{
  "id": 2768573,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Larry KIJOWSKI, Defendant-Appellant",
  "name_abbreviation": "State v. Kijowski",
  "decision_date": "1973-08-29",
  "docket_number": "No. 1126",
  "first_page": "549",
  "last_page": "551",
  "citations": [
    {
      "type": "official",
      "cite": "85 N.M. 549"
    },
    {
      "type": "parallel",
      "cite": "514 P.2d 306"
    }
  ],
  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "119 N.W. 478",
      "category": "reporters:state_regional",
      "reporter": "N.W.",
      "year": 1909,
      "opinion_index": 0
    },
    {
      "cite": "83 Neb. 258",
      "category": "reporters:state",
      "reporter": "Neb.",
      "case_ids": [
        2829589
      ],
      "year": 1909,
      "opinion_index": 0,
      "case_paths": [
        "/neb/83/0258-01"
      ]
    },
    {
      "cite": "261 S.W.2d 85",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "opinion_index": 0
    },
    {
      "cite": "70 N.M. 268",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2852520
      ],
      "weight": 4,
      "year": 1962,
      "opinion_index": 0,
      "case_paths": [
        "/nm/70/0268-01"
      ]
    },
    {
      "cite": "79 N.M. 213",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2740909
      ],
      "weight": 2,
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0213-01"
      ]
    },
    {
      "cite": "84 N.M. 491",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2763757
      ],
      "weight": 2,
      "year": 1973,
      "opinion_index": 0,
      "case_paths": [
        "/nm/84/0491-01"
      ]
    },
    {
      "cite": "93 Okl.Cr. 245",
      "category": "reporters:state",
      "reporter": "Okla. Crim.",
      "case_ids": [
        8739813
      ],
      "weight": 2,
      "year": 1950,
      "opinion_index": 0,
      "case_paths": [
        "/okla-crim/93/0245-01"
      ]
    },
    {
      "cite": "112 So.2d 687",
      "category": "reporters:state_regional",
      "reporter": "So. 2d",
      "case_ids": [
        3183094
      ],
      "year": 1959,
      "opinion_index": 0,
      "case_paths": [
        "/la/237/0991-01"
      ]
    },
    {
      "cite": "237 La. 991",
      "category": "reporters:state",
      "reporter": "La.",
      "case_ids": [
        9895089,
        3183094
      ],
      "year": 1959,
      "opinion_index": 0,
      "case_paths": [
        "/so2d/112/0687-01",
        "/la/237/0991-01"
      ]
    },
    {
      "cite": "95 Ill. 394",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2722349
      ],
      "year": 1880,
      "opinion_index": 0,
      "case_paths": [
        "/ill/95/0394-01"
      ]
    },
    {
      "cite": "15 Ala.App. 174",
      "category": "reporters:state",
      "reporter": "Ala. App.",
      "case_ids": [
        1632730
      ],
      "weight": 2,
      "year": 1916,
      "opinion_index": 0,
      "case_paths": [
        "/ala-app/15/0174-01"
      ]
    },
    {
      "cite": "261 F.2d 276",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        441202
      ],
      "year": 1958,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/261/0276-01"
      ]
    },
    {
      "cite": "83 N.M. 642",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5333475
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/83/0642-01"
      ]
    },
    {
      "cite": "82 N.M. 257",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5335206
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/82/0257-01"
      ]
    },
    {
      "cite": "69 N.M. 187",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2789013
      ],
      "weight": 2,
      "year": 1961,
      "opinion_index": 0,
      "case_paths": [
        "/nm/69/0187-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 360,
    "char_count": 4951,
    "ocr_confidence": 0.715,
    "pagerank": {
      "raw": 9.18373499002516e-08,
      "percentile": 0.5092661772945064
    },
    "sha256": "e7a3d2ae163c8d06f6c2c1cd47ce2e787cdc24994f6671ad101d37501c92bf75",
    "simhash": "1:0aaf6d22594e481a",
    "word_count": 813
  },
