Betancourt v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, * Judge Elder and
Senior Judge Duff
Argued at Alexandria, Virginia

CASSONDRA SUE BETANCOURT
OPINION BY
v. Record No. 0864-96-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JANUARY 20, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Paul A. Morrison for appellant.

Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General;
H. Elizabeth Shaffer, Assistant Attorney
General, on brief), for appellee.

Cassondra Sue Betancourt (appellant) was convicted in a jury

trial of first degree murder in violation of Code § 18.2-32. The

court accepted the jury's recommendation and sentenced her to

fifty years in prison. On appeal, appellant argues that: (1)

the evidence was insufficient as a matter of law to convict her

of first degree murder; (2) the court erred in admitting tapes

and transcripts in violation of the best evidence rule; and (3)

the court erred in denying appellant's motion for a mistrial.

Finding the evidence insufficient, we reverse the conviction.

Because we reverse on this ground, we do not address appellant's

other contentions.

*
On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
 I.

On appeal, the sufficiency of the evidence must be examined

in the light most favorable to the Commonwealth, granting to it

all reasonable inferences fairly deducible therefrom. See Sam v.

Commonwealth, 13 Va. App. 312, 411 S.E.2d 832 (1991). "The

jury's verdict will not be disturbed on appeal unless it is

plainly wrong or without evidence to support it." Id. at 318,

411 S.E.2d at 835.
Cassondra Betancourt had a three-year relationship with

Walter Montague (the deceased), which included business dealings,

sharing a bed on at least one occasion, and frequent cocaine use.

Montague was an overweight sixty-five-year-old smoker who

habitually used drugs and alcohol.

In the spring of 1994, appellant and Montague agreed to

start a business. They obtained a tax identification number from

the IRS and began incorporation proceedings. As part of this

business relationship, appellant and Montague took out a "key

man" life insurance policy on Montague. Appellant was the

beneficiary of the policy. On August 3, 1994, Frank Dennis, a

Nationwide Insurance Company agent, completed the application for

a $500,000 policy. Appellant and Montague made an initial

payment of $2,130 with a check drawn on appellant's account.

Dennis testified that this payment was necessary for the

beneficiary to collect should the insured die during the

application period. Montague was required to undergo a medical

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examination before the policy could be finalized. Appellant

discussed with Montague the need to complete the process and

repeatedly encouraged him to have the exam so the policy would

become effective. Montague failed to have the required medical

examination before he died on August 11, 1994.

On August 11, 1994, appellant purchased approximately ten

grams of powder cocaine from Kip Rice for $600. Appellant

indicated that she wanted the cocaine for a trip out of town with

some friends. Rice warned appellant to be careful with the

cocaine because it was powerful.
On the same day, Montague bought two bottles of liquor and

registered for a room at the Hampton Inn Hotel in Sterling,

Virginia. It was Montague's custom to stay in hotels when he

"wanted to party." When Montague checked into the hotel, he paid

for two people, and at some time he left a note indicating that

he had "gone to [the] gas station [and would] be right back."

Over the course of the day, he made numerous phone calls,

including at least six calls to appellant, asking her to meet him

at the hotel. Montague also phoned his stepdaughter, Dixie, but

she declined his dinner invitation. Janet Hall, Montague's

adopted daughter, spoke with him at 4:00 p.m. and again at

6:30 p.m. During the 6:30 p.m. conversation, Hall heard

appellant in the background, and Montague explained that he was

having dinner with her.

Appellant joined Montague at the hotel in the evening, and

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they played cards and discussed various aspects of their

relationship. They also drank fireballs, a mixture of cinnamon

schnapps and tabasco sauce. Appellant told police that the

discussion resulted in a disagreement, and she left, telling

Montague that their relationship would be limited to business in

the future.

Janet Hall tried to reach Montague several times that

evening, but he failed to answer his pager and the room phone

rang busy after 8:00 p.m. The last outbound call recorded from

Montague's room was at 6:25 p.m. At approximately midnight that

evening, a Hampton Inn guest in the room adjacent to Montague's

heard a loud bang from the direction of Montague's room. There

were no other guests in adjacent rooms or in that wing of the

hotel at that time of night.
After she left Montague's hotel room, appellant called Kip

Rice, her cocaine supplier, from her car. Rice testified that

she "wasn't her usual self," her voice was cracking, and she

wanted to come over to his place. Rice told appellant he had

company. Appellant then called Bill Shreve and spent from

approximately 8:30 p.m. until approximately 3:00 a.m. at his

house. When asked if appellant had any cocaine with her when she

came to his house, Shreve replied, "No, sir . . . . None that I

know of . . . ."

