author: Santaniello, J.

text:
    State of Connecticut v. William L. Gordon
    (11679)
    (12709)
    Peters, C. J., Shea, Dannehy, Santaniello and Callahan, Js.

      Argued June 11
    decision released September 10, 1985

      Suzanne Zitser and Jon C. Blue, assistant public defenders, with whom, on the brief, were Joette Katz and Eugene Riccio, public defenders, for the appellant (defendant).

      Julia D. Dewey and Robert J. OBrien, assistant state’s attorneys, with whom, on the brief, were Arnold Markle, state’s attorney, and Katherine Lambert, former deputy assistant state’s attorney, for the appellee (state).
   Santaniello, J.

The defendant, William Leonard Gordon, was charged in a substitute information with first degree burglary; General Statutes § 53a-101 (a) (1); conspiracy to commit first degree burglary; General Statutes § 53a-48; first degree robbery; General Statutes § 53a-134 (a) (2); conspiracy to commit first degree robbery; General Statutes § 53a-48; first degree larceny; General Statutes § 53a-122 (a) (2); conspiracy to commit first degree larceny; General Statutes § 53a-48; second degree unlawful restraint; General Statutes § 53a-96 (a); and conspiracy to commit second degree unlawful restraint. General Statutes § 53a-48. He was convicted as charged by a jury, and was sentenced to a term of not less than eighteen nor more than forty years imprisonment. He appeals both from his conviction, and from the sentences imposed on the guilty verdiets, raising five claims of error. One claim involving the denial of a pretrial motion for a continuance was also pursued simultaneously with this appeal, through a petition for a writ of habeas corpus, which the habeas court denied prior to oral argument before this court. As a general rule, this court will not consider a claim which is the subject of a collateral proceeding from which an appeal to this court is available. We therefore decline to review this claim. The remaining four claims, all properly before us, question (1) whether the defendant’s attorney-client privilege was violated, (1A) whether the trial court erred in denying defense counsel’s motion for a continuance until a key trial witness had become available to testify, (2) whether the trial court’s treatment of defense counsel denied the defendant a fair trial, and (3) whether the trial court erred in computing the defendant’s total effective sentence. We find no error.

The Crime

On February 18, 1980, two masked, armed men entered the West Haven home of Stanley and Harriet Sikorsky. The intruders bound and gagged Mrs. Sikorsky, who was alone in the house except for her three children, who were asleep, and tied her to a chair with a piece of twine. They then removed from the home jewelry valued at approximately $130,000, a fur coat, a camera, and $5000 cash. The West Haven police investigated the crime, but initially had no leads.

On March 22,1980, the Milford police arrested Gary White for possession of a weapon in a motor vehicle. A search of White’s car incident to his arrest revealed items the police believed to be the tools of crime, including a ski mask, a pair of pliers, and a ball of twine. The discovery of these items prompted the Milford police to contact the West Haven police, who then came to Milford to interview White concerning the Sikorsky robbery. During the course of the interview, White made inculpatory statements linking himself and the defendant to the crime. On the strength of these inculpatory statements, the police secured a warrant to search the defendant’s home. During the execution of the warrant on March 26, 1980, the police seized several items, including a piece of twine, a police scanner, and a code book. The defendant, however, was not then arrested.

On May 2, 1980, the West Haven police arrested Robert Hundley in connection with the robbery. Hundley made several statements to the police implicating himself, White, and the defendant in the crime. On May 8, the police executed a warrant for the defendant’s arrest.

Pretrial Preparation

Following his arrest, the defendant retained Attorney Robert Mirto to represent him in the preliminary proceedings. In August, 1980, the defendant hired Attorney Robert Casale, who then became sole defense counsel in the case. From the time of his arrest until his subsequent conviction, the defendant took an extremely active role in the preparation of his defense. His wife, Janet Gordon, also assisted in the planning of defense strategy.

The extent and timing of Janet Gordon’s involvement with the defendant and his counsel are crucial and disputed issues in this case. The following facts appear clear from the record: From the time of the defendant’s arrest in May, 1980, until January 5,1982, when she entered a federal witness protection program, Janet Gordon consistently supported her husband throughout all pretrial proceedings and in the preparation of his defense. Outwardly, she was stalwart in maintaining her husband’s innocence. She regularly accompanied the defendant on weekly, and often daily, visits to Casale’s office, and was present during attorney-client discussions between the defendant and Casale. At home, she participated in three-way phone conversations with the defendant and Casale. More important, it appears that Janet Gordon was an active participant in the planning of defense strategy, including the decision of whether she or the defendant would take the stand, the discussion of which other witnesses might be helpful to the case and how these witnesses could be located, and the preparation of a list of alibi witnesses.

