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SUCCESSION OF STAMM, 2009-1469 (La.App. 4 Cir. 7/14/10)
McDONALD, J.
The defendant, Chester L. Redmond, III, was charged by grand jury indictment with one count of molestation of a juvenile, a violation of La.R.S. 14:81.2, and pled not guilty. Following a jury trial, he was found guilty as charged by unanimous verdict. He was sentenced to fifty years at hard labor, with twenty-five years of the sentence without benefit of probation, parole, or suspension of sentence. He now appeals, designating the following assignments of error:
1. The trial court erred by denying the motion for mistrial after the State elicited other crimes evidence.
2. The trial court erred in imposing an excessive sentence.
3. The trial court erred by failing to comply with the sentencing mandates of La. Code Crim. P. art. 894.1.
4. The defendant was denied the effective assistance of counsel as a result of his counsel's failure to file a motion to reconsider sentence to preserve for appellate review his right to object, on specific grounds, to the excessiveness of his sentence.
For the following reasons, we affirm the conviction and sentence.
FACTS
Kimberly Rodney testified at trial. She was the victim's, [S.L.'s], babysitter in March 2007. During that month, the victim told Rodney that "Chester" had been telling her nasty things and locking her in the bathroom. The victim told Rodney that "Chester" had made the victim watch "nasty stuff," had touched her private parts, had made her touch his private parts, and had "licked her." The victim told Rodney that "Chester" had "white stuff coming out of his private part. The victim also told Rodney that "Chester" had told her not to tell anyone about what he had been doing to her.
The victim is referenced herein only by her initials.See La.R.S. 46:1844(W).
The victim's mother also testified at trial. She indicated that in 2007, the defendant was her sister's boyfriend and lived with her sister at their mother's house. The victim had visited the home while the defendant was there and had spent the night there. After learning of the victim's claims, the victim's mother had her examined by Dr. Quinn, a pediatrician. Dr. Quinn found that the victim's hymen was not intact.
Dr. John Knapp also testified at trial. He examined the victim approximately one month after the alleged molestation. She told him that, at her grandmother's house, the defendant had touched her between her legs, had told her to shut up, had shown her his private parts, had grabbed and shaken his private parts, and had touched her backside. Upon examining the victim, Dr. Knapp found bilateral redness involving the labia and that the hymen was disturbed, but no evidence of recent trauma.
On March 22, 2007, the victim was interviewed at the Child Advocacy Center in Gonzales. She indicated that "Chester Leon" had given her touches that were not okay. She indicated that in her aunt's room, he had touched her between her legs with his hand and had touched her "backside" with his penis. She indicated that she was wearing pink nightclothes with angels on them. She indicated that he pulled her pants down, she cried, and he told her to shut up. She indicated that in the "middle room," he had asked her to touch his penis. She indicated that she told him to leave her alone, and he told her that she would get into trouble if she did not touch his penis. She indicated that her mother then arrived to pick her up.
The State introduced into evidence the victim's birth certificate, indicating that her date of birth was December 25, 2000, and the defendant's marriage certificate, indicating that his date of birth was May 1, 1970.
OTHER CRIMES EVIDENCE
In assignment of error number 1, the defendant contends the trial court erred in denying the motion for mistrial after the State elicited other crimes evidence and erred in failing to admonish the jury to disregard the other crimes evidence.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by La. Code Crim. P. arts. 770 or 771. La. Code Crim. P. art. 775. The determination as to whether or not a mistrial should be granted under La. Code Crim. P. art. 775 is within the sound discretion of the trial court, and a denial of a motion for mistrial will not be disturbed on appeal absent an abuse of discretion. State v. Young, 569 So.2d 570, 583 (La. App. 1st Cir. 1990), writ denied, 575 So.2d 386 (La. 1991).
La. Code Crim. P. art. 770(2) provides for a mandatory mistrial when a remark, within the hearing of the jury, is made by the judge, the district attorney, or a court official, and such remark refers to another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible. However, remarks by witnesses fall under the discretionary mistrial provisions of La. Code Crim. P. art. 771.
La. Code Crim. P. art. 771, in pertinent part, provides:
In the following cases, upon the request of the defendant or the state, the court shall promptly admonish the jury to disregard a remark or comment made during the trial, or in argument within the hearing of the jury, when the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant, or the state, in the mind of the jury:. . .
(2) When the remark or comment is made by a witness or person other than the judge, district attorney, or a court official, regardless of whether the remark or comment is within the scope of Article 770.
In such cases, on motion of the defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.
A mistrial pursuant to the provisions of Article 771 is at the discretion of the trial court and should be granted only where the prejudicial remarks of the witness make it impossible for the defendant to obtain a fair trial. See State v. Dixon, 620 So.2d 904, 911 (La. App. 1st Cir. 1993). The jurisprudence interpreting La. Code Crim. P. art. 771(2) has held that unsolicited and unresponsive testimony is not chargeable against the State to provide a ground for mandatory reversal of a conviction. State v. LeBlanc, 618 So.2d 949, 960 (La. App. 1st Cir. 1993),writ denied, 95-2216 (La. 10/4/96), 679 So.2d 1372.
During the presentation of its case, the defense called the victim to the stand and asked her if she always told the truth. The victim stated, "[n]ot so much." She indicated, however, that she had told the truth about everything the defendant had done to her.
The defense then called Tawana Dupard to the stand. In response to questioning by the defense, Dupard indicated she was the defendant's girlfriend, that the defendant lived with her in her mother's house, that she kept her bedroom door locked when she was not home, that the defendant had never been alone with the victim, and that the victim's father watched pornographic movies. On crossexamination, the following colloquy occurred between the State and Dupard:
Q. And prior to this, [the victim] has no reason to make something up about [the defendant], nor does [the victim's father] or [the victim's mother]; right?
A. 1 wouldn't know, ma'am.
Q. Well, you had a good relationship, so you don't know of anything that would cause [the victim], [the victim's mother] or [the victim's father] to make this up about [the defendant], prior to this happening, except for the fact that it happened?
A. Well, you see, on February, I think it might be a Monday, I don't know if it's the 18th or the 19th, my — it was a Sunday, I think, and [the defendant] had went out. And Trisha Cox said that [the defendant] had broke into their home, and so the police come to the house and when they come, my cousin said he had dropped [the defendant] off already, and we didn't hear him knock on the door, so the police come and we opened the door, we told them they could come in. I only remember one police officer then, cause I didn't remember the other one, was Dwayne Gibson. And he said there was no need to come in and she told my sister the next morning, "keep your children from [the defendant], cause he's a molester." So, not a month later-[.]
The defense objected and demanded a mistrial, arguing that the witness had referred to another crime. The State replied that it had expected a "no" response from the witness, and had even asked a leading question, i.e., "there's no reason that she knew of why [the victim's father], [the victim], or [the victim's mother] would make up anything about [the defendant][,]" to obtain that response. The defense again demanded a mistrial, and the court denied the demand. The defense objected to the court's ruling, and the court noted the objection and stated, "It will be addressed on closing argument."
After the defense presented testimony from another witness, the court recessed the case for lunch, but allowed the defense to argue its motion for mistrial outside the presence of the jury. The defense argued "it was obvious" from the line of questioning used by the State in examining Tawana Dupard that the State wanted her to disclose the fact that the defendant was a registered sex offender. The State replied it had not questioned Tawana Dupard concerning any prior crimes or offenses by the defendant, but had asked if there was any reason for the victim, the victim's father, or the victim's mother to "make this up" about the defendant. The State argued that rather than answer the question, Tawana Dupard began talking about Trisha Cox, who was not a witness in the trial. The defense argued that, based on the State's line of questioning of Tawana Dupard, "[t]here's no question" the State wanted the witness to say that the defendant was a sex offender. The court denied the motion for mistrial, noting that there was no evidence before the jury of the defendant being a registered sex offender or of his having been convicted of any offense, and "the [c]ourt will address that during the jury instructions[.]"
