COMMONWEALTH v. EDWARD STARLING JR (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Edward Starling, Jr., appeals from the denial of his motion under Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995), to reduce the verdict of murder in the second degree to manslaughter. We conclude that the judge acted within her discretion in finding that the verdict was not markedly inconsistent with verdicts returned in similar cases. Further concluding that the defendant's challenge to the instruction on malice is contrary to the Supreme Judicial Court's determination about the meaning of the instruction given, we affirm.

1. Standard of review. “We review a judge's decision not to reduce a verdict under Mass. R. Crim. P. 25 (b) (2) for abuse of discretion.” Commonwealth v. Reavis, 465 Mass. 875, 891 (2013). We review for an abuse of discretion even where the motion judge was not the trial judge. See Commonwealth v. Rogers, 494 Mass. 629, 647-648 (2024). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” Commonwealth v. Pfeiffer, 492 Mass. 440, 446 (2023), quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). “[U]nder rule 25 (b) (2), a judge may review all the evidence, including the defendant's version of the facts, in deciding whether the verdict comports with justice, even when the evidence warranted the jury's verdict.” Reavis, supra at 891, quoting Commonwealth v. Woodward, 427 Mass. 659, 668 (1998). “[M]otion judges retain discretionary authority under rule 25 (b) (2) to reduce a jury's verdict even after a defendant's conviction has been affirmed on direct appeal.” Rogers, supra at 647.

Even though the judge has “ ‘broad authority’ under rule 25 (b) (2) to reduce a jury's verdict, that power ‘is not without constraint.’ ” Rogers, 494 Mass. at 648, quoting Commonwealth v. Sanchez, 485 Mass. 491, 504-505 (2020). “The judge ‘is not to sit as a “second jury.” ’ ” Pfeiffer, 492 Mass. at 446, quoting Commonwealth v. Chhim, 447 Mass. 370, 381 (2006). A reduction in the verdict is “not justified” when it “would be inconsistent with the weight of the evidence, or ․ based solely on factors irrelevant to the level of offense proved.” Commonwealth v. Rolon, 438 Mass. 808, 822 (2003). “[T]o justify a reduction in the verdict, there must be some weakness in the critical evidence, or some weakness in the evidence coupled with trial error (citations omitted).” Commonwealth v. Lyons, 444 Mass. 289, 292 (2005).

2. Similar cases. In analyzing a rule 25 (b) (2) motion, “[a] most important consideration is whether the jury verdict is markedly inconsistent with verdicts returned in similar cases.” Commonwealth v. Moore, 92 Mass. App. Ct. 40, 49 (2017), quoting Commonwealth v. Gaulden, 383 Mass. 543, 556 (1981). Here, the jury returned a verdict of murder in the second degree after being instructed on both murder and manslaughter. “A fine line distinguishes murder in the second degree based on third prong malice from the lesser included offense of involuntary manslaughter.” Lyons, 444 Mass. at 293. Third prong malice involves the risk that there was a “plain and strong likelihood of death.” Commonwealth v. Earle, 458 Mass. 341, 347 (2010). “As the jury convicted the defendant of murder in the second degree, they must have found that in the circumstances known to the defendant, a reasonably prudent person would have known that, according to common experience, there was a plain and strong likelihood that the victim's death would follow the defendant's actions.” Lyons, supra.

Our analysis is guided by Lyons and Commonwealth v. Moran, 75 Mass. App. Ct. 191 (2009). In Lyons, 444 Mass. at 290-297, the Supreme Judicial Court reversed a judge's decision to reduce the defendant's conviction of murder in the second degree to involuntary manslaughter for the shaking death of his two week old son. The court concluded that the judge's reasons did “not provide an adequate basis for reducing the verdict.” Id. at 293. First, “that the defendant ostensibly did not abuse the other children [was] irrelevant to the nature of the risk posed by his abuse” of his two week old son. Id. at 294. Second, “[t]hat the episode was brief [did] not create a weakness in the evidence of third prong malice.” Id. Indeed, the court stated that “evidence of a single blow to a young child may be sufficient to support a jury's finding of malice.” Id.

In Moran, 75 Mass. App. Ct. at 195, we determined that the trial judge properly refused to reduce the jury verdict from murder in the second degree to involuntary manslaughter. “[T]he weight of the evidence ․ was entirely consistent with murder in the second degree based on the third prong of malice” where the defendant “slamm[ed] a seven week old infant into a crib with such force that when her head hit the crib railing, it cracked her skill.” Id.

Here, the evidence showed that the twenty-two month old victim was “poorly nourished” and only “27-and-a-half inches in length,” “weighing 14 pounds.”¹ The medical records explained that the victim had “low weight gain” and was generally failing to thrive. The victim, therefore, “was especially frail and susceptible to death at the hands of an adult,” and the “vast discrepancy in size and strength is what ma[de] it evident that the defendant's conduct posed a plain and strong likelihood of death.” See Lyons, 444 Mass. at 296-297. Even though a neighbor testified that, “as far as [she] kn[e]w,” the defendant “was very good with the baby,” and the Commonwealth produced no evidence of prior abuse of the victim, the evidence showed that the defendant had lived with the victim for only approximately one month prior to the incident. Admittedly, that one month provided more exposure than in Lyons, but it remains the case that we cannot “find solace ․ in the fact that the defendant did not previously abuse the victim.” Id. at 294. That the defendant may have “committed a momentary act of ‘extraordinarily poor judgment’ was irrelevant to the consideration of third prong malice.” Id. at 296.

