco Romero

Rosemarie Pena-Lynch, Office of Public Defense Services, Gary Kula, Office
of the Public Defender, Kristen Reller, Deputy Public Defender, Sherri
McGuire Lawson, Office of the Legal Defender, Shannon Burns, Office of
the Public Advocate, Steve Koestner, Office of the Legal Advocate, Phoenix,
 STATE V. ROMERO
Opinion of the Court

Attorneys for Amicus Curiae Maricopa County Public Defense Services

Carol Lamoureux, Law Office of Hernandez & Hamilton, PC, Tucson,
Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

JUSTICE CRUZ authored the Opinion of the Court, in which CHIEF
JUSTICE TIMMER, VICE CHIEF JUSTICE LOPEZ and JUSTICES BOLICK,
BEENE, MONTGOMERY, and KING joined.

JUSTICE CRUZ, Opinion of the Court:

¶1 This case requires us to determine whether a claim of
prosecutorial error depends upon proof of the prosecutor’s state of mind
and whether the court of appeals correctly applied the governing standard.
We hold that establishing prosecutorial error does not require
consideration of the prosecutor’s mental state. Although Dimitri Polanco
Romero demonstrated the existence of prosecutorial error in his trial, he has
not shown—under a proper application of the framework set forth in State
v. Escalante, 245 Ariz. 135 (2018)—that the cumulative error so profoundly
distorted the proceedings as to render his trial fundamentally unfair.
Accordingly, we affirm his convictions and sentences.

BACKGROUND

¶2 In September 2020, a fight broke out at a nightclub parking lot
around two o’clock in the morning. Several shots were fired, and the
victim, S.H., suffered and later died from gunshot wounds.

¶3 A nearby Pima County sheriff’s deputy responded after
hearing the gunfire. As the deputy approached in his vehicle, he saw a car
leave the nightclub parking lot and commit multiple traffic violations; he
also saw that the driver was holding a black object. The deputy attempted
a traffic stop, but the vehicle fled, leading officers on a four-mile pursuit
before it struck a fence. The officers identified Romero as the driver and
arrested him at the scene. They recovered a black firearm from the vehicle
and found a plastic bag containing cocaine on Romero’s person.
¶4 During their investigation, detectives obtained “grainy”

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Opinion of the Court

surveillance footage of the nightclub exit and the parking lot. The footage
depicted S.H. and someone later identified as Romero standing in the
parking lot. It showed Romero following the victim and firing shots “in
[the victim’s] direction multiple times before leaving.” Around this time,
other individuals shot their guns into the air, purportedly to disperse
bystanders.

¶5 Although detectives did not recover any of the bullets that
struck S.H., they determined, based on the video footage, the location
within the parking lot where the shooting occurred. Detectives searched
that location and recovered four shell casings from the same manufacturer.
Law enforcement also test-fired the gun from Romero’s car and compared
the resulting casings with those found at the parking lot through the
National Integrated Ballistics Information Network (“NIBIN”). A
qualified ballistics expert concluded the casings from Romero’s firearm
matched those recovered from the parking lot. The State subsequently
charged Romero with first degree murder, unlawful discharge of a firearm,
fleeing from law enforcement, and possession of a narcotic drug.

¶6 At trial, the prosecutor elicited testimony from a detective
identifying Romero and S.H. in surveillance footage. The detective also
testified to information he learned from other officers, including the
circumstances of Romero’s apprehension following the vehicular pursuit.
Although neither detective was qualified as a ballistics expert, the
prosecutor asked two detectives whether Romero’s firearm had been
“NIBIN compared” to the shell casings recovered from the parking lot.
Both detectives testified that there was a “correlation.”

¶7 Throughout the trial the prosecutor frequently asked leading
questions during direct examination, particularly when questioning the
lead detective about the surveillance footage and Romero’s identification.
Romero did not object. In response to Romero’s challenges to the
adequacy of the investigation, the prosecutor also questioned defense
investigators about their failure to pursue additional investigative leads.
Romero did not object in this regard either. The jury found him guilty on
all four counts.

