NEW PORT RICHEY — Let's play jury.
Last year, during a Pasco street festival, a big man named Max Wesley Horn shot dead a bigger man named Joe Martell. Horn was charged with second-degree murder.
Last month, at a court hearing, Horn's attorneys argued for the outright dismissal of the case, citing Florida's three-year-old self-defense law that says you're allowed to shoot to kill.
And last week, Circuit Judge Michael F. Andrews rejected the motion, writing in his ruling that he was "unable to conclude … that the use of deadly force was necessary" in this case.
All this now is left for a jury to sort out. That's essentially what the judge's order says. This is how our system works. Arresting officers arrest. Prosecutors prosecute. In the end, though, we get to decide.
We the people, the jury, get to decide if what happened outside Hot Shotz bar in downtown New Port Richey on the night of March 29, 2008, was bona fide self defense or senseless slaughter.
Before we get to the details of the incident, though, it's important to know the law in question.
Florida Statute 776.013 (3) was passed by the Senate 39-0 back in April 2005. It went into effect that October. The law used to say you could protect yourself with deadly force in your own home. The new law changed your own home to, well, just about anywhere. Supporters call it the "stand your ground" law. Critics call it the "shoot thy neighbor" law.
Here, verbatim, is the statute:
"A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony."
Wordy. But some key language in there:
No duty to retreat.
Reasonably, in court, refers to what is known as the "reasonable man" standard. A translation, loose, stripped of legalese: What would a reasonable man of reasonable intelligence and reasonable experience do? Not average. Not perfect. Reasonable. In court, it's considered an objective standard; out in the rest of the world, of course, it's a bit more squishy.
On 776.013 (3), Charles Rose, a professor at the Stetson University College of Law in St. Petersburg, says the following:
"It's not a statute that is easily interpreted."
Here, for instance, are a couple examples out of South Florida from the past few years.
Example No. 1: A 64-year-old man who had had three strokes was outside the door of his Palm Beach County home. A 19-year-old got into an argument with him and shoved him and threw a beer bottle at him. The response was two pump-action 12-gauge shotgun blasts to the belly and the head.
The 19-year-old got killed.
The 64-year-old got 15 years in prison.
Example No. 2: A 44-year-old man, also in Palm Beach County, was out walking his dog. Three young men in a Jeep tried to run him down. They had a baseball bat in the Jeep. They were going to use it to mess him up. Fourteen bullets went into the Jeep.
One of the young men got killed.
The 44-year-old man got … nothing. He was acquitted.
But back to our pending Pasco case: Last year, March 29, around 9:30 p.m., Chasco Fiesta, and Horn, 47, was there with friends, and Martell, 34, was there with friends, too. Martell said some nasty things to Horn's sister-in-law. That led to an argument. That led to a second argument. There was a scuffle. Martell left for a few moments and went to a bar across the street but then turned around and started back toward Horn. Martell's friends tried to stop him but could not.
Was Martell charging? Running? Walking briskly? Depends on what witness or witnesses you believe.
Did Martell get to within 10 feet of Horn? Four feet? A foot and a half? Depends on the witnesses.
Did Martell say he was going to crush Horn's skull? Did he call him an ugly word that means sissy? Depends …
Did Martell punch Horn? Did he punch him in the face? Did he punch him at all? Depends …
It was dark. There were crowds. People were drinking. People were drunk.
So the picture of what happened is hazy. The end result is not. Horn had a .45-caliber semiautomatic handgun equipped with a laser sight. He had a concealed weapons permit. Florida law says he can take that gun to a street festival. Horn fired that gun at Martell. Six shots. One of the bullets shredded a lung and another stuck in his spine.
That much we know for sure.
We also know that Martell had something of a reputation around town as a rabblerouser. He was an instigator. The bouncer at Hot Shotz bar last month took the stand in court and called him an "a--hole." Horn knew that rep. He says he was scared. Not like boo-hoo scared. Scared like he was about to die. Does this matter? Should it? Did that rep make Martell that much more menacing, and did it make Horn shoot that much more quickly, or somehow give him a legally defensible right to do so?
Another thing we know: Horn has a weak heart. His doctor has testified to that. He's supposed to stay away from stressful situations. If you were Horn, and if you had his heart condition, and if you were in that situation, and if you were this "reasonable man" that exists for the purposes of the court, what would you have done? Does this matter? Should it?
One more thing: Horn on that day was 6 feet tall and 270 pounds. Not a small man. But Martell was 6 feet 6 and 328 pounds. He was drunk, too, almost three times the level at which the state says you're too drunk to drive. And he was angry. But Martell was unarmed.
Still, though, asks Rose, the Stetson law professor: "Just by the nature of his size, is a physical threat from him potentially deadly force?"
And would that, or could that, make Horn's gunfire self defense?
Said Peter Brick, one of Horn's attorneys: "If a reasonable man would believe what Horn felt" — that he was in imminent danger of great harm or death — "then it meets the reasonable man standard."
The judge thought not.
"At best the evidence that there was a justified and necessary use of deadly force is minimal," Andrews wrote in his ruling. "At worst it is completely lacking."
The final word, though, belongs to us. The people of the state of Florida. The jury.
Horn's attorneys are looking into the possibility of appealing the judge's ruling before the case even goes to trial. For now, though, the trial is scheduled for March 30. That's a year and a day after Horn pulled the trigger, pulled the trigger, pulled the trigger, pulled the trigger, pulled the trigger, pulled the trigger, until the gun jammed.
Michael Kruse can be reached at email@example.com or (727) 869-6244.