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Fatal Shooting Outside Bar Self-Defense, Lawyer Says

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By TODD LESKANIC

The Tampa Tribune

Published: May 30, 2008

NEW PORT RICHEY - No one disputes who shot and killed Joseph Martell.

Investigators say Max Wesley Horn Jr. shot Martell six times with a .45-caliber semi-automatic handgun on March 29 during the annual Chasco Fiesta. Horn's attorney, Keith Hammond, admits his client shot Martell and then told investigators which hand he used so a gunshot residue test could be done.

But Hammond argues the case becomes murkier when the circumstances surrounding the shooting are considered. Before the shooting, Horn and Martell had exchanged words; friends dragged Martell away from Horn, and the shooting happened after Martell had come back to confront him; Martell was 6-foot-6, 328 pounds, and Horn is 6 feet tall and weighs 270 pounds; Martell has a severe heart condition and takes more than a dozen medications.

Hammond said those facts add up to a case of self-defense, not second-degree murder. He presented a skeleton version of his case at a hearing Thursday, hoping to persuade Circuit Judge Thane Covert to release Horn on bail.

"There's no question he did the act," Hammond told Covert. "It's all going to come down - and you can probably read between the lines - it's going to come down to intent or self-defense. The question is: What was going on in his mind at the time?"

Covert denied the motion, meaning Horn, 46, will remain in the Land O' Lakes Jail without bail. The denial came despite testimony from Horn's wife of 20 years and his mother-in-law, both of whom said Horn isn't prone to violence and wouldn't be a threat to his family or society, if released. They also said Horn is a key part in the lives of his children, ages 16, 11 and 9.

But Martell's family and Assistant State Attorney Neil O'Brien view the shooting as an unlawful killing. Martell wasn't armed, yet Horn fired until his gun jammed. An autopsy showed the bullets entered and left Martell's body on a downward plane, meaning he was either turning away or being pulled away.

Martell's mother, Mary, testified Thursday and asked Covert to deny Horn's request for bail. Reading from a statement, she told Covert that Horn's decision to shoot her son took him away from his own boy, 7-year-old Travis.

"Max Horn took away a father, son, brother, grandson, etc., in what we feel was a senseless and violent manner," she said. "He didn't just kill our son. He overkilled by shooting him six times with a .45-caliber gun. In doing what he did, he also chose to take himself away from his own family."

Martell, 34, of Homosassa, was shot outside Hot Shotz Bar and Grill in downtown New Port Richey. After the shooting, Horn turned and ran, but onlookers pounced on him and held him until authorities arrived. The crime ended a day of drinking and partying at the Chasco Fiesta, an annual event that celebrates Native American heritage.

Reporter Todd Leskanic can be reached at (727) 815-1084 or tleskanic@tampatrib.com.

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