State v. Marsala

337 Conn. 55

252 A.3d 349

STATE of Connecticut

v.Michael J. MARSALA

SC 20249

Supreme Court of Connecticut.

Argued February 20, 2020

Officially released September 16, 2020^**

Laila M. G. Haswell, senior assistant public defender, for the appellant (defendant).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Margaret E. Kelley, state's attorney, Matthew R. Kalthoff, assistant state's attorney, and Laurie N. Feldman and Brett R. Aiello, deputy assistant state's attorneys, for the appellee (state).

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^*

MULLINS, J.

In this certified appeal, the defendant, Michael J. Marsala, appeals from the judgment of the Appellate Court affirming his judgment of conviction, rendered after a jury trial, for criminal trespass in the first degree in violation of General Statutes § 53a-107.¹ He challenges the Appellate Court's conclusion that the trial court properly declined to instruct the jury on the infraction of simple trespass; see General Statutes § 53a-110a ;² as a lesser included offense of criminal trespass in the first degree. Because we agree with the Appellate Court's conclusion that the prerequisites set forth in State v. Whistnant , 179 Conn. 576, 427 A.2d 414 (1980), for obtaining a jury instruction on a lesser included offense were not satisfied in the present case,³ we affirm the judgment of the Appellate Court.⁴

The record reveals the following relevant facts, which the jury reasonably could have found, and procedural history. The Connecticut Post Mall of the Centennial Collection, formerly known as the Westfield Connecticut Post (mall), is located at 1201 Boston Post Road in Milford (mall property). At all relevant times, the mall was owned by the Westfield Corporation (Westfield). Westfield contracted with an independent entity, Professional Security Consultants (PSC), to provide security services on mall property. During the holiday shopping season, November through January, the mall hires Milford police officers to assist PSC with security and to conduct traffic control. While working these "private duty" jobs, the officers are essentially part of PSC's security staff; they report directly to PSC and assist PSC employees with enforcing the mall's security policies. For their work on these private duty jobs, the officers are paid by the city of Milford, which is, in turn, reimbursed by the mall.

By November, 2015, the defendant was well known to PSC. He was frequently seen in mall parking lots "panhandling," i.e., asking customers for money. Panhandling is prohibited on mall property. Prior to November 28, 2015, PSC security official Wilfred Castillo received ten to fifteen complaints about the defendant's panhandling. On several of these occasions, Castillo confronted the defendant and told him that "panhandling isn't allowed on [mall] property, and that he would have to leave." In response to Castillo's directives, the defendant would leave the mall property without incident.

PSC also had a "ban notice," dated July 9, 2015, on file in its office for the defendant. The ban notice stated that the defendant had been banned from mall property for one year. Under PSC policy, ban notices can be reviewed and approved (or potentially reversed) by PSC's director of security, Thomas Arnone, or by Arnone's assistant, as well as by the general manager of the mall, Dan Kiley.⁵ Based on the existence of this ban notice, the defendant was not permitted to be on mall property.

On November 27, 2015, Officer Joanna Salati of the Milford Police Department was working a private duty job when she saw the defendant panhandling on mall property. She contacted PSC on her radio and confirmed that the defendant previously had been banned. Salati approached the defendant and told him that "he had to leave ... because he was banned from being on mall property" and that "the next time he's caught on mall property, he's going to be arrested" for trespassing. Salati decided not to arrest the defendant for trespassing at that time because "it was too busy." The defendant left the property in response to Salati's directive.

The following day, November 28, 2015, Salati again saw the defendant on mall property "approaching customers." When the defendant saw Salati walking toward him, he began walking "quickly" away from her. Salati eventually caught up with the defendant and arrested him.

The defendant was charged with criminal trespass in the first degree in violation of § 53a-107 (a) (1). As the basis for this charge, the state alleged, in an amended long form information, that, "on November 28, 2015 ... [the defendant], knowing that he was not licensed or privileged to do so, did enter ... [mall property] after having been directed not to return to the property by authorized mall security personnel and/or authorized officers of the Milford Police Department ...." The defendant elected a trial by jury.

