State v. Decorso

Decision Date04 June 1999
Docket NumberNo. 960512.,960512.
Citation993 P.2d 837,1999 UT 57
PartiesSTATE of Utah, Plaintiff and Appellee, v. Michael Scott DECORSO, Defendant and Appellant.
CourtUtah Supreme Court

Jan Graham, Att'y Gen., Kris C. Leonard, Asst. Att'y Gen., B. Kent Morgan, Salt Lake City, for plaintiff.

Joan C. Watt, Salt Lake City, for defendant.

HOWE, Chief Justice:

¶ 1 Michael Scott Decorso appeals from his conviction for aggravated murder, a capital offense, in violation of Utah Code Ann. § 76-5-202.


¶ 2 Shortly after closing time on February 15, 1994, the Payless Shoesource store in West Jordan, Utah, was robbed, and Margaret Ann Martinez, a fifty-year-old clerk of that store, was murdered. When the store closed, the killer apparently remained inside posing as a customer. Mrs. Martinez had locked the front door before ringing up the killer's purported purchase of a pair of size ten and a half "Honcho" brand work boots and a pair of size ten tennis shoes. Evidently, after she opened the cash register drawer, the killer robbed her and later murdered her in a back room. He ultimately took the "Honcho" work boots, the white tennis shoes, and $849.73 in cash.

¶ 3 Mr. Martinez, the victim's husband, became worried when his wife did not return home from work that night and began calling the store. At about 10:40 p.m., he decided that something must be wrong and drove to the store. Upon his arrival, he discovered that the glass in the front door had been shattered, with the majority of the broken glass lying outside the store, that the door was still locked, that the store was in disarray, and that the cash register drawer was empty. Fearing something had happened to his wife, he called 911.

¶ 4 The police discovered Martinez's partially clothed body lying in a back room of the store. Her face and head were bound with duct tape, and she had been stabbed multiple times in her neck and her breasts. During the autopsy, the coroner discovered that her upper denture had been fractured into four pieces and that her nose also had been broken. These injuries suggested that the killer struck her one or more times with "a heavy metal object, such as a gun." Martinez died of asphyxiation, due primarily to the mask of duct, tape wrapped around her face and head. ¶ 5 The killer had also bound her ankles together with duct tape and had bound her wrists with a telephone cord. Detectives found a latent fingerprint on a piece of duct tape attached to her pant leg. Her shirt, pants, and panties had been cut off of her body in a manner consistent with that commonly used by an emergency medical technician ("EMT").1 Her brassiere had been unhooked in the back and pulled down, exposing her breasts. A pair of blood-stained scissors was found lying next to her body.

¶ 6 The killer had written the letters "TSG" on the wall in the victim's blood. The evidence suggested that these letters possibly stood for either the "Tongan Style Gangsters" or "Tai Style Gangsters." State experts later opined that the killer had worn surgical or similar-type gloves when he wrote on the wall and that there was a slight correlation between the writing on the wall and defendant Decorso's handwriting.

¶ 7 On September 17, 1994, a lone gunman, later identified as Decorso, confronted two store clerks at the Payless Shoesource store located in Draper, Utah, shortly after closing time and attempted to rob them. He had entered the store sometime earlier posing as a customer. He then apparently hid himself until after the store closed and the doors locked. At that point, he attempted to rob the two store clerks. However, when one of the clerks, Sundee Fagg, escaped out the front door and sought help, the gunman fled, leaving behind the money. At a police lineup several months later, Fagg positively identified Decorso as the perpetrator of that burglary.

¶ 8 The perpetrator of the Draper Payless burglary left behind a black fanny pack which contained a flashlight, a pair of rubber gloves, a Swiss Army knife, two fully loaded clips for an automatic handgun, a small rope, and a special forces medallion similar to one belonging to Decorso. He also left a bag containing three boxes of shoes in a back room of the store. Fingerprints were found on the knife and on one of the shoe boxes.

¶ 9 In March 1995, more than a year after Martinez's murder, Decorso's fingerprints were submitted to the state crime lab for comparison with the print left on the duct tape attached to Martinez's pant leg. The print from Decorso's left middle finger matched the fingerprint on the duct tape. His prints also matched those left on the Swiss Army knife and the shoe box found at the Draper Payless store. Thereafter, the State executed search warrants at his storage unit and his parents' home and seized several items of evidence, including rubber gloves, duct tape, and a mace can wrapped in duct tape.

