(dissenting). I respectfully dissent. The court’s decision to reverse the defendant’s murder conviction rests on four grounds, all of which are in error for reasons I explain initially here and in more detail later. First, although the court recognizes that it must defer to a judge’s findings of fact unless they are clearly erroneous, ante at 727, it failed to apply that standard of review when it concluded that the trial judge erred in finding that Detective Sergeant Daniel Keeler of the Boston police *742department testified at trial to what the defendant had confessed before he invoked his right to counsel. Had the appropriate standard of review been applied, the court reasonably would have had to conclude that the judge’s findings were not clearly erroneous.
Second, the court appears to conclude that, where a defendant’s statement is suppressed because of a Miranda violation, the use of the statement to refresh a witness’s memory as to what was said before the Miranda violation is a forbidden “fruit of the poisonous tree.” As a result, the court appears to believe that, before testimony describing a previolation confession may be admitted in evidence, a judge must determine that the witness’s memory of the previolation confession was not influenced by his review of the transcript of the recorded postviolation confession. Ante at 731. This plainly is not true under the United States Constitution and should not be true under art. 12 of the Massachusetts Declaration of Rights, because it would treat a confession that is suppressed because of a Miranda violation as if it were immunized testimony that may not be used in any way, directly or indirectly, to incriminate a defendant.
Third, the court holds that the judge below abused her discretion in limiting the scope of the defendant’s cross-examination of Keeler. Ante at 737-738. A judge has “broad latitude to direct the course of a trial,” including limiting the scope of cross-examination. Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003). Here, the judge placed one limitation on the defense — that it could only raise once the fact that Keeler failed to take notes during the defendant’s confession. This limitation does not constitute an abuse of discretion in the circumstances of this case. In addition, I know of no case (and the court cites none) where this court has concluded that a defendant is unfairly prejudiced by being denied the opportunity to repeat a point already made during cross-examination.
Fourth, the court finds that during closing argument the prosecutor asked the jury to draw an improper inference regarding the evidence that “substantially amplified” the other errors it identifies in the proceedings. Ante at 738-739. While I agree that the prosecutor’s argument was improper, given the totality of the evidence against the defendant his one remark does not amount to reversible error.
*743Finally, the court declares that a new trial is required under its plenary power under G. L. c. 278, § 33E, because the judge failed to give the jury an instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). Ante at 739-740. This is not an appropriate case to exercise our discretionary authority under § 33E to order a new trial because the judge was not required to give the DiGiambattista instruction where the defendant did not request it.
1. Did the judge clearly err in finding that Detective Sergeant Keeler limited his testimony to what the defendant confessed before the Miranda violation? Before trial, the motion judge allowed in part the defendant’s motion to suppress his confession, finding that the defendant had invoked his right to counsel at the beginning of the tape-recorded interrogation, so the unrecorded interrogation was admissible but the recorded interrogation was not. On October 16, 2007, during the trial, the defendant filed a motion to limit the testimony of Keeler regarding the defendant’s confession before the Miranda violation to the evidence elicited from Keeler during his grand jury testimony and in specific pages of the transcript of his testimony at the suppression hearing.1 Based on this previously elicited evidence alone, which the defendant did not claim was inadmissible at trial, Keeler could have testified to the following facts regarding the defendant’s confession:
Keeler obtained an arrest warrant against the defendant for the victim’s murder and went to the Boston Medical Center to serve the warrant on the defendant. He entered the defendant’s hospital room with Detective John Callahan, and advised the defendant that an arrest warrant had issued and he was going to be charged with murder. He then advised the defendant of his Miranda rights.2 The defendant started crying and asked to *744speak with Keeler alone. Callahan left the room. Keeler then told the defendant that he was “in a heap of trouble,” and that he understood that there was more than one person responsible. Keeler asked him, “Do you want to take the weight all yourself, do you want to take this all on your own?” The defendant explained that he “had been fronted a pound of marijuana” by a person named Hooker, and that “it wasn’t supposed to go down that way. . . . [I]t was just a robbery; it wasn’t supposed to be a murder.”
