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Appeals court won't toss murder charge in 2008 Pasco shooting

NEW PORT RICHEY — An appeals court on Wednesday denied a petition from Max Wesley Horn Jr., accused of killing a man during the 2008 Chasco Fiesta, to declare him immune from prosecution under Florida's "stand your ground" law.

That means Horn, 48, must stand trial on a second-degree murder charge in the March 29, 2008, killing of Joseph Martell. Authorities say the two men got into several altercations throughout the day at the downtown festival. That night, outside Hot Shotz bar, they argued again. Some witnesses said Martell charged at Horn, who pulled a gun from his waistband and fired six times until it jammed.

Horn's attorneys argued this year that he was acting in self-defense and should not be prosecuted, citing the 2005 Florida law that says people have the right to use force — including deadly force — if attacked at home or "any other place where he or she has a right to be."

Pasco Circuit Judge Michael Andrews held a hearing on that issue and ruled that he was "unable to conclude … that the use of deadly force was necessary." In essence, Andrews said it's up to a jury to decide whether the killing was in self-defense.

The 2nd District Court of Appeal was considering the validity of Andrews' procedure in interpreting the law, not Horn's actions that night. Andrews heard testimony from witnesses for both the state and defense, weighed their credibility and found that the "preponderance of the evidence" did not support Horn's claim of self-defense.

The appeals court agreed with Andrews' procedure, saying it's appropriate "for most, if not all, cases in which the defendant seeks immunity" under the stand your ground law.

That's the same standard used in a 2008 decision by the 1st District Court of Appeal, but it differs from how yet another appellate court ruled in a stand your ground case.

This year, the 4th District court said any immunity claim should go to trial when the facts of the case are in dispute.

Legal mumbo-jumbo?

Yes, but Charles Rose, a professor at Stetson University College of Law, says there's a significant difference. The 4th District's interpretation, he says, makes it so hard for a defendant to claim immunity under the stand your ground law that "it basically doesn't allow you to use this defense."

The standard applied in Horn's case, Rose says, lets the jury decide whether it was self-defense.

The state Supreme Court would ultimately "settle the differences between the circuits," he said.

When he was arrested, Horn told police that Martell had been "asking for it." Witnesses differ on who started the argument, and whether punches were thrown. Some knew Martell and said he had a reputation as a fighter. He worked as an asphalt plant operator and had a young son.

Horn's attorneys did not return a call Wednesday for comment.

Molly Moorhead can be reached at moorhead@sptimes.com or (727) 869-6245.

Appeals court won't toss murder charge in 2008 Pasco shooting 08/26/09 [Last modified: Wednesday, August 26, 2009 8:56pm]
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