In charging the jury, the court stated that the defendant was presumed innocent until each element of the crime necessary to constitute his guilt was proven beyond a reasonable doubt and that the jury was only to consider evidence admitted during the trial. The court did not reference the fact that the defendant was a registered sex offender.
There was no abuse of discretion in the court's refusal to grant a mistrial. Tawana Dupard's reference to the defendant being a molester was unsolicited and unresponsive testimony, and thus, was not chargeable against the State. Further, there was no error in the court's not admonishing the jury to disregard the challenged testimony. Although defense counsel objected, he failed to ask the trial court to admonish the jury to disregard the unresponsive testimony. La. Code Crim. P. art. 771 mandates a request for an admonishment. State v. Jack, 554 So.2d 1292, 1296 (La. App. 1st Cir. 1989), writ denied, 560 So.2d 20 (La. 1990).
This assignment of error is without merit.
EXCESSIVE SENTENCE; LA. CODE CRIM. P. ART. 894.1; INEFFECTIVE ASSISTANCE OF COUNSELThe defendant combines assignments of error numbers 2, 3, and 4. He argues the trial court imposed an excessive sentence on him; the trial court failed to specify why it sentenced him so harshly; and trial defense counsel was ineffective because he failed to move for reconsideration of sentence.
We will address the defendant's claim of excessive sentence, even in the absence of a timely motion to reconsider sentence or a contemporaneous objection, because it would be necessary to do so as part of the analysis of the ineffective assistance of counsel claim.See State v. Bickham, 98-1839, pp. 7-8 (La. App. 1st Cir. 6/25/99), 739 So.2d 887, 891-92.
The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence. La. Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868, p. 10 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it is so disproportionate as to shock one's sense of justice. A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. Hurst, 99-2868 at pp. 10-11, 797 So.2d at 83.
A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; the defendant must prove actual prejudice before relief will be granted. It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859-60 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).
Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence. La.R.S. 14:81.2(E)(1) (prior to amendment by 2008 La. Acts, No. 33, § 1). The trial court sentenced the defendant to fifty years at hard labor, with twenty-five years of the sentence without benefit of probation, parole, or suspension of sentence.
In sentencing the defendant, the trial court stated that this was the case of a thirty-nine-year-old black male, who was officially classified as a third-felony offender. The court noted it had ordered a presentence investigation report (PSI), had received that report, had made that report available to the defendant through his attorney, and would attach the report and make it a part of the court's reasons for sentence. The court noted that the PSI indicated: the defendant had two previous felony convictions for crimes against the person; on February 22, 1999, he was convicted of second degree battery and sentenced to eighteen months at hard labor; on July 29, 2003, he was convicted of accessory after the fact to aggravated rape and was sentenced to five years at hard labor, but the sentence was suspended and he was given five years probation; while under probation supervision, he committed the instant offense of molestation of a juvenile; and the victim was six years old.
A thorough review of the record reveals the trial court adequately considered the criteria of Article 894.1 and did not manifestly abuse its discretion in imposing the sentence. See La. Code Crim. P. art. 894.1 (A)(1), (B)(2), (B)(21). Further, the sentence imposed was not grossly disproportionate to the severity of the offense and thus, was not unconstitutionally excessive.
With regard to the defendant's ineffective assistance of counsel claim, we note, even assuming arguendo that defense counsel performed deficiently in failing to timely move for reconsideration of the sentence, the defendant suffered no prejudice from the deficient performance, because this court considered the defendant's excessive sentence argument in connection with the ineffective assistance of counsel claim.
These assignments of error are without merit.
PROTECTIVE ORDER
La.R.S. 15:440.6 requires a videotape of a child's statement admitted under La.R.S. 15:440.5 be preserved under a protective order of the court to protect the privacy of the child. Accordingly, it is hereby ordered that the videotaped statement of the victim be placed under a protective order. See State v. Ledet, 96-0142, p. 19 (La. App. 1st Cir. 11/8/96), 694 So.2d 336, 347, writ denied, 96-3029 (La. 9/19/97), 701 So.2d 163.
CONVICTION AND SENTENCE AFFIRMED; PROTECTIVE ORDER ISSUED.
He testified that even though Mr. Stamm was on drugs that had possible side effects such as confusion, lethary, and hallucinations, that it was not likely that Such side effects are necessarily present in every person. Dr. Mielke testified that his general sketch of Mr. Stamm was:
. . . during the year `05, of course he was dealing with acute and chronic mental illnesses. And during that time he was on various medications, and his mental status was over time, I would say generally good during the daytime. And of course one can find instances when he would be confused, but that was largely, I believe, at night, from going through the records. So he had his good days occasionally and a not so good day, certainly interspersed. And then came Katrina. And I think in a sketch I would say that as a result of several factors that happened with his being moved and new doctors and new staff, and the stress of all that came with his movement about, I think his mental status was not as good, as frequently as it was prior to that. He had more bad days, in other words, more difficulty with medications. But he was back in New Orleans in early November. And then from a psychiatric point of view that seemed to settle down some, but of course from that time, November through December, and up until the time of his death, then we had some medical problems for sure. And that sometimes effected [sic] his psychiatrically as well. But by the time we get to January that was probably, I think, it's safe to say his worst month.
Dr. Mielke also opined that Mr. Stamm was competent to make donations at the end of 2005. Particularly, he when asked about a donation that Mr. Stamm made on December 5, 2005, Dr. Mielke testified that he found no evidence that Mr. Stamm was acting under duress or undue influence. He testified that his opinion took into consideration the medications that could have caused side effects in Mr. Stamm.
In reaching his conclusions, Dr. Mielke testified that he considered some of the writings from the journal of Mr. Stamm, in particular Journal # 3. Dr. Mielke explained that entries of Mr. Stamm in Journal # 3 concerned adjustment to life in the nursing home, and how Mr. Stamm felt about himself compared to the other nursing home residents. Dr. Mielke testified the entries of Mr. Stamm also concerned how he was sad and how he loved Ms. Darmstadter. The entries also touched upon the relationship of Mr. Stamm with his daughters, and explained his drafting of the will of August 1, 2005, and why he felt it was fair to everyone. Dr. Mielke also testified that the journal of Mr. Stamm did not reflect any writings which expressed anything other than love and affection for Ms. Darmstadter. Dr. Mielke testified that he believed these journal entries were important because they told him what Mr. Stamm was thinking about, that he had the ability to think, and what Mr. Stamm was feeling emotionally. Dr. Mielke testified that all of these factors were important in establishing the mental capabilities of Mr. Stamm.
Dr. Mielke testified further that he believed that Mr. Stamm was creative, and that he was dealing with spousal guilt at having to put his first wife in a nursing home, as well as his affection for Ms. Darmstadter. Dr. Mielke opined that the interest of Mr. Stamm in writing probably came from a need to put "his thoughts down." Dr. Mielke testified that Mr. Stamm showed a clarity in thinking, and that he was coherent, and "these kind of things are important when you're trying to find out whether or not somebody has the cognitive abilities to think and be logical and clear and coherent." Dr. Mielke noted that the writings of Mr. Stamm established that he had a very strong personality.
However, during cross examination, Dr. Mielke testified that the materials he was furnished with did not include the depositions of Ms. Darmstadter, her daughter Celeste, Lisa Stamm, and Lindsay Stamm Shapiro, nor Dr. Inchiosa. Dr. Mielke testified that he also did not interview anyone in connection with the case. He admitted that he relied upon the timeline provided to him by counsel for Ms. Darmstadter, and that the subject timeline did not go past August 2005. Dr. Mielke also admitted that although he took prescriptions for Mr. Stamm into consideration, he did not attempt to determine which drugs and what dosages were in his system on any particular day. Dr. Mielke admitted that he did not consider the combination of drugs taken by Mr. Stamm when they were taken with other drugs known to have side effects.
