COMMONWEALTH vs. DONNA WOLCOTT.

KATZMANN, J. The defendant, Donna Wolcott, appeals her convictions by a Superior Court jury for solicitation to commit a felony (murder), and two violations of abuse prevention orders. Informed by recent United States Supreme Court and Supreme Judicial Court decisions not available to the careful Superior Court judge, we reverse the order denying the motion for new trial on the grounds that an unconstitutional closure of the court room took place. In light of the remand to Superior Court, we address and uphold the judge's solicitation instruction, and various evidentiary rulings.

Background. We summarize the facts that the jury could have found as follows, and reserve the recitation of certain facts relevant to the discussion below. In March, 2006, Donna Wolcott told a number of people that she had grown unhappy in her marriage. Beyond that, she also asked a coworker, Jill Scibelli, whether her husband had contacts with the "Scibelli" crime family and said that she was "nervous" but "had money" and needed to get rid of a "problem."

On a Saturday in March, 2006, the defendant confided in her cousin, John Jamroz, that she wanted her husband to "just disappear" and asked him if he knew of anyone who could help her with the situation. After she called him again that Sunday, Jamroz contacted the defendant's sister, Holly Woods, and eventually, the State police.

On Monday, March 13, 2006, Jamroz spoke to the police and provided a written statement concerning the conversation. In the presence of the police, Jamroz called the defendant. She did not answer and Jamroz left a message. Later, the defendant returned Jamroz's call and left a message on his voice mail, stating that everything was "okay." Jamroz then called the defendant later that evening and she reiterated that things were "okay."

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At some point between March 13, 2006, and March 20, 2006, Carol Sherman, a cousin of both the defendant and Jamroz, requested that Jamroz call the defendant so that she could tell him what to say to the police. Jamroz again contacted the State police on March 20, 2006. After speaking to the troopers, he drove to the barracks and gave another written statement. Jamroz then agreed to make another call to the defendant to see if she still wanted to go ahead with the plan to get rid of her husband. The troopers accompanied Jamroz to his home and Jamroz called the defendant. When the defendant did not answer, Jamroz left a message regarding the subject. Trooper Fitzgerald gave Jamroz his cellular telephone number and instructed Jamroz to call him when the defendant returned his call.

The next day, March 21, 2006, Trooper Fitzgerald received a call from Jamroz stating that the defendant had said she was working out her problems. In response, the troopers visited the home of the defendant and her husband. The defendant was asked by the police to accompany them to the station, where she was questioned and eventually arrested and indicted. [Note 1]

Soon thereafter, the defendant's husband obtained a restraining order forbidding the defendant from calling the house except to speak about the children. The husband testified that she called the house twice from prison, but only to ask him to drop the restraining order.

On June 29, 2007, after a four-day jury trial, the defendant was convicted of one count of solicitation to commit murder and two counts of violating a restraining order.

Discussion. On appeal, the defendant seeks review of (1) the denial of her motion for a new trial for deprivation of her right to a public trial, (2) whether the trial judge's jury instruction improperly altered the common law crime of solicitation to commit murder, (3) whether a prior incriminating statement should have been excluded as improper prior bad act evidence, and (4) whether the defendant's signed statement should have been excluded because there were gaps in the recording of the three-hour interview that formed the basis for the statement.

1. Public trial. a. Background. Jury selection began on June 25, 2007. The venire were brought into the court room and the public was asked to step outside. During the jury selection

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process, after twenty-four jurors had been interviewed at sidebar, this exchange took place:

DEFENSE COUNSEL: "Judge, there were people, family members and members of the public, I think, who would like to be able to be in the court room only there wasn't enough room, but now there is enough room and this is supposed to be a public proceeding, so if they could come in."

THE COURT: "Have they been ordered excluded?"

DEFENSE COUNSEL: "Well, there was no place for them. It is not that they were ordered excluded, there is no place to sit."

THE COURT: "As soon as we have room."

THE CLERK: "We need to move people out of the jury box."

THE COURT: "When we have moved, when we have room, we'll allow them to come in."

