Home Is Where the Hurt Is

Coloradoís Make My Day law was designed to protect homeowners who were forced to kill in self-defense. Hereís who itís really helped.

Both situations have, for the most part, turned out to be fallacies. "Clearly, all the lurid scenarios that people predicted have not come to pass," says the Independence Institute's Dave Kopel. Adds David Vela, chief of the Colorado public defenders' office: "Overall, the law has worked well."

Indeed, there has not been a proven case of a murderer successfully hiding behind the cloak of the Make My Day law and escaping punishment for a killing. That doesn't mean it hasn't happened, though, and in several instances, prosecutors still have their suspicions.

On December 6, 1992, Darrell Allen and Harold Mason entered the Aurora townhome of William Harland. The men knew each other -- two of them were even related: Allen's wife was the sister of Harland's wife. A month earlier, Harland and his wife had separated. Allen and Mason encountered Harland in the basement. Moments later, Allen was dead of a gunshot wound to the head.

David Guenther.
David Guenther.

In his defense, Harland pointed out that he'd been robbed twice in the weeks leading up to the shooting. Moreover, he added, it was possible that it had been Allen who'd been breaking in and taking things.

But the story given by Mason was different. He claimed that Harland had called Allen and asked him to come to the townhome to fix a leaky faucet; in fact, the two men had left a Broncos game to respond to Harland's request. But when he and Allen arrived, Harland demanded a confession to the burglaries, informed Allen that he intended to kill him and claim self-defense, and then shot Allen in the head. Both Allen and Mason were unarmed at the time.

In short, argued Arapahoe County Deputy DA John Franks, Harland had arranged a murder.

But in June 1994, Harland was found not guilty. (Mason's lengthy criminal record may have discouraged the jury from believing his version of events.) "I don't want to sound sour-grapes about this," Franks says today. "But if what we believe happened is true, it was one of the coldest cases of murder I've seen. And he got away with it."

Harland's motives may have been unclear, but Arthur Hagar's were blatant.

Hagar ran an automotive-repair business in Crested Butte. In 1990 he began having an affair with Joyce Cobai. Joyce was the wife of Johnny Cobai, a long-distance truck driver. They were anything but discreet.

"Arthur was going around to bars and bragging about it," recalls Pete Hautzinger, a Mesa County assistant DA who ended up prosecuting the case. "He would say things like, 'I'm screwing Joyce Cobai, and it's the best sex I ever had.' It was inevitable that Johnny was going to find out."

In the meantime, Hagar contacted the Gunnison County District Attorney's Office. He had some questions about the state's Make My Day law: How did it work? What were some of the conditions that might result in a killer not being charged with murder?

On the night of July 10, 1990, Cobai drove by Hagar's garage. Hagar saw him and flipped him off. Cobai stopped his car, got out and entered the garage. "There was no question that Johnny was going to punch his lights out," Hautzinger admits. Instead, Hagar greeted Cobai at the door and shot him six times. Cobai fell outside the door, dead.

The local judge refused to hold a hearing to grant Hagar immunity under the Make My Day law, and the case went to trial. Hagar's lawyers contended that since Hagar kept a cot in a loft above the automotive garage, the business doubled as his home, and under the law, he was entitled to protection from the murder charge. Hautzinger argued that Hagar wanted Cobai dead and made it happen.

In February 1991, Hagar was convicted of first-degree murder. But Hagar appealed, contending that the district court judge made a mistake by not holding the Make My Day hearing before the trial. In May 1994, the higher court agreed and sent the case back for a retrial. This time around, however, Hagar pleaded guilty to second-degree murder before the trial could begin. Three years ago, he was sentenced to 25 years in prison.

"I think the Make My Day law has the potential to create situations where someone exploits a situation to commit murder," reflects Hautzinger, who still works for the Mesa County DA's office. "And I firmly believe that's what was going on in this case."

While cases such as Hagar's are alarming, they are rare. More troubling to critics of the law are the run-of-the-mill confrontations, many involving drugs and alcohol, in which events escalate out of control into death and where no one is held responsible for his actions. "The Make My Day law really becomes a problem when social relations break down," notes Daniels, the Mesa County DA.

He points to the case of the Mesa State College football players. In that five-year-old incident, a get-together in a dorm escalated into a fight. One of the players retreated temporarily out of the other's room and onto a balcony. The room's occupant warned him not to come back inside, and when he did, he shot him through the leg. Thanks to the Make My Day law, Daniels says he was forced to ignore the case.

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