The hotel cleaning crew noticed a "Do Not Disturb" sign on

Montague's room door on the morning of August 12, 1994. After

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noon, they used a master key to gain entry and discovered

Montague's body. The Loudoun County sheriff's department

conducted an investigation of the scene. Montague's body was

found lying between two beds next to a round table, which had

been moved between the beds. The telephone was found under

Montague's body, and the television was on "pretty loud."

Playing cards were found on the round table, along with a writing

pad with the initials "C" and "W" on it. A plastic motel

drinking cup was also found on the table. Bottles of tequila and

cinnamon Schnapps were found in the bathroom, together with a cup

that was half full of a "caramel color liquid." Upon inspection,

nothing in the room indicated a homicide, and the evidence

technician poured the contents of the cup down the drain.

Subsequent chemical analysis showed that the cup contained "as

little as a nanogram" (0.000000001 g) of cocaine residue. At

some point in the investigation, Janet Hall entered the room and

told the officers on the scene that Cassondra Betancourt was

responsible.
On August 16, 1994, Dr. James Beyer performed an autopsy.

Finding no signs of trauma or needle puncture marks, he made an

initial determination of death due to a "dilated cardiomyopathy."

No cocaine residue was observed around Montague's face or head.

Subsequent laboratory analysis showed a blood alcohol level of

.16 percent and 31.07 milligrams per liter of cocaine in

Montague's blood. Based on the lab analysis, Dr. Beyer changed

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his prior assessment to one of death due to cocaine poisoning

with the cardiac problem as a contributing cause. Dr. Beyer did

not test to determine the path of ingestion of the cocaine, and

subsequent testing became impossible when Montague's family chose

to cremate his remains. Dr. Beyer testified that in the majority

of cocaine poisoning deaths the blood of the victim contains

between one and five milligrams per liter of cocaine, and that

the large imbalance between cocaine and cocaine metabolite in

Montague's blood indicated that he had recently consumed a large

amount of cocaine.
Dr. Anh Hyunh, an expert witness for the Commonwealth and

the supervisor of the toxicology section of the Fairfax Forensic

Laboratory, testified that Montague's system contained thirty

times the amount of cocaine necessary to kill him. Based on the

unusually high amount of cocaine in Montague's blood, Dr. Hyunh

concluded it had been ingested orally or injected. Dr. Hyunh

also considered Montague's heart condition and level of alcohol

and testified that with "so many factors together [it] could have

been a fatal accident."

On August 16, 1994, the sheriff's department phoned

Nationwide Insurance and notified the company of Montague's

death. On August 19, Investigator Robinette contacted Calvin

Mullins, the Life Claims Manager for Nationwide, and informed him

that appellant was a suspect. Robinette told Mullins to make

sure appellant did not know that the sheriff's department was

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involved, to take notes of any contact with appellant, and to

notify Robinette. Appellant did not contact the company, so

Mullins mailed her a claim form and instructed her to complete

it. Appellant phoned Mullins on August 31, and he instructed her

to complete and return the claim form. She did so, but

Nationwide refused to pay the claim, citing lack of information.

In January 1995, appellant wrote a letter to Nationwide

demanding payment and stating, "Mr. Montague did not die by

suicide." Upon learning that appellant had filed a claim, Janet

Hall wrote Nationwide a letter threatening to sue if appellant

received the money. Hall later filed a claim as an heir and sued

Nationwide for its failure to pay.
Carolyn Bothwell, a friend of Hall's, assisted the police

investigation by wearing a concealed recording device on six

different occasions in a futile attempt to obtain incriminating

statements from appellant. Bothwell testified that she, already

a convicted felon, was the target of a felony prosecution in

Loudoun County at the time of appellant's trial but that her case

had been continued. She further testified that she had reached

no agreement with the Loudoun County prosecutor's office

regarding the effect her cooperation in appellant's case might

have on her own prosecution.

Transcripts of appellant's interviews with Investigator

Robinette indicated that appellant lied to police about the

existence of any life insurance and her activities relating to

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Kip Rice, her cocaine supplier. At first, she denied knowledge

of any insurance and of anyone who would benefit from Montague's

death. However, she ultimately admitted that when Montague

wanted to obtain life insurance, she chose the Nationwide office

and agent. She initially denied phoning Rice on the night of

Montague's death, but later admitted she had beeped him and he

had returned her call. In one interview, appellant told

Robinette she was unable to remember Kip's last name. In the

next interview, when the police told her they knew Rice's name

and showed her a picture of him, she admitted she had purchased

cocaine from him prior to Montague's death but she could not

remember exactly when.
Appellant told police that on the night of Montague's death,

he had not threatened suicide. Montague never arranged his

affairs in preparation for death. He died intestate leaving

three heirs: Janet Hall, Richard Montague, and June Warner.