Dr. Mielke also testified that Mr. Stamm may have had a condition called Simdouming Syndrome. He described this condition as:
What we find very often with elderly, sometimes, not so elderly, but frequently with the elderly who have a variety of medical illnesses and are on drugs psychiatric and non-psychiatric, that if they're developing mental symptoms, they are most likely to have them at night than in the daytime.
* * *
. . . [W]e observe over and over that as they get into the evening and the nighttime, very often if they're going to have psychiatric negative symptoms, that evening and nighttime is when they're likely to be the greatest. And its not unusual for such an individual perhaps to be clear headed during the day, able to make decisions, conduct their business. But sometimes in the evening and sometimes several nights they're worse. It's highly variable.
Dr. Mielke testified that in addition, in reference to the indicators he would be looking for in a person who was under undue influence,
Would be a situation which would point to the fact that there was some isolation, that the subject in question was kept from important family members, and in that isolation, the other individual could put pressure on them, typically to involve threats of some sort like if you don't do X or Y or Z, then I will either do something to you or with-hold something that you want or need, those kind of things would certainly be important in that kind of situation. Another factor I would look for is after that they would basically communicate to the subject that however, if you do what I want you to do, I will provide you what you want or need. Or I will not do what I threatened. . . .
Dr. Mielke testified that he looked at anything Mr. Stamm had written down and any communication to medical personnel he had contact with. Dr. Mielke testified that in reference to isolation and cutting off communications with family members, he did not see any such controlling behavior with respect to Mr. Stamm. In addition, he testified that if the family members of Mr. Stamm did go to see him, they took him off the premises. Dr. Mielke admitted that he did not take the 50 lb. weight loss and loss of appetite of Mr. Stamm as debilitation linked to undue influence.
Dr. George testified via affidavit dated July 31, 2007.
Dr. William George testified as an expert in pharmacology and toxicology. He testified that he was asked to address whether it was likely Mr. Stamm was mentally competent to have made critical decisions at a time when he was receiving medications which were known to affect the central nervous system. He summarized the drugs taken by Mr. Stamm as: Percocet, fentanyl, prochloroerazine, codeine, hydrocodone, benadryl and Ambien. Additionally, he testified that Mr. Stamm was also taking Digoxin in early 2005, but that Mr. Stamm had to be admitted to Ochsner Hospital in April 2005 due to an altered mental state associated with "digoxin toxity."
Dr. George testified that in reviewing the pharmacology of the drugs Mr. Stamm was taking, and his medical records during the last 12-14 months of this life, and based on the age of Mr. Stamm, his weight, dosage of drugs that he was prescribed "and their concomitant administration", that side effects on the central nervous system would have been expected, and the ability to exercise critical judgment would have been impaired.
Dr. Pogos Voskanian
Dr. Pogos Voskanian, an expert in forensic psychology, testified at trial and stated that he was retained by the children of Mr. Stamm in the instant case to review the medical records of Mr. Stamm, and to form an opinion as to whether Mr. Stamm was "subject to undue influence, and whether or not he had testamentary capacity." Dr. Voskanian testified that in addition to reviewing medical records of Mr. Stamm, he also reviewed codicils, wills, deposition transcripts, and interviewed the daughters of Mr. Stamm.
Dr. Voskanian testified that based on his review of the evidence, he opined that "Mr. Stamm was laboring under undue influence and was the subject of undue influence at the time he was signing documents." Dr. Voskanian testified that specifically this was true regarding the August 1, 2005 will. Dr. Voskanian testified that this opinion was due to several factors, including: the motivation of the individuals, their interest, and the personality structure of Mr. Stamm. He testified that when comparing the corresponding medical records with the legal documents, he testified that there was a clear overlap between the medical crises of Mr. Stamm and the disposal and/or transfer of his assets.
For example, Dr. Voskanian testified that prior to July 2004, prior to the stroke, Mr. Stamm did not make any significant financial transfers to Ms. Darmstadter. Shortly after the stroke of Mr. Stamm and his hip fracture, Dr. Voskanian testified that days later a legal document related to a transfer was drafted. He testified specifically that "any time there are exacerbations in health status, there are acute events, days that he is having medical procedure, biopsy, anesthesia, he is signing some document, and urgently gets rid of his funds, transfers it in one direction."
Dr. Voskanian also testified that another factor that was of concern to him was the baptism of Mr. Stamm, close to the time of his death, when he lay unconscious and was unresponsive. Dr. Voskanian testified that in considering Mr. Stamm as an individual, about his background, religion, beliefs, upbringing, traditions, and value systems, he opined that for Mr. Stamm to live 80 years and then to have his faith, tradition, and culture changed while he was unresponsive, was an intrusion to strip him of his "person."
Dr. Voskanian testified that "if somebody can take away the most sacred from the person, that is his cultural values, his being, they can take anything." He also opined that "[financially is secondary to that, I believe."
Regarding his opinion of the relation of Mr. Stamm to his family, Dr. Voskanian testified that Mr. Stamm got along well with his daughters and his son-in-law. Dr. Voskanian testified that there were notable differences when compared to Ms. Darmstadter, who he suggested controlled a "spectrum" of the affairs of Mr. Stamm. In addition, Dr. Voskanian opined that the reaction of Ms. Darmstadter of leaving the room whenever financial affair were discussed led him to the opinion that she was "consistently over emphasizing" indifferent behavior, which actually suggested the opposite of her being indifferent.
Dr. Voskanian also testified that the medical conditions of Mr. Stamm, his multiple drugs that he was given were a factor regarding undue influence. Dr. Voskanian testified that these multiple factors implies that with the pain of Mr. Stamm, his cancer, broken hip, the stroke that had diminished his capacity, that he had diminished ability to exercise his will. Dr. Voskanian opined that Mr. Stamm had impaired will, and that he could not see how someone in so much pain who takes medications can function independently in making independent choices, since his capacity was so diminished. Dr. Voskanian testified that Mr. Stamm had to depend on others for everything.
Dr. Voskanian also testified that there was no apparent reason for Mr. Stamm to have signed papers on the very day he had procedures done. Dr. Voskanian testified that he has concern about people with visual and hearing impairments who sign papers in hospitals, because they confuse the papers with consent to treatment forms. Dr. Voskanian also testified that the days after Mr. Stamm underwent a prostrate biopsy, on March 1, and March 27, 2005, he executed two documents which allowed Ms. Darmstadter to trade on his accounts. Dr. Voskanian pointed out that several medical stressors were in play at the time while Mr. Stamm was still on pain medication, and that he may have been in considerable pain. In addition, Dr. Voskanian testified that Mr. Stamm had lost a lot of weight, and a psychiatric evaluation had been requested. In particularly, on March 27, 2005, which was the same day Mr. Stamm had executed one of the documents in the car of the daughter of Ms. Darmstadter, Dr. Voskanian described how Mr. Stamm was confused and hostile. Dr. Voskanian testified that on the same day, Mr. Stamm had been given a Percocet, and later that day, he had been given a Duragesic (Fentanyl) patch, which Dr. Voskanian explained was an opiate, pain reliever.
As reported in St. Anna's Nursing Home records.
Dr. Voskanian testified that additionally, around the time Mr. Stamm had Digitalis Toxicity a result of ingesting excessive amounts of Digitalis, Dr. Voskanian testified that Mr. Stamm was reported to have had slurred speech. He testified that on April 22, 2005, the medical notes indicated that while Mr. Stamm was alert, pleasant, and oriented, he had difficulty finding words and difficulty maintaining his train of thought. By August 1, 2005, around the time the last testament had been drafted, Dr. Voskanian testified that Mr. Stamm himself reported that his speech was slurring, and Mr. Stamm wondered if he had suffered another stroke.
