KUSA - 9Wants to Know has learned a Colorado judge will decide Wednesday whether to set free a woman who confessed to killing her boyfriend in her bedroom.
Police found the body of 45-year-old Rory Alba on Jan. 23, 2013. An autopsy determined he was strangled.
Alba's estranged girlfriend, Marla Abling, 48, was arrested that day and later charged with first-degree murder. Attorneys for Abling now say she should be immune from prosecution under the state's "Make My Day" law.
"Make My Day" is intended to give homeowners immunity from prosecution, if they use deadly force against an intruder. That intruder does not necessarily have to be a stranger. According to 9News legal analyst Scott Robinson, Abling's lawyers would have to prove the following to win immunity:
-Alba unlawfully entered Abling's apartment
-Abling reasonably believed he intended to commit a crime inside
-Abling felt Alba might use force against her - no matter how slight.
Marla Abling made only one statement to investigators about Alba's death. According to an arrest affidavit, she told police at the scene, "He found out where I live and we have a restraining order. He showed up about 20 minutes ago and I wasn't going to take it again. I put the cord around his neck."
A judge did grant a temporary civil protection order to Abling on Jan. 11, 2013, less than two weeks before the killing. In her request for protection, Abling claimed alba had beaten her and had tried to strangle her in the past. She wrote "I'm tired of being in fear for my life."
Alba's brother wants Abling to go to trial, be convicted, and be sentenced to life in prison.
"It's not right for any man to hit any woman," Ron Alba said. "Regardless of whether he did or not, she didn't have to kill him."
9News legal analyst Scott Robinson says the protection order banned Alba from entering Marla's apartment.
"When the defendant can show without much question that the entry itself was unlawful," Robinson said, "that person is taking a very large step toward receiving "Make My Day" law immunity, no matter how peculiar the facts."
Prowers County District Attorney Jennifer Swanson says Abla should not be considered as an intruder. Witnesses say the couple had been trading phone calls despite the protective order.
The district attorney says Alba may have been in the apartment for hours because there is evidence to show someone was eating in Abling's kitchen, Alba's brand of cigarettes were in the ashtray, and physical evidence indicated Alba recently had sex. Police say Alba's keys were found on a hook by the door.
"You don't force your way into someone's home and leave your keys on the hook when you walk in," Swanson said. "It's Mr. Rodgers style, 'I'm home!'"
Swanson also says the day before the murder, Abling told a manicurist that she wanted to kill Albe. He later showed up at the salon to pay for the manicure.
"I don't think you can reconcile premeditation with this immunity defense," Swanson said.
Abling's lawyers argued in a court motion that "due to Ms. Abling's violent relationship with the alleged victim, she had a reasonable belief that he would commit a crime against her or her property and might use force against her."
Abling has remained in jail on the murder change, as lawyers presented evidence relating to "Make My Day" immunity in a hearing spanning six days over the last three months.
If a judge grants immunity, he would dismiss the murder charges against Abling. However, Prowers County Jail officials say she would not immediately be released from custody. They say she has an unrelated probation violation case, and she would have to post $5,000 bond.
If the judge rules against immunity, the murder case would move forward in court. Defense attorneys could raise the immunity issue again if the case goes to trial.
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