¶ 10 The State charged Decorso with aggravated murder. Following the guilt phase of his jury trial, he was convicted as charged. At the penalty phase, the jury returned a verdict sentencing him to a term of life in prison without parole.

¶ 11 On appeal, Decorso contends that (1) the trial court erred in admitting evidence of other unadjudicated offenses allegedly committed by him at the Draper Payless store; (2) the court erroneously denied his motion for mistrial; (3) the court erred in refusing to suppress Sundee Fagg's identification of him at the police lineup; (4) the court erroneously admitted into evidence Martinez's bloody clothing and a photograph of her corpse; (5) the court failed to suppress evidence seized by police pursuant to two search warrants which were issued without probable cause; (6) the admission of a jailhouse informant's testimony violated Decorso's constitutional rights; (7) the cumulative effect of the trial errors requires reversal; and (8) during the penalty phase, the court erroneously admitted evidence of other unadjudicated offenses pending against Decorso.


¶ 12 The first issue presented is whether the trial court erred in admitting evidence of other crimes allegedly committed by Decorso at the Draper Payless store. The admission of evidence of other crimes, wrongs, and bad acts is governed by rule 404(b) of the Utah Rules of Evidence. This rule was amended to "abandon[] the additional requirements for admitting evidence under Rule 404(b) imposed by State v. Doporto, 935 P.2d 484 (Utah 1997)." Utah R. Evid. 404(b) advisory committee note. The rule currently provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 403.

Utah R. Evid. 404(b) (emphasis added). The 1998 amendment added the emphasized language above.

¶ 13 Although the language of the 1998 amendment does not clearly express that it was intended to abandon the 404(b) analysis adopted in State v. Doporto, 935 P.2d 484 (Utah 1997), the advisory committee note to the rule, as noted above, makes that intention clear. The advisory committee note states:

This amendment [the 1998 amendment, effective February 11, 1998] abandons the additional requirements for admitting evidence under Rule 404(b) imposed by State v. Doporto, 935 P.2d 484 (Utah 1997). It clarifies that evidence of other crimes, wrongs, or acts, offered under 404(b), is admissible if it is relevant for a non-character purpose and meets the requirement of rules 402 or 403.
Utah's existing Rule 404 is otherwise identical to Federal Rule of Evidence Rule 404 and the equivalent rule in most other states. This amendment to the rule is not intended to depart from the meaning and interpretation given to the equivalent rule in other jurisdictions, but to return to the traditional application of Rule 404 prior to Doporto.

Utah R. Evid. 404(b) advisory committee note. In light of the foregoing amendment, this opinion addresses the standard of appellate review and the correct analysis of other crimes evidence under rule 404(b). To the extent the language in Doporto is inconsistent with the standards described in this opinion, it is disavowed.

¶ 14 We begin with a discussion of the appropriate standard of review. In Doporto, this court stated, "[W]e will examine a trial court's decision under Rule 404(b) with very limited deference, according it a relatively small degree of discretion." 935 P.2d at 489 (footnote omitted); see also State v. Pearson, 943 P.2d 1347, 1351 (Utah 1997) ("This court reviews evidentiary rulings on prior crime testimony with limited deference, reviewing closely the trial court's exercise of its discretion.").

¶ 15 In our view, the "very" limited deference standard adopted in Doporto has in fact proved too restrictive and requires modification. Furthermore, as noted above, the 1998 amendment makes clear that in addition to determining whether the other crimes evidence is being adduced for a proper noncharacter purpose, the court must also analyze this evidence under rules 402 and 403 of the Utah Rules of Evidence. Consequently, we must clarify the appropriate standard of review applicable to such rulings, especially since the standards applicable to 402 and 403 rulings vary considerably from the limited deference standard described in Doporto.

¶ 16 Although we could adopt a bifurcated standard of review, in which the trial court's analysis under rule 404(b) is afforded only limited deference while its analysis under 402 and 403 is reviewed for abuse of discretion, we think that such a standard would be too confusing. As Justice Stewart's opinion in Doporto...

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