  "last_updated": "2023-07-14T15:38:26.265107+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Larry KIJOWSKI, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nDefendant appeals his conviction of burglary. Section 40A-16-3, N.M.S.A.1953 (2d Repl.Vol. 6). There are two issues: (1)permitting a witness to testify after the witness violated the court\u2019s order not to discuss the case and (2) instructing the jury concerning a confession.\nPermitting witness to testify after the witness violated court\u2019s order not to discuss the case.\nThe rule for exclusion of witnesses from the courtroom was invoked. In so advising the witnesses, the trial court stated: \"* * * While you are outside the Courtroom, don\u2019t talk to anyone about the case except the attorneys. * * *\u201d The witness Souder, in denying that she had discussed the case with other witnesses prior to testifying, admitted discussing whether defendant \u201c* * * was the person, his hair was cut and stuff like that.\u201d She was permitted to testify over defendant\u2019s objection. Souder\u2019s testimony did not positively identify defendant as the person she saw near the victim\u2019s house. She said: \u201cI think so. I am not sure. His hair was long, and he had a beard.\u201d At another point, she said: \u201cI can\u2019t tell.\u201d\nDefendant claims the court erred in permitting Souder to testify. We disagree.\nThe exclusion of witnesses from the courtroom is a matter within the discretion of the trial court. State v. Romero, 69 N.M. 187, 365 P.2d 58 (1961); State v. Carrillo, 82 N.M. 257, 479 P.2d 537 (Ct.App.1970). Permitting a witness to testify who has remained in the courtroom in violation of the exclusion rule is also within the court\u2019s discretion. State v. Warner, 83 N.M. 642, 495 P.2d 1089 (Ct.App.1972).\nSimilarly, permitting a witness to testify who has violated the court\u2019s instruction not to discuss the case with other than the attorneys is within the trial court\u2019s discretion. Easley v. United States, 261 F.2d 276 (5th Cir. 1958); Ward v. State, 15 Ala.App. 174, 72 So. 754 (1916); Bulliner et al v. People, 95 Ill. 394 (1880); State v. Kelly, 237 La. 991, 112 So.2d 687 (1959); Woolridge v. State, 93 Okl.Cr. 245, 225 P. 2d 1028 (1950).\nHere, there is nothing showing an abuse of discretion; rather, the equivocal nature of Souder\u2019s testimony negates abuse.\nInstructing the jury concerning a confession.\nThe jury was instructed as to how it was to consider a confession. There is no issue as to the contents of the instruction. Defendant claims the instruction should not have been given because \u201c * * * there is no confession before the Jury in this case. * * *\u201d\nA written confession was excluded by the trial court. However, evidence was admitted as to oral statements made by defendant. Defendant claims these statements were admissions against interest, but do not amount to a confession.\nDefendant\u2019s oral statements, according to the evidence, were that he had broken into the house; that he pointed in the direction of the victim\u2019s house; that he had returned some of the items to the owner (the victim). \u201c* * * [H]e said he broke a window, that he went inside and picked up some wine which he drank already and a stereo, and he said he walked out the door.\u201d There is nothing indicating these statements were other than voluntary and nothing indicating a lack of advice as to defendant\u2019s constitutional rights.\nThe foregoing statements contain more than the statements held to be admissions in State v. Victorian, 84 N.M. 491, 505 P. 2d 436 (1973) and State v. Reid, 79 N.M. 213, 441 P.2d 742 (1968). State v. Lucero, 70 N.M. 268, 372 P.2d 837 (1962) states that a confession is an acknowledgment of guilt in express terms. In holding that statements, similar to those in this case, were properly admitted, Lucero, supra, held they were admissions, but not a confession. Lucero, supra, did not involve the propriety of an instruction informing the jury as to how it was to consider a confession.\nDefendant claims the confession instruction should not have been given because his statements contain nothing concerning his authority to enter the house or his intent when he entered. However, inferences from his statements cover these items. He \u201c \u2018broke into\u2019 \u201d the house, \u201cbroke a window,\u201d took some wine and a stereo, and returned the stereo to the \u201cowner.\u201d\nWe hold that defendant\u2019s statements in this case, freely and voluntarily admitting a forced entry into another\u2019s house and the taking of another\u2019s property, are sufficiently close to an express acknowledgment of guilt that the trial court did not err in giving the confession instruction. State v. Cunningkin, 261 S.W.2d 85 (Mo.1953); Fouse v. State, 83 Neb. 258, 119 N.W. 478 (1909).\nThe judgment and sentence is affirmed.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Dale B. Dilts, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "514 P.2d 306\nSTATE of New Mexico, Plaintiff-Appellee, v. Larry KIJOWSKI, Defendant-Appellant.\nNo. 1126.\nCourt of Appeals of New Mexico.\nAug. 29, 1973.\nDale B. Dilts, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
  },
  "file_name": "0549-01",
  "first_page_order": 611,
  "last_page_order": 613
}