Joe DiLello's two ex-wives say he is violent and gun-obsessed and should be sent to prison for a long time. But the Clearfield man's surviving brothers are sympathetic, despite his shooting his older brother to death nearly two years ago.
Second District Judge Jon Memmott sentenced DiLello, 29, to a zero-to-five-year term in prison Tuesday and ordered a consecutive five-year enhancement for using a firearm in the killing of his brother, Michael DiLello.The shooting occurred in the early morning of Nov. 7, 1993, as Michael DiLello, 33, broke through the front door of his younger brother's mobile home in Clearfield.
After an evening of drinking and arguing, Joe DiLello was waiting for him, armed with a .22-caliber rifle. He fired 14 shots at his brother, hitting him 10 times and killing him instantly.
He was originally charged with murder, but prosecutor Carvel Harward said he was always doubtful of getting a homicide conviction because of Utah's home defense law, which allows the use of deadly force against a violent intruder.
When he screened the case to fellow prosecutors before filing the charge, Harward told the judge Tuesday, the group split on whether a murder charge should be filed and expressed doubts whether a jury would convict him in a trial.
Defense attorney Loren Martin appealed a circuit court order binding Joe DiLello over for trial on the charge, claiming the home defense statute - which he helped write - protected his client.
It went to the Utah Supreme Court, which eventually upheld the order and sent the case to district court.
DiLello in June pleaded guilty to a third-degree felony charge of aggravated assault, a plea negotiation Harward said was in his game plan from the beginning.
According to court records and preliminary hearing testimony, Joe DiLello and his wife, Ruth; Michael and his girlfriend; and their nephew had gone out to dinner and to a party the night before.
Michael, who according to family members had a violent temper when drinking, was drinking heavily and using amphetamines that night and got into an argument with the group. They left him on the street, driving back to DiLello's home.
Expecting his brother to show up, Joe DiLello loaded the semiautomatic rifle and waited for him on the couch.
That action, the judge said Tuesday, combined with the eventual death of Michael, puts the case beyond a simple home-invasion defense.
The rifle was loaded by Joe DiLello, unloaded by his nephew, and then reloaded, the judge noted. Joe DiLello also had ample time to take other measures, including calling police, the judge said.
At the pretrial hearing in June where DiLello entered his guilty plea, his now ex-wife Ruth Crowther told the judge that he carefully studied a copy of the home-defense statute that night.
"He said nobody could touch him if he did it," Crowther told the judge.
At Tuesday's sentencing, Joe DiLello's first ex-wife, Marnie Mix, tried unsuccessfully to give the judge a letter and photos of DiLello, showing him firing a semiautomatic assault weapon, to show his violent nature.
Defense attorney Glen Cella successfully blocked the attempt, arguing Mix had no right to present evidence under the state's victim testimony law because she was not a victim of the crime.
Cella asked Memmott to send DiLello to the state diagnostic center for six months for an evaluation before sentencing him, saying there are some unresolved psychological issues.
"I've had a hard time getting through this," DiLello told the judge, saying he wants to get it behind him and go forward with his life.
Memmott noted the seriousness of the act that resulted in Michael's death and said he doesn't believe that with the options that were available to DiLello, including his prior experience as a military policeman, that shooting his brother 10 times was necessary.