{
  "id": 1568773,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Alan Charles COZZENS, Defendant-Appellant",
  "name_abbreviation": "State v. Cozzens",
  "decision_date": "1979-09-25",
  "docket_number": "No. 3974",
  "first_page": "559",
  "last_page": "561",
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  "court": {
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  "last_updated": "2023-07-14T15:53:36.909287+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "WOOD, C. J., and LOPEZ, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Alan Charles COZZENS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nHERNANDEZ, Judge.\nDefendant appeals his jury conviction of possession of over eight ounces of marijuana contrary to Section 30-31-23(B)(3), N.M. S.A.1978. He alleges four points of error. His fourth point, which is dispositive of this appeal, is that the trial court erred in admitting statements made by defendant\u2019s wife over defendant\u2019s objection that they were privileged and hearsay.\nThe pertinent facts are these: On September 15, 1978, several police officers, including Officers Walker and Brown of the Portales Police Department, went to defendant\u2019s home to execute a search warrant. No one was at home when the officers first arrived but a few minutes later defendant\u2019s wife arrived and identified herself. Officer Walker testified that he asked defendant\u2019s wife who lived there and she stated that she and her family lived there. Officer David Brown, who knew defendant\u2019s wife, testified that shortly after she arrived she said to him: \u201cDavid, I told him not to grow it. I told him that he would get in trouble.\u201d\nRule 801, N.M.R. of Evid. recites:\n\u201c \u2018Hearsay\u2019 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\u201d\nThe state argues that as to the testimony of Walker it was not prejudicial. This argument is specious. This is the only evidence linking the defendant with the premises where the marijuana was seized at the time the warrant was executed. There was evidence that the defendant and his wife conveyed the premises several months after the warrant was executed. This witness testified that they were unable to discover a deed conveying the premises to the defendant and his wife.\nAs to the testimony of Brown, the trial court ruled that it was \u201cpermissible as part of the res gestae.\u201d Rule 803(2), N.M.R. of Evid. provides:\n\u201cThe following are not excluded by the hearsay rule, even though the declarant is available as a witness:\n******\n(2) A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.\u201d\nClinard v. Southern Pacific Company, 82 N.M. 55, 475 P.2d 321 (1970):\n\u201cThe difficulty of res gestae is always the same: its application to a particular situation * * * the particular facts of each case must control rather than rigid rules of exclusion which may keep out the truth.\n******\n\u2018Spontaneity\u2019, stated to be the most influential factor in determining admissibility under the doctrine of res gestae, is a product of stress. [Citation omitted.] Absent stress we question its \u2018spontaneity\u2019.\u201d\nStahl v. Cooper, 117 Colo. 468, 190 P.2d 891 (1948) states:\n\u201c[A] statement, if part of the res gestae, must be in the nature of an exclamation, rather than an explanation; it must be spontaneous and instinctive rather than deliberate.\u201d\nThat is, if the tension resulting from the incident did not provoke the statement; but rather, it was the result of deliberation then it is not admissible as part of the res gestae. See State v. Godwin, 51 N.M. 65, 178 P.2d 584 (1947).\nIt is apparent from the statement that defendant\u2019s wife had been very concerned about what he was doing. Her comment can best be described as a narrative of a past occurrence rather than spontaneous exclamation produced by the stress of the moment. It is our opinion that the trial court erred in allowing the officers to testify about these statements, they were inadmissible as hearsay.\nIt is unnecessary to consider whether these statements were privileged.\nWe reverse and remand with instructions to grant the defendant a new trial.\nIT IS SO ORDERED.\nWOOD, C. J., and LOPEZ, J., concur.",
        "type": "majority",
        "author": "HERNANDEZ, Judge."
      }
    ],
    "attorneys": [
      "Jeff Bingaman, Atty. Gen., Lawrence A. Barela, Asst. Atty. Gen., Santa Fe, for appellee.",
      "Dan B. Buzzard, Clovis, for appellant."
    ],
    "corrections": "",
    "head_matter": "603 P.2d 298\nSTATE of New Mexico, Plaintiff-Appellee, v. Alan Charles COZZENS, Defendant-Appellant.\nNo. 3974.\nCourt of Appeals of New Mexico.\nSept. 25, 1979.\nJeff Bingaman, Atty. Gen., Lawrence A. Barela, Asst. Atty. Gen., Santa Fe, for appellee.\nDan B. Buzzard, Clovis, for appellant."
  },
  "file_name": "0559-01",
  "first_page_order": 605,
  "last_page_order": 607
}