Man to serve three years in prison for Girdwood shooting

Judge sentences gunman to six years with three years suspended

By Ken Smith
Turnagain Times

It was just after midnight in Girdwood on Sunday, Nov. 23, 2008, when two men's lives changed forever during one brief, violent encounter.

David Yannello had been partying and drinking alcohol at a friend's house and decided to walk home. Brad Phelps had been at the Sitzmark Bar and Grill and had been drinking alcohol when he was thrown out of the bar for inappropriate behavior.

The two men were walking toward each other on the bike path along Arlberg Road near the corner of Alyeska Highway when a verbal confrontation began.

Who started the argument remains in question, but a few minutes into it, Yannello had fired four bullets into Phelps, leaving him bleeding profusely on the side of the road.

Phelps would survive the shooting, but he would face many surgeries and long days of rehabilitation.

On Monday, June 21, Yannello was to meet his fate for the shooting. He sat somberly as Judge Michael Spaan administered the sentence—six years with three years suspended for the shooting and 30 days consecutive for possessing a firearm while intoxicated.

Earlier in the year, state prosecutors had reached a plea agreement that reduced the original charge against Yannello from attempted murder to felony assault in the second degree.

Yannello, 30, was living in Girdwood while working at Alyeska Resort as a lift operator at the time of the shooting.

Phelps, 33, had just moved to Girdwood a couple of weeks before the incident. He was a welder and looking to land a job in Prudhoe Bay. He now works in another community in Alaska as he tries to rebuild his life.

Phelps was shot in the arm, stomach, kidney, and pancreas. One bullet wound apparently entered through his back. He has endured multiple surgeries due to his bullet wounds.

About an hour after the shooting, Yannello turned himself in at the Troopers office in the Girdwood Post. Yannello told Trooper Sgt. Bryan Barlow that he tried to back away from Phelps during their encounter, but that Phelps came at him again, this time with a knife in his hand. Yannello stated that he pulled out his .45 caliber handgun and fired two warning shots, but Phelps continued to come toward him, at which time Yannello fired five rounds. Troopers surveying the scene of the shooting found seven spent casings on the ground.

Phelps was taken to Providence Hospital where he partially recovered from his wounds after a four month stay.

As Phelps stated in court when he took the stand during the sentencing, the medical bills have exceeded several hundred thousand dollars.

Phelps spoke about his injuries and surgery during an emotional testimony. He talked about his struggle through various surgical procedures and his battle against infections. He has a deep scar from his chest down to his navel where his abdomen has been open three times for surgery in his intestinal area. He has no health insurance and said he is struggling to pay his medical bills.

“I've used up all of my savings and started selling my belongings to pay hospital bills. I've moved away and got a welding job, but I had to go in for another surgery to save my kidney.”

He then questioned Yannello's motive.

“For what reason does a man shoot another man seven times and not get convicted for an attempted murder charge?” he asked. “Why is it a complete stranger shot and tried to kill me?”

He also questioned what he considered was a lenient plea agreement.

“These charges have been dropped substantially from what they should be,” he said, “and I try not to take it personally, but I ask myself often, how many times does a man shoot at close range with a .45 caliber handgun, a gun known as the man stopper, without forming the intent of murder, and why doesn't our justice system protect innocent people from a person who has the ability to do such a thing. This justice system that I support is certainly a difficult one to understand when a guilty man can buy his freedom.”

Phelps' mother, Bonnie, also testified, calling in from Germany where she works for the Army in school services. She spoke vehemently about her son's ongoing medical issues and the need for justice.

She stated that Yannello was a man known to carry a gun around town.

“He was looking for someone to shoot, and my son was his victim,” she said. “He has no remorse, only excuses…He cares not for the lives of others, he is selfish, and he wants to make sure that he gets his own way…I ask that you hear my plea as a mother and as a citizen, do not give the mercy of the court where none is deserved. Be unmerciful with giving the sentence, with no probation. Give us justice and peace of mind…”

Typically a sentence only takes about one hour, but in this case, it took three days with various witnesses brought in by both the lead prosecutor, Michal Stryszak, and Yannello's attorney, Rex Butler.

Judge Michael Spaan sat patiently listening to the lawyers and their witnesses before handing down Yannello's sentence. He could have sentenced him a maximum of 10 years for the second degree assault charge.

“This was a very strange case,” Spaan said in his opening remarks. “The defendant doesn't believe he should be charged. The victim, Mr. Phelps, believes the state should have been more aggressive…The prosecution team–I know they're dedicated, top professionals–but I sense that Mr. Phelps did fall through the cracks.”

The state took an attempted murder, assault one case, and pled it down to an assault two case he said and “for that we have certainty for both of the parties,” Spaan said. “Perhaps a compromise wasn't a bad compromise. But Mr. Phelps, I don't think from what I heard, realized what was happening at the time it occurred.”