The jury voir dire then continued until the lunch recess.

After the lunch recess, defense counsel orally moved for a mistrial on the grounds that the defendant was denied a public trial as provided under the Sixth Amendment to the United States Constitution. The oral motion was denied by the trial judge without any findings.

The next day, the second day of trial, the judge sua sponte raised the defendant's prior motion for a mistrial. The judge stated that the court room was small and could not accommodate the family members, and "[i]t was for that reason, and that reason alone, that some members of the defendant's family, perhaps, were asked to remain outside because there was simply not room for them."

After the trial, the defendant filed a motion for new trial and submitted the affidavits of Carol Sturm, Ruth Farnsworth, and Michael J. Fellows. [Note 2] At a hearing on the motion, Sturm testified

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for the defendant that after being asked to leave, she sought reentry but was denied access. Court Officer Antonio Pires, who was in charge of the jury selection process, testified that "consistent with his usual policy, he asked the spectators if they would mind leaving the [court room] during jury selection, so that there would be sufficient room for all of the prospective jurors to sit. He denied that he ordered any spectators to exit the court room."

The judge credited the testimony of Officer Pires and discredited Sturm's. He denied the motion for new trial, concluding that there was no "closure" of the court room because "spectators agreed to leave the [court room] during jury selection, after having been asked by Officer Pires. They were not forced from the court room. Nor did members of the public make an effort to enter during the jury selection process. Had they done so, entry would have been permitted."

b. Sixth Amendment right to public trial. i. Closure. As provided in the Sixth Amendment to the United States Constitution, "[i]n all criminal prosecutions, 'the accused shall enjoy the right to a speedy and public trial . . . .' '[W]ithout exception, all courts have held that an accused is at the very least entitled to have [her] friends, relatives and counsel present . . . .' " Commonwealth v. Marshall, 356 Mass. 432 , 435 (1969), quoting from In re Oliver, 333 U.S. 257, 271-272 (1948). See Commonwealth v. Cohen (No. 1), 456 Mass. 94 , 106 (2010) (partial closure of court room contravened defendant's right to a public trial). "The guarantees of open public proceedings in criminal trials cover proceedings for the voir dire examination of potential jurors concerning their qualifications to serve." Commonwealth v. Gordon, 422 Mass. 816 , 823 (1996). See Presley v. Georgia, 130 S.Ct. 721, 723-724 (2010); Commonwealth v. Cohen, supra at 106. [Note 3] See generally ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004).

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A Sixth Amendment claim for denial of a public trial requires, as a preliminary matter, that the court room is closed to the public. See Commonwealth v. Dykens, 438 Mass. 827 , 835-836 (2003). Although "a court room may be closed in the constitutional sense without an express judicial order," Commonwealth v. Cohen, supra at 108, at a minimum, "some affirmative act by the trial court meant to exclude persons from the courtroom" is required. Ibid., quoting from United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). See Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004) ("Whether the closure was intentional or inadvertent is constitutionally irrelevant").

Here, while the judge made an after-the-fact finding that no closure occurred because nobody sought reentry into the court room, we conclude otherwise. The transcript reflects that defense counsel sought entry for the public by requesting that the judge allow members of the public to enter the court room for jury selection. The judge denied that request, stating that as seats became available, the public could take those seats. Defense counsel then moved for a mistrial, which the judge denied. While "the judge or court officers need not undertake an affirmative effort to seek out spectators when the departure of prospective jurors frees up seats[, . . .] if space in the court room is or becomes available, the judge must make sure that members of the public who wish to observe the proceedings are not prevented from doing so." Commonwealth v. Cohen, supra at 114. Compare id. (sign reading "Jury selection in Progress. Do Not Enter"). Here, the judge did not "announce at the outset that, because of space limitations, it is not possible immediately to accommodate members of the public, but that individuals who wish to observe empanelment proceedings will be permitted to enter the court room as space becomes available." Id. at 114 n.30. The judge's on-the-record refusal to allow any members of the public to enter the court room -- and the findings that the court officer asked all members of the public to leave the court room, that members of the public remained outside of the court room during jury selection, and the absence of any evidence that these spectators were informed that they could reenter the court room as seats became available -- constituted a closure triggering the protections of the Sixth Amendment. See State v. Torres, 844 A.2d 155, 160 (R.I. 2004) (closure effected as soon as defense counsel's objection to