The defendant explained that he and an unnamed second person had been solicited by Hooker to rob the victim. Hooker drove the defendant and the second person to the parking lot on Wales Street, “pointed it out, set up the robbery,” and then went around the corner and let them out of the automobile. They walked back and positioned themselves by some trees in the rear of the apartment building. When the victim and others emerged from the building, the defendant and the second person approached the victim. The second person started firing at the victim with a large caliber revolver and then the defendant started shooting at the victim with a nine millimeter firearm, each shooting him several times.3
Before conducting a voir dire of Keeler, the judge read the transcript of the suppressed tape-recorded statement of the defendant, and informed counsel that she agreed with the prosecutor that Keeler could not have asked the leading questions he did on that recording unless the defendant had provided the information Keeler was confirming in the unrecorded portion of the interview.4 My reading of the transcript of the suppressed recording confirms that the judge was correct. At the beginning of the transcript, Keeler asked the defendant a litany of leading questions regard*745ing what the defendant had told him prior to the tape recording of the interrogation, to which the defendant generally answered, “Yeah” or “Okay.” Through the leading questions alone, it was plain that Keeler had earlier learned from the defendant:
1. He was “fronted” a pound of marijuana by Hooker, who the defendant described as a Jamaican male, about thirty-seven to forty years of age, with a bald spot on top of his head.
2. The defendant sent $800 to someone who was ill in Jamaica, and Hooker said the defendant owed him $1,200.
3. Hooker spoke with the defendant as to how he wanted the defendant to resolve the debt.
4. Hooker called him the night of the shooting and picked him up in his automobile.
5. Hooker spoke with the defendant in his automobile about one block away from where the shooting took place.
6. The defendant, through a diagram, described the area of the shooting, including where the defendant and the second man stood.
The judge then asked defense counsel specifically to identify what subjects were discussed on the suppressed tape recording that had not been discussed earlier, and defense counsel identified only one subject: information about the firearm.5 The judge conducted a voir dire of Keeler that focused on what the defendant said to Keeler before the suppressed tape-recorded interview regarding the defendant being given a handgun by Hooker and the second person’s possession of a handgun. The judge credited Keeler’s voir dire testimony that the defendant discussed *746the two firearms before the tape-recorded interview and permitted him to testify at trial about the defendant’s statements regarding these firearms. The judge’s credibility findings are not properly the subject of appellate review, where the judge was present for Keeler’s testimony, and we were not. See Commonwealth v. Moon, 380 Mass. 751, 756 (1980) (“The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court”).
Where the defendant’s motion in limine did not even seek to bar Keeler from testifying to the essence of the defendant’s confession, where the leading questions in the tape-recorded transcript demonstrated that the defendant had confessed to the killing in some detail before the Miranda violation, and where the judge credited Keeler’s voir dire testimony as to what the defendant had told him before the Miranda violation, the judge’s findings as to what the defendant had confessed to Keeler before the Miranda violation were not clearly erroneous.
2. Where a tape-recorded confession of the defendant is suppressed because of a Miranda violation, does the “fruits of the poisonous tree ” doctrine forbid its use to refresh memory as to what the defendant said before the Miranda violation? Under the United States Constitution, a “Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the ‘fruits’ doctrine.” Oregon v. Elstad, 470 U.S. 298, 306 (1985), discussing Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda). Under Miranda, voluntary statements that are given without a Miranda warning must be excluded from evidence, but Miranda “does not require that the statements and their fruits be discarded as inherently tainted.” Id. at 307. Voluntary, but unwarned, statements are therefore admissible for impeachment purposes, id., and physical evidence obtained as a result of information learned from a voluntary statement that was procured in violation of Miranda is admissible in evidence. United States v. Patane, 542 U.S. 630, 637 (2004). Therefore, under Federal law, where a statement obtained in violation of Miranda may be used to uncover physical evidence during the investigation and for impeachment at trial, there can be no prohibition against its use to refresh a witness’s memory.