Yannello's statement that Phelps came after him with a knife was not credible the judge said.

“There's no evidence on whether the defendant, in fact, was at risk,” Judge Spaan said. “For both of you, I find that the evidence shows that Mr. Phelps was an obnoxious drunk that night, but there is no evidence that he was aggressive physically. I also find that Mr. Yannello was under the influence of alcohol. So we have a perfect storm. But one of the parties had a .45 caliber handgun.

“I find that the defendant was carrying a loaded fire arm when he was intoxicated. I further find that he fired multiple rounds at Mr. Phelps, and I can not find that there was serious provocation.”

The defense during the sentencing presented a case that Yannello was in a vulnerable condition due to a serious accident that happened at 19 years of age when a tree fell on him, severely injuring his back and vertebrae.

In addition to the injury, Yannello's older brother, John, testified that David was assaulted two times, which led to injuries and a further sense of vulnerability.

A neuropsychologist was also brought in to testify on behalf of the defense that he had tested Yannello and found he suffered from a sense of serious emotional stress and physical vulnerability from the tree accident.

The conclusion by the psychologist was that the injury to Yannello along with the assaults, created a mental condition that led to a more likely outcome of Yannello shooting Phelps after feeling threatened by him.

And the judge agreed.

“He (Yannello) took to carrying this gun because he was afraid that somebody might assault him,” Judge Spaan said, “and I find that that was clearly established. It made it more likely that he would shoot somebody.”

Then the judge looked at the incident itself and the actions of both men that led to the shooting.

“I find, as I said before, that this was a perfect storm,” he said. “We had one obnoxious drunk–Mr. Phelps–and another intoxicated person who was armed with a .45. Words were exchanged; we don't know precisely what happened. But we do know that Mr. Phelps was unarmed. We do know that the defendant was not credible and that this story of the victim having a knife, and this might go to his consciousness of guilt when he told the story that he knew what happened, did not justify his shooting…”

The judge felt that Yannello's rehabilitative process was good but not extraordinary and that he has outstanding support from his family and has no prior criminal record.

“What we have is an exemplary life today,” Judge Spaan said. “I mean, we have a young man that has lived his life well. He suffered some bad breaks. What troubles me is that when I went through the pre-sentence report, it seems to be all about Mr. Yannello. I'm not sure he's accepted responsibility. The fact that he came up with the knife story is troubling. The fact that he didn't want to stop smoking dope and drinking when he shot a man when he was intoxicated is troubling. Isolation is not a very important factor in my sentencing decision. As long as he doesn't have any guns and no booze, and he's under supervision, I don't consider him a public threat.”

The judge further stated that, “The sentencing recommendation of the state approaches a conviction of an assault one, which they chose not to try. I do find, however, that conduct involved in this case is closer to an assault one conduct, and based on the aggravator, I will exceed the presumptive range.”

Based on his findings, the judge sentenced Yannello to six years with three years suspended. If he violates his probation then the three years suspended could be imposed. On the weapons charge of using a firearm while intoxicated, he was sentenced to 30 days consecutive. He also ordered three years of probation.

Yannello will be responsible for paying restitution to Phelps.

The prosecutor said he felt the sentence was fair, as did Butler.

“We feel the judge was, based on the facts and circumstances, very reasonable to Dave,” said Butler, “taking into the consideration that Dave has no prior criminal record and that there are psychological issues in that he has been assaulted twice in the past and here once again somebody's coming on him as though they want to assault him. And Dave is still a very vulnerable person. The court even made that finding that he does have vulnerabilities based on the injury that occurred to him as well as that he's been assaulted twice. So I think that the judge was very reasonable.”

Following Phelps' statement, Yannello read a short a statement.

“I feel terrible that I hurt another person,” he stated. “I only did so because I was in extreme fear. All the shots I fired, they weren't fired directly at Mr. Phelps. I did some warning shots and he was running at me…However, I do feel deeply regretful about what I did, and I would like to sincerely apologize to Brad, his fiancé, Adrian, and his family.

“I feel really bad about the injuries that he got. I never wanted to hurt somebody like that in my life, and I never will again, and I wish that everything would have been different if I had just kept running away from the situation. I tried to make it a little bit away and that's why I was toward the middle of the street, and I saw him following me, but I wish I would have kept running and I could have made it to where some other people were at, and that would have been the way to handle the situation.

Something like this will never happen again because now that I'm a convicted felon, I will never own or possess a firearm again. I only hope the best for Brad, and I feel really bad about what happened to him and the repercussions that's happened to his family and everybody. He definitely does not have to fear me in anyway in his future. I feel very bad for him and will continue to feel bad for him for the rest of my life about what I did and the injuries that he sustained as a result of my actions…I hope that I can go on with my life and take steps forward from here and get a good job in the future and start paying restitution payments to Mr. Phelps to help.”

Yannello will be taken into custody and remanded to prison on July 3. With good behavior, he could be out in two years.