On November 30,1981, a date crucial to the defendant’s claims on appeal, Janet Gordon initiated a meeting with Detective James Harris of the West Haven police department at a restaurant in New Haven. At that meeting, she revealed to Harris that her husband had been involved in the Sikorsky robbery, and discussed with Harris the details of the crime. She claimed that the defendant had been threatening her, and that she was deeply afraid of him. Thereafter, Janet Gordon met on two more occasions with members of the police department and the state’s attorney’s office at the career criminal division in New Haven. At the first of these meetings, which occurred on December 3,1981, she told the police the strategy the defendant had planned to use to discredit Gary White’s statements, and that neither she nor the defendant nor their children would be taking the stand in the upcoming trial. She also expressed a desire to leave the defendant and she sought the state’s aid in arranging her placement into a federal witness protection program. On December 14, 1981, the second meeting took place, during which federal marshals interviewed Janet Gordon in connection with her entrance into the witness protection program. It appears that she did not discuss the case with the police or the state’s attorney at that time.

The state informed Janet Gordon, after its initial meeting with her on November 30, that she could not be placed immediately in a protection program and that she should return home and try to avoid any further involvement in the defendant’s case. She was also told not to relate to the police or the state’s attorney any information she had received concerning preparation of the defense. Janet Gordon did, however, continue to participate in meetings between the defendant and Casale after this time in order not to arouse suspicion that she had been in contact with the state.

On or about January 6,1982, Janet Gordon and her three sons left their home and entered a witness protection program. The defendant and his counsel had no knowledge of Janet Gordon’s involvement with the state prior to this time, and did not receive official notice of her decision to become a state’s witness until March, 1982. On March 18, Casale, in anticipation of having to testify at a pretrial hearing involving Janet Gordon’s conduct, withdrew as the defendant’s counsel.

The defendant’s trial was scheduled to begin on March 23. He appeared on that date without counsel and was given a one week continuance to find new counsel. On March 30, he again appeared without counsel, having had difficulty with the financial arrangements involved in retaining a private attorney. The court told the defendant to be back in court on April 13 with counsel and no excuses. The defendant appeared in court on April 13 having retained Attorney Charles Hanken to represent him. Hanken then requested a two to three week continuance, claiming he had not had sufficient time adequately to prepare for trial. The motion was denied, first by the court, Fishman, J., in pretrial proceedings, and again by the trial court, Hadden, J., just prior to the start of jury selection. It is unclear from the record precisely when Hanken began to work on the case.

The Trial

Jury selection began on April 13,1982. On April 19, the defendant filed a motion to dismiss the charges, based on what he claimed to be his wife’s infiltration, as an informer for the state, into privileged communications between himself and his attorney. The trial court held an evidentiary hearing on the motion on April 22, and from April 27 through 29, during which Janet Gordon, Detective Harris, Attorneys Mirto and Casale, and State’s Attorney Durham testified. The defendant attempted to show through these witnesses that Janet Gordon had become an agent of the state on November 30,1981, that she thereafter had received information concerning defense strategy during privileged discussions between the defendant and his attorney, and that she had transmitted this information to the state. The trial court denied the motion, finding that Janet Gordon had voluntarily approached the state, that the state had specifically instructed her to avoid further contact with Casale, and that any information she passed on to the state she had received prior to initially contacting the state. The defendant duly excepted.

On April 27, 1982, defense counsel discovered that Gary White, scheduled to testify as a state’s witness, had escaped from custody. Counsel moved for a continuance until White’s apprehension, stating that White’s testimony was crucial to the defendant’s ability to receive a fair trial. The court denied the motion. On May 3, the state began presenting its case-in-chief. On May 20, while the state was still presenting its case, defense counsel moved for a continuance on the basis of his discovery that Gary White had been apprehended in Louisiana. The trial court denied the motion.

On May 28, the jury found the defendant guilty as charged. He received a total effective sentence of eighteen to forty years imprisonment. The defendant thereupon filed a motion in the trial court to correct the sentence, pursuant to Practice Book § 935. The court denied the motion and the defendant amended the present appeal, pursuant to Practice Book § 3062, to include a review of this ruling.

I

The defendant’s first claim is that the trial court erred in denying a motion to dismiss based upon his wife’s continued participation in privileged discussions between the defendant and his attorney after November 30, 1981, the date he alleges she entered into an agency relationship with the state. The defendant characterizes Janet Gordon as a government informant who, after November 30, obtained and transmitted to the state confidential attorney-client communications in violation of his sixth amendment right to counsel and fourteenth amendment guarantee of a fair trial.