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Opinion of the Court

¶8 Romero appealed and, in a divided opinion, the court of
appeals affirmed. State v. Romero, 258 Ariz. 237 (App. 2024). In his
appeal, Romero primarily argued that he should receive a new trial due to
multiple acts of prosecutorial error stemming from leading questions and
the use of non-expert witnesses. Because Romero had not objected during
trial, the court reviewed his claims for fundamental error. Id. at 243 ¶ 9 &
n.4. As the court noted, Romero conceded that no single instance of
alleged prosecutorial error warranted reversal. Romero instead argued
that four categories of conduct cumulatively deprived him of a fair trial:
(1) eliciting improper opinion testimony; (2) pervasive leading questions;
(3) inadmissible hearsay; and (4) improper burden shifting through
cross-examination and rebuttal argument. Id. at 246 ¶¶ 21, 24. The court
concluded that only the leading questions and the use of non-expert
testimony constituted prosecutorial error. Id. at 250 ¶ 42, 253 ¶ 57. It
determined that the cumulative effect of those errors did not require a new
trial because they did not “so profoundly distort the trial that injustice is
obvious without the need to further consider prejudice.” Id. at 255 ¶ 65
(quoting Escalante, 245 Ariz. at 141 ¶ 20).

¶9 One judge concurred in the result but disagreed that the
leading questions constituted prosecutorial error in the absence of an
objection or corrective action by the trial court. Id. at 256 ¶ 70 (O’Neil, J.,
concurring in part). The concurring judge also acknowledged that
although In re Martinez, 248 Ariz. 458 (2020), “arguably eliminated intent
from consideration in claims of prosecutorial error,” he did not understand
it to do so. Id. at 257 ¶ 74.

¶10 The dissent disagreed with the majority on two points. First,
it concluded that eliciting certain lay-opinion testimony identifying Romero
as the shooter, based solely on the surveillance footage equally available to
the jury, constituted prosecutorial error. Id. at 258 ¶ 78 (Sklar, J.,
dissenting).

¶11 Second, the dissent concluded that Romero met his burden to
show that cumulative prosecutorial error deprived him of a fair trial. Id.
¶¶ 79–80. In the dissent’s view, Romero was not required to demonstrate
a “profound distortion” of the trial but instead needed to show that the
cumulative errors “so infected the trial with unfairness as to make the
resulting conviction a denial of due process” and that it “could have
affected” the verdict. Id. ¶ 79.
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Opinion of the Court

¶12 Romero petitioned this Court for review. We granted
review to resolve two recurring issues of statewide importance: (1) whether
a defendant asserting prosecutorial error must establish a prosecutor’s
culpable mental state, and (2) the proper application of the Escalante
fundamental error test when evaluating cumulative prosecutorial error.
We have jurisdiction under article 6, section 5(3) of the Arizona
Constitution.

DISCUSSION

I. Prosecutor’s Mental State in Determining Prosecutorial Error

¶13 We first address whether a claim of prosecutorial error
requires consideration of the prosecutor’s culpable mental state. It does
not. Both parties agree on this point. We address the issue nonetheless
to correct the court of appeals’ misapprehension on the matter.

¶14 We begin by addressing the terms “prosecutorial error” and
“prosecutorial misconduct” as used in Arizona case law. Just recently,
this Court clarified that “[t]he term ‘prosecutorial misconduct’ broadly
encompasses any conduct that infringes a defendant’s constitutional rights.
It sweeps in prosecutorial conduct ranging from inadvertent error or
innocent mistake to intentional misconduct.” Martinez, 248 Ariz. at 469
¶ 45.

¶15 In Martinez, we recognized the American Bar Association’s
(“ABA”) distinction between prosecutorial error and ethical misconduct in
the context of “prosecutorial misconduct claims.” Id. at 470 ¶ 47; ABA
Recommendation 100B (2010). “Misconduct” may imply an ethical rule
violation, whereas “error” does not. Martinez, 248 Ariz. at 470 ¶ 47. We
explained:

The term “prosecutorial misconduct” has become a term of
art in criminal law that is sometimes used to describe conduct
by the government that violates a defendant’s rights whether
or not that conduct was or should have been known by the
prosecutor to be improper and whether or not the prosecutor
intended to violate the Constitution or any other legal or
ethical requirement.