Finally, the injuries sustained by the victim show malice akin to that described in Lyons. The victim was bruised and had cuts on her face. There was blood in her “abdominal cavity” and lacerations to her liver. The medical examiner ultimately opined that the cause of death was these “[l]acerations of liver with hemoperitoneum”² from “[b]lunt force trauma to abdomen,” an “injury caused by a blunt instrument.” A “blunt instrument” could include “a fist or foot, [or] a board.” It could have been “one blow or multiple blows.” See Lyons, 444 Mass. at 292 (“one violent shaking”). See also Woodward, 427 Mass. at 670 n.15 (“in Commonwealth v. Starling, 382 Mass. 423, 425-427 [1981], ․ evidence of the fatal battery itself could have warranted a finding of multiple severe blows to the child”). The examiner testified that “death could have occurred immediately upon receiving those injuries or injury or within a matter of seconds or minutes” based on “[t]he severity of the injury.” See Lyons, supra at 295 (victim “would have lost consciousness ‘[n]early instantaneously’ ”). See also Woodward, supra at 670 (“evidence of a single blow to a child of tender years may be sufficient to support a jury finding of malice”).

To be sure, the facts here provided an adequate basis for a reasonable jury to convict the defendant either of murder in the second degree or of involuntary manslaughter, as they were near that “fine line distinguish[ing] murder in the second degree based on third prong malice from the lesser included offense of involuntary manslaughter.” Lyons, 444 Mass. at 293. Because the evidence “could be viewed either as tending to prove a strong and plain likelihood of death or as tending to prove conduct that involved a high degree of likelihood that substantial harm will happen to another,” Commonwealth v. Burnham, 451 Mass. 517, 527 (2008), quoting Commonwealth v. Vizcarrondo, 427 Mass. 392, 397 (1998), S.C., 431 Mass. 360 (2000) and 447 Mass. 1017 (2006), the jury were permitted to choose between the two. See Commonwealth v. Porro, 458 Mass. 526, 532 (2010), quoting Woodward, 427 Mass. at 664-665 (“Lesser included offenses serve an important purpose by ‘allowing the jury to convict of the offense established by the evidence, rather than forcing them to choose between convicting the defendant of an offense not fully established by the evidence or acquitting, even though the defendant is guilty of some offense’ ”). See also Vizcarrondo, supra at 397-398 (“The issue is whether the evidence required the jurors to find a plain and strong likelihood that death would result from the defendant's actions ․”). Accordingly, that similar cases resulted in a manslaughter conviction, see Commonwealth v. Gallison, 383 Mass. 659, 660-662 (1981); Commonwealth v. Cutler, 356 Mass. 245, 246-248 (1969), establishes merely that there is a range of conduct warranting a conviction of either murder or manslaughter.

3. Malice instruction. The defendant argues that errors in the malice instruction, combined with “weak evidence of malice,” justify a reduction in the verdict. Specifically, the defendant argues that “the judge left out the language ‘in the circumstances known to the defendant.’ ” Although the judge's initial instruction on malice did not include this qualifier, the examples given in the supplemental instruction analyzed the information known to the defendant.

Again, precedent lights our way. The Supreme Judicial Court previously exercised its authority under G. L. c. 278, § 33E, see Starling, 382 Mass. at 430, “to consider broadly the whole case on the law and the facts to determine whether the verdict is consonant with justice.” Commonwealth v. Vargas, 475 Mass. 338, 363-364 (2016), quoting Commonwealth v. Howard, 469 Mass. 721, 747 (2014), S.C., 479 Mass. 52 (2018). The court considered the jury instructions on malice, concluding that, given “settled doctrine,” there was no error in them. Starling, supra at 428. To our point, the court specifically held that “the charge as given required: that a reasonably prudent man, in the circumstances known to the defendant, would have known that according to common experience there was a probability of grievous bodily harm and a strong and plain likelihood of death as a result of the defendant's act.” Id. We are not at liberty to question the Supreme Judicial Court's analysis.

In any event, this issue does not go to any problems in the case. “[B]ased on what the defendant knew, a reasonable person would objectively realize the risk of death.” Lyons, 444 Mass. at 299. The defendant had been living with the victim for one month and had cared for the victim many times. The suggestion that he might not have been aware of the victim's size and poor nourishment does not gain much purchase in the facts of this case. In short, it is hard to see what relevant circumstances could have been unknown to the defendant. Accordingly, we discern no basis for a reduction in the verdict based on the malice instructions.

Order denying motion to reduce verdict affirmed.

FOOTNOTES

1.   The medical examiner testified that a twenty-two month old “should be approximately 25 pounds” and “[a]pproximately 35 inches.”

2.   The examiner explained that “[h]emoperitoneum means blood in the abdominal cavity or [hemorrhage] into the abdominal cavity.”