In order to prevail on this claim of error, the defendant must first prove that Janet Gordon’s relationship with the state was one of agency. This court recently enumerated, in State v. Alexander, 197 Conn. 180, 496 A.2d 486 (1985), the primary factors to be considered in determining when an otherwise private citizen has become an agent of the government. “The existence of an agency relationship . . . turns upon a number of factual inquiries into the extent of police involvement with the informant. Those inquiries include the following: whether the police have promised the informant a reward for his cooperation or whether he is self-motivated; see Thomas v. Cox, [708 F.2d 132, 136 (4th. Cir.), cert. denied, 464 U.S. 918, 104 S. Ct. 284, 78 L. Ed. 2d 262 (1983)]; Lightbourne v. State, 438 So. 2d 380, 386 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1330, 79 L. Ed. 2d 725 (1984); whether the police have asked the informant to obtain incriminating evidence and placed him in a position to receive it; see United States v. Brown, 466 F.2d 493, 495 (10th Cir. 1972); People v. Odierno, 121 Misc. 2d 330, 334, 467 N.Y.S.2d 968 (1983); and whether the information is secured as part of a government initiated, pre-existing plan. See United States v. Panza, 750 F.2d 1141, 1152 (2d Cir. 1984); Thomas v. Cox, supra, 136.” State v. Alexander, supra, 184-85. We have reviewed the defendant’s claim of agency in light of these factors. It is our conclusion that at no point in time did an agency relationship exist between Janet Gordon and the state.

We begin by noting that, significantly, it was Janet Gordon who initially approached the state and expressed the desire to reveal certain information concerning the defendant’s involvement in the Sikorsky robbery. It appears that she contacted the state out of fear that she would be pressured by the defendant into committing perjury on the stand, and in order to obtain the protection of a federal witness program. The fact that the government did not specifically contact Gordon, while not determinative of the question of agency, clearly is of considerable importance to our analysis. See Thomas v. Cox, supra, 135.

Although the defendant asserts that Janet Gordon’s relationship with the state involved an implied exchange of promises that she would obtain information for the state and eventually testify against the defendant if the state would guarantee her and her children’s placement in a witness protection program, there is simply no evidence in the record to support such an allegation. Unrefuted testimony given by Janet Gordon, Detective Harris, and State’s Attorney Durham at the evidentiary hearing on this matter tended to show that the state had instructed Janet Gordon to try to avoid further contact with defense counsel and to keep private any information she received concerning the defendant’s case. Although the state instructed Janet Gordon to remain at home until her placement in a protection program, approximately one month later, the defendant cannot point to any facts to support his veiled allegation that this was done for the purpose of infiltrating privileged conversations between the defendant and his attorney. In sum, there is no evidence in the record before us to support a finding of agency between Janet Gordon and the state. Consequently, the defendant’s claim on this issue must fail.

The defendant has raised the additional and related argument that Janet Gordon became so intimately involved in the planning of defense strategy that she was bound to respect the same attorney-client confidentiality requirement as if she had been a legal associate of defense counsel. He contends that, under these circumstances, her disclosure to the state of privileged information she obtained either before or after November 30 violated the defendant’s sixth amendment right to counsel.

“The basic principles of the attorney-client privilege are undisputed. Communications between client and attorney are privileged when made in confidence for the purpose of seeking legal advice. Doyle v. Reeves, 112 Conn. 521, 523, 152 A. 882 (1931); Tait & LaPlante, Handbook of Connecticut Evidence (1976) § 12.5. By contrast, statements made in the presence of a third party are usually not privileged because there is then no reasonable expectation of confidentiality. State v. Colton, 174 Conn. 135, 138-39, 384 A.2d 343 (1977); McCormick, Evidence (2d Ed. 1972) § 91, p. 188.” State v. Cascone, 195 Conn. 183, 186, 487 A.2d 186 (1985). The presence of certain third parties, however, who are agents or employees of an attorney or client, and who are necessary to the consultation, will not destroy the confidential nature of the communications. State v. Cascone, supra, 186-87 n.3.

The defendant’s claim that Janet Gordon’s status was analogous to that of a legal associate of defense counsel fails on the facts. Janet Gordon clearly was not an employee of Attorney Casale. She received no salary and had no other connection to him beyond her involvement with the defendant’s case. Defense counsel did not initiate Janet Gordon’s attendance at attorney-client conferences or directly seek her assistance in the development of defense strategy. It appears instead that it was the defendant who encouraged her involvement. We cannot conclude, therefore, that Gordon was constrained by the attorney-client privilege as if she had been a legal associate of defense counsel.