*747Article 12 provides broader protections than the Fifth Amendment to the United States Constitution, and “where Federal law is insufficient to protect the broader rights against self-incrimination guaranteed by art. 12, we have adopted additional rules under the Massachusetts Constitution to secure those rights.” Commonwealth v. Simon, 456 Mass. 280, 291 (2010). “Thus, when the Supreme Court held that voluntary but unwarned incriminating statements do not taint later questioning accompanied by Miranda warnings, ... we concluded as a matter of State common law that such pre-Miranda questioning presumptively taints the subsequent statements.” Id. This court has also declined to follow United States v. Patane, supra, and has held under our common law that physical evidence gathered as a result of information learned from a defendant’s custodial statement obtained in violation of Miranda is a forbidden fruit of the Miranda violation and is not admissible in evidence. Commonwealth v. Martin, 444 Mass. 213, 214-215 (2005). In contrast, however, this court has followed Federal precedent in holding that voluntary, but unwarned, statements may be “admitted for impeachment purposes.” Commonwealth v. Ly, 454 Mass. 223, 228 (2009).
This court has never concluded that the use of a statement obtained through a Miranda violation to refresh a witness’s memory was prohibited under art. 12 or our common law. As the court recognizes, this court has long held that a witness’s memory may be refreshed with a writing (or anything else) that is not itself admissible in evidence, and that the use of a writing to refresh memory does not open the door to the admission of the writing in evidence. See ante at 731, citing Mass. G. Evid. § 612(b) (2011). See also Commonwealth v. McKenna, 355 Mass. 313, 327 (1969); Commonwealth v. Ford, 130 Mass. 64, 66 (1881). Therefore, where a statement that is suppressed because it was obtained in violation of Miranda is used to refresh a witness’s memory, it may be used only to refresh a witness’s memory as to evidence that is admissible in evidence, such as the content of statements made by the defendant before the Miranda violation. The refreshed memory enabled through the use of a suppressed statement is not a fruit of the poisonous tree, because it results only in a better recollection of testimony that is independently admissible in evidence.
*748Refreshing memory does not open a back door to the admission of the suppressed statement. I understand that the court believes that Keeler used the transcript of the suppressed statement to claim falsely or mistakenly that the defendant made the same statement before the Miranda violation rather than to refresh his memory of what the defendant told him before the Miranda violation. Ante at 735-737. But this is not what the judge found after hearing, and it is less than the defendant claimed in his motion in limine. As discussed, the judge concluded that Keeler testified at trial to what the defendant told him before the Miranda violation, not after, and found the transcript of the suppressed tape recording helpful in ascertaining how much was said before the Miranda violation. I agree with the court that, once a prosecutor reasonably should recognize that a judge will need to find whether a defendant made a statement before or after a Miranda violation, a prosecutor should not refresh a witness’s memory with the suppressed statement without the approval of the judge, because the judge may conclude that it will be easier to make this finding if the witness’s memory is not refreshed. See United States v. Weller, 238 F. 3d 1215, 1221 (10th Cir. 2001). But there is a vast difference between granting a judge the discretion to prohibit or postpone the use of a suppressed Miranda statement to refresh a witness’s memory if that will assist the judge in her fact finding, and setting such a high bar for use of a suppressed statement that its use is virtually impossible.
If the use of a suppressed statement to refresh memory, before or at trial, were a forbidden fruit of the poisonous tree of a Miranda violation, this court would essentially be treating a suppressed statement as if it were an immunized statement whose use, directly or indirectly, may taint a prosecution. Where a defendant has been granted immunity and compelled to testify at a grand jury, hearing, or trial, any evidentiary use of the immunized testimony to incriminate the defendant, whether it be to obtain an investigative lead or refresh memory, requires the dismissal of the criminal charge unless the error is harmless beyond a reasonable doubt. See Kastigar v. United States, 406 U.S. 441, 453, 460 (1972) (Fifth Amendment provides use and derivative use immunity of compelled testimony, including bar*749ring use of such testimony as “investigatory lead”); Pixley v. Commonwealth, 453 Mass. 827, 835 n.8 (2009), quoting Attorney Gen. v. Colleton, 387 Mass. 790, 795 n.4 (1982) (Fifth Amendment protects defendant from use or derivative use of compelled testimony, while Massachusetts Constitution requires transactional immunity for any offense “to which compelled testimony relates”); United States v. North, 910 F.2d 843, 856, S.C., 920 F.2d 940 (D.C. Cir. 1990), cert. denied, 500 U.S. 941 (1991) (“use of immunized testimony by witnesses to refresh their memories, or otherwise to focus their thoughts, organize their testimony, or alter their prior or contemporaneous statements” is forbidden evidentiary use). Therefore, under the Fifth Amendment, where a defendant has given immunized testimony the Commonwealth must prove by a preponderance of the evidence that the testimony did not in any way taint the prosecution’s case. See id. at 872-873 (convictions vacated and remanded to determine whether any use of immunized testimony before congressional committee was made either at trial or in grand jury).
