Hilburn trial postponed until January; prosecutors want to use 911 tape

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The trial that will decide the fate of a boy who police say shot and killed his father at their Belen home in 2009 has been postponed until the start of the new year.

District Court Judge John Pope accepted a motion by defense attorneys Tuesday to postpone the trial 90 days to allow the defense to have enough time to prepare for the case. The trial is scheduled for Jan. 16.

Benjamin Hilburn's defense attorney Donna Trujillo Dodd said she has had trouble scheduling more than 40 witness interviews and has had to issue subpoenas in an effort to get people to cooperate. She said the extension would give the defense adequate time to prepare in a process that has been "like pulling teeth."

The trial was set to go forward in the first week in October before Pope granted the extension.

Last month, Trujillo Dodd filed a motion to change the venue of the high-profile case in order to get a fair trial on the grounds that the family has long, established ties in Valencia County. Pope denied that motion.

Hilburn, a then-10-year-old boy, is accused of shooting his father, 42-year-old Byron Hilburn, in his Belen home in August 2009.

Assistant District Attorney Bryan McKay was previously unaware of the motion Dodd filed until the judge brought the matter before both attorneys at the start of Tuesday's proceedings.

McKay had filed a motion to allow introduction of the 911 tape as evidence in the trial. The prosecutor said Hilburn called 911 after he said he shot his father in the head on Aug. 27, 2009, at his Belen home.

Hilburn told dispatchers, "I shot him in the back of his head. I got so angry at him," court documents said.

According to state statute, "no confessions, statements or admissions may be introduced (as evidence) against a child under the age of 13."

But McKay contends the 911 tape is not a statement that is subject to the statute because he said Hilburn wasn't confessing to the crime, but instead asking for help. He asked for a doctor because his dad was dying, according to court documents.

Defense attorneys argued that the 911 tape can't be used as evidence because dispatchers were in a position of authority and that dispatchers asked specific questions that led to Hilburn giving statements to dispatchers.

McKay disagreed.

He cited case law such as State v. Randy J., a DWI case where the New Mexico Court of Appeals said "a child's responses during field sobriety tests, results of the blood test and the child's implied consent to the blood test are not statements that are subject to suppression" under the statute. The child was over 13 in that case.

"It wasn't a 'where did you shoot him? Why did you shoot him? How did you shoot him?'" said McKay. "The only question asked is: 'What happened?' The child says, 'I shot him.'"

Both parties agreed that the confession Hilburn gave to Belen Police Detective Sgt. Joe Portio would not be allowed as evidence under the statute.

Pope said he "was inclined to accept" the tape as evidence once he has had a chance to review the tape in its entirety. The judge said in an interview after the hearing that he planned to review the tape within the next week.

"I agree that Portio is definitely out," Pope said. "If the tape is accurately portrayed as Mr. McKay's case says it is, it looks to me it was a voluntary statement.

"It wasn't interrogational at all," Pope said. "The dispatch didn't ask any question other than what they would ordinarily do in an emergency situation. If it's not accurately portrayed, I may change my mind."

Hilburn is facing a charge of first-degree murder after Pope determined Hilburn is competent to stand trial.


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