When questioned about contrary notations on the same days in which Mr. Stamm executed documents, and the fact that Mr. Stamm still provided for his family in the will, Dr. Voskanian responded that Mr. Stamm was in a situation whereby he was subject to easy influence. Dr. Voskanian testified that specifically, Mr. Stamm could not reverse any of his life changing decisions, and move back to New York, because he had sold his house. In addition, Dr. Voskanian testified that while Mr. Stamm did leave money to his family, Dr. Voskanian believed that it was the fact there were substantial gifts in one direction (to Ms. Darmstadter) immediately after medical insults that made the transfers suspect to him. Dr. Voskanian testified that Mr. Stamm giving away his wealth was not a problem; rather, the fact that the gifts were not directed toward different persons and/or entities such as his synagogue and charities was unusual in his opinion.
Celeste Darmstadter Elliott
Ms. Elliott testified that she is the daughter or Ms. Virginia Darmstadter. She testified that she also notarized several documents executed by Mr. Stamm, who she got to know very well through his relationship with her mother. At all times she testified, that while the physical status of Mr. Stamm declined toward the end of his life, his mental status was fine.
Ms. Elliott also testified that Mr. Stamm indicated to her that he had given gifts to his family all along. She testified that after his move from Rye, New York, that Mr. Stamm had given money to his family to help them pack up his house and send his belongings to New Orleans.
As to the medical care of Mr. Stamm, Ms. Elliott testified that his daughters were involved in the medical care of their father once he was in New Orleans. She testified that she did not find the involvement of his daughters intrusive. However, Ms. Elliott testified that the daughters of Mr. Stamm did call the medical facilities to speak with staff "suggesting they committed malpractice." She testified that she felt that Mr. Stamm had a good relationship with his doctors, and he did not want to hinder those relationships.
In reference to the codicil (the first codicil dated September 8, 2004), that she witnessed, Ms. Elliott testified that she witnessed the document at the hospital after she was off from work in September 2004. She testified that she had a talk with Mr. Stamm about whether he really wanted to execute the codicil just before his surgery and that he said yes. She testified that she did not discuss the contents of the codicil with him, nor did she read it. She testified that Mr. Weiler was there along with a witness.
Ms. Elliott also testified that she notarized the signature of Mr. Stamm on the Wachovia Securities Third Party Trading Authorization, dated March 27, 2005, which was an Easter Sunday. She testified that she did not recall the actual circumstances surrounding the notarization.
Ms. Elliott testified that she did recall notarizing another document sometime in December 2004, in front of her house while Mr. Stamm was in the car. She testified that her mother had called her and told her that Mr. Stamm needed something notarized. Her mother came to her house to watch her baby while she went to see Mr. Stamm. She testified that Mr. Stamm told her that the document was to transfer an account to her mother.
She testified as follows:
As I recall it was a document, he said, to transfer an account to my mom's but it didn't look like that was what the document was to me. And I asked him if that is, you know, what it was supposed to be. And he said yes, that is what his stock broker told him to do.
Regarding the sale of the house of Mr. Stamm in Rye, New York, Ms. Elliott testified that Mr. Stamm asked Ms. Darmstadter to go to Rye to represent his interest. She testified that her mother did not want to go, but Mr. Stamm insisted, because at that particular the time, Mr. Stamm was in the Elmwood Rehabilitation Center.
In general, Ms. Elliott testified the mental status of Mr. Stamm was fine up until the last week of his life, at which time he slept a lot, and sometimes it was hard to wake him up.
The transcript in the record is a partial transcript of the testimony of Mr. Weiler. In addition, the transcript contains numerous errors where items, particularly legal terms, appear to be spelled phonetically.
Mr. John Weiler is an attorney who represented Ms. Darmstadter in a specialty capacity. He testified that he had a business relationship with her since 1999, but that he does specialty work, and his firm has "very few continuous clients." He testified that he has done work with her over the years, but that he is "not her attorney."
Mr. Weiler testified that he was contacted by Ms. Darmstadter to draft a power of attorney in reference to the sale of the house of Mr. Stamm in Rye, New York. He testified that he told Ms. Darmstadter that while the request was "far afield", and while Mr. Stamm did not provide a property description, he did draw up a power of attorney, and listed the property address. He testified that all powers of attorney were completed in reference to the sale of the Rye, New York property.
In Ms. Darmstadter's favor so that she could conduct the affairs related to the sale of Mr. Stamm's house.
Mr. Weiler testified that the next contact he had with Ms. Darmstadter was in reference to the first codicil to the will of Mr. Stamm. Mr. Weiler expressed concerns over having been asked to draft a codicil to a will he had not personally seen. He also testified that he had not spoken to the doctor of Mr. Stamm prior to drafting the codicils or powers of attorney, and that the first conversation that he had with Mr. Stamm was in reference to changing his will.
Mr. Weiler did not recall whether he ever had a conversation with Mr. Stamm regarding the effect of paragraph 19 of the codicil on the will. He testified that when the codicil was executed, Ms. Darmstadter stepped out of the room, leaving Mr. Stamm, Celeste (the daughter of Ms. Darmstadter) and himself in the room. He testified that another witness was needed to sign the will. He remembered that the will was executed, and then the codicil was executed. Mr. Weiler also testified that Ms. Darmstadter was not told that the codicil was brought for the signature of Mr. Stamm, but he was unsure whether Ms. Darmstadter had that knowledge on her own. Mr. Weiler also testified that when financial matters were discussed, Ms. Darmstadter usually excused herself and stepped out of the room.
Paragraph 19 of the codicil gives the representative the power to donate the principal's power to herself.
The first codicil was executed on September 8, 2003.
Mr. Weiler also testified that in late spring of 2003, he met with Mr. Stamm personally. He recalled that Mr. Stamm was having issues about the will relating to his children, particularly as related to the problem of his children with the donation he had made to Ms. Darmstadter. Mr. Weiler noted that Mr. Stamm did not go into detail, and at the time, Mr. Stamm was not specific about which account he had donated. Mr. Weiler testified that no one else was present at that particular meeting, and the he did not know how Mr. Stamm had made it to the meeting. Mr. Weiler testified that the personal matters of Mr. Stamm were not discussed when Ms. Darmstadter was present. However, he testified that when he was specifically asked whether he had any question in has mind as to whether Ms. Darmstadter was at the hospital on both occasions the powers of attorney forms were signed — September 8, 2004 and November 16, 2004 — Mr. Weiler testified that "[i]f she signed the power of attorney, she was there, correct", and "I guess she was there both of those days, yes."
Mr. Weiler also testified that Mr. Stamm was reacting to the reaction of his daughters' about his donation to Ms. Darmstadter, and that Mr. Stamm wanted to confer with him about the validity of the donation. Mr. Weiler indicated that Mr. Stamm also expressed his desire to remove a bequest to his son-in-law, Dr. Inchiosa, from the will. Mr. Weiler testified that Mr. Stamm did not tell him directly the reaction of his daughters to the donation was, but Mr. Weiler testified that he "put two and two together" to arrive at the conclusion that the daughters had an adverse reaction, as he did not recall Mr. Stamm going into a lot of detail. However, Mr. Weiler testified that he did remember that Mr. Stamm told him that the family was litigious. Mr. Weiler testified that he never knew the size of the estate of Mr. Stamm, nor did he know how much Mr. Stamm had donated.
This was memorialized in a letter to Mr. Stamm dated July 12, 205, from Mr. Weiler. "The only change that has been made is to remove the $25,000 bequest to Mario Inchiosa, your son-in-law." The final draft of the will was signed on August 1, 2005.