IA

The defendant’s second claim is that the trial court erred in denying his motion for a continuance until Gary. White, a proposed state’s witness and escapee from custody, could be apprehended and returned to Connecticut, thus becoming available to testify. Prior to jury selection, on April 13,1982, Gary White was listed as one of the state’s proposed witnesses. At that time White was incarcerated. Subsequent thereto, on April 27,1982, defense counsel discovered that White had escaped from custody. During the course of the trial, statements made by White, a confessed accomplice, were introduced into evidence as a result of defense counsel’s examination of other witnesses. Upon ascertainment of the fact of White’s escape and unavailability, defense counsel informed the court that he now desired the presence of the missing witness at the trial as an essential witness for impeachment purposes. A motion for mistrial was then filed, which was denied. During the discussion before the court on the motion for mistrial, the following discourse took place:

“Mr. Hanken: First I’m asking for a mistrial.

“The Court: Oh. Is that your second motion, for a continuance?

“Mr. Hanken: First let me finish with the first one. I don’t know if Gary White will ever be found. I would like to ask for a reasonable continuance until Gary White is found, but who in God’s name knows if he ever will be? Also, I have to consider I have a jury out. I don’t even recall when we picked the first one, nor actually when we picked the last one, but it seems that they’ve been out for quite a long time.

“The Court: That’s something that I have given some thought to, Mr. Hanken, but go ahead. Finish your argument on the motion for mistrial.

“Mr. Hanken: So I don’t think we can realistically wait for Gary to be caught. I would, therefore, accordingly, move for a mistrial and, if and when Gary White is found, renew — well, not ‘renew’ but start a new trial.

“Mr. Fasano: I’m assuming at this point we’re taking up the motion for mistrial. I haven’t heard a thing that even remotely resembles the basis for a motion for mistrial.

“The Court: Neither have I. The motion for mistrial is denied.”

At this time, defense counsel moved for a continuance of the case until White was apprehended, but the motion was denied by the court. Thereafter, while the state was completing the presentation of its case in chief, the state’s attorney informed the court that White had been apprehended and was in the custody of the Shreveport, Louisiana police officials. He also informed the court that it “would not be the State’s intention at this time, however, to wait for Gary White’s return to complete its case in chief.” Defense counsel then renewed his motion “to continue the case until Gary White comes back.” This motion was denied. The record at this point was devoid of any information regarding “possible extradition proceedings,” and there was no offer made to show a reasonable expectation of when, if at all, White might be returned to Connecticut.

The law is clear that requests for continuances are matters of judicial discretion and that on review every reasonable presumption in favor of the trial court’s discretionary ruling will be made. State v. McKnight, 191 Conn. 564, 577, 469 A.2d 397 (1983); State v. Bethea, 167 Conn. 80, 84, 355 A.2d 6 (1974). The trial court’s decision will be reversed only if it represents a gross abuse of discretion that substantially alters the defendant’s chance for a fair trial. “ ‘ “There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.” ’ ” State v. McKnight, supra, 576; State v. Bethea, supra. Rather, the answer must be found in the particular facts of each individual case. State v. McKnight, supra. If the criminal defendant requests a continuance to await the return of an absent witness, he bears the burden of providing a good faith justification for such a continuance. In the instant matter, the state was close to concluding its case, the court had already denied a motion for mistrial and there was no representation as to when, if ever, the missing witness might be expected to become available for testimony. In fact, there was no information on the witness’ availability other than that he had been apprehended in Louisiana. There was no indication that White would waive extradition and thus become immediately available for trial. See, e.g., Parks v. Bourbeau, 193 Conn. 270, 477 A.2d 636 (1984). Extradition procedures can be extremely lengthy and complicated, and there is no guarantee that the extradition process will be successful. The record was devoid of any attempt to establish a reasonable expectation of when White might be available. Courts must vigilantly ensure that requests for continuances do not become mere vehicles for achieving delay, which, in turn, may obstruct the orderly procedure in the courts or interfere with the fair administration of justice. The court did not abuse its discretion, under these circumstances, in refusing to permit an indefinite or open-ended continuance.

Thus, the court’s denial of the defendant’s request for a continuance was appropriate and within its discretionary powers.

II

The defendant next claims that he was deprived of his constitutional right to a fair trial as a result of the trial judge’s treatment of defense counsel throughout the course of the proceedings. The defendant labels the court’s treatment of defense counsel as “degrading and unjudicial” and contends that it materially impaired his counsel’s ability adequately to present a defense. The state, on the other hand, argues that the trial judge’s actions were a proper, albeit futile, attempt to control an unruly defense counsel, whose conduct it describes as “petulant, sarcastic, insulting, emotional, melodramatic, and . . . contemptuous.”