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open court room was denied); Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007) (excluding family members during jury empanelment constituted closure regardless of whether judge ordered closure). [Note 4]

ii. Waller analysis of full closure. The closure in this case was "full" rather than "partial." [Note 5] Compare Commonwealth v. Cohen, supra at 110-111 (partial closure where "the record makes clear that there were family members and some other individuals beyond the parties and counsel present in the court room during empanelment"), with Presley v. Georgia, 130 S.Ct.

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at 723- 725 (full closure where all members of the public were excluded from the court room). In order to justify a full closure, Waller v. Georgia, 467 U.S. 39, 48 (1984), establishes that four factors must be addressed: "[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure." See Presley v. Georgia, supra at 723-724. Where there is a "full" closure, as here, the trial judge must make his findings contemporaneous with the closure. See Commonwealth v. Cohen, supra at 116 n.32, citing Bowden v. Keane, 237 F.3d 125, 131-132 (2d Cir. 2001) ("while specific findings required before complete closure, 'competent evidence from the record' can support partial closure").

In Presley v. Georgia, 130 S.Ct. at 725, referring only to the third Waller factor and determining that the trial judge had not considered alternatives to closing the proceeding to the public for lack of seating, the United States Supreme Court found it unnecessary to consider the other Waller factors, and reversed, holding that the defendant's Sixth Amendment right to a public trial had been violated. [Note 6] The Court held that "trial courts are required to consider alternatives to closure even when they are not offered by the parties" and that "[t]rial courts are obligated

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to take every reasonable measure to accommodate public attendance at criminal trials." Ibid. at 724-725. Here, we are instructed by case law not available to the careful trial judge; instead of rejecting defense counsel's objection out-of-hand, the trial judge was required to consider alternatives to excluding the defendant's family and other members of the public. See Presley v. Georgia, supra at 725 ("Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce court room congestion; or instructing prospective jurors not to engage or interact with audience members"). See also Commonwealth v. Edward, 75 Mass. App. Ct. 162 , 172-173 (2009). The failure to do so, in and of itself, establishes that the defendant's right to a public trial was violated. The violation of a right to a public trial "is a structural error and not susceptible to harmless error analysis." Commonwealth v. Cohen, 456 Mass. at 105, quoting from Commonwealth v. Baran, 74 Mass. App. Ct. 256 , 296 (2009). Therefore, we reverse the judgments, set aside the verdicts, and remand for a new trial, as the Commonwealth may elect.

2. Solicitation instruction. The indictment charged that the defendant "did solicit, counsel, advise, entice or induce John W. Jamroz to commit a felony, to wit: MURDER, with the intent that such person commit or procure such felony in violation of the common law." "The solicitation of 'another to commit felony or other aggravated offence' is an 'indictable offence at common law' in Massachusetts." Commonwealth v. Barsell, 424 Mass. 737 , 738 (1997), quoting from Commonwealth v. Flagg, 135 Mass. 545 , 549 (1883). "Conviction of the common-law crime of solicitation to commit murder requires proof that the defendant solicited, counseled, advised, or otherwise enticed another to commit murder and that the defendant intended that the person in fact commit the murder." Commonwealth v. Lenahan,

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50 Mass. App. Ct. 180 , 186 (2000). The defendant takes issue with the jury instruction on solicitation. [Note 7] She contends that by instructing that the jury could convict the defendant of solicitation based on a finding that "the defendant intended that the person, in fact, commit or procure the commitment of the felony alleged" the judge impermissibly altered the elements of solicitation. She argues that without proof of her intent that Jamroz personally kill her husband, there can be no conviction for solicitation. We disagree.