Mr. Thomas (Tom) Bowes
Mr. Thomas Bowes testified that he had a relationship with Mr. Stamm for about twenty (20) years and that he first met him in 1986 when Mr. Stamm was referred to him by a client. Mr. Bowes testified that he started handling the financial affairs of Mr. Stamm several months after their first meeting, and that he had spoken with Mr. Stamm every business day for the past twenty (20) years. He testified that their discussions would be a mixture of personal and business affairs.
Mr. Bowes testified that Mr. Stamm was very active in his financial affairs, and as to the Wachovia accounts, Mr. Bowes testified that the transfers from the account of Mr. Stamm were deposited into a separate account that Ms. Darmstadter had previously. The transfers occurred in April 2005. Mr. Bowes testified that he and Mr. Stamm discussed his reasons for the transfer of the accounts of Mr. Stamm, and he remembered that Mr. Stamm indicated that one reason he did it was because the transfer was "advantageous" for tax purposes. Ms. Jean G. Thibodeaux
The transfers were made on April 27, 2005.
Only a partial transcript of the testimony of Mr. Bowes was in the record, at Volume III, page 569.
Ms. Jean Thibodeaux testified that she was employed as the Director of Social Services and Admissions Coordinator at St. Anna's from July 2000 until March of 2006, when she retired. She testified that she worked regular hours at the facility from 8:30 a.m. to 4:30 p.m., Monday through Friday, and that at the time of her tenure, the rate for a residential client was about $2,900.00 per month. She testified that this rate was the same regardless of the type of care the client needed (whether the residential client was able to live independently or required skilled nursing care, excluding respite care and other amenities such as private bathing facilities). She testified that between February and August of 2005, there were around fifty residents at St. Anna's.
Ms. Thibodeaux testified that her duties as the Director of Social Services included that she spend a significant amount of time talking with the residents about confidential matters. She testified that how she met with them depended on the residents; some met with her in living areas, others in their room, others she met in her private office. She testified that her conversations ranged from adjusting to living in a nursing facility to more serious matters concerning their families, and who was visiting them in the facility. Sometimes, she testified, that she recalled that their conversations also touched upon therapeutic issues, the residents' lives in their youths, and psychosocial services.
Regarding her interactions with Mr. Stamm, Ms. Thibodeaux testified that she knew Mr. Stamm from February 2005 up until the Hurricane Katrina evacuation. She testified that his diagnosis was prostate cancer, and that he overall had a complex medical history. She testified that Ms. Darmstadter visited Mr. Stamm frequently, and that she would sometimes speak to Ms. Darmstadter regarding insurance issues that came up, but sometimes she would speak to both Mr. Stamm and Ms. Darmstadter at the same time. During the occasions she spoke to both of them, the conversations were generally pleasant. However, she testified, that when she spoke to Mr. Stamm alone, the conversations were focused on therapeutic intervention. She testified that although sessions were prescheduled, that at times Mr. Stamm would flag her down if he happened to see her in the hallway from his bed.
Ms. Thibodeaux testified that she did meet the daughters of Mr. Stamm, and had seen them on several occasions. She testified that she also met one of his grandsons and his stepson. She testified that Mr. Stamm discussed his relationship with his wife more than he talked about his family members. She remembered that he told her that he was proud of his daughters and his grandsons. She testified that he enjoyed talking to his grandsons on the phone. Ms. Thibodeaux testified that Mr. Stamm had mentioned his late wife, Eleanor Stamm, in passing, and also told her that Ms. Darmstadter was his second wife. He told her the story about how he and Ms. Darmstadter had met.
Ms. Thibodeaux testified that Mr. Stamm did mention that he was in pain, but she believed that his pain was attributable to his scoliosis (back pain), and that his wheelchair accommodated the curvature in his spine. He did mention at times that he was "uncomfortable." Her affidavit indicated that she believed that the health conditions of Mr. Stamm did not impact his mental capacity. In addition, she testified that her assessment of Mr. Stamm between February 2005 and August of 2005 was that she did not find any indication that he was depressed. She opined that he was coping appropriately. She testified that she did not recall if a psychological evaluation had been done on Mr. Stamm. However, during her testimony, the attention of Ms. Thibodeaux was brought to the notes of the nurses, which reflect that Mr. Stamm requested a psychological evaluation on or about the time he was admitted to St. Anna's on February 24, 2005. Specifically, she was asked to read the notes during her testimony and remarked that the request had been faxed to Dr. Vogel. She testified that she did not recall discussing the mental state of Mr. Stamm with Ms. Darmstadter, and she was not aware that Mr. Stamm was prescribed medication for anxiety.
Ms. Thibodeaux testified that sometime in August 2005, Mr. Stamm brought up the subject of his will to her. She testified that the will had not come up in any of their prior conversations. She testified that he had mentioned on prior occasions that he wanted to make sure his wife [Ms. Darmstadter] was taken care of, although Ms. Thibodeaux did not get the impression from Mr. Stamm that Ms. Darmstadter needed to be taken care of. She testified that she got the impression that Mr. Stamm wanted to take care of Ms. Darmstadter out of gratitude and that he did not mention what particular portion of his estate he intended to give his wife.
She testified that Mr. Stamm had discussed a former trust that he had set up for his grandsons. She testified that she had read and then copied a handwritten letter, dated August 1, 2005 (she actually copied it to reduce it from a two page document to a one page document), that Mr. Stamm had drafted, at his request. She verified his signature during her testimony.
Ms. Thibodeaux also testified that Mr. Stamm did not discuss the portion of his estate he intended to leave to his daughters, nor did he express that he feared that his daughters would cause problems for Ms. Darmstadter after his death.
Ms. Thibodeaux testified that although she was very familiar with Mr. Stamm, she testified that she did not always read medical charts of the interval the nurses who took care of Mr. Stamm on a daily basis had prepared. She testified that these nursing notes/charts stayed with the nurses in a binder, and that she was not aware of the frequency these notes where placed in a file of a resident. When she was asked to refresh her memory regarding notations made about Mr. Stamm being confused or dizzy, she testified that she did not remember him being confused, but that patients with a similar diagnosis and age would be confused upon waking.
In reference to the witnessing of the will of Mr. Stamm, Ms. Thibodeaux testified that the attorney for Mr. Stamm came to St. Anna's, and that she recalled that she had unlocked a small conference room at the facility. She testified that she did not remember how Mr. Stamm got to the conference room, but that he was in good spirits, and that he was glad to be taking care of business. She testified that Mr. Stamm confirmed that the document was his last will and testament. At the time the attorney began to read the will, she testified that she left the room because she did feel that it was necessary for her to be involved in all the details. She testified that Mr. Weiler was only interest in making sure that Mr. Stamm had the capacity to sign the will. After the attorney had finished going over the will, she testified, she was called back into the conference room so that she could see Mr. Stamm sign the will, and then she witnessed the document. She also testified that Ms. Darmstadter was not in the room.
She testified that Mr. Stamm had difficulty getting around on his own, even in his wheel-chair. She testified that he usually did not travel alone.
The First Codicil
The first codicil to the will of Mr. Stamm (the will executed in Pleasantville, New York), was executed by Mr. Stamm on September 8, 2004, in Jefferson Parish, Louisiana. The codicil contained three specific changes to the earlier last will and testament: (1) made a specific monetary bequest to Ms. Darmstadter in the amount of $100,000.00; (2) made a specific monetary bequest to the son-in-law of Mr. Stamm Mario Inchiosa; and (3) appointed Ms. Darmstadter executrix.
The first codicil was executed on September 8, 2004, in New Orleans, Louisiana, and was witnessed by Celeste Darmstadter Elliott and Shannon Prechter. Mr. Weiler notarized the document.