“Due process requires that a criminal defendant be given a fair trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm. U.S. Const., amend. XIV; Conn. Const., art. I, § 8; Lisenba v. California, 314 U.S. 219, 62 S. Ct. 280, 86 L. Ed. 166 [1941]; Wojculewicz v. Cummings, 145 Conn. 11, 19, 138 A.2d 512, cert. denied, 356 U.S. 969, 78 S. Ct. 1010, 2 L. Ed. 2d 1075 [1958]. In a criminal trial, the judge is more than a mere moderator of the proceedings. It is his responsibility to have the trial conducted in a manner which approaches an ‘atmosphere of perfect impartiality which is so much to be desired in a judicial proceeding.’ Glasser v. United States, 315 U.S. 60, 82, 62 S. Ct. 457, 86 L. Ed. 680 [1942]; Quercia v. United States, 289 U.S. 466, 469, 53 S. Ct. 698, 77 L. Ed. 1321 [1933].” State v. Echols, 170 Conn. 11, 13, 364 A.2d 225 (1975).

Our review of the transcript reveals that the trial judge was neither “cautious [nor] circumspect” in the manner in which he addressed defense counsel, and presided over the case. See Cameron v. Cameron, 187 Conn. 163, 169, 444 A.2d 915 (1982). The transcript, which encompasses well over three thousand pages, is replete with instances of argumentative conduct towards defense counsel. Although it appears from the record that the actions of defense counsel often provoked and irritated the court, accounting for much of the contention, the court still has the responsibility of maintaining a calm demeanor and the decorum of the courtroom.

The defendant is entitled to a new trial in such circumstances, however, only where he can show that prejudice resulted from the court’s actions. See State v. Echols, supra, 16. In the present case, the trial judge directed his disparaging comments solely at defense counsel. The judge took no position of advocacy regarding the outcome of the case, and made no improper comments on the significance of the evidence presented. At no time did the judge convey to the jury his opinion as to the guilt or innocence of the defendant. The trial judge’s actions, while questionable, do not appear to have thwarted defense counsel’s ability to defend his client. Counsel zealously argued the numerous motions he presented, fully cross-examined all witnesses and was not constrained in his attempts to have evidence admitted, or in his ability to object to actions of the state’s attorney. We conclude that because the trial court did not show any actual animosity towards the defendant on the merits of the case, the court’s allegedly improper treatment of defense counsel did not deny the defendant a fair trial. See State v. Gionfriddo, 154 Conn. 90, 97, 221 A.2d 851 (1966).

Ill

The defendant’s final claim is that the trial court erred in computing the defendant’s effective sentence. Following the defendant’s conviction on the eight counts charged, the trial court imposed concurrent indeterminate sentences of ten to twenty years on the first four counts, concurrent indeterminate sentences of seven to twenty years on the fifth and sixth counts, and concurrent definite sentences of one year on the last two counts. The court ordered the two pairs of concurrent indeterminate sentences to run consecutive to each other, amounting to a total effective sentence on the first six counts of seventeen to forty years. The court then ordered the concurrent definite sentences of one year to run consecutive to the indeterminate sentence of seventeen to forty years, and that it be added to the minimum of the indeterminate sentence, thus giving the defendant a total sentence of eighteen to forty years. The trial court denied the defendant’s motion to correct an illegal sentence. The defendant claims on appeal that the trial court erred in adding the determinate sentence to the minimum, rather than to the maximum amount of the effective sentence.

To support his position the defendant relies on two statutes. He contends first that the language of General Statutes § 53a-37 authorizes a sentencing court to add a subsequent definite sentence to the maximum term imposed on a prior count. That statute provides in part: “When a person is sentenced for two or more counts each constituting a separate offense, the court may order that the term of imprisonment for the second and subsequent counts be for a fixed number of years each. The court in such cases shall not set any minimum term of imprisonment except under the first count, and the fixed number of years imposed for the second and subsequent counts shall be added to the maximum term imposed by the court on the first count.” The defendant further claims that adding a subsequent determinate sentence to the minimum of an indeterminate sentence is contrary to General Statutes § 53a-35 (c) (2), which provides that the minimum term for a class B, C, or D felony shall not be “more than one-half of the maximum term imposed.” Our interpretation of these statutes leads us to a different conclusion.

