911 tape in boy’s murder case might go to appeal

August 23, 2013 • State News

ALBUQUERQUE, N.M. (AP) — The trial of a 10-year-old boy accused of killing his father has been postponed as lawyers await the fate of a 911 recording now in the hands of a New Mexico appeals court.

In a decision issued Friday, Judge George Eichwald agreed to allow the issue of the recording’s use to go to an appeals court after a motion from the boy’s attorney, William Cooley. That court could decide not to hear the appeal, but the move delays the trial that was scheduled to begin Monday with jury selection in a Valencia County courtroom. The 911 recording contains the voice of the boy asking [auth] for a doctor as his dad was dying.

“I am so happy by this decision,” said Cooley, who is seeking to have the 911 recordings banned from the case. “I don’t think the tape should be allowed because a 10-year-old’s statements aren’t allowed under the children’s code.”

Prosecutors said the boy put a gun to the head of 42-year-old Byron Hilburn and killed him at their Belen home in 2009. The boy, now 14 and living in Oklahoma, faces a first-degree murder charge.

Cooley said the father, who kept loaded guns in the house, was abusive to the boy and two other siblings.

The Associated Press is not naming the boy because he is being tried as a juvenile in children’s court.

If found guilty, the boy will be in state custody until he is 21 and must take part in a plan for rehabilitation.

Experts say the boy is just one of a handful of very young children in the nation’s history to face first-degree murder.

On Thursday, Cooley filed a motion in an attempt to prevent photographs of the dead father from being shown to jurors. Cooley said lawyers don’t know who took the photos and didn’t know the images existed until recently.

Lemuel L. Martinez, 13th Judicial District attorney, has declined to discuss details of the case with The Associated Press and other media outlets. But he has defended the decision to pursue the first-degree murder charge.

“We are going to court because we believe we have enough evidence to meet the burden of proof,” Martinez said.

Cooley said the boy’s defense team plans to call more than three dozen witnesses to testify on the boy’s behalf about the abuse he faced and the failure by the state to intervene. He also said he’ll be able to show that the boy did not fully grasp his actions that day and was exposed to constant violence.

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