The court suggests that a comparable analysis is appropriate where a report or transcript of a statement obtained in violation of Miranda has been shown to a witness who testifies at trial, and that the prosecution in such circumstances must prove that “the witness will testify not from a memory of the suppressed statement. . . but from an independent memory of the separate event.” Ante at 731. We have not before transformed our “fruits of the poisonous tree” doctrine into a taint doctrine, and I fear that we will regret doing so, because the difficulty of proving that a witness’s memory was not tainted by his knowledge of the content of a suppressed confession (or, for that matter, the evidence uncovered during a suppressed search) is formidable.
The issue properly before the judge was whether Detective Sergeant Keeler was testifying to what the defendant told him before the Miranda violation rather than after the Miranda violation, and the judge properly resolved that issue in her findings. The issue was not whether Keeler’s memory as to what the defendant confessed before the Miranda violation was refreshed by, and not independent of, his review of the transcript of the defendant’s tape-recorded confession after the Miranda violation. *750The defendant never presented this issue to the trial judge. Nor should he have, because neither art. 12 nor our common law prohibits a witness from refreshing his memory of what a defendant said before a Miranda violation by looking at a transcript of what the defendant said after the Miranda violation, especially where the leading questions in the transcript essentially provide a summary of what the defendant told the interrogator before the Miranda violation.
3. Did the judge abuse her discretion in limiting the defendant’s cross-examination? Judges have broad discretion to limit cross-examination as they see fit, and we will not reverse a ruling to limit the scope of cross-examination absent abuse of discretion and actual prejudice to the defendant. Commonwealth v. Vardinski, 438 Mass. 444, 451 (2003). “To determine whether the judge unreasonably limited cross-examination, ‘we weigh the materiality of the witness’s direct testimony and the degree of the restriction on cross-examination.’ ” Id., quoting Commonwealth v. Miles, 420 Mass. 67, 72 (1995). Here, Keeler’s direct testimony regarding the defendant’s confession was certainly material but the restrictions the judge placed on his cross-examination were balanced and appropriate in the circumstances of this case.
Before trial, the prosecutor moved in limine to prevent the defendant from questioning Keeler about the lack of a report or recording regarding the defendant’s statement, and contended that, if defense counsel were to pursue this line of questioning, he “would open the door to the admission of the suppressed statements and the recordings.” At the pretrial hearing considering this motion, defense counsel declared that he would not question Keeler about the absence of a tape recording and would not argue to the jury that they should disbelieve him. Defense counsel told the judge, “I recognize I tread at my peril in regards to questioning about a statement that has been suppressed. . . .” The judge did not then rule on the motion, but instructed the prosecutor to make clear to Keeler “that he cannot volunteer that the defendant was put on tape unless the Court has made a decision that he can do that.”
During trial, immediately after Keeler’s voir dire, the judge said that she did not think defense counsel would question *751Keeler about the lack of a recording and, if he did, she would “then consider the possibility” of giving the jury an instruction that the defendant was later tape recorded. She ruled that the defendant was entitled to elicit from Keeler that he did not make any notes or write a report of the interview. The prosecutor argued that the judge’s ruling would “hamstring the Commonwealth” and create a “misimpression” for the jury if he were foreclosed from eliciting from Keeler the reason why he did not write a report. The judge declared that it would have been “good police practice” for Keeler to have taken notes during the unrecorded interview and that she would allow the defendant to question him about that. But she added that she would “consider the possibility” of providing an instruction to the jury if the defendant “overstated” the point and created a misimpression. She ultimately ruled that defense counsel could elicit from Keeler that he did not take any notes of the interview or write a report, but that if defense counsel did so more than once she would “revisit this issue.”