The latter portion of § 53a-37, upon which the defendant relies, provides the court with an alternate method of sentencing for crimes carrying indeterminate sentences. It operates in situations where the trial court imposes an indeterminate sentence on the first count, and where the additional counts require indeterminate sentences, but the court in its discretion, may set a fixed number of years for each second and subsequent count. In such a situation, the court does not set any minimum term of imprisonment except under the first count and the number of years imposed for the second and subsequent counts are added to the maximum imposed on the first count. In the present case the definite sen-fences of one year were for misdemeanor violations, for which the trial court was required to impose a definite sentence not to exceed one year. The imposition of an indefinite sentence was not an option for the court under the provisions of § 53a-37.

Once a definite sentence is imposed, a defendant must serve the full amount of the sentence. Unlike indeterminate sentences, there is no discretion in the parole board to order early release from a definite sentence. Logically, it would make little sense to add a definite sentence to the maximum of an indeterminate sentence, because a defendant would need to serve only the minimum of the indeterminate sentence before he would be eligible for parole. In that situation, there could be no guarantee that the defendant would serve the definite sentence imposed. It is our conclusion, therefore, that where a sentencing court imposes on multiple counts an indeterminate sentence followed by a consecutive definite sentence, the mandatory definite sentence is to be served at the conclusion of the minimum term of the indeterminate sentence unless the court orders otherwise.

There is no error.

In this opinion the other judges concurred.

       The defendant does not claim a violation of the marital privilege. That privilege, embodied in General Statutes § 54-84a, protects private communications between a husband and wife, and can be waived by the testifying spouse at any time. The defendant could not successfully claim this privilege since Janet Gordon voluntarily testified against him at trial.

       “[Practice Book] Sec. 288. objections to evidence
      “Whenever an objection to the admission of evidence is made, counsel shall state the grounds upon which it is claimed or upon which objection is made, succinctly and in such form as he desires it to go upon the record, before any discussion or argument is had. Argument upon such objection shall not be made by either party unless the court requests it and, if made, must be brief and to the point. An exception to the ruling must be taken in order to make it a ground of appeal.”


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Esther Keating v. Glass Container Corporation et al.
    (12005)
    Peters, C. J., Shea, Santaniello, Callahan and Brennan, Js.

      Argued May 8
    decision released September 10, 1985

      Thomas W. MochnicJc, for the appellant (defendant Pepsi-Cola Bottling Company of New Haven, Inc.).

      Ernest J. Mattel, with whom, on the brief, was Kim M. Cooke, for the appellee (defendant Owens-Illinois, Inc.).
   Callahan, J.

This action was commenced by the plaintiff, Esther Keating, on March 3, 1977, for injuries received when a cap from a Pepsi-Cola bottle she had purchased blew off and struck her in the eye, causing multiple injuries. The plaintiff’s substitute complaint alleged strict liability against four defendants: Pepsi-Cola Bottling Company of New Haven, Inc. (hereinafter Pepsi), the bottler of the soda; Rosemary and Guido Parisi, doing business as the East Rock Package Store (hereinafter East Rock), retailers of the soda; Glass Container Corporation (hereinafter Glass Container), the bottle manufacturer; and Owens-Illinois, Inc. (hereinafter Owens-Illinois), the bottle cap manufacturer. On October 25,1979, Pepsi filed a cross complaint for indemnification against Owens-Illinois and Glass Container, alleging negligence and breaches of warranty. East Rock also filed a cross complaint for indemnification against the other three defendants alleging similar claims.

The case was tried to the jury only on the plaintiffs substitute complaint in strict liability. On December 17, 1982, the jury returned a plaintiffs verdict against the defendants Pepsi and East Rock in the amount of $95,000, and found for the defendants Owens-Illinois and Glass Container. On December 24,1982, the trial court heard the parties on the cross complaints. On February 3,1983, the court rendered judgment in favor of Owens-Illinois and East Rock on the cross complaints and ordered that Pepsi indemnify East Rock for any liability incurred as a result of the judgment recovered by Esther Keating against East Rock.

Pepsi appeals, claiming that the trial court erred in holding that Pepsi did not have a right to a jury trial on its cross complaint against the defendant Owens-Illinois. Because we find that Pepsi failed to make a timely objection concerning the trial court proceedings and has not provided an adequate record for purposes of this appeal, we do not reach the merits of Pepsi’s claim that it had a right to a jury trial on its cross complaint. We find no error.

We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. See Practice Book § 3063; Rybinski v. State Employees’ Retirement Commission, 173 Conn. 462, 466, 378 A.2d 547 (1977). The reason for requiring timely objections in judicial proceedings is to enable the judge and opposing counsel to correct possible errors, obviating the need for an appeal. Moreover, it is an appellant’s burden, utilizing the rules of practice, to ensure that this court is provided with an adequate appellate record. Practice Book § 3082; Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983); Kaplan v. Kaplan, 186 Conn. 387, 388, 441 A.2d 629 (1982).