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Opinion of the Court

Id. at 469–70 ¶ 46 (quoting ABA Recommendation 100B (2010)).

¶16 We further cautioned that “any 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.” Id. at ¶ 47.
Thus, whether a defendant’s rights were violated does not depend on
whether the prosecutor acted intentionally. See also State v. Bible, 175 Ariz.
549, 601 (1993) (“The focus is on the fairness of the trial, not the culpability
of the prosecutor.”); Smith v. Phillips, 455 U.S. 209, 219 (1982) (“Past
decisions of this Court demonstrate that the touchstone of due process
analysis in cases of alleged prosecutorial misconduct is the fairness of the
trial, not the culpability of the prosecutor.”).

¶17 Although Martinez arose in a disciplinary context, we
confirmed in State v. Murray, 250 Ariz. 543, 548 ¶ 12 (2021), that the same
principle governs in criminal cases. There, we observed that “[t]he
characterization of the prosecutorial misconduct makes no difference to our
ultimate decision in th[e] case, but it makes a world of difference to the
prosecutor by whom the error was committed.” Id. Read together,
Martinez and Murray make clear that a prosecutor’s culpable mental state is
not dispositive for determining whether a defendant’s substantive rights
have been violated. The relevant inquiry is whether error occurred and
whether that error affected the fairness of the proceeding—not whether the
prosecutor acted with a particular mental state.

¶18 We acknowledge that in Pool v. Superior Court we considered
a prosecutor’s intent. 139 Ariz. 98, 105–09 (1984). But that consideration
was expressly and narrowly limited to “the resolution of the question of
when jeopardy attaches,” specifically whether retrial would be barred
where a prosecutor engaged in intentional, improper conduct. Id. at 108.
Pool addressed double jeopardy principles and the propriety of retrial—not
whether a conviction should be reversed based on prosecutorial error. Id.
at 105. Accordingly, to the extent cases have drawn more broadly from
Pool, we clarify that its intent analysis does not apply to claims seeking
reversal for prosecutorial error.

¶19 We further recognize that in several cases we have discussed
whether a prosecutor acted intentionally. See, e.g., State v. Montoya, 258 Ariz. 128, 151 ¶ 54 (2024) (“We consider whether ‘persistent and
pervasive’ [error] occurred and whether the ‘cumulative effect of the
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 STATE V. ROMERO
Opinion of the Court

[errors] shows that the prosecutor intentionally engaged in improper
conduct and did so with indifference, if not a specific intent, to prejudice
the defendant.’” (alterations in original) (quoting State v. Gallardo, 225 Ariz.
560, 570 ¶ 46 (2010))); see also State v. Robinson, 253 Ariz. 121, 143 ¶ 68 (2022);
State v. Morris, 215 Ariz. 324, 339 ¶ 67 (2007); State v. Hughes, 193 Ariz. 72,
80 ¶ 31 (1998). In those cases, however, we did not impose an intent
requirement as a prerequisite to establishing prosecutorial error. Rather,
intent was noted in connection with the surrounding circumstances of the
conduct. We did not hold that a defendant must prove a culpable mental
state as an antecedent to establishing prosecutorial error.

¶20 Today we make that point explicit. A claim of prosecutorial
error does not require proof that the prosecutor acted intentionally,
recklessly, negligently, or with any other culpable mental state. A
prosecutor’s intent is not a prerequisite to establishing prosecutorial error
or to obtaining relief under Escalante. But see Morris, 215 Ariz. at 335 ¶ 47
(“[A]n incident may nonetheless contribute to a finding of persistent and
pervasive misconduct if the cumulative effect of the incidents shows that
the prosecutor intentionally engaged in improper conduct and did so with
indifference, if not a specific intent, to prejudice the defendant.” (quoting
State v. Roque, 213 Ariz. 193, 228 ¶ 155 (2006))).

