Abling Seeks Immunity from 1st Degree Murder Charges

Marla Abling

Testimony in the immunity hearing for Marla Abling has concluded with her next court dates set for September 3 and 6 in Lamar.  Abling, who has been charged with first degree murder in the January 23, 2013 death of Rory Alba, is seeking to have charges dismissed against her under the “Make My Day” law, C.R.S. 18-1-704.5.  Abling was represented in Prowers County District Court by Public Defenders Russell Zane and Raymond Torres from La Junta.  The people were represented by Jennifer Swanson, District Attorney for the 15^th Judicial District and Lane Porter.   

Testimony was heard on Monday and Tuesday, July 22 and 23 from Abling, her mother and daughter, Lisa Mendenhall and Colleen Saldana from Domestic Safety Resource Center, Deputy Mike Palacios and some members of the Lamar Police Department and EMT responders from Lamar Fire and Ambulance.  The defense is using the “Make My Day” law to seek a dismissal of charges against Abling because they claim she had a temporary civil protection order issued against Alba as early as January 11, 2013.  The statute is officially entitled, “Use of deadly physical force against an intruder”, and immunizes any individual using deadly physical force from criminal and civil liability.  It falls to the defense to establish “that immunity should be granted by a preponderance of evidence.”   

Several issues were noted by Attorney Zane for the dismissal in light of “Make My Day” in that Abling had a reasonable belief that the alleged victim (Alba) would commit a crime against her or her property and might use force against her, given her earlier request for a protection order.  Zane’s written motion includes that Abling’s use of deadly physical force meets the criteria set forth as the statute is interpreted by the Colorado Supreme Court. 

D.A. Swanson contends in her response before the court that Alba was not given notice of the temporary protection order hearing and was not present at the hearing to present evidence on his behalf following the issuance of the temporary order by Judge Larry Stutler on January 11, 2013.  The District Attorney cites there was no evidence at the residence of forced entry and both Alba and Abling had been communicating and were seen together prior to his death.  She states that Alba was not an intruder and had not illegally entered into the residence on January 23 as the “Make My Day” bill was set forth in the case of People v. McNeese.  She continued that Alba was in the apartment with Abling’s consent and permission for several hours prior to his death.  Because of the invitation, there was no unlawful entry despite the existence of the temporary civil protection order.  Swanson says the evidence in the case shows Abling was planning Alba’s death and spoke of it the day before he was killed.  Her invitation to him was part of a premeditated plan to kill him. 

Judge Stanley Brinkley will weigh the presentations from the defense and the prosecutor’s office and make his decision for the immunity plea at the next hearing in early September.  Bail of $150,000 was continued for Abling who is being held in the Prowers County Jail.

By Russ Baldwin