In so ruling, the judge reasonably exercised her discretion to strike a balance that allowed the jury to learn that Keeler took no notes and wrote no report regarding his interview of the defendant, but prevented the jury from learning that Keeler did not write a report because the subsequent tape-recorded interview served to memorialize what had been said during the unrecorded portion of the interview. The judge did not abuse her discretion in ruling that, once defense counsel elicited during Keeler’s cross-examination the absence of notes or a report, he should not repeat this line of questioning. A judge is plainly entitled to bar repetitive questioning. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (“trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant”). Nor is there any reason to believe that the jury would have been more persuaded that Keeler’s testimony was unreliable if they heard more than once during his cross-examination that he took no notes and wrote no report.
4. Did the prosecutor’s improper statement during closing *752argument create a substantial likelihood of a miscarriage of justice? Defense counsel in his closing argument sought to discredit the testimony of Keeler regarding the defendant’s confession by asserting, “[T]here is no notes, there’s no report . . . .’’In fact, Detective Callahan testified that he had written a report concerning the “interaction” he had witnessed between the defendant and Keeler in the hospital room. The prosecutor and defense counsel knew (but the jury did not) that the report simply referenced the tape recording that had been made during the latter part of the interrogation, and did not describe what was said before the tape recording, which was the part of the interrogation that was not suppressed. The prosecutor in his closing argument responded to defense counsel’s assertion that there was “no report” by stating:
“[T]he original statement is a statement to Detective Keeler. What do we have after that? We have Detective Callahan coming in the room and what happens? There’s a conversation that ensued. The defendant’s nodding, Detective Keeler’s speaking. Detective Callahan documents that. Detective Callahan writes the report. Detective Callahan incorporates what the defendant has said. There was a report written on that statement, ladies and gentlemen. Don’t be confused, don’t be misled. The report is written by Detective Callahan concerning what happened when he came back in that room. He wrote a report.”
I agree with the court that the prosecutor’s argument was improper. While Callahan had written a report, it merely incorporated by reference the tape-recorded interrogation, which had been suppressed and was not the portion of the interrogation to which Keeler was allowed to testify. In attempting to refute the defense counsel’s incorrect assertion that there was “no report,” the prosecutor improperly suggested that Detective Callahan “incorporate^] what the defendant ha[d] said” during the confession to which Keeler testified, when the report merely referenced what the defendant had said during the suppressed tape-recorded interrogation.
The defendant, however, made no objection to the prosecutor’s closing argument, so the standard of review is whether the pros*753ecutor’s improper argument created a substantial likelihood of a miscarriage of justice. Commonwealth v. Semedo, 456 Mass. 1, 15 (2010). In determining whether the prosecutor’s closing statements created a substantial likelihood of a miscarriage of justice, “one significant fact to consider is the strength of the evidence against the defendant.” Commonwealth v. Fowler, 431 Mass. 30, 42 (2000). In view of the overwhelming evidence of the defendant’s guilt in this case, there was no substantial likelihood of a miscarriage of justice. Deoxyribonucleic acid evidence and blood that matched the defendant’s were found on one of the two firearms that fired the shots that struck the victim. The firearm was found in front of 85 Wales Street, not far from the scene of the killing at 37 Wales Street, and a trail of blood led from the firearm to where the defendant was hiding underneath a wheelchair ramp, with a gunshot wound to his thigh. Various nine millimeter casings — from a gun other than the ones used to shoot the victim — were found in the driveway and on the sidewalk in front of 37 Wales Street. The compelling inference was that the defendant had been wounded in this exchange of gunfire after he shot and killed the victim. Apart from the circumstantial evidence, the defendant confessed to the killing the next day, and provided details that conformed to the physical evidence of the killing, including the types of firearms used to shoot the victim. It is farfetched to imagine that the jury would have concluded that Keeler falsely manufactured the defendant’s confession had the prosecutor not made this improper suggestion in his argument and, in light of the totality of the evidence, even more unlikely that the verdict would have been different.
5. Were there errors that make a new trial more consonant with justice under § 33E? Where, as here, the judge did not err in admitting Keeler’s testimony regarding the defendant’s unrecorded confession, and where the prosecutor’s closing argument, though improper, did not create a substantial likelihood of a miscarriage of justice, the court’s grant of a new trial under § 33E must rest on its conclusions that the judge erred in not instructing the jury in accordance with Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004) (DiGiambattista), about the detective’s failure to record the defendant’s initial custodial interrogation.