¶21 By contrast, the operative inquiry in determining
prosecutorial error is whether the prosecutor engaged in improper,
mistaken conduct and, if so, any prejudicial effect. To the extent any prior
language could be read to require proof of intent to establish prosecutorial
error, we disapprove of such a reading.

¶22 Prosecutorial error occurs when a prosecutor engages in
proscribed conduct, including trial error; violates rules of professional
responsibility, evidence, or procedure; violates court orders or rulings; or
violates constitutional or statutory provisions. But “[w]e do not reverse
cases for mere technical errors when it appears substantial justice has been
done.” State v. Jordan, 80 Ariz. 193, 198 (1956).

¶23 Applying that principle here, we begin by acknowledging
that the prosecutor’s repeated use of leading questions on direct
examination constituted error. Arizona Rule of Evidence 611(c) provides
that “[l]eading questions should not be used on direct examination except
as necessary to develop the witness’s testimony.” This rule reflects the
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Opinion of the Court

principle that “[w]hat is desired is that the trier of fact hear what the witness
perceived, not the acquiescence of the witness in counsel’s interpretation of
what the witness perceived.” Shirley J. McAuliffe, Law of Evidence
(Arizona Practice Series, vol.1, 4th ed. 2024). We have likewise stated that
the “general rule is that questions that put the answer into the mouth of
one’s witness in chief should not be asked.” State v. McKinney, 185 Ariz.
567, 575 (1996) (quoting Ball v. State, 43 Ariz. 556, 558 (1934)). The
prosecutor’s repeated use of such questioning was error, and that
conclusion is not dependent upon the prosecutor’s mental state.

¶24 The prosecutor’s use of non-expert testimony was also error.
Arizona Rule of Evidence 702(a) requires a witness to be “qualified as an
expert by knowledge, skill, experience, training or education” before
offering testimony based on “scientific, technical, or other specialized
knowledge.” Here, the prosecutor elicited NIBIN and ballistics-matching
testimony from a witness who was not qualified as an expert in that field
and therefore was not permitted to offer such technical or scientific
opinions. This was error. As above, this prosecutorial error arises from
a violation of an evidentiary rule, not from any assessment of the
prosecutor’s mental state.

II. Whether the Court of Appeals Misapplied the Escalante Test

¶25 The next question before us is whether the court of appeals
misapplied the Escalante framework in concluding that Romero failed to
establish cumulative prosecutorial error warranting reversal. Although
we clarify certain aspects of the governing standard and ultimately vacate
its opinion, we agree with its disposition.

¶26 When a defendant fails to object at trial, he must establish
fundamental error to obtain appellate relief. Escalante, 245 Ariz. at 138 ¶ 1.
The defendant must first demonstrate that trial error occurred. Id. at 142
¶ 21. He must then establish the error was fundamental by showing that
“(1) the error went to the foundation of the case, (2) the error took from the
defendant a right essential to his defense, or (3) the error was so egregious
that he could not possibly have received a fair trial.” Id. Under prongs
one and two, the defendant “must make a separate showing of prejudice.”
Id. No separate showing of prejudice is required under prong three
because satisfying that prong necessarily establishes both fundamental
error and prejudice. Id. At every step, the defendant bears the burden of
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Opinion of the Court

persuasion. Id.

¶27 In State v. Vargas, we directed courts and litigants to apply the
Escalante framework for claims of cumulative prosecutorial error.
249 Ariz. 186, 189 ¶ 12 (2020). Vargas did not modify Escalante; instead, it
illustrated how to apply the third prong in the context of cumulative
prosecutorial error. Accordingly, the governing standard remains the
Escalante test—not an “Escalante/Vargas” test. As Vargas explained,
“[c]onsistent with the third prong of Escalante, a defendant claiming
cumulative error based on prosecutorial misconduct need not separately
assert prejudice since a successful claim necessarily establishes the
unfairness of a trial.” Id. at 190 ¶ 13. We reiterated that a successful
claim is one in which the misconduct “so infected the trial with unfairness
as to make the resulting conviction a denial of due process.” Id. (quoting
Roque, 213 Ariz. at 228 ¶ 152).