First, in Massachusetts, one who procures another to commit murder is an accessory before the fact to murder, and shall be punished in the same manner as of the principal. G. L. c. 274, § 2, as amended by St. 1973, c. 529, § 1 ("Whoever aids in the commission of a felony, or is accessory thereto before the fact by counselling, hiring or otherwise procuring such felony to be committed, shall be punished in the manner provided for the punishment of the principal felon"), and G. L. c. 274, § 3, as amended by St. 1973, c. 529, § 2 ("Whoever counsels, hires or otherwise procures a felony to be committed may be indicted and convicted as an accessory before the fact, either with the principal felon or after his conviction; or may be indicted and convicted of the substantive felony, whether the principal felon has or has not been convicted, or is or is not amenable to justice"). See Commonwealth v. Rodriguez, 457 Mass. 461 , 482-487

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(2010). There is no legal distinction between someone who commits a murder as an accessory as opposed to a principal; therefore, an individual who "procures" a murder also "commits" murder in the eyes of the law. See Commonwealth v. Perry, 357 Mass. 149 , 151 (1970). Thus, if Jamroz had acceded to the defendant's request and had found someone else to murder the defendant's husband, and that person had in turn personally killed her husband, Jamroz would have been indictable for a felony. Whether the defendant solicited Jamroz to personally kill her husband or to find another to do so is thus of no consequence. Either act constitutes a felony, and under either fact pattern, the defendant would be guilty of soliciting a felony.

Second, we have upheld convictions of the common-law crime of solicitation where the defendant solicited another to provide assistance in procuring someone to commit the crime. Indeed, both Lenahan, supra, and Hamel, cited by the defendant, involve initial solicitations of accessories. Thus, Commonwealth v. Hamel, 52 Mass. App. Ct. 250 , 260-261 (2001), presents an analogous fact pattern. There, the defendant was guilty of solicitation to murder where he told his cellmate -- who obviously could not himself commit the murder -- that he wanted to "get rid of" his wife's ex-husband, and the cellmate (who was a government informer) brought the information to prison officials, one of whom posed as "Jack," the intended hitman. That the defendant ultimately spoke with the purported hitman (unlike the instant case) is not a material distinction, nor a necessary condition for establishing solicitation. In Hamel, we upheld the defendant's conviction for "the common-law crime of soliciting others to commit [the] murders," thereby encompassing the defendant's outreach to both the cellmate and the hitman (emphasis added). Id. at 250-251. Commonwealth v. Lenahan is not to the contrary. In that case, the defendant took an extra step of direct contact with the purported hitman, was involved in the initial solicitation of an accessory, and the hitman (an undercover police officer), procured by the accessory, was then directly solicited by the defendant. See Lenahan, 50 Mass. App. Ct. at 186 (we "look [in part] to his conversations with Genest . . . in which he expressed his desire that his wife be killed and that Genest find someone willing to perform the deed . . ."). Nothing in the language of these opinions supports

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the defendant's proposition that common law solicitation does not pertain to the solicitation of an accessory -- indeed, the cases involve the solicitation of accessories. See Commonwealth v. Furst, 56 Mass. App. Ct. 283 , 284 & 285 n.2 (2002) (suggesting that the facts supported the "more obvious offense" of solicitation, [instead of threatening to commit a crime, the charged offense] where the defendant repeatedly told a friend that she wanted her husband to "disappear," to be "killed," and to be "taken care of").

That the defendant need not specifically intend that the person solicited, Jamroz, actually commit the act of killing in order to be guilty of solicitation has support in the scholarly literature and in cases decided in other jurisdictions. As one commentator has observed:

"In the usual solicitation case, it is the solicitor's intention that the criminal result be directly brought about by the person he has solicited; that is, it is his intention that the crime be committed and that the other commit it as a principal in the first degree, as where A asks B to kill C. However, it would seem sufficient that A requested B to get involved in the scheme to kill C in any way which would establish B's complicity in the killing of C were that to occur. Thus, it would be criminal for one person to solicit another to in turn solicit a third party, to solicit another to join a conspiracy, or to solicit another to aid and abet the commission of a crime (footnotes omitted) (emphasis added)."

