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Pasco murder trial will test Florida's self-defense law

NEW PORT RICHEY — Amid the after-hours festivities at the 2008 Chasco Fiesta, Max Wesley Horn and Joseph Martell clashed outside a bar, in a throbbing, drunken crowd of revelers.

Ugly words were exchanged. A punch may have been thrown. Friends on both sides tried to break it up.

But just as the fight seemed to dissipate, Martell, the younger, bigger man, went back toward Horn, who was weakened by bad health but armed with a gun.

He shot Martell six times with a .45-caliber pistol.

Prosecutors call it murder.

Horn calls it self-defense, claiming he used the only means he could to keep an enraged man from harming or killing him.

"I think the state and the defense agree on the facts," said Keith Hammond, one of Horn's attorneys. "But they look at it and see that a crime was committed. We look at it and see that a crime was not committed."

Horn is set to face trial Monday on a charge of second-degree murder. His case is getting a lot of attention — from local jurists as well as gun-rights advocates nationwide — because it is seen as a litmus test of Florida's self-defense law.

The law, which for years protected people's right to use deadly force if they felt threatened in their homes or businesses, was expanded in 2005 to include any place a person had a legal right to be.

It also established that people have no "duty to retreat" in threatening situations — we can stand our ground and meet force with force.

• • •

Horn and Martell each went to the Chasco parade early on March 29, 2008, with different groups of friends. The two men had never met.

Horn is a video producer with a wife and three school-age children. A heart condition had limited how much he could work, but even when he was healthy friends said he passed up demanding jobs to have more time for his family.

That day, witnesses say Martell, 34, walked over to Horn's group and chatted with a woman he knew from years before. Then while talking to another guy, witnesses said, Martell made a crude remark about who the woman was sleeping with.

Martell's friends knew that anytime they hung out with him, they'd have fun. He grew up in the area, worked with his dad in an asphalt plant and had a young son. He drew attention everywhere he went because of his size: 6 feet 6, 328 pounds.

Later on, as the parade was ending, Horn's sister-in-law Kim Dennison went to use a private restroom that belonged to Martell's friends.

Dennison told authorities Martell shouted at her and called her obscene names when she tried to go in.

All this came up later that night, while Horn, his wife and their friends drank beers at Fitzgerald's bar in downtown New Port Richey.

"We didn't dwell on it," Horn, 48, testified in a court hearing last year. "There was some levity."

But then the group walked to Hot Shotz, another bar nearby, and encountered Martell again. He was shoving his way out, through a crowd waiting in line to go in. He knocked a couple people over, according to witnesses. Like many in the crowd of thousands, he appeared intoxicated.

Dennison's husband, Sam, recognized Martell as the man who had shouted at his wife. Out in the street, they began to bump chests and trade insults. Kim Dennison stepped in, telling Martell to "get off my husband." He called her a lewd name, she said.

Enter Horn.

He testified that he implored Martell to leave them alone, and Martell replied with more insults and an invitation to fight.

"I told him, 'I can't fight you. I can't fight you. I'll shoot you,' " said Horn, who has a chronic heart condition. "Because I just knew the guy was going to lay into me."

He then lifted up his shirt to reveal a handgun in a holster around his waist. Several witnesses corroborated this claim, though others say they never saw Horn show his gun.

Scott Hicks, Martell's best friend, said he heard Horn tell Martell, "I am going to shoot you."

Hicks then grabbed Martell around the waist and dragged him to a pub across the street, telling his friend, "Come on, we don't need this. Let's go have fun."

But Martell disappeared out another door and marched back into the street. Hicks and another friend tried to catch up.

Horn says he heard someone yell, "Oh no, here he comes again."

He looked up and saw Martell, walking quickly toward him and looking enraged. Horn says Martell punched him in the forehead. Some witnesses saw it too, but others say there was never any physical contact between the men.

But everyone agrees on what happened next: Horn pulled his gun from the holster and fired.

Horn said he remembered firing three shots, but authorities determined he pulled the trigger six times, stopping only when the gun jammed.

Jonathan Dunham, the bouncer working the door at Hot Shotz, said Martell fell after the first few shots. Horn fired twice more, standing over Martell as he lay on the ground.

Horn then walked away, later saying he wanted to calm down and wait for the police. He didn't get far. Several people in the crowd chased after him and tackled him to the sidewalk.

Self defense or murder?

Florida law says we have no duty to retreat from a threat.

Hammond, Horn's attorney, argues that this case doesn't even go that far.

"Our position is that there was no opportunity to retreat because of the circumstances," he said.

For one, Martell was "right on top of him," Hammond said. He plans to call three witnesses who will say Martell hit Horn, and a Florida Department of Law Enforcement investigator who will say the gun was between 18 and 21 inches away from Martell when it fired.

Plus, Hammond said, the victim re-engaged.

"This person comes back to fight, knowing that my client had a gun," he said.

But even under the "stand your ground" principle, it's not open-and-shut.

Chris Frey, a New Port Richey attorney who is not connected to this case, successfully defended a man last August who was accused of shooting his neighbor in Hudson. Like Horn, 64-year-old Anthony Boglino had a health condition that made him defenseless except for a weapon. When an angry neighbor ran at him and yelled at him to leave the property of another neighbor, Boglino said he felt threatened and pulled his gun. When the man charged at him again, Boglino fired.

Facing up to 25 years in prison, he was found not guilty.

In such cases, Frey said, the defendants have to first show that there was real reason to believe they were in danger. And second, that they responded to the danger reasonably.

"Under the law, it can't just be that someone angers you. It has to be an immediate, present danger of death or serious bodily harm," Frey said.

He added: "The reasonableness standard, I think, keeps people from running amok and just going around shooting people. … It still has to be a justifiable use of the force."

The jurors are asked to put themselves in the position of the shooter to decide if the force was reasonable and justified.

Would you, the juror, have done the same thing under the same circumstances?

That's what the six people empaneled to hear Horn's case will be asked to consider.

Prosecutors are expected to argue that Horn's actions were excessive, not justifiable.

He didn't just fire once. He pulled the trigger five more times. He testified he would have kept on firing it if the gun hadn't malfunctioned.

And according to court documents, an autopsy showed that based on the direction of Martell's bullet wounds, he was turning away — disengaging — when Horn was shooting at him.

Last year, when Horn's attorneys tried to have the murder charge dismissed based on the self-defense claim, a judge considered it but decided the case should go to a jury.

In his written ruling, Circuit Judge Michael Andrews said: "At best the evidence that there was a justified and necessary use of deadly force is minimal. At worst it is completely lacking."

Mary Martell, Joseph's mother, will be there with her husband to see which interpretation of the law prevails.

"In our hearts and minds it's certainly not self-defense," she said. "Joe was unarmed."

Molly Moorhead can be reached at [email protected] or (727) 869-6245.

Pasco murder trial will test Florida's self-defense law 01/23/10 [Last modified: Saturday, January 23, 2010 12:37pm]
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