¶28 To the extent the court of appeals suggested that a claim of
prosecutorial error must be advanced under prong three, that
understanding is incorrect. A defendant may pursue relief for a claim of
prosecutorial error under any of the three Escalante prongs. Here,
however, Romero expressly invoked prong three. Thus, he was required
to establish that the cumulative effect of the errors “was so egregious that
he could not possibly have received a fair trial.” Id. at 189–90 ¶ 12
(quoting Escalante, 245 Ariz. at 142 ¶ 21).

¶29 We note that the court of appeals erred in stating that it would
“[v]iew the facts in the light most favorable to sustaining the jury’s
verdicts.” Romero, 258 Ariz. at 255 ¶ 66. Such deference is generally
applied only when reviewing a sufficiency of the evidence claim. See State
v. Strong, 258 Ariz. 184, 211 ¶ 118 (2024) (sufficiency of the evidence); State
v. Atwood, 171 Ariz. 576, 596 (1992) (sufficiency of the evidence); Bible,
175 Ariz. at 595 (motion for judgment of acquittal); State v. Silvas, 91 Ariz.
386, 387, 392 (1962) (motion for new trial); State v. Bentlage, 192 Ariz. 117,
118 ¶ 2 (App. 1998) (suppression rulings). However, fundamental error
review of prosecutorial error does not incorporate that same deferential
standard. Rather, it presents an objective inquiry that considers the
totality of the circumstances. Escalante, 245 Ariz. at 142 ¶ 21. An
appellate court must “analyze the entire record to determine whether
‘reasons clearly demonstrat[e] that the case falls within our definition of
fundamental error.’” Id. (quoting State v. Gendron, 168 Ariz. 153, 155
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Opinion of the Court

(1991)). Accordingly, we evaluate Romero’s claim under this objective
framework.

¶30 Applying that objective review to the entire record, we
conclude that Romero has established the existence of prosecutorial error
but has not demonstrated that the cumulative effect of that error so
profoundly distorted the trial that he could not possibly have received a fair
trial.

¶31 A defendant asserting cumulative prosecutorial error need
not show that each individual error independently constituted
fundamental error. Vargas, 249 Ariz. at 190 ¶ 14. Rather, he must
establish that, taken together, the errors denied him a fair trial. Id. ¶ 15.

¶32 As noted above, Romero identified multiple instances of
alleged prosecutorial error, and the court of appeals concluded that two
categories constituted error: (1) the introduction of NIBIN testimony
through unqualified detectives, and (2) the repeated use of leading
questions that included elements necessary to establish Romero’s guilt.
Romero, 258 Ariz. at 250 ¶ 42, 252 ¶ 52. We agree.

¶33 We pause to raise a concern about compliance with our
evidentiary rules. The error here occurred in the wake of Cisco, in which
the use of a detective’s unreliable and unqualified testimony as to a NIBIN
match was deemed error. State v. Cisco, No. 2 CA-CR 2019-0065, 2020 WL
1130744, at *3–*5 ¶¶ 10, 17 (Ariz. App. Mar. 9, 2020) (mem. decision). Cisco
was prosecuted by the same deputy county attorney who tried Romero in
this case. Our evidentiary rules are not advisory. When a court has
already held that certain testimony violates Rule 702, repetition of that
conduct undermines confidence in the fairness of the proceedings and the
State’s adherence to its constitutional obligations. Although the error here
does not warrant reversal under prong three of Escalante, we reiterate that
compliance with our evidentiary rules is mandatory.

¶34 Returning to the court of appeals’ decision, the court next
addressed whether the cumulative error was fundamental error. Romero,
258 Ariz. at 254–55 ¶ 64. Quoting Escalante, it recognized that cumulative
error must “so profoundly distort the trial that injustice is obvious without
the need to further consider prejudice.” 245 Ariz. at 141 ¶ 20.
Emphasizing the demanding nature of this standard, the majority reasoned
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Opinion of the Court

that the cumulative effect must “so infect the trial with unfairness as to
make the resulting conviction a denial of due process.” Romero, 258 Ariz.
at 255–56 ¶ 68 (quoting Robinson, 253 Ariz. at 143 ¶ 64). That accurately
states the governing standard as to prong three under Escalante.