2 LaFave & Scott, Substantive Criminal Law, § 6.1(c), at 10 (1986). See State v. Furr, 292 N.C. 711, 720, cert. denied, 434 U.S. 924 (1977) (because "[t]he gravamen of the offense of soliciting lies in counseling, enticing or inducing another to commit a crime," it was of no consequence that the person solicited was only solicited to find a killer); Moss v. State, 888 P.2d 509, 517-518 (Okl. Cr. 1994) (same); State v. Yee, 160 Wis. 2d 15, 16-17 (1990) (same); Johnson v. State, 650 S.W.2d 784, 787 (Tex. Cr. App. 1983) (same); Meyer v. State, 47 Md. App. 679, cert. denied, 454 U.S. 865 (1981) (same); People v. Bloom, 149 App. Div. 295, 296 (N.Y. 1912).

In short, there was no error in the jury instruction; the jury

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were properly instructed that the defendant could be convicted by finding that she solicited Jamroz and intended that Jamroz commit the murder by procuring someone to commit the actual act.

3. Prior bad acts testimony. The defendant argues that the trial judge erred by denying her motion in limine to preclude the testimony of Jill Scibelli regarding her conversation with the defendant, in which the defendant told Scibelli that she needed a "favor" from Scibelli's husband; specifically, she needed his help in getting "rid of a problem." When Scibelli questioned the defendant regarding her meaning, the defendant asked whether or not her husband was "a Scibelli" and whether he could refer the defendant to one of his relatives. Scibelli responded that her husband "was not like that." The judge was correct in concluding that such evidence did not constitute impermissible prior bad act evidence because it was relevant to show the defendant's plan, intent, and motive to find someone who would kill her husband. See Commonwealth v. Jewett, 442 Mass. 356 , 370-371 (2004); Commonwealth v. Butler, 445 Mass. 568 , 573-574 (2005); Mass.G.Evid. § 404(b) (2010). We also note that immediately after Scibelli's testimony, the judge gave the jury a strong limiting instruction. [Note 8] See Commonwealth v. Barrero Cruz, 456 Mass. 741 , 750 (2010). The judge also repeated the instruction in his final charge. There was no error here.

4. DiGiambattista instruction. Prior to trial, the defendant moved to exclude portions of a signed statement that she had given to the State police on March 22, 2006, noting that the police had failed to record her entire statement. She argued that the failure of the police to record the entire statement on videotape was intentional, and therefore, the portions of the

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written statement that were not electronically recorded should be excluded.

The motion judge held an evidentiary hearing regarding the videotaping and interview of the defendant. The evidence at the hearing showed that the defendant accompanied State Troopers Gary Fitzgerald and Michael Blanchette to the Wilbraham police department so that they could interview her regarding allegations that she wanted to have her husband killed. The defendant was given her rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). She was also informed that the entire interview would be electronically recorded.

The defendant corroborated much of the information that Jamroz had provided. According to a written statement the defendant signed, [Note 9] she told the troopers that she had access to $81,000 dollars in a checking account and $200,000 dollars in a life insurance policy to pay someone to take care of her husband. She also said that she had a subsequent conversation with Jamroz telling him that she was working out the problems with her husband. The defendant characterized the ideas she discussed with Jamroz as "stupid" and that she was not going to kill her husband. At the conclusion of the interview, the defendant was given an opportunity to review the typed statement and make corrections. She took some time reading the statement and made a number of changes to the statement. She then initialed each page twice and signed the statement. This review and signature process was captured on videotape.

The circumstances relating to the gap in the videotape recording were as follows. Roughly "two hours" into the interview, Trooper Blanchette received a call on his cellular telephone. Blanchette left the interview room and proceeded to the hallway to take the call. While outside, he became aware that the tape had ejected from the videotape cassette recorder (VCR) because it was full. He promptly told a Wilbraham officer, who obtained a new tape, put it in the VCR, and made sure the recording was being made.

