DA to drop murder charge against boy who shot dad

Says child needs treatment; is getting away with murder

BELEN — After several years of legal setbacks, prosecutors say they will drop a first-degree murder charge filed against a Belen boy who was 10 years old when he allegedly shot his father in the back of the head with a shotgun at the family home.

“This was the hardest decision I’ve had to make during my time as district attorney. This is a case that seems to have been fatally flawed from the beginning,” 13th Judicial District Attorney Lemuel Martinez told the News-Bulletin on Wednesday.

Benjamin Hilburn was charged after allegedly killing

his father, 42-year-old Bryon Hilburn, in August 2009.

Testimony by Hilburn’s then-6-year-old sister about the shooting, and the boy’s admissions when he called 911 and to officers at the scene — “I shot my dad in the head because he was punishing me,” he told them — were ruled inadmissible.

An appeal by the District Attorney’s Office was unsuccessful.

Martinez said that given the evidence left to use at trial, there was little choice but to drop the charge because the existing evidence was insufficient.

He said his office would seek to dismiss the charges without prejudice in the event new witnesses or evidence come to light in the future.

Throughout the long process, Martinez said it was always the intent of the state to obtain treatment for Benjamin Hilburn.

“Any child of 10 who responds to anger, disrespect or rage in a violent manner, especially using a deadly weapon, is in need of treatment so they can address these kinds of events in a nonviolent way,” the district attorney said.

“That is not going to happen in this case. The child is going to get away with murder.”

In June 2011, retired 13th Judicial District Judge John Pope declared Hilburn competent to stand trial. That started the clock, giving the state four months to adjudicate the case, but appeals by both sides stretched that time limit out to this year.

In May 2012, pro-tem Dis- trict Judge Tommy Jewell ruled that Hilburn’s sister, Emily, who was 8 years old by then, was not fit to testify as she unable to distinguish truth from fantasy. Experts testified that the girl was in a dissociative state on several occasions while being evaluated.

The state asked Jewell to reconsider his decision, Martinez said, arguing that the testimony from the expert the judge based his decision on came solely from interviews with the girl’s mother, not Emily herself.

“We believe the judge could have interviewed the child himself to determine the veracity of her testimony, the quality of her memory and ability to tell the truth,” Martinez said Wednesday. “The expert did not interview the child.”

After the judge denied the request for reconsideration, Martinez said the state went so far as to seek advice from the state Attorney General’s Office to see if it had a basis for an appeal.

“We were told it would be a very high standard to meet and we wouldn’t prevail,” he said.

In August 2013, just days before Hilburn’s trial was scheduled to begin, District Judge George Eichwald agreed to allow the defense to appeal his decision to allow the use of the 911 recording from the night of the shooting. The New Mexico Court of Appeals ultimately ruled the 911 tape couldn’t be used at trial.

In a recording of the 911 call, the young Hilburn tells a dispatcher about the shooting.

“I was just so over my head,” he told the dispatcher. “I shot him in the back of the head. I got so angry at him.”

The boy repeatedly asked the dispatcher for emergency responders to “hurry up.”

When officers arrived at his house on Vivian Drive in Belen, Hilburn told them to go quickly into the house and then said he shot his father.

Police found Bryon Hilburn lying behind the doorway, partially blocking it. He was bleeding heavily from the back of his head but still alive.

The report says that Benjamin Hilburn led police to the weapon reportedly used in the shooting, a camouflage-colored 20-gauge shotgun. Police found a spent shell casing in the hallway. Officers placed Benjamin Hilburn into custody, and his sister eventually was handed over to her grandfather.

According to the report, officers described Benjamin as emotionless after the shooting.

His sister told police she was playing video games when she saw her brother holding a weapon. She said she heard a gunshot, and then saw her father lying on the floor.

Bryon Hilburn was pronounced dead at the University of New Mexico Hospital in Albuquerque about an hour after the initial call.

The New Mexico children’s code prevents children under 13 from making statements that incriminate themselves, Martinez said, so both Hilburn’s statements to the police on the night of the shooting and the 911 recording were ruled inadmissible for that same reason.

Benjamin Hilburn was allowed to move to Oklahoma in 2013 to live with his mother, Monica Albear, while awaiting trial.

After her son was charged, Albear said her ex-husband abused both her and their three children. The state’s Children, Youth and Families Department investigated nine complaints of abuse at the home but substantiated only one — against Albear.

At the time of the shooting, Bryon Hilburn had custody of Benjamin, and Martinez said that to his knowledge, the complaints to CYFD were made and investigated while Albear and Byron Hilburn were still together.

“While he was in his father’s custody, I don’t know of any reports,” he said.

Martinez said that to the best of his knowledge, Hilburn is not receiving any kind of treatment.

“It is our hope he is,” Martinez said. “We are fearful for his mother and sister’s wellbeing based on his previous actions.”