The First power of attorney
The power of attorney in favor of Ms. Darmstadter was executed on September 8, 2004. The document conferred upon Ms. Darmstadter the power: to conduct business affairs; open and answer correspondence; to conduct banking affairs; to sell and purchase securities; to acknowledge and pay debts; to sell, alienate, mortgage, encumber, pledge, acquire, purchase, lease or grant servitudes related to movable or immovable property; to execute mineral leases and other contracts; to appear before all courts and administrative bodies; to represent Mr. Stamm judicially or otherwise in all succession proceedings; to act as agent or proxy in instances in which Mr. Stamm was appointed as another person's agent; to demand or obtain claims and to recover that to which Mr. Stamm was entitled; to attend creditor's meetings on Mr. Stamm's behalf; to file tax returns on Mr. Stamm's behalf; to exercise rights, options, or privileges available to Mr. Stamm related to policies of insurance, to make any and all medical decisions related to the physical or mental health of Mr. Stamm (including withholding life-sustaining support).
The power of attorney was signed by Mr. Stamm, Ms. Darmstadter, and witnessed by Deborah Khanna and Marguerite Grundmann. John Weiler was the attorney-notary.
In addition, the power of attorney specifically gave Ms. Darmstadter general authority to do and perform "each and every other act" that may be deemed appropriate, as well as limited her liability to actual breaches of a fiduciary duty. The power of attorney specified that the power of attorney was durable until expressly revoked by Mr. Stamm. In addition, the power of attorney gave Ms. Darmstadter the right to make donations, including donations to herself, limited by La.C.C. art. 1498. The SECOND power of attorney
La.C.C. art. 1498, entitled Nullity of donation inter vivos of entire patrimony, provides:
The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence. If he does not do so, a donation of a movable is null for the whole, and a donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title, in which case the donation of such immovable shall not be declared null on the ground that the donor did not reserve to himself enough for his subsistence, but the donee is bound to return the value that the immovable had at the time that the donee received it. If the donee has created a real right by onerous title in the immovable given to him, or such right has been created by operation of law since the donee received the immovable, the donation is null for the whole and the donor may claim the immovable in the hands of the donee, but the property remains subject to the real right that has been created. In such a case, the donee and his successors by gratuitous title are accountable for the resulting diminution of the value of the property.
The second power of attorney in favor of Ms. Darmstadter was executed on November 16, 2004. The document is identical to the First power of Attorney.
The second power of attorney was signed by Mr. Stamm, Ms. Darmstadter, and witnessed by Kimberly Plaisance, and La'Nyra Jordan. Mr. Weiler was the attorney-notary who authenticated the document.
The Second Codicil
The second codicil to the will of Mr. Stamm (for the New York Will executed in Pleasantville, New York), was executed by Mr. Stamm on November 16, 2004, in Jefferson Parish, Louisiana. The codicil made specific monetary bequests to nine (9) named individuals. The document was witnessed by Kimberly Plaisance and LaNyra Jordan. This document was also notarized by attorney John Weiler.
The first codicil was executed on September 8, 2004 in New Orleans, Louisiana.
Last Will and Testament — January 28, 2005
Mr. Stamm executed this will in New Orleans, Louisiana on January 28, 2005. Contained therein is a specific revocation of all prior wills and codicils. Mr. Stamm makes specific bequests to persons and entities in the initial disposition of his estate. He also specifies that the remainder of his estate is to be divided as follows:
I leave the remainder of all the property of which I die possessed to Mary V. Darmstadter [Ms. Darmstadter], Lindsay Stamm Shapiro, and Elisabeth Harris Stamm in full ownership and in equal shares. If Mary V. Darmstadter predeceases me, leave the remainder of my property of which I die possessed to Lindsay Stamm Shapiro and Elisabeth Harris Stamm in full ownership and in equal shares.
The testament goes on to appoint the succession representative as follows.
I name and appoint Mary V. Darmstadter as executrix of my succession with full seizin and without bond. If for any reason Mary V. Darmstadter is not able or not willing to serve of continue to serve as Executrix, I name and appoint Douglas Richard Elliott and Elisabeth Harris Stamm as co-executor and co-executrix of my succession with full seizin and without bond. . . .
The will was witnessed by Michelle A. Kostner and Jom Twordowski. The document was authenticated by attorney-notary John J. Steger, IV. Wachovia Third Party Trade Authorization
John Steger, IV, testified that Ms. Darmstadter was his client. He testified that Mr. Weiler assigned the drafting of the will to him on or about January 26, 2005. At the time, Mr. Stamm was hospitalized at Ochsner Hospital. Mr. Steger testified that Mr. Stamm appeared alert and that he had two nurses witness the document after having Mr. Stamm state that the document was his last will and testament.
On March 27, 2005, Mr. Stamm executed a third party trade authorization for his account with Wachovia Securities in favor of Ms. Darmstadter. Ms. Darmstadter signed and dated the authorization on March 1, 2005. The authorization was notarized by Celeste Darmstadter Elliott, Ms. Darmstadter's daughter of Ms. Darmstadter, on March 27, 2005.
The initials of the branch manager appear on the approval line next to the date of March 4, 2005.
Last Will and Testament — August 1, 2005
Mr. Stamm executed this will in New Orleans, Louisiana, on August 1, 2005. Contained therein is a specific revocation of all prior wills and codicils. Mr. Stamm makes specific bequests to various persons and entities in the initial disposition of his estate. He also specifies that the "legacy" of his estate is to be divided as follows:
(a) 1/3 to my spouse, Mary V. Darmstadter;
(b) 1/6 to my daughter Lindsey Stamm Shapiro;
(c) 1/6 to my daughter Lindsey Stamm Shapiro as Trustee, subject to and in accordance with the terms and provisions of Article V of this instrument, creating the Daniel Shapiro trust, for the benefit of Daniel Shapiro; and
(d) 1/6 to my daughter Elisabeth Harris Stamm;
(e) 1/6 to my daughter Elisabeth Harris Stamm as Trustee, subject to and in accordance with the terms and provisions of Article V of this instrument, creating the Andrew Inchiosa Trust trust, for the benefit of Andrew Inchiosa.
He also specified that:
If Mary V. Darmstadter predeceases me, I leave the remainder of all the property of which I die possessed 25% to Lindsay Stamm Shapiro, 25% to Elisabeth Harris Stamm, 25% to Lindsay Stamm Shapiro, as Trustee of the Daniel Shapiro Trust, and 25% to Elisabeth Harris Stamm, as Trustee of the Andrew Inchiosa Trust, in full ownership and in equal shares.
The testament goes on to appoint the succession representative as follows.
I name and appoint Mary V. Darmstadter as executrix of my succession with full seizin and without bond. If for any reason Mary V. Darmstadter is not able or not willing to serve of continue to serve as Executrix, I name and appoint Douglas Richard Elliott and Elisabeth Harris Stamm as co-executor and co-executrix of my succession with full seizin and without bond. . . .
The August 1, 2005 testament was witnessed by Ellen Kimble and Jean Thibodeaux. The document was authenticated by attorney-notary Mr. Weiler.
Global Resource Investment, LTD Third Party Authorization
On December 1, 2005, Mr. Stamm executed a Letter of Authorization for his account with Global Resource Investment in favor of Ms. Darmstadter. Under the section titled Instructions, the name of Ms. Darmstadter appears under a subtitle "Account Name." The form authorizes the transfer of 911 securities (the corpus) from the account of Mr. Stamm to the personal account of Ms. Darmstadter. The beginning account value for the period of December 1, 2005, was $427,992.64. However, by December 31, 2005, the ending account value was $0.00.
The record also contains a Global Resource Investments, Ltd., account statement for Ms. Darmstadter for the same period (December 1, 2005 through December 31, 2005). The beginning account balance for her account was $76,258.08 and by the end of the month reflected an ending balance of $573,512.94.