The record in the present case is replete with inconsistencies which could have been resolved by Pepsi at trial. It appears that the trial judge assumed that an agreement had been reached to try the defendants’ cross complaints to the court after the jury portion of the trial. This is evident not only in statements made by the court throughout the proceedings, to which counsel acquiesced, but also in the court’s memorandum of decision. A brief summary of correspondence prior to trial and statements during trial demonstrates the opportunities Pepsi had to alert the trial court to any possible error that had occurred, and to preserve the record for appeal. Pepsi simply failed to avail itself of these opportunities.

Subsequent to a pretrial conference, the assignment judge, Berdon, J., sent a letter to all attorneys of record, in which the judge said, inter alia, that the parties were not entitled to a jury trial on the cross complaints since a claim for indemnification is equitable. The letter also stated that the cross complaints would be tried to the court, and that, if a plaintiff’s verdict was returned at trial, the court would give the parties an opportunity to present additional evidence on their cross complaints. In a letter to the trial court, dated the same day as Judge Berdon’s letter, counsel for Pepsi informed the court that he had contacted his client and that Pepsi did not wish to waive its right to a jury determination of its cross complaints pursuant to the judge’s pretrial conference request. Pepsi now claims that the letter from Judge Berdon “ordered” that a court determine its cross claims in disregard of its right to a jury trial. Pepsi also argues, in essence, that its letter to the court was an objection to this order. We disagree.

First, we do not construe Judge Berdon’s letter to counsel to be a ruling or court order. Although the letter did characterize the cross complaints as equitable in nature, it also contained other information concerning the scheduling of motions and it ended with a paragraph indicating that the judge was open to suggestions. It was not framed in the context of a formal ruling on any one issue. Second, Pepsi’s letter to the court was nothing more than a response to suggestions made at a pretrial conference. It cannot be considered a formal objection. See Rybinski v. State Employees’ Retirement Commission, supra, 466. Prior to the start of the jury trial on the plaintiff’s complaint, had Pepsi wished to preserve the issue for appeal, it could and should have placed a formal objection on the record and sought a determination by the trial judge as to its right to a jury trial on the cross complaints. Id.

On December 8, 1982, prior to jury selection, Pepsi’s counsel asked the court to whom the cross complaints would be tried. The court indicated that the cross complaints would be tried to the court at the end of the jury trial. Pepsi did not object at this point or on subsequent occasions when the judge and other counsel referred to a court trial of the cross complaints. The only objection came at the time of the court trial when it was too late for the trial judge to change the course of the proceedings. See Sinisgalli v. Warden, 153 Conn. 599, 602, 219 A.2d 724 (1966). Pepsi cannot now claim a new trial because of a situation which was in part caused by its failure to make a timely objection. See, e.g., Enquire Printing & Publishing Co. v. O’Reilly, 193 Conn. 370, 378, 477 A.2d 648 (1984); Battistelli v. Connohio, Inc., 138 Conn. 646, 650, 88 A.2d 372 (1952).

Pepsi also had an opportunity to clarify the basis for trying the cross complaints to the court when the trial court’s memorandum of decision on the cross complaints was issued. The trial court stated in its decision that by oral stipulation of counsel, the court agreed it would decide all cross complaints. Further, he stated that it was also agreed that the defendants would have an opportunity to file cross complaints and offer additional evidence to supplement what the court had heard during the jury trial. If Pepsi disagreed with these representations, it should have utilized Practice Book § 3082 to clarify the legal or factual basis for the trial court’s statements. See Leverty & Hurley Co. v. Commissioner of Transportation, 192 Conn. 377, 379, 471 A.2d 958 (1984); Kakalik v. Bernardo, 184 Conn. 386, 390-91, 439 A.2d 1016 (1981). Pepsi failed to take advantage of this procedure, and we therefore have no basis to conclude that the trial court erred in its recollection of what had transpired. See Kakalik v. Bernardo, supra, 391. It is the appellant’s responsibility to secure an adequate record, and under normal circumstances a case will not be remanded to correct a deficiency the appellant could have remedied. Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983); see Grunschlag v. Ethel Walker School, Inc., supra; Kaplan v. Kaplan, 186 Conn. 387, 388 n.1, 441 A.2d 629 (1982).

There is no error.

In this opinion the other judges concurred.

       Pepsi and East Rock filed motions to set aside the verdict, both of which were denied by the trial court.

