Hilburn trial delayed; 911 tape appeal
Days before the trial of a boy accused of killing his father was to begin, District Court Judge George Eichwald agreed to allow the defense to appeal a decision about a critical piece of evidence to the New Mexico Court of Appeals.
By allowing the appeal to go forward, the trial is now delayed, and could postpone a jury from hearing the evidence from six months to a year.
Less than two weeks before the trial was scheduled to begin, Eichwald dismissed a defense motion asking the judge not to allow the recording of the 911 call that then 10-year-old Benjamin Hilburn made after he shot and killed his father, Byron, in August 2009.
The boy's attorney, William Cooley, argued that he doesn't believe the court should allow the jury to hear the recording because the statements aren't allowed under the state's children's code.
The state argued that the tape should be allowed into evidence and the jury should hear Hilburn's statements to the dispatcher. Assistant District Attorney Bryan McKay argued that case law allows for the 911 recording to be played for the jury.
Hilburn, who is now 14, has been allowed to move to Oklahoma with his mother until the case goes to trial.
Police and prosecutors said Hilburn, who is charged with first-degree murder, put a gun to the head of his 42-year-old father, killing him. If found guilty, he will be in state custody until he is 21.
The judge had also dismissed another defense motion asking that the trial be moved from Valencia County to Sandoval County. Hilburn's attorney argued that there was too much media coverage in Valencia County for his client to get a fair trial.
The attorney also argued that there were a lot of community connections to the Hilburn family in the county, and there was a possibility that it would be nearly impossible to find jury members who didn't know the family or those investigating the case.
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