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At the suppression hearing, the defendant fully adopted the portions of the statement that were recorded. The prosecutor walked the defendant through the contents of the signed statement, and she testified that it accurately detailed the portions of the interview that had been recorded. The defendant only controverted the accuracy of the inculpatory portions that were not recorded. [Note 10]

The motion judge found that the troopers' failure to record the interview can be characterized as reckless but "not deliberate." She denied the defendant's motion to exclude the written statement, ruling that the appropriate remedy was to give the jury an instruction pursuant to Commonwealth v. DiGiambattista, 442 Mass. 423 , 447-448 (2004). That instruction was indeed given to the jury, [Note 11] who also heard testimony regarding the videotaping and the taking of the written statement. We affirm the order denying the motion to exclude, [Note 12] and also agree that the issuance of the DiGiambattista instruction was an adequate remedy.

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See Commonwealth v. Pimental, 454 Mass. 475 , 479-480 (2009); Commonwealth v. Jones, 75 Mass. App. Ct. 38 , 45-46 (2009).

We determine that there is no clear error presented by the motion judge's findings of fact. The circumstances of the interrogation and the creation of the statement were borne out by testimony of both the officers and the defendant at the hearing, and ultimately at trial. Our review supports the motion judge's finding that the videotape recorder malfunction was accidental. [Note 13]

We further determine that the motion judge was correct in her legal conclusions. "The failure to record, by itself, does not render a confession inadmissible." Commonwealth v. Lopes, 455 Mass. 147 , 168 n.18 (2009). However, a "failure to preserve evidence of the interrogation in a thorough and reliable form can comprise a basis for concluding that voluntariness and a valid waiver have not been established beyond a reasonable doubt." DiGiambattista, supra at 441. Ultimately though, "[t]he test for voluntariness of a confession is 'whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the confession was not the result of a free and voluntary act.' " Lopes, supra at 167, quoting from Commonwealth v. Selby, 420 Mass. 656 , 663 (1995). Here, in the totality of the circumstances, the judge properly could find that the defendant's statement was voluntary because the defendant reviewed and endorsed the written statement after its creation, including making changes to it.

We also note that "[a] defendant who seeks relief from the

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loss or destruction of potentially exculpatory evidence has the initial burden . . . to establish 'a "reasonable possibility, based on concrete evidence rather than a fertile imagination," that access to the [evidence] would have produced evidence favorable to his cause.' " Commonwealth v. Kee, 449 Mass. 550 , 554 (2007), quoting from Commonwealth v. Dinkins, 440 Mass. 715 , 717 (2004). If the defendant meets her initial burden, the court must then weigh the materiality of the evidence, the potential prejudice to the defendant, and the culpability, if any, of the Commonwealth. See ibid. Here, even assuming arguendo that the defendant had met her initial burden, there is no evidence that the loss of a portion of the recording of the defendant's statement constituted the loss of exculpatory evidence which prejudiced her. See Commonwealth v. Charles, 397 Mass. 1 , 14 (1986). Moreover, as noted, the troopers did not deliberately fail to record the entirety of her statement. The defendant's contention that she was prejudiced is not based on anything of a concrete nature, but rather a self-serving claim that her written statement is not an accurate record of only a discrete part of her interview, notwithstanding the fact that the videotape shows her reviewing, making changes to, and signing her written statement, and otherwise adopting it as accurate. In sum, the judge's decision reflects a proper "consider[ing] and weigh[ing of] the materiality of the evidence, the potential prejudice to the defendant, and the culpability of the Commonwealth." Commonwealth v. Kater, 432 Mass. 404 , 418 (2000). Moreover, the motion judge correctly determined that giving the DiGiambattista instruction, which cautioned the jury to carefully scrutinize an unrecorded statement given by a defendant, was the appropriate remedy. See Commonwealth v. DiGiambattista, 442 Mass. at 446-449. See also Commonwealth v. Pimental, supra at 480.

The defendant is entitled to a new trial. Therefore, the judgments are reversed, the verdicts are set aside, and the case is remanded for proceedings consistent with this opinion.

So ordered.