ALBUQUERQUE (KRQE) – Prosecutors have filed a motion asking a judge to reconsider allowing key evidence in the case of Benjamin Hilburn the Belen boy who just days from his 10th birthday allegedly murdered his father.
That evidence, is testimony from the only witness, Benjamin Hilburn’s sister who was just 6 years old at the time. A judge has ruled twice now that the girl could not testify because she couldn’t decipher between reality and fantasy but she’s now 11 years old and prosecutors think it’s time the judge hears from her himself.
“The judge never put the child on the stand to question her to see whether or not she knew difference between right wrong, fact or fiction other things judges do to determine whether or not the child can testify truthfully,” District Attorney Lemuel Martinez said.
It was 5 years ago, back on August 27th, 2009, that Benjamin Hilburn made a 911 call telling dispatchers he had shot his dad. According to court documents when officers arrived, Hilburn told them quote: “I shot my dad in the head because he was punishing me”
Hilburn’s dad, Bryon was then found in the living room with a gunshot wound to the head. Hilburn’s sister Emily, tearfully told detectives she quote: “saw Ben with a weapon in his hand, then heard a shot and saw her father lying on the floor.”
But both Emily’s testimony and that 911 call have been ruled inadmissible because of the children’s age, a blow to the prosecution’s case.
“I can appreciate the fact that we’ve lost a couple of battles but it’s not over yet, we’re gonna see if we can put together this case and salvage it and move forward in a positive direction,” Martinez said.
Prosecutors can still appeal the dismissal of the 911 call to the state Supreme Court. Hillburn’s attorneys are still calling for the charges to be dropped, saying prosecutors don’t have a case.
Benjamin Hilburn is now living in Texas with his mother. He has never been locked up that was initially because of his age. Because he’s free and his attorneys have been part of the 5 years of court delays, Hilburn’s right to a speedy trial is not in question.