Our review of the record indicates that medical records from November 2004, show that in the days prior to his hospitalization for treatment of his prostate cancer, Mr. Stamm was in extreme pain, and had contacted several doctors for pain medication, including the narcotic, Percocet. The record indicates that one of his doctors, Dr. Jefferson Kaye, refused to prescribe Percocet for Mr. Stamm, stating that it was "too strong for long term use." According to the records of Dr. Kaye, two days later Mr. Stamm again requested Percocet, and reported that he had taken the Percocet of someone else in the past and it had helped with his pain. Dr. Kaye again refused to prescribe Percocet, noting that it would absolutely be the wrong thing to do to prescribe Percocet for a man the age of Mr. Stamm, because it tends to compound and cause confusion. Despite the refusal of Dr. Kaye to prescribe Percocet, the cardiology records of Mr. Stamm show that he was taking Percocet less than two weeks later.
Percocet is the brand name for Oxycodone/Acetaminophen blend tablets. Percocet is the combination of an OWpioid Analgesic (the Oxycodone) and an Anilide Analgesic (the Acetaminophen). The combination is a narcotic pain reliever used to treat moderate to severe acute (short-term) pain.
Mr. Stamm was admitted to St. Anna's Nursing Home in January, 2005. He was subsequently admitted to Ochsner Medical Center from January 20, 2005, through February 4, 2005, due to complaints of pain. On the date of discharge, he underwent the first of ten (10) scheduled radiation treatments.
In early March of 2005 (specifically March 5 through March 10, 2005), Mr. Stamm was again hospitalized at Ochsner Hospital for treatment "for a possible blood transfusion." Nursing notes after his return from the hospital indicate that Mr. Stamm was experiencing dizziness and weakness. Specifically during the month of March, 2005, the nurse's notes of Mr. Stamm often indicate that he was periodically "confused", even though he was alert. Thus, our review of the record in this matter indicates that on the morning of March 27, 2005, treatment notes from St. Anna's reflect that Mr. Stamm was "confused and hostile with staff. Slept at intervals . . . " That during the middle part of the day, Mr. Stamm ate around 7:30, and that he was given a Percocet for pain listed as "AAOX2." That around 12 noon, he exited St. Anna's with Ms. Darmstadter and that his Duragesic (pain), 50mg patch was applied to his shoulder before his outing with Ms. Darmstadter. Mr. Stamm returned to St. Anna's around 3:00 p.m., with no distress noted. However, at about thirty minutes later, he complained of pain and was given Percocet.
This was a report at 6:00 a.m.
AAOX is a medical narrative notation abbreviation for "Awake, Alert, Oriented." When AAOX is notated with any number between the numbers one (1) through four (4), the numerical description represents a patient's distinct awareness factors: person, place, time and events. In the instant case, the designation in Mr. Stamm's medical narrative, AAOX2 means that he was "Alert, Awake, Oriented to person and place."
Duragesic is a trade name of Fentanyl, is used for relief of moderate to severe pain. A Duragesic patch releases Fentanyl, a potent opioid, slowly through the skin, and one patch may provide up to 72 hours of pain relief. It is sometimes prescribed with another opioid for pain relief.
In the days following March 27, 2005, Mr. Stamm either stayed in bed with is eyes closed (March 28, 2005), or slept most of the day and had little or no appetite for food. On April 1, he complained of pain and was given medication. By April 2, he started to complain of pain and was given Percocet around 5 a.m., but by 6:15 a.m., he had become confused and had started to hallucinate. Around noon on the same day, his Duragesic patch was replaced and he had a nebulizer treatment to assist with his breathing. He complained of being tired and was put into his bed during a family visit. The nurse's narrative reported that Mr. Stamm was "very confused" and "AAOX1", and that he was given another nebulizer treatment. He rested the remainder of that day.
On April 4, the notes of the nurse reported that Mr. Stamm was "confused/disoriented awakened asking for his wife speaking of Wall Street reoriented to time/place continues resting in bed." However, later that day, Mr. Stamm was reported to appear "lethargic," "incoherent," "diaphoretic" and his eyes were "glassy in appearance", and he was "drooling from the mouth" at times and had confused conversation. He was eventually sent to the Ochsner Medical Center Emergency room from St. Anna's Nursing Home for evaluation of altered mental status. The narrative summary on this date reflects that Mr. Stamm had "a history of metastatic prostate cancer and was on narcotic pain medication, in particular Duragesic at 100 mg, topically every three days, as well as Percocet p.r.n. for breakthrough pain." He was discharged and returned to St. Anna's on April 11, 2005. However, he returned to Ochsner that afternoon with chest discomfort and shortness of breath.
A medication administration designation which means medication is administered on an "as needed" or "when necessary" basis.
On April 22, 2005, the notes of Dr. John T. Cole during a follow-up with Mr. Stamm indicate that Dr. Cole noticed that although Mr. Stamm was alert, "[Mr. Stamm] at times has what appears to be some word finding difficulties and some difficulty maintaining his train of thought." In addition, Dr. Cole discussed treatment options for Mr. Stamm with both Mr. Stamm and Ms. Darmstadter. However, Dr. Cole opined that "I do not believe that he is an appropriate candidate to consider chemotherapy."
By June 2, 2005, the record indicates that Mr. Stamm had started to experience hallucinations.
On August 1, 2005, notes of the nurse indicate that Mr. Stamm was with Ms. Darmstadter, meeting with his attorney.
He was meeting with Mr. Weiler, who was recommended to him by Ms. Darmstadter to purportedly transact business related to his testament.
In late August, a mandatory evacuation order due to Hurricane Katrina required that St. Anna's relocate its residents outside of New Orleans. For a short time, Mr. Stamm lived at Holly Hill Nursing Home in Sulphur, Louisiana. During this time, Mr. Stamm was not actively in treatment for his prostate cancer. By September 3, 2005, the record reflects, per consultation notes, that Mr. Stamm suffered respiratory failure and was hospitalized at West Calcasieu Hospital in Cameron, Louisiana. The consultation notes indicate that his Fentanyl patch had been discontinued, and that the patch perhaps had caused his respiratory failure. The notes indicate that his son-in-law, Doug, was present.
The treating physician was Dr. Luke Williams.
By September 2005, Mr. Stamm had been moved to Manor Care Nursing Facility in Houston, Texas. At that time, Ms. Darmstadter was living in Houston with her daughter following Hurricane Katrina. On September 17, 2005, Mr. Stamm underwent a cognitive/loss dementia assessment. Although a box next to his status is checked "no" in relation to Mr. Stamm having a chronic progressively deteriorating cognitive condition, under the section marked Additional Comments and Notes, the report states:
Short term memory problem, moderately impaired decision making Per chart, he is alert and oriented x3, but also reported that he is forgetful and has impaired/compulsive decision making per staff.
he [sic] is working w/PT and OT to improve strength and mobility, and requires cues from staff. They are working on safety education w/him [.]
Physical Therapist.
Occupational Therapist.
plan: cont to cue and prompt as needed, assist w/, making decisions as needed, does have a pending psych consult order from 9/30/05.
However, sometime in late September of 2005, the record indicates, through the testimony of Ms. Shapiro, that her father had expressed a desire to get his investment accounts and credit cards back from Ms. Darmstadter in the following year. This was corroborated by the trial testimony of Ms. Lisa Stamm through her conversation with her father.
On September 30, 2005, notes of the nurse from Manor Care reflect that Ms. Darmstadter called and directed the staff not to discuss with the daughter Lisa, the condition of Mr. Stamm. In the same phone call, Ms. Darmstadter voiced concern over the hallucinations of Mr. Stamm. Shortly thereafter, Lisa Stamm called the facility to discuss her father and urged that he was in "digoxin toxity." However, nursing staff requested that she contact Ms. Darmstadter for further information regarding the condition of her father.
