A Colorado judge denied immunity under the state’s “Make My Day” law to a woman charged with 1st degree murder. The defendant, Marla Abling, has been charged with first degree murder for the strangulation killing of her estranged boyfriend, Rory Alba.You don't need a law degree to get to the logical heart of this self-defense claim, but Branca, a specialist in the law of self defense, gives it anyway, in the somewhat understated form for which we lawyers are generally known:
The couple had a history of alleged domestic violence, and Abling had obtained a temporary restraining order that forbid Alba from going to Abling’s apartment. Despite this, Alba was in Abling’s apartment when she killed him.
Abling made a pre-trial motion for immunity from criminal prosecution under Colorado’s “Make-My-Day” law. In relevant part, §18-1-704.5 “Use of deadly physical force against an intruder” authorizes the use of deadly force, and provides both criminal and civil immunity for such use of force, even against a person who does not present an imminent threat of death or grave bodily harm if all of the following conditions are met:(1) The person using the deadly defensive force is the occupant of a dwelling at the time, ANDAbling argued that she meets the conditions of the “Make-My-Day” law because (1) she was the occupant of the dwelling; (2) Alba’s entry into the dwelling was unlawful because of the presence of the temporary restraining order; (3) based on his prior conduct she had a reasonable belief that he intended to commit a crime in addition to the unlawful entry; and (4) for similar reasons she had a reasonable belief that he might use physical force against her.
(2) The person against whom the deadly defensive force is used has made an unlawful entry into the dwelling, AND
(3) The occupant has a reasonable belief that the other person has committed a crime in the dwelling (in addition to the uninvited entry) OR the other person is committing or intends to commit a crime (in addition to the uninvited entry) AND
(4) The occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
Unfortunately for Abling, however, over the course of six days of testimony on the immunity motion, the prosecution presented evidence that convinced the judge that Abling’s conduct did not fall within the scope of the “Make-My-Day” statute.
There was evidence that Alba may have been invited to the apartment by Abling, rather than being an intruder. Phone records indicated ongoing and mutual communication between Alba and Abling, and the two had also been seeing together around town, despite the prohibitions against this by the restraining order.
Further, Alba’s keys were found hanging neatly on the key hook by the front door. It also appeared that Alba spent hours at the apartment with Abling before he was killed, and that the two may have engaged in consensual sex during that time. All of this seems behavior more consistent with that of an invited (and welcome) guest than of an unwanted intruder.
Most damning, however, was the prosecution witness that testified to overhearing Abling at a hair salon days before Alba’s death talking about ways to kill him. Oops.
[W]hile I have seen a great many items used as defensive weapons in my years as a defensive trainer and in my legal work in the law of self-defense, the claimed necessity to kill an attacker by means of strangulation via electrical cord is certainly novel to my experience.I wonder if Abling will next try the Chewbacca Defense.