       It appears from the record that Pepsi’s cross complaint against Glass Container was not pursued at the court trial.

       The defendant Pepsi presented another issue in its preliminary statement of issues, claiming error in the trial court’s admission of and reliance on certain testimony. This claim was not briefed or argued at oral argument and is thus considered abandoned for purposes of this appeal.

       Judge Berdon cited the case of Lockwood v. Nagy Bros., Inc., 150 Conn. 691, 692, 186 A.2d 82 (1962), for this proposition. We do not address the issue of whether or not his application of Lockwood was correct.

       We note that Pepsi’s letter and the assignment judge’s letter were both dated the same day, and it thus seems likely that they crossed in the mail. There is nothing in the record to rebut the logical conclusion that Pepsi’s letter was written and sent after the pretrial conference, and not in response to Judge Berdon’s letter.

       “Mr. McNamara: Your Honor, I wonder if we could have it — I’m not sure; maybe we did in chambers. Has it been decided that the cross complaints themselves will be offered at another time? I think we have [to] know that before we start jury selection.
      “The Court: Well, we haven’t started the actual testimony yet.
      “Mr. McNamara: Right; but I think we need to know that when we’re bringing in the jury.
      “The Court: Off the record — (whereupon a discussion was held off the record).
      “Mr. McNamara: As I understand it, Judge, just so I’m clear, what we’ll do is try Mr. Walsh’s case against all of us.
      “The Court: We won’t worry about the cross complaints at all.
      “Mr. McNamara: Then when that’s finished, then we’ll proceed with whatever additional evidence we wish to offer as against each other.
      “The Court: Right.
      * * *
      “Mr. Shea [counsel for East Rock]: There’s one more confusion on my part. Is it clear now that the cross complaints are going to be tried to the court?
      “The Court: Yes.
      “Mr. Shea: O.K.”

       On December 24, 1982, after the jury trial was completed, co-counsel for Pepsi indicated that he was strongly objecting to the fact that the cross complaints were not being heard by the jury. “Mr. Mochnick: [T]he fact of the matter is, I believe we have an absolute right to our cross claim being heard by the jury and we take strong exception to the fact that the court is hearing these cross claims.”

       We do recognize that after the jury had been selected but prior to the presentation of evidence at the jury trial, and in response to a motion in limine by the defendant Owens-Illinois, Pepsi’s counsel stated that it wished not to waive its right to a jury trial on the cross complaints. As the transcript of the proceedings before the start of jury selection indicates; see footnote 6, supra; counsel for Pepsi appeared to acquiesce at that time in a nonjury trial of the cross complaints. On that occasion he stressed the importance for the voir dire of knowing whether the jury would be deciding the cross complaint issues. In reliance upon his apparent waiver of a jury trial on the cross complaint other parties made their selections of jurors. It would have been unfair, therefore, after the jury had been chosen to permit counsel for Pepsi to withdraw his earlier consent to a court trial of the cross complaints, as manifested by his failure to object when the court responded affirmatively to the inquiry concerning a nonjury trial of those issues. Also, despite the protestation of counsel for Pepsi, the trial court was never requested nor required to make a ruling concerning counsel’s statement.

       At the time the trial court released its decision in February, 1983, Practice Book § 3082 provided: “[Practice Book] Sec. 3082. rectification of appeal.
      “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record shall be made in the first instance to the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may, either on its own motion or on a motion filed by any party, make, after hearing, such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the day the appeal is ready to be assigned for hearing. The action of the trial judge as regards such a correction or addition may be reviewed by the supreme court under Sec. 3108. Nothing herein is intended to affect the existing practice with respect to opening and correcting judgments and the records on which they are based.
      “Corrections made before the record is printed shall be included in it. If the record has been printed, the trial judge or the chief justice may direct the chief clerk of the supreme court to make a supplemental printed record, to be printed and distributed in the same way as the original printed record, but in the absence of such a direction the chief clerk of the supreme court shall furnish the judges of the supreme court typewritten copies.”

       Our review of the record reveals that much of the discussion concerning the cross complaints took place off the record. We have noted in the past the hazards of making off-the-record stipulations. Nair v. Thaw, 156 Conn. 445, 455, 242 A.2d 757 (1968). In Nair, we indicated that the court and counsel can best assure themselves of protection from misunderstanding and faults of recollection by making a transcript available for review by this court. Id.

       “[Practice Book] Sec. 3060D. review by the supreme court
      “The supreme court may reverse or modify the decision of the trial court
      if it determines that the decision is clearly erroneous in view of the evidence and pleadings in the whole record.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”