By Ken Smith
Turnagain Times
A 30-year-old man who shot another man multiple times during an altercation on Arlberg Road in Girdwood last November, pled guilty to assault in the second degree and misconduct involving weapons in the fourth degree.
David Yannello agreed to a plea deal with prosecutors on Dec. 7. As part of the agreement, prosecutors dismissed attempted murder and tampering with physical evidence charges, and reduced assault in the first degree to assault in the second degree, a class B felony punishable by up to three years in prison; however, the judge has some discretion with the sentencing.
“The judge may go above the presumptive range or exceed the presumptive range of the 1-3 years,” said Michal Stryszak, a prosecutor on the case, “and go as high as 10 years.”
The weapons violation is a class A misdemeanor, which Stryszak said will add 30 days additional to the felony sentencing. Yannello was found to be under the influence of alcohol while carrying a gun. He also agreed to pay restitution to the victim, still to be determined, and will forfeit the firearm and all other items seized in the investigation.
A grand jury indicted Yannello on Dec. 24, 2008 for the attempted murder and other charges for the shooting.
Yannello has no criminal record in the state of Alaska. A full pre-sentencing report will be considered, said Stryszak.
“The probation office will look into his past, rehabilitation process and will make a recommendation to the court,” he said.
Yannello posted bail a day after being arrested for the Nov. 23, 2008 shooting of Brad Phelps, 32, and has been out on bail since that time.
The Turnagain Times obtained court documents filed by both the prosecutor's office and Yannello's attorney, Rex Butler.
Other than the fact that Yannello shot Phelps, the details leading up to the shooting are sketchy with the defendant and prosecutors presenting conflicting facts in the case.
The shooting occurred just after midnight. Both men had been drinking.
State Trooper Sgt. Dave Hanson interviewed Phelps the day after the shooting when he was heavily sedated with pain medication.
Phelps said he was barbecuing with friends, and then drinking and dancing at the Sitzmark lounge the night of the shooting.
He said he went to the Sitzmark around 9 p.m. but could not recall what time he left. He believes he may have been kicked out of the bar, but does not remember why.
Once outside, he said a man confronted him and pointed a gun at him. Phelps told prosecutors he thinks he remarked, “Don't point the gun if you are not going to use it.”
He said he did not remember having an argument with Yannello.
According to Sgt. Hanson, Phelps said, “I have no idea why someone would shoot me.”
In court documents, Sarah Taylor, a friend of Phelps, testified that around 10 p.m. she went to the Sitzmark bar and met Phelps and a group of friends to attend Alyeska's annual pass-holders' party.
She testified that she had only known Phelps for a couple of weeks. She said they went to the Sitzmark together and Phelps got heavily intoxicated and was “trying to get us girls to dance and stuff.”
Taylor testified that Phelps was asked to leave by one of the bar's bouncers. She said Phelps was calm about leaving and was trying to negotiate with the bouncer.
Around midnight, the bouncer, Sharon Bremond, kicked Phelps out of the bar because he was too intoxicated.
Attorney Butler stated in court documents that “Phelps was not compliant with security when he was removed from the bar just prior to the incident. Upon his exit, Phelps delayed security escorting him out of the bar, showing aggression or, if not, hesitation with Bremond.”
Bremond stated, “at that time when I told him again that he was not allowed back in, he was a little more confrontational. I guess that would be a good word. He yelled and hollered a little bit at me and at some people that were sitting at a nearby table.”
Taylor said Phelps didn't appear too intoxicated to walk home, which was only about 15 minutes walking distance from the bar.
Phelps said that he had only been living in Girdwood for two weeks before he was shot and that he didn't know Yannello.
He told grand jurors that on the night of the shooting “I was more intoxicated than I had realized.”
He said he recalled leaving the Sitzmark, but that “it all becomes pretty blurry after that. He continued to testify that “I don't recall walking very far, and the next thing I do remember was having excruciating stomach pain and lying on the ground.”
He also stated that he remembered hearing the gunshot but said he was not carrying a knife.
Yannello, however, testified that Phelps threatened him with a knife and that is why he shot him.