The notes of the nurse at Manor Care indicate that shortly thereafter in October 2005, there was a conflict between Ms. Darmstadter and the daughters of Mr. Stamm. The conflict occurred as a result of Mr. Stamm being under the impression that his wife had had him deemed incompetent. The notes reflect that Mr. Stamm was told this by his daughter [the notes of the nurse do not identify which daughter had given him the information].
10/3/05 Met [with] res. in his room as a staff member reported to MSW that res. was angry re: "deemed incompetent." res. reported to MSW that his daughter told him that res. spouse had deemed him incompetent, and his spouse did not have the right to do so. He further reported that if he was deemed incompetent then he had no rights, res. asked that MSW look into this and tell res. if he was deemed incompetent.
10/3/05 Looked through res. chart. There was no POA on file; no report indicating if res. Was [sic] incompetent or not. There was a nurses [sic] note re: an order for a psych eval. There were no psychiatrists' notes on file.
10/3/05 Met [with] res. Spouse who reported that she had asked HCR staff not to speak [with] res. Dtrs as they were, as she believed making up stories about her. MSW asked if spouse had the POA, she reported she did and would bring it in to be put on the chart. Asked spouse if res. Was ever deemed incompetent and if she had documentation to support such, she reported that she did not but that res. Lucidity goes in [and] out and sometimes he has hallucinations.
The notes of the nurse at Manor Care from October 21, 2005, indicate that Mr. Stamm had not been receiving treatment for his prostate cancer. Lisa Stamm called the hospital to inform the staff that prior to the evacuation, Mr. Stamm was in active treatment for his condition. However, Manor Care had no records of the condition of Mr. Stamm, and his treatment history. Manor Care attempted to contact Ms. Darmstadter to obtain the records of Mr. Stamm from Ochsner Hospital, but was not able to reach her. Staff then left a message at the medical records department at Ochsner.
By mid November 2005, Mr. Stamm was brought to Ochsner Hospital in New Orleans, seeking to find a suitable nursing home in New Orleans. Treatment notes indicate that Mr. Stamm had "poor hygiene", and was in bad condition in that he had a urinary tract infection with resistant E. Coli, along with a skin rash and sacral decubitis. The narrative summary, although it reflects that Mr. Stamm was alert and oriented under the General Exam, specifies under neurologic that "He is not oriented, except for oriented to place." He was subsequently discharged to Slidell Nursing Home on November 18, 2005.
A sacral decubitus is a skin infection located at the base of the spine.
On December 13, 2005, Mr. Stamm was transferred from Slidell Guest House to St. Anna's via ambulance service. After a transfer to Lambeth House for Hospice Care, he died a month later.
Given our review of the substantial record before us, we find that although the district court judgment uses the phrase "consistent cognitive capacity," it is clear that in weighing the evidence, the district court applied the "clear and convincing evidence" standard in finding that Mr. Stamm lacked the mental capacity after January 28, 2005, to execute a will. As stated earlier, "[T]he `clear and convincing' standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence." Talbot v. Talbot, 2003-0814, pp. 9-10 (La.12/12/03), 864 So.2d 590, 598. We further find that since many of the documents signed by Mr. Stamm were executed contemporaneously with the administration of several medicines, that when dosed concominantly, they affected his central nervous system, and affected his ability to exercise critical judgment. Hence, we conclude that it is more probable than not that the judgment of Mr. Stamm was impaired as found by the district court. Therefore, we find that the district court judgment was not manifestly erroneous nor clearly wrong.
As testified to by Dr. George, infra.
CROSS APPEAL filed by the Appellees:
In their cross appeal, the Stamm daughters contend that the district court erred by probating the January 28, 2005 testament, in which Mr. Stamm increased his bequest to Ms. Darmstadter from $100,000 to one-third of his' entire estate. The Stamm daughters argue that the circumstances surrounding the preparation and execution of the codicil and power of attorney were peculiar, to say the least. They argue that both Ms. Darmstadter and Mr. Weiler testified that although the power of attorney was intended to permit Ms. Darmstadter to represent Mr. Stamm at the sale of his home in New York only, in fact it was much broader. They argue that although Mr. Weiler could not explain why he drafted a general power of attorney which, among other things, permitted Ms. Darmstadter to donate all of the belongings of Mr. Stamm to herself, he later admitted at trial that Mr. Stamm had not requested any such provision, and that he did not discuss it with Mr. Stamm prior to presenting it to him for execution. Nor did he ever advise Mr. Stamm to revoke the power of attorney once he learned that it could not be used for its sole purpose — the sale of the home of Mr. Stamm in Rye, New York.
The Stamm daughters also argue that Ms. Darmstadter and Mr. Weiler could not agree at trial how he came to draft the power of attorney. Ms. Darmstadter testified that she believed the attorney handling the sale of the home of Mr. Stamm in New York contacted Mr. Weiler about the power of attorney, and she denied that she requested that Mr. Weiler prepare the document. Mr. Weiler testified, however, that it was Ms. Darmstadter who contacted him and asked him to draft the power of attorney.
The Stamm daughters also argue that there was similarly conflicting testimony regarding the execution of the first codicil, and the power of attorney. The daughter of Ms. Darmstadter, Celeste Elliott, acted as a witness for the codicil, but not for the power of attorney. According to Ms. Elliott, she was at the hospital when Mr. Weiler arrived, and she testified that her mother was not present at that time. Mr. Weiler, however, testified that Ms. Darmstadter was present at the hospital when he arrived, and excused herself from the room during the execution of the first codicil. According to Mr. Weiler, after the first codicil was executed, Ms. Darmstadter returned to execute the power of attorney.
Ms. Elliott further testified that she told her mother that she had witnessed the first codicil shortly after it was signed. Ms. Darmstadter, however, denied having any such discussion with her daughter about the codicil, and claimed that she did not even know that a codicil had been executed prior to the subject litigation.
The Stamm daughters also argue that after Mr. Darmstadter denied under oath any knowledge of or involvement in the preparation and execution of the January 28, 2005, will, it was shown at trial that a draft of the will, which was prepared by her own lawyer, was delivered to her and returned to the lawyer with her own hand-written notes changing some of the provisions. The lawyer for Ms. Darmstadter presented the will to Mr. Stamm late in the day while he was hospitalized and had undergone intravenous sedation for a prostate biopsy hours earlier. The Stamm daughters argue that it was error for the district court to order the January 28, 2005 will probated.
Our review of the record indicates that the district court found that the downward spiral of Mr. Stamm began when he fell and broke his hip. The district court further indicated that it was only after January 28, 2005, that Mr. Stamm consistently lacked capacity. Because of the declining condition of Mr. Stamm, the district court revoked all subsequent wills and donations. Following his treatment for cancer, Mr. Stamm was being given Fentanyl and Verced. He also was taking Percocet, and Metoprolol. As we discussed earlier, considering the unrebutted opinion of Dr. George, the side effects of this combination of drugs included fatigue, lightheadedness, dizziness, confusion, abnormal thinking, depression, lethargy, drowsiness and forgetfulness, and would have compromised the ability of Mr. Stamm to exercise critical thinking. Given this evidence, it was not manifestly erroneous for the district court to find that Mr. Stamm lacked capacity and was unduly influenced after executing the January 28, 2005 will. Therefore, we find that the answer to the appeal of the Stamm daughters does not have merit.
Metoprolol is a medication used for treatment of several diseases of the cardiovascular system, especially hypertension.
DECREE
For the foregoing reasons, the judgment of the district court is affirmed. Further, the answer to the appeal is denied.
AFFIRMED.
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