2.5 “triggerman” (immediate Perpetrator) Rule

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

2.5 "TRIGGERMAN" (IMMEDIATE PERPETRATOR) RULE

2.501 In General. The general rule of accomplice liability in Virginia states that principals in the second degree and accessories before the fact may be convicted and punished as if they were principals in the first degree

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to the felony. ⁶⁷ In capital cases, however, section 18.2-18 of the Virginia Code codifies the "triggerman" rule, which provides that (except in the case of a killing for hire or as part of a continuing criminal enterprise or a killing pursuant to the direction or order of one who is engaged in the commission of or attempted commission of an act of terrorism) only the immediate slayer may be tried for capital murder. Under the Virginia statute, accomplices to all other forms of capital murder may be tried only for first-degree murder. ⁶⁸

2.502 What Commonwealth Must Prove. The essence of the triggerman rule is that "the Commonwealth has the burden to prove beyond a reasonable doubt that one accused of capital murder was the actual perpetrator of the crime." ⁶⁹ In Rogers v. Commonwealth ⁷⁰ and Cheng v. Commonwealth, ⁷¹ the court held the Commonwealth to a rigorous standard of proof and reversed capital murder convictions for insufficiency of evidence that the defendant was the "triggerman." In Clagett v. Commonwealth, ⁷² however, the court found adequate corroboration of a defendant's confessed role as the triggerman because "the Commonwealth produced evidence that the killings were not accidental or self-inflicted, but were the act of some criminal agent, and that the confessed triggerman possessed a weapon and ammunition consistent with the type used to commit the murders. Moreover, the record is totally devoid of any evidence that . . . the only other criminal actor present was potentially the triggerman." ⁷³ In Lilly v. Commonwealth, ⁷⁴ the court found that it was not harmless error to admit the accomplice's statement because, "[i]n the absence of these statements, Barker's testimony that Lilly was the triggerman was supported only by the evidence that Lilly was present and had the opportunity to shoot DeFilippis."

2.503 More Than One Immediate Perpetrator. In some instances, more than one person can be found to be an immediate slayer. Under

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one view of the evidence in Strickler v. Commonwealth, ⁷⁵ the jury could have found that the defendant held the victim down while his co-defendant crushed her head by dropping a large rock on it. Instead of viewing Strickler as an accomplice, the court characterized the killing as having been caused by one indivisible act perpetrated by two individuals. Similarly, in Coppola v. Commonwealth, ⁷⁶ there was evidence to show that Coppola and another defendant jointly participated in the fatal beating of the same victim. Each defendant was found guilty, in separate trials, of capital murder of the same victim.

Remington v. Commonwealth ⁷⁷ summarized the court's holdings in Coppola and Strickler:

In Coppola we held that a defendant who "jointly participated in [a] fatal beating" was subject to conviction and punishment for capital murder when the other requisite elements were established. In Strickler, we held that when two or more persons took a direct part in inflicting fatal injuries, each participant in the murder was an immediate perpetrator for purposes of the capital murder statutes.

Muhammad v. Commonwealth ⁷⁸ stated that "the euphemism, 'triggerman,' is inadequate to describe the breadth of criminal responsibility subject to the death penalty in Virginia. Immediately and obviously, capital murder cases are not confined to murders completed by the instrumentality of a firearm. Recognizing this inadequacy, our capital murder cases routinely use the term 'immediate perpetrator' as the appropriate descriptive term." Both members of the sniper team in Muhammad were culpable as principals in the first degree because "actual participation together in a unified act" renders each an immediate perpetrator.

Although the "triggerman" rule permits only the immediate slayer to be convicted of capital murder, there is no requirement in a capital felony murder case that the slayer also be the immediate perpetrator of the under

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lying felony. Thus, a defendant who is an accomplice to a predicate robbery but the immediate perpetrator of the killing may be convicted of capital felony murder. ⁷⁹ Similarly,

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