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Judge to decide if fatal New Port Richey shooting is justified

NEW PORT RICHEY — You feel threatened.

You feel threatened by a man you've argued with and a man you perceive to be menacing.

You feel threatened by a man who's big, 6 feet 6 and 328 pounds, and drunk, too, almost three times the level at which the state says you're too drunk to drive, and now he's coming toward you and maybe he punches you in the face.

So you shoot him.

You shoot him dead.

Is that murder or is it self defense?

The case of Max Wesley Horn was eye-catching from the start because of the circumstances of the crime. Last March, Horn, 47, shot Joe Martell, 34, outside Hot Shotz bar in downtown New Port Richey at the Chasco Fiesta street festival. He shot him six times with a .45-caliber semiautomatic handgun equipped with a laser sight. He kept firing until the gun jammed.

As the Horn case has come through the courts, though, it's gotten more than just eye-catching.

There was a hearing Thursday in the courtroom of Circuit Judge Michael F. Andrews. It was a defense motion for dismissal. Horn's attorneys say this was self defense and that he should no longer be prosecuted for second-degree murder.

The argument is based on the relatively new and controversial state law that went into effect in 2005 and is sometimes called the "stand your ground" law. If you're attacked, the law says, you can "meet force with force, including deadly force."

Thursday's hearing lasted about five hours. The defense called eight witnesses. The state called seven. Now it's up to Andrews to make a decision. That could come in days, or it could come in weeks, although there's no specific timetable.

On March 29, 2008, Martell said some nasty things to Horn's sister-in-law, which led to an argument later in the evening, which led quickly to a second argument. That argument ended with gunfire.

One of the bullets perforated Martell's left lung. Another lodged in his spine.

Horn started to walk away and was tackled by onlookers.

He told the first police officer on the scene that Martell had been "asking for it."

At this point, the attorneys on both sides, the many witnesses — they all agree on only a few things. There was some pushing, some shoving, some arguing, and Horn shot Martell, and Martell died. And that's about it.

It was dark.

It was crowded.

Many of the witnesses had been drinking. Some of them had been drinking a lot.

Some witnesses testified Thursday that Martell punched Horn in the face just before the shots. Others saw no such thing.

Some said they were 10 feet apart when Horn shot his gun. Others say they were 4 feet apart. One witness said they were about a foot and a half apart.

Some heard Horn warn him that he had a gun and to stop messing with him. Others did not.

Horn, who was 6 feet and 270 pounds on the day this happened but now appears much lighter, took the stand Thursday, too. He was well-spoken and mild-mannered.

He has a weak heart. His heart doctor testified to that. He takes 15 pills a day.

Horn testified that Martell told him he was going to crush his skull and called him things like sissy, only not that nice. He testified that he told Martell that he couldn't fight him but that he'd shoot him if he didn't stop.

"I was very afraid," Horn said. "I didn't have any choice.

"You shoot to stop the threat," he added. "I was shooting to stop the threat."

Self defense or murder?

"I don't think it's a clear case of self defense," prosecutor Neil O'Brien told the judge.

"This could go either way," defense attorney Keith Hammond said.

Then Andrews, the judge, asked both of them: "Doesn't the defendant have at least a very good argument that he was dealing with someone that was hellbent on fighting?"

Michael Kruse can be reached at mkruse@sptimes.com or (727) 869-6244.

Judge to decide if fatal New Port Richey shooting is justified 01/15/09 [Last modified: Friday, January 16, 2009 2:10pm]

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