Alleged 311 Boyz member may have to testify

Wednesday, May 5, 2004 | 11:27 a.m.

An alleged 311 Boyz gang member's plea agreement with prosecutors means he could be forced to testify against eight others who are charged with participating in the attack that left 17-year-old Stephen Tanner Hansen with a crushed face.

Matthew Costello's plea agreement does not stipulate that the 18-year-old must testify against his former co-defendants, but it does require him to give up his Fifth Amendment right not to self-incriminate himself in this case. So if the state subpoenas Costello in this case, he would have to testify, prosecutors said.

Chief Deputy District Attorney Christopher Laurent would not comment on whether Costello would be called to testify or whether gaining his testimony was one of the reasons for negotiating that sentence.

But Laurent did confirm that the state is in negotiations with some of the defendants, just as they are with most other criminal cases.

"We're always in negotiations," Laurent said. "Ninety-seven percent of the time some type of offer is made, and the defendant has to decide if that offer is one he or she is willing to accept."

Laurent would not comment on who has been offered what in the case.

He did say that if negotiations are reached, those defendants whom grand jury witnesses said threw rocks at Hansen's truck would likely face harsher penalties.

"I think negotiations in any case reflect the individual's level of culpability," Laurent said. "If one can make the arguments that the rock thrower is more culpable, then that would carry a more stringent ... punishment."

Of the nine defendants in this case, prosecutors believe five -- Christopher Farley, 18, Scott Morse, 18, Jeff Hart, 18, Anthony and Brandon Gallion, 16 -- possibly threw rocks at Hansen's truck on the night of July 18, 2003, according to the amended indictment filed in open court Tuesday against Costello. No witnesses have ever identified which of the five threw the rock that hit Hansen in the face.

Witness comments noted in the the grand jury transcripts identified Costello and co-defendants Steven Gazlay, 19, Dominic Harriman, 19, and Ernest Aguilar, 17, as being part of the conspiracy to attack Hansen, but placed them away from where the rocks were being thrown.

All nine teenagers were charged with attempted murder, battery and coercion in the attack under the theory that they all conspired to attack Hansen.

Costello is using an Alford plea for one felony count of battery with use of a deadly weapon. In exchange for his plea, prosecutors are dropping all other charges against him.

In an Alford plea the defendant does not admit guilt but acknowledges that that the state could prove its case.

Laurent said in court he could prove Costello was part of the conspiracy and that he punched Hansen and his friends through the truck window as they were trying to flee the scene.

The plea bargain also allows Costello to avoid jail time, as the agreement stipulates that he will receive probation. If he complies with all of his probation requirements, the felony charge would be reduced to a gross misdemeanor, according to the plea agreement obtained by the Sun Tuesday.

Jerome Bowen, attorney for the Hansen family, said his clients were satisfied with Costello's plea, although they wished he would have been given some jail time in the case.

"We believe under the circumstances that it is an agreeable result for the case against Matt Costello," Bowen said.

"If there are any other plea agreements that come down we would hope that they would each carry prison time," Bowen said. "The case continues to weigh heavily on the families, and they look forward to the day when justice has been served and (the case) is over."

Most of the attorneys for Costello's co-defendants were not immediately available Tuesday. The few who could be reached said they would not comment on ongoing negotiations.

Only Morse's attorney, William Wolfbrandt, said that his client has refused negotiations.

"He's (Morse) not going to plea to any charges," Wolfbrandt said.

Only one witness, an ex-girlfriend, testified that Morse was a rock thrower.

Wolfbrandt said the possibility that Costello might testify did not affect his client.

Gazlay's attorney, Louis Palazzo, said Costello's testimony would exonerate his client. Palazzo said he has recently filed a motion to sever Gazlay's case from the others because some of his co-defendants have said they would testify in favor of Gazlay if they could do so without being forced to testify in their own trial. Cherry is waiting for the state to respond to that motion before making a decision.

"Our position is that Steven Gazlay did not throw the rock, has no culpability with anything that happened to Tanner Hansen and he's not a member of 311," Palazzo said.

"Anyone who chose to testify and decided to testify truthfully would exonerate Steven Gazlay."