Judge to rule on girl's murder testimony

LOS LUNAS, N.M. (KRQE) - A legal battle Wednesday ended without a decision on whether a critical prosecution witness--an 8-year-old girl--will be allowed to testify against an admitted killer, her 12-year-old brother.

The girl is the only witness to what happened in a Belen living room on Aug. 27, 2009, when Benjamin Hilburn aimed a shotgun at his father Bryon's head and pulled the trigger .

During the District Court hearing in Los Lunas the defense argued the little girl, who was only 6 at the time, is emotionally fragile now and shouldn't be forced to re-live that night.

But prosecutors contend her testimony is critical.

What is not at issue is whether the boy did the shooting.

When officers arrived, they say Benjamin told them, "I shot my dad in the head because he was punishing me."

There's also a 911 tape with Benjamin telling dispatchers what happened.

Still prosecutors want the testimony of the little girl.

The defense is fighting to keep her off the stand saying not only is she not a competent witness, she could be further traumatized.

"She's having difficult with reality and creativity," social worker Adrienne Schmidt testified. "She tells stories, reads a lot of comic books, so stories she tells have comic-book themes and is very creative in the way she explains herself.

"So it's difficult to tell if she is telling the whole truth or a created explanation for what took place."

The social workers also testified the girl shuts down when asked about that night or when she knows a court hearing is coming up and also tries to harm herself.

When prosecutors questioned that, Schmidt said she had not witnessed the behavior personally but heard about it from the girl's mother.

Hilburn and his sister have been living with their mother since shortly after the shooting.

Separately a psychologist also testified the girl suffers from post-traumatic stress disorder and mood disorder but couldn't say if that keeps her from accurately remembering the events of that night.

District Attorney Lemuel Martinez argued anyone who witnesses a murder is traumatized.

"Her brother is accused of murdering her father," Martinez said. "It's important she bring justice for her family"

District Judge Tommy Jewell hasn't said when he'll decide if the girl should testify.

The trial is set for May 21. Hilburn faces imprisonment in a juvenile lockup up to his 21st birthday if convicted.