¶35 The court of appeals’ dissent and Romero, however, contend
that this “profound distortion” standard is too exacting and propose
instead that a defendant need only show that the errors “infected the trial
with unfairness” and “could have affected” the verdict. Id. at 258 ¶ 79
(Sklar, J., dissenting). But Escalante expressly states that to satisfy prong
three, “the error must so profoundly distort the trial that injustice is obvious
without the need to further consider prejudice.” 245 Ariz. at 141 ¶ 20.
Nothing in Vargas altered that language. We therefore clarify that the
“profound distortion” standard applies to all claims presented under prong
three, including those based on cumulative prosecutorial error.

¶36 The rigor of prong three reflects Escalante’s recognition that
fundamental error under that prong is reserved for those rare cases in
which the integrity of the trial itself has been compromised. Absent such
a profound distortion of the proceedings, cumulative error—though
improper—does not satisfy prong three of Escalante to justify reversal
where the verdict remains supported by properly admitted evidence.

¶37 It is also important to distinguish fundamental error review
from harmless error review. “Harmless error review places the burden on
the state to prove beyond a reasonable doubt that the error did not
contribute to or affect the verdict or sentence.” State v. Henderson, 210 Ariz.
561, 567 ¶ 18 (2005). In contrast, under fundamental error review, the
defendant bears the burden of establishing that the cumulative effect of the
errors rendered the trial fundamentally unfair. He must prove both the
existence of error and, under prongs one and two, resulting prejudice, or
under prong three, that “the error was so egregious that he could not
possibly have received a fair trial.” Escalante, 245 Ariz. at 142 ¶ 21.
Because Romero contends fundamental error existed under prong three,
the relevant inquiry is whether the cumulative effect of the errors so
profoundly distorted the proceedings that Romero could not have received
a fair trial. We do not examine whether the prosecutor’s error was
harmless under any prong of fundamental error review.

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Opinion of the Court

¶38 After reviewing the entire record, excluding the improperly
admitted evidence, and accounting for the excessive leading questions, we
conclude that the cumulative errors did not so infect the trial with
unfairness as to deprive Romero of a fair trial. The properly admitted
evidence independently linked Romero to the shooting. A qualified
ballistics expert testified that the cartridge casings recovered from the
shooting scene were fired from the firearm found in Romero’s vehicle.
Surveillance footage placed Romero at the nightclub and depicted an
individual resembling him moving to and from the vehicle he was driving
immediately before and after the shooting. The vehicle fled the scene and
was stopped only after a pursuit, which culminated in Romero’s arrest.
Thus, the evidence properly admitted at trial captured continuous video
surveillance or law enforcement observation of Romero from before,
during, and after the shooting, including his pursuit and arrest.

¶39 In light of this properly admitted evidence, the prosecutor’s
leading questions and the erroneous NIBIN testimony did not so
profoundly distort the trial that injustice is obvious. See Escalante,
245 Ariz. at 141 ¶ 20.

¶40 Romero further argues that the “profoundly distorted”
standard from Escalante risks creating the anomalous result that the burden
becomes higher simply because more errors occurred. See id. We
disagree. Where, as here, a defendant concedes that no single error
deprived him of a fair trial and does not contend that he was prejudiced
under prongs one or two of Escalante, it is appropriate to require a showing
that the cumulative effect of the errors created “injustice [that] is obvious
without the need to further consider prejudice.” Id.; see also Vargas, 249
Ariz. at 190 ¶ 14. That standard ensures that only those cumulative errors
that fundamentally undermine the integrity of the trial warrant reversal.

¶41 Having applied the proper objective review to the entire
record, we conclude that although the pervasive use of leading questions
and the improper admission of NIBIN testimony constitute error, Romero
has not demonstrated that the cumulative effect of those errors so
profoundly distorted the trial that he could not possibly have received a fair
trial. The court of appeals did not err in affirming his convictions and
sentences.

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Opinion of the Court

CONCLUSION

¶42 For the foregoing reasons, we affirm the court of appeals’
disposition but vacate its opinion. Romero’s convictions and sentences
are affirmed.

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