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Arraignment on a murder charge for a Clearfield man who shot his brother to death in November has been delayed to June 21 while his attorney decides whether he will appeal a judge's decision that the defendant stand trial.

Joseph DiLello, 28, shot his brother, Michael DiLello, 33, 10 times with a .22-caliber rifle early in the morning of Nov. 7. Michael DiLello had kicked in the door of Joseph's mobile home and was trying to retrieve his girlfriend, who had taken refuge there after the two had a fight earlier in the evening, according to court records.Defense attorney Loren Martin doesn't dispute that his client shot his brother but says the shooting was not a criminal act under Utah's defense of habitation law.

Second Circuit Judge K. Roger Bean disagreed, ruling after an April preliminary hearing that probable cause exists that a crime was committed and Joseph DiLello committed it.

Martin appealed that decision to 2nd District Judge Jon Memmott, last month, seeking to have the bind-over order dismissed. But Memmott ruled late last month the issues Martin raised are ones that a jury should decide and ordered the case to proceed.

DiLello was scheduled for arraignment on a first-degree murder charge Tuesday in Memmott's court, but the judge delayed the hearing to June 21 to allow Martin to appeal his decision if he chooses.

According to court records, Michael DiLello was intoxicated and had used cocaine and speed in the hours before the 4 a.m. incident at his brother's mobile home.

Five people - Joseph DiLello; his wife, Ruth, and their infant son; his brother's girlfriend, Deneil Harper; and a nephew, 19-year-old Jason Strader - were in DiLello's home when his brother arrived, according to court documents.

They had argued earlier in the evening after Joseph DiLello broke up a fight between his brother and Harper, according to court records, fleeing the scene of the altercation and going home.

When Michael tried to break in, Joseph fired 14 shots from the rifle, hitting his brother 10 times, according to the state medical examiner, who also testified that all three of the frontal wounds and at least one of the seven shots that hit the victim in the back were potentially fatal.

Judge Bean ruled that Joseph, who served almost four years as a military police officer, could have chosen from several other alternatives than shooting his brother.

He could have called police and asked for protection in the three hours between when he left his brother and Michael showed, or could have warned police that his brother was intoxicated and had him picked up for DUI, the judge said.

Despite Martin's assertion that the people in the trailer were in imminent danger, the judge found that Michael had only come to pick up his girlfriend and that no one was threatened by that.

Michael DiLello was unarmed, intoxicated and shoeless, the judge said, and could have been dissuaded by being pushed back from the door or off the porch.

And if he found it necessary to use a gun, Bean ruled, "one shot to Michael's shoulder or leg would have accomplished the purpose" instead of the 14 that were fired.

Bean also found Joseph DiLello may have had a motive for the killing, saying he may have been furious with Michael after the fight earlier that night and sought revenge for other beatings his brother had given him.

A neighbor who witnessed the shooting testified he watched Michael DiLello approach the home and said the victim was "patient, relaxed, and calm" and not threatening.

In denying Martin's motion to overturn the bind-over order, Memmott cited that testimony, saying the neighbor didn't consider Joseph DiLello's shooting of his brother to be reasonable under the circumstances and the other issues raised by Martin should be heard by a jury.