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Florida Keys News
Thursday, November 15, 2012
Man wants arrest erased
Judge ruled local 'stood his ground'

A Key West man is working to have his record expunged after he successfully argued that he was defending himself from an attacker citing Florida's controversial "stand your ground" law.

Circuit Judge Mark Jones ruled that Martin Lang, 53, was within his legal rights when he reportedly hit John Foundas, 38, of Key West, on Sept. 26, 2011 in the head with paintbrush during a fight between the two maintenance men. Both worked at an Old Town bed and breakfast.

Police arrested Lang after he and Foundas gave differing stories over who was the aggressor, but the argument appeared to be over a paintbrush. By the time police arrived, Foundas' head and face were covered in blood from gash wounds. They arrested Lang and charged him with felony third-degree battery.

Assistant Public Defender Kimberly Sloan filed a motion arguing Lang was legally defending himself.

Jones held a hearing on Oct. 11 and 12 in which Assistant State Attorney Carla Matinata called Lang, Foundas and a witness to the stand.

"Mr. Foundas had the defendant pinned in the corner and the defendant reasonably believed that he was fighting for his life," Jones wrote in his Oct. 23 order granting Lang immunity from prosecution of the felony battery charge. "As a result of fear and basic survival instincts, the defendant, an older, weaker, and less aggressive man, flailed, punched, kicked, and did whatever he could do to defend himself and the court finds he was legally justified in so doing."

Lang also testified that Foundas had been harassing him since the retired Chicago real estate banker moved to Key West about a month before the incident.

Since Jones' order, Lang has been searching for a private attorney to have his arrest stricken from the public record.

"I felt totally vindicated," Lang said. "The prosecutor offered me a lesser charge and I refused. I thought, 'To hell with that,' but I was still a little nervous going forward."

A third-degree felony carries a maximum five-year prison sentence.

"I felt I was innocent from the start," Lang said. "This was a big guy who was much younger than me."

Jones also noted in his order that Lang was a "credible witness who voluntarily provided a detailed and plausible account as to what had transpired between himself and John Foundas at the time of the incident and during the weeks leading up to the incident."

Jones added, "On the other hand, the court finds John Foundas to be an unreliable and incredible witness. The court finds the testimony of Mr. Foundas to be vague, imprecise, and not consistent with logic and common sense. Mr. Foundas' credibility is further diminished by the demeanor and attitude he exhibited on the witness stand as well as his seven prior felony convictions."

Foundas has an unrelated felony battery charge pending from a June 26 arrest.

Jones' order subsequently closed the case, Matinata said.

"We received Jones' order and we subsequently nolle prossed the charge and are not appealing [the order]," Matinata said.

"Nolle prossed" is slang for nolle prosequi -- the Latin verb "be unwilling to proceed" -- in legal parlance, not proceeding with prosecution.

The controversial "stand your ground" law drew national attention this year after it was cited in a Sanford, Fla., case involving neighborhood watch volunteer George Zimmerman, who fatally shot 17-year-old Trayvon Martin. Zimmerman claims the boy attacked him.

The law allows the use of deadly force when a person fears they are in danger of great bodily harm or being killed. The law effectively removed a requirement that a person try to escape before using violence against an attacker.

The law has arisen at least three other times in Monroe County in recent years.

It was rejected in a murder case against Nicholas Ferro, which ended in a mistrial in March. Attorneys for Ferro unsuccessfully tried to convince circuit Judge David Audlin -- and later, the 3rd District Court of Appeal -- that their client was defending himself when he stabbed Key West resident Marques Butler in a street fight among two groups during Fantasy Fest 2009.

In an unrelated case in Key Largo, Jorge Correa admitted he shot Louis Figueroa three times during a dispute at a trailer park in 2007, and successfully convinced circuit Judge Luis Garcia that he legally defended himself. Prosecutors had charged Correa with attempted first-degree murder with a firearm.

Defense attorney Hal Schuhmacher cited the self-defense law on behalf of client Zachary Kenneth Wilson, 26, of Perry, Mich., charged with felony aggravated battery and two misdemeanor counts of battery in a 4 a.m. street fight in Old Town Key West, but circuit Judge Mark Jones ruled in April that the law wasn't applicable.

Wilson is scheduled for trial in January.

alinhardt@keysnews.com

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