*754I agree that such an instruction, if it had been requested by the defendant, should have been given to the jury, but the record reflects that it was never requested, and the judge is not required to give the instruction in the absence of a request. In DiGiambattista, supra, this court declared:
“[Wjhen the prosecution introduces evidence of a defendant’s confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the complete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care. Where voluntariness is a Uve issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.” (Emphasis added.)
Here, Keeler chose not to tape record the initial part of the interview where he spoke alone with the defendant but did tape record the second part of the interview, where in the presence of Callahan he reprised through leading questions what had been said earlier and asked additional questions to obtain further details. Under DiGiambattista, a defendant “is entitled (on request)” to the designated jury instruction where, as here, there is not an audiotape recording of the “complete interrogation.” Id. A DiGiambattista instruction cannot be avoided by obtaining a confession from a defendant without a recording, and then confirming the confession in a later recorded interview. But I do not agree with the court that the judge erred in failing to provide a DiGiambattista instruction where the defendant never requested it.
Before trial, the prosecutor moved to limit the scope of the defendant’s cross-examination regarding the absence of a recorded statement, noting that the recorded statement was declared *755inadmissible as a result of the defendant’s motion to suppress and that, as a result, the prosecution is not able to rebut the inference that no part of the interrogation was recorded. See DiGiambattista, supra at 448-449 (“It is of course permissible for the prosecution to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording”). At a pretrial hearing, the trial judge, in addressing the prosecutor’s motion, declared, “[Cjertainly the defendant cannot benefit . . . from a DiGiambattista charge in a situation where a judge has decided that the statement that is taped is suppressed.” Defense counsel did not challenge this assertion and proffered to the judge that he would not “make an argument that this defendant was not taped so therefore . . . there is some reason to disbelieve the police.” Moments later the judge stated, “I’m saying I’ll have to decide before the charge what to do with DiGiambattista. But I have to wait and see what the testimony is and make some judgments then.”
At trial, the judge said that she had “to grapple with whether I give [a] DiGiambattista [instruction]. At the moment I’m not inclined to give it because it seems to me that would be just a distortion of reality to give the jury something when, in fact, he was taped. But that’s what we’re going to have to balance.” Defense counsel replied, “We sort of toyed with the DiGiambattista [issue]. We don’t think that’s appropriate.” Because the defendant never asked for a DiGiambattista instruction and characterized giving it as not “appropriate,” the judge was spared the need to “grapple” with whether to give the instruction, or how it should be worded. By failing to request the instruction, the defendant waived his entitlement to it.6
Because there is no sound reason to order a new trial, I respectfully dissent.
At the motion in limine hearing, defense counsel said he would seek in writing to amend his motion, but there is nothing in the record that suggests that he did. Nor did defense counsel orally inform the judge at the hearing of the substance of the amendment.
In his testimony at the suppression hearing, Keeler said that he did not use a Miranda card and provided the Miranda warnings from memory. He recalled that he told the defendant that he had the right to remain silent, that anything he said could and would be used against him in a court of law or other proceedings, that he had the right to have an attorney with him during questioning, that *744if he could not afford an attorney one would be appointed for him at no cost, and that, if he wanted to stop answering questions and seek advice, he had the right to do that. After advising the defendant of each of these rights, Keeler asked whether he understood the right and the defendant said he did.
Before giving this incriminating account, the defendant denied any involvement in the shooting, telling Keeler that he was walking down the street when he was accosted by “some guys out front,” and was shot as he ran down the street.
Defense counsel agreed with the judge’s statement that “it seems to me impossible that the detective could ask the leading question without having had the information from the pretaped statement when it’s a specific fact.”
The prosecutor had earlier conceded that the defendant had not discussed the make and color of Hooker’s automobile or the defendant’s path in approaching the victim before the shooting except in the suppressed tape recording. The judge barred Keeler from testifying about the defendant’s statements regarding these subjects.
It is perhaps for this reason that able appellate counsel did not argue that the judge erred in failing to give an instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423 (2004). Nor has the defendant claimed that his trial counsel was ineffective for failing to request the instruction.