At trial, the parties’ dispute centered around the element of criminal trespass in the first degree that requires the defendant's unlawful entry to have occurred "after an order to leave or not to enter [was] personally communicated to [the defendant] by the owner of the premises or other authorized person ...." General Statutes § 53a-107 (a) (1). As proof that such an order had been communicated to the defendant prior to his entry onto mall property on November 28, 2015, the state relied on Salati's testimony that, on November 27, 2015, she told the defendant that "he had to leave ... because he was banned from being on mall property" and that "the next time he's caught on mall property, he's going to be arrested" for trespassing.

The crux of the defense was that § 53a-107 (a) (1) requires the order not to enter to be communicated "by the owner of the premises or other authorized person," and the state failed to prove that Salati had been authorized to communicate such an order to the defendant. (Emphasis added.) The defendant pointed out that the state called no witnesses from Westfield to testify about the authority it had granted to PSC or the private duty officers working for PSC to ban individuals from entering mall property. The defendant also introduced into evidence a document titled "Enforcement—Banning Procedures: Use of Physical Force" and subtitled "Lesson Plan 9" (lesson plan) that PSC's corporate office had prepared for purposes of training PSC's staff. The lesson plan provides, under the heading of "Temporary Suspension": "Suspend the privilege of being on the property for an amount of time that is determined by the severity of the incident and local and state ordinances. Any suspension for more than [twenty-four] hours must [be] approved [by] the [c]enter [m]anager." The lesson plan further provides, under the heading of "Reason to [S]uspend": "1. Only those individuals who have committed a crime at [the] [s]hopping [c]enter will be considered for banning and as in compliance with local, state and federal ordinances. 2. The [d]irector of [s]ecurity, [a]ssistant [d]irector of [s]ecurity or [s]ecurity [s]upervisor can only temporarily ban suspects for the remainder of the business day."

Relying on the lesson plan, defense counsel argued during closing argument that the state never proved that Westfield had authorized PSC to ban violators of the panhandling prohibition from mall property for one year (as reflected in the July 9, 2015 ban notice), or for any period of time longer than the remainder of the business day. Defense counsel further argued that this policy extended to Salati because Salati was working in a private capacity, assisting PSC's staff, and that her November 27, 2015 order to stay off mall property indefinitely exceeded her authority as set forth in the lesson plan.

The state, for its part, introduced evidence that PSC, and by extension Salati, did indeed have authority to ban people from mall property. Arnone, PSC's director of security, testified that PSC was authorized to ban people for periods of six months or one year and that PSC issued between 360 and 370 such bans per year. Arnone further testified that the lesson plan was not a "complete statement" of PSC's banning authority and that he had a verbal understanding with Kiley, the mall's general manager, whereby PSC's banning authority extended beyond what was set forth in the lesson plan.

Following the close of evidence, the defendant filed a written request for a jury instruction on the infraction of simple trespass, which he asserted was a lesser included offense of criminal trespass in the first degree.⁶ The state opposed the instruction on the grounds that (1) the second prong of Whistnant was not satisfied; see footnote 3 of this opinion; because simple trespass requires proof of an element that criminal trespass in the first degree does not, namely, that the defendant enter or remain on the premises "without intent to harm any property"; General Statutes § 53a-110a (a) ; and (2) infractions cannot be submitted to the jury as lesser included offenses of crimes. The trial court agreed with both of the state's arguments and denied the defendant's request for the instruction.

The jury subsequently found the defendant guilty of criminal trespass in the first degree. The court imposed a sentence of one year incarceration, execution suspended after four months, followed by two years of conditional discharge.

The defendant appealed to the Appellate Court, claiming that the trial court should have instructed the jury on the infraction of simple trespass as a lesser included offense. See State v. Marsala , 186 Conn. App. 1, 2–3, 7, 198 A.3d 669 (2018). In rejecting this claim, the Appellate Court concluded that the defendant's requested instruction failed the third and fourth elements of Whistnant ; see footnote 3 of this opinion; because there was no reasonable view of the evidence that permitted the jury consistently to find the defendant not guilty of...