Suzette Ronco, Montague's ex-wife and a nurse with some

psychiatric experience, testified that while assisting him with

his insurance paperwork she had directly asked Montague if he was

planning suicide; he said "no."

On February 13, 1995, appellant was indicted for feloniously

and unlawfully killing Walter Montague in violation of Code

§ 18.2-32. A jury found her guilty of first degree murder on

September 19, 1995. On November 1, 1995, appellant moved to set

aside the verdict and for a mistrial. One of the grounds for the

8
motions was the failure of the Commonwealth to disclose an

agreement with Bothwell, which allegedly would have discredited

her testimony. In response to the allegation, the prosecuting

attorney responded, "there's no agreement other than to continue

[her case]." The trial court denied appellant's motions.

II.
Appellant contends the evidence was insufficient to prove

beyond a reasonable doubt that she committed first degree murder.

We agree.

The relevant parts of Code § 18.2-32 provide that "[m]urder

. . . by any willful, deliberate, and premeditated killing . . .

is murder of the first degree . . . . All murder other than

capital murder and murder in the first degree is murder of the

second degree. . . ." "'To premeditate means to adopt a specific

intent to kill, and that is what distinguishes first and second

degree murder.'" Rhodes v. Commonwealth, 238 Va. 480, 485, 384

S.E.2d 95, 98 (1989) (quoting Smith v. Commonwealth, 220 Va. 696,

700, 261 S.E.2d 550, 553 (1980)). "To prove premeditated murder,

the Commonwealth must establish: (1) a killing; (2) a reasoning

process antecedent to the act of killing, resulting in the

formation of a specific intent to kill; and (3) the performance

of that act with malicious intent." Archie v. Commonwealth, 14

Va. App. 684, 689, 420 S.E.2d 718, 721 (1992) (citation omitted).

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"Each element must be proved beyond a reasonable doubt." Morris

v. Commonwealth, 17 Va. App. 575, 581, 439 S.E.2d 867, 871 (1994)

(Benton, J., concurring and dissenting) (citing In re Winship,

397 U.S. 358, 364 (1970)). "Proof of the elements of an offense,

of course, includes proof of the corpus delicti." Watkins v.

Commonwealth, 238 Va. 341, 350 n.3, 385 S.E.2d 50, 55 n.3 (1989),

cert. denied, 494 U.S. 1074 (1990). To establish the corpus

delicti in a homicide, the Commonwealth must prove the victim's

death resulted from the criminal act or agency of another person.
See Williams v. Commonwealth, 234 Va. 168, 175, 360 S.E.2d 361,

366 (1987), cert. denied, 484 U.S. 1020 (1988). "Premeditation

and formation of an intent to kill seldom can be proved by direct

evidence. A combination of circumstantial factors may be

sufficient." Rhodes, 238 Va. at 486, 384 S.E.2d at 98 (citing

Epperly v. Commonwealth, 224 Va. 214, 232, 294 S.E.2d 882, 893

(1982)).

Proof by circumstantial evidence "is not sufficient . . . if

it engenders only a suspicion or even a probability of guilt.

Conviction cannot rest upon conjecture." Littlejohn v.

Commonwealth, 24 Va. App. 401, 414, 482 S.E.2d 853, 859 (1997)

(citing Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78

(1977)). "'[A]ll necessary circumstances proved must be

consistent with guilt and inconsistent with innocence and exclude

every reasonable hypothesis of innocence.'" Stover v.
Commonwealth, 222 Va. 618, 623, 283 S.E.2d 194, 196 (1981)

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(quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563,

567 (1976)). "When, from the circumstantial evidence, 'it is

just as likely, if not more likely,' that a 'reasonable

hypothesis of innocence' explains the accused's conduct, the

evidence cannot be said to rise to the level of proof beyond a

reasonable doubt." Littlejohn, 24 Va. App. at 414, 482 S.E.2d at

859 (quoting Haywood v. Commonwealth, 20 Va. App. 562, 567-68,

458 S.E.2d 606, 609 (1995)). The Commonwealth need not "exclude

every possible theory or surmise," but it must exclude those
hypotheses "which flow from the evidence itself." Cantrell v.

Commonwealth, 7 Va. App. 269, 289-90, 373 S.E.2d 328, 338-39

(1988) (citations omitted). The evidence in the instant case

fails to prove appellant's guilt beyond a reasonable doubt.

Viewed in the light most favorable to the Commonwealth, the

evidence established that appellant bought cocaine and visited

Montague in his hotel room on the day of his death from cocaine

overdose. Although a jury could reasonably infer that appellant

provided Montague with the cocaine that killed him, no evidence

established the Commonwealth's theory that appellant disguised

the cocaine in a drink. No evidence proved that appellant put

the cocaine in a drink. Montague could have put cocaine in his

own drink or he could have chosen to consume the cocaine in some

other way. The Commonwealth destroyed the suspect liquid, and

the extremely small amount of cocaine remaining in the cup could

have come from multiple sources. No evidence established the

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time of death or whether appellant was present when Montague

died. The evidence does not exclude the reasonable possibility

that appellant provided the cocaine for recreational use, and

Montague either accidentally or deliberately ingested an

excessive dose near midnight, around the time of the unexplained

noise from the direction of his room. 1

"Where a fact is equally susceptible of two interpretations

one of which is consistent with the innocence of the accused,

[the trier of fact] cannot arbitrarily adopt that interpretation

which incriminates the accused." Littlejohn, 24 Va. App. at 411,

482 S.E.2d at 858 (citation omitted). Accord Haywood v.

Commonwealth, 20 Va. App. 562, 567, 458 S.E.2d 606, 609 (1995).

The reasonable hypothesis that Montague consumed the cocaine by

1
Appellant was charged with and convicted of premeditated
first degree murder, not felony-murder. See Code § 18.2-32.
However, under the hypothesis that Montague consumed the cocaine
by choice, the facts sufficiently resemble our felony-murder
cases to warrant distinction. See, e.g., Hickman v.
Commonwealth, 11 Va. App. 369, 398 S.E.2d 698 (1990), aff'd, 242
Va. 263, 410 S.E.2d 88 (1991).
In a felony-murder case, the malice inherent in the
predicate felony is sufficient to prove the malice required for a
conviction of second degree murder. See id. However, the malice
of an underlying felony does not satisfy the element of
premeditation required for first degree murder. See Archie v.
Commonwealth, 14 Va. App. 684, 420 S.E.2d 718 (1992).
Additionally, felony-murder requires that the death occur within
the res gestae of the predicate offense; the two events may not
be separated by time, place, or other circumstances. See Talbert
v. Commonwealth, 17 Va. App. 239, 436 S.E.2d 286 (1993). In the
instant case, no evidence established either the reason Montague
consumed an excessive dose of cocaine or appellant's presence at
the time of his death. If Montague ingested the cocaine near
midnight, his death occurred several hours after appellant
provided him with the drug and departed.

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choice is inconsistent with proof beyond a reasonable doubt of

the "criminal act or agency of another person" and the

"performance of that act with malicious intent" required for the

corpus delicti and actus reus elements of premeditated murder.

Assuming appellant had a motive to kill her business partner

for the insurance proceeds, motive alone does not prove the

requisite intent for a murder conviction. No evidence explains

why Montague had to phone appellant multiple times before she

agreed to join him at the hotel. The record provides no

explanation for appellant's attempts to encourage Montague to

have the physical examination required to finalize the policy if

she believed she could collect the proceeds without one. No

evidence explains why appellant did not initiate a claim for the

life insurance benefits until the company contacted her and

instructed her to do so. The evidence does not prove beyond a

reasonable doubt that appellant was the criminal agent in a

homicide or had the specific intent to kill required for a

conviction of premeditated murder.
Taken in the light most favorable to the Commonwealth, the

evidence in this record does not exclude the hypothesis that

Montague died as a result of an accidental or deliberate

self-inflicted overdose after appellant left his hotel room.

"The circumstances of motive, time, place, means, and conduct

must all concur to form an unbroken chain which links the

defendant to the crime beyond a reasonable doubt." Sam v.

13
Commonwealth, 13 Va. App. 312, 319, 411 S.E.2d 832, 836 (1991)

(citation omitted). Viewed as a whole, the circumstantial

factors here are suspicious, but they do not prove beyond a

reasonable doubt either the existence of a homicide or the

identity of appellant as the criminal agent. "Suspicion, no

matter how strong, is not enough. Convictions cannot rest upon

speculation and conjecture." Littlejohn, 24 Va. App. at 415, 482

S.E.2d at 860 (citations omitted). For the foregoing reasons, we

reverse the conviction.
Reversed.

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