But Phelps said, “the only thing I had taken to the bar with me that night was my wallet. I was wearing a pair of bibbed Carhartt overalls. And anybody who knows bibbed Carhartt overalls knows that there's no belt loops, and the only knife that I own is a Leatherman that needs a belt loop to carry. So, I didn't have anything else in my pockets.”
Yannello stated that after shooting Phelps, he took the knife and left the scene.
Sgt. Barlow testified that he contacted Yannello after Straley called 911. Barlow searched Yannello at the Girdwood Post after Yannello turned himself in and found the knife in his pocket.
Yannello told Barlow that he was walking home from Straley's, when a man came from the other direction and walked down the sidewalk toward him. Yannello stated that the man was agitated and at one point they were touching foreheads.
Yannello said he as able to walk away some, but then the man came back at him, this time with a knife.
Yannello then pulled out his gun and fired a warning shot but the man kept coming at him, he said. He fired three or four more shots and Phelps fell to the ground.
Yannello said he did not want the knife to be lost or covered in snow and that is why he took it.
Yannello, stands about 5'7” or 5'8” and weighs around 140 pounds. He shot Phelps with a .45 caliber semi-automatic handgun.
Yannello testified that he had been drinking with his friend Straley, arriving around 9 p.m. at his house and drank eight to nine beers while he was there.
Yannello said he left just after midnight.
Dylan Hafer, Yannello's roommate, stated that he was asleep around midnight when Yannello entered the apartment and awakened him. Hafer said Yannello told him that he'd been attacked and that he fired a shot in the ground as a warning and then said “he had to shoot the guy.”
Yannello told Hafer that the altercation started when he brushed up against the man and words were exchanged. Hafer and his other roommate told Yannello that he needed to go to the police and get help.
Yannello shot Phelps in the pelvis, from the side, in the arm, and in the back. Phelps was bleeding profusely from a large hole in his abdomen and collapsed against a snow bank on the mountainside of the road.
Yannello left Phelps bleeding on the ground and walked back to Straley's house.
Phelps fell unconscious and about 12:40 a.m. two medical units arrived from the Girdwood Fire Department after a couple in an SUV saw Phelps laying on the side of the road and quickly administered first aid.
About 30 minutes after the first 911 call, the Girdwood Troopers' dispatch received a telephone call from the Tesoro gas station, and that the “shooter” was at the gas station with his friend Andrew Straley.
Yannello turned himself into the Girdwood Post where Sgt. Barlow read Yannello his Miranda rights and took statements from him.
Barlow gave Yannello a breathalyzer test for alcohol, and it registered .132 at 2:08 a.m. A Datamaster was taken at 3:15 a.m. and his alcohol level registered a .096.
The hospital reported that Phelps's blood alcohol content was .26.
Straley, who was also co-worker of Yannello's at Alyeska Resort, testified that Yannello owned a Colt .45 which Yannello “carries concealed whenever he's walking to and from someplace,” he said.
Butler claims that Yannello was acting in self-defense.
In a court document filed by Butler, Sgt. Barlow stated that Yannello told him during questioning at the Girdwood Post that he had been walking from Straley's house on a bike path that runs parallel to the Alyeska Highway, when “as he was coming up to the intersection there, that another man came from the other direction and started walking down the same sidewalk towards him. He said that “the guy looked agitated.”
Yannello was wearing an iPod with headphones on and when he took them off the “other guy kept coming, walking towards him. He was yelling things and looked agitated and angry,” Yannello said.
Yannello stated that he tried to calm Phelps down and at one point they were face to face and he tried to get some space between them.
Yannello said that Phelps followed him up to Arlberg Avenue and was coming back at him with a knife. He said he pulled out his handgun to stop Phelps from approaching him, but he kept coming.
Yannello said he fired a warning a shot, but Phelps kept coming and then he fired more shots and stated that he thought he “hit the guy” but Phelps kept coming at him so he fired some more.
“About three or four times and eventually the guy fell. Fell down onto the road,” he said.
Yannello is scheduled for sentencing March 18.
Phelps has had several surgeries and is recovering from his wounds. He no longer lives in